and the Fulton National Bank of Atlanta. Decree for intervener (287 F. 158) was affirmed by the Circuit Court of Appeals (295 F. 611), and the Fulton National Bank of Atlanta brings certiorari. Reversed and remanded to District Court.

remand the parties to the primary jurisdiction bank the right to make the set-off as against in New York; third, on the merits has the

Hozier."

The trial court held that it had jurisdiction to entertain the intervention petition as a dependent controversy, and decreed:

"That the receivers in the above-stated consolidated cause recover from the Fulton National Bank of Atlanta the principal sum of twenty-six hundred fifty-six and 13/100 dollars ($2,656.13), together with interest at the rate

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*Mr. Justice McREYNOLDS delivered the opinion of the Court.

This cause arises from an intervention petition filed by respondent Hozier in a proceeding to administer the assets of Imbrie & Co., a partnership, pending in the United States District Court, Northern District of Georgia. The following statement from the opinion of that court (287 F. 158, 159) sufficiently indicates the material issues:

"On March 3, 1921, in the District Court of the United States for the Southern District of New York, was filed a creditors' bill against Imbrie & Co., stock and bond dealers and brokers, citizens of New York, New Jersey, and Massachusetts, whose principal place of business was New York. Receivers were appointed. On the same day, in the superior court of Fulton county, Ga., other creditors, citizens of Georgia, sought and obtained a receiver for assets of Imbrie & Co. in Georgia connected with a branch office operated in Atlanta. On March 7, 1921, the New York receivers, by direction of the New York court, applied for ancillary receivership in this court and were, with the state court receiver, made such ancil*279

lary receivers. On March 8th, *Imbrie & Co. removed to this court the case in the Fulton superior court. The two proceedings were then consolidated by consent, and numerous interventions have been allowed in this court, among them that of I. S. Hozier. His claim, in brief, is that he gave Imbrie & Co. in Atlanta, on February 21, 1921, a check for $2,656.13, to be used as his brokers in buying certain stocks; that Imbrie & Co. deposited it to their credit in Fulton National Bank on February 23d; that the proceeds of its collection were still to the credit of Imbrie & Co. at said bank, though

in equity belonging to Hozier, when the firm

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of same, that *said receivers pay said amount to I. S. Hozier, intervener, or his counsel of record."

The Circuit Court of Appeals affirmed this judgment. The cause is here by certiorari. It is insisted that the trial court erred (1) in assuming jurisdiction of the intervention petition; and (2) in holding the bank liable for the amount of the deposited check.

[1] We are of opinion that in no proper sense was the petition dependent or ancillary to the cause instituted for the purpose of administering the assets of Imbrie & Co. Consequently, the trial court could not entertain it.

[2] The general rule is that, when a federal court has properly acquired jurisdiction over a cause, it may entertain, by intervention, dependent or ancillary controversies; but no controversy can be regarded as dependent or ancillary unless it has direct relation to property or assets actually or constructively drawn into the court's possession or control by the principal suit. Hoffman v. McClelland, 264 U. S. 552, 558, 44 S. Ct. 407, 68 L. Ed. 845, and authorities there cited. And see Simkins' Federal Practice, pp. 740, 741. All parties seem to recognize this doctrine; they differ concerning its application to the facts presented by the present record.

The proceeding under consideration cannot properly be called a suit by a receiver, on authority of the appointing court, to collect assets or to defend property rights. It was begun to recover property, claimed by a customer of the insolvent firm, which had passed into the hands of a third person.

bank by an original proceeding and demandHozier might have proceeded against the ed adjudication of his claim to the alleged trust fund-pursued thus something which he insisted belonged to him and was unjustly withheld by the bank. This course was successfully taken in Union Stockyards Bank v. Gillespie, 137 U. S. 411, 11 S. Ct. 118, 34 L.

sues made by answers to the intervention re

ferred to a master. Exceptions to his report raise three principal questions: First, has this

Ed. 724.

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keep on hand at a place of business or at or in any social, fraternal or locker club, or otherwise dispose of any of the prohibited liquors and beverages described in section 1 of this act, or any of them, in any quantity; but this inhibition does not include, and nothing in this act shall affect, the social serving of such liquors and beverages in private residences in ordinary social intercourse."

