act was passed and paid revenue taxes upon them since June 30, 1919: (1) That the act was not an appropriation of such liquors for public purposes. P. 157. (2) That the time allowed for disposing of all liquors in bond on November 21, 1918, could not be declared unreasonable, as a matter of law, even if they were not sufficiently ripened or aged to be disposed of advantageously during the period limited. P. 158. (3) That the prohibition was not in violation of the Fifth Amendment as a taking of property without compensation. P. 157. (4) That it was within the war power when passed (notwithstanding the cessation of hostilities under the armistice), as a means of war efficiency and for the support and care of the Army and Navy during demobilization. P. 158. A wide latitude of discretion must be accorded to Congress in the exercise of the war powers. P. 163. The court cannot inquire into the motives of Congress, in determining the validity of its acts, or into the wisdom of the legislation; nor pass upon the necessity for the exercise of a power possessed. P. 161. It is settled that the war power carries with it the power to guard against immediate renewal of the conflict and to remedy the evils which have arisen from its rise and progress. Id. Assuming that the continuing validity of an act passed under the war power may depend not upon the existence of a technical state of war, terminable only with the ratification of a treaty of peace or by a proclamation of peace, but upon some actual war emergency or necessity, the court cannot say that the necessity for the prohibition had ceased when these suits were begun, in view of the facts that the treaty of peace has not been concluded, that various war activities, among them national control of railroads,-continue, and that the man power of the nation has not been completely restored to a peace footing. P. 161. The Eighteenth Amendment did not operate to repeal the War-Time Prohibition Act. P. 163. In defining the period of the prohibition, Congress in the War-Time Prohibition Act, doubtless expecting that the war would be definitely ended by a peace under a ratified treaty or a proclamation before demobilization was complete, intended that the prohibition should continue until the date of the termination of demobilization had been definitely ascertained by the President and made known by him through a proclamation to that end. P. 164. The reference to the "demobilization of the army and navy," in the Argument for Appellee in No. 589. 251 U.S. President's message communicating his veto of the National Prohibition Act, is not the proclamation required by the War-Time Prohibition Act. P. 167. In an exact sense, demobilization had not terminated then or when these suits were begun, as is shown by the report on the subject of the Secretary of War, made to the President and transmitted to Congress; nor does it appear that it has yet so terminated. P. 168. No. 589. Reversed. No. 602. Affirmed. THE cases are stated in the opinion. The Solicitor General and Mr. Assistant Attorney General Frierson, with whom Mr. W. V. Gregory was on the briefs, for appellant in No. 589 and appellee in No. 602. Mr. Levy Mayer and Mr. William Marshall Bullitt for appellee in No. 589: Congress has no power to prohibit the sale of whisky within a State, except under its war powers. By the Tenth Amendment the States reserved to themselves the police power over the liquor traffic with the right to abolish future manufacture, sale or possession. This power is absolute and exclusive, since, as before, the Fourteenth Amendment. But it is still an open question whether a State can make unlawful the possession, use or sale of liquors lawfully acquired (as in the present case) before the passage of the prohibitory statute. Bartemeyer v. Iowa, 18 Wall. 129; Beer Co. v. Massachusetts, 97 U. S. 25; Eberle v. Michigan, 232 U. S. 700, 706; Barbour v. Georgia, 249 U. S. 454, 459; Wynehamer. People, 13 IJ. Y. 378. Congress can waive the interstate character of liquor in order to subject it to the laws of a State when once introduced therein, or can prohibit its transportation to a State where its possession is prohibited. In re Rahrer, 140 U. S. 545; Clark Distilling Co. v. Western Maryland Ry. Co., 242 U. S. 311, 323. But Congress has no power, in peace time, to prohibit the sale of whisky. In re Rahrer, 146. Argument for Appellee in No. 589. 140 U. S. 545, 554; Fertilizing Co. v. Hyde Park, 97 U. S. 659, 667; Matter of Heff, 197 U. S. 488, 505; Hammer v. Dagenhart, 247 U. S. 251, 273-276; Keller v. United States, 213 U. S. 138, 144, 148. In order to guard and promote the health, welfare and efficiency of the men composing the army and navy, and to increase the efficiency of the workers in the production of arms, munitions, ships, food and clothing for them, Congress has the right temporarily to regulate the sale of liquor, and, if reasonably necessary to accomplish such objects, to forbid its sale. McKinley v. United States, 249 U. S. 397, 399; Selective Draft Law Cases, 245 U. S. 366; Schenck v. United States, 249 U. S. 47, 52; Grancourt v. United States, 258 Fed. Rep. 25; United States v. Casey, 247 Fed. Rep. 362; Pappens