NEGLIGENCE-GAS-DUTY TO INSPECT ABANDONED PIPES

Three persons were asphyxiated in a house in which they were sleeping when pressure caused by the settling of the house broke a gas pipe underneath. The house had no foundation but was supported by posts. Gas service had been discontinued eighteen years before, and the meter was removed at that time. The gas, however, had not been shut off at the curb but was allowed by the company to remain in the pipes beneath the house. The defendant gas company had made no inspection since the service had been discontinued. The plaintiffs, representatives of the deceased persons, brought actions, consolidated for trial, alleging that the defendant gas company was negligent in failing to inspect, maintain, remove and shut off the gas pipes. On appeal from a judgment dismissing the complaints, held, affirmed, three judges dissenting. Failure to shut off the gas at the street curb is not negligent per se, and a gas company is not under a duty to inspect premises beneath which pipes are laid unless it knows that there is possible danger. Shaw v. Wisconsin Power & Light Co., 256 Wis. 176, 40 N.W. (2d) 498 (1949)

CORPORATIONS-VALIDITY OF BY-LAW REQUIRING ASSENT OF ALL OR PROPORTION OF SHAREHOLDERS GREATER THAN MAJORITY FOR ACTION

The defendants, employees of the plaintiff corporation, were discharged by the president, who was empowered under the by-laws to appoint, remove, employ and discharge, and fix the compensation of, all employees of the corporation, subject to the approval of the board of directors. A majority of the directors and the holders of a majority of the shares were in agreement that the defendants should be discharged. The defendants refused to leave the premises, took possession of certain of the corporate books and records, and otherwise interfered with the conduct of the business, claiming that their discharge was ineffective because it was in violation of a by-law requiring assent of holders of ninety per cent of the outstanding shares for corporate action of any character. On motion for an order to restrain them from entering the plaintiff\u27s place of business and from interfering in any way with its business, held, motion granted. A by-law requiring unanimous action of shareholders to pass any resolution or take action of any kind is obnoxious to the statutory rule of stock corporation management. A provision requiring action by the holders of ninety per cent of the shares is substantially the same as one requiring unanimous consent. Eisenstadt Bros., Inc. v. Eisenstadt, (N.Y. 1949) 89 N.Y.S. (2d) 12

LANDLORD AND TENANT-INTERPRETATION OF CLAUSE IN A LEASE PROVIDING FOR TERMINATION IN EVENT OF DESTRUCTION OF PREMISES

The plaintiff leased property from the defendant for a term of years. The lease provided that the lessor should repair damage from fire and that the tenancy shall not be terminated unless such repairs shall require more than ninety days. A fire occurred which damaged the property so badly that it could not be repaired within ninety days. The lessor took the position that the tenancy had automatically terminated with the occurrence of the fire. The lessee filed a bill for a declaratory judgment, claiming that under the terms of the lease he had the option either to terminate or to insist on the reconstruction of the building and the continuance of the lease. On appeal from judgment for the defendant dismissing the bill, held, affirmed. The language used was construed as effecting automatic termination. The provision, though framed in the negative, expresses an affirmative intention that, should the building be damaged by fire so that it cannot be rebuilt or repaired within ninety days, the lease shall automatically come to an end. Molofsky v. Sigal, (Va. 1949) 54 S.E. (2d) 865

CIVIL PROCEDURE-ABATEMENT-STATUS OF SUIT NOMINALLY AGAINST GOVERNMENT OFFICIAL WHEN OFFICIAL LEAVES OFFICE

Often an action brought against an official of the sovereign is actually against the sovereign itself, nominally represented by the official. The status of such a suit when the official leaves office is even today not satisfactorily settled. The so-called representative suit, while at one time serving a purpose, has always been somewhat anomalous and today is antiquated and useless

REAL PROPERTY-VALIDITY OF REGULATIONS OR CONDITIONS IMPOSED UPON SUBDIVISION PLANNING

The plaintiff, wishing to subdivide its land fronting on Long Island Sound, submitted its plan to the town planning and zoning board whose approval was required by ordinance before land could be subdivided and sold. The board rejected plaintiff\u27s plan as not in conformance with a preliminary town plan, adopted in 1936 pursuant to a state statute, providing for the prospective construction of a road along the shore of the sound. The plaintiff appealed to the board of zoning appeals, which affirmed the decision of the town planning and zoning board. On appeal to the Supreme Court of Errors of Connecticut, held, reversed. A preliminary town plan, adopted without notice to affected property owners and without opportunity for them to be heard, cannot curtail the rights of such owners or limit them in the use of their land. Lordship Park Assn. v. Board of Zoning Appeals of Town of Stratford, (Conn. 1950) 75 A. (2d) 379

