first objection to the tax is well taken, STