Uniform Laws in California

Transcription

1 California Law Review Volume 39 Issue 1 Article 3 March 1951 Uniform Laws in California Victor R. Henley Follow this and additional works at: Recommended Citation Victor R. Henley, Uniform Laws in California, 39 Cal. L. Rev. 68 (1951). Available at: Link to publisher version (DOI) This Article is brought to you for free and open access by the California Law Review at Berkeley Law Scholarship Repository. It has been accepted for inclusion in California Law Review by an authorized administrator of Berkeley Law Scholarship Repository. For more information, please contact jcera@law.berkeley.edu.

2 [Vol. 39 Uniform Laws in California Victor R. Henley F OR MANY Y ARS, the legal profession and the lay public have been confronted with the disturbing fact that the legal consequences of an act may be very different in one state from what they are in the next, and that he who would "know the law," which has long been said to be presumed of all persons, must know the law of 48 states. It may well be that as to certain actions, uniformity in legal consequence is neither desirable nor necessary. It is clear, however, that in other fields of activity, such as commerce, uniformity in the law is an urgent necessity, and the lack of it would be an insufferable burden on the commerce of the nation. Diversity in state laws is made possible by a constitutional division of powers between the states and the Federal Government, each legislating and assuming responsibilities in its own sphere of interest. This divison is basic and fundamental to our scheme of government and has stood the test of time for one hundred and sixty years. To many thoughtful persons, it is important that the powers reserved to the states be protected, but it is equally important that these powers be exercised wisely, to avoid ridiculous variations in law upon crossing state borders. As this republic expanded industrially and economically, the need for uniformity in state laws first appeared, and became increasingly urgent, in the field of commercial law. In 1892 the first formal step toward solving the problem of diversity in the laws was taken when a convention, named the National Conference of Commissioners on Uniform State Laws, met in New York. During the first decade of the Conference's existence, primary emphasis was placed on securing uniformity in the field of commercial law. It is worth noting that it is in that field that the work of the Conference has had the greatest measure of success. Since its first meeting, the National Conference has promulgated a total of 108 Uniform and Model' Acts, some of which have been withdrawn for reasons of obsolescence and changing conditions. Of those Acts still in effect, three have been adopted in more than 50 jurisdictions, 1 in more than 40 jurisdictions, 7 in more than 30, and 9 in more than 20 jurisdictions. A total of 37 Acts have been enacted in less than 20 jurisdictions and 13 have not been adopted at all. If an Act has been adopted in less than 20 jurisdictions, the Conference objective of obtaining uniformity in the law as to that Act can hardly be said to have been achieved. The question naturally occurs as to such Acts: Why have the recommendations of the Conference failed to gain acceptance? Of these, 16 are Model Acts, as to which only a partial Attorney, Division of Contracts and Rights of Way, Department of Public Works, State of California. 1 "Model Acts" are promulgated where there is demand for an act covering the subject matter in a substantial number of states and where in the judgment of the Conference legislation tending toward uniformity where adopted would be helpful, even if not absolutely necessary.

3 19511 UNIFORM LAWS adoption might be expected. Four of the Uniform Acts were promulgated at the 1950 Conference and obviously have not been available for consideration by the legislatures. As to the balance of these Acts, it can only be said that probably their subject matter is such that the need for uniformity is not as readily apparent to state legislatures. A possible factor here is a fairly widespread belief that in some fields peculiar local conditions require specific remedial legislation and that this need is not met by the Uniform Acts. However, the Conference for several years has been carrying on a vigorous campaign to bring the Uniform Acts to the attention of local legislative bodies and the program has already begun to bear fruit. Since the Conference has no legislative powers, its promulgation of Acts is only the first step in securing uniformity in the law. To secure adoption by the states, the Conference must depend solely on its reputation for skilled draftsmanship and on its assurance that proposed Acts have been exhaustively reviewed by the Conference membership. To indicate the thoroughness of this review, it is a fixed rule that no Act will be promulgated until it has been considered word by word by the entire Conference at least three times. In addition, the American Bar Association has worked closely with the Conference since its inception and has lent the support of its endorsement to the Acts promulgated. To facilitate uniform construction of the Acts which are adopted, the Conference has made available a wealth of explanatory material concerning each Act. With each Act there are published extensive notes and comments indicating the general purposes and objects of the Act. The Conference also publishes the annual "Hand Book of the National Conference of Commissioners on Uniform State Laws and Proceedings," which reports the discussions and actions taken at the Conference for each year. There is also an independently printed work of some eleven volumes entitled "Uniform Laws Annotated" which sets out the text of each Act, with the notes of the Commissioners, and collects annotations to the Act for each state where it has been adopted. The organization of the National Conference has remained much the same from the beginning. It is composed of several delegates from each of the States, and is supported by contributions from the majority of those States. In many cases, a statutory Commission on Uniform State Laws functions in each State, and the members of the Commission serve as representatives at the National Conference. In others, the representatives are appointed informally by the governor. For many years, California has had a Commission on Uniform State Laws, and has been represented by delegates at the National Conference. The Commission was recognized by statute' in 1929, and since that time has consisted of three members appointed by the governor for four-year terms. By statute the state legislative counsel is an ex-officio non-voting member of the Commission. 2 GoVT. CODE

