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Michigan Law Review

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The Emergency Railroad Transportation Act, 1933, Edwin C. Goddard Jun 1933

The Emergency Railroad Transportation Act, 1933, Edwin C. Goddard

Michigan Law Review

From Munn v. Illinois to the Emergency Railroad Transportation Act of 1933 has been a long journey traveled by the public and the public utilities, notably the largest public utility, the railroads. In 1876 the very term "public utility" was unknown. The idea that the public could break in on laissez faire and regulate any business was to the persons regulated, and to their lawyers, odious. With them agreed Justices Field, Brewer, Peckham, and many another, who predicted that the public would not long tolerate such interference with business. But prophecy is hazardous, and these prophets were wrong.

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Waters And Watercourses-Right Of Public Passage Along Great Lakes Beaches Jun 1933

Waters And Watercourses-Right Of Public Passage Along Great Lakes Beaches

Michigan Law Review

May the littoral owner whose summer cottage abuts on one of the Great Lakes bring actions of trespass quare clausum against pedestrians who traverse the sand beach which lies at the aquatic terminus of his property? To state the same problem in different form, may he build a lateral line fence designed to exclude the public from that segment of the lake-side beach which he claims as his? The question has never been directly decided by the supreme court of any State, yet it is a source of constant strife between littoral owners who desire privacy and seclusion, and strolling …

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Admiralty-Venue Of Action Brought In State Court Under Jones Act Jun 1933

Admiralty-Venue Of Action Brought In State Court Under Jones Act

Michigan Law Review

The plaintiff brought suit in a county court of Pennsylvania to to recover damages for injuries sustained by her while a member of the steamship crew of the defendant. The action was based on the Merchant Marine Act of 1920 which provided: "Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located." Defendant corporation moved to dismiss the action on the ground that the court had no jurisdiction since defendant's principal office was in Baltimore. The motion was granted and the Pennsylvania Supreme Court …

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Appeal And Error - Raising Insufficiency Of Defense For First Time On Appeal Jun 1933

Appeal And Error - Raising Insufficiency Of Defense For First Time On Appeal

Michigan Law Review

In defense to plaintiff's action for wages defendant pleaded facts showing an agreement whereby plaintiff was to accept $4,000 in full satisfaction of her claim. The jury found that no such agreement had been made and rendered a verdict for plaintiff in the sum of $7,500. On appeal by defendant the case was sent back for a new trial because of an error in the admission of evidence offered by plaintiff as to the existence of the alleged agreement. Appellee contended that notwithstanding the error the judgment should be affirmed because the agreement pleaded, even if proved, would not constitute …

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Bankruptcy--Act Of Bankruptcy By Transfer With Intent To Defraud A Creditor With A Non-Provable Claim Jun 1933

Bankruptcy--Act Of Bankruptcy By Transfer With Intent To Defraud A Creditor With A Non-Provable Claim

Michigan Law Review

Petitioner as surety executed a bond to secure the payment of any judgment that might be entered against the principal. The defendant agreed to indemnify the petitioner against any claim or liability arising on the bond. After a verdict was obtained against the principal, but before judgment was entered, the defendant transferred all her estate without consideration and with specific intent on her part to hinder, delay, and defraud petitioner, her only creditor. The petitioner was forced to pay the judgment. Within four months after the fraudulent transfer he filed a bill seeking to have defendant ad judged a bankrupt. …

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Equity- Contempts - Purgation By Sworn Answer - Doctrine Of Variance Jun 1933

Equity- Contempts - Purgation By Sworn Answer - Doctrine Of Variance

Michigan Law Review

At the suit of X Traction Company defendants had been enjoined from operating busses along streets upon which plaintiff operated its cars. The latter .filed an information in the name of the State charging the defendants with wilful violation of the restraining order, and moved for an attachment for contempt, and for the infliction of "such penalties as are or may be necessary to compel observance." Defendants filed motions to discharge, and also answers for the purpose of purging themselves of the alleged contempt. Upon trial, at which evidence was received, the court found defendants guilty, and levied fines. Defendants …

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Public Utility Valuation - Rate Base Jun 1933

Public Utility Valuation - Rate Base

Michigan Law Review

The California Railroad Commission, in conducting a hearing in 1930 on natural gas rates charged by the Los Angeles Gas and Electric Corporation, found that the "historical value" of the utility was $60,704,000, and that its "fair value" for rate-making purposes was $65,000,000. This fair. value figure included no specific allowance for going concern value. The company's engineers had estimated the fair value at $95,000,000, on the basis of the "present cost of reproduction" theory. The commission, relying on its fair value figure of $65,000,000, ordered a rate reduction. A three-judge federal court refused to enjoin the enforcement of the …

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Railroads - Power Of Interstate Commerce Commission To Order Extensions Jun 1933

Railroads - Power Of Interstate Commerce Commission To Order Extensions

Michigan Law Review

After due hearing upon a complaint filed by the Public Service Commission of Oregon asserting a failure to provide adequate transportation facilities to a large and unexploited area within that State, the Interstate Commerce Commission found that public necessity and convenience required the construction of a connecting line 185 miles in length. The Commission also found that the proposed extension, adding 1.2 per cent to the existing mileage of the Union Pacific system and costing approximately $10,000,000, would not seriously affect the ability of that organization adequately to serve the public; and that though the venture might not be profitable …

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Trial Practice - Special Appearance To Contest Garnishment Jun 1933

Trial Practice - Special Appearance To Contest Garnishment

Michigan Law Review

The proceeds of an insurance policy payable to the defendant, a non-resident, were attached by garnishment. The defendant, who was served by publication, filed a paper entitled "Special Appearance" to question the jurisdiction of the court over his person and property. The lower court sustained the special appearance on the ground that the proceeds of the policy were exempt from garnishment. Held, that the exemption of the proceeds was not material to the question of jurisdiction in rem, so it should not have been considered on special appearance. Reversed with leave to the defendant to enter a general …

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Book Notes And Notices Jun 1933

Book Notes And Notices

Michigan Law Review

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

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Constitutional Law-Force And Effect Of Clauses Providing For Payment Of Private Indebtedness In Gold May 1933

Constitutional Law-Force And Effect Of Clauses Providing For Payment Of Private Indebtedness In Gold

Michigan Law Review

A recent English case decided in the Court of Appeal, In re Société lntercommunale Belge D'Eléctricité, Feist v. The Company, suggests questions of interesting application to American constitutional law. In that case a debtor's obligation specified payment "in sterling in gold coin of the United Kingdom of or equal to the standard of weight and fineness existing on September 1, 1928." When payment became due, however, gold was no longer available - England had discontinued gold payments and left the gold monetary standard, gold was subject to being commandeered by the government, and gold coins were redeemable at …

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State Regulation Of Interstate Motor Carriers, Paul G. Kauper May 1933

State Regulation Of Interstate Motor Carriers, Paul G. Kauper

Michigan Law Review

According to Article 1, section 8, of the Constitution, "The Congress shall have power . . . to regulate commerce . . . among the several States . . . . " Is this provision of the Constitution applicable to interstate motor transportation over a public highway, built, owned, and maintained by a State? The provincial view might have been put forward that because the State owns the highways, therefore it should have exclusive control with respect to the commerce passing over them. Whatever force might have been conceded such a view in the early history of our country, when …

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Constitutional Law--Due Process--Martial Law May 1933

Constitutional Law--Due Process--Martial Law

Michigan Law Review

The Texas Railroad Commission ordered a limitation of oil production in the East Texas field. Governor Sterling of that State issued a proclamation declaring martial law in the district and setting forth the existence of "a state of insurrection, tumult, riot and breach of the peace," and sent in troops to enforce the orders of the commission. A temporary injunction was issued restraining the commission's action but the governor continued, through the troops, to limit oil production. Such action was sought to be enjoined in the federal courts. The lower court granted the injunction. The decree was affirmed on the …

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Fraudulent Concealment And Statutes Of Limitation, John P. Dawson May 1933

Fraudulent Concealment And Statutes Of Limitation, John P. Dawson

Michigan Law Review

In a recent article the writer has discussed a common exception to statutes of limitation - the exception for claims based on undiscovered "fraud." It was there pointed out how useful this exception has been made through the wide definition of "fraud" that is now fully established. By judicial decision "fraud" has been extended far beyond the field of misrepresentation of fact into the twilight zones of "constructive fraud" and out toward the open spaces of naked tort. But some boundaries had to be fixed even to the extension of substantive principles by the painless process of definition. There remained …

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Injunctions- By Foreign Court-Forum Non Conveniens In Minnesota May 1933

Injunctions- By Foreign Court-Forum Non Conveniens In Minnesota

Michigan Law Review

Alert Minnesota lawyers undertake to enlighten aggrieved persons in neighboring States in regard to the procedural advantages to be obtained in Minnesota. As a result of their efforts, a deluge of personal-injury litigation continues to flood the Minnesota courts. These tribunals are crowded with cases between non-residents on causes of action accruing abroad; Minnesota citizens are delayed in the trial of their own suits, and Minnesota citizens pay the bill for the added litigation. In addition, the non-resident defendant, required to appear in Minnesota, is deprived of evidence and is frequently put to useless expenditure; yet the Minnesota court, with …

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Actions-Single Injury To Person And Property As One Cause Of Action May 1933

