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Michigan Law Review

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Taxation -- State Sales Taxes In Relation To Interstate Commerce -- The Berwind-White Case, Eugene Gressman Jun 1940

Taxation -- State Sales Taxes In Relation To Interstate Commerce -- The Berwind-White Case, Eugene Gressman

Michigan Law Review

One of the underlying theories of the constitutional framework, as exemplified by the commerce clause, is that there shall be a free national market, unhampered by state tariffs or restrictions. Congressmen are free to ward off the rigors of disastrous foreign competition by bringing home industries under the protective umbrella of high national tariffs, but state legislators are supposed to be powerless to protect their local industries from the damaging competition--that "most potent stimulant to improvement and progress"--emanating from other states.

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Carriers - Gratuitous Pass - Limitation Of Liability, John L. Rubsam Jun 1940

Carriers - Gratuitous Pass - Limitation Of Liability, John L. Rubsam

Michigan Law Review

Appellee was traveling between Louisville and New Orleans on a gratuitous pass issued to her by reason of being the mother of a conductor employed by the Missouri-Pacific lines. The pass contained the following condition: "The person accepting and using it thereby assumes all risk of accident to person or property." Appellee had signed: "I accept the above conditions." The train gave a slight jerk due to coupling onto other cars, causing appellee to fall and sustain the injuries for which she sues. Held, where a passenger using a free interstate railroad pass agreed to assume the risk of …

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Insurance -What Constitutes "Marks Of Force And Violence" Within The Meaning Of A Policy Of Safe Burglary Insurance?, W. Wallace Kent Jun 1940

Insurance -What Constitutes "Marks Of Force And Violence" Within The Meaning Of A Policy Of Safe Burglary Insurance?, W. Wallace Kent

Michigan Law Review

P sued to recover on a policy of safe burglary insurance which required that the entry into the safe must have been "made by force and violence of which there shall be visible marks made by tools . . . or other chemicals." P's employee was forced to open the safe, after having been struck on the head with a gun, and in so doing the employee left blood stains on the safe. P contended that the policy was ambiguous in its terms and that the blood on the safe, having chemical qualities, demonstrated the use of chemicals to …

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Taxation - Federal Estate Tax - Transfers In Which Decedent Had Reserved A Contingent Reversionary Interest - St. Louis Union Trust Cases Overruled, Robert M. Warren Jun 1940

Taxation - Federal Estate Tax - Transfers In Which Decedent Had Reserved A Contingent Reversionary Interest - St. Louis Union Trust Cases Overruled, Robert M. Warren

Michigan Law Review

In 1919 decedent transferred property in irrevocable trust, income to be paid to X for life and on X's death, the corpus and accumulated income to be returned to the settlor, if he should then be living; but if he should then be dead, remainder to Y. The settlor predeceased the life beneficiary and the commissioner included the trust property in decedent's gross estate under section 302 (c) of the federal estate tax. The board of tax appeals reversed this determination, and the board was upheld by the United States Circuit Court of Appeals for the Sixth Circuit, …

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Scott On Trusts: A Review, Lewis M. Simes Jun 1940

Scott On Trusts: A Review, Lewis M. Simes

Michigan Law Review

Professor Scott, in his four volume work on the Law of Trusts, has given us a book worthy to stand beside the two other great American treatises on this subject, the American Law Institute Restatement of the Law of Trusts, and Bogert on Trusts and Trustees. Since the reviews of Professor Scott's book already published have been as numerous as they have been favorable, I shall content myself with discussing it as a whole and shall refrain from detailed comment on its treatment of particular rules. More particularly, I shall attempt to compare it with the two …

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Front Matter, Michigan Law Review Jun 1940

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 38, Issue 8 of Michigan Law Review

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The Constitution And A "Planned Economy", Henry Rottschaefer Jun 1940

The Constitution And A "Planned Economy", Henry Rottschaefer

Michigan Law Review

A little more than a decade has passed since the collapse of the wildest speculative orgy ever indulged in by a nation not markedly given to underestimating its own economic and financial potentialities. It came at a time when the conjuncture of world-wide economic forces combined with almost world-wide unsound practices in the fields of international trade and finance had created an extremely unstable economic situation throughout the world. It would require a degree of optimism as large as that entertained by the speculative community during the "boom period" to believe that the measures and policies adopted and followed during …