4 CALIFORNIA LAW REVIEW [Vol. 39 In the adoption of Uniform Acts, California has largely followed the pattern of other important commercial States. The important commercial law Acts have been adopted, 3 and a considerable percentage of the Uniform Acts as a whole. To indicate the extent to which each Act has been adopted in the states and territories, and permit comparison of the record of adoption by this state, there is set out in the following table a list of the Uniform Acts currently being promulgated by the Conference. In Column 1 there appears a reference to the volume and page of Uniform Laws Annotated where the Act may be found. Column 2 shows the number of jurisdictions in which the Act has been adopted, and Column 3 the year of adoption in California, where appropriate: Title of Act Uniform Laws Annotated 4 UNIFORM ACT: 1. Absence as Evidence of Death and 9 ULA 1 Absentees' Property Act Acknowledgment Act ULA Act Fixing Basis of Participation 9 ULA 21 by Secured Creditors in Insolvent Estates Act to Secure,the Attendance of 9 ULA 27 Witnesses from Without the State in Criminal Cases Ancillary Administration of Estates Act Bills of Lading Act ULA 7. Common Trust Fund Act.. 9 ULA Contribution Among Tortfeasors 9 ULA 159 Act Criminal Extradition Act.. 9 ULA Criminal Statistics Act... 9 ULA Declaratory Judgments Act. 9ULA Desertion and Non-Support Act 10 ULA 13. Divorce Recognition Act... 9 ULA (P.P.) Enforcement of Foreign Judgments Act ULA (P.P.) Evidence Act: Business Records as Evidence Act (1936) ULA Evidence Act: Judicial Notice of Foreign Law Act ULA Evidence Act: Official Reports as Evidence Act (1936) ULA Evidence Act: Photographic copies of Business and Public Records as 19. Evidence Act ULA (P.P.) 176 Federal Tax Lien Registration Act 9 ULA 289 Number of Date Cal. Jurisdictions Adopted For the past 10 years, the Conference has been engaged in preparing a Uniform Commercial Code, intended to combine the older commercial acts and bring commercial law more closely in harmony with current commercial practice. The new act is being introduced at the current session of the California legislature. 4 "p.p."1 refers to the 1950 Pocket Part to 9 UNmaoa LAWS ANNOTATED.

5 UNIFORM LAWS Title of Act 20. Fiduciaries Act (1922) Flag Act Foreign Depositions Act Fraudulent Conveyances Act 24. Insurers Liquidation Act 25. Interstate Arbitration of Death Taxes Act Interstate Compromise of Death Taxes Act Limited Partnership Act Marriage License Act Narcotic Drug Act Negotiable Instruments Act Partnership Act Powers of Foreign Representatives Act Prenatal Blood Test Act Principal and Income Act 35. Probate of Foreign Wills Act 36. Proof of Statutes Act Property Act Reciprocal Enforcement of Support Act Reciprocal Transfer Tax Act 40. Reverter of Realty Act. 41. Sales Act Simultaneous Death Act 43. Statute of Limitations Act. 44. Stock Transfer Act Transfer of Dependents Act 46. Trust Receipts Act (1933) Trustees' Accounting Act 48. Trusts Act Unauthorized Insurers Act. 50. Vendor and Purchaser Risk Act 51. Veterans' Guardianship Act (As Revised) Vital Statistics Act Warehouse Receipts Act Uniform Laws Annotated 9 ULA ULA ULA ULA ULA ULA (P.P.) ULA (P.P.) ULA 9 ULA ULA 7 ULA 9 ULA ULA ULA ULA 619 I ULA 9 ULA ULA ULA ULA ULA ULA ULA ULA ULA (P.P.) ULA Number of Date Ca. Jurisdictions Adopted MODEL ACT: 1. Act to provide for the Appointment of Commissioners Business Corporation Act 3. Composite Reports as Evidence Act 4. Court Administrator Act. 5. Cy-Pres Act Estates Act ULA (P.P.) 18 9ULA 71 9 ULA ULA (P.P.) 15

