Hostname: page-component-78c5997874-dh8gc Total loading time: 0 Render date: 2024-11-05T03:54:11.589Z Has data issue: false hasContentIssue false
  • English
  • Français

Problems of International Law in the Mexican Constitution of 1917

Published online by Cambridge University Press:  04 May 2017

John P. Bullington
John P. Bullington*
Affiliation:
Of the Texas Bar
Get access Rights & Permissions [Opens in a new window]

Extract

The differences between the United States and Mexico which have been occasioned by Article XXVI I of the Mexican Constitution of 1917 and the regulatory laws designed to give it effect are concerned with such important questions of international law as to warrant a rather extended examination of the principles involved and the contentions of the two parties. This is particularly true in view of the fact that the question has been said to be one upon which there can be no difference of rational opinion, and further that it is not a justiciable one.

Type
Research Article
Information
American Journal of International Law , Volume 21 , Issue 4 , October 1927 , pp. 685 - 705
Copyright
Copyright © American Society of International Law 1927

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 For an English translation of the Constitution of 1857 see Wheless, Compendium of the Laws of Mexico, 1910, pp. 1-57.Google Scholar

2 Art. XXVII. Wheless, op. cit., p. 8.Google Scholar

3 Organic Law in Diario oficial, December 31, 1925; Regulations of the Organic Law in Diario oficial, April 8, 1926. They are also contained in the official pamphlet of the Department of Industry, Commerce and Labor, entitled Ley del Petroleo y su Reglamento, 1926, Mexico.Google Scholar

4 Alien Land Law, Diario oficial, January 21, 1926. Regulations of Alien Land Law,Diario oficial, March 29, 1926.Google Scholar

5 In de Negri, RecopUacidn Agraria, 1924, Mexico, p. 34. An English translation is to be found in C. W. Hackett, The Mexican Revolution and the United States, 1910-1926,World Peace Foundation Pamphlet, Vol. IX, No. 5, 1926, pp. 403-405. The pamphlet contains an admirable summary of the correspondence exchanged between the United States and Mexico. Google Scholar

6 Chenon, Les D& membrementa de la PropritU Foncihre en France, Paris, 1923, pp. 26-32.Google Scholar

7 Id., p. 30n.Google Scholar

8 Id., p. 99 et seq.Google Scholar

9 This statute was reenacted in New Jersey. Statutes on Conveyances, Sec. 69. All feudal tenures were abolished by statute in Connecticut, New York and Georgia. Stimson,American Statute Law, I, p. 146. Also existing estates-tail have by legislative act been turned into fees. DeMill v. Lockwood (1853), Fed. Case No. 3782; existing joint tenancies have been turned into tenancies in common, abrogating right of survivorship, Miller v. Miller (1819), 16 Mass. 59; or the property may be sold and proceeds divided, Richardson v. Monson (1854), 23 Conn. 94. The scope of changes apt to be attempted by legislative action is usually determined by the proportion of landless population and available land.Thus it would be surprising to find in Canada or the United States the major operations that have recently taken place in the small states of Central Europe. If the modern tendency to accept sociological and economic criteria as influencing judicial decision be admitted, these differences in economic structure must be taken into account in attempting to determine the legal effect of such changes in land tenure.Google Scholar

10 33 and 34 Viet. Chap. 46. See also 44 and 45 Viet. Chap. 49.Google Scholar

11 Hutchison, The “Socialism”of New Zealand, New York, 1916, pp. 3-13, 41-49.Google Scholar

12 For a brief account of these acts see Sir Leslie Scott, The New Law of Property Act Explained, London, 1925. See also, Holdsworth, “The Reform of the Land Law: An Historical Retrospect,”42 Law Quart. Rev., 158-183.Google Scholar

13 See esp. Art. 153 of the German Constitution. Cf. Art. 99 of the Constitution of Poland.See also Yovanovitch, Constitution du Royaume des Serbs, Croates et Slovenes, Paris, 1924,pp. 320-334; Martna, L'Esthonie, pp. 238-40; Harrison, Lithuania, Past and Present,London, 1922, pp. 129-132; Papsinek, La Tchecoslavie (These), Paris, 1923, p. 81. Translationsof the various new constitutions are to be found in McBain, The New Constitutionsof Europe, New York, 1922.Google Scholar

14 Chap. V., Sec. 109, Constitution of Czechoslovakia.Google Scholar

15 Péritch, “Les Dispositions Soeiales et Economiques dans la Constitution Yougoslave,”43 Revue du Droit Public, 486-494.Google Scholar

16 “The power is, and must be from its very nature, incapable of any exact definition orlimitation.”Slaughter House Cases (1872), 16 Wall. 36, 62. “It is asked . . . Where arewe going to draw the line? . . . With regard to the police power, as elsewhere in the law,lines are pricked out by the gradual approach and contact of decisions on the opposite sides.Noble State Bank v. Haskell (1911), 219 U. S. 104, 112.Google Scholar

17 E.g., Village of Euclid v. Ambler Realty Co. (1926), 47 Sup. Ct. 114. Also 25 Col. LawRev. 470. See the interesting article by Judge Hough, “Due Process of Law Today,”Harv.Law Rev., 1919,218, especially the closing remarks of page 233. Compare, however, Brown,“Due Process of Law, Police Power and the Supreme Court,”40 Harv. Law Rev., 1927, 943.Google Scholar

18 Teissier, La ResponsabiliU de la Puissance Puhlique, Paris, 1906; Duguit, Traiti de Droit Constitutionnel, T. II, p. 210 ff.; Gabba, Nuove Questioni di Dirritto Civile, Torino, 1914,II, p. 17 ff.; Barthelemy, “ La Responsabiliti Picuniaire de VEtat d Raison du PrSjudiceCausi 4 une CaUgorie de Citoyens par une Riforme Legislative,” 24 Rev. du Droit Pub. (1907),92; JeSze, “ Dela Responsabiliti de VEtat Italien,” etc., 29 id. (1912), 433; Duguit, “ Responsabilité Pmvant Naltre d I'fOccasion d'fune Loi,” 27 id. (1910), 637; Marmion, Etude sur Let Lois d'fOrdre Publique en Droit Civil Interne (Thhse), Paris, 1924; Nory, Le Droit de Propritti et I'Interit General {These), Lille, 1923; Bielsa, Limitadones Impuestas a la Proprieda en Interes Piiblico, Buenos Aires, 1925; Giraud, De La Responsabiliti de VEtat a Raism des Dommages Naissant de la Loi {Thhse), Paris, 1917; Giaquinto, La Responsibility degli entiPubblici, 2a. ed. 1912, esp. I, 1-38, II, 199-242, III, 1-37; Arlet, De la Responsibility del'Etat Legislateur {These), Bordeaux, 1914; Bullrich, La Responsabilidad del Estado, Buenos Aires, 1920, esp. Ch. VI and Ch. IX; Agard, Documents Relatifs d la Question des Indemnity etc. (These), Toulouse, 1911; Brulle, Le ResponsabiliU de VEtat d raison des Actes Ligislatifs (These), Bordeaux, 1914; Mayer, Deutsches Verwaltungsrecht, 3 auf., Miinchen, 1924, II, pp.118-134; Sourdois, De l'Evolution, du Fondement et de VEtendue de la Responsabiliti de 'Etat,Bordeaux, 1908.Google Scholar

19 Duguit in 27 Rev. du Droit Pub. 637; Scelle, “ A Propos de V Etablissement du Monopole,”etc., 30 id. (1913), 637. Equally inconclusive is the attempt to require laws to meet some metaphysical standard such as the “ juridical conscience”h of the nation. E.g., Lassalle, System der Erworbenen Rechts, Leipzig, 1861, p. 211 ff. Cf. G6ny, Science et Technique en Droit Privi Positif, Paris, 1924, IV, 106. Much of the difference of opinion may be reduced to a mere difference of terminology and definition. Cf. Arlet, op. tit., 1-10.Google Scholar

20 Vital, “ Da Responsabilidad do Estado no Exerdtio da Fungao Legislativa,”h II Boletim da Faculdade de Dereito da Universidad de Coimbra, 267-280, 513-527, esp. p. 520 et seg. Cf.Grivaz, “ La Question des Eglises de Savoie et la Theorie des Droits Acquis,”h 4 Rev. Gin. de Droit Int. Pub. (1897), 645-680, esp. p. 657 ff.Google Scholar

21 The distinction is discussed in Borchard, Diplomatic Protection of Citizens Abroad, 1915,p. 117, and is criticized in Sourdois, De VEvolution, du Fondement et de VEtendue de la Responsability de VEtat, etc., Bordeaux, 1908, pp. 119-120. Google Scholar

22 Brulle, op. cit., p. 35 ffGoogle Scholar

23 It would be futile to attempt to find any logical distinctions between laws in the practice.The French Government paid Fr. 6,000,000 in indemnities when slavery was abolished in the colonies (49 Duvergier, Collection des Lois, 1849, p. 144), yet no indemnity was allowed when private telegraphic enterprise was abolished (Duvergier, 1837, p. 109). The law of December 3, 1908, requiring railroads to change their routes provided for compensation (108 Duvergier, 1908, p. 460). Cf. the American practice of denying compensation in similar cases. (E.g., New York and New England Ry. v. Bristol (1894), 151 U. S. 556; C. B. and Q. Ry. v. Nebraska (1896), 170 U. S. 57.) Other examples are too numerous to cite.Google Scholar

24 Dicret of 29 December, 1810. 17 Duvergier, 1810, p. 254. Likewise the law of 20 July, 1909, abolished the painter's lead industry without compensation. Teissier, op. cit.,16. It may be noted here that several American States have forbidden the sale of cigarettes without compensation. E.g. Tennessee, Civil Code, §§ 6798—49.Google Scholar

25 Teissier, op. cit., p. 17.Google Scholar

26 Jeze in 29 Rev. du Dront Pub. 433, 451. He calls attention to the fact that no legal right of indemnity was recognized by the law, and that compensation was made only for the bare physical properties taken. It is interesting to note that the monopoly has recently been placed in the hands of a Swedish-American syndicate.Google Scholar

27 Audinet, “ Le Monopole des Assurances en Italie,” 20 Rev. Gin. de Droit Int. Pub. (1913),p. 5. 28 Scelle in 30 Rev. du Droit Pub. 637.Google Scholar

28 Scelle in 30 Rev. du Droit Pub. 637.Google Scholar

29 Laws of Oct. 25, 1885, and Dec. 23, 1886. Cf. State ex rel. George v. Aiken (1894),42 So. Car. 222, 20 S. E. 221.Google Scholar

30 The compensation was partial only, and “ par mesure d'6quite.” Federal law of 24 June,1910. See 40 Ann. de L6g. Etrangere, 359.Google Scholar

31 Mugler v. Kansas (1887), 123 U. S. 623. Reference was made by the Mexican Ministerto the United States prohibition measures. Note of February 12,1926. In reply, SecretaryKellogg stated that the law was not in point since the liquor trade was not a “ property right,” but an “ activity subject to license,” and “ also subject to police powers.” Note of March 27, 1926. A recent Kansas statute required farm produce commissioners to procure licenses. Payne v. Kansas (1918), 248 U. S. 112. Under the theory mentioned, their business would now be subject to repression, though not before. States would merely have to license a business first; then destroy it. The matter of “ license” would not explain the suppression of the manufacture of oleomargerine without compensation. Powell v. Pennsylvania (1887), 127 U. S. 678. In Continental legal systems, the fact that an occupation is “ licensed” makes it easier for courts to hold the state responsible for an interference with it.BruEe, op. cit., p. 35 ff. The real explanation is that it was subject to “ police powers,” and to argue that it is not in point here is to argue that the Mexican laws are not exercises of the police power. Google Scholar

