State and Local Government Law Commons^™

Municipal Corporations - Statutory Liability For Mob Violence - Definition Of Correctional Power, Nathan B. Driggers

Michigan Law Review

On August 12, 1947 eight Negro families moved into a Chicago public housing development which was occupied largely by white families. On the evening of August 14, several thousand people, protesting the Negro intrusion, congregated in the area, blocking traffic and brandishing bats, bricks, and stones. A large number of policemen were on duty at the scene. The automobile of the plaintiff, a Negro, was intercepted at an intersection by the crowd which began throwing bricks at the occupants of the car. The plaintiff was struck by one missile and suffered severe physical injury. He brought suit against the city …

Admiralty - Constitutional Law - Effect Of State Regulation Of Marine Insurance On Uniformity Of Maritime Law, Charles G. Williamson, Jr. S.Ed.

Michigan Law Review

Petitioner's houseboat, used to transport passengers commercially on a lake between Texas and Oklahoma, was insured against fire and other loss by respondent. Following destruction of the boat by fire, respondent denied liability because of breaches of policy warranties against assignment, pledging, transferring, and use for hire. The petitioner's action was brought in the state court and removed to a federal court because of diversity of citizenship. Texas statutes provide that breaches of policy provisions by the insured are no defense unless the breach contributes to the loss, and that provisions in policies against pledging are invalid. Petitioner contended that …

Corporations - Stockholders - Effect Of State Constitutional Provisions On Liabilty To Creditors For Unpaid Subscriptions, Douglas Peck S.Ed.

Michigan Law Review

Basset and Company, an Oklahoma corporation, issued stock to defendant for which defendant never paid. The sum due was carried on the corporate books as "subscriptions receivable." The corporation became bankrupt and the trustee brought suit in the federal district court to recover the amount due on the subscriptions. Held, judgment for the defendant. Under the Oklahoma Constitution, where stock is issued for consideration which is less than par value, the issue is void. The stock certificate cannot serve as a consideration to support the would-be stockholder's promise to pay for the stock, and no liability attaches to the …

Real Property - The Effect Of Zoning Ordinances On The Law Of Nuisance, Robert B. Fiske, Jr. S.Ed.

Michigan Law Review

One of the most interesting and least explored questions in the law of property is the effect of zoning ordinances on the law of nuisance. Particularly interesting is the extent to which statutory authorization by zoning can legalize a use of land which, in the absence of a zoning ordinance, would constitute a nuisance. In order to understand this problem fully it is necessary to begin with a general analysis of the law of nuisance and the various classifications into which it has been divided by the courts.

Constitutional Law - Federal Immunity From State Taxation - Validity Of State Sales Tax Upon Purchases And Sales By National Banks, Julius B. Poppinga

Michigan Law Review

The 1949 revision of the Michigan Sales Tax Act changed the federal exemption provision so as to permit taxation of sales to corporations acting as agents or instrumentalities of the federal government but not wholly owned by the United States. Accordingly, defendant department of revenue took the position that sales to plaintiff, a national banking institution organized under the National Banking Act, are taxable. In the course of its operations, plaintiff purchases office equipment and other tangible personal property from Michigan. retailers. It also sells food and services to employees through its cafeteria, and sells repossessed merchandise to other parties. …

Municipal Corporations - Validity Of Covenant To Maintain Parking Meters In Bond Issue To Finance Off-Street Parking Facilities, William G. Cloon, Jr. S.Ed.

Michigan Law Review

An act of the state legislature authorized the issuance of municipal bonds to finance off-street parking facilities. The city was authorized to pledge revenue from existing on-street parking facilities to service the bonds but was to retain the right to change the location of the parking meters and other on-street facilities for enumerated reasons so long as the change did not materially lessen the revenue to be derived from those facilities. Acting in pursuance of authority granted by the enabling act, the city covenanted to maintain its parking meters subject to the reservations required by the act. In an action …

Constitutional Law- Zoning - Private High Schools Excluded From Zone In Which Public High Schools Permitted, William D. Keeler S.Ed.

Michigan Law Review

Among the uses permitted in the "A" residence zone by the Wauwatosa, Wisconsin zoning ordinance were "(e) Public Schools and Private Elementary Schools." The city building inspector denied to plaintiff, a private, non-profit religious corporation, a permit for the construction of a private high school in that zone. Plaintiff brought an action in mandamus to compel the issuance of such a permit, alleging that the ordinance deprived plaintiff of property without due process of law, and denied to it the equal protection of the laws guaranteed by the Fourteenth Amendment. The lower court granted the writ. On appeal, held, …

Municipal Corporations - Zoning - Amortization Of Existing Noncomforming Uses, James W. Beatty S.Ed.

