The power to prohibit the liquor traffic as a means of
increasing war efficiency is part of the war power of Congress, and
its exercise without providing for compensation is no more limited
by the Fifth Amendment than a like exercise of a state's police
power would be limited by the Fourteenth Amendment. P.
251 U. S.
164.
The War-Time Prohibition Act, approved ten days after the
armistice with Germany was signed, Act of November 21, 1918, c.
212, 40 Stat. 1046, provided:
"That after June thirtieth, nineteen hundred and nineteen, until
the conclusion of the present war and thereafter until the
termination of demobilization, the date of which hall be determined
and proclaimed by the President of the United States, for the
purpose of conserving the manpower of the Nation, and to increase
efficiency in the production of arms, munitions, ships, food, and
clothing for the Army and Navy, it shall be unlawful to sell for
beverage purposes any distilled spirits, and during said time no
distilled spirits held in bond shall be removed therefrom for
beverage purposes except for export."
Held, in respect of liquors in bond, even if belonging
to one who made and owned them before the
Page 251 U. S. 147
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.
251 U. S.
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.
251 U. S.
158.
(3) That the prohibition was not in violation of the Fifth
Amendment as a taking of property without compensation. P.
251 U. S.
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.
251 U. S.
158.
A wide latitude of discretion must be accorded to Congress in
the exercise of the war powers. P.
251 U. S.
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.
251 U. S.
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 manpower of the nation has not been
completely restored to a peace footing. P.
251 U. S.
161.
The Eighteenth Amendment did not operate to repeal the War-Time
Prohibition Act. P.
251 U. S.
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.
251 U. S.
164.
The reference to the "demobilization of the army and navy" in
the
Page 251 U. S. 148
President's message communicating his veto of the National
Prohibition Act, is not the proclamation required by the War-Time
Prohibition Act. P.
251 U. S.
167.
In an exact sense, demobilization had not terminated then or
when these suits were begun, as 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.
251 U. S.
168.
No. 589, reversed.
No. 602, affirmed.
The cases are stated in the opinion.
Page 251 U. S. 153
MR. JUSTICE BRANDEIS delivered the opinion of the Court.
The armistice with Germany was signed November 11, 1918.
Thereafter, Congress passed, and on November 21, 1918, the
President approved the War-Time Prohibition Act (c. 212, 40 Stat.
1045, 1046), which provides as follows:
"That after June thirtieth, nineteen hundred and nineteen, until
the conclusion of the present war and thereafter until the
termination of demobilization, the date of which shall be
determined and proclaimed by the President of the United States,
for the purpose of conserving the manpower of the Nation, and to
increase efficiency in the production of arms, munitions, ships,
food, and clothing for the army and navy, it shall be unlawful to
sell for beverage purposes any distilled spirits, and during said
time no distilled spirits held in bond shall be removed therefrom
for beverage purposes except for export. . . ."
On October 10, 1919, the Kentucky Distilleries & Warehouse
Company, owner of distillery warehouses and of whisky therein,
brought in the district court of the United States for the Western
District of Kentucky a suit against Hamilton, collector of internal
revenue for that district, alleging that the above act was void or
had become inoperative, and praying that he be enjoined from
interfering, by reason of that act, with the usual process of
Page 251 U. S. 154
withdrawal, distribution, and sale of the whisky in bond. The
case was heard before the district judge on plaintiff's motion for
a preliminary injunction and defendant's motion to dismiss. A
decision without opinion was rendered for the plaintiff, and, the
defendant declining to plead further, a final decree was entered
granting a permanent injunction in accordance with the prayer of
the bill. A similar suit seeking like relief was brought on October
29, 1919, by Dryfoos, Blum & Co., in the District Court of the
United States for the Southern District of New York, against
Edwards, collector for that district. That case was heard on
November 5 before the district judge on like motions for a
preliminary injunction and to dismiss. An opinion was filed
November 14, 1919, holding the act in force, and on the following
day a final decree was entered dismissing the bill.
