CONSTITUTIONAL LAW-INTERSTATE PRIVILEGES AND IMMUNITIES-STATE\u27S PROPRIETARY INTEREST IN ITS NATURAL RESOURCES

Plaintiffs, non-residents of South Carolina, brought action to enjoin enforcement of the South Carolina statutes regulating fishing within the three mile maritime belt. The statutes imposed an annual license fee on boats engaged in shrimp fishing of $25.00, if owned by residents, and of$2500.00, if owned by non-residents; it exacted a tax of 1/8 cent per pound on green shrimp taken or canned, shucked or shipped for market, and it required all licensed boats to unload, pack and properly stamp their catch in South Carolina before shipment to another state. Plaintiffs who fish within and beyond the three-mile limit contended that the statutes were void on the ground, among others, that they make an arbitrary discrimination between residents and non-residents in violation of the privileges and immunities clause, Article IV, section 2 of the United States Constitution, and that they impose a burden on interstate commerce in violation of sections 8 and 10 of Article 1. Held, injunction denied and case dismissed. The South Carolina statutes do not go beyond the power of a state to regulate the taking of fish or animals ferae naturae, the ownership of which is in the state for the benefit of its inhabitants. Toomer v. Witsell, (D.C. S.C. 1947) 73 F. Supp. 371

FEDERAL COURTS-RULES OF CIVIL PROCEDURE-CONSTRUCTION OF RULE 50 (b)

This action was brought in a South Carolina state court and removed to the federal district court on grounds of diversity of citizenship. After the evidence of both parties had been presented, the court denied defendant\u27s motion for a directed verdict. Thereafter, the jury returned a verdict for the plaintiff. Although defendant filed a motion for a new trial on grounds of newly discovered evidence which the court denied, he did not move to have the verdict and judgment set aside and to have judgment entered in his favor as he might have done under Rule 50 (b) of the Federal Rules of Civil Procedure. Upon defendant\u27s appeal to the Fourth Circuit Court of Appeals, the court found that the admission of certain evidence offered by plaintiff was prejudicial error, and that without it, plaintiff\u27s proof was not sufficient to go to the jury; consequently, the court reversed and directed that judgment be entered for the defendant, apparently finding its authority in Rule 50 (b). On certiorari to the United States Supreme Court, held, reversed. Rule 50 (b) does not authorize an appellate court of the United States to direct a judgment notwithstanding the verdict if no motion for such judgment has been made in the district court within ten days after the jury\u27s discharge. Justice Black delivered the opinion of the court. Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 67 S. Ct. 752 (1947)

WILLS-INTERPRETATION-REVOKED WILL AS ADMISSIBLE EXTRINSIC EVIDENCE

Two nonprofit organizations, Meadville Volunteer Fireman\u27s Relief Association and Paid Firemen\u27s Relief and Pension Association of Meadville, Pennsylvania, claimed a legacy under the will of L. F. Williamson, deceased, unto the Meadville Firemen\u27s Relief Association, Division No. 43, and at the request of the corporate executor, the court below appointed an auditor to hear testimony to determine which organization was entitled to the legacy. The auditor awarded the legacy to the Volunteer Association after admitting testimony of the attorney who drew the will that wills executed by the testator before the existence of the Paid Association contained a similarly worded bequest. Exceptions to the report were dismissed and the distribution ordered. Upon appeal by the Paid Association to the Superior Court of Pennsylvania, held, affirmed. Where a will contains a latent ambiguity, former wills executed by the testator may be considered to determine his intention. In re Williams Estate, (Pa. Super. 1947) 53 A. (2d) 869 (1947)

WILLS-BEQUESTS OF ANNUITIES-RIGHT OF LEGATEE TO RECEIVE PRINCIPAL IN LIEU OF ANNUITY

Decedent left a will in which she made a bequest of $3000,$1000 to be paid in cash and the balance to be invested by her executor in annuities to be purchased from certain specified companies. In his final report, which was upheld by the district court, the executor expressed his belief that the legatee had the right under this will to elect either to receive the entire bequest in cash or to have the designated part invested in the specified annuities, and stated that since the legatee had elected to receive the cash, the entire $3000 would be distributed directly to her unless the court ruled otherwise. At the hearing of the executor\u27s report, the annuity companies filed objections which the district court overruled. On appeal to the Supreme Court of Iowa, held, reversed. Where a will directs that a certain sum be invested in an annuity, the legatee may not elect to receive payment in cash of the sum provided. In re Johnson\u27s Estate, (Iowa 1947) 30 N.W. (2d) 164

