Digital Commons Network^™

Criminal Law And Procedure - Constitutionality Of A Comment Upon Defendant's Failure To Testify, D. M. Swope

Michigan Law Review

For several years there has been agitation in legal and legislative circles to permit comment in a criminal action upon the failure of the defendant to testify. Both the American Bar Association and the American Law Institute have passed resolutions favoring such legislation. The chief objection to the proposal has been its alleged unconstitutionality. The purpose of this comment is to attempt to rebut such a contention and to show that the advocated change is both constitutional and eminently desirable.

Appeal And Error - The Administrator As A Party Aggrieved By Probate Of Will, John H. Uhl

Michigan Law Review

In an action to prove the existence of a lost will executed by the deceased, judgment was rendered setting up the lost will and revoking the letters of administration which had been issued. The administrator appealed from this order, and the appellee moved to dismiss the appeal on the ground that the administrator had no such interest as entitled him to review. The governing statute permitted appeal by "any party aggrieved by any final order, judgment, or decree." Held, that the administrator who has qualified as such was entitled to appeal under the statute, as the party aggrieved by …

Rule Against Perpetuities - Testamentary Provision Making Gift Vest On Distribution Of Testator's Estate, Henry L. Pitts

Michigan Law Review

Testator devised and bequeathed the residue of his estate to four specified chair officers of a lodge who were to be "the four chair officers in office at the time of distribution of my estate." These officers were elected annually. The lower court found that the clause was void as in contravention of sections 715 and 716 of the Civil Code of California. The four individuals holding the named offices in the lodge appealed. Held, affirmed. In re Campbell's Estate, 94 Cal. App. Dec. 482, 82 P. (2d) 22 (1938).

The Measure Of Recovery In Actions For The Infringement Of Copyright, Julian Caplan

Michigan Law Review

Since the present federal copyright statute was enacted in 1909, and especially quite recently, there have been repeated attempts at drastic modification of the law. Certain groups contend that the present statutory provisions are not of sufficient protection to the copyright proprietor, whereas other groups contend that the extent of the protection is entirely unwarranted. One of the chief phases of controversy has involved the measure of recovery in suits for infringement. The issue is of fundamental importance, since the measure of damages determines to a large extent how effective the other provisions of the statute will be. Whether, under …

A Warning Signal For Municipal Bondholders: Some Implications Of Erie Railroad V. Tompkins, Irvin Long

Michigan Law Review

That branch of municipal bond litigation in which the character and validity of the obligations is involved has usually been conducted in the federal courts. Bondholders pressing for payment of their defaulted bonds usually are nonresidents of the state where the city, county or other defaulting municipality is located. Varying and contradictory state court decisions taught them that no settled rule of decision in the state courts could be expected. The arguments of their counsel, which many of the earlier volumes of the Supreme Court reports preserve, show that they distrusted a judiciary elected for short terms, as was the …

Carriers - Discrimination -Allowance In Lieu Of Spotting Service By Railroads -Validity Of Cease And Desist Order, Arthur P. Boynton

Michigan Law Review

Nine industrial corporations sought to set aside an order of the Interstate Commerce Commission commanding the railroad or railroads serving industrial plants of the plaintiffs to cease and desist from the payment of allowance for the spotting of cars and switching services performed by plaintiffs on plant facilities. They contended the commission exceeded its powers in making the order and that its findings were not supported by substantial evidence. Held, that there was substantial evidence to support the findings and that the order was valid and should be sustained. United States v. Pan American Petroleum Corp., 304 U.S. …

Book Notes, Michigan Law Review

Michigan Law Review

This department undertakes to list and, when possible, describe briefly current books on law and matters closely related thereto.

Mr. Justice Cardozo And Problems Of Government, Dean G. Acheson

Michigan Law Review

The sorrow with which the entire nation learned of the death of Mr. Justice Cardozo bears witness to the sense of loss felt by the great body of his fellow citizens. Few of the people who mourn him had personal opportunity to know the high qualities of his mind or his saintly character. Yet they truly feel that between him and the thought and spirit of his time there was fundamental sympathy and understanding. In a real sense the cast of his thinking was the product of his age. This awareness of his time was coupled in him with sensitiveness …

Obligatory Jurisdiction Of The Supreme Court: Appeals From State Courts Under Section 237(A) Of The Judicial Code, Seymour J. Rubin, Sidney H. Willner

Michigan Law Review

In two ways, a case decided by the state court of last resort may come to the Supreme Court of the United States: by certiorari, or by appeal. Certiorari is discretionary; and the considerations which will lead the Court to grant a writ of certiorari are set out in Rule 38 of the Supreme Court Rules, and are well-known to the practicing bar. Appeal, however, is directed to the obligatory jurisdiction of the Court. Rule 12 merely sets out the procedure to be followed in seeking an appeal; and for his decision as to whether he has substantive basis for …

Administrative Law - Requirements Of "Full Hearing", Collins E. Brooks

Michigan Law Review

The late Professor Ernst Freund once wrote, "A judicial hearing involves two things: that the party be heard as to his own case and that he hear the case against him." Were the words "quasi-judicial" to be substituted for the word "judicial" in Dr. Freund's definition, it would be difficult more concisely to paraphrase the two decisions of the United States Supreme Court in the case of Morgan v. United States. Fifty suits, later consolidated for purposes of trial, were started by certain market agencies of the Kansas City Stockyards to enjoin the enforcement of an order of the …

Constitutional Law - Validity Of Sex Offender Acts, William K. Jackson

Michigan Law Review

The sex offender has become an acute problem. Sociologists, psychiatrists, and lawyers sensing the imperative need for action have devoted much time and thought to the questions involved. Experience has shown that the sex offender is generally a recidivist; he has to be arrested and committed repeatedly for the same type of crimes. The point is graphically illustrated by the case of a man, fifty-nine years of age, arrested recently in Detroit for a sex offense involving a youth. An examination of his record showed that he had been arrested in 1899, when twenty-one years of age, on charges involving …

Corporations - Conditions Under Which Settlement Of Corporate Claims Will Not Prevent A Stockholder's Derivative Suit On Such Claims, John M. Ulman

Michigan Law Review

In the recent case of United States Lines, Inc. v. United States Lines Co. the plaintiff was a minority stockholder in United States Lines, Inc., whose only asset was a minority stock interest in the United States Lines Company. A majority of the stock in both companies was owned by the International Mercantile Marine Company. An action originally brought by the United States Lines, Inc., but settled out of court, was sought to be continued by the plaintiff, who alleged: (1) that the Marine Company and its subsidiaries had entered into fraudulent contracts with the United States Lines Company and …

Administrative Law - Separation Of Powers - Delegation Of Executive Functions To The Judiciary, Collins E. Brooks

Michigan Law Review

Plaintiff applied to the county board of public welfare for a pension award under a state Old Age Assistance Act. In conformity to the act, an investigation was made by the county board and the facts were submitted, with a recommendation for an award, to the State Department of Public Welfare for approval. The latter, however, overruled the award, whereupon plaintiff applied to the circuit court for a trial de novo, as provided for by the statute, and was successful. On appeal from the court's order allowing the award, held, the statutory provision for a de novo review by …

Constitutional Law-Freedom Of The Press-Freedom Of Speech And Assembly-Police Power, John N. Seaman

Michigan Law Review

The recent decision by the federal district court in the case of Committee for Industrial Organization v. Hague has brought the civil liberties issue to the forefront again. Acting under a city ordinance, defendant's mayor, director of public safety, and chief of police refused to issue a permit to plaintiff labor union to distribute circulars, hold public meetings, or display placards in Jersey City, and excluded plaintiff's members from the city, acting under the belief that their doctrines were "un-American," and that their presence and activities were likely to provoke the city's inhabitants to breaches of the peace. It was …

Constitutional Law - Equal Protection Of The Laws - Exclusion Of Negro From Law School Of State University, Fred C. Newman