Michigan Law Review

ln 1930 defendant Gage acquired several lots in the City of Los Angeles. He constructed a residential building in which he established a wholesale and retail plumbing business, using one room as an office for the conduct of his business. Also used in the business were a garage and racks, bins, and stalls for the storage of materials and supplies. The use to which defendant put the property was permitted under the applicable zoning ordinance of 1930. Later the ordinance was changed so as to make defendant's use of both lots nonconforming. In 1946 another rezoning ordinance provided that the …

Labor Law - State Jurisdiction Over Acts Which Are Unfair Labor Practices Under Federal Labor Legislation, Eugene Alkema S.Ed.

Michigan Law Review

Extensive federal labor legislation under the commerce clause has created a perplexing jurisdictional problem in the state courts, which are confronted increasingly with the critical issue of possible conflict with a federal preemptive area of operation. The extent to which the federal government has superseded state jurisdiction over labor matters has remained unsettled under the current case law and the legislative history of the federal acts, and the need for clarification is apparent at a time when labor cases are reaching the courts in increasing numbers. It is natural for unions to raise the issue of lack of jurisdiction in …

Obligations Of A State-Created Authority: Do They Constitute A Debt Of The State, Elizabeth Gaspar Brown

Michigan Law Review

Although provisions in a number of state constitutions limit the amount of debt a state may incur state legislatures frequently have attempted to circumvent such limitations. Recent decades have seen increased use of the "authority," set up by the legislature to accomplish a particular objective and given power to issue evidences of indebtedness to finance the objective, repayment to come from the revenues of the authority, with the declaration that the obligations of the authority are not those of the state. The enabling legislation has been challenged as unconstitutional, often on the ground that the obligations of the authority are …

Impact Of The Commercial Code On Liability Of Parties To Negotiable Instruments In Michigan, Roy L. Steinheimer Jr.

Michigan Law Review

Since the Uniform Commercial Code is now effective in Pennsylvania and is under active consideration by official bodies in other states, it seems appropriate to investigate in some detail the impacts which this proposed legislation would have upon the accumulated business, legislative and judicial understanding and experience in the commercial law area in a specific jurisdiction. As an illustration of the problems which will be faced by judges, lawyers and businessmen in any jurisdiction which adopts the code, the writer has chosen to analyze some impacts which the code would have on commercial law in Michigan. Space limitations make it …

Constitutional Law - Federal Occupation Of Field Of Control Of Subversives, John C. Hall S.Ed.

Michigan Law Review

Defendant was chairman of the Communist Party for the western district of Pennsylvania. He was charged with willfully advocating the violent overthrow of the United States Government, and his conviction under state statute was sustained by the superior court. On appeal, held, reversed. The federal Smith Act pre-empted the field of control of subversive activities and the state law is therefore void. Commonwealth v. Nelson, 377 Pa. 58, 104 A. (2d) 133 (1954).

Constitutional Law - Due Process - Enforced Collection Of State Use Tax From Nonresident Vendor, John Leddy S.Ed.

Michigan Law Review

Appellant is a Delaware corporation engaging in the retail furniture business in Delaware. It has no place of business in Maryland, nor does it solicit orders in that state. It does not accept mail or phone orders from Maryland, nor does it advertise in any Maryland publications. The only contacts which the appellant has with Maryland customers, aside from direct dealings at appellant's retail store, are occasional direct mail advertisements, which it sends to all of its customers wherever located, and deliveries of goods purchased by Maryland customers. These deliveries are either made by commercial carrier or by appellant's own …

Constitutional Law-Commerce Clause-State Taxation Of Interstate Commerce, Theodore J. St. Antoine S.Ed.

Michigan Law Review

Appellant express company, a Delaware corporation, did only interstate business within the state of Virginia. Virginia levied a state tax on intangible personal property and money owned by express companies doing business within the state, and set off their real estate and tangible personal property for local levies. In addition to the property tax, the Virginia statute provided for an "annual license tax . . . for the privilege of doing business in this State." The tax was "equal to two and three-twentieths per centum upon the gross receipts . . . earned in this State on business passing through, …

Federal Procedure - Counterclaim To A Counterclaim Under The Federal Rules, Elizabeth Gaspar Brown

Michigan Law Review

With one exception the cases decided in the federal courts under the Federal Rules of Civil Procedure have held that the plaintiff is free to plead a counterclaim in the reply, although in every instance the counterclaim in the reply under consideration was one related to the subject matter of the counterclaim pleaded in the defendant's answer.

