BAR BRIEFS PUBLISHED MONTHLY AT BISMARCK -By STATE BAR ASSOCIATION Entered as Second Class Matter Jan. 15, 1925, at the Postoffice at VOL. II OCTOBER, 1926 NO. 11 A WHOLESOME TREND The Bar Association referendum now in progress indicates quite clearly that North Dakota's experiment in bar incorporation is bringing about a more representative expression of opinion on all questions with which the Bar is required to or should deal as a unit. The registrations at the 1925 and 1926 annual meetings of the Association gave evidence of a growing interest, each of these sessions being attended by nearly three times the number of practicing attorneys that usually attended the sessions prior to that time; and with the closing date for balloting on Bar Board recommendations still two weeks ahead the number of ballots received exceeds by nearly fifty per cent the number of votes previously cast by members of the Association in this maner. This is certainly as it should be. The Bar, as an organization, had no right to expect recognition so long as its expressions represented the opinions of a small minority. No one anticipates that the annual meetings will ever draw a one hundred per cent attendance or that questions submitted on referendum will be decided by an equal vote, but this manifestly growing interest is bound to have a favorable reaction among members of the profession and the expressions of opinion that come as the result of this more general interest will be respected by the public. It is believed that Bar Briefs has had a part, however small, in bringing about the changes already noted. WORKMEN'S COMPENSATION DECISIONS Before claimant can recover compensation he must prove by a preponderance of competent evidence all facts necessary to justify an award. An award for permanent partial incapacity is not justified unless there is evidence, not only of actual earnings before accident, but also of actual earnings or capacity to earn in suitable employment after accident.—Central Illinois Public Service Co. vs Industrial Commission, 152 N. E. 505 (Ill. June, 1926). Award of compensation to a married sister, living with her husband, for death of brother can not be sustained where the evidence shows that the contributions were for board and room and were not relied upon by the claimant for her means of living, judged by her position in life.— Lederer Co. vs Industrial Commission, 152 N. E. 588 (Ill. June, 1926). To same effect, claimants being the parents, is Bauer vs Industrial Commission, 152 N. E. 590 (Ill. June, 1926). Loss of 99% of vision of eye constitutes total loss of eye.-Travelers Insurance Co. vs Richmond, 284 S. W. 698 (Texas May, 1926)-(The North Dakota Bureau has repeatedly ruled that loss of 95% of vision constitutes total loss.) Employee injured in fight growing out of personal differences not connected with employment is not entitled to compensation.-Garff vs Industrial Commission, 247 Pac. 495 (Utah June, 1926). U.S. SUPREME COURT DECISIONS In computing the amount of income taxable under Federal law to an estate during administration, the amount of the state transfer tax is deductible.-Keith vs Johnson, 46 Supreme Court Reports 415. Where the accounts of an estate are kept on the basis of actual receipts and disbursements the executors, in calculating the 1919 Federal income tax, are not entitled to deduct from gross income the estate tax which was not paid until 1920.-U. S. vs Mitchell, 46 Supreme Court Reports 418. The "most recently accumulated undivided profits or surplus" out of which the Revenue Act of 1917 declares that distributions to shareholders shall be deemed to have been made, refers to profits which have neither been distributed as dividends nor carried to surplus acount on the books, not to profits which have been added to an undivided profits account at the end of the fiscal year.-Edwards vs Douglas, 46 Supreme Court Reports 85. A corporation owning and voting the stock of another corporation actually engaged in mining and carrying on no activities other than by pledge of the stock is not exempt from the corporations tax as a corporation "not engaged in business."-Edwards vs Chili Copper Co., 46 Supreme Court Reports 345. A state franchise tax imposed on domestic corporations may be measured by the authorized capital stock of the corporation. It is not an unconstitutional discrimination for such a tax, in the case of corporations issuing stock of no par value, to be based not on the actual value of the stock but on the maximum price for which it might be issued.Roberts vs Emmerson, 46 Supreme Court Reports, 375. CRIME CONTROL The report recently made by Guy A. Thompson, Chairman of the Survey Committee of the Missouri Association for Criminal Justice, points out the following: 1. "The first and most serious deficiency in our machinery for combating crime is its failure to catch the criminal." 