The essential facts in the two cases differ in this: in the
Kentucky case, the whisky was stored in a distillery warehouse; the
plaintiff was the maker of the whisky, had owned it prior to the
passage of the act, and had, since June 30, 1919, paid the revenue
tax on part of it. In the New York case, the liquors were in
general and special bonded warehouses, the plaintiffs were jobbers,
and it does not appear when they became the owners of the liquors.
Both cases come here by direct appeal under § 238 of the Judicial
Code, were argued on the same day, and may be disposed of together.
Four contentions are made in support of the relief prayed for: (1)
that the act was void when enacted because it violated the Fifth
Amendment; (2) that it became void before these suits were brought
by reason of the passing of the war emergency; (3) that it was
abrogated or repealed by the Eighteenth Amendment; (4) that, by its
own terms, it expired before the commencement of these suits. These
contentions will be considered in their order.
First. Is the act void because it takes private
property
Page 251 U. S. 155
for public purposes without compensation in violation of the
Fifth Amendment? The contention is this: the Constitution did not
confer police power upon Congress. Its power to regulate the liquor
traffic must therefore be sought for in the implied war powers --
that is, the power "to make all laws . . . necessary and proper for
carrying into execution" the war powers expressly granted. Article
I, § 8, cl. 18. Congress might under this implied power temporarily
regulate the sale of liquor and, if reasonably necessary, forbid
its sale in order to guard and promote the efficiency of the men
composing the army and the navy and of the workers engaged in
supplying them with arms, munitions, transportation and supplies.
McKinley v. United States, 249 U.
S. 397,
249 U. S. 399. But
the exercise of the war powers is (except in respect to property
destroyed by military operations,
United States v. Pacific
Railroad, 120 U. S. 227,
120 U. S. 239)
subject to the Fifth Amendment.
United
States v. Russell, 13 Wall. 623,
80 U. S. 627.
The severe restriction imposed by the act upon the disposition of
liquors amounts to a taking of property, and, being uncompensated,
would, at least as applied to liquors acquired before the passage
of the act, exceed even the restriction held to be admissible under
the broad police powers possessed by the states. Therefore, since
it fails to make provision for compensation, which in every other
instance Congress made when authorizing the taking or use of
property for war purposes, [
Footnote 1] it is void. Such is the argument of the
plaintiffs below.
Page 251 U. S. 156
That the United States lacks the police power, and that this was
reserved to the states by the Tenth Amendment, is true. But it is
nonetheless true that, when the United States exerts any of the
powers conferred upon it by the Constitution, no valid objection
can be based upon the fact that such exercise may be attended by
the same incidents which attend the exercise by a state of its
police power, or that it may tend to accomplish a similar purpose.
Lottery Case, 188 U. S. 321,
188 U. S. 357;
McCray v. United States, 195 U. S. 27;
Hipolite Egg Co. v. United States, 220 U. S.
45,
220 U. S. 58;
Hoke v. United States, 227 U. S. 308,
227 U. S. 323;
Seven Cases v. United States, 239 U.
S. 510,
239 U. S. 515;
United States v. Doremus, 249 U. S.
86,
249 U. S. 93-94.
The war power of the United States, like its other powers and like
the police power of the states, is subject to applicable
constitutional limitations (
Ex parte
Milligan, 4 Wall. 2,
71 U. S. 121-127;
Monongahela Navigation Co. v. United States, 148 U.
S. 312,
148 U. S. 336;
United States v. Joint Traffic Assn., 171 U.
S. 505,
171 U. S. 571;
McCray v. United States, 195 U. S. 27,
195 U. S. 61;
United States v. Cress, 243 U. S. 316,
243 U. S.
326); but the Fifth Amendment imposes in this respect no
greater limitation upon the national power than does the Fourteenth
Amendment upon state power (
In Re Kemmler, 136 U.
S. 436,
136 U. S. 448;
Carroll v. Greenwich Ins. Co., 199 U.
