(251 U. S. 173) HARDIN-WYANDOT LIGHTING CO. v. VILLAGE OF UPPER SANDUSKY. (Argued Oct. 13, 1919. Decided Dec. 15, 1919.) wires and lamps, and until the year 1912 lighted the streets of the village and sold current to private consumers. In that year the plant and franchise were purchased by the plaintiff in error, hereinafter referred to as the company, which continued to light the streets until the contract which its predecessor had 1. CONSTITUTIONAL LAW 117 292-ELEC- with the village expired. Upon the expiration No. 10. TRICITY1 DUE PROCESS AND OBLIGATION OF CONTRACT; CHANGE OF LAW AS TO USE OF STREET. An electric light company, which received a franchise to use the streets of a village, when a statute provided that the "mode" of use thereof shall be such as shall be agreed on by the village authorities and the company, or, if they cannot agree, as shall be directed by the probate court, was not deprived of property without due process of law, nor was the obligation of its contract impaired, by 92 Ohio Laws, p. 204, afterwards passed in the reasonable exercise of the police power, giving to the municipality complete control over the plac ing in the streets of poles and wires by such companies; that is, where the effect of the statute is not extended to poles and wires in use at the time, but is limited to restoration of those that had been removed and to new additional construction. 2. COURTS394(9)-STATE COURT DECISION NOT INVOLVING FEDERAL QUESTION. Contention that, if an ordinance were given effect, it would impair the obligation of a contract, is not available, where the judgment of the state court under review was reached independently of and without giving any effect to the ordinance. In 1889 the council of the village of Upper Sandusky, Ohio, enacted an ordinance, authorizing an electric light and power company, and its assigns, to use the streets of the village for the purpose of erecting and operating electric light wires for the distribution of electric light and power. The ordinance declared that: "The privilege hereby granted" shall entitle the company "to manufacture, sell and distribute light and power by means of electricity to the citizens of the village for public and private uses." In about a year after the company ceased to light the village streets this action was commenced by the filing of a petition by the village which, averring the facts we have stated, further alleged that prior to the removal of the street lighting appliances the village had submitted to the company a schedule of fair prices which it was able and willing to pay for street lighting and which it was willing to authorize the company to charge for commercial lighting and for power, but this was rejected; that by dismantling its street lighting system the company had rendered itself wholly unable to furnish any light whatever for the purpose of public lighting; that, without the consent of the village, it was threatening to place new poles and wires in the streets "to further advance its private interests"; that it had forfeited all rights in the streets, and that it was not possible for the village and company to agree upon terms for future lighting. The prayer was that the company be enjoined from erecting additional poles, that its franchise be declared forfeited and that it be required to remove all of its equipment from the public streets. The trial court dismissed the petition, but on appeal the Court of Appeals enjoined the company from erecting poles, wires or lamps in the streets "until the consent of said village shall have been obtained." This decree was affirmed by the Supreme Court of Ohio in the judgment we are reviewing. In its opinion the Supreme Court held that there was no bill of exceptions or properly authenticated finding of facts before it and that therefore the case must be decided upon the assumption that all of the allegations of the petition were sustained by the evidence; that at the time the ordinance of 1889 was passed and accepted, the applicable state statute provided that the "mode" of use of *176 *the streets "shall be such as shall be agreed upon between the municipal authorities of the *** village and the company, but, if they cannot agree, the probate court of the county shall direct what the mode of use shall be" (R. S. 1880) § 3471a, as added by 84 O. L. 7, The grantee, accepting the franchise, con- and R. S. § 3461; and that by an act of the structed a generating plant, erected poles, Legislature passed in 1896, seven years after For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (40 Sup.Ct.) the date of the village ordinance, the state the extent set forth, it cannot now return and law was amended into the form which con- repossess itself of such rights as it abandontinued to the time of trial, providing that ed without the consent of the village in ac"in order to subject the same to municipal cordance with existing law." control alone, no person or company shall place, string, construct or maintain any line, wire fixture or appliance of any kind for conducting electricity for lighting, heating or power purposes through any street," etc., "without the consent of such municipality." 