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Notes, Michigan Law Review

Michigan Law Review

The information given in the notes is derived from inspection of the books, publisher's literature, and the ordinary library sources.

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.

The Codification Of International Law, James L. Brierly

Michigan Law Review

Any conclusion about the desirability or the practicability of codifying international law ought to be based on a clear idea of what the process would involve, and unfortunately "codification" is an ambiguous word. In the sense in which British and American lawyers use the word it relates to the form in which the law is presented. When we codify, we do not regard the task as one of improving the substance of the law, but as one of collecting the existing rules and stating them concisely and clearly. It is true that, even so, the work must involve some element …

Legal Problems Of German Occupation, Charles Fahy

Michigan Law Review

In early May, 1945, after conflict of almost unimaginable proportions, the ground forces of Germany which were still fighting had been pushed back into the boundaries of Germany; the resistance of its army, navy and air forces was collapsing. The armies of the United States, the United Kingdom, the Union of Soviet Socialist Republics and France were in actual occupation of practically all of Germany. The German government composed of Hitler and his cabinet had come to an end by the death, capture or flight of its members. Under Hitler's "political testament," however, Admiral Doenitz was recognized as Hitler's successor …

The Legal Status Of Occupied Germany, Max Rheinstein

Michigan Law Review

The unprecedented situation presently existing in Germany has, of necessity, given rise to new and intricate questions of international law. Of these, one set of problems appears to me to deserve special attention because of both their theoretical and practical significance, namely, the problems concerning the legal relations between Germany and .her occupiers.

International Law And Air Transportation, Charles S. Rhyne

Michigan Law Review

There was never a time when the people of this nation were more internationally-minded than they are today. The position of world leadership which has now been assumed by, or thrust upon, the United States makes the study of international relations under international law a most vital subject. It is our purpose here to consider the legal rules which have been and are being developed to govern a field whose technical achievements are one of the primary reasons why lawyers and laymen alike are vitally concerned with international law today-the field of international air transportation.

Constitutional Law-Procedural Due Process In Criminal Cases-Adequacy Of Remedies In State Courts To Raise The Questions, David H. Armstrong S.Ed.

Michigan Law Review

This comment will not attempt to consider the guarantees of a fair trial, but will deal with the remedies available to a person confined in a state prison in his attempt to secure relief on the ground of an asserted violation of such guarantees in the conduct of his trial.

Bailment-Effect Of Settlement By Bailee As A Bar To Action By Bailor, C. E. Becraft S.Ed.

Michigan Law Review

Plaintiff, as assignee of conditional vendor, brought an action against defendant for damage done to an automobile sold to one Zinner under a conditional sales agreement. The automobile was damaged through the negligence of the defendant and one Fulbrush, who, acting independently and with no knowledge of the plaintiff's claim, settled with Zinner for the full amount of damage; defendant and Fulbrush paying Zinner $429.55. The plaintiff later repossessed the automobile as Zinner failed to keep up his payments under the conditional sales agreement. Plaintiff sold the automobile in its damaged condition and brought this action for the difference in …

Constitutional Law - Privileges And Immunities - Commerce Clause-Proprietary Interest Of State In Its Natural Resources, Charles D. Bell

Michigan Law Review

Plaintiffs, residents of Georgia, sued to enjoin the enforcement of a South Carolina statute imposing on shrimp boats a license fee one-hundred times greater for nonresident owners than for resident owners, and requiring all shrimp to be unloaded, packed, and stamped in South Carolina before shipments into other states. The suit was based on the alleged contravention of the privileges and immunities and commerce clauses of the Constitution of the United States. Plaintiff's petition was dismissed by the trial court. On appeal, held, reversed. The disparity in resident and nonresident license fees constituted discrimination against nonresidents in violation of …

Constitutional Law-Due Process-Freedom Of Speech-Limitations On The Used Of Sound Amplification Devices, Bernard Goldstone

Michigan Law Review

Appellant, a minister of Jehovah's Witnesses, used, without a permit, sound equipment mounted on his truck to amplify lectures on religious subjects. He was convicted in a police court for violating a municipal ordinance of Lockport, New York. which prohibited the use of sound amplification devices without the permission of the chief of police. The ordinance provided no standards for the guidance of the local officer in the issuance of the permit. The conviction was affirmed by the county court and by the appellate court. On appeal, held, reversed, four justices dissenting. The ordinance violated the due process clause …

Constitutional Law-State Taxation Of Interstate Commerce -Validity Of Apportioned Capital Tax On Corporation Engaged Solely In Interstate Commerce, R. V. Wellman S.Ed.

Michigan Law Review

Plaintiff gas company, a Delaware corporation, transported gas by pipe line across a section of Mississippi. Its activities in Mississippi admittedly did not constitute intrastate commerce and plaintiff had no agent for service of process in that state. Mississippi imposed a "franchise or excise" tax on all· corporations present in the state, measured by applying a specified rate against the value of the capital employed within its boundaries. This tax was in addition to, and independent of, the locally imposed ad valorem taxes levied against plaintiff's property. Alleging the franchise tax to be invalid under the commerce clause of the …

Corporations-Particular Language And Circumstances Making Preferred Dividends Cumulative, Albert B. Perlin, Jr.