S. 401,
199 U. S.
410). If the nature and conditions of a restriction
Page 251 U. S. 157
upon the use or disposition of property is such that a state
could, under the police power, impose it consistently with the
Fourteenth Amendment without making compensation, then the United
States may, for a permitted purpose, impose a like restriction
consistently with the Fifth Amendment without making compensation,
for prohibition of the liquor traffic is conceded to be an
appropriate means of increasing out war efficiency.
There was no appropriation of the liquor for public purposes.
The War-Time Prohibition Act fixed a period of seven months and
nine days from its passage during which liquors could be disposed
of free from any restriction imposed by the federal government.
Thereafter, until the end of the war and the termination of
mobilization, it permits an unrestricted sale for export and,
within the United States, sales for other than beverage purposes.
The uncompensated restriction upon the disposition of liquors
imposed by this act is of a nature far less severe than the
restrictions upon the use of property acquired before the enactment
of the prohibitory law which were held to be permissible in cases
arising under the Fourteenth Amendment.
Mugler v. Kansas,
123 U. S. 623,
123 U. S. 668;
Kidd v. Pearson, 128 U. S. 1,
128 U. S. 23. The
question whether an absolute prohibition of sale could be applied
by a state to liquor acquired before the enactment of the
prohibitory law has been raised by this Court, but not answered,
because unnecessary to a decision.
Bartemeyer
v. Iowa, 18 Wall. 129,
85 U. S. 133;
Beer Co. v. Massachusetts, 97 U. S.
25,
97 U. S. 32-33;
Eberle v. Michigan, 232 U. S. 700,
232 U. S. 706;
Barbour v. Georgia, 249 U. S. 454,
249 U. S. 459.
See, however, Mugler v. Kansas, supra, pp.
123 U. S. 623-625,
123 U. S. 657.
But no reason appears why a state statute, which postpones its
effective date long enough to enable those engaged in the business
to dispose of stocks on hand at the date of its enactment, should
be obnoxious to the Fourteenth Amendment, or why such a federal law
should be obnoxious
Page 251 U. S. 158
to the Fifth Amendment. We cannot say that seven months and nine
days was not a reasonable time within which to dispose of all
liquors in bonded warehouses on November 21, 1918. The amount then
in storage was materially less than was usually carried, [
Footnote 2] because no such liquor
could be lawfully made in America under the Lever Food and Fuel
Control Act (Aug. 10, 1917, c. 53, § 15, 40 Stat. 276, 282) after
September 9, 1917. And if, as is suggested, the liquors remaining
in bond November 21, 1918, were not yet sufficiently ripened or
aged to permit them to be advantageously disposed of within the
limited period of seven months and nine days thereafter, the
resulting inconvenience to the owner, attributable to the inherent
qualities of the property itself, cannot be regarded as a taking of
property in the constitutional sense.
Clark Distilling Co. v.
Western Maryland Ry. Co., 242 U. S. 311,
242 U. S.
332.
Second. Did the Act become void by the passing of the
war emergency before the commencement of these suits? It is
conceded that the mere cessation of hostilities under the armistice
did not abridge or suspend the power of Congress to resort to
prohibition of the liquor traffic
Page 251 U. S. 159
as a means of increasing our war efficiency, that the support
and care of the army and navy during demobilization was within the
war emergency, and that, hence, the act was valid when passed. The
contention is that, between the date of its enactment and the
commencement of these suits, it had become evident that hostilities
would not be resumed, that demobilization had been effected, that
thereby the war emergency was removed, and that, when the emergency
ceased, the statute became void.
To establish that the emergency has passed, statements and acts
of the President and of other executive officers are adduced, some
of them antedating the enactment of the statute here in question.
There are statements of the President to the effect that the war
has ended [
Footnote 3] and
peace has come, [
Footnote 4]
that certain war agencies and activities should be discontinued,
[
Footnote 5] that our enemies
are impotent to renew hostilities, [
Footnote 6] and that the objects of the act here in
question have been satisfied in the demobilization of the army and
navy. [
Footnote 7] It is shown
that many war-time activities have been suspended, that vast
quantities of war materials have been disposed of, that trade with
Germany has been resumed, and that the censorship of postal,
telegraphic, and wire communications has been removed. [
Footnote 8] But we have also the fact
that, since these statements were made and these acts
Page 251 U. S. 160
were done, Congress, on October 28, 1919, passed over the
President's veto the National Prohibition Act, which, in making
further provision for the administration of the War-Time
Prohibition Act, treats the war as continuing and demobilization as
incomplete; that the Senate, on November 19, 1919, refused to
ratify the Treaty of Peace with Germany; [
Footnote 9] that, under the provisions of the Lever
Act, the President resumed, on October 30, 1919, the control of the
fuel supply which he had relinquished partly on January 31, 1919,
and partly on February 20, 1919; [
Footnote 10] that he is still operating the railroads, of
which control had been taken as a war measure, and that, on
November 18, 1919, he vetoed Senate Bill 641, because it diminished
that control, [
Footnote 11]
that, pursuant to the Act of March 4, 1919, c. 125, 40 Stat. 1348,
he continues to control, by means of the Food Administration Grain
Corporation, the supply of grain and wheat flour; that, through the
United States Sugar Equalization Board, Incorporated, he still
regulates the price of sugar; that, in his message to Congress on
December 2, 1919, he urgently recommended the further extension for
six months of the powers of the Food Administration; that, as
commander-in-chief, he stills keeps a part of the army in enemy
occupied territory and another part in Siberia, and that he has
refrained from issuing the proclamation declaring the termination
of demobilization for which this act provides.
The present contention may be stated thus: that, notwithstanding
the act was a proper exercise of the war power of Congress at the
date of its approval and contains its own period of limitation --
"until the conclusion of the present war and thereafter until the
termination of demobilization" --
Page 251 U. S. 161
the progress of events since that time had produced so great a
change of conditions and there now is so clearly a want of
necessity for conserving the manpower of the nation, for increased
efficiency in the production of arms, munitions, and supplies, that
the prohibition of the sale of distilled spirits for beverage
purposes can no longer be enforced, because it would be beyond the
constitutional authority of Congress in the exercise of the war
power to impose such a prohibition under present circumstances.
Assuming that the implied power to enact such a prohibition must
depend not upon the existence of a technical state of war,
terminable only with the ratification of a treaty of peace or a
proclamation of peace (
United States v.
Anderson, 9 Wall. 56,
76 U. S. 70;
The Protector,
12 Wall. 700,
79 U. S. 702;
Hijo v. United States, 194 U. S. 315,
194 U. S.
323), but upon some actual emergency or necessity
arising out of the war or incident to it, still, as was said in
Stewart v.
Kahn, 11 Wall. 493,
78 U. S.
507:
"The power is not limited to victories in the field and the
dispersion of the insurgent forces. It carries with it inherently
the power to guard against the immediate renewal of the conflict
and to remedy the evils which have arisen from its rise and
progress."
No principle of our constitutional law is more firmly
established than that this Court may not, in passing upon the
validity of a statute, inquire into the motives of Congress.
United States v. Des Moines Navigation Co., 142 U.
S. 510,
142 U. S. 544;
McCray v. United States, 195 U. S. 27,
195 U. S. 53-59;
Weber v. Freed, 239 U. S. 325,
239 U. S. 330;
Dakota Central Telephone Co. v. South Dakota, 250 U.
S. 163,
250 U. S. 184.
Nor may the court inquire into the wisdom of the legislation.
McCulloch v.
Maryland, 4 Wheat. 316,
17 U. S. 421;
Gibbons v.
Ogden, 9 Wheat. 1,
22 U. S. 197;
Brushaber v. Union Pacific Railroad Co., 240 U. S.
1,
240 U. S. 25;
Rast v. Van Deman & Lewis, 240 U.
S. 342,
240 U. S. 357.
Nor may it pass upon the necessity for the exercise of a power
possessed, since the possible abuse of a
Page 251 U. S. 162
power is not an argument against its existence.
Lottery
Case, 188 U. S. 321,
188 U. S.
363.