Banks And Banking-National Banks-Amenability To State Statute Restricting Use Of Word "Savings", Donald M. Wilkinson, Jr. S.Ed.

Michigan Law Review

Defendant, a bank organized under the National Bank Act and transacting business in the State of New York, used the words "saving" and "savings" in various ways in the advertising and conduct of its banking business. The state brought suit, seeking an injunction restraining the use of these words, alleging that in- so using them defendant had violated subdivision 1 of section 258 of the New York Banking Law. In defense, the bank contended that this provision, as it applied to national banks, was unconstitutional as a contravention of federal statutory provisions. The trial court dismissed the complaint on its …

Constitutional Law-Church And State-Distribution Of Gideon Bible In Public Schools, Raymond R. Trombadore S.Ed.

Michigan Law Review

The Gideons International, a non-profit religious corporation, applied by letter to the Board of Education of the Borough of Rutherford, New Jersey, for permission to distribute free copies of the Gideon Bible to pupils of the public schools of that community. By resolution passed at a regular meeting of the board, permission was granted for distribution to pupils whose parents requested copies of the Bible. Prior to distribution, suit for injunction was commenced by parents of Jewish and Catholic pupils to determine the validity of the distribution under the federal and New Jersey constitutions. The trial court found for defendants. …

Evidence-Privilege-Use Of Privileged Accident Report To Refresh Officer's Recollection, David D. Dowd, Jr. S.Ed.

Michigan Law Review

Plaintiff, a passenger in an automobile, recovered a judgment for injuries received in a collision. Defendants' motion to exclude testimony of the police officer investigating the accident as to admissions of the driver was overruled by the trial court. Defendants contended that the required accident report filed by the defendant driver was privileged by statute, and therefore the testimony of the officer was inadmissible. On appeal, held, reversed on other grounds. It was proper for the officer to testify as to the defendant driver's admissions even if it was necessary for him to refresh his recollection of these admissions …

Taxation-Federal Estate Tax-Relevance Of Marital Deduction To Computation Of Widow's Distributive Share Of Husband's Estate Where She Elects To Take Against Will, Alice Austin

Michigan Law Review

A widow electing to take against her husband's will claimed to be entitled to have her one-third share of decedent's net personal estate computed without deduction of federal estate taxes, on the theory that Congress in allowing the marital deduction intended that a widow's share qualifying for such deduction should be free of the impact of the federal estate tax. The state had no statute providing for apportionment of federal estate taxes. Held: Congress did not intend, by allowing the marital deduction, to change the rule that state law is determinative of the impact of the federal estate tax. …

Mortgages-Assignment Of Rents And Profits-New Michigan Statutory Treatment, J. David Voss S.Ed.

Michigan Law Review

The Michigan legislature recently approved an act which affects the validity of assignments of rents in or in connection with mortgages on industrial or commercial property. To understand the impact of the new legislation, it is necessary to refer to the general mortgage law of Michigan. In particular, a similar act passed in 1925 relating to trust mortgages is an aid in construing the new act.

Municipal Corporations-Zoning-Right Of Municipality And Property Owners Therein To Object To Amendment Of Zoning Ordinance Of Adjacent Municipality, Howard N. Thiele, Jr.

Michigan Law Review

The borough of Dumont in New Jersey amended its zoning ordinance to change one city block from a residential area to a district in which business user would be permissible. The amendment occasioned objections By certain boroughs which were adjacent to the reclassified block, property owners in the adjacent boroughs, property owners in Dumont, and property owners in the block itself. On suit in lieu of prerogative writ by these parties, held, ordinance set aside. Where several boroughs are adjacent to the block of the defendant borough, and in reliance on the residential character of the whole area single …

Evidence-Presumtions-Alabama Statute Making Compliance With Federal Wagering Tax Law Prima Facie Evidence Of Violation Of State Gambling Law, John C. Hall S.Ed.

Michigan Law Review

In 1953 the Alabama legislature, taking advantage of the federal occupational tax on professional gamblers, enacted legislation making possession of the federal wagering tax stamp prima facie evidence of violation of the state gambling laws.

