Law Commons^™

Administration And Collection Problems, Dixwell L. Pierce

Vanderbilt Law Review

"In the field of revenue administration, there is no longer such a thing as a simple tax law. Complex problems require complex laws, and complex laws are made to protect all taxpayers alike."

When a state or local government provides for a general sales and use tax, it is assuming a heavy administrative responsibility. Such tax laws are deceptively simple. They are not easy to administer. Failure to recognize these facts has resulted all too often in disappointing revenue yields and widespread dissatisfaction among retailers and their customers.

No one really enjoys paying taxes. What may be merely mild distaste …

The Use Tax: Its Relationship To The Sales Tax, Eugene Greener Jr.

Vanderbilt Law Review

The use tax was conceived as a necessary supplement to the successful administration of the sales tax. With a use tax, in addition to a sales tax, legislators felt they had developed a taxing method that was symmetrical and complete.

Thus, if for some reason a sale at retail of tangible personal property escaped tax, "the use, the consumption, the distribution, and the storage [of the property would be taxed] after it has come to rest in this state and has become a part of the mass of property in this state."'

But as the poet Robert Burns intimated about …

Justice Story On The Common Law Of Evidence, John C. Hogan

Vanderbilt Law Review

In our system of jurisprudence it is the province of the jury to decide all matters of fact. The trial is held and the verdict of the jury is delivered in the presence of a judge who is bound to decide matters of law which arise in the course of the trial. Whenever a thing offered as proof is questioned as not proper to go before the jury as evidence, that question is to be resolved by the judge, and unless he permits it to be introduced as evidence at the trial, it can not legally come to the consideration …

Full Faith And Credit For Divorce Decrees -- Present Doctrine And Possible Changes, James D. Sumner Jr.

Vanderbilt Law Review

The recognition of divorce decrees has perhaps created more concern in the United States than any other legal issue. At least this is a matter that has frequently been the subject of public discussions and articles in national magazines in the last decade and a half. The "laymen" who have participated in these events probably have not realized the technical legal problems involved. However, they have at least by their discussions and writings demonstrated that migratory divorces and respect for them raise problems of national significance. Moreover, there is an abundance of legal articles by judges, lawyers, law teachers and …

Public Employees And The Right To Engage In Political Activity, Dalmas H. Nelson

Vanderbilt Law Review

Although the right to freedom of expression has become more narrowly circumscribed for everyone in recent years, the abridgments of this right that the courts have held may constitutionally be imposed on public employees are exceptionally extensive. This has been justified basically in terms of the doctrines that public employment is a privilege which the government may extend or withdraw at will and upon such terms as it chooses, and that denial of public employment does not constitute punishment. The upshot is that in this area the government may act with almost complete arbitrariness, even when basic rights such as …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Recent Cases

Conflict of Laws--Torts--Choice of Law Required by Federal Tort Claims Act

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Constitutional Law--Equal Protection--Exemption of Veterans from Payment of Hunting and Fishing Fees

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Constitutional Law--Separation of Powers--Procedure for Removal of Judge an Interference with Judicial Process

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Constitutional Law--State Police Power--Restriction of Competition among Employment Agencies

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Contempt of Court--Summary Punishment of Direct Contempt--Attorney's Absence from Court

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Corporations--Inspection of Books and Records--Right of Former Director

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Criminal Law--Lotteries--Necessity of Consideration

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Domestic Relations--Alimony--Fixed Payments to Wife until Her Death or Remarriage as Basis of Claim against Husband's Estate

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Domestic Relations--Divorce and Alimony--Award of Alimony …

Joint Tortfeasors In Tennessee And The New Third-Party Statute, Robert W. Sturdivant

Vanderbilt Law Review

Chapter 145 of the 1955 Public Acts' enacted by the Tennessee Legislature, purporting in some degree to permit a third-party action, has evoked considerable interest among members of the Tennessee Bar and liability insurance carriers.