CONSTITUTIONAL LAW-FREEDOM OF SPEECH

Defendant addressed a crowd of people, white and Negro, on a public sidewalk for the purpose of urging them to attend a certain meeting. During the course of his speech he \u27called Mayor Costello [of Syracuse] a champaign [sic] sipping bum and President Truman a bum. He referred to the American Legion as Nazi Gestapo agents-he also said the fifteenth Ward was run by corrupt politicians and that horse rooms were operating.\u27 He also appealed to the Negroes to rise up and fight for equal rights. The police were called but at first merely observed the gathering. Angry mutterings were heard as the crowd became divided in its sentiments toward the speaker. Pedestrians were unable to pass without going out into the street. Finally, after the police gave defendant several ineffective warnings to stop talking, he was arrested and convicted of disorderly conduct in violation of a state statute, over his objection that his freedom of speech had been unconstitutionally denied. On appeal to the New York Court of Appeals, held, affirmed. The constitutional guarantee of freedom of speech does not make this right absolute. Conviction for disorderly conduct does not infringe upon this right where the speaker on a public street encourages his audience to become divided into hostile camps, interferes with traffic, and deliberately agitates and goads the crowd and police officers into action. People v. Feiner, 300 N.Y. 391, 91 N.E. (2d) 316 (1950)

CONSTITUTIONAL LAW-FREEDOM OF SPEECH

Defendant addressed a crowd of people, white and Negro, on a public sidewalk for the purpose of urging them to attend a certain meeting. During the course of his speech he \u27called Mayor Costello [of Syracuse] a champaign [sic] sipping bum and President Truman a bum. He referred to the American Legion as Nazi Gestapo agents-he also said the fifteenth Ward was run by corrupt politicians and that horse rooms were operating.\u27 He also appealed to the Negroes to rise up and fight for equal rights. The police were called but at first merely observed the gathering. Angry mutterings were heard as the crowd became divided in its sentiments toward the speaker. Pedestrians were unable to pass without going out into the street. Finally, after the police gave defendant several ineffective warnings to stop talking, he was arrested and convicted of disorderly conduct in violation of a state statute, over his objection that his freedom of speech had been unconstitutionally denied. On appeal to the New York Court of Appeals, held, affirmed. The constitutional guarantee of freedom of speech does not make this right absolute. Conviction for disorderly conduct does not infringe upon this right where the speaker on a public street encourages his audience to become divided into hostile camps, interferes with traffic, and deliberately agitates and goads the crowd and police officers into action. People v. Feiner, 300 N.Y. 391, 91 N.E. (2d) 316 (1950)

CONSTITUTIONAL LAW-FOURTEENTH AMENDMENT-DISCRIMINATION IN SELECTION OF GRAND JURORS

Defendant\u27s conviction of murder was affirmed by the Texas Court of Criminal Appeals, which rejected defendant\u27s claim that discrimination in selection of the indicting grand jury had violated his constitutional rights. Defendant pointed out that the Negro proportion of grand jurors had uniformly been less than the ratio of Negroes to the total population of the county, and that on the past twenty-one lists the commissioners had consistently limited the number of Negroes to not more than one on each grand jury. On certiorari to the United States Supreme Court, held, reversed. Limitation of the number of Negroes on a grand jury to the approximate proportion of Negroes in the county eligible for grand jury service would constitute unconstitutional discrimination in violation of the rights of a member of that race against whom an indictment was returned by the grand jury so selected, since the accused is entitled to have charges against him considered by a grand jury in the selection of which there is neither inclusion nor exclusion because of race. Intentional exclusion proved by the statements of the commissioners that they chose for service only those whom they knew and that they knew no eligible Negroes was the actual discrimination on which the unconstitutionality was based. Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629 (1950)

REAL PROPERTY-VALIDITY OF REGULATIONS OR CONDITIONS IMPOSED UPON SUBDIVISION PLANNING

The plaintiff, wishing to subdivide its land fronting on Long Island Sound, submitted its plan to the town planning and zoning board whose approval was required by ordinance before land could be subdivided and sold. The board rejected plaintiff\u27s plan as not in conformance with a preliminary town plan, adopted in 1936 pursuant to a state statute, providing for the prospective construction of a road along the shore of the sound. The plaintiff appealed to the board of zoning appeals, which affirmed the decision of the town planning and zoning board. On appeal to the Supreme Court of Errors of Connecticut, held, reversed. A preliminary town plan, adopted without notice to affected property owners and without opportunity for them to be heard, cannot curtail the rights of such owners or limit them in the use of their land. Lordship Park Assn. v. Board of Zoning Appeals of Town of Stratford, (Conn. 1950) 75 A. (2d) 379

TAXATION-FEDERAL INCOME TAX-SALE OF UNMATURED CROP AS CAPITAL GAIN OR ORDINARY INCOME

Petitioner sold a farm owned over six months upon which was a growing but unmatured wheat crop. When taxed upon the amount of sale price apportionable to the crop as ordinary income, he contended that under state law the land was a capital asset and that the growing crop was an inseparable part thereof. He concluded, therefore, that the entire amount should have been taxed as a capital gain. The purchaser testified that he had considered the crop to be worth about $8,500 and that he had deducted this amount in his own tax return as cost of the crop. The commissioner held that a growing crop is not necessarily a capital asset and that the part of the payment apportionable to the crop was ordinary income. On appeal to the Tax Court of the United States, held, affirmed. The amount of gain from the sale of the growing crop was properly treated as ordinary income, not capital gain, since the crop was property held primarily for sale to customers. McCoy v. Commissioner, 15 T.C. 828 (1950)