6 CALIFORNIA LAW REVIEW [Vol. 39 Uniform Laws Number of Date Cal Title of Act Annotated Jurisdictions Adopted 7. Execution of Wills Act ULA Expert Testimony Act ULA (P.P.) Interparty Agreement Act... 9 ULA Joint Obligations Act ULA Power of Sale Mortgage Foreclosure Act Resale Price Control Act Rule Against Perpetuities Act.. 9 ULA (P.P.) State Administrative Procedure Act War Service Validation Act... 9 ULA (P.P.) Written Obligations Act ULA It appears that as of this date, a total of 53 Uniform Acts and 16 Model Acts are being promulgated by the Conference. Of this total California has adopted 24 Uniform Acts with more or less faithful adherence to the provisions of the Uniform Act. These 24 Acts which have been adopted are listed in the following summary, with the year of promulgation and of subsequent amendment by the National Conference in parentheses. With each Act there is presented a brief digest of the provisions of the Uniform Act, 5 following which there appears a comment in which are summarized the deviations from the Uniform Act, if any, found in the California statute. Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings (1931 and 193 6).6 The Uniform Act provides for summoning a witness from without the State for criminal proceeding, but not more than 1,000 miles, and exempts such witness from criminal prosecution or civil suit. The act was revised in 1936, to extend the original act to proceedings before a grand jury and provide for arrest, custody and delivery of witnesses to the requesting state. Comment: In 1937 California adopted the revised form of the act but the adoption was under the short title of the original act. Bills of Lading Act (1909).7 Provides for negotiable bills of lading, rights and obligations of carriers, negotiation of bills and criminal offenses relating to such bills. Criminal Extradition Act (1926 and 1936).s Provides the machinery for extradition of persons charged with crime; prescribes the method of applying for habeas corpus, for arrest and detention before extradition is demanded, and the mode of preliminary trial and of applying for a requisition. The Act was revised in 1936 to permit the extradition of a criminal who departed the state under compulsory process and extradition of a criminal from any state into which he moves. Comment: California adopted the revised form in The California Act adds two sections on commitment procedure (Pen. Code Secs and ). It omits Sec. 24 of the Uniform Act but adds provision for costs and expenses (Sec. 1557). Divorce Recognition Act (1947).' Provides that divorce is ineffective in a state 5 These digests of the Uniform Acts here and throughout this article have been largely taken from a digest of Uniform Acts prepared by Mr. Ralph N. Kleps, Vice Chairman of the Legislative Committee of the National Conference and Legislative Counsel of California. 6 PEx. CoDE Civ. CODE c. 8 PEN. CODE Civ. CODE

7 UNIFORM LAWS if both parties are domiciled there when proceeding is started in another jurisdiction, and creates an evidentiary presumption concerning domicil. Comment: The California Act expressly applies only to divorces obtained after the effective date of the statute. Evidence Act: Business Records as Evidence Act (1936).10 The Uniform Act makes a business record competent evidence, if its custodian testifies as to its identity and method of preparation, and if made in the regular course of business at or near the time of the event recorded and if in the opinion of the court the sources, method and time of preparation justify its admission. Federal Tax Lien Registration Act (1926)."1 Provides for filing and indexing federal tax lien notices by a state. Comment: The California statute does not purport to adopt the Uniform Act, but its language is followed almost verbatim. The only addition is that "internal revenue taxes" are specified. Flag Act (1917).12 Makes it a misdemeanor to desecrate a flag or to use it in advertising or for commercial purposes. Comment: Again, the Uniform label is not adopted but the substance of the Act is embodied in the California statute. Foreign Depositions Act (1920).1' Provides for compelling witnesses to attend in this State under foreign depositions with the same effect as if the proceeding were in local courts, and by the same means. Fraudulent Conveyances Act (1918).14 Permits creditors to set aside conveyances which render the debtor insolvent, regardless of intent, if there was no fair consideration. Defines terms and specific remedies. Interstate Arbitration of Death Taxes Act (1943).15 Provides a system of voluntary arbitration between states as to domicil of decedent for purposes of death taxes. Interstate Compromise of Death Taxes Act (1943).16 Provides for compromise between states where more than one claims death taxes as to a particular decedent. Limited Partnership Act (1916).3 7 Provides for creation of limited partnerships, rights and liabilities of limited and general partners, and for dissolution. Negotiable Instruments Act (1896).18 Contains comprehensive provisions as to negotiable instruments: form, negotiation, rights of holders, etc. Partnership Act (1914). 1 9 Governs creation of partnerships, rights and liabilities of partners, and dissolution of partnerships. Comment: The California statute contains an additional clause based on California community property law. (Corp. Code Sec (2) (e)). Principal and Income Act (1931).20 Provides for the apportionment of income and expense, in the case of trusts and legal estates, between life tenant and remainderman. Comment: The California statute varies in many particulars from the Uniform Act. The major differences are that the trustee's discretionary determination of funds as principal or income is made conclusive, as is his apportionment of receipts and expenses (Sec. 2, Uniform Act); stock dividends from earnings are 10 CODE CIv. PROC (e) (h). 11 GOVT. CODE MIL. & VET. CODE 611, 614, CODE CIV. PROC. 2036a. 14 CIv. CODE REV. & T.Ax. CODE 'lid CORP. CODE CIV. CODE d. 19 CORP. CODE ) GEN. LAw, Act 8696 (Deering 1941).