That a statute valid when enacted may cease to have validity
owing to a change of circumstances has been recognized, with
respect to state laws, in several rate cases.
Minnesota Rate
Cases, 230 U. S. 352;
Missouri Rate Cases, 230 U. S. 474,
230 U. S. 508;
Lincoln Gas Co. v. Lincoln, 250 U.
S. 256,
250 U. S. 268.
That the doctrine is applicable to acts of Congress was conceded
arguendo in
Perring v. United States,
232 U. S. 478,
232 U. S. 486,
and
Johnson v. Gearlds, 234 U. S. 422,
234 U. S. 446.
In each of these cases, Congress had prohibited the introduction of
liquor into lands inhabited by Indians without specified limit of
time; in one case, the prohibition was in terms perpetual; in the
other, it was to continue "until otherwise provided by Congress."
In both cases, it was contended that the constitutional power of
Congress over the subject matter necessarily was limited to what
was reasonably essential to the protection of the Indians. In the
Perring case it, was contended (p.
232 U. S. 482)
that the power was transcended because the prohibition embraced
territory greatly in excess of what the situation reasonably
required, and because its operation was not confined to a
designated period reasonable in duration, but apparently was
intended to be perpetual. In
Johnson v. Gearlds, the
contention was (p.
234 U. S. 442)
that a prohibition, originally valid, had become obsolete by reason
of changes in the character of the territory included in it and the
status of the Indians therein. In both cases, the court, while
assuming that, since the power to impose a prohibition of this
character was incident to the presence of the Indians and their
status as wards of the government, and did not extend beyond what
was reasonably essential to their protection, it followed that a
prohibition valid in the beginning would become inoperative when,
in regular course, the Indians affected were completely emancipated
from federal guardianship and control,
Page 251 U. S. 163
nevertheless held that the courts would not be justified in
declaring that the restriction either was originally invalid or had
become obsolete if any considerable number of Indians remained
wards of the government within the prohibited territory. In each
case, the decision rested upon the ground that the question what
was reasonably essential to the protection of the Indians was one
primarily for the consideration of the lawmaking body, that
Congress was invested with a wide discretion, and that its action,
unless purely arbitrary, must be accepted and given full effect by
the courts.
Conceding, then, for the purposes of the present case, that the
question of the continued validity of the War-Time Prohibition Act
under the changed circumstances depends upon whether it appears
that there is no longer any necessity for the prohibition of the
sale of distilled spirits for beverage purposes, it remains to be
said that, on obvious grounds, every reasonable intendment must be
made in favor of its continuing validity, the prescribed period of
limitation not having arrived; that, to Congress in the exercise of
its powers, not least the war power, upon which the very life of
the nation depends, a wide latitude of discretion must be accorded,
and that it would required a clear case to justify a court in
declaring that such an act, passed for such a purpose, had ceased
to have force because the power of Congress no longer continued. In
view of facts of public knowledge, some of which have been referred
to, that the treaty of peace had not yet been concluded, that the
railways are still under national control by virtue of the war
powers, that other war activities have not been brought to a close,
and that it cannot even be said that the manpower of the nation has
been restored to a peace footing, we are unable to conclude that
the act has ceased to be valid.
Third. Was the act repealed by the adoption of the
Eighteenth Amendment? By the express terms of the
Page 251 U. S. 164
amendment, the prohibition thereby imposed becomes effective
after one year from its ratification. Ratification was proclaimed
on January 29, 1919, 40 Stat. 1941. The contention is that, as the
amendment became on its adoption an integral part of the
Constitution, its implications are as binding as its language;
that, in postponing the effective date of the prohibition, the
amendment impliedly guaranteed to manufacturers and dealers in
intoxicating liquors a year of grace, and that not only was
Congress prohibited thereby from enacting meanwhile new prohibitory
legislation, but also that the then existing restriction imposed by
the War-Time Prohibition Act was removed.
See Narragansett
Brewing Co. v. Baker & O'Shaunessy, U.S.D.Ct.R.I.,
November 12, 1919.