Michigan Law Review

Petitioner, a negro, was refused admission to the law school of the State University of Missouri solely upon the ground of his race. While the state of Missouri assumed to provide reasonable tuition fees for the legal education of negro residents of Missouri in other states and possibly contemplated providing opportunities for professional training for negroes within the state at some future date, it did not provide for any instruction in law for negroes within the state. The Supreme Court of Missouri affirmed the judgment of the circuit court quashing an alternative writ of mandamus and denying a peremptory writ …

Constitutional Law-Double Jeopardy-Acquittal In Prior Criminal Prosecution As Bar To Action For Penalties Based In Fraud, Allan A. Rubin

Michigan Law Review

Defendant had been acquitted of a criminal charge of wilfully attempting to evade or defeat an income tax under section 146(b) of the Federal Revenue Act of 1928. Subsequently this action was initiated for the collection of an additional fifty per cent of the total amount of the deficiency under section 293 (b) of the same act, which provides that if any deficiency is due to fraud with intent to evade the tax, fifty per centum of such deficiency in addition to the amount of the deficiency shall be collected. Plaintiff brought certiorari from an order of modification eliminating the …

Labor Law - "Substantial" Evidence To Support The Fact Findings Of The National Labor Relations Board, Michigan Law Review

Michigan Law Review

Three employees of respondent company, members of a union, were discharged. They had attended an organization meeting of the union two days previous to their discharge. Two hundred of the company's fifteen hundred employees attended, of whom eighteen, including these three, stayed when asked to join. The alleged reasons of the company for the discharge of these men were that one took a fifty-cent lamp at a company banquet a month previously, that another destroyed raw material through faulty adjustment of his machine, and that the third openly expressed resentment because not promoted. As against this, the evidence showed that …

Public Utilities - Power Of City To Reduce Rates Allowed By Franchise, M. D. Blackwell

Michigan Law Review

The city of Miami gave a franchise to a utility to sell electric power, providing that after a stated period of time it should have the right to charge rates which would enable it to have an annual return of at least ten per cent on the rate base over and above operating expenses. The right to set rates, however, was made "subject to the lawful regulatory authority of the city or state commission having jurisdiction," and it was further provided that "this grant shall at all times be subject to the right of the state of Florida, directly or …

Labor Law - Power Of National Labor Relations Board To Invalidate Contract Between Employer And A Bona Fide Union, Ward P. Allen

Michigan Law Review

After a C. I. O. affiliate had filed complaint with the National Labor Relations Board against the Consolidated Edison Company of New York for encouraging membership in A. F. of L. affiliates and thus interfering with the free choice of its employees, the company entered into collective agreements with the latter relating to wages, hours, working conditions, arbitration and representation. The board, ordering the company to cease its preferential treatment, also found that the contracts were executed under such circumstances that they were invalid and required the company to desist from giving them effect. This order was enforced by the …

Taxation - Interstate Commerce - Use Tax On Gasoline, M. D. Blackwell

Michigan Law Review

A statute provided that it was unlawful to operate an automobile over the state highway without paying a certain tax on the sale or use of gasoline. Plaintiff operated a common carrier between two cities which were not in the state, the route taken by the carrier, however, running through the state. Plaintiff habitually brought gasoline into the state in the tanks of its motor carriers, and in this suit it sought to enjoin collection of the tax, alleging that as applied to its business the statute was unconstitutional because the tax thus imposed was an unreasonable burden on interstate …

Monthly Periodical Index, Michigan Law Review

Michigan Law Review

This department lists the articles and comments which appear in twenty-five leading law reviews.

The Maturity Of Certificates Of Deposit And Promissory Notes Payable On Demand, Orrin B. Evans

Michigan Law Review

In one form or another a dozen cynics have voiced the sentiment that "speech exists to conceal thoughts." Perhaps because language is too intimately integrated with their livelihood, the lawyers have not generally admitted the assertion. However, in the interpretation of written instruments their brethren on the bench have at times so far disregarded the literal meaning of the words under consideration that one must suspect they secretly approve.