The act provides that when a defendant deems some other party primarily liable to the plaintiff, then the defendant may file a cross action against the third party. It will be recalled that when the Federal Rules of Civil Procedure were first promulgated, Rule 14 provided that a defendant, deeming a third party liable to himsel for to the plaintiff, could make such third party …

Book Reviews, Max Rheinstein, William P. Murphy (Reviewer), Harrison Tweed (Reviewer), Walter P. Armstrong, Jr. (Reviewer)

Vanderbilt Law Review

This subject matter is not fully recognizable from the title, which might be understood to indicate that the book deals with the entire legal system of the United States including or, perhaps even emphasizing, the substantive law of the country and its sources. This is not the case, however. It is the sub-title which gives a more descriptive indication of the contents: "The Administration of Justice in the United States by Judicial, Administrative, Military, and Arbitral Tribunals." Not the substantive law of the United States is the concern of the author, but the machinery by which it is administered, the …

Forward, Law Review Staff

Vanderbilt Law Review

This is the third year in which the faculty members of the Vanderbilt Law School have prepared the Annual Survey of Tennessee Law. The undertaking is, of course, primarily for the benefit of the members of the Bench and Bar of Tennessee. We hope that they have found it sufficiently useful to justify the effort and expense involved. The first Survey was confined almost entirely to the decisions of the State Supreme Court and the Court of Appeals. It has now been expanded to provide for systematic inclusion of federal decisions involving Tennessee law and occasionally even decisions of other …

Procedure And Evidence -- 1955 Tennessee Survey, Edmund M. Morgan

Vanderbilt Law Review

Demurrer: Demurrers are not favored in Tennessee. The pleading to which a demurrer is interposed is construed most favorably to the pleader. For the purpose of determining the sufficiency of a pleading all properly pleaded allegations are upon demurrer taken to be true; in the usual phrasing, they are said to be admitted. Although Tennessee courts, like all others, declare that a demurrer does not admit a conclusion of law, they sometimes let it come perilously close to doing so. Thus, in an action by a bailee against his bailor for failure to return chattels in the condition in which …

Insurance -- 1955 Tennessee Survey, Robert W. Sturdivant

Vanderbilt Law Review

If a period of three years be sufficient time to detect any trend in the field of insurance litigation, there is reflected a decrease in the number of cases reaching our appellate courts having to do with automobile liability insurance and an increase in the number of cases having to do with health and accident policies--the latter probably being the result of the extension of group insurance. In the past year there were only two reported decisions in the state courts and one in the federal court sitting in Tennessee involving automobile liability policies. During the present Survey period, there …

Labor Law And Workmen's Compensation -- 1955 Tennessee Survey, Paul H. Sanders, James G. Bowman Jr.

Vanderbilt Law Review

In Stokeley Van Camp, Inc. v. United Packinghouse Workers of America, the company and the union had entered into a collective bargaining agreement under which there were to be no strikes or lock-outs pending the use of the grievance and arbitration procedures provided in the contract. The chancellor enjoined members of the union from participating in a strike, and in such incidental activities as mass picketing, and threatening and intimidating persons seeking to enter and leave the plant. The company's bill and affidavits indicated the existence of a strike with mass picketing and threats of violence. The union did not …

Restitution -- 1955 Tennessee Survey, John W. Wade

Vanderbilt Law Review

"A person who has been unjustly enriched at the expense of another is required to make restitution to the other."' This principle is a pervasive one, running throughout the common law. It is implemented by many remedies, both at law and in equity; and only in recent times has the single idea underlying the several remedies been clearly perceived. The Tennessee cases on Restitution will here be collected according to the remedies involved.

Creditors' Rights And Security Transactions -- 1955 Tennessee Survey, Paul J. Hartman

Vanderbilt Law Review

Application to Bankruptcy Proceedings of Federal Rules Concerning Compulsory Counter Claims: In Meacham v. Haley' the Tennessee Court of Appeals was faced with the problem of to what extent Rule 13 of the Federal Rules of Civil Procedure concerning compulsory counter claims applies to a bankruptcy proceeding. In the instant case a trustee in bankruptcy of the Dr. Pepper Bottling Company sued the defendants, Haley and Johnston, for alleged fraud practiced on the bankrupt debtor prior to the bankruptcy. However, some time before the present case, Haley and Johnston had filed claims in the bankruptcy matter of Dr. Pepper Bottling …

Conflict Of Laws -- 1955 Tennessee Survey, John W. Wade

Vanderbilt Law Review

When a cause of action is transitory in nature the plaintiff may sue on it in any state where he can obtain personal jurisdiction over the defendant. And when personal jurisdiction is not available, he can often, by process of garnishment or attachment, obtain jurisdiction quasi in rem and proceed with the trial of the issue. The judgment so obtained is not binding on the defendant in personam but it may bind the defendant's property or the debt to him from a third party. In Hobbs v. Lewis a plaintiff sought to make use of garnishment for this purpose. He …

