Suchergebnisse

In eminent domain proceedings where the state or a repository of state power seeks to use land within a restricted residence area for a purpose not consistent with the restrictive covenants, recovery of compensation by adjacent owners in the subdivision for this violation seems dependent upon whether the interest created by the covenants in the adjacent owners is a "property right". If it is a property right it can not under most state and the federal constitutions be taken by eminent domain unless compensation is made.' On the other hand, if the interest be not "property" no compensation need be made for its removal or violation.

The relations existing in the various states of the world, and particularly in the various states of Europe and America, between international law and municipal law, or, as it might better be called, national law, have been made the subject of several studies in recent years. In view of the probable necessity for many years yet to come of relying for the development and application of international law upon national legislatures, courts, and executive or administrative officials, in the absence of any adequate system of international legislatures, courts, and executive officials, this borderland between international law and national law deserves the most thorough attention. But the attention given to the way in which international law is enforced by national courts, the way in which international treaties are supplemented by national statutes, and to other similar phases of the general subject, has led to some neglect of the central question in the problem, or, at least, has not afforded an adequate answer to that question. It is the purpose of this paper to state this question as it has arisen in cases tried in American courts, to attempt to find the proper solution for it, and to compare that solution with ruling case law on the point in the United States.

In the 1934 term, the Supreme Court came to grips with some of the major constitutional problems of the New Deal and rendered decisions more intimately affecting our national life than any since the Dred Scott case of 1857. The great slavery decision rocked the nation to its foundations by its futile attempt to solve a problem insoluble by any means save war. The important constitutional decisions of the Reconstruction period in their immediate consequences affected mainly the South, and it will be remembered that by a series of side-steppings, some involuntary and some not, the Supreme Court escaped the necessity of passing squarely upon the validity of the basic program of Reconstruction as embodied in the act of 1867. Forty years ago, in its 1894 term, the Court incurred much unpopularity by three decisions of major significance. It invalidated the Income Tax Act passed in fulfillment of Democratic campaign pledges; it emasculated, temporarily at least, the Sherman Anti-Trust Act by holding it inapplicable to a most obvious and vicious monopoly—the sugar trust; and it incurred the hostility of organized labor by sustaining the issuance by a federal court of a labor injunction. None of these decisions was, however, nor were all of them together, as far-reaching in significance as those handed down in the last term of Court.

The most significant case in the field of state constitutional law decided during the past year is that of State ex rel. Miller v. Hinkle, decided by the supreme court of Washington in 1930. This case held that an apportionment act is a "law," and can be popularly initiated under the initiative and referendum provisions of the constitution of the state of Washington. The court granted a petition for a writ of mandamus to compel the secretary of state to accept a petition submitting to popular referendum a proposal to redistrict the state for purposes of representation in the legislature. The legislature had failed for many years to perform its constitutional duty to reapportion the state, and this case illustrates the most conclusive argument in favor of the use of the initiative and referendum for purposes of ordinary legislation, even though the only legislation to which it be applied be that of reapportionment. Many states are faced with a serious problem in connection with over-representation of rural districts in the legislature and under-representation of urban districts. The initiative and referendum seem to offer about the only way out of the difficulty if state legislatures refuse to correct the inequality. The only alternative is that we change our ideas as to the necessity of majority rule in the selection and composition of legislative bodies, a change which the rural districts appear already to have made.

So evident has become the reality of the international community on the one hand, and that of occupational groups on the other, that sociology, which is more concerned with social tendencies than with formal doctrine of any kind, has largely discarded the idea of the sovereign nation-state. But juristic science in considerable measure still clings to it. This is true because the latter is naturally more concerned than sociology with the conservative function of legal formalities. Yet the progressivist influence that sociology has already exerted upon legal concepts is likely to continue; which means that the present sociological insistencies will more nearly correspond with the legal ideas of tomorrow than they do with those of today. Law, in order to maintain its function, must of necessity feed upon the fresh materials of change; to live, it will, in the long run, have to conform to moral and social needs. Morality, which is always at least a step ahead of the law, requires to be followed by the law, for the sake of the life of both, at a distance neither too great nor too short. For the law that follows too closely upon the heels of morality, no less than that which is too far behind, fails to be generally respected and enforced. Legal development is in constant need of being harmonized with all the other strands of history, to the end of the good life. This historic propriety is the ideal not only for the content of legislation, but also—though here the steps of change are fewer and longer—in the realm of fundamental juristic concepts such as that of national sovereignty.

To administer the Canadian Income Tax Law, Canada is divided into nineteen districts. The districts are irregular in shape and of different areas. Their shape was influenced by the desire to have a district follow the railway lines. Recognition was given also to the main centres and provinces. In the beginning, sub-offices were required to serve the people, but experience has shown that they are not a necessity and most of them have been closed. The districts have remained unchanged for about ten years. Each is in charge of an inspector directly responsible to Ottawa.The amount of the revenue collected in each district is not a true criterion of the wealth of the particular district. Some small districts have the head office of a few large corporations in them. The district of London, Ontario, for instance, has in it such companies as the Ford Motor Car and Imperial Oil. Their income is derived from world-wide sources. Consequently on a revenue collection basis the district appears to have more wealth in it than it really has. It is the same with Toronto and Montreal.Usually a company files and pays its tax in the district where it has its head office, although the business of the company may be located in some other district. For example, the mines of northern Ontario are located in the Ottawa district but their corporate head offices are in Toronto, so they file and pay their taxes there. There is not any compulsion to pay in any particular district. Districts are established for the convenience of the public and returns can be filed in the district most convenient for the taxpayer.