32 Murphy v. California (1912), 225 U. S. 623. See especially the language of Lamar, J., on pp. 628-29, to the effect that property may be taken even in anticipation of an “ evil.”Google Scholar

33 State v. Dobard (1893), 45 La. Ann. 1412; 14 So. 253.Google Scholar

34 J6ze in 29 Rev. du Droit Pub. 433, 446. It is submitted that the distinction is not a sound one. The suppression of an injurious industry can as well inure to the financial as well as physical benefit of the public as the taking over of an industry to be run by the state for profit. In the latter case the operation may be a burden on the public financially because of faulty operation by the state. (E.g., State owned railways in France.) See a note by Haurion in Sirey, Receuil Gtn. (1923), Pt. 3, p. 41.Google Scholar

35 Walls v. Midland Carbon Co. (1920), 254 U. S. 300.Google Scholar

36 Linsley v. Natural Carbonic Gas Co. (1911), 220 U. S. 61.Google Scholar

37 Noble State Bank v. Haskell (1911), 219 U. S. 104.Google Scholar

38 Dayton, Goose-Creek Ry. Co. v. United States (1924), 263 U. S. 465. This, and the case cited in note 37, supra, are authority for the proposition that the state can constitutionally “ take the property of one man and give it to another.”Google Scholar

39 E.g., Hadacheck v. Los Angeles (1915), 239 U. S. 394 (prohibiting use of property for manufacture of bricks from the soil); Reinman v. Little Rock (1914), 237 U. S. 171 (prohibiting livery stables within certain districts, including those already established); Powell v. Pennsylvania (1887), 127 U. S. 678 (prohibiting manufacture or sale of oleomargerine, including that already manufactured); Smith v. Wayne Probate Judge (1925), 231 Mich. 409, 204 N. W. 140 (sterilization of defectives for eugenic purposes).Google Scholar

40 Village of Euclid v. Ambler Realty Co. (1926), 47 Sup. Ct. 114. The court assumed that the plaintiff's computation of loss was correct for purposes of decision. A large number of cases involving destruction of and interference with property interests in the United States are collected by Judge Swayze in 26 Harv. Law Rev. 1. An unusual case is that of Louisville nad Nashville Ry. Co. v. Mottley (1911), 219 U. S. 467, where an individual had accepted free pass for life as settlement for claim for personal injuries. It was held that the Interstate Commerce Act prohibiting free passes was applicable to this pass also.Google Scholar

41 Holmes, J., in Tyson & Bro. v. Banton (1926), 47 Sup. Ct. 426,433.Google Scholar

42 Dana's Wheaton (8th ed.), p. 378 et seq.; Fauchille, Trait6 de Droit Int. Pub. (8e ed.), II,Ch. VI; Hall, International Law (7th ed.), Ch. I l l ; Oppenheim, International Law (3ded.),II, pp. 157-158; Moore, International Law and Some Current Illusions, pp. 5,13-25; Latifi,Effects of War on Private Property, London, 1907; Fiore, International Law Codified(Borchard's trans.), p. 293, etc.Google Scholar

43 E.g., the recent speech of President Coolidge: “ It has been the policy of America to hold that private property should not be confiscated in time of war. This principle we have scrupulously observed.” N. Y. Times, December8,1926, p. 14. Cf., however, United States v. Chemical Foundation, Inc. (1926), 272 U. S. 1. England also denies that it is confiscation,but see the Special Report of the Committee, etc., Great Britain, Board of Trade, London,His Majesty's Stat. off., 1924.Google Scholar

44 “Moore, Digest of International Law, I, Sec. 95. Sayre, “ Change of Sovereignty andPrivate Ownership of Land,” 12 Amer. Joum. Int. Law, 475.

45 (1910), 216 U. S. 167. See Bordwell, “ Purchasable offices in Ceded Territory,” 3 Amer. Joum. Int. Law, 119. Chile’s attempt in 1886 to apply its legislation as to private rights in conquered territory was not successful. Moore, Digest, I, p. 421.Google Scholar

46 Fauchille, op. cit., I, Sec. 261; Moore, Digest, II, Sec. 75. In exercising this right, the state always proceeds at its own peril, and an exercise of it contrary to positive international law entrains international responsibility. Cf. Hyde, International Law, I, 352. See also Lippman, “ Vested Rights and Nationalism in Latin America,” Foreign Affairs, April, 1927, p. 353, who clearly sees the basic issues involved.Google Scholar

47 Fiore, op. cit., Sec. 1165, but cf. Sec. 1166. Google Scholar

48 Ibid., Sec. 1163.Google Scholar

49 39 State Papers (1849-50), pp. 410-482, 906. A similar case arose from the taking of certain property belonging to Mr. Charlton, the British Consul, by the Hawaiian Government. There was a judicial proceeding, but considerable evidence of political interference with the court. Great Britain, 31 State Papers, 1025, 1032. On the Finlay case, see the criticism of Baty, International Law, New York, 1909, p. 85.Google Scholar

50 Moore, Digest, VI, p. 262. Google Scholar

51 Moore, Int. Arbitrations, II, p. 1870.Google Scholar

52 Meili, Consultation Bedigie a la Demande du Gouvernement Portugais, Zurich, 1892, pp.25-38.Google Scholar

53 Sentence Finale du Tribunal Arbitral du Delagoa, Berne, 1900, p. 191. It was said in reply to the contention noted above that “ Que Von veuille, en effet, taxer I'acte gouvernemental de meswre arbitraire et spoliatrice ou d'acte souverain dicti par la raison d'Etat d, laquelle toute concession de chemin de fer demeurerait subordonnie, voire mime qu'on consid'ere le cas actuel cmnme un cas d'expropriation legale, toujours est-il que cet acte a eu pour effet de diposstder des particuliers de leurs droits et privileges d'ordre privb d eux confirms par la concession et que, A defaut de dispositions l&gales contraires—dont VExistence n'a pas ete allejuie dans Vesphce— VEtat, auteur d'une telle dipossession, est tenu A la reparation integrate du prejudice par luicausi.” p. 166.Google Scholar

54 Archives Diplomatiques, 1901-1902, pp. 74-90.Google Scholar

55 Scott, The Hague Court Reports, p. 1.Google Scholar

56 U. S. Foreign Relations, 1885, pp. 525-26.Google Scholar

57 Great Britain, State Papers, Vol. 28, pp. 1163-1242; Vol. 29, pp. 175-204,1225; Vol. 30,p. 119. Google Scholar

58 Count Ludolf to Viscount Palmerston, Sept. 17, 1838, 28 State Papers, 1214.Google Scholar

59 Ibid., p. 1222. This seems also to be the position of the American oil companies with respect to the Mexican petroleum laws. The validity of the argument must depend, however, upon the proof of an actual loss. The monetary loss in the Sicilian case was proved, but in the Mexican case the existence of an actual loss is one of the debatable issues. Cf. Giraud, op. cit., pp. 174 ff.Google Scholar

60 The Hague Court Reports, Pamphlet of Carnegie Endowment for Int. Peace, No. 37. Washington, 1921. France confiscated and nationalized all ecclesiastical properties by the decree of 24 November, 1789, no indemnity being paid. Giraud, op. cit., 244.Google Scholar