92 O. L. 204. [1] This amended law of 1896 is made the basis of the only contention in the case which is sufficiently substantial for special notice, viz., that by it the obligation was impaired of the contract which the company had with the state and village, arising from its acceptance of the ordinance of 1889, and that it was thereby deprived of its property without due process of law. As we have seen, when the ordinance of 1889 was passed the statute then in force, provided that the "mode" in which the streets could be used for electric lighting and power appliances must be agreed upon between the village and the company, but that if they failed to agree it must be determined by the probate court, and the amendment, now claimed to be unconstitutional, consisted simply in giving to the municipality the exclusive control over the erection of any such appliances in the streets instead of the prior qualified control. In this case the original "mode" of use was determined by agreement without action by the probate court. The prayer of the petition was that because of the dismantling of the street lighting plant *177 and of its refusal to *agree to reasonable rates for the future, all rights of the company in the streets should be declared forfeited and that it should be ordered to remove from them all of its constructions, but the decree of the Court of Appeals, affirmed by the Supreme Court, went to the extent, only, of restraining the company from erecting any poles and wires in the streets "until the consent of the village shall have been obtained." There was nothing in the decree affecting the maintenance or renewal of such poles and wires as were in use for private lighting, when the case was commenced, and that this omission was of deliberate purpose appears from the fact that both courts held that the state statutes in force at the time the grant became effective and the form of the proceeding, were such, that a decree annulling such rights as the company had then retained in the streets could not properly be entered in the cause. On this point the Supreme Court said: From this state of the record we conclude that the state Supreme Court did not intend to deal with the right of the company to maintain repair or replace such poles and wires as it was using for commercial lighting when the case was commenced, but that its injunction was intended to prohibit restoring of the street lighting poles and wires which had been taken down and all new additional construction "until the consent of said village shall have been obtained," and so restrained its judgment will be affirmed, based, as it is, upon the statute of 1896, which the court 178 *holds, upon abundant reason and authority, was passed in a reasonable exercise of the police power of the state. This act was a general one, applicable to all electric lighting companies then operating, or which might thereafter operate, in the state, and all that it did was to give to the municipal authorities complete control over the placing in the streets of poles and wires for conducting electricity for lighting and power purposes, instead of the like control which they had when the franchise was granted, but subject to resort to the probate court in case of disagreement with the company as to the "mode" of using the streets. We cannot doubt that the danger to life and property from wires carrying high tension electric current through village streets is so great that the subject is a proper one for regulation by the exercise of the police power and very certainly the authorities of the municipality immediately interested in the safety and welfare of its citizens are a proper agency to have charge of such regulation. Any modification of its rights which the company may suffer from this law passed in a reasonable exercise of the police power does not constitute an impairing of the obligation of its contract with the state or village and is not a taking of its property without due process of law within the meaning of the constitutional prohibition. Northern Pacific Railway Co. et al. v. Puget Sound & Willapa Harbor Railway Co., 250 U. S. 332, 39 Sup. Ct. 474, 63 L. Ed. 1013, and cases cited. [2] Of the contention that if an ordinance passed in 1915 by the village, repealing the ordinance of 1889, were given effect it would result in impairing the obligation of the contract, it is enough to say that it first appears in a supplemental answer filed in the court of appeals, and the case, as we have seen, was disposed of on the assumption that all of the allegations