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A Reappraisal Of Appraisal Statutes, Norman D. Lattin Jun 1940

A Reappraisal Of Appraisal Statutes, Norman D. Lattin

Michigan Law Review

Two recent cases, under two of the most carefully framed corporation statutes, have raised again the question of what to do with the shareholder who dissents from fundamental change in his corporation. The appraisal statutes were devised to meet this problem by giving the shareholder, in the limited number of fundamental changes stated in the statute, the right to demand the fair, cash or market value of his share and retire from the company. The statutes of two states have given him this right as almost the exclusive means of protecting his interest in the company if he is dissatisfied …

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Public Policies Underlying The Law Of Mental Incompetency, Milton D. Green Jun 1940

Public Policies Underlying The Law Of Mental Incompetency, Milton D. Green

Michigan Law Review

Mental incompetency, or legal insanity, has usually been studied in the patchquilt fashion. It appears as a sub-heading of incidental interest in such widely diversified subjects as crimes, contracts, domestic relations, torts and wills. It can, however, be conceived of as a single strand in the seamless web. So viewed, it may appear to wind in and out of the various artificial subdivisions of the law, cutting across each at one particular place or another. And so conceived, it can be studied according to the second and less orthodox method of analysis. Few are the isolated areas in the law …

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Corporations - Preincorporation Contracts Of Promoters And Incorporators - Effect Of Statute On Personal Liability Of Incorporators, Roy L. Rogers Jun 1940

Corporations - Preincorporation Contracts Of Promoters And Incorporators - Effect Of Statute On Personal Liability Of Incorporators, Roy L. Rogers

Michigan Law Review

It seems difficult to draw such a conclusion directly from the terms of the statute. Indeed, the section is not very definite as to the liability either of the incorporators or of the corporation on contracts of the designated class. However, in Hart Potato Growers' Association v. Grenier, it was intimated that this section made the corporation liable upon the contracts of the incorporators immediately upon incorporation. Toward this conclusion certain provisions of the section are rather persuasive. The clause providing that all property held by the incorporators for the benefit of the corporation shall be deemed to be …

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Insurance - Exclusionary Clauses - Death Due To Violation Of The Law By The Insured, Robert A. Solomon Jun 1940

Insurance - Exclusionary Clauses - Death Due To Violation Of The Law By The Insured, Robert A. Solomon

Michigan Law Review

When a person carrying a life or accident insurance policy dies as the result of an act committed by him in violation of the law, the beneficiaries may or may not be precluded from recovering upon it. In the absence of a special exclusionary clause, the general view is that the beneficiary may recover. However, if it appears that at the time the insured took out the policy he intended to commit a crime recovery is barred, at least if the death occurred within the contestability period. In order to delimit from the general coverage provisions the risks that would …

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Taxation - Income Tax - Taxability Of Income Of Alimony Trust To Husband-Settlor-Rule Of Douglas V. Willcuts, Benjamin W. Franklin Jun 1940

Taxation - Income Tax - Taxability Of Income Of Alimony Trust To Husband-Settlor-Rule Of Douglas V. Willcuts, Benjamin W. Franklin

Michigan Law Review

Three recent decisions of the Supreme Court of the United States, Helvering v. Fitch, Helvering v. Leonard, and Helvering v. Fuller, all involving an application of the rule of Douglas v. Willcuts, raise the question of what that rule means in its practical application. Stated briefly, that rule is that the income from a so-called alimony trust is taxable to the husband-settlor whenever it discharges a continuing obligation for him.

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Constitutional Law - Interstate Commerce - State Regulation Of Exports Of Intoxicating Liquor, Michigan Law Review Jun 1940

Constitutional Law - Interstate Commerce - State Regulation Of Exports Of Intoxicating Liquor, Michigan Law Review

Michigan Law Review

On being refused a license, a carrier operating under the provisions of the Federal Motor Carrier Act sought to enjoin public officials of Kentucky from enforcing the penal and contraband portions of the Kentucky Liquor Law, which required a license from the state as a prerequisite to the right to transport liquor. Plaintiff claimed that the state act was a violation of its rights under the commerce clause in that the requirement of the license placed an unconstitutional burden on its right to transport liquor in interstate commerce. On appeal from a federal three-judge court's ruling sustaining a motion to …