61 Fachiri, “ Expropriation and International Law,” British Yearbook of Int. Law (1925), pp. 159, 168. Google Scholar

62 Id., p. 169. Google Scholar

63 Great Britain, 62 State Papers, 459, 465-71, 472. Google Scholar

64 Great Britain, 62 State Paper, pp. 496-500, 534.Google Scholar

65 On the Uruguay law see Scelle, “ A Propos de VEtablissement du Monopole des Assurances en Uruguay,” 30 Rev. du Droit Pub. (1913), 637.Google Scholar

66 Text of the law is to be found in the article by Audinet in 20 Rev. du Droit Int. Pub.(1913), p. 5n.Google Scholar

67 Id., p. 8. Google Scholar

68 Jtize in 29 Rev. du Droit Pub. 436. Google Scholar

69 Id. Google Scholar

70 Jeze, article cited.Google Scholar

71 Wehberg, Das Volkerrecht und das Italienische Staatsversicherungsmonopol, Wien, 1912.Google Scholar

72 Rolin, “ Les Droits des Socittis Etrangbres,” 14 Rev. de Droit Int. (1912), 82, summarizing Clunet’s Consultation Pour les SodHis Etrangbres d’Assurances sur la Vie Etablies en Italic, Paris, 1912. Audinet, article cited.Google Scholar

73 No physical property was taken, so that there was no way of ascertaining with any degree of certainty the amount of damages to follow. The largest value was perhaps what is designated in the United States as “ good-will.” This type of value is in the United States usually not compensated for in cases involving eminent domain. 35 Yale Law Joum. 234. On the Italian question see Verdross, “ Zur Konfiscaiion Auslandischen Privateigentums nach Friedmsvolkerrecht,” 4 Zeit. fiir off. Recht (1925), p. 320, 333 note 3. Google Scholar

74 Rolin in 14 Rev. de Droit Int. 82, 86.Google Scholar

75 Moore, Int. Arbitrations, II, p. 1855.Google Scholar

76 45 Clunet, 983.Google Scholar

77 Papers Relating to the Hague Conference, June-July, 1922, H. M. Stat. off. 1922.Google Scholar

78 Mitrany, “ The New Rumanian Constitution,” 6 Joum. of Comp. Leg. (N. S. 1924), 110.Google Scholar

79 Gane, Nationalization du Sous-sol, Paris, 1924, pp. 73-74. The Mining Law of July 4,1924, requires that foreign corporations having acquired interests in Rumanian petroleum must within ten years change the company to a Rumanian one, of which the president and a majority of the board of directors, as well as 55 per cent of stockholders, must be Rumanian nationals. (Art. 33) Rommenhoeller, La Grande-Roumanie, La Haye, 1926, pp. 444-464.Google Scholar

80 Oppenheim, op. cit., I, 214—21; Fauchille, op. cit., I, pp. 410-427, and authorities there cited. Cf. Westlake, International Law, Cambridge, 1904, I, p. 296. Google Scholar

81 On the point see Feilchenfeldt, “ Foreign Corporations in International Public Law,”8 Journ. Comp. Leg. (1926), 81, 102-103. He suggests that the status of international law on the matter is so uncertain that treaties are advisable to assure the position of foreign corporations with respect to municipal law. Id., 272.Google Scholar

82 The phrase is used in this sense by Borchard in the New Republic, April 13, 1927, p. 214.Google Scholar

83 As to this standard, or minimum limit, with respect to the legal position of aliens, see Borchard, op. cit., p. 39; and as to their property in particular, Westlake, Collected Papers on International Law, Cambridge, 1914, pp. 9-10; Pillet, Principes de Droit International Prive, Paris, 1903, p. 171. See also the Declaration of Cannes, 1922, note 88, infra.Google Scholar

84 E.g., Pradier-Fodere, Traiti de Droit Int., I, 340.Google Scholar

85 Borchard, op. cit., pp. 104-107. Recent decisions of the United States-Mexico Claims Commission establish the ineffectiveness of “ national” treatment as a legal bar to recovery for denial of justice. Roberts v. Mexico (Docket No. 185); Garcia v. United States (Docket No. 292). For the opposite view, see Strupp, Das Volkerrechtliche Delikt, Berlin, 1920, 118-120, esp. p. 118, note 3. Google Scholar