Promissory notes "payable on demand" furnish an illustration. Many cases testify that the true intention of the maker is to create an obligation due immediately and that an action to collect …

Bills And Notes - Effect Of Endorsement "For Deposit'' - Liability Of Later Intermeddlers, Robert Meisenholder

Michigan Law Review

Plaintiff's evidence indicated that as payee of a check she endorsed it "for deposit Lena Soma" and gave it to one Handrulis for safekeeping. On the pretense that the check was his, he gave it to Sarah Alkoff, who endorsed it in blank and deposited it at the Globe bank. The Globe bank in turn sent it through the Federal Reserve Bank for collection to the drawee bank, which paid the check. The amount of the check credited to Sarah Alkoff was paid out by the Globe bank on her checks to Handrulis. The suit for diversion of the check …

Libel And Slander - Secondary Publication Of News Item Received From Reliable Agency, Collins E. Brooks

Michigan Law Review

Defendant published a news item to the effect that plaintiff had been adjudged guilty of "martial misconduct" in a divorce action. The information had been obtained from a reliable news agency, but was, in fact, false. Held, defendant was liable. The fact that the item was obtained from a reliable news-gathering agency, and published in good faith in the ordinary course of business, while sufficient to preclude the award of punitive damages, did not justify or excuse the publication, nor prevent the recovery of compensatory damages. Szalay v. New York American, Inc., (App. Div. 1938) 4 N. Y. …

Municipal Corporations - Licenses - Amount Of Fee, S. R. Stroud

Michigan Law Review

The defendant, a sandwich peddler, was convicted in the justice court of violation of an ordinance requiring peddlers to have a license. Upon appeal to the circuit court the conviction was set aside on the ground that the ordinance requiring a peddler to obtain a license at $150 per vehicle per year was invalid since the fee was unreasonably high. Held, the circuit court should be reversed and the conviction sustained since the amount of the license fee could not be considered unreasonably excessive in view of all the circumstances. People v. Riksen, 284 Mich. 284, 279 N. …

Constitutional Law - Schools And School Districts - Teachers' Tenure Legislation, Bertram H. Lebeis

Michigan Law Review

Although the question of security of employment for public school teachers was discussed as far back as the year 1885, when tenure was interpreted to mean the application of civil service principles to the teaching profession, the organized teacher tenure movement is of comparatively recent origin. From within the profession itself impetus was given to the movement by continuous campaigns carried on by local, state and national teachers' associations. From without, the growth of the movement was facilitated by a wider recognition of the evils attendant upon the unlimited power of school boards to "hire and fire" their employees at …

The Widow's Right Of Election In The Estate Of Her Husband, Elbridge D. Phelps

Michigan Law Review

Reference has already been made to the difficulties arising when the widow has elected to take under the will, and for some reason or other, intestate property also remains to be disposed. Further difficulty arises in those cases where the widow elects to take against the will and yet claims to share in intestate property. Shall her claim be allowed under those circumstances?

The Windfall Tax And Processing Tax Refund Provisions Of The Revenue Act Of 1936, Keith P. Bondurant

Michigan Law Review

The proposition that a seller who has collected from his vendees but has not paid to the government taxes imposed under an unconstitutional statute is unjustly enriched, and the correlative principle that a taxpayer has no right to recover invalid taxes paid by him if he has shifted the burden of such taxes to others, are embodied in title II and title VII, respectively, of the Revenue Act of 1936. Title VII prohibits refunds to processors and other vendors of amounts collected from them as tax under the Agricultural Adjustment Act unless the claimant can establish that he bore the …

Book Notes, Michigan Law Review

Michigan Law Review

This department undertakes to list and, when possible, describe briefly current books on law and matters closely related thereto.

Securities Legislation - Securities Act - Stop Order Proceedings - Administrative Tests Of Materiality, Bertram H. Lebeis

Michigan Law Review

With a view toward correcting many of the abuses which had accompanied the distribution of securities, the Congressional mandate embodied in the Securities Act of 1933, together with the regulations of the Securities and Exchange Commission adopted in pursuance thereof, require the publication of much information previously withheld from the investing public. The basic objective of the act is the full disclosure of every essentially important element attending issues of securities in interstate commerce or through the mails, and to that end the commission is empowered to issue a stop order suspending the effectiveness of a registration statement if it …