As the case turned on the due process of law clause, the question of just compensation was not expressly decided. The Wynehamer decision has done as much as any one case to make the courts of New York State hold firm for the spirit as well as the letter of the Constitution. It has thus helped to make that state a safe place in which to own and hold property and live.

After the close of the Civil War prohibition activities were promptly renewed. In a few years prohibition campaigns were under way in most of the states. Then came a demand for national prohibition. In the 44th Congress, in 1876, Representative Henry A. Blair, afterwards United States Senator, first introduced in the House a joint resolution for a federal Prohibition Amendment to the Constitution. Briefly stated, it provided as follows:

"SEC. I. From and after the year of our Lord 1900 the manufacture and sale of distilled alcoholic intoxicating liquors, or alcoholic liquors any part of which is obtained by distillation . . . except for medicinal, mechanical, chemical and scientific purposes, and for use in the arts, anywhere in the United States and Territories thereof, shall cease."

Attention is called to two important features of this proposed amendment: first, national prohibition is limited to "distilled liquors"; secondly, the principle of fair play and justice is recognized by giving the manufacturers of and dealers in distilled liquors twenty-four years, or until the year 1900, to dispose of their property and goods and to get out of the business. From this time on different prohibition measures have been proposed and introduced in almost every Congress.

One of the large results of the Civil War was the Fourteenth Amendment, by which positive rights and privileges are secured by way of prohibition against state laws and state proceedings infringing those rights and privileges. With the broad limitations imposed upon the states by this amendment, and with practically the same limitations imposed upon the Federal Government by the Fifth Amendment, it was expressly intended by the representatives of "the people," who framed and adopted these amendments, that

the liberty of the citizens should be secured against arbitrary and oppressive prohibitory legislation, and that the property rights of those engaged in the wine, beer, distilling and all other industries could not be taken without due process of law, and without just compensation.

THE COMPENSATION ISSUE

The course of judicial legislation on the compensation question may be briefly outlined as follows: In 1873 in the case of Bartemeyer v. Iowa 18 the Supreme Court said:

"If it were true, and it was fairly presented to us, that the defendant was the owner of the glass of intoxicating liquor which he sold to Hickey at the time that the state of Iowa first imposed an absolute prohibition upon the sale of such liquors, then we concede that two very grave questions would arise, namely; first, whether this would be a statute depriving him of his property without due process of law; and, secondly, whether if it were so, it would be so far a violation of the 14th Amendment in that regard as would call for judicial action by this Court?"

Mr. Justice Bradley and Mr. Justice Field in their concurring opinions stood for right of property; the latter holding that "any act which declares that a man shall neither sell or dispose of it, nor use and enjoy it, confiscates it, depriving him of his property without due process of law."

In 1877, or three years later, in the case of Boston Beer Co. v. Massachusetts,19 the Supreme Court again dodged the issue in these words:

"We do not mean to say that property actually in existence, and in which the right of the owner has become vested, may be taken for public good without compensation, but we infer that liquor in this case, as in the case of Bartemeyer v. Iowa, was not in existence when the liquor law of Massachusetts was passed." (Italics mine.)

18 18 Wall. 129.

1997 U. S. 25.

71

In 1886 in the case of Kansas v. Walruff 20 in the 8th District of the United States Circuit Court, Justice Brewer held that, while the state could prohibit the manufacture and sale of intoxicating liquors, yet such prohibition, if unaccompanied by provision for compensating the owners of existing liquor property, would not be due process of law, and therefore unconstitutional. The defendant, Walruff, had erected a brewery which was worth $50,000, but worth not more than $5,000 for any other business; hence damages were claimed in the sum of $45,000.

In his opinion Justice Brewer laid down these four propositions:

(1) "Debarring a man, by express prohibition, from the use of his property for the sake of the public, is taking of private property for public uses"; (2) "That natural equity, as well as Constitutional guaranty, forbids such a taking of private property for the public good without compensation"; (3) “That no matter what legislative enactments may be had, what forms of procedure, judicial or otherwise, may be prescribed, there is not 'due process of law' if the plain purpose and inevitable result is the spoliation of private property for the benefit of the public without compensation"; and (4) "Legislation which operates upon the defendants as does this (the Kansas prohibitory act) is in conflict with the Fourteenth Amendment, and, as to them, void."