86 It is possible that a law seemingly applicable to nationals and foreigners alike might be actually directed at foreigners; e.g., the nationalization of an industry in which no nationals were engaged. If the intent to interfere with foreigners as such could be proved, it would no doubt greatly influence an international court. It appears from the official Mexican reports that in 1923 only 1.1 per cent of the total capital invested in petroleum enterprises in Mexico was Mexican. (Mexican Year Book, Los Angeles, 1920-21, p. 303.) When the Italian insurance monopoly was put into force the majority of insurance business in the country was done by foreign companies. (Audinet, article cited, p. 9.) The debates preceding the Rumanian Constitution of 1923 make it appear that Art. 19 was intended not so much as a social measure as an attempt to safeguard the national interests against the operations of foreign oil companies. (Gane, op. cit., pp. 94^101.) of course it would first have to be proved that some actual injury resulted to the foreign companies or individuals. That issue in the Mexican case would have to be decided before the question of whether or not the act was directed at aliens as such would be considered.Google Scholar

87 Care must be taken to distinguish between the power of eminent domain and the police power. While they tend to overlap, they are in all modern legal systems treated separately. The terms are simply convenient shorthand used to denote governmental acts injuring private property, the former implying that compensation must be paid, the latter implying that none is necessary.Google Scholar

88 To this effect was the Declaration of Cannes made by the Allied Powers in 1922 and aimed particularly at Russia. Fauchille, Traiti de Droit Int. Pub. (8° 6d., 1922), I, 436n. It is not supposed that this declaration created international law, but it may serve as an indication of it as understood by the signatory Powers. In form, it was in the nature of a voeu. See the discussion of Decenciere-Ferrandiere, La Respomabiliti International des Etats (These), Paris, 1925, p. 92. The establishment of a state monopoly in a certain field, or of state ownership and private operation in a single industry, are far different from a complete abolition of the system of private property.Google Scholar

89 Attention must be called to the fact that the epithet “ confiscation” is but a loosely rclative term. To the private owner, the governmental act interfering with his property is always “ confiscatory,” while the state may regard it as a legitimate exercise of the “ police power” and therefore not “ confiscation.” (E.g., Lee J. Vance, in 25 Yale Law Journ. 285, regards Prohibition as confiscatory, yet the Supreme Court regards it as an exercise of the “ police power.” Mugler v. Kansas, supra.) “ Police power,” “ eminent domain,” “ confiscation,” and like terms, are but convenient labels which are attached to legislative acts for the purpose of differentiation. They possess no magic in themselves for the characterization of a legislative act before the final legal authority has applied the label believed by it to be appropriate. Before that final authority has made a pronouncement the terms are purely epithetical and argumentative.Google Scholar

90 Information from State Department, Washington. At the time of the abolition of slavery there was a fairly general opinion over the world in favor of its abolition. Not so in the case of the abolition of intoxicating liquors; there being much diversity of opinion, and in Europe the theory is found difficult to understand. Nevertheless, it is everywhere recognized that the substance is capable of injurious effects, which perhaps accounts for the failure to protest. It is believed that scarcely any suppression of industries would be made the subject of international reclamations. In practice nations have always respected the judgment of the prohibiting state. Google Scholar

91 Pennsylvania Coal Co. v. Mahon (1922), 260 U. S. 394, 413. “ When it (the damaging interference) reaches a certain magnitude, in most, if not all cases there must be an exercise of eminent domain and compensation to support the act. So the question depends on the particular facts.

92 There is, of course, even in cases involving wide differences, the possibility of the exercise of mutual concession and good will resulting in the amicable settlement of the dispute. Judicial proceedings are always in order if an impasse is reached