Michigan Law Review

The Securities and Exchange Commission filed a plan and requested an order under the Public Utilities Holding Company Act of 1935 to carry out the dissolution of the X company, a Delaware corporation, whose sole income-producing asset was the common stock of the Y company, a Kentucky corporation. The dissolution plan contemplated distributing to the shareholders of the Delaware company its holdings of the Kentucky company stock according to a pro-rata distribution ratio, based on the Class A Common and Class B Common stock of the Delaware company. Certain holders of the Class A Common shares of the Delaware company …

Habeas Corpus-Federal Courts-Necessity Of Confinement Of Prisoner Within Territorial Jurisdiction Of The Court, Ralph Jay Isackson S.Ed.

Michigan Law Review

The Attorney General, respondent, after finding that petitioners, one hundred and twenty Germans, endangered the public peace and safety of the United States by their adherence to an enemy government, issued removal orders for their deportation. Petitioners, while confined at Ellis Island, New York, filed petitions for writs of habeas corpus in the District Court for the District of Columbia challenging the removal orders on the basis that they exceeded statutory authority for their issuance. Respondent moved to dismiss because petitioners were not confined in the District of Columbia. The district court granted the motion and the court of appeals …

Federal Courts-Venue-Construction Of Sections 51 And 52 Of Judicial Code, Daniel W. Reddin Iii S.Ed.

Michigan Law Review

Petitioner, a resident and citizen of Mississippi, brought a negligence action based upon diversity of citizenship in the Federal District Court for the Eastern District of Louisiana, joining as defendants Highways Insurance Underwriters, a Texas corporation qualified to do business in Louisiana, and respondents, Reich Brothers Construction Co., a partnership, and its individual members, residents of the Western District of Louisiana. Respondent, Reich Brothers, moved to dismiss on the ground of improper venue under sections 51 and 52 of the Judicial Code which in effect provide that in diversity cases, suit shall be brought only in the district where either …

Labor Law--Constitutionality Of Affidavit And Filing Provisions Of Taft-Hartley Act, Jerry S. Mccroskey S.Ed.

Michigan Law Review

Plaintiff union, its president, and two union members sought to enjoin the National Labor Relations Board and its members individually from disqualifying plaintiff union from participation in union representation elections held by the board among the employees of two Great Lakes shipping companies. The exclusion of the plaintiff union was based on its failure to file affidavits and reports under sections 9 (f), 9 (g), and 9 (h) of the Taft-Hartley Act, which failure by the terms of the act served to disqualify the non-complying union from participation in board procedures. The plaintiff union attacked the requirements as unconstitutional. Held …

Taxation-Trust Income-Taxability To Person Other Than Settlor On Basis Of "Unfettered Command", L. K. Cooperrider S.Ed.

Michigan Law Review

Petitioner's father, who owned the entire capital stock of a manufacturing corporation, bequeathed a controlling interest therein to his wife and son, in equal shares. The widow transferred her shares in trust to a corporate trustee, the evident purpose being to vest in the son, petitioner here, the power to control the corporation. According to the terms of the trust the income was to be accumulated and added to the corpus for the joint lives of the settlor and petitioner, and after death of settlor to be disposed of according to the directions of petitioner. The shares were to be …

Wills-Bequests Of Annuities-Right Of Legatee To Receive Principal In Lieu Of Annuity, Daniel W. Reddin Iii S.Ed.

Michigan Law Review

Decedent left a will in which she made a bequest of $3000, $1000 to be paid in cash and the balance to be invested by her executor in annuities to be purchased from certain specified companies. In his final report, which was upheld by the district court, the executor expressed his belief that the legatee had the right under this will to elect either to receive the entire bequest in cash or to have the designated part invested in the specified annuities, and stated that since the legatee had elected to receive the cash, the entire $3000 would be distributed …

Corwin: Liberty Against Government, Michigan Law Review

Michigan Law Review

A Review of LIBERTY AGAINST GOVERNMENT. By Edward S, Corwin .

Killingsworth: State Labor Relations Acts, Michigan Law Review

Michigan Law Review

A Review of STATE LABOR RELATIONS ACTS. By Charles C. Killingsworth.

Notes, Michigan Law Review

Michigan Law Review

The information given in the notes is derived from inspection of the books, publisher's literature, and the ordinary library sources.

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.

Quasi-Contracts-Taxation-Rescission Of Gifts Where Gift Fails To Achieve Donor's Purpose Of Minimizing Federal Income Taxes, Charles M. Soller S.Ed., Edwin F. Uhl S. Ed.