Business Associations -- 1955 Tennessee Survey, Paul J. Hartman

Vanderbilt Law Review

Nature and Formation of Partnerships: The question whether a contract sued on was a partnership arrangement so as to be cognizable only in equity was considered by the Tennessee Court of Appeals in Powel v. Bundy.' There Bundy, a real estate broker, sued Powell on the lawside to recover $500, alleged to be plaintiff's one-half share of a commission earned by their joint efforts in selling a tract of real estate, but which commission had been collected and wrongfully retained by defendant. Among other defenses interposed was defendant's contention that the contract sued on was that of a partnership arrangement …

Contracts (Herein Of Agency) -- 1955 Tennessee Survey, Merton L. Ferson

Vanderbilt Law Review

Offer and Acceptance: Listing Property for Sale With Broker: In Jenkins v. Vaughan' the facts were these: Vaughan had a drug store for sale. He gave Jenkins, a broker, an exclusive listing for 90 days and promised to pay Jenkins a commission if the property were sold within that time "either through you or any other reason." This listing was made October 10, 1951. On December 10, 1951, Vaughan directed an employee of Jenkins to cancel the listing. And on December 28 Vaughan sold the store to a purchaser procured by another broker. Jenkins had not spent any appreciable time …

Administrative Law -- 1955 Tennessee Survey, Paul H. Sanders

Vanderbilt Law Review

Judicial review of administrative agency action, with emphasis upon the limited nature of such review, has again been of major importance in Tennessee Administrative Law during the survey period, This is shown to be true not only in the number of decisions but also in the frequent utilization (and apparent broadening) of the doctrine of Hoover Motor Express Co. v. Railroad & Public Utilities Commission in according finality to administrative action. In addition to holdings on various aspects of judicial review, the Tennessee appellate courts contributed important decisions during the survey period dealing with delegation of legislative power and the …

Criminal Law And Procedure -- 1955 Tennessee Survey, Austin W. Scott Jr.

Vanderbilt Law Review

Homicide: In Ivy v. State' the defendant, in the course of a fight with A, stabbed B, a peacemaker, killing him. The defendant appealed his conviction of involuntary manslaughter on the theory that the evidence did not support the verdict, since it showed that the defendant was striking at A in self-defense when he unfortunately stabbed B. The court held that the jury could properly find on the evidence either that (1) the defendant, not A, was the aggressor, or (2) even if A were the aggressor, defendant was not in imminent danger or reasonably supposed danger of death or …

Domestic Relations -- 1955 Tennessee Survey, William J. Harbison

Vanderbilt Law Review

A case of some significance concerning rights of inheritance by adopted children was decided by the Supreme Court.' The adoptive parent died in 1950, survived by the adopted child. In 1953, the mother of the adoptive parent died, survived by blood relatives and the grandchild by adoption. The latter claimed a share in the grandparent's estate, claiming by representation through its adoptive parent. The Supreme Court decided the case under the former adoption statutes, which had been repealed in 1951. The former statute provided that "unless restrained by the decree," an adoption conferred upon the person adopted "all of the …

Local Government Law -- 1955 Tennessee Survey, Clyde L. Ball

Vanderbilt Law Review

Police Power: Conformity of Ordinance to State Statute: The town of Fayetteville enacted an ordinance imposing higher standards than those established by state and federal laws upon producers, of milk to be sold within the city. In State ex rel. Beasley v. Mayor and Aldermen of Fayetteville' plaintiff milk producer, having complied with state and federal requirements, was denied a permit to sell inside the city and sought a writ of mandamus to require the city authorities to issue the permit. Under the holding in State ex rel. Nashville Pure Milk Co. v. Shelbyville, a municipality could not refuse to …

Personal Property And Sales -- 1955 Tennessee Survey, Clyde L. Ball

Vanderbilt Law Review

The cases of Edwards v. Central Motor Co.' and Hunter v. Moore offer interesting variations upon the same basic problem. In the Edwards case plaintiff automobile dealer sold a car to X in what was intended to be a cash transaction. X paid for the car with a worthless check and received possession of the car together with a carbon copy of a bill of sale executed by plaintiff. X then took the automobile to another dealer and sold it to him, giving the purchaser a bill of sale executed by X. Defendant was present at this transaction; at no …

Real Property -- 1955 Tennessee Survey, Wade H. Sides Jr.

Vanderbilt Law Review

Construction of Deed: Limitation to "My own living children": The deed presented for construction in Tipton v. Wynn, after conveying alife estate to the grantor's daughter, contained the following language:

"and after her death to the heirs of her body. In case she has no bodily heirs, then to my own living children."