of the petition were sustained by the evidence. No effect whatever was given "In this posture of the case, while in view of the statutory provisions which were in force at the inception of the enterprise the village would not be entitled to annul the com- to that ordinance, either by the Court of Ap *179 pany's rights, still, by reason of the facts stated above and the voluntary abandonment peals or by the Supreme Court, but each by the company of its rights and privileges to reached the conclusion we are reviewing in dependently of, and without reference to it. Cross Lake Shooting & Fishing Club v. Louisiana, 224 U. S. 632, 639, 32 Sup. Ct. 577, 56 L. Ed. 924; Long Sault Development Co. v. Call, 242 U. S. 272, 277, 37 Sup. Ct. 79, 61 L. Ed. 294. It results that, since the change of law complained of did not impair any federal constitutional right of the plaintiff in error, the judgment of the Supreme Court of Ohio, restrained to the scope of its opinion, as we have interpreted it, must be Affirmed. The court, in passing on the validity of a statute, may not inquire into the motives of Congress, nor the wisdom of the legislation, nor Mr. Justice DAY did not participate in the the necessity for the exercise of the power pos discussion or decision of this case. (251 U. S. 146) HAMILTON, Collector of Internal Revenue, v. KENTUCKY DISTILLERIES & WAREHOUSE CO. sessed. 7. STATUTES 173-PRESUMPTION AS TO CONTINUANCE OF WAR-TIME PROHIBITION Aст. As against claim that War-Time Prohibition Act has ceased to have validity, because of the ceasing of necessity, and therefore the power of Congress, before the prescribed period of limitation has arrived, every reasonable intendment must be made in favor of its continu DRYFOOS et al. v. EDWARDS, Collector of ing validity. (Argued Nov. 20, 1919. Decided Dec. 15, 1919.) Nos. 589, 602. 1. CONSTITUTIONAL LAW 81-POLICE POWER; INCIDENTAL EFFECT OF ACT OF CON GRESS. Though the United States lacks the police power reserved to the states by the Tenth Amendment, yet, when it exerts any power conferred on it by the Constitution, it is no valid objection 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. 8. INTOXICATING LIQUORS New, vol. 8A Key-No. Series-CONTINUANCE OF WARTIME PROHIBITION. In view of the facts of public knowledge, that the treaty of peace had not been concluded, that the railroads are still under national control, etc., it cannot be said that the War-Time Prohibition Act has ceased to be valid, even if its continued validity depends on an existing emergency or necessity arising out of the war or incident to it. 9. INTOXICATING LIQUORS WAR-TIME PROHIBITION ACT BY EIGHTEENTH AMENDMENT. 13-REPEAL OF The War-Time Prohibition Act was not re 2. WAR2-POWER SUBJECT TO CONSTITU- pealed by adoption of the Eighteenth Amend TIONAL LIMITATIONS. 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. 3. EMINENT DOMAIN69-TAKING BY UNITED STATES OF PROPERTY WITHOUT COMPENSATION. If a restriction on 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, the United States may for a permitted purpose impose a like restriction consistently with the Fifth Amendment without making compensation. 4. EMINENT DOMAIN 2(1)-WAR-TIME PRO HIBITION ACT AS TAKING OF PROPERTY. The uncompensated restriction on the disposition of liquors imposed by the War-Time Prohibition Act, seven months and nine days from its passage being allowed for unrestricted disposition, and there being no restriction sale for export or for other than beverage purposes, is not a taking of property within the Fifth Amendment, even if immatured liquor on ment, by its terms to become effective one year after its ratification, on the theory that it impliedly guaranteed liquor dealers a year of grace. 10. INTOXICATING LIQUORS132-"CONCLUSION OF WAR," WITHIN WAR-TIME PROHIBITION ACT. There is no ground for giving other than its legal meaning to the term "conclusion of war" in War-Time Prohibition Act, by its terms to continue in force "till the conclusion of the present war and thereafter till the termination of demobilization, the date of which shall be determined and proclaimed by the President," and it therefore requires the ratification of peace or the proclamation of peace. 