8 CALIFORNIA LAW REVIEW (VOL. 39 income (Secs. 3 and 5); the life tenant's right to income is cut off as of the moment his estate ceases except for funds actually in the trustee's hands (Sec. 4); the trustee or tenant may rely on statements of paying corporations as to the character of disbursements (Sec. 5(6)); but the so-called "accretion" bond redeemable at a future time at a sum in excess of the original consideration for its issuance is excepted from the premium and discount bonds of Sec. 6, so that the accretion is considered income. Sec. 9 is entirely recast so that where no provision is made for the disposition of the proceeds of the development of natural resources, then the net proceeds go to income where alternatively, the trustee is authorized to lease or develop the natural resources or he has no duty to change the form of the investment, whether the proceeds are received as rent or as consideration for royalties, or otherwise. In addition, a subsection 11A is added, apparently giving the orthodox rule for the proceeds of a mortgage salvage operation. Subsection 4 of Sec. 12 eliminates the reimbursement of principal for costs or improvements which add to the value of the property. 2 ' Proof of Statutes Act (1920).22 Governs proof of statutes of states, territories and foreign countries, and is designed to clear up inconsistencies in state practice. Comment: The California statute, when read with Sec. 17(7) of the same code, clearly includes proof of law of a territory. Reciprocal Transfer Tax Act (1928).23 Provides exemptions from transfer taxes or death taxes on intangibles where the decedent resided in a state which provides a reciprocal exemption for such taxes. Comment: The provisions as to inheritance taxes were adopted here in 1927 and those for gift taxes in In each case, the California statute provides for exemptions only when the state of residence of the decedent imposes an inheritance tax on intangible personalty within that state when personalty is transferred to a resident of that state. Sales Act (1906).7, Provides in detail the rules governing contracts of sale, transfer of property, title, rights of buyer and seller, etc. Secs. 32 and 38 of the act were amended in 1922 to provide that negotiable documents of title be fully as negotiable as bills of exchange. Comment: The California enactment incorporated the amendments of Simulaneous Death Act (1940).25 Provides for property dispositions where two or more persons die in a common disaster and there is no evidence as to which died first; if one would inherit from the other, the property of each is distributed as if he had been the survivor; if the deceased would have taken successively, each deceased's successors take a part of the property; in case of joint tenants or tenants by the entirety, the successors of each take a half; however, the act does not apply if the person disposing of property provides otherwise. Comment: The California statute adds a provision for disposition of community property where both the husband and wife are killed. 2 1 Stock Transfer Act (1909). 2Presents a comprehensive body of rules for the transfer and negotiability of stock certificates. 21See Nossaman, The Uniform Principal and Income Act, 28 CAir. L. REv. 34 (1939), for deviations from the Uniform Act recommended prior to California adoption of the Act; the majority of the recommendations were embodied in the California statute. 22 CODE Civ. PRoc. 1900o. 2 3 Rv. & TAx. CoDE 13851, CIV. CODE PRoB. CODE d CoRp. CODE

9 1951] UNIFORM LAWS Trust Receipts Act (1933).23 Provides detailed rules for financing transactions utilizing trust receipts, and deals with rights of financiers, borrowers, purchasers and general creditors. Comment: Civil Code Sec provides that as to automobile dealers the definition of a trust receipt transaction is extended to include the case where the trustor gives new value for the trustee's transfer of a security interest in documents or goods already in the trustee's possession. This extends the concept of the trust receipt transaction to include what is essentially a chattel mortgage, which is contrary to the basic theory of the Uniform Act. This provision also applies to aircraft dealers. Vendor and Purchaser Risk Act (1935).29 Protects the purchaser of real estate under a contract of sale where the property is destroyed before he takes possession or title; protects the vendor after transfer of possession. Veterans' Guardianship Act (1928 and 1942).3 0 Provides for appointment of guardians for incompetent and minor beneficiaries, for commitment to Veterans Administration hospitals of mentally incompetent veterans, and sets limits for fees and commissions. The act was revised and modernized in Comment: The 1945 enactment amended the previous California version of the 1928 Uniform Act to conform to the revised act, with the following exceptions: Sec. 2 of the revised act is onitted, as is Sec. 18(2) which gives full force and effect to orders of commitment by a sister state. In Sec. 10 there are many minor procedural changes, and an additional section, after Sec. 18 provides for filing of a certificate of competency for one who has been discharged. Warehouse Receipts Act (1906 and 1922).31 Provides for negotiability of warehouse receipts, including matters of form, rights of warehouseman, negotiation, rights of parties, etc. Secs. 20, 40 and 47 were amended in 1922 to make warehouse receipts more fully negotiable. Comment: California adopted the original Act in 1909, which was amended in 1923 to include the 1922 amendments to the Uniform Act. There remain, therefore, 29 Uniform Acts which are currently being promulgated by the National Conference but which have not been adopted in California, and are now available for the consideration of the California Legislature. The subject matter of most of these Acts is covered to a certain extent by existing statutes, and in many cases the effect of these statutes, together with case law on the subject, is to very closely approximate the substance of the Uniform Act. In the following summary there are listed the Acts which have not been adopted in this state, together with a digest of the provisions of each Act. Following each digest there appears a comment referring to California statutes which deal with the subject matter of the Uniform Act, if any, and a statement of the major differences between the Uniform Act and existing California law. Absence as Evidence of Death and Absentees' Property Act (1939). The Uniform Act eliminates the common law presumption of death after an unexplained absence for seven years, and invalidates provisions of insurance policies as to the effect of such absence; provides for the appointment of a receiver for the estate 2 CIV. CODE Civ. CODE PROB. CODE GEN. LAwS, Act 9059 (Deering 1909), as amended (Deering 1944).