Three years later, or in 1889, Justice Brewer was appointed a member of the United States Supreme Court, but by that time that court had decided against the claim for compensation.

21

In 1886, two cases involving the Iowa liquor law were decided by the United States Supreme Court-Schmidt v. Cobb, and O'Malley v. Farley. In these cases counsel for plaintiffs in error, defendants below, referred to the Walruff case, and in their petition for removal alleged, and it was agreed, that the defendants had erected a brewery for the purpose of manufacturing beer and "suited for no other purpose"; that "in addition to the personal rights of the defendants" more than $10,000 worth of property belong to de20 26 Fed. Rep. 178.

fendants "would be rendered entirely worthless" if plaintiff succeeded against them.22 There was no opinion in the cases, and the official report reads as follows:

"Mr. Chief Justice Waite announced that the decree below was-Affirmed by a divided court." (p. 295.)

"O'Malley v. Farley, appeal from the Circuit Court of the United States for the Northern District of Iowa. Their cause was submitted with Schmidt v. Cobb, by the same counsel. It involved the same principles, and, like that case, was-Affirmed by a divided court." (p. 296.)

I call particular attention to the division of the Supreme Court of the United States in these two Iowa cases. The court, consisting of nine justices, was four and four, Mr. Justice Woods being unable on account of sickness to join in consideration of the cases. Fourteen months later, in two Kansas cases which involved practically the same issues or questions, seven of the eight justices of the Supreme Court set their seal of approval on a new theory of confiscation.

In other words, three justices of the Supreme Court reversed their opinions and radically changed their positions, between October, 1886, and December, 1887, on the question of due process of law and just compensation which are always involved in state-wide prohibitory legislation. It is one of the most curious facts in the history of our judicial anti-liquor legislation. It has never been explained.

In April, 1887, was argued in the United States Supreme Court the case of Mugler v. Kansas.23 In October, 1887, there was further argument in this and another case, Kansas v. Ziebold, which involved the same issues. Senator George G. Vest and Hon. Joseph H. Choate were leading counsel for the brewers whose personal

"In the Walruff Case the county attorney had proceeded to abate and shut up a $50,000 brewery as a nuisance, thus destroying the business and rendering the property of small value. In the Schmidt case the proceeding was to enjoin the defendants from keeping a saloon in one corner of their brewery.

and property rights were affected. Senator Vest on oral argument and in his brief vigorously denounced the Kansas prohibitory act, comparing it with a decree of the French Commune.

In December, 1887, the Court handed down its decision in the two cases. Mr. Justice Field dissented and in concluding said:

"The Supreme Court of Kansas admits that the legislature of the state, in destroying the value of such kind of property, may have gone to the utmost verge of constitutional authority. In my opinion it has passed beyond that verge, and crossed the line which separates regulation from confiscation." (p. 678.)

24

In Mugler v. Kansas, which is followed by Crowley v. Christensen, the learned justices have gotten "out of the field where they can be followed up by plain, honest people's minds." With all due deference and respect to Mr. Justice Harlan, who delivered the opinion of the court in the Mugler case, I am unable to feel the truth and force of his line of reasoning. Briefly stated, he argues that confiscation is not confiscation under certain circumstances, that is, under prohibitory legislation; that, if it is confiscation, it is for the public good; that there should be no compensation to the citizen whose property has been damaged or destroyed by the exercise of the police power to legislate the people of a state into sobriety or temperance.

Mr. Justice Harlan makes the claim, which stands as precedent, that "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 public benefit." This claim, though it is ingeniously worded and put, takes for granted first, that prohibitory legislation is "valid," and ignores the fact that this same legislation is expressly intended for the health, morals, or safety of the community, and then with a quick jump of logic concludes that such legislation "cannot in any just sense be deemed a taking or an appropriation of property for the public benefit." In the next sentence the justice adds the rather cynical remark that, "such legislation does not disturb the owner in the *137 U. S. 86.