Section 20 of same act reads as follows: "Sec. 20. Be it further enacted by the authority aforesaid, that no property rights of any kind shall exist in said prohibited liquors and beverages, or in the vessels kept or used for the purpose of violating any provision of this act or any law for the promotion of temperance or for the suppression of the evils of intemperance; nor in any such liquors when received, possessed or stored at any forbidden place or anywhere in a quantity forbidden by law, or when kept, stored or deposited in any place in this state for the purpose of sale or unlawful disposition or unlawful furnishing or distribution; and in all such cases the liquors and beverages, and the vessels and receptacles in which such liquors are contained, and the property herein named, kept or used for the purpose of violating the law as aforesaid, are hereby declared to be contraband and are to be forfeited to the state when seized, and may be ordered and condemned to be destroyed after seizure by order of the court that has acquired jurisdiction over the same, or by order of the judge or court after conviction when such liquors and such property named have been seized for use as evidence."

Three grounds are urged for reversal: First, the 1917 law under which liquor lawfully acquired can be seized and destroyed is an ex post facto law. Second, the law in punishing the owner for possessing liquor he had lawfully acquired before its enactment, deprives him of his property without due process. Third, it violates the due process requirement by the seizure and destruction of the liquor without giving the possessor his day in court.

[1] First. This law is not an ex post facto law. It does not provide a punishment for a past offense. It does not fix a penalty for the owner for having become possessed of the liquor. The penalty it imposes is for continuing to possess the liquor after the enactment of the law. It is quite the same question as that presented in Chicago & Alton R. Co. v. Tranbarger, 238 U. S. 67, 35 S. Ct. 678, 59 L. Ed. 1204. There a Missouri statute required railroads to construct water outlets across their rights of way. The railroad company had constructed a solid embankment twelve years before the passage of the act. The railroad was penalized for noncompliance with the statute. This court

said:

"The argument that in respect to its penalty feature the statute is invalid as an ex post facto law is sufficiently answered by pointing out that plaintiff in error is subjected to a penalty not because of the manner in which it originally constructed its railroad embankment, nor for anything else done or omitted before the passage of the act of 1907, but because after that time it maintained the embankment in a manner prohibited by that act."

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[2] *Second. Does the seizure of this liquor and its destruction deprive the plaintiff in error of his property without due process of law, in violation of the Fourteenth Amendment?

In Crane v. Campbell, 245 U. S. 304, 38 S. Ct. 98, 62 L. Ed. 304, Crane was arrested

"It shall be unlawful for any corporation, firm, person or individual to receive from any common carrier, corporation, firm, person or individual, or to have, control or possess, in this state, any of said enumerated liquors or beverages whether intended for personal use or otherwise, save as is hereinafter excepted."

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*The provision of 1915 which permitted the social serving of liquors and beverages in private residences and in ordinary social intercourse was expressly repealed by the act of 1917. Under other provisions liquor and wine may be held for medicinal, mechanical and sacramental purposes on special permits. There are not claimed to be any circumstances in this case excepting the liquors here seized from the condemnation of the act of 1917.

ky for his own use, and not for the purpose of giving away or selling the same to any person. This was under a provision of the statute of Idaho that it should be unlawful for any person to import, ship, sell, transport, deliver, receive or have in his possession any intoxicating liquors. It was held that the law was within the police power of the state. The court said:

"It must now be regarded as settled that, on account of their well-known noxious qualities and the extraordinary evils shown by experience commonly to be consequent upon their use, a state has power absolutely to prohibit manufacture, gift, purchase, sale, or transportation of intoxicating liquors within its borders without violating the guarantees of the Fourteenth Amendment"-citing Bartemeyer v. Iowa, 18 Wall. 129, 21 L. Ed. 929; Beer Co. v. Massachusetts, 97 U. S. 25, 33, 24 L. Ed. 989; Mugler v. Kansas, 123 U. S. 623, 662, 8 S. Ct. 273,

31 L. Ed. 205; Crowley v. Christensen, 137 U. S. 86, 91, 11 S. Ct. 13, 34 L. Ed. 620; Purity Extract Co. v. Lynch, 226 U. S. 192, 201, 33 S. Ct. 44, 57 L. Ed. 184; Clark Distilling Co. v. Western Maryland Ry. Co., 242 U. S. 311, 330, 331, 37 S. Ct. 180, 61 L. Ed. 326, L. R. A. 1917B, 1218, Ann. Cas. 1917B, 845.

