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Michigan Law Review

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Future Interests - Powers-Fraud On A Special Power, Bernard L. Trott S. Ed. Apr 1949

Future Interests - Powers-Fraud On A Special Power, Bernard L. Trott S. Ed.

Michigan Law Review

H was co-trustee under a trust agreement executed by his father which provided for payment of a specified monthly sum to H for life and after his death to his wife W. The trust was to terminate upon the death of the survivor of H and W, and thereupon the other trustee was to deliver 20% of the corpus to each of three named persons, A, B, and C. The trust instrument further provided that H was to have absolute power, with approval of the co-trustee, to prescribe that the distribution of this 60% of the …

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Constitutional Law-Equal Protection-Miscegenation Statute Declared Unconstitutional, Donald D. Davis Apr 1949

Constitutional Law-Equal Protection-Miscegenation Statute Declared Unconstitutional, Donald D. Davis

Michigan Law Review

Petitioners, a female white and a male Negro, applied to respondent, county clerk of Los Angeles County, for a marriage license. Respondent refused to issue the license, relying on sections 60 and 69 of the California Code. Petitioners brought a mandamus proceeding to compel respondent to issue the license, contending that the statutes relied on by respondent were unconstitutional in that they prohibited the free exercise of their religion. Held, in a four to three decision, the statute is unconstitutional. Three justices of the majority found that the statute violated the equal protection clause of the United States Constitution …

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Labor Law-Constitutional Law-State Anti-Closed Shop Legislation Upheld, Jerry S. Mccroskey S. Ed. Apr 1949

Labor Law-Constitutional Law-State Anti-Closed Shop Legislation Upheld, Jerry S. Mccroskey S. Ed.

Michigan Law Review

Appellant, a local union of the American Federation of Labor, sought a declaratory judgment and equitable relief in the Nebraska courts as a result of appellee's refusal to discharge certain employees who had failed to maintain membership in the union. The employer relied on an anti-closed shop amendment to the Nebraska Constitution forbidding discrimination in employment on the basis of affiliation with a union and prohibiting contracts for this purpose. Appellant's assertions of invalidity of the amendment under the Federal Constitution were rejected by the state courts. Upon appeal to the United States Supreme Court, held affirmed, all justices concurring. …

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Negligence-Res Ipsa Loquitur-Applicability To Airplane Crashes, Karl R. Ross Apr 1949

Negligence-Res Ipsa Loquitur-Applicability To Airplane Crashes, Karl R. Ross

Michigan Law Review

In an action for the wrongful death of an airplane passenger killed in a crash of a commercial airliner, plaintiff relied upon specific acts of negligence and the doctrine of res ipsa loquitur. Defendant moved to strike from the complaint all allegations pertaining to res ipsa loquitur, on the ground that the doctrine did not apply to airplane crashes. Held, motion denied. Smith v. Pennsylvania Central Airline Corp., (D.C. D.C. 1948) 76 F. Supp. 940.

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Negligence-Guest Statutes-Applicability To Operation Of Automobile On Host's Premises, Janice Richardson Apr 1949

Negligence-Guest Statutes-Applicability To Operation Of Automobile On Host's Premises, Janice Richardson

Michigan Law Review

Plaintiff accompanied a friend to defendant's garage to park the friend's automobile and later returned alone, without a claim check, to obtain a package she had left in the automobile. An attendant, who was about to park another automobile, invited her to ride to the second Hoor to secure the package herself. Plaintiff was injured when the attendant negligently drove the automobile against an elevator. Held, judgment for defendant affirmed. Plaintiff was a guest within the meaning of the Ohio guest statute and could not recover for injuries unless caused by willful or wanton misconduct. Kilgore v. U-Drive-It Co. …

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Practice And Procedure-Joint Tortfeasors-Cross Claim Against Co-Party, James F. Gordy Apr 1949

Practice And Procedure-Joint Tortfeasors-Cross Claim Against Co-Party, James F. Gordy

Michigan Law Review

Plaintiff was driving his team on the highway, closely followed by the auto of defendant Wood, which was in turn followed by that of defendant Perry. Perry, driving at a high rate of speed, collided with the rear of Wood's auto, causing it to collide with plaintiff's wagon. Plaintiff sued both defendants to recover for damage to himself and his wagon, alleging negligence in the conduct of each. Defendants answered, each denying his own negligence. Wood interposed a cross claim against Perry, alleging Perry's negligence to be the sole cause of the collision, and demanded judgment for damage to his …

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Quasi-Contracts -- Taxation -- Rescission Of Gift For Failure To Achieve Donor's Purpose Of Minimizing Federal Income Taxes, N. S. Peterman S. Ed. Apr 1949

Quasi-Contracts -- Taxation -- Rescission Of Gift For Failure To Achieve Donor's Purpose Of Minimizing Federal Income Taxes, N. S. Peterman S. Ed.