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Constitutional Law - Interstate Commerce - Validity Of Ordinance Requiring Drummer's License, Michigan Law Review Jun 1940

Constitutional Law - Interstate Commerce - Validity Of Ordinance Requiring Drummer's License, Michigan Law Review

Michigan Law Review

Defendant, a door-to-door salesman, solicited orders in Minnesota for goods, which were later shipped from his employer's factory in Wisconsin to his house in Minnesota. There he broke the original packages and filled his customers' orders by delivering the goods in a truck provided him by his employer. Defendant was convicted of violating a municipal ordinance requiring a license of all door-to-door canvassers. Held, the ordinance was unconstitutional as an unreasonable burden on interstate commerce, and the conviction should be set aside. City of Waseca v. Braun, (Minn. 1939) 288 N. W. 229.

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Constitutional Law - Psychopathic Proceeding - Due Process And Jury Trial, Michigan Law Review Jun 1940

Constitutional Law - Psychopathic Proceeding - Due Process And Jury Trial, Michigan Law Review

Michigan Law Review

Proceedings were brought against appellant under a Minnesota statute providing for commitment of psychopathic persons who showed habitual sexual misconduct. Appellant appealed to the state supreme court for a writ of prohibition, claiming denial of due process. Appellant's contentions were overruled and he appealed to the United States Supreme Court. Held, the statute did not deny due process. Minnesota ex rel. Pearson v. Probate Court, (U.S. 1940) 60 S. Ct. 523.

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Corporations - Limitation Of Actions - Nature Of Directors' Statutory Liability For Illegal Loans To Stockholders, Oscar Freedenberg Jun 1940

Corporations - Limitation Of Actions - Nature Of Directors' Statutory Liability For Illegal Loans To Stockholders, Oscar Freedenberg

Michigan Law Review

The creditors of a bankrupt corporation sued its directors under a New Jersey statute that made the directors liable for all corporate debts to the extent of loans illegally made to stockholders. The decision hinged on the nature of the directors' liability with respect to the New Jersey statute of limitations. The directors maintained that the action was either for a contractual debt or else for a penalty, and that in either case it was barred by limitations. Held, that the liability of the directors was neither for a simple debt nor for a penalty within the meaning of …

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Corporations - Protection Of Corporate Name - Injunctive Relief, John L. Rubsam Jun 1940

Corporations - Protection Of Corporate Name - Injunctive Relief, John L. Rubsam

Michigan Law Review

Plaintiff sought an injunction restraining defendant from using its corporate name in insuring real estate titles in the District of Columbia. The corporate names of plaintiff and defendant are identical except for the difference between the words "company" and "corporation." Plaintiff is a District of Columbia corporation organized in I 896 under the name "Lawyers Title Insurance Company." Defendant was incorporated in Virginia in 1925 under the name "Lawyers Title Insurance Corporation." From 1896 to 1922 plaintiff conducted its business entirely independently. In later years it made a "working agreement" with two other District title companies. A majority of the …

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Criminal Law And Procedure -- Privilege Against Self-Incrimination -- Duty To Give Requested Instruction That No Significance Should Be Attached To Defendant's Failure To Testify, Michigan Law Review Jun 1940

Criminal Law And Procedure -- Privilege Against Self-Incrimination -- Duty To Give Requested Instruction That No Significance Should Be Attached To Defendant's Failure To Testify, Michigan Law Review

Michigan Law Review

Defendant, charged with conspiracy to import and sell narcotics, requested a special instruction that failure of defendant to take the witness stand does not create any presumption against him. A federal statute specifically provides that no such presumption shall arise. The trial court refused the instruction, and after the circuit court of appeals affirmed the conviction, the case was taken to the United States Supreme Court. Held, the statute gave defendant a right upon request to have such an instruction given. The error committed by its refusal was not a mere "technical error," but one affecting defendant's substantial rights. …

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Labor Law - Picketing To Compel Breach Of A Statutory Duty - Conflict Between Norris-Laguardia Act And National Labor Relations Act, Michigan Law Review Jun 1940

Labor Law - Picketing To Compel Breach Of A Statutory Duty - Conflict Between Norris-Laguardia Act And National Labor Relations Act, Michigan Law Review

