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Constitutional Law--Fifth Amendment--Privilege Against Self-Incrimination By Admission Of Occupation And Of Knowledge Of Whereabouts Of A Fugitive Witness, Lois Hambro

Michigan Law Review

Petitioner, who was known as an underworld character and racketeer, was subpoenaed before a federal grand jury investigating federal crime and rackets and was asked his occupation and business and whether he had seen, talked to, or knew the whereabouts of a certain person upon whom a subpoena had been issued but not served requiring such fugitive person to appear before a federal grand jury. He refused to answer on the ground of the constitutional privilege against self-incrimination. Petitioner was adjudged in contempt of court for refusal to answer the questions. The court of appeals affirmed the judgment and the …

Negligence-Duty Of Care-Duty Of Possessor Of Land Conducting Activities Thereon To Keep A Lookout For Licensees, Duncan Noble

Michigan Law Review

Plaintiff, seeking employment, came onto the site of a road construction project under defendant's control as general contractor and posted by him with notices of construction and against trespassing. Plaintiff was struck by a materials truck backing, without lookout or warning, over the completed half of the road. On these facts the jury found that the truck was negligently operated and plaintiff prevailed. On appeal, held, affirmed. A contractor owes a duty of ordinary care to licensees in a case of "active," as distinguished from "passive" negligence. Evidence as to the mode of operating the truck and "likelihood" of …

Taxation-Federal Income Tax-Period For Deduction Of Embezzlement Losses, Thomas P. Segerson S.Ed.

Michigan Law Review

This action was brought against the United States for a refund of income taxes paid. Plaintiff taxpayer claimed she was entitled to a deduction in 1941 for losses resulting from the embezzlement of funds by a trustee which were discovered in that year. The Commissioner of Internal Revenue disallowed the claimed deduction because the acts constituting the embezzlement had taken place during prior years. Held, judgment for defendant. Embezzlement losses are deductible in the years in which the defalcations take place, not in the years such defalcations are discovered. Alison v. United States, (D.C. Pa. 1951) 97 F. …

Monthly Periodical Index, Michigan Law Review

Michigan Law Review

This department lists the articles and comments which appear in leading law reviews. The index embraces material published since the last issue of this REVIEW.

Federal Procedure-Juries-Right To Jury Trial In Actions On National Service Life Insurance Policy Claims, Morris G. Shanker S.Ed.

Michigan Law Review

Plaintiff brought an action against the United States on a National Service Life Insurance policy in a federal district court. Timely demand for trial by jury was made in accordance with Federal Rule 38. Held, the plaintiff was entitled to a trial by jury. That section of the Judicial Code which reenacts the Tucker Act and denies jury trials in contract actions against the United States is not applicable to National Service Life Insurance claims. Williams v. United States, (D.C. Tex. 1951) 95 F. Supp. 672.

Commentary On General Relief Under The Excess Profits Tax Act Of 1950, Thomas N. Tarleau

Michigan Law Review

Analysis of an excess profits tax involves inquiries which are essentially foreign to the concepts of ordinary income taxation. The question of excess profits arises only after taxable income has been defined and characterized, its recipients determined and the time of receipt established. The problem is to divide taxable income into two components, one representing the corporation's normal profits, which it is permitted to enjoy free of the penalty tax, and the balance which is deemed to be "profits due to the outbreak of hostilities and to large military expenditures." Under the Excess Profits Tax Act of 1950, as was …

Tax Exempt Charitable Corporations: Revenue Act Of 1950, Maurice Finkelstein

Michigan Law Review

In 1895 Joseph Choate, a distinguished leader of the American Bar, arguing before the Supreme Court of the United States said: "The Act of Congress [the income tax law] which we are impugning before you is communistic in its purposes and tendencies, and is defended here upon principles as communistic, socialistic-what shall I call them -populistic as ever have been addressed to any political assembly in the world. . . . I have thought that one of the fundamental objects of all civilized government was the preservation of the rights of private property. "

While the great advocate no doubt …

Employee Stock Options, Reece A. Gardner

Michigan Law Review

The taxation to an employee of the difference between the fair market value of a share of stock transferred to him by a corporate employer, pursuant to the employee's exercise of an option to acquire it at a price below the value of the share, has for years been a matter of dispute between taxpayers and the Commissioner of Internal Revenue. This dispute has involved not merely, as in the case of many of the hardy tax perennials such as reasonableness of compensation, a question as to the application of facts to a well-defined principle of law, but rather a …

Civil Procedure-Abatement-Status Of Suit Nominally Against Government Official When Official Leaves Office, Alan C. Boyd S.Ed.