Michigan Law Review

In 1937, plaintiff made a gift of stock in a closed corporation to his wife, the defendant. For two years defendant received cash dividends on the stock transferred to her and paid income taxes thereon. Late in 1938 the corporation was dissolved; the assets were distributed to the shareholders, and a partnership was formed. Defendant continued to report the income received by her from the partnership. In 1946, the Tax Court sustained the contention of the commissioner of internal revenue that the entire income from this partnership was taxable to plaintiff under the doctrine of Commissioner v. Tower. Plaintiff …

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Res Judicata-Use Defensively Of Former Judgment By One Not A Party Or In Privity With A Party To Former Action, Richard H. Conn Apr 1949

Res Judicata-Use Defensively Of Former Judgment By One Not A Party Or In Privity With A Party To Former Action, Richard H. Conn

Michigan Law Review

Plaintiff sued defendant in a federal district court to foreclose a mortgage lien alleged to exist on defendant's land in consequence of a loan by plaintiff to defendant's predecessor in title. Defendant's land was but a part of the tract originally encumbered. In a prior action in the state court, plaintiff had sought foreclosure of the same mortgage against the holder of another parcel of the mortgaged land on the precise grounds now asserted against defendant. In that action it was held that the entire mortgage had already been discharged. Defendant moved for summary judgment, contending that the former decision …

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Wills-Publication Of Will And Acknowledgment Of Signature, Robert W. Shadd Apr 1949

Wills-Publication Of Will And Acknowledgment Of Signature, Robert W. Shadd

Michigan Law Review

Testatrix telephoned two friends, asking them to come to her home and witness her will. When they arrived, the document was lying on a table in testatrix' presence, and she declared, "Here is the pen, sign it." Both witnesses were positive testatrix did not sign in their presence. The evidence, while not conclusive, also tended to show that neither witness saw the signature, testatrix having signed on page seven while the document was opened to the attestation clause on page eight. The superior court admitted the will to probate over appellant's objection that testatrix had failed to meet the statutory …

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Taxation-Income Tax-Realization Of Income By Corporation In Distribution Of Notes To Shareholders, David H. Armstrong S. Ed. Apr 1949

Taxation-Income Tax-Realization Of Income By Corporation In Distribution Of Notes To Shareholders, David H. Armstrong S. Ed.

Michigan Law Review

A corporation charged off notes as worthless prior to 1942. Anticipating future collections on the notes, the corporation distributed them as a dividend in kind. The commissioner determined that the amount collected subsequent to distribution was taxable to the corporation. The Tax Court held that no income was realized by the corporation. On appeal, held, reversed. This was not a distribution of capital assets but rather an assignment of anticipated income. Commissioner v. First State Bank of Stratford, (C.C.A. 5th, 1948) 168 F. (2d) 1004, certiorari denied, 335 U.S. 867, 69 S.Ct. 137 (1948).

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Wills-Right Of Legatee To Renounce To Detriment Of Creditors, William R. Worth Apr 1949

Wills-Right Of Legatee To Renounce To Detriment Of Creditors, William R. Worth

Michigan Law Review

A judgment creditor of an insolvent residuary legatee commenced supplementary proceedings to reach the legacy. While these proceedings were pending, some ten months after the will was probated, and after testifying that he had a one-third interest in the residuary estate, the legatee filed a formal renunciation of his interest. In the proceeding by the executors for a final accounting, the Surrogate's Court and the Appellate Division ruled that the renunciation was effective to divest the judgment debtor of his interest under the will. On appeal, held, reversed, two judges dissenting. In re Wilson's Estate, 298 N.Y. 398, …

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Hardwicke: Antitrust Laws, Et Al. V. Unit Operation Of Oil Or Gas Pools, Michigan Law Review Apr 1949

Hardwicke: Antitrust Laws, Et Al. V. Unit Operation Of Oil Or Gas Pools, Michigan Law Review

Michigan Law Review

A Review of ANTITRUST LAWS, ET AL. V. UNIT OPERATION OF OIL OR GAS POOLS By Robert E. Hardwicke.

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Weigert, Stefansson And Harrison: New Compass Of The World, Michigan Law Review Apr 1949

Weigert, Stefansson And Harrison: New Compass Of The World, Michigan Law Review

Michigan Law Review

A Review of NEW COMPASS OF THE WORLD. Edited by Hans W. Weigert, Vilhjalmur Stefansson and Richard E. Harrison.