v. United States, 252 Fed. Rep. 55. But the exercise of this power, like all others, is subject to the Fifth Amendment. Ex parte Milligan, 4 Wall. 2; Johnson v. Jones, 44 Illinois, 142; Monongahela Nav. Co. v. United States, 148 U. S. 312, 336; McCray v. United States, 195 U. S. 27, 61. It necessarily follows that if, in the exercise of the war power, private property is taken, the owner thereof is entitled to just compensation therefor. Whisky is property and when taken for public use is entitled to the protection of the Fifth Amendment. Leisy v. Hardin, 135 U. S. 100, 110; Wynehamer v. People, 13 N. Y. 378, 383, 384; Commonwealth v. Campbell, 133 Kentucky, 50; Barber v. Commonwealth, 182 Kentucky, 200; Commonwealth v. Kentucky Distilleries & Warehouse Co., 143 Kentucky, 314. The War-Time Prohibition Act takes appellee's private property for public use, but makes no provision for just compensation to the owner. Therefore, the act is unconstitutional. The act prohibits appellee from either selling the whisky which it has in its own possession fully tax paid, or obtaining possession of its property which is in Argument for Appellee in No. 589. 251 U. S. the Government's bonded warehouses. The effect is that the appellee has been deprived of every attribute of ownership, except the necessity of paying taxes to the United States upon the very property which the Government refuses to allow the owner to use or sell. If this does not constitute a taking of a person's property, the English language has lost its meaning. Buchanan v. Warley, 245 U. S. 60, 74, 81; Wynehamer v. People, 13 N. Y. 387, 389, 396, 398; Foster v. Scott, 136 N. Y. 577; United States v. Cress, 243 U. S. 316; United States v. Lynah, 188 U. S. 445. The appellee was required by the federal statute to provide, at its own expense, bonded warehouses, which were under the exclusive control of the Government. Taney v. Penn National Bank, 232 U. S. 174; Dale v. Pattison, 234 U. S. 399. By statute, it was also authorized to leave its whisky in bond for eight years, and to bottle it in bond at any time after the first four years. The whisky in question was rightfully in appellee's bonded warehouses and it had the right to rely upon the "bottling in bond statute," and furthermore it could not have bottled a large part of the whisky because it had not been in the warehouses four years at the time the War Prohibition Act was enacted. It is therefore no answer to suggest that the appellee should have withdrawn the whisky from bond and sold the same before the War Prohibition Act was enacted. As the taking is solely under the war power, it is concededly for a public use. No provision for any compensation was made; but, on the contrary, Congress (February 24, 1919) imposed a heavy retroactive tax (double the then existing tax) on all whisky, including that already tax-paid; the tax was assessed and collected; and the owners are now prohibited from selling the very whisky on which they have paid that tax, a large part of which the appellee was compelled to pay as late as September 24, 1919. It is a false analogy to say that under the war power Congress is endowed with what are commonly 146. Argument for Appellee in No. 589. called the police powers of the States and consequently may exercise them as unlimitedly as do the States. For the police powers of the States are not subject to the Fifth Amendment, whereas the war powers of Congress are. It has not been decided that even the state police powers may prohibit sale of liquor made before the passage of the law. While it is true that Congress' exercise of the war power can accomplish anything which the States can accomplish under their police power, yet the qualifications imposed thereon are different. It may not, for instance, require excessive bail, refuse a public trial in a criminal case, or cause the accused to be a witness against himself. The instances might be multiplied where States are free in the exercise of their police powers, from requirements to which Congress, even in the exercise of its war power, is subject. The law is abundantly settled that while the Fifth Amendment does not require that the just compensation shall be actually paid in advance of the taking, nevertheless, the owner is entitled to some reasonable, certain and adequate provision for obtaining such compensation before his ownership or possession can be interfered with. The War-Time Prohibition Act has, by its own terms, ceased to be operative. The evil sought to be remedied was the danger of intoxication of soldiers, sailors and war workers during the war and during the subsequent period of demobilization. Cong. Rec., vol. 56, pp. 9627, 9641. Demobilization is the act of disbanding troops; the reduction of military armaments to a peace footing. Century Dictionary; 18 Corpus Juris, 484; Cong. Rec., loc. cit. The President's acts and declarations amount to a proclamation of "the date of the conclusion of the present war," in the sense of actual hostilities, and thereafter the "termination of demobilization." [Counsel quoted also statements made by the War Department and by General Pershing, to the effect that demobilization was at an end. |