10 CALIFORNIA LAW REVIEW [Vol. 39 of the missing person and for a final hearing and finding that he is dead, with distribution of his property through the probate court. Comment: Code of Civil Procedure Sec. 1963, Subdiv. 26 creates a presumption of death if the beneficiary has not been heard from in 7 years. Probate Code Secs. 260 to 272 and 280 to 294 provide for the appointment of a trustee to manage the absentee's affairs. Acknowledgment Act (1939). This Act provides the form in which acknowledgment of instruments for use in the State may be taken, both within and without the State. It presents a permissive or optional procedure, but does not prohibit acknowledgments being taken in other ways to be fixed by statute. The Act was amended in 1942 to permit servicemen to have acknowledgments made for them by officers in the armed forces, and again in 1949 to permit acknowledgments before attorneys-at-law in jurisdictions where attorneys are so authorized. Comment: Civil Code Secs provide for acknowledgments in forms substantially similar to those in the 1939 Uniform Act. The sections also permit acknowledgments in other states and foreign countries by specified officers. Civ. Code Sec appears to be based on the 1942 amendment to the Uniform Act, but the group of officers authorized to administer oaths is more limited. The act is effective only until 90 days after adjournment of the 1951 Regular Session of the Legislature. Act Fixing Basis of Participation by Secured Creditors in Insolvent Estates (1939). Adopts the Bankruptcy rule as one of four possible conflicting rules governing the basis for participation. Comment: California has no similar statute, but it has been held that this state follows the Equity rule, with participation without deduction for collateral. 32 Ancillary Administration of Estates Act (1949). The Uniform Act codifies the law of ancillary administration in accord with the philosophy of treating the entire estate as a unit and of regarding the domiciliary administration as primary. Comment: Compare Secs , 1040, and 1042 of Probate Code. Common Trust Fund Act (1938). Permits a bank or trust company to set up a common trust fund for its investments, in order to diversify the investments and spread the risk of loss. Comment: Banking Code Sec adopts Sec. 1 of the Uniform Act, but only insofar as that section applies to trust companies, with no provision for establishment of common trust funds by banks. In addition, there are provisions for apportionment of principal and income and for ownership by participating beneficiaries. The act applies to trusts existing before or after the enactment, whether revocable or irrevocable. Contribution Among Tort!easors Act (1939). Provides for contribution between joint tortfeasors, and makes detailed procedural provisions including an optional section for third-party practice. Comment: There is no comparable California statute. It is established by case law that there is no contribution among tortfeasors in California. 3 3 Criminal Statistics Act (1946). Creates bureau of criminal statistics to serve as a central source of information conecrning statistics on crime, criminals and criminal justice. Comment: Deering's Gen. Laws, Act 1904 provides for a State division on criminal identification and investigation in the Department of Justice, directed by the Attorney General, with the advice and counsel of a Board of Managers, consisting of the Attorney General and three persons appointed by the Governor. The division functions as a central collecting agency for criminal statistics. 8 2 In re Bank of Oakley, 131 Cal. App. 203, 21 P.2d 164 (1933). 3 3 Smith v. Fall River Dist., 1 Cal. 2d 331, 34 P. 2d 994 (1934).

11 19511 UNIFORM LAWS Declaratory Judgments Act (1922). Gives power to courts to declare the rights and duties of parties to contracts, deeds, 'wills, etc., in advance of actual litigation or dispute. Comment: Secs of the Code of Civil Procedure contain comparable provisions, except that it is not expressly stated that the procedure is available to test the validity of statutes and public acts. The courts have made it clear, however, that the validity of a statute or ordinance may be attacked by an action for declaratory relief under Code Civ. Pioc. Sec Desertion and Non-Support Act (1910). Makes it a crime to abandon wife or children; upon a plea of guilty or a conviction empowers the court to order periodical payment of money by the defendant for the use of dependents. Comment: Secs. 270e and 273h of the Penal Code substantially adopt Secs. 6 and 7 of the Uniform Act. Compare Secs h for differences in the Uniform Act which include: The age limit of a protected child is 21. Both an illegal child and a child conceived but not born are protected. The father is primarily liable for support and there are no provisions for an order lis pendens or for an order for periodical payment of money. Enforcement of Foreign Judgments Act (1948). Provides an effective procedure for enforcement of foreign judgments by registration thereof and by levy and execution procedures thereon. Comment: There apparently is no California statute providing for registration of a foreign judgment within the meaning of the Uniform Act. Compare Secs and 1905 of the Code of Civil Procedure. Evidence Act: Judicial Notice of Foreign Law Act (1936). Declares that the courts take judicial notice of the laws of the other States of the Union and may inform themselves as to such laws as they may deem proper; but any party may present evidence as to the law of another State on notice of his intent to do so. The law of a foreign county shall be an issue of fact for the court, and judicial notice shall not be taken of it. Comment: Code of Civil Procedure Sec contains substantially similar provisions. Although this section does not specifically include judicial notice of law of a territory, note that Sec. 17 (1) of the same code provides that the word "State" shall include the District of Columbia and the Territories. Evidence Act: Official Reports as Evidence Act (1936). Written reports of officers of this State on a matter within their duties shall be admissible as evidence insofar as they are relevant; but a copy must be furnished to the adverse party before trial. The report may be admitted without furnishing a copy if there is no surprise to the opponent; other party may cross-examine the maker of the report or any person furnishing information used therein. Comment: Code Civ. Proc. Secs and 1926 provide for admission in evidence of such official reports, but the sections go further in that official reports of an official of any State are admissible. Evidence Act: Photographic Copies of Business and Public Records as Evidence Act (1949). Provides for the use of photographic copies, microfilm copies, etc. in evidence where records are preserved this way in the regular course of business. Comment: Code Civ. Proc. Sec. 1920b permits the admission in evidence of photographic film copies of any original record, whether enlarged or not, in all cases where the original would have been admissible, without regard to its preparation in the regular course of business. Note also Health and Safety Code Sec , Code Civ. Proc. Sec. 1920a, and also that the certificate required by.sec of the latter Code must be attached to or incorporated in the film. Fiduciaries Act (1922). The Act covers situations where one deals with a person whom he knows to be a fiduciary; it deals with duties of such a person with 3 4 La Franchi v. City of Santa Rosa, 8 Cal. 2d 331, 65 P. 2d 1301 (1937).

12 CALIFORNIA LAW REVIEW [Vol. 39 respect to notice of breach of a fiduciary's obligations. Comment: Civ. Code Sec is very similar to Sec. 2 of the Act, protecting one who in good faith transfers to a trustee although the trustee misappropriates the property transferred. Corp. Code Sec protects the corporation which transfers stock on the order of a trustee, unless the corporation had actual -knowledge that the trustee was guilty of a breach of trust. This latter provision corresponds to Sec. 3 of the Act. Insurers Liquidation Act (1939). Provides for liquidation, rehabilitation and reorganization of insurance companies where business and assets are in two or more states. Comment: No comparable California statute could be found. Marriage License Act (1950). Provides blood test requirement in the issuance of marriage licenses, but authorizes waiver by judge for reasons of public policy. Comment: Civ. Code Secs require tests for syphilis within thirty days before application for a marriage license, and authorizes a judge to waive the requirement in an emergency where the public health will not be affected. Narcotic Drug Act (1932). Makes provision for licensing the manufacturer or wholesaler of specified drugs; requires records to be kept by apothecaries and by prescribing physicians and makes it unlawful to manufacture or possess drugs except as authorized by the Act. The Act was amended in 1942 to cover the use of drugs on ships or aircraft, to reduce the number of exempt drugs and to include the drug marijuana which had been omitted from the 1932 Act. Comment: Chapters 1-6 of Division 10, Health and Safety Code set out a detailed plan for the control of the sale of narcotics, prescribes records to be kept by pharmacists, wholesalers and manufacturers. The plan is not based on the licensing of manufacturers and wholesalers of drugs, as is the Uniform Act. Powers of Foreign Representatives Act (1944). The Uniform Act provides that where there is no administration or application therefore pending in the State, foreign representatives may exercise all the powers enjoyed by a local representative. Comment: There is no comparable California statute. Prenatal Blood Test Act (1950). Provides for blood test in connection with pregnancies and requires attending physician to furnish a certificate as to the result. Comment: Secs , Health and Safety Code, require physicians attending a pregnant woman to make a prenatal or postnatal blood test for syphilis. Probate of Foreign Wills Act (1950). Provides for a simple procedure in admitting to probate a nonresident's will which has been admitted to probate at his domicil. Comment: Secs of Probate Code provide that a will admitted to probate in any other state or country may be offered for probate in this state. The law governing the execution of a foreign will is stated in Prob. Code Sec. 26. Property Act (1938). Abolishes a number of feudal rules regarding real property law, and attempts to modernize that part of the law. Comment: Compare Civ. Code Secs By statute and by judicial decision, California law is substantially in accord with the Uniform Act. One difference is that the Doctrine of Worthier Title is in effect here as a rule of construction where the trustor limits to himself for life, remainder to his heirs. 3 5 Reciprocal Enforcement of Support Act (1950). Provides for reciprocal legislation between states to enforce the duty of support by civil and criminal proceedings, simplifies procedures, and eases problems in enforcing support decrees of another state. Comment: There apparently is no comparable California statute. Reverter of Realty Act (1944). Specifies a limitation to 30 years for provisions relating to reverter of realty, requires substantial benefit to parties in whose favor 3'Bixby v. Cal. Trust Co., 33 Cal. 2d 495, 202 P.2d 1018 (1949).