The Eighteenth Amendment, with its implications, if any, is
binding not only in times of peace, but in war. If there be found
by implication a denial to Congress of the right to forbid before
its effective date any prohibition of the liquor traffic, that
denial must have been operative immediately upon the adoption of
the amendment, although at that time demobilization of the army and
the navy was far from complete. If the amendment effected such a
denial of power, then it would have done so equally had hostilities
continued flagrant or been renewed. Furthermore, the amendment is
binding alike upon the United States and the individual states. If
it guarantees a year of immunity from interference by the federal
government with the liquor traffic, even to the extent of
abrogating restrictions existing at the time of its adoption, it is
difficult to see why the guaranty does not extend also to immunity
from interference by the individual states, with like results also
as to then existing state legislation. The contention is clearly
unsound.
Fourth. Did the prohibition imposed by the act expire
by limitation before the commencement of these suits? The period
therein prescribed is
"until the conclusion of
Page 251 U. S. 165
the present war and thereafter until the termination of
demobilization, the date of which shall be determined and
proclaimed by the President of the United States."
It is contended both that the war has been concluded, and that
the demobilization has terminated.
In the absence of specific provisions to the contrary, the
period of war has been held to extend to the ratification of the
treaty of peace or the proclamation of peace.
Hijo v. United
States, 194 U. S. 315,
194 U. S. 323;
The Protector,
12 Wall. 700,
79 U. S. 702;
United States v.
Anderson, 9 Wall. 56,
76 U. S. 70. From
the fact that other statutes concerning war activities contain each
a specific provision for determining when it shall cease to be
operative, [
Footnote 12] and
from the alleged absence of
Page 251 U. S. 166
such a provision here, it is argued that the term "conclusion of
the war" should not be given its ordinary legal meaning; that
instead it should be construed as the time when actual hostilities
ceased or when the treaty of peace was signed at Versailles, on
June 28, 1919, by the American and German representatives or, more
generally, when the actual war emergencies ceased by reason of our
complete victory and the disarmament of the enemy, coupled with the
demobilization of our army and the closing of war activities, or
when the declared purpose of the act of
"conserving the manpower of the nation, and to increase
Page 251 U. S. 167
efficiency in the production of arms, munitions, ships, food,
and clothing for the army and navy"
shall have been fully satisfied. But there is nothing in the
words used to justify such a construction. "Conclusion of the war"
clearly did not mean cessation of hostilities, because the act was
approved ten days after hostilities had ceased upon the signing of
the armistice. Nor may we assume that Congress intended by the
phrase to designate the date when the Treaty of Peace should be
signed at Versailles or elsewhere by German and American
representatives, since, by the Constitution, a treaty is only a
proposal until approved by the Senate. Furthermore, to construe
"conclusion of the war" as meaning the actual termination of war
activities would leave wholly uncertain the date when the act would
cease to be operative, whereas Congress evinced here, as in other
war statutes, a clear purpose that the date of expiration should be
definitely fixed. The reason why this was not directed to be done
by a proclamation of peace is made clear by the use of the word
"thereafter." It was expected that the "conclusion of the war"
would precede the termination of demobilization. Congress therefore
provided that the time when the act ceased to be operative should
be fixed by the President's ascertaining and proclaiming the date
when demobilization had terminated.
It is insisted that he has done so. The contention does violence
to both the language and the evident purpose of the provision. The
"date of which shall be determined and proclaimed by the President"
is a phrase so definite as to leave no room for construction. This
requirement cannot be satisfied by passing references in messages
to Congress, nor by newspaper interviews with high officers of the
army or with officials of the War Department. When the President
mentioned in his veto message the "demobilization of the army and
navy," the words were doubtless used in a popular sense,
Page 251 U. S. 168
just as he had declared to Congress, on the occasion of the
signing of the armistice: "The war thus comes to an end." If he had
believed on October 28, 1919, that demobilization had, in an exact
sense, terminated, he would doubtless have issued then a
proclamation to that effect, for he had manifested a strong
conviction that restriction upon the sale of liquor should end.