Proposed Legislation Regarding State Supervision Of Charities, George Gleason Bogert

Michigan Law Review

In the case of private trusts the dangers of long continued neglect or other breaches are not great. Definite or ascertainable persons have a financial interest in enforcement and can bring suit against the trustee. The beneficiaries are almost inevitably informed of their status soon after the creation of the trust. It is the duty of the trustee to notify them of the trust creation, and court notices, the receipt of benefits, and other incidents of trust administration bring home to the beneficiaries knowledge of their situations. Court accountings or voluntary reports generally keep the cestuis informed as to the …

The Legal Basis For Municipal Income Taxes In Michigan, Arthur M. Wisehart

Michigan Law Review

The purpose of this article is to explore the legal difficulties which might beset a Michigan municipality attempting to impose an income tax. Because of the similarity of some of these difficulties to those encountered in other jurisdictions, it is hoped that this study will be useful outside of as well as within the state of Michigan.

Divorce For Temperamental Incompatibility, Lester B. Orfield

Michigan Law Review

One not acquainted with American or Continental legal history might conclude that temperamental incompatibility as a ground for divorce is a novel and radical innovation. In fact, such divorces have been possible from the beginning of our history. Legislatures granted divorces until the last quarter of the nineteenth century. 'We are told that the legislature was appealed to in cases that were too flimsy or too whimsical for the courts."

About a century ago and for more than a generation later at least nine states had "omnibus clauses in their divorce statutes broad enough to include incompatibility of temper." No …

Municipal Corporations-Special Assessments-Method Of Review Where A Special Assessment Is Levied On A Railroad Right-Of-Way, Judson M. Werbelow S.Ed.

Michigan Law Review

Defendant municipality made surface and curb improvements on a street located near plaintiff railroad's right-of-way. Four parcels of land, each containing a house, separated the right-of-way from the street on which the improvements were made. Plaintiff's right-of-way contained a single set of railroad tracks over which plaintiff's trains traveled. Property owners in the improvement district were assessed a total of $13,220.90 for the improvements, $4,715.53 of this special assessment being levied on plaintiff's right-of-way. Plaintiff brought suit to enjoin collection of that part of the special assessment which was levied on its property. The trial court found that the improvement …

Defeasance As A Restrictive Device In Michigan, William F. Fratcher

Michigan Law Review

Quite apart from any question of their validity, the imposition of use restrictions by means of a prohibition was not practicable before the development of equitable remedies because the common law afforded no method of enforcing such a prohibition. One who conveyed land in violation of a prohibition on alienation might attempt to enforce the prohibition by attacking the validity of his own conveyance but one who violated a prohibition on use had neither motive nor method for challenging his own acts. Hence attempts to restrict use by common law devices are necessarily confined to penalty restraints and to limitations …

Admininstrative Law - Federal Injunctive Relief Against State Administrative Orders, John C. Hall S.Ed.

Michigan Law Review

The increasing tendency of state legislatures to establish administrative agencies to regulate various specialized fields has created serious new problems for both courts and lawyers. In dealing with state administrative agencies, the federal courts have been confronted with the dual problem of protecting the individual's constitutional rights and at the same time respecting the prerogatives of the states. The result has been the development of a "hands-off" policy in the federal courts, leaving the initial determination of rights to the state courts, and limiting the use of the federal injunctive power. The purpose of this comment is to indicate the …

Municipal Corporations - Waiver Of Immunity To Suit By Purchase Of Liability Insurance, Chester F. Relyea S.Ed.

Michigan Law Review

The City of Knoxville owned and operated a municipal airport under authority of a state statute which permitted a municipality to acquire, maintain, and operate a municipal airport in its governmental capacity, and which barred suits against the municipality with respect to its operation of the airport. The city carried a policy of liability insurance covering it in the ownership and operation of the airport. Plaintiff was injured by a fall at the airport terminal building, and instituted a negligence action against the city. The city moved for dismissal, relying upon the immunity given it by the statute. Held, …

Labor Law-State Regulation Of Recognition And Organizational Picketing, Richard D. Rohr S.Ed.

Michigan Law Review

Just as the fixed circumference of spheres of influence tends to reduce clash and friction in world affairs, so peaceful industrial relations are fostered by definite legal rules of conduct. Recent litigation, both by its amount and variety of result, testifies to a continued uncertainty as to the permissible scope of peaceful, primary picketing. The major problems may be subsumed under the loose category of "stranger picketing," but a distinction of some legal significance has developed within this category between picketing by the non-representative union for recognition by the employer and picketing for organizational purposes, that is, to win the …