13 1951] UNIFORM LAWS condition exists, etc. Comment: There is no specific statute on this point in California, but as a matter of judicial decision, there is no time limitation on the reverter of realty here. Statute of Limitations Act (1939). Sets forth the limitations on the beginning of actions of various types. Comment: Compare Code Civ. Proc. Secs Transfer of Dependents Act (1935). Authorizes state department of public welfare, or similar state agency, to make reciprocal agreements with corresponding agencies in other states regarding dependents migrating from one state to another, their support and return, and similar matters. Comment: No statutory provision could be found for such reciprocal agreements on the transfer of indigent nonresidents. Trustees' Accounting Act (1936). Provides for inventories and periodic court accountings by testamentary and inter vivos trustees, and states the effect of court approval of accounts. Minor amendments were made in 1937 to Secs. 1 and 3, to harmonize this Act with the Uniform Trusts Act. Comment: Compare Prob. Code Secs and No periodic accounting by trustees is required in California. It is discretionary with the court to order an accounting on application of a beneficiary, but mandatory if none has been rendered within 6 months. Trusts Act (1937). The Act changes common law rules regarding trusts so that (1) the depositor in a bank account to pay special debts is deemed a trustee; (2) a thieving trustee is deemed to have stolen from mixed funds in proportion to each fund's share of the total, abolishing the old "first in, first out" rule of Clayton's case; (3) the grantee of realty on an oral trust for a third person may be compelled to return to the grantor; (4) a trustee can be sued at law in contract or tort in specified circumstances. Comment: There is no comparable California statute. These highly desirable changes in the common law rules regarding trusts could well be considered by the California Legislature. The law in California is generally contrary to the Uniform Act, chiefly as a matter of judicial decision. Unauthorized Insurers Act (1938). The Act puts severe restrictions on any insurer not authorized to do business in the State; provides that no person shall act as agent in the State for such insurer nor aid such insurer in effecting insurance; transacting business in the State by such an insurer is treated as designating the Commissioner of Insurance as attorney for service of process and such insurer cannot bring action in the State nor plead as a defendant without filing bond or obtaining authority to act in the State. Contracts of reinsurance or covering risks of transportation or investigation and adjusting are excepted. Comment: Sec. 703 of the Insurance Code prohibits acting as agent for or aiding a nonadmitted insurer in any way in transacting insurance business within the State. Secs to 1620 have provisions very similar to the Uniform Act as to the transacting of business being deemed consent for service on the Commissioner of Insurance, and as to the conditions on the insurer being permitted to plead as a defendant. Vital Statistics Act (1942). The Act provides for the collection of vital statistics which will be useful to the census bureau and the state authorities. Comment: Health and Safety Code Secs to create a Bureau of Vital Statistics under a State Registrar with elaborate provisions for the recording of births, deaths and marriages, the recording of legitimation or stillbirth of a child, or of the finding of an unknown child. None of the 20 Model Acts now being promulgated by the National Conference have been formally adopted in California. In many cases, however, the subject matter of the Act is provided for by more or less compre-