Only by such proclamation could the purpose of Congress be attained
and the serious consequences attending uncertainty be obviated.
But, in fact, demobilization had not terminated at the time of the
veto of the Act of October 28, 1919, or at the time these suits
were begun, and, for aught that appears, it has not yet terminated.
The report of the Secretary or War made to the President under date
of November 11, 1919 (and transmitted to Congress on December 1),
in describing the progress of demobilization, shows (p. 17) that,
during the preceding ten days (November 1-10), 2,018 officers and
10,266 enlisted men had been discharged, the rate of discharge
being substantially the same as during the month of October, in
which 8,690 officers and 33,000 enlisted men were discharged.
The War-Time Prohibition Act being thus valid and still in
force, the decree in No. 589 is reversed, and the case is remanded
to the district court, with directions to dismiss the bill, and the
decree in No. 602 is affirmed.
No. 589.
Reversed.
No. 602.
Affirmed.
[
Footnote 1]
War Acts authorizing the seizure or requisition of property:
March 4, 1917, c. 180, 39 Stat. 1168, 1193; July 1, 1918, c.
113, 40 Stat. 634, 651 -- factories, ships, and war materials. June
15, 1917, c. 29, 40 Stat. 182, 183; April 22, 1918, c. 62, 40 Stat.
535; Nov. 4, 1918, c. 201, 40 Stat. 1020 -- street railroads,
equipment, etc., and the acquisition to title to lands, plants,
etc. August 10, 1917, c. 53, 40 Stat. 276, 279 (Food Control Act)
-- foods, fuels, factories, packing houses, coal mines, coal
supplies, etc. March 21, 1918, c. 25, 40 Stat. 451 -- railroads.
May 168 1918, c. 74, 40 Stat. 550, 551; May 31, 1918, c. 90, 40
Stat. 593 -- houses, buildings, properties, etc., in District of
Columbia. July 18, 1918, c. 157, 40 Stat. 913, 915 -- ships. July
16, 1918, c. 154, 40 Stat. 904 -- telephone and telegraph systems.
October 5, 1918, c. 181, 40 Stat. 1009, 1010 -- mines, mineral
lands, etc.
See also Act June 3, 1916, c. 134, 39 Stat. 166, 213,
for the mobilization of industries, which authorizes the seizure of
munition plants and provides that the compensation therefor shall
be "fair and just," and Act March 4, 1917, c. 180, 39 Stat. 1168,
1169, authorizing the acquisition of aeroplane patents by
condemnation, for which $1,000,000 was appropriated.
[
Footnote 2]
The amount distilled spirits of all kinds in bonded warehouses
June 30, 1919, was 72,358,151.1 gallons, as compared with
282,036,460.2, June 30, 1914; 253,668,341.3 gallons, June 30, 1915;
232,402,878.3 gallons, June 30, 1916; 194,832,682.6 gallons, June
30, 1917; 158,959,264.5 gallons, June 30, 1918. Report of the
Commissioner of Internal Revenue for 1919, p. 173. The following
explanation is given by the commissioner, p. 51, why more was not
withdrawn:
"The high rates of tax on spirits, fermented liquors, and wines
which were provided in the bill subsequently enacted into law as
the Revenue Act of 1918 prompted many dealers to make heavy
purchases of these commodities prior to the passage of the act and,
as a consequence of this action on the part of the dealers as well
as of the expansion of prohibition territory throughout the United
States, the withdrawals from bonded warehouses materially declined
after the passage of the Act."
[
Footnote 3]
Address to Congress, Official U.S. Bulletin, Nov. 11, 1918, p.
5.
[
Footnote 4]
Thanksgiving Proclamation, Official U.S. Bulletin, Nov. 18,
1918, p. 1.
[
Footnote 5]
Address to Congress, Dec. 2, 1918, Official U.S. Bulletin, Dec.
2, 1918, p. 6.
[
Footnote 6]
Armistice Commemoration Proclamation, Nov. 11, 1919.
[
Footnote 7]
Veto Message, October 27, 1919, Congressional Record, Oct. 27,
1919, p. 8063.