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Harris: Saving American Capitalism, Michigan Law Review Apr 1949

Harris: Saving American Capitalism, Michigan Law Review

Michigan Law Review

A Review of SAVING AMERICAN CAPITALISM. Edited by Seymour E. Harris.

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Machlup: The Basing Point System, Michigan Law Review Apr 1949

Machlup: The Basing Point System, Michigan Law Review

Michigan Law Review

A Review of THE BASING POINT SYSTEM. By Fritz Machlup

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Philbrick: Language And The Law., Michigan Law Review Apr 1949

Philbrick: Language And The Law., Michigan Law Review

Michigan Law Review

A Review of LANGUAGE AND THE LAW. By Frederick A. Philbrick

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Notes, Michigan Law Review Apr 1949

Notes, Michigan Law Review

Michigan Law Review

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

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Monthly Periodical Index, Michigan Law Review Apr 1949

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.

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Corporations-Receivership And Dissolution As Remedies For Management Deadlock, E. C.V. Greenwood S. Ed. Mar 1949

Corporations-Receivership And Dissolution As Remedies For Management Deadlock, E. C.V. Greenwood S. Ed.

Michigan Law Review

The exodus of small businesses from proprietorship and partnership units into corporate units has brought numerous advantages, but not all attributes of the new form are beneficial. When two or more individuals form a partnership and later find they have reached an impasse, one partner may in most instances bring the relationship to a rapid termination and cause a division of the partnership assets. However, once the corporate form has been adopted, the problem becomes somewhat more difficult. It is the purpose of this comment to examine two possible remedies for a holder, or holders, of one-half of the voting …

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Constitutional Law-Due Process-Federal Right To Counsel In Non-Capital Cases In State Courts, J. D. Mcleod Mar 1949

Constitutional Law-Due Process-Federal Right To Counsel In Non-Capital Cases In State Courts, J. D. Mcleod

Michigan Law Review

Petitioner was convicted in Illinois on pleas of guilty to two indictments charging him with a non-capital offense. On writ of error to the Supreme Court of Illinois, petitioner alleged that the trial court had not inquired into his desire or ability to have counsel and that he had been convicted without having had assistance of counsel. His contention that the circumstances alleged constituted a violation of the State and Federal Constitutions was overruled, and the judgments of the lower court affirmed. On certiorari to the United States Supreme Court, held affirmed. The due process clause of the Fourteenth Amendment …

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Habeas Corpus-Federal Courts-Exhaustion Of State Remedies, E. W. Rothe, Jr. Mar 1949

Habeas Corpus-Federal Courts-Exhaustion Of State Remedies, E. W. Rothe, Jr.

Michigan Law Review

Petitioner's writ of habeas corpus, alleging denial of due process of law in violation of the Fourteenth Amendment, was quashed on the merits by an inferior Florida court whose action was affirmed without opinion by the Florida Supreme Court. It was impossible to ascertain whether the affirmance was on the merits or on the ground that, under Florida law, habeas corpus was not the proper procedure to raise the due process issue. A later decision by the Florida Supreme Court clearly established that the prior case had been decided on the merits of the constitutional question, and that habeas corpus …

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Front Matter, Michigan Law Review Mar 1949

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 47, Issue 5 of Michigan Law Review

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Compulsory Licensing By Judicial Action: A Remedy For Misuse Of Patents, Neal Seegert Mar 1949

Compulsory Licensing By Judicial Action: A Remedy For Misuse Of Patents, Neal Seegert

Michigan Law Review

Having viewed the fundamental problems, it is pertinent to outline some of the alleged abuses of the American patent system as it operates in our modern business and industrial economy and to canvass some of the proposed remedies. First are abuses that might be termed attempts to extend the duration of the patent monopoly. These stem mainly from the procedural aspects of the patent laws. Foremost among them is the problem of long pendency of applications, particularly the dilatory tactics that are possible under the law, which postpone issuance of the patent, thus extending the time duration of the patent …

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The Church And Spiegel Cases: A Reinterpretation Of The "Possession Or Enjoyment" Clause Of I.R.C. 811 ©, William J. Schrenk Jr., Richard V. Wellman Mar 1949

The Church And Spiegel Cases: A Reinterpretation Of The "Possession Or Enjoyment" Clause Of I.R.C. 811 ©, William J. Schrenk Jr., Richard V. Wellman

Michigan Law Review

Although federal tax statutes have provided for over thirty years that "transfers intended to take effect in possession or enjoyment at or after death" shall be included in the grantor's gross estate for estate tax purposes attempts to define precisely the scope of this language have not been outstanding for their success. In two recent decisions by the Supreme Court, Commissioner v. Church and Spiegel v. Commissioner, a further attempt at clarification has been made.