Michigan Law Review

Petitioners, a corporate employer and an A. F. of L. union whose membership included all the company's active employees, brought suit in a federal court against a C. I. O. union, whose membership included two of petitioner's employees on strike, to enjoin respondents' picketing. The purpose of the picketing was to coerce the employer and employees to violate the agreement entered into with the petitioner union as exclusive bargaining agency and to cause the employer to rescind its recognition of that union. The trial court granted an injunction against all picketing on findings that the agreement between the employer and …

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Marriage And Divorce - Gross Neglect Of Duty As A Ground For Divorce - Wife's Separate Employment Causing Neglect Of Household Duties, Oscar Freedenberg Jun 1940

Marriage And Divorce - Gross Neglect Of Duty As A Ground For Divorce - Wife's Separate Employment Causing Neglect Of Household Duties, Oscar Freedenberg

Michigan Law Review

The husband, plaintiff in a divorce action, alleged that his wife's employment, against his will, caused her to become irritable, unpleasant and quarrelsome and to neglect her household tasks. Held, that the petition states a cause of action on the ground of gross neglect of duty or extreme cruelty under the Ohio statute, but that the proof fails to bear out the plaintiff's allegations. Winnard v. Winnard, 62 Ohio App. 351, 23 N. E. (2d) 977 (1939).

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Municipal Corporations - Debt Limitations - Validity Of Revenue Financing Bonds, James W. Deer Jun 1940

Municipal Corporations - Debt Limitations - Validity Of Revenue Financing Bonds, James W. Deer

Michigan Law Review

The state of Ohio created a building authority to which it transferred for a period of twenty-five years certain hospitals and public land. In return the authority promised to repair the hospitals and to construct a number of new buildings. Bonds to the amount of $7,500,000 were issued by the authority on a resolution pledging the income to be derived from the property pursuant to a twenty-three year rent and bond retirement agreement with the department of welfare. The department promised to charge its patients enough to meet these obligations, and to make payment possible a statute was passed allowing …

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Municipal Corporations - Police Power - Control Of Streets - Power Of City To Grant Exclusive Garbage Disposal Privilege, Michigan Law Review Jun 1940

Municipal Corporations - Police Power - Control Of Streets - Power Of City To Grant Exclusive Garbage Disposal Privilege, Michigan Law Review

Michigan Law Review

Defendant was arrested and fined for collecting and removing garbage by truck over the streets of plaintiff city in violation of an ordinance which provided that no persons other than the duly authorized employees of the city should collect, remove, convey, or transport garbage by any means whatsoever over the city streets. The state constitution gave municipalities the power to adopt and enforce local police and sanitary measures which did not conflict with the general laws. In broad terms, the general code gave the city the power to dispose of garbage, sewage, etc. Defendant claimed that the ordinance conflicted with …

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Negligence - Contributory Negligence As A Defense To Charge Of Nuisance, Benjamin W. Franklin Jun 1940

Negligence - Contributory Negligence As A Defense To Charge Of Nuisance, Benjamin W. Franklin

Michigan Law Review

Defendants were engaged in excavation work, which required the use of compressed air. The air was conducted from a compressor in the street across the sidewalk through a two-inch pipe. A permit had been obtained for crossing the sidewalk (but apparently there was some question as to whether its terms included crossing by the use of a pipe). This obstruction was flanked by two planks, two inches thick and twelve inches wide, beveled away from the pipe. One of the planks became tilted. Plaintiff stepped on it and it slipped under her weight, causing her to fall. In an action …

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Principal And Agent - Application Of "Sole Actor" Doctrine, Michigan Law Review Jun 1940

Principal And Agent - Application Of "Sole Actor" Doctrine, Michigan Law Review

Michigan Law Review

Defendant executed a note for $12,500 to the Taylor National Bank, due six months after date, at the request of one Morton, president and cashier of the bank. Defendant was told by Morton that the instrument was purely an accommodation note, that he would never have to pay anything on account of it and that before using it Morton would see that good and sufficient collateral was placed with it. In defense to an action on the note by the receiver of the bank, the defendant charged that the bank had knowledge of the conditions and purposes for which the …

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Public Officers - Duties And Responsibilities Of Custodians Of Public Funds, Michigan Law Review Jun 1940

Public Officers - Duties And Responsibilities Of Custodians Of Public Funds, Michigan Law Review