[
Footnote 8]
U.S. Official Bulletin, Nov. 12, 1918, p. 3; Nov. 22, 1918, p.
2; Nov. 27, 1918, p. 7; Dec. 12, 1918, p. 4; Dec. 20, 1918, p. 4;
Dec. 30, 1918, p. 7; United States Bulletin, Feb. 27, 1919, p. 6;
May 8, 1919; May 12, 1919, p. 14; Oct. 20, 1919, p. 17.
[
Footnote 9]
Congressional Record, Nov.19, 1919, p. 9321.
[
Footnote 10]
United States Bulletin, Nov. 10, 1919, p. 9; U.S. Official
Bulletin, Jan. 18, 1919, p. 1.
[
Footnote 11]
Congressional Record, Nov.19, 1919, p. 932.
[
Footnote 12]
The provisions fixing the date of expiration of the several war
acts are as follows:
(Aircraft Act, being chapter 16, of the Army Appropriation Act
of July 9, 1918, c. 143, 40 Stat. 889.) "Within one year from the
signing of a treaty of peace with the Imperial German
government."
(Departmental Reorganization Act of May 20, 1918, c. 78, 40
Stat. 556.)
"That this act shall remain in force during the continuance . .
. shall cease six months after a final treaty the termination of
the war by the proclamation of the treaty of peace."
(Emergency Shipping Fund Act of June 15, 1917, c. 29, 40 Stat.
182, as amended by the Act of April 22, 1918, c. 62, 40 Stat. 535,
and by the Act of November 4, 1918, c. 201, 40 Stat. 1020.) "All
authority . . . shall cease six months after a final treaty of
peace is proclaimed between this government and the German
Empire."
(Charter Rate and Requisition Act of July 18, 1918, c. 157, 40
Stat. 913.)
"All power and authority . . . shall cease upon the proclamation
of the final treaty of peace between the United States and the
Imperial German government."
(Railroad Control Act of March 21, 1918, c. 25, § 14, 40 Stat.
451, 458.)
". . . Federal control . . . shall continue for and during the
period of the war and for a reasonable time thereafter, which shall
not exceed one year and nine months next following the date of the
proclamation . . . of the exchange of ratifications of the treaty
of peace."
(Food Control Act of August 10, 1917, c. 53, 40 Stat. 276,
283.)
"Sec. 24. That the provisions of this act shall cease to be in
effect when the existing state of war between the United States and
Germany shall have terminated, and the fact and date of such
termination shall be ascertained and proclaimed by the
President."
(Trading with the Enemy Act of October 6, 1917, c. 106, § 2, 40
Stat. 411, 412.)
"The words 'end of the war,' as used herein, shall be deemed to
mean the date of proclamation of exchange of ratifications of the
treaty of peace, unless the President shall, by proclamation,
declare a prior date, in which case the date so proclaimed shall be
deemed to be the 'end of the war' within the meaning of this
act."
(Soldiers' and Sailors' Civil Relief Act of March 8, 1918, c.
20, 40 Stat. 440, 441, 449.)
"(5) The term 'termination of the war' as used in this Act shall
mean the termination of the present war by the treaty of peace as
proclaimed by the President. . . ."
"Sec. 603. That this act shall remain in force until the
termination of the war, and for six months thereafter."
(Saulsbury Resolution of May 31, 1918, c. 90, 40 Stat. 593.)
"That, until a treaty of peace shall have been definitely
concluded between the United States and the Imperial German
government, unless in the meantime otherwise provided by Congress.
. . ."
(Wheat Price Guarantee Act of March 4, 1919, c. 125, § 11, 40
Stat. 1348, 1353.)
"That the provisions of this Act shall cease to be in effect
whenever the President shall find that the emergency growing out of
the war with Germany has passed and that the further execution of
the provisions of this act is no longer necessary for its purposes,
the date of which termination shall be ascertained and proclaimed
by the President; but the date when this Act shall cease to be in
effect shall not be later than the first day of June, nineteen
hundred and twenty."