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Administrative Tribunals-Judicial Review Of Administrative Interpretations Of Statutory Provisions-Recent Federal Developments, L. B. Lea S. Ed. Mar 1949

Administrative Tribunals-Judicial Review Of Administrative Interpretations Of Statutory Provisions-Recent Federal Developments, L. B. Lea S. Ed.

Michigan Law Review

The first half-century of experience with administrative tribunals demonstrated that prediction of the scope of judicial review in any particular case was impossible because so many factors entered into determination of the question. Constitutional limitations began to receive less emphasis as practical necessity for according this new "fourth branch" of government a place in the broad scheme of administration of justice became more apparent. Doubtlessly the courts felt that "supremacy of law" demanded closest scrutiny of the activities of this new governmental instrumentality, which was beginning to occupy areas traditionally thought reserved exclusively for the judiciary. As the courts' respect …

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Workmen's Compensation Acts-Amendments Changing Period For Additional Compensation Due To Aggravation Of Injury, W. Stirling Maxwell S. Ed. Mar 1949

Workmen's Compensation Acts-Amendments Changing Period For Additional Compensation Due To Aggravation Of Injury, W. Stirling Maxwell S. Ed.

Michigan Law Review

The typical workmen's compensation act provides both for an award to compensate the employee for his original injury and for subsequent awards to compensate him for aggravation of the injury occurring after the original award. The time during which the original award may be opened to allow additional compensation for subsequent aggravation may not be expressly limited, or opening may be limited to a stated time after the original injury or the last payment of the original award. By amendment, the legislature may either lengthen or shorten this period for opening. Whether such amendment applies to a claim for compensation …

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Competitive Operation Of Municipally And Privately Owned Utilities, Charles M. Kneier Mar 1949

Competitive Operation Of Municipally And Privately Owned Utilities, Charles M. Kneier

Michigan Law Review

Public utility services for cities are usually provided on the principle of regulated monopoly. It has been found that by the very nature of the utility business, better service can be had and at cheaper rates by the use of one supplier rather than by the use of competing plants: This one plant having a monopoly of the business may be either privately or municipally owned. If the service is furnished by a privately owned utility, regulation is usually by a state commission, but in a few states regulation is still largely by the city in which the company operates. …

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Aliens-Naturalization Proceedings-Is Alleged Communist Attached To Principles Of Constitution?, Paul E. Anderson Mar 1949

Aliens-Naturalization Proceedings-Is Alleged Communist Attached To Principles Of Constitution?, Paul E. Anderson

Michigan Law Review

Seeking citizenship status, petitioner filed a formal petition for naturalization, introduced affidavits of two citizens as to his character, and testified under oath that he would support the Constitution. The Immigration and Naturalization Service opposed his petition on the ground that he failed to show a proper attachment to the principles of the Constitution as required by the Nationality Act. On hearing, proof was made that petitioner was a member and officer of the International Workers Order, an organization labeled by the House Committee on Un-American Activities as a Communist front. Testimony of an immigration inspector that petitioner had the …

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Conflict Of Laws-Jurisdictional Basis For Awarding Custody Of Minor Child, Charles E. Becraft S. Ed. Mar 1949

Conflict Of Laws-Jurisdictional Basis For Awarding Custody Of Minor Child, Charles E. Becraft S. Ed.

Michigan Law Review

Plaintiff and his wife, domiciliaries of California, separated June 3, 1946. On Oct. 25, 1946, the wife took the minor child of the marriage to Nevada where she commenced proceedings to obtain a divorce. On Feb. 4, 1947, a final decree awarded her a divorce and custody of the child. She remarried and moved to Utah where she and the child have lived ever since. On Jan. 2, 1947, the plaintiff filed a petition in California asking for a divorce and custody of the child. On July 8, 1947, plaintiff applied for an order pendente lite to award him custody …

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Constitutional Law-Due Process-Right Of Prisoner Condemned To Death To Hearing On His Sanity, E. Blythe Stason Jr. Mar 1949

Constitutional Law-Due Process-Right Of Prisoner Condemned To Death To Hearing On His Sanity, E. Blythe Stason Jr.

Michigan Law Review

Petitioner, sentenced to death in California for murder, obtained a judicial stay of execution on the ground that he had become insane since sentence had been passed. Eighteen days later he was certified as sane by the medical superintendent of the state hospital, who made this determination by an ex parte examination without giving petitioner notice or opportunity of hearing. A new date for execution was then set. The applicable statute provided a procedure, enforceable by mandamus, whereby a sentenced prisoner could obtain a hearing on his sanity. The petitioner, without seeking mandamus to compel the warden to act, applied …

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