Michigan Law Review

A recent Michigan case, Stone v. Stone, presents problems of complexity and far-reaching importance. The plaintiffs, husband and wife, each owned a one-half interest in a family business partnership, and each apparently reported a proportionate share of the partnership earnings for federal income tax purposes. For the purpose of further reducing taxes on the income of the family unit, each parent transferred a one-quarter interest in the partnership to one of their two minor children, and thereafter each parent and child filed separate income tax returns reporting one-fourth of the partnership earnings as individual income. Each parent, under a …

Non-Trade And Non-Business Expense Deductions: Section 23(A)(2) Of The Internal Revenue Code, R. W. Nahstoll

Michigan Law Review

Among the innovations introduced into the Internal Revenue Code by the Revenue Act of 1942 was the provision allowing deduction from gross income, in the computation of net income, of nontrade and non-business expenses. Every revenue act including the Act of 1894, has provided in one form or another for the deduction of trade and business expenses.

Recent Developments In Restitution: Rescission And Reformation For Mistake, Including Misrepresentation, Edward S. Thurston

Michigan Law Review

In accordance with underlying equitable principles, restitution is granted where a mistake has been made by one or both parties to a transaction or series of transactions because of which one of them has obtained an advantage which it would be unjust for him to retain.

There are two forms of relief, one based upon rescission, the other upon reformation. The first seeks the undoing of a transaction and the replacing of the parties into the positions, as nearly as may be, originally occupied. On the other hand, reformation seeks the performance of an agreement as the parties to it …

Corporations-Redeemable Stock-Fiduciary Duty Of Directors, Leroy H. Redfern S.Ed.

Michigan Law Review

A federal district court judge introduced an opinion on the fiduciary obligation of corporate directors by stating that "the doctrine of the fiduciary relation is one of the most confused and entangled subjects in corporation law." In Zahn v. Transamerica Corporation the fiduciary duties of corporate directors were discussed extensively by the Third Circuit Court of Appeals. The court not only failed to terminate the confusion and clear the entanglement but may well have added to it by using the fiduciary concept in a new field.

Taxation-Debt Reduction, John M. Veale S.Ed.

Michigan Law Review

Inherent in an economy financed by a large volume of credit, extending over varying intervals of time, is the problem of debt reduction and revalorization. The ramifications of this problem in the income tax field have long intrigued legal scholars and confounded the courts. A recent case illustrates anew the danger, to client and counsel, lurking in the assumption that the tax significances of debt reduction have finally been reduced to mathematical certainty. The taxpayer borrowed $90,000 from a bank in 1925, using the funds to pay off encumbrances upon, and make improvements on, a piece of property. As a …

Bankruptcy-Set-Off-Bank Deposits, A. E. Anderson S.Ed.

Michigan Law Review

Endorsers of a corporation's notes caused the corporation to make deposits in the payee bank in the regular course of business, knowing the corporation to be insolvent, and the bank took over the deposits within four months of adjudication in bankruptcy. It was contended that under the amended definition of "transfer" as set out in section 1 (30) of the Bankruptcy Act of 1938, this transaction resulted in a voidable preference to the endorsers under section 60. The trial court rejected this contention. On appeal, held, affirmed. Although the 1938 amendment gave a broader significance to the term "transfer" …

Constitutional Law--Due Process-Federal Restrictions On The Use Of Confessions In State Criminal Proceedings, F. L. Adamson

Michigan Law Review

Undisputed evidence established that petitioner, a negro boy of fifteen, was arrested at about midnight, October 19, 1945 and taken to police headquarters. He was questioned by the police with no friend or counsel present. He was not informed of his right to counsel or of his right to refuse to answer. At about five in the morning, October 20, he confessed. He was then informed of his rights and his statement taken and transcribed. He was photographed by a newspaper photographer, and then placed in jail. On October 23 he was, for the first time, taken before a magistrate …

Equity-Laches And Estoppel As Barring Equitable Relief In Protection Of An Easement, Chester Lloyd Jones S.Ed.

Michigan Law Review

Grantors had conveyed to plaintiff a certain lot in a subdivision with a provision "leaving a street sixty feet wide between Block Five . . . and the . . . tract herein conveyed." A plat of the addition, showing the street, had also been filed. Subsequently, the grantors conveyed to the defendant the land theretofore comprising the street. Construction on that land was begun and seventy-two days later when the building was 40 per cent completed and represented an expenditure of $2,000, plaintiff filed a suit to restrain interference with his easement, serving notice thereof on the defendant the …

Labor Law-Applicability Of The Lea Act To Activities Of The American Federation Of Musicians, W. J. Schrenk, Jr.

Michigan Law Review

Defendant, acting as president of a local union of the American Federation of Musicians, requested a new contract with a broadcasting station licensed by the Federal Communications Commission, including a provision that the licensee hire three extra musicians, raising to six the total number of musicians employed. When negotiations regarding this provision failed, defendant withdrew from the licensee's services the three musicians (members of the A.F. of M.) already employed by it. An action was, then brought to prosecute defendant under the amendment to the Federal Communications Act, popularly known as the Lea Act, which prohibits the use of threats …