Naval fleets are maintained by development and replacement because their possessors dare not fail to make provision for a maritime war in which they may be participants. No means yet devised and accepted for the amicable adjustment of international differences have removed from responsible statesmen a sense of the necessity of anticipating such a contingency. Despite increasing efforts in every quarter to cultivate wills for peace and abhorrence of armed conflict, as well as a desire to adjust grave differences by judicial process or through commissions of conciliation, war is still regarded as a contingency which must be reckoned with, and as one which is as dangerous as it is seemingly remote. In making provision as against a contingency which none would welcome or hasten, the governments of maritime states do not necessarily encourage war or indicate approval of recourse to it. A particular conference of maritime states may in fact uplift the hopes of prospective belligerents which resent and oppose agreements restricting recourse to measures and instrumentalities on which they expect to rely. On the other hand, general arrangements respecting belligerent activities may serve to lessen a zeal for war and to remove its very approach further from the horizon. Everything depends upon the ambitions of the states which consent to confer. The point to be observed is that agreements for the regulation of maritime war in so far as they purport to proscribe or check the use of particular instrumentalities or recourse to particular measures, are not to be deemed bellicose in design or effect. Such regulatory agreements are advocates of peace rather than of war. Moreover, as will be seen, they may be the means of encouraging states to reduce armaments which would otherwise be maintained.

In November, 1930, Judge William Clark of the United States district court in New Jersey achieved nation-wide notoriety by a decision holding that the Eighteenth Amendment was not properly ratified and is therefore not a part of the Constitution. A prosecution had been brought against one Sprague, under an indictment charging unlawful transportation and possession of liquor in violation of the Volstead Act. This indictment Judge Clark quashed on the ground that the Eighteenth Amendment upon which the Volstead Act rests should have been ratified by conventions called for that purpose in three-fourths of the states, rather than by the legislatures of those states. This conclusion he supported by a long argument emphasizing the fundamental character of the constitutional change effected and the importance and necessity of having such a change accomplished by the agency of representatives elected by the people of the several states for that specific purpose. An appeal from Judge Clark's decision was at once taken by the government under the provisions of the Criminal Appeals Act of 1907. In fact, it was to meet just such situations as this that the act of 1907 was passed; for without the possibility of such appeal a decision of a lower federal court adverse to the constitutionality of a federal criminal statute might be final within the district concerned. No question of double jeopardy is raised by this procedure, since the accused is not placed in jeopardy until the trial jury is sworn and the quashing of the indictment occurs long before that point is reached.

Notices of withdrawal from the League of Nations during the year 1933 on the part of two States permanently represented on the Council, Japan and Germany, have turned attention once more to the provision for withdrawal in the Covenant of the League and to the necessity for interpretation of the scope and meaning of that provision.

The Statute and Rules of the Permanent Court of International Justice are only remotely analogous to the detailed codes of civil procedure with which lawyers practising before municipal courts are familiar. The instruments governing the procedure of the Permanent Court are sketch maps rather than meticulously detailed charts for the procedural voyage. Nor is the body of tradition of international arbitral procedure sufficiently developed to furnish reliable guides in all circumstances. Of necessity, the practice of the court must develop out of the cases which come before it. The method of growth of its procedural law finds typical illustration in the question of the treatment, and, in particular of the amendment, of the conclusions of the parties.

Prior to the outbreak of the European war on September 3, 1939, progress had been made, by means of international agreements for the conservation of whales, toward the creation of what M. Suarez in 1925 characterized as a new jurisprudence " of which today we have no inkling, owing to the fact that the necessity which now arouses our legitimate apprehensions was never contemplated." In 1931, due to the efforts of the League of Nations, a Convention for the Regulation of Whaling was opened for signature at Geneva; in 1937, an International Agreement for the Regulation of Whaling was signed at London; in 1938, a Protocol Amending the International Agreement was signed at London.

It is apparent that an examination of the development of the Italo-Ethiopian dispute before the League of Nations which does not consciously take into consideration the political motives from which the conflict arose and by which its course was dictated must remain largely incomplete and to that extent misleading. In the present instance, however, the exclusion of such considerations is not only dictated by the necessity of compressing within reasonable limits an account which might otherwise unduly tax the patience of the reader, but is also suggested by the belief that an inquiry into the operation of the League before and during the crisis of that conflict might in and of itself prove desirable.1

In view of the increased interest in the problem of finding a legal definition for "war" or the "state of war" it seems worth while to consider briefly the hitherto rather neglected contributions to the subject by American and English courts. The problem of defining war has been effectively treated from several other viewpoints, but these English and American cases are worth examination for the further light they may shed on the fundamental questions involved. The fact that these decisions were in part prompted by the necessity of interpreting the phrase "war" or "state of war" in domestic statutes and that in all cases it is merely the voice of a national court speaking, need not detract from the value of the survey. The basis upon which judgment was rendered in most cases was (or at least was asserted to be) that of the law of nations, and, in the words of Chief Justice Marshall, the decisions of national courts "show how the law of nations, in a given case, is understood in that country."

Starting, as we must start, from the proposition, that in the international sphere, treaties are at any rate no less binding than are contracts in the municipal sphere, may we nevertheless agree that treaties become obsolete, and, if yes, when and in what conditions? Has Article 19 of the Covenant of the League in any way diminished the respect due to treaty obligations? These are questions, which have a special importance at a time when the world has recently been resettled by treaty, and it is worth while to give a little time to their examination. Such an examination may at least serve to clear our ideas, to suggest what are the limits of the doctrine, and to emphasize the necessity, if those limits are to be defined, of a resort to an international court of justice.