Michigan Law Review

Often an action brought against an official of the sovereign is actually against the sovereign itself, nominally represented by the official. The status of such a suit when the official leaves office is even today not satisfactorily settled. The so-called representative suit, while at one time serving a purpose, has always been somewhat anomalous and today is antiquated and useless.

Conflicts Of Law-Divorce-Res Judicata Effect Of Decree As To Third Parties, Paul M.D. Harrison S.Ed.

Michigan Law Review

Respondent had applied for a determination of petitioner's rights under the New York Decedent Estate Law, which provides for the widow taking a statutory one-third share in her husband's estate after his decease. Respondent contended that petitioner was not a widow of decedent, as the prior divorce awarded against decedent in Florida was void because of failure to satisfy residence requirements. The evidence showed that the residence requirements had not been met, but also showed both of the parties to the divorce to have made appearances in the Florida court. The trial and intermediate courts held that respondent had no …

Constitutional Law-Due Process-Bill Of Attainder-Loyalty Oaths For City Employee, James I. Huston

Michigan Law Review

In 1948, pursuant to an amendment to its charter, Los Angeles passed an ordinance which provided that all city employees must (1) take an oath that they did not espouse, and had not espoused within five years prior to the effective date of the ordinance, the forceful overthrow of the government; that they were not, nor had they been within the same period, affiliated with a group espousing such aims, and that they would not join any such group while in city employ, and (2) execute an affidavit relating whether they had ever belonged to the Communist Party, and if …

Constitutional Law-Eminent Domain-Government Seizure Of Business Property To Avert Strike As A "Taking" Under Fifth Amendment-Amount Of Wage Increase As Measure Of "Just Compensation", John F. Spindler

Michigan Law Review

In 1943, in an attempt to end a strike of the United Mine Workers which threatened the national war effort, the Government, acting under an executive order directing the Secretary of the Interior to take possession of the mines where necessary, seized most of the nation's coal mines. Although mine officials were required to agree to conduct operations as agents of the Government, to keep separate books for the period of government operation, to fly the American Flag over the mines, and to post notices that the mines were "United States Property," they were instructed to carry on the mining …

Corporations-Securities Exchange Act Of 1934--Measure Of Shortswing Profits Under Section 16(B), Harry T. Baumann

Michigan Law Review

Plaintiff stockholder brought a derivative action against the defendant officer for profits made in violation of section 16(b) of the Securities Exchange Act of 1934 on the purchase and sale, within six months, of securities issued by the corporation under an "incentive" option agreement. The contract provided that on or after the first accrual date, until a fixed termination date, a stated number of shares could be purchased at a set price; the same privilege accrued with the identical termination date in each of the next two years. There was no dispute of fact; the question thus centered on the …

Municipal Corporations-Tort Liability Of Municipality For Injury Caused By Neglect To Perform Mandatory Duty, J. S, Ransmeier S.Ed.

Michigan Law Review

By statute the State of New Jersey imposed upon every New Jersey municipality the obligation to insure the drivers of municipal motor vehicles against liability for damages resulting from the operation of such vehicles. The Township of Lyndhurst neglected to procure insurance in favor of plaintiff, and a personal judgment was recovered against him for his negligent operation of a township fire truck while in pursuance of his municipal duties. Plaintiff brought the present action to recover from the municipality for its breach of the statutory obligation. Judgment below was for defendant. On appeal, held, affirmed, three justices dissenting. …

Corporations-Officers And Directors--"Corporate Opportunities" Doctrine, Thomas P. Segerson S.Ed.

Michigan Law Review

Plaintiff corporation brought a bill in equity for an accounting of profits arising from an alleged breach of fiduciary duty by defendant, a former officer and director. The alleged breach consisted of defendant's action in procuring a contract for the manufacture of a saw sharpening machine for the X corporation, wholly owned by him, without disclosing such facts to his associate directors of plaintiff corporation. Plaintiff corporation was engaged in the manufacture of polishing machines, while the X corporation manufactured lawn mowers. At the time of the contract, defendant "knew that ... [plaintiff corporation] desired to enlarge its field of …

Real Property--Adverse Possession--What Constitutes Adverse Possession Of Land Used Periodically, George D. Miller Jr.