Actions-Single Injury To Person And Property As One Cause Of Action

Michigan Law Review

The plaintiff suffered personal injuries and damage to his truck when the truck which he was driving collided with an automobile driven by the defendant's intestate, the latter being killed instantly by the collision. The plaintiff then brought this action alleging that the collision was caused by the intestate's negligence and asking damages for both personal and property injuries. The defendant contended that since his intestate was killed by the very blow which caused damage to the plaintiff no action lay against the intestate in his lifetime and since there was no statute giving an action against his administrator, the …

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Conditional Sales - Repossession - Use Of Force May 1933

Conditional Sales - Repossession - Use Of Force

Michigan Law Review

A conditional seller, in order to repossess an automobile from a defaulting buyer unwilling to relinquish possession, forcibly expelled her from the car, assisted by local police acting merely at the vendor's request. In the scuffle she was knocked down. Her resulting rage moved the police to imprison her temporarily. In her subsequent action for damages the trial court instructed that if no more than reasonable force had been used the jury should find for the defendants. Held, the right of recapture does not include the right to use such force as was reasonably necessary. Roberts et ux. v. …

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Contracts - Offer And Acceptance - Silence As Acceptance May 1933

Contracts - Offer And Acceptance - Silence As Acceptance

Michigan Law Review

D had engaged P, an attorney, to sue X for $144,000 gotten by fraud, P agreeing to try the case on a 25 per cent contingent fee. While the suit was pending, D began negotiations through local attorneys for a settlement out of court, and asked P on March 4 what his fees would be in the event D accepted a compromise offer. P replied that his fee would be $12,500. On June 16 a settlement was reached, after which P was instructed to discontinue the suit. When D refused to pay the fee P sued. Held, that …

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Vendor -Purchaser-Prospective Inability Of Vendor To Convey May 1933

Vendor -Purchaser-Prospective Inability Of Vendor To Convey

Michigan Law Review

In a contract for the sale of sixty-three lots of a subdivision, the defendant agreed to take the purchase money by installments extending over a period of eighteen months, and promised to convey the premises free from encumbrances when twenty-five per cent of the sale price was paid. While the plaintiff was not in default the defendant mortgaged the entire subdivision to one who was not charged with notice, to secure the payment of bonds some of which did not mature for five years. Stipulations m the mortgage allowed the release of any lot on deposit with the mortgagee of …

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Control Of Securities Selling, Watson Washburn Apr 1933

Control Of Securities Selling, Watson Washburn

Michigan Law Review

President Roosevelt in his inaugural address stated as one of the most important immediate necessities of the country "a strict supervision of all banking and credits and investments." This statement is in line with his campaign criticism of the failure of the Republican national administration to check the inordinate inflation of security prices in 1929. There is no doubt that the President's program in this respect received a sympathetic hearing throughout the country. Many state legislatures are now considering changes in state laws regulating securities. It is interesting that some States with rigid blue sky laws seem to be quite …

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Constitutional Law-Federal Instrumentality- Mcculloch V. Maryland In Canada And Australia, Alden L. Powell Apr 1933

Constitutional Law-Federal Instrumentality- Mcculloch V. Maryland In Canada And Australia, Alden L. Powell

Michigan Law Review

The British North America Act of 1867 expressly exempts from taxation certain governmental instrumentalities. Section 125 of that Act provides that "no Lands or Property belonging to Canada or any Province shall be liable to taxation." This restriction applies to both Dominion and Provincial governments. W. H. P. Clement writes that this provision was a precautionary measure "to prevent the Dominion from levying taxes for federal purposes upon property held by the Crown for provincial purposes, and vice versa. It would operate no doubt to exempt from custom's duties goods purchased abroad by a provincial government. . . . " …

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Subrogation -An Equitable Device For Achieving Preferences And Priorities Apr 1933

Subrogation -An Equitable Device For Achieving Preferences And Priorities

Michigan Law Review

Courts are seldom embarrassed in modern times by the poverty of their resources. On the contrary, with the multiplication of "substantive law" formulae and of new procedural devices, their difficulties more often result from the embarrassment of overwhelming riches. This statement may be best illustrated by a brief review of the equitable devices for achieving preferences and priorities, which have developed so rapidly within the last fifty years and have surmounted almost completely the artificial barriers of legal doctrine. In this field the chief effort of the courts must now be not to develop new machinery, but to reexamine the …

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Pleading-Election Between Express Contract And Quantum Meruit Apr 1933

Pleading-Election Between Express Contract And Quantum Meruit

Michigan Law Review

The plaintiff's complaint was twofold. It first set forth an express, written building-contract. The second "cause of action" was based on the quantum meruit theory and alleged what the plaintiff's services were reasonably worth. In his answer the defendant set up a counterclaim for damages due to the plaintiff's delay and faulty construction. During the trial the court, on motion of the defendant, required the plaintiff to elect on which of the two counts it would stand. The plaintiff elected the express contract. From a judgment in its favor for a fraction of the damages demanded, the plaintiff appealed. Held …