When he executed the deed, the grantor had six living children, including the life tenant-grantee. Only one of the grantor's children, however, survived the life tenant, who died without bodily heirs. The complainants, certain heirs of those children of the grantor who had predeceased the life tenant, …

Torts -- 1955 Tennessee Survey, John W. Wade

Vanderbilt Law Review

The decision of whether a defendant is negligent is normally for the jury to decide. This year, as in other years, the Tennessee courts have taken frequent opportunity to emphasize this,' though a directed verdict is proper when the jury could reasonably reach only a single result. The negligence issue is submitted to the jury in terms of the usual standard--whether the defendant acted as a reasonable prudent person would have acted under the same or similar circumstances. At times some of the circumstances may be more specifically adverted to in the instructions. Thus, under the "emergency", or "sudden peril …

Wills, Trusts And Estates (Herein Of Future Interests) -- 1955 Tennessee Survey, W. J. Bowe

Vanderbilt Law Review

Execution of Wills:

Under the Tennessee Code a will valid at the place of execution is valid under the laws of Tennessee. A testator domiciled in Tennessee executed a will in Mississippi in the presence of two witnesses, but thinking that the will should be acknowledged by a notary public rather than subscribed by the witnesses, he had the acknowledgment taken by a Mississippi notary public. As the Mississippi statute is peculiar in that it merely requires "that the Will shall be attested by two or more credible witnesses" rather than the usual "shall be both attested and subscribed" the …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Recent Cases --

Criminal Law--Habitual Criminal--Right of Accused to Counsel under Fourteenth Amendment

Divorce--Alimony Decree Terminating upon Remarriage of Wife--Effect of Annulment of Subsequent Marriage

Divorce--Statutory Modification of Domiciliary Jurisdiction--Congressional Limitation of Power of Territorial Legislature

Labor Law--Unfair Labor Practice--Primary Jurisdiction in NLRB

Life Insurance--Good Health Clause--Existence of Malady Unknown to Insured

Nuisance--Liability for Non-Trespassory Interference with the Use and Enjoyment of Land--Intentional Invasion

Wills--Holographic Codicil--Publication of an Invalid Typewritten Will

Some Perspectives On Written Law Processes In Local Government, C. Dallas Sands

Vanderbilt Law Review

There is a wide assortment of local governing bodies which exercise some measure, more or less, of legislative authority. Municipal governments generally have separate legislative bodies in the form of a council or a commission. Legislative powers may reside in county, township, parish, or borough organizations. And some law-making power, though usually more narrowly confined, may be exercised by special purpose units of local government such as school districts, drainage districts, irrigation districts, and the like. In both volume and effect, the importance of the legislative output of all of these agencies should not be underestimated. Their impact is felt …

An Analysis Of The Drunken Driving Statutes In The United States, J. M. Boyd Jr.

Vanderbilt Law Review

In 1953, 18 out of every 100 drivers involved in fatal accidents had been drinking. By 1954, the figure had risen to 20 out of every 100.'These figures, limited as they are, indicate a trend--the increasing rate of drinking drivers--which has caused deep concern to safety and law enforcement officials for several years. The figures also indicate the scope to which the problem has already grown--to the point that one out of every five drivers involved in a fatal accident has been drinking.

With the growing incidence of the offense, the need for a better understanding of the laws relating …

The Place Of The Planning Commission And The Board Of Zoning Appeals In Community Life, E. C. Yokley

Vanderbilt Law Review

Progressive and fortunate is the city or town served by a planning commission whose membership is comprised of upstanding and public spirited citizens of known integrity, who give freely of their time and talents in such activity. When the same city or town can point with pride to a board of zoning appeals possessing the same high qualities of dedicated public service, it is doubly blessed.

The members of such commissions and boards become the city's most effective police officers when they properly perform their duties. This is literally true, because they derive all of their authority from such part …

The Public Employee And His Government: Conditions And Disabilities Of Public Employment, Jerome J. Shestack

Vanderbilt Law Review

Even before Mr. Marbury, the public employee and his government have frequently found themselves on opposite sides of the counsel table. Not that public employees are a particularly litigious lot. Faced, however, with the willingness of administrators to deal with them politically and the unwillingness of legislators to protect them adequately, their resort to the courts was inevitable. But the courts also often provided inadequate protection. Decisions which combined ancient concepts with more than a touch of political realism accorded scant recognition to the substantial interests of the ever-growing number of public employees.

In recent years, the traditional cliches in …