2. "After the police have done their work the prosecutor is far and away the most important single factor in the disposition of criminal cases." Figures presented indicate that 33% to 50% of the cases are eliminated by the prosecutor, while from 12% to 16% are eliminated by the court. 3. Another factor pointed out is delay, in which continuances play a material part, and continuances frequently result in elimination. 4. Failure to punish is a further element, the criminal being able to place very satisfactory odds against payment for crime. 5. The very striking figures on point number 5 are that of those punished only 20% ever face the jury; the other 80% are sentenced on plea of guilty. (This would indicate somewhat more responsibility on the part of the courts than on the juries.) 6. The survey finds no great distinction between the country and the congested districts. 7. It reports "a woeful lack of cooperation and co-ordination between the various agencies having relation in their functions to the administration of criminal justice." 8. Among more import recommendations are the following: (a) Establishment of state constabulary; (b) Abolition of office of coroner; (c) Require prosecuting attorneys to keep a docket; (d) Adoption of ten-juror verdicts; (e) Permit comment on failure of defendant to testify; (f) Allow the court to comment on the evidence; (g) Allow reversal of conviction for misdirection of jury or admission or rejection of evidence only in case "it shall affirmatively appear that there has been a miscarriage of justice." NEWS NOTES Frederick E. Wadhams, for twenty-four years treasurer of the American Bar Association, died at his home in Albany, New York, last month. The South Dakota Association considered the matters of bar incorporation and establishment of a judicial council, but deferred action at its recent annual meeting. Attorney Fred J. Traynor of Devils Lake presented the subject of Bar Incorporation to the Montana state meeting in July, as a result of which a resolution favoring such incorporation was passed. Cleveland offers, as another variation from the usual defense of indigent prisoners plan, the following substitute for the Public Defender; appointment by the President of the Bar Association, with approval of the Executive Committee, "of a list of twenty-five high-minded, conscientious and capable trial attorneys willing to accept assignment for the defense of indigent prisoners, and that the courts be requested to make all assignments from this list." The Kansas City Star, noting the wide discussion among bar associations concerning the simplification of laws and legal procedure, remarks editorially: "From the standpoint of results, the details of such discussions are of great importance, but from the standpoint of general encouragement the fact of such discussion is most striking for the moment. For this is an instance of the concentration of thought and effort given to a more expeditious and effective process for our courts. Progress necessarily will be slow, as all legal reform is, but progress surely must come from so much thought and purpose." COMPENSATION FACTS There appears to be much of misunderstanding among attorneys as well as laymen concerning the provisions of the North Dakota Workmen's Compensation law as compared with other states. This is particularly true with respect to the matter of compensation benefits. The following facts are, therefore, presented in the hope that they will be read and remembered: 1 The maximum payments that may be and have been awarded to the dependents of a workmen killed in the course of employment are: 2 The maximum award in case of injury causing permanent total disability is as follows: Under the North Dakota law there is no limit, either as to time or amount, for which medical and hospital care is to be provided, and there are a number of cases on record in which this item has run considerably over $3,000.00. Minnesota while not limiting the amount that may be paid, provides that medical and hospital care shall be supplied for a period of not exceeding 90 days in ordinary cases. South Dakota provides such care for a period of 12 weeks, and fixes the maximum amount at $150.00. Montana provides for 2 weeks, with a maximum of $100.00. 4 The schedule for specific injuries shows the following maximum awards that may be and have been made in the respective states: Minn. Mont. S. D. N. D. $2,000.00 $1,250.00 $1,500.00 $2,600.00 Ohio Loss of One Eye $1,875.00 A pertinent question that may be asked, following this review of facts, is: How long can North Dakota continue to maintain its maximum benefits so far above other states and keep premium rates within reason? EXECUTIVE COMMITTEE The new executive committee of the Bar Association consists of the following officers and appointive members: President, W. A. McIntyre, Grand Forks |