Michigan Law Review

The treasurer of a village, acting under the direction of the board of supervisors, deposited the village funds in a certain bank. The village treasurer was the managing officer of this bank. A public official's bond was given to cover his specific term beginning May 5, 1931, and ending May 5, 1932. The bond included a provision exempting the surety from liability for loss by reason of bank failure. A state statute spelled out the obligations of the principal and surety in an official bond without making provisions for any exemptions. At the close of the term of office on …

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Public Officers - Federal Officer's Liability For Damages Done To Property Pursuant To Statutory Authorization, Jerome J. Dick Jun 1940

Public Officers - Federal Officer's Liability For Damages Done To Property Pursuant To Statutory Authorization, Jerome J. Dick

Michigan Law Review

The defendant, pursuant to a contract with the United States government for improving navigation on the Missouri River, built some structures in the bed of this navigable waterway which caused a shifting of the channel resulting in damage to the riparian lands of the plaintiff. Thereupon plaintiff sued for damages. In reversing the trial court, which had granted judgment for the plaintiff, the circuit court of appeals said that the action could be maintained against the defendant if there was a wrongful invasion of plaintiff's property rights; but held for defendant because the damage suffered by plaintiff was an incident …

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Public Utilities - Due Process - Validity Of Order Reducing Intrastate Telephone Rates To Conform To Interstate Rates, Michigan Law Review Jun 1940

Public Utilities - Due Process - Validity Of Order Reducing Intrastate Telephone Rates To Conform To Interstate Rates, Michigan Law Review

Michigan Law Review

The Pennsylvania Public Utility Commission, by order of March 15, 1938, required appellant, the Bell Telephone Company of Pennsylvania, to reduce its intrastate toll rates for distances exceeding thirty-six miles so as to conform to rates charged by the American Telephone and Telegraph Company for comparable distances for interstate services. After full hearing the commission based its order upon .findings that the interstate American Company offered at substantially lower rates the very same service, with identical facilities, accorded by its intrastate subsidiary, plus the additional service furnished by a connecting company, and that hence the higher intrastate rates constituted an …

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Taxation - Federal Estate Tax - What Is A General Power Of Appointment Within The Meaning Of The Federal Statute?, John H. Pickering Jun 1940

Taxation - Federal Estate Tax - What Is A General Power Of Appointment Within The Meaning Of The Federal Statute?, John H. Pickering

Michigan Law Review

Decedent exercised her testamentary power to appoint the income of a discretionary trust. The commissioner declared a tax deficiency for failure to include the property subject to the power in the gross estate. The executor appealed on the ground that the power was a special power under Wisconsin law since the trustee could withhold the income from any beneficiary. Held, the power was general since it was exercisable in favor of the donee's estate or her creditors and therefore the exercise of the power was taxable under section 302(f) of the Revenue Act of 1926. Morgan v. Commissioner, …

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Taxation - Federal Income Tax - Deductions - Loss Upon Sale To Corporation Wholly Owned By Taxpayer, G. Randall Price Jun 1940

Taxation - Federal Income Tax - Deductions - Loss Upon Sale To Corporation Wholly Owned By Taxpayer, G. Randall Price

Michigan Law Review

In 1932 the taxpayer sold to the X corporation, which he wholly owned and controlled, certain shares of stock in partial payment of a debt which he owed to X corporation. The selling price, which was the market value of the stock, was less than the stock had cost the taxpayer. It was found that the sale was entered into with the intent of creating a deductible loss and thus reducing the taxpayer's taxable income. In computing his taxable income for 1932, the taxpayer deducted the amount of the loss on the sale of this particular stock to his wholly …

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Taxation - Income Tax - Improvements Made By Lessee As Income To Lessor, Benjamin W. Franklin Jun 1940

Taxation - Income Tax - Improvements Made By Lessee As Income To Lessor, Benjamin W. Franklin

Michigan Law Review

In 1915, defendant leased a tract of land to X for ninety-nine years. The lease provided that the lessee could remove the old building and replace it; and that on termination, the lessee should surrender the land, buildings and improvements. In 1929, the lessee razed the old structure and erected a new one. On default by the lessee in 1933, the lease was cancelled and defendant repossessed the premises. The commissioner of internal revenue determined that the difference between the fair market value of the new building in 1933 and the unamortized cost of the building razed in 1929 was …

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