Luccock, Eugene C.

English

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Washington Law Review Volume 3 Number 1 3-1-1928 Law of the Air, by Carl Zollman (1927) Eugene C. Luccock University of Washington School of Law Follow this and additional works at: https://digitalcommons.law.uw.edu/wlr  Part of the Air and Space Law Commons Recommended Citation Eugene C. Luccock, Book Review, Law of the Air, by Carl Zollman (1927), 3 Wash. L. Rev. 61 (1928). Available at: https://digitalcommons.law.uw.edu/wlr/vol3/iss1/6 This Book Review is brought to you for free and open access by the Law Reviews and Journals at UW Law Digital Commons. It has been accepted for inclusion in Washington Law Review by an authorized editor of UW Law Digital Commons. For more information, please contact cnyberg@uw.edu. BOOK SECTIONstate without re-examination of the question and a full examination ofthe authorities bearing on it. Considering the state of the authoritiesthat have squarely passed on the question, the dictum does not appear tobe a safe one for peace officers to follow. A. J. S.SEARCHES AND SEIZUREs-INroXIcATiNG IQ So-EvIDENcE-INvALD-ITY OF SEVERAL SEARCHES UNDER SAwmE WARuANT.-Armed with a searchwarrant authorizing the search of defendant's houseboat for intoxicatingliquors, officers made a search but found no liquor and made no return.Two days later the officers returned and made another search under thesame warrant and found intoxicating liquor which was used, over de-fendant's objection, to convict hm of a liquor charge. Held. that thesecond search under the same warrant was "unreasonable," and that theevidence found on the search was erroneously admitted. State v. Moran,138 S.E. 366 (W Va. 1927).This recent decision, which appears to be one of first impression, isof considerable interest in this state because of the dictum of our owncourt in State 1'. Ditmar, 132 Wash. 501, 513, 238 Pac. 321 (1925) asfollows: "One search did not exhaust his powers under it. He couldreturn and continue the search as often as he deemed it necessary untilthe time limit fixed by the statute for the return of the warrant expired."This language was dictum, inasmuch as the officer did not return to"continue the search," but rather to get some samples of mash whichthe previous day's search under the warrant had revealed but which hadnot been taken along at that time. Even on this state of facts there iscontrary authority. Cornelius on Search and Seizure, p. 363. The WestVirgima court in the reported case quite clearly indicates its view thatone search warrant may be used as authority for one search only, sincerepeated searches under the same warrant savor too much of writs ofassistance and general warrants, so abhorrent to the traditions of Ameri-can liberty. See also 12 MNEsoA 14w REViEw 181. It may be sug-gested, moreover, as another reason, that since a search warrant can beprocured only upon a showing of probable cause, if a search is thenmade disclosing nothing of a contraband character, the probability of thecause for the issuance of the warrant has been sufficiently negatived tomake any further searches under the same warrant unreasonable and,hence, that no new search ought to be authorized except upon a newshowing of probable cause and the issuance of a new warrant. It wouldseem that the broad dictum of our own court in State v. Ditmar, supra,an view of the facts there before the court, cannot safely be made thebasis of advice to peace officers in this state to make successive searchesunder the same warrant, but that the issuance of a new warrant for asecond search is the safest practice. A. J. S.BOOK REVIEWSLAW OF THE Ant. By Carl Zollman. Milwaukee: Bruce Publishing Co.,1927, pp. 286.A book can serve two purposes: It may be a repository of authorita-tive statement; and it may, by discussion, clarify the framework of thesubject matter. One which only serves to clarify, even negatively, wherethe subject is new and its very novelty apt to create an atmosphere ofcomplexity, has value.So with this book; for Mr. Zollman has made it clear: (1) Thatgovernment, through a coordination of the legislative and administrativein the new mode, has occupied the field of air-right, if we may use thatterm; (2) That a just analysis of the ancient maxim, (ujus est solumnejus est usque ad Coelum, furnishes a sound foundation for such appro-priation inasmuch as the projection of right thereby suggested is ration-ally limited to the protection of the enjoyment of a particular species ofWASHINGTON LAW REVIEWproperty- and, (3) That governments, in the modern view, are peculiarlyadapted to oversee the use of all kinds of property and to regulate theirenjoyment in the interest of that social harmony which we call progress.The uninstructed attitude toward air-right is, no doubt, the sameas that which has always prevailed toward the unappropriated; the non-existence of recognizable ownership tends to make it free, and conven-ience gradually creates necessity. If there is a tendency in law, as inmorals, to get away from the hard and fast categories of strict right andto place law upon a basis of real injury, this subject offers an excellentfield for its development.Men have discovered a new use for atmosphere; new methods forsubjecting it to old social needs are being developed. Government regu-lation postulates lawfulness and merely keeps pace with the acceleratingimpetus of growing populations. As one may gather from Mr. Zollman'stext, there ought not to be anything new in the juridic situations whichwill arise; only the difference in setting will require the restatementof principle, and the logic of experience will blend the essentials of oldlaw with the new circumstances.It is a temptation to say that Mr. Zollman should have been contentwith a monograph and so enriched the literature of the law withoutadding to its encyclopedias. However, the lawyer's propensity for au-thority suggests that the author has chosen the form of his book wiselyfrom the law-writer's point of view- and, being early in the field, he canjustly anticipate that the future will clothe his efforts with the honor offrequent citation. EUGENE C. LuccocK.OUTLINE OF SURETYSHIP AND GUARANTY. By Earl C. Arnold. Chicago:Callaghan and Company 1927, pp. 620.The avowed purpose in this work is to present an outline of Suretyshipand Guaranty in such form as to be an aid to students and practitionersand the author has succeeded admirably therein.Perhaps any attempt to cover a broad field in the compass of asingle volume raises the question as to choice of material and apportion-ment of space. The author has seen fit to select leading English andAmerican cases as the basis for his discussion, and in the body of histext has made generous use of quoted material from opinions in the caseson the particular point of law under consideration. These are used notonly to show the present state of the law but the development of it. Thefootnotes likewise contain statements from opinions in addition to cita-tions of many cases bearing on the point in issue. Realizing the valueof discussion in law journals, reference has been made to that sourceof information as well as to treatises in the field.Naturally no attempt has been made to exhaust the authorities. Con-flict in English and American decisions as well as controversial pointshave been discussed intelligently and concisely The result achieved inthe manner of using the material is clarity of statement of the principlesof the law of suretyship and guaranty.The apportionment of the book is in some respects new The earlypart follows the usual procedure-the obligations in general-the requi-sites of the suretyship contract-Statute of Frauds-original and second-ary promises-temporary and continuing guaranty-the defenses of thesurety and rights and remedies of surety being discussed in order. Fol-lowing this are two chapters which mark an interesting presentation ofmaterial-one on the Statute of Limitations and the other on the Effectof Bankruptcy upon Rights and Obligations of the Surety-a departurewhich seems to have merit.Realizing the importance of the modern development of the com-pensated surety-the author has devoted the last part of his work to aseparate discussion of this phase of the subject. In view of the wide-spread use of the compensated surety in the present day, the settingaside of a considerable portion of the book for this purpose is justifiableespecially in view of the manner in which the subject is handled. The

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\u3ci\u3eLaw of the Air\u3c/i\u3e, by Carl Zollman (1927)

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