Michigan Law Review

Plaintiff in an ejectment action claimed under a chain of title tracing back to a government patent. Defendants asserted title in themselves by adverse possession. The land in question was wild, undeveloped, and not suitable for farming, but was desirable for hunting and fishing, for which purpose the defendants had used the premises every year since their entry. In 1926 some of the defendants built a cabin on the land, and replaced it in 1932 by the present one, which they built on a cement foundation, painted, and planted grass around. They also erected a sign at the crossroads bearing …

Monthly Periodical Index, Michigan Law Review

Michigan Law Review

This department lists the articles and comments which appear in leading law reviews. The index embraces material published since the last issue of this REVIEW.

Constitutional Law - Civil Rights - First Amendment Freedoms-Reformulation Of The Clear And Present Danger Doctrine, Bernard A. Petrie

Michigan Law Review

In July 1948 the apostles of Communism in America were indicted under the conspiracy provisions of the Smith Act of 1940. The tension marking both the trial and the present era has obscured the constitutional problems and policy considerations involved. It is the purpose of this comment to trace the history of this cause celebre, Dennis et al. v. United States, and to examine its effect upon our constitutional notions of the permissible bounds of utterance, primarily by an analysis of the appellate opinions.

Regulation Of Business-Trade Restraints-Business Price And Use Restrictions Accompanying Sale Of Land, Jean Engstrom S.Ed.

Michigan Law Review

Plaintiff, a wholesale and retail dealer in "Marathon" products, and the smallest wholesale distributor of gasoline in Ann Arbor, sought to enjoin defendant from selling Marathon gasoline at less than the price set under the provisions of the standard dealer's contract. Defendant bad acquired his station by a deed containing a covenant expressly intended to run with the land, providing for the operation of a filling station on the land, and a ten-year agreement that aII petroleum products sold on the premises were to be supplied by plaintiff "at such prices and on such terms as are customarily furnished to …

Avoidance Of Constitutional Issues In The United States Supreme Court: Liberties Of The First Amendment, Burton C. Bernard

Michigan Law Review

The frequently criticized reluctance of the Supreme Court to consider complaints of unconstitutional governmental action is manifested in the utilization by the Court of various rules of avoidance of constitutional issues. Uncompromising defense of this self-restraint would not be easy to reconcile with the Court's pronounced sensitivity, in modem times, to the liberties of the First Amendment. This article will examine the considerations underlying the traditional restraint, and will suggest that the Court should modify several of its rules of avoidance, at least when liberties of the First Amendment are threatened.

The Fourteenth Amendment And The "Separate But Equal" Doctrine, Joseph S. Ransmeier

Michigan Law Review

Recent cases in which the Court has overthrown enforced separation in public higher education on the ground of inequality but without consideration of the merits of the separate but equal rule have been the occasion for an outpouring of law review discussion on the subject. The present paper is a part of this stream. Its purpose is two-fold: first, to set forth the judicial history of the modern separate but equal rule, noting its pre-Fourteenth Amendment origin and the rather uncritical manner in which courts permitted it to infiltrate its way from one area of the law to another; and …

The Law School: 1951-52, E. Blythe Stason

Michigan Law Review

A year ago, in December of 1950, when the war in Korea was going badly and the country appeared to be on the brink of general mobilization, it seemed inevitable that the demands of military service would make severe inroads upon this year's student enrollment in the Law School. Such inroads have been made, but although the recall of reservists and the call of Selective Service draftees have drawn into the armed forces many young men who would otherwise be studying law at Michigan, the effect has by no means been as severe as was anticipated. The current fall semester …

Conflict Of Laws-The Nature Of Statutes Of Limitation, Nancy J. Ringland S. Ed.

Michigan Law Review

Several recent cases have again focused the attention of the courts on the nature of statutes of limitation; the question is whether they are procedural or substantive. For purposes of the conflict of laws this distinction is important, for it is universally agreed that in conflicts cases the substance of the cause of action is governed by the law of the place where it accrued, and the procedural aspects are governed by the law of the forum. There is no doubt that the theory which holds the usual statutes of limitation procedural in nature prevails in this country today, but …

Labor Law-Boycotts And Coercion Of Neutral Employers Under The Taft-Hartley Act, Robert S. Griggs S. Ed.

Michigan Law Review

Four decisions rendered by the Supreme Court. at the close of the 1950 term may alleviate some of the confusion inherent in section 8(b)( 4)(A) of Title I of the Labor Management Relations Act of 1947. This section, whose concern is with the motive with which union activity is undertaken, rather than with the character of the activity itself, is probably the most "broadside" in the act. In essence, it purports to prohibit labor unions from engaging in or inducing strikes and concerted refusals to handle goods, "where an object thereof is ... forcing or requiring . . . any …

Conflict Of Laws-Enforcement Of Foreign Claims For Taxes And Workmen's Compensation Premiums, C. J. Rice S. Ed.

Michigan Law Review

By reason of work done in Ohio, defendant-employer came within the provisions of that state's compulsory workmen's compensation law. The State of Ohio sought to collect insurance premiums due the state fund by an action brought in a Kentucky court. Defendant demurred on the ground that the claim was in the nature of one for taxes, and hence unenforceable extraterritorially. On appeal from an order sustaining the demurrer, held, reversed. Regardless of whether or not the claim for premiums can be classified as one for taxes, Kentucky courts may act as forums for the collection of foreign tax claims. …

Contracts-Rights Of Third Party Beneficiary-Effect Of Michigan Beneficiary Contract Statute, Gordon W. Hueschen S. Ed.

Michigan Law Review

On agreement to make mutual wills, Stephen and his two sisters entered into an agreement whereby the sisters agreed to will to Stephen, or in event Stephen predeceased them, to his wife, all property which they should receive from their father. Stephen did predecease the sisters, whereupon they executed new wills with no provision for Stephen's widow. Upon death of the last sister, the widow's bill for specific performance of the agreement was dismissed by the circuit court. In affirming on appeal, the Michigan Supreme Court held that the agreement as to Stephen and all other persons except the sisters …

Corporations-Dissolution-Power Of Chancellor To Decree Dissolution When Deadlock Exists, John J. Edman S. Ed.

Michigan Law Review

Plaintiffs sought dissolution of defendant corporation pursuant to a statute allowing a petition for dissolution to be made to the chancellor by the holders of one-half of the voting stock upon a deadlock in management and voting shares. The evidence showed that there was no chance of compromise by the warring factions, that the corporate function could not be carried out, and that the plaintiffs' interests might be jeopardized. The chancellor held that unless a harmonious solution was effectively formulated within fifteen days after the filing of an opinion, a judgment containing appropriate provisions for a dissolution would be entered. …

Federal Procedure-Change Of Venue On Motion Of The Plaintiff, David F. Ulmer S. Ed.

Michigan Law Review

Plaintiff, a resident of California, was injured on defendant corporation's premises in Nevada. Being unable to serve defendant in California, plaintiff started a negligence action in the Federal District Court in Nevada and then moved for a change of venue to the proper Federal District Court in California under section 1404(a) of the Judicial Code. The Federal District Court of Nevada overruled plaintiff's motion. On appeal, held, affirmed. The requirement under 1404(a) that the action be transferred to any district "where it might have been brought" precludes transfer to a forum where the defendant was not amenable to process. …

Fiduciary Administration-Fraud In Securing Probate-Constructive Trust Imposed On Devisee, Patrick J. Ledwidge S. Ed.

Michigan Law Review

Plaintiff's complaint contained the following allegations: that plaintiff was the daughter and defendant the son of the decedent; that defendant had fraudulently destroyed written acknowledgements of the decedent that plaintiff was his daughter; that defendant had falsely secured the probate of decedent's purported will, in which the plaintiff was in no way mentioned. The complaint sought the recovery of the value of a one-half interest in the estate. The trial court sustained a demurrer to the complaint. On appeal, held, reversed. The complaint stated a cause of action entitling plaintiff to the imposition of a constructive trust on the …

Hardman & Neufeld: The House Of Labor, Morris D. Forkosch

Michigan Law Review

A Review of THE HOUSE OF LABOR. By J.B. S. Hardman and Maurice F. Neufeld.