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Public Policy And The Arrest Of Felons, John Barker Waite Apr 1933

Public Policy And The Arrest Of Felons, John Barker Waite

Michigan Law Review

Under the judicial rulings of a score of States, it may happen that a man is arrested for the crime of carrying concealed weapons, that irrefutable evidence of guilt is found upon him, and that he nevertheless evades conviction and punishment because the courts will not permit the evidence to be used. It not only may happen; it does actually occur with shocking and incredible frequency. Yet oddly enough this practice appears to be in flat conflict with the statute law of some of those States and with the provisions of the model Code of Criminal Procedure recently approved by …

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Constitutional Law - The Delegation Of Federal Legislative Power To Executive Or Administrative Agencies Apr 1933

Constitutional Law - The Delegation Of Federal Legislative Power To Executive Or Administrative Agencies

Michigan Law Review

The range of governmental activity, ever expanding both because of the adoption of new functions and because of the increase in proportions of the old, has developed a frequent need for supervision by specialized administrative agencies. In addition to the normal trend toward increased administrative control, present-day economic difficulties have provided additional impetus in that direction. Hence the question of how far Congress can go in turning over its duties to executive or administrative agencies has become of immediate and vital concern.

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Practice And Procedure -The Effect Of Plaintiff's Pleading On The Doctrine Of Res Ipsa Loquitur Apr 1933

Practice And Procedure -The Effect Of Plaintiff's Pleading On The Doctrine Of Res Ipsa Loquitur

Michigan Law Review

The doctrine of res ipsa loquitur, originating as an exception to the requirement that the plaintiff must prove the particular acts of negligence causing his injury, is applied at the discretion of the trial judge in cases where the acts of negligence are unknown to plaintiff or proof of them is not available to him. Since the doctrine permits of an inference of negligence from the circumstances of the case, these circumstances must be such as will warrant the inference, and various rules have been evolved to determine this.

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Trade Restraints -- Anti-Trust Laws -- Common Selling Agency Apr 1933

Trade Restraints -- Anti-Trust Laws -- Common Selling Agency

Michigan Law Review

Many students of the decisions under the Sherman Anti-Trust Act have voiced the opinion that the Supreme Court has been using one measuring stick to determine the legality of a combination of competing industrial units which takes the form of a merger or consolidation with highly centralized management and control of all activities, and quite a different stick for judging a combination formed for the purpose of stabilizing prices and production through cooperation in one form or another between competing units which retain their independence so far as management and control of production and financing are concerned. Thus in the …

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Banks And Banking - Holder Of Draft Paid For By Check On Issuing Bank As Preferred Upon Drawer's Insolvency Apr 1933

Banks And Banking - Holder Of Draft Paid For By Check On Issuing Bank As Preferred Upon Drawer's Insolvency

Michigan Law Review

A depositor received from his bank in exchange for his check a New York draft drawn by the bank payable to a third person. The draft was dishonored because of the insolvency and closing of drawer. After redemption of the draft the depositor sought to establish a preferred claim therefor against the bank's assets. An Ohio statute declared that when there remains unpaid at the time the bank is closed a check drawn by a depositor which has been presented to the drawee bank "for collection and payment," charged to the depositor's account, and a draft issued in payment thereof, …

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Constitutional Law - Due Process And Equal Protection - Freedom Of Contract Apr 1933

Constitutional Law - Due Process And Equal Protection - Freedom Of Contract

Michigan Law Review

Plaintiff denied the constitutionality of a statute declaring every settlement of a personal injury claim, retainer, or employment contract, made while the person injured is under disability from the effect of the injury, or within thirty days after the date of the injury, voidable at the option of the injured party within six months after the date of the injury. Held, that such a statute is constitutional, being neither a deprivation of property without due process of law nor a denial of the equal protection of the law. Peterson v. Panovitz, (N. D. 1932) 243 N. W. 798.

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Criminal Law And Procedure-Jury As Judge Of Law In Criminal Cases Apr 1933

Criminal Law And Procedure-Jury As Judge Of Law In Criminal Cases

Michigan Law Review

The defendant was indicted under a criminal statute making it a misdemeanor for agents and officers to transact business for any foreign corporation which had failed to comply with certain statutory requirements for conducting business in Maryland. The trial judge instructed the jury that if they believed the evidence to he true he was of the opinion that the defendant was an agent within the meaning of the statute. He cautioned them, however, that they were by article 15, sec. 5, of the constitution made judges of the law as well as fact and that his opinion as to the …

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