FEDERAL COURTS-VENUE-CONSTRUCTION OF SECTIONS 51 AND 52 OF JUDICIAL CODE

Petitioner, a resident and citizen of Mississippi, brought a negligence action based upon diversity of citizenship in the Federal District Court for the Eastern District of Louisiana, joining as defendants Highways Insurance Underwriters, a Texas corporation qualified to do business in Louisiana, and respondents, Reich Brothers Construction Co., a partnership, and its individual members, residents of the Western District of Louisiana. Respondent, Reich Brothers, moved to dismiss on the ground of improper venue under sections 51 and 52 of the Judicial Code which in effect provide that in diversity cases, suit shall be brought only in the district where either the plaintiff or defendant resides except where there are two or more defendants residing in different districts of the state, in which case suit may be brought in either district. Respondents claimed that Highways Insurance Underwriters was not a resident of the Eastern District within the terms of the code; and therefore, respondents could not properly be sued as co-defendants in that district. The district court dismissed as to respondents and upon petitioner\u27s appeal to the circuit court the judgment of dismissal was affirmed. On certiorari to the United States Supreme Court, held, affirmed. A foreign corporation which has qualified to do business and appointed a local agent to receive service of process in a state is not a resident of that state within the meaning of the federal venue statutes. Suttle v. Reich Bros. Construction Co., 333 U.S. 163, 68 S.Ct. 587 (1948)

PHYSICIANS AND SURGEONS-STATUS OF OSTEOPATHS-LIMITATIONS ON PRACTICE

Until recently, the osteopath has generally been given a limited license. The present status of the osteopath is best understood by a comparison with that of the unlimited practitioner. Though most of the statutes have been examined, this comment is based primarily upon those of Illinois, New York, Pennsylvania, Ohio, Michigan, California, Massachusetts and Indiana, which are fairly typical of the rest. These statutes vary widely in their provisions, but for the purposes of discussion, they have been treated in three arbitrary categories: (1) statutes in which the scope of the osteopath\u27s license is considerably narrower than that of the unlimited practitioner; (2) those in which it is somewhat similar to that of the unlimited practitioner; and, (3) those in which it is almost identical with that of the unlimited practitioner

TAXATION-INCOME TAX-VALIDITY OF FAMILY PARTNERSHIP WHERE PARTNER\u27S SERVICES ARE TO BE PERFORMED IN FUTURE

In 1939, petitioner sold certain ranch properties and half of his herd of blooded cattle to his four sons, accepting their notes in return. A firm consisting of petitioner and his sons was then formed, and a bank account was opened upon which any of the members of the firm could draw. Two of the sons were minors, but all were ranch-reared and experienced in cattle raising. The sons paid part of the notes with their shares in the proceeds from firm sales, and petitioner forgave the rest. Military duty disrupted the plan by which all the sons were to work on the ranch, and at the time of the hearing only two had rendered services in the partnership enterprise. The firm filed a partnership return for 1940. The Commissioner determined a deficiency against the petitioner for that year, attributing all the income of the firm to him. The Tax Court held that the firm was not a partnership for tax purposes, since the capital contributed did not originate with the sons and the services rendered by them were not vital, in the sense required by the Tower and Lusthaus decisions. On appeal, held, reversed. Where it is contemplated that a family member will contribute capital or vital services, they may be forthcoming either presently or at some future time. Culbertson v. Commissioner, (C.C.A. 5th, 1948) 168 F. (2d) 979

A Synthesis of Tagging Studies Examining the Behaviour and Survival of Anadromous Salmonids in Marine Environments

This paper synthesizes tagging studies to highlight the current state of knowledge concerning the behaviour and survival of anadromous salmonids in the marine environment. Scientific literature was reviewed to quantify the number and type of studies that have investigated behaviour and survival of anadromous forms of Pacific salmon (Oncorhynchus spp.), Atlantic salmon (Salmo salar), brown trout (Salmo trutta), steelhead (Oncorhynchus mykiss), and cutthroat trout (Oncorhynchus clarkii). We examined three categories of tags including electronic (e.g. acoustic, radio, archival), passive (e.g. external marks, Carlin, coded wire, passive integrated transponder [PIT]), and biological (e.g. otolith, genetic, scale, parasites). Based on 207 papers, survival rates and behaviour in marine environments were found to be extremely variable spatially and temporally, with some of the most influential factors being temperature, population, physiological state, and fish size. Salmonids at all life stages were consistently found to swim at an average speed of approximately one body length per second, which likely corresponds with the speed at which transport costs are minimal. We found that there is relatively little research conducted on open-ocean migrating salmonids, and some species (e.g. masu [O. masou] and amago [O. rhodurus]) are underrepresented in the literature. The most common forms of tagging used across life stages were various forms of external tags, coded wire tags, and acoustic tags, however, the majority of studies did not measure tagging/handling effects on the fish, tag loss/failure, or tag detection probabilities when estimating survival. Through the interdisciplinary application of existing and novel technologies, future research examining the behaviour and survival of anadromous salmonids could incorporate important drivers such as oceanography, tagging/handling effects, predation, and physiology

Diagnosing Organizational Ills

1978-1