The court pointed out that as the state had the power to prohibit, it might adopt such measures as were reasonably appropriate or needful to render exercise of that power effective; and that considering the notorious difficulties always attendant upon efforts to suppress traffic in liquors, the court was unable to say that the challenged inhibition of their possession was arbitrary and unreasonable or without proper relation to the legitimate legislative purpose, that the right to hold intoxicating liquor for personal use was not one of those fundamental priv

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ileges of a citizen of the United States which no state could abridge, and that a contrary view would be incompatible with the undoubted power to prevent manufacture, gift, sale, purchase or transportation of such articles-the only feasible way of getting them. It did not appear in that case when the liquor seized had been acquired but presumably after the prohibitory act.

In Barbour v. Georgia, 249 U. S. 454, 39 S. Ct. 316, 63 L. Ed. 704, it was held that the Georgia prohibitory law, approved November 18, 1915, but which did not become effective until May 1, 1916, was not invalid under the Fourteenth Amendment when applied to the possession of liquor by one who had acquired it after the approval of the law and before it became effective.

These cases it is said do not apply because the liquor here was lawfully acquired by Samuels before the act of 1917 making it unlawful for one to be possessed of liquor in his residence for use of his family and his guests.

In Mugler v. Kansas, 123 U. S. 623, 8 S. Ct. 273, 31 L. Ed. 205, it appeared that the breweries, the use of which as such was en

joined as a nuisance, and the beer the sale of which was also enjoined, were owned by Mugler before the Prohibition Act, making both unlawful. In answering the argument that even if the state might prohibit the use and sale, compensation should be made for them before putting it into effect to accord with the Fourteenth Amendment, Mr. Justice Harlan, speaking for the court, said: "As already stated, the present case must be governed by principles that do not involve the power of eminent domain, in the exercise of which property may not be taken for public use without compensation. A prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a taking or an appropriation of property for the pub

*196

lic benefit. Such legislation does not *disturb the owner in the control or use of his property for lawful purposes, nor restrict his right to dispose of it, but is only a declaration by the state that its use by any one, for certain forbidden purposes, is prejudicial to the public interests. Nor can legislation of that character come within the Fourteenth Amendment, in any case, unless it is apparent that its real object is not to protect the community, or to promote the general well-being, but, under the guise of police regulation, to deprive the owner of his liberty and property, without due process of law. The power which the states have of prohibiting will be prejudicial to the health, the morals, or such use by individuals of their property as the safety of the public, is not-and, consistently with the existence and safety of organized society, cannot be burdened with the condition that the state must compensate such individual owners for pecuniary losses they may sustain, by reason of their not being permitted, by a noxious use of their property, to inflict injury upon the community. cise of the police power by the destruction of property which is itself a public nuisance, or the prohibition of its use in a particular way, whereby its value becomes depreciated, is very different from taking property for public use, or from depriving a person of his property without due process of law. In the one case, a nuisance only is abated; in the other, unoffending property is taken away from an innocent

owner.

The exer

"It is true, that, when the defendants in these cases purchased or erected their breweries, the laws of the state did not forbid the manufacture of intoxicating liquors. But the state did not thereby give any assurance, or come under an obligation, that its legislation upon that subject would remain unchanged. Indeed, as was said in Stone v. Mississippi, above cited, the supervision of the public health and the public morals is a governmental power, 'continuing in its nature,' and 'to be dealt with as the *special exigencies of the moment may require'; and that, for this purpose, the largest legislative discretion is allowed, and the discretion cannot be parted with any more than the power itself.'"

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In view of this language and the agreed statement of facts the decision necessarily was that the sale of beer made and owned

before the Prohibition Law could be punished by that law as a nuisance and that no

compensation was necessary, if the Legislature deemed this course necessary for the health and morals of the community.

It is true that a remark in the opinion in Eberle v. Michigan, 232 U. S. 700, 706, 34 S.

Ct. 464, 58 L. Ed. 803, refers to the question

as still an open one, and the same reference is made in Barbour v. Georgia, 249 U. S. 454, 459, 39 S. Ct. 316, 63 L. Ed. 704. In Hamilton v. Kentucky Distilleries Co., 251 U. S. 146, 157, 40 S. Ct. 106, 64 L. Ed. 194, there is a similar reference, though with a suggestive citation to Mugler v. Kansas. And in Jacob Ruppert v. Caffey, 251 U. S. 264, 40 S. Ct. 141, 64 L. Ed. 260, after calling attention to this reservation, this court said: