MUNICIPAL CORPORATIONS - STATUS OF A CITY MANAGER - ARE HIS FUNCTIONS PRIMARILY EXECUTIVE OR LEGISLATIVE?

When defendant city adopted the city-manager form of municipal government, it duly abolished by ordinance the board of police and fire commissioners and expressly assigned the board\u27s powers and duties to the city manager. Among such powers was that of recommending salary decreases for firemen and policemen, without which recommendation a decrease by action of the council was invalid. After the abolition of the board of police and .fire commissioners, the council decreased the salary of plaintiff policeman without previous recommendation by the city manager. Plaintiff claimed that such action was invalid, and sued to recover the amount of the salary decrease. Held, that prior recommendation by the city manager was not necessary, since the power to recommend decreases was legislative and being such could not be assigned to the city manager, it being the intent of the legislature to make the city manager an administrative officer. Webb v. City of Beloit, 229 Wis. 51, 281 N. W. 662 (1938)

NEGLIGENCE - CONTRIBUTORY NEGLIGENCE - STANDARD OF CARE - OBJECTIVE OR SUBJECTIVE?

While anchoring a guy wire for a hay carrier on his farm, plaintiff suffered injuries caused by contact between the guy wire and a high tension line owned by defendant. After an answer denying negligence and setting up the defense of contributory negligence on the part of plaintiff, defendant had a directed verdict. Held, that the alleged contributory negligence of plaintiff was a question of fact for the jury which was to be guided by the standard of care of the ordinary, careful, prudent man in the situation of the injured party in all respects, the court saying, We think it well settled that, in determining whether a plaintiff in a particular case was guilty of contributory negligence, the knowledge and experience of such plaintiff and the appreciation which he should have had of the danger must be taken into consideration. Aller v. Iowa Electric Light & Power Co., (Iowa, 1938) 283 N. W. 81 at 85

TAXATION - FEDERAL ESTATE TAX - WHAT IS A GENERAL POWER OF APPOINTMENT WITHIN THE MEANING OF THE FEDERAL STATUTE?

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\u27s 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, 309 U.S. 78, 60 S. Ct. 424 (1940)

CONSTITUTIONAL LAW - EMINENT DOMAIN - VALUE AS FIXED BY AGREEMENT BETWEEN THE PARTIES - WHEN IS PROPERTY TAKEN FOR PURPOSE OF DETERMINING PAYMENT OF INTEREST?

Defendant\u27s land, situated between the riverside and set-back levees of the proposed floodway extending along the western bank of the Mississippi from Bird\u27s Point to New Madrid, Missouri, was inundated in the flood of 1937, at which time the floodway, with its system of fuse plugs (whereby the riverbank levee was to be lowered to allow flood waters to spend their destructive force by spreading over larger areas) was not yet in operation. Thereafter the United States, under authority conferred by the Flood Control Act of 1928, instituted condemnation proceedings to secure flowage rights over defendant\u27s land. Defendant claimed that the amount of compensation due had been set by an agreement entered into with the War Department in 1932 and that he should be allowed interest thereon from the date that his land was taken, which he alleged to be at the time that the Flood Control Act of 1928 was passed, or in the alternative, either the time that construction was begun on the set-back levee (October 21, 1929) or the time it was completed (October 31, 1932). Held, the amount of compensation to be paid was that agreed upon between defendant and the War Department, and interest was not allowable thereon as there had been no taking at any of the dates alleged by defendant. Danforth, v. United States, 308 U. S. 271, 60 S. Ct. 231 (1939)

LIBEL AND SLANDER - LIMITATION OF ACTIONS -TOLLING THE BAR OF STATUTE OF LIMITATIONS BY SUBSEQUENT SALE OF THE LIBELLOUS MATTER

On April 25, 1938, plaintiff commenced suit for libel. Nine separate causes of action were set up by alleging nine different publications in successive issues of Liberty Magazine. The first publication was alleged to have occurred on or about April 17, 1937, the second on or about April 24, 1937, and the third on or about May 1, 1937. Defendant showed by affidavit that the issues were placed on sale ten days before the date printed on the cover so that the first issue was on sale by April 7, 1937, the second on April 14, 1937 and the third on April 21, 1937. Defendant then moved for dismissal of the first three causes of action on the ground that they had been barred by the one-year period of limitation for libel actions. In answer, plaintiff contended that each issue remained on the news-stands for a considerable period of time and claimed that each sale constituted a publication sufficient to toll the statute. By affidavit plaintiff also showed that there had been a sale of these back issues on January 10, 1938. Held, that the first three causes of action were barred by the statute of limitations, the running of which could not be tolled by subsequent sale of old copies. Means v. MacFadden Publication, Inc., (D. C. N. Y. 1939) 25 F. Supp. 993

JOINT TENANCY - RIGHT TO TRANSFER BY ONE PARTY - RIGHT OF SURVIVORSHIP

In two recent cases the Supreme Court of Michigan has had occasion to pass upon the doctrine of survivorship in joint tenancies. In one case the deed ran to father and son as joint tenants and contained a covenant that neither would sell without the written consent of the other. The father conveyed his interest without the son\u27s consent and died. The court held that the deed created a joint tenancy, that since the restrictive covenant was void as a restraint on alienation and repugnant to the grant, the joint tenancy was severed by the father\u27s conveyance, and therefore the right of survivorship was gone and the son and the grantee of the father held as tenants in common. Another decision handed down the same day construed a deed reading to A and B as joint tenants and not tenants in common, and to the survivor thereof, parties of the second part to create an indestructible right of survivorship

MR. JUSTICE MURPHY -A NOTE OF APPRECIATION

Justice Murphy would have observed his tenth anniversary on the Supreme Court on February 5, 1950. Just as some of us who were privileged to serve as his law clerks were beginning to think of plans to honor him on that occasion, the news of his death came to stun us. So instead we pay homage to his memory by relating some of the manifold aspects of the character of this most noble man