11. INTOXICATING LIQUORS 132 PROCLAIMING DEMOBILIZATION WITHIN WARTIME PROHIBITION ACT. The requirement for determination and proelamation by the President in War-Time Prohibition Act, by its terms to continue in force till conclusion of the war and thereafter till the termination of demobilization, "the date of which shall be determined and proclaimed by the President," cannot be satisfied by passing For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (40 Sup.Ct.) references in messages to Congress, nor by newspaper interviews. Appeal from the District Court of the United States for the Western District of Kentucky. Appeal from the District Court of the United States for the Southern District of New York. Two suits for injunction-one, by the Kentucky Distilleries & Warehouse Company against Elwood Hamilton, Collector of Internal Revenue; the other, by Alphons Dryfoos and others against William H. Edwards, Collector of Internal Revenue. In the first case, decree was for plaintiff, and defendant appeals. In the second case, decree was for defendant, and plaintiffs appeal. Reversed in first case; affirmed in second case. No. 589: Messrs. William L. Frierson, Asst. Atty. Gen., Alex. C. King, Sol. Gen., of Atlanta, Ga., and W. V. Gregory, U. S. Dist. Atty., of Louisville, Ky., for appellant. Messrs. Levy Mayer, of Chicago, Ill., and William Marshall Bullitt, of Louisville, Ky., for appellee. No. 602: Mr. Walter C. Noyes, of New York City, (Messrs. Moses J. Stroock, Arthur L. Strasser, and Walter S. Dryfoos, all of New York City, of counsel), for appellants. Messrs. Levi Cooke and George R. Beneman, both of Washington, D. C., amici curiæ and general counsel to the National Association of Distillers and Wholesale Dealers. Messrs. Alex. C. King, Sol. Gen., of Atlanta, Ga., and William L. Frierson, Asst. Atty. Gen., for the United States. 153 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 *154 usual process of 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 No vember 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 section 238 of the Judicial Code (Act March 3, 1911, c. 231, 36 *Mr. Justice BRANDEIS delivered the Stat. 1157 [Comp. St. § 1215]), were argued 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 (40 Stat. 1045, 1046, с. 212), 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 man power 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 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. [1-4] First. Is the act void because it takes private property *for public purposes * * 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 | 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, 399, 39 Sup. Ct. 324, 63 L. Ed. 668. 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, 239, 7 Sup. Ct. 490, 30 L. Ed. 634) subject to the Fifth Amendment. United States v. Russell, 13 Wall. 623, 627, 20 L. Ed. 474. 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, 1 it is void. Such is the argument of the plaintiffs below. *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 none the less 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, 357, 23 Sup. Ct. 321, 47 L. Ed. 492; McCray v. United States, 195 U. S. 27, 24 Sup. Ct. 769, 49 L. Ed. 78, 1 Ann. Cas. 561; Hipolite Egg Co. v. United States, 1 War Acts authorizing the seizure or requisition of property: March 4, 1917, с. 180, 39 Stat. 1168, 1193 (Comp. St. 1918, §§ 31151/16b, 31151/16C); 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, с. 62, 40 Stat. 535 (Comp. St. 1918, §§ 31151/Led, 31151/16dd); 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 (Comp. St. 1918, §§ 3115hh-3115jj) Food Control Act-foods, fuels, factories, packing houses, coal mines, coal supplies, etc. March 21, 1918, c. 25, 40 Stat. 451 (Comp. St. 1918, §§ 31154a-3115%p)railroads. May 16, 1918, с. 74, 40 Stat. 550, 551 (Comp. St. 1918, § 3115%a); 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, с. 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, с. 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 (Comp. St. 1918, § 31151/32f), authorizing the acquisition of aeroplane patents by condemnation, for which $1,000,000 was appropriated. 220 U. S. 45, 58, 31 Sup. Ct. 364, 55 L. Ed. 364; Hoke v. United States, 227 U. S. 308, 323, 33 Sup. Ct. 281, 57 L. Ed. 523, 43 L. R. A. (N. S.) 906, Ann. Cas. 1913E, 905; Seven Cases v. United States, 239 U. S. 510, 515, 36 Sup. Ct. 190, 60 L. Ed. 411, L. R. A. 1916D, 164; United States v. Doremus, 249 U. S. 86, 93, 94, 39 Sup. Ct. 214, 63 L. Ed. 493. 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, 121-127, 18 L. Ed. 281; Monongahela Navigation Co. v. United States, 148 U. S. 312, 336, 13 Sup. Ct. 622, 37 L. Ed. 463; United States v. Joint Traffic Assoc., 171 U. S. 505, 571, 19 Sup. Ct. 25, 43 L. Ed. 259; McCray v. United States, 195 U. S. 27, 61, 24 Sup. Ct. 769, 49 L. Ed. 18, 1 Ann. Cas. 561; United States v. Cress, 243 U. S. 316, 326, 37 Sup. Ct. 380, 61 L. Ed. 746); 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, 448, 10 Sup. Ct. 930, 34 L. Ed. 519; Carroll v. Greenwich Ins. Co., 199 U. S. 401, 410, 26 Sup. Ct. 66, 50 L. Ed. 246). If the nature and conditions of a restric *157 *tion 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 our 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, 668, 8 Sup. Ct. 273, 31 L. Ed. 205; Kidd v. Pearson, 128 U. S. 1, 23, 9 Sup. Ct. 6, 32 L. Ed. 346. 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, 133, 21 L. Ed. 929; Beer Co. v. Massachusetts, 97 U. S. 25, 32, 33, 24 L. Ed. 989: |