14 CALIFORNIA LAW REVIEW [Vol. 39 hensive statutory provisions. The following summary lists the Model Acts, with explanatory material arranged in the same fashion as was done previously in considering the Uniform Acts. Act Concerning Administration of Charitable Trusts, Devises and Bequests. Creates a statutory recognition of the cy-pres rule and provides for the application of a charitable devise or bequest to other charitable purposes where the original purpose is illegal, impossible or impracticable. Comment: There is no comparable California statute, but by judicial decision California is in accord with the rule of the Model Act. 36 Act to provide for the Appointment of Commissioners (1944). The Act provides for creation of a State Commission on Uniform State Laws consisting of three members appointed by the Governor. Comment: Government Code Secs to are obviously based on the Model Act and contain all the major provisions of the Act. Business Corporation Act (1928). Covers the organization and operation of business corporations. Comment: Title 1 of the Corporation Code provides a comprehensive statutory scheme governing business corporations. Composite Reports as Evidence Act (1936). Makes admissible as evidence an expert's written report although such report contains facts and conclusions based on written information furnished the expert by others, without calling those who furnished the information or the writings on which it was based. Notice of intent to use such report must be given to the opposing party. Comment: No comparable California statute could be found. Court Administrator Act (1948). Provides for establishment of a state office to direct the business affairs of the courts. Comment: There is no similar California statute. The functions outlined in the Model Act are performed here by the Judicial Council.37 There is no Office of Court Administrator in California. Estates Act (1938). The Act is almost entirely limited to definitions of interests in land and other real property terminology. Its only other type of provision is one limiting to 21 years possibilities of reverter and powers of termination under conditions subsequent. Comment: By judicial decision and statute, California law is substantially in accord, except that there is no time limitation on a possibility of reverter, and there is no tenancy by the entirety.38 Execution of Wills Act (1940). Provides for the mechanics of execution of an ordinary will as well as for noncupative and holographic wills. Comment: Compare Prob. Code Secs. 20, and 50 to 55, which set out closely comparable rules. Expert Testimony Act (1937). The Act authorizes the court to select and summon expert witnesses; provides for conferences and joint reports of these witnesses, for their personal examination of the subject matter of the controversy and for admission of their inferences therefrom and from the evidence without first stating hypothetically the data-on which the inference is based. Comment: Compare Code Civ. Proc. Secs to 1873, which permit the court to summon expert witnesses on very similar conditions. Interparty Agreement Act (1925). Permits conveyances, releases, sales, and contracts where there is a group on one side, and part of this group is on the other side; and also provides that no contract is to be discharged merely because the 3 6 0'Hara v. Grand Lodge, 213 Cal. 131, 2 P. 2d 21 (1931). 37 See CAL. CozsT., Art. 6, 1A. 38 Civ. CODE 682.

15 1951] UNIFORM LAWS rights under it become vested in the obligor in another capacity, as, for example, as executor of the original obligee. Comment: No comparable California statute could be found. Joint Obligations Act (1925). Changes technical common law rules as to joint obligors and joint obligees to prevent injustices arising therefrom. Comment: That a release or judgment against one joint obligor does not relieve contract liability in this State, see Code Civ. Proc. Sec. 414 and Civ. Code As to tort liability, the common law rules are still followed in California. Power of Sale Mortgage Foreclosure Act (1940). Provides that mortgages may be foreclosed by the use of a power of sale, as an alternative method to court foreclosure, and gives the details as to method. Comment: Civ. Code Sec permits the exercise of a power of sale conferred by mortgage as an alternative remedy to foreclosing with elaborate provisions for notice and redemption. Resale Price Control Act (1940). Legalizes and provides methods for the enforcement of resale price control systems of distributing branded commodities. Comment: Secs to of Business and Professions Code legalize contracts controlling the resale price of branded commodities and define as actionable unfair competition the advertising or sale of commodities below the price fixed by such a contract. Rule Against Perpetuities Act (1944). Codifies the American common law rule against perpetuities and repeals conflicting statutory provisions. Comment: The common law rule against perpetuities is in effect in California, assuming that a 1948 district court of appeals decision is followed. 39 State Administrative Procedure Act (1944). Provides rules concerning the operation of administrative agencies, including the adoption of rules and regulations, the conduct of contested hearings and judicial review. Comment: A comparable act appears in Govt. Code Secs to 11528, which provides for adoption and publication of rules and regulations of State agencies, and for the procedure for administrative adjudication in enumerated agencies. Judicial review is by writ of mandate as provided in Code Civ. Proc. Sec A considerable portion of the California statute is based on the Model Act, particularly the section on evidence. War Service Validation Act (1944). This is a wartime statute drafted with the aid of the Army and Navy Departments for the purpose of validating conveyances and wills executed by persons in the armed forces even though such documents are technically defective. Comment: There apparently is no comparable California statute. Written Obligations Act (1925). The Act provides that a written release or promise is not invalid for lack of consideration, if the maker of it stated in the writing that he intended to be legally bound. Comment: There is no comparable California statute. That a written release is effective with or without new consideration, however, see Sec of the Civil Code. 39 Estate of Sahlender, 89 Cal. App. 2d 329, 201 P. 2d 69, 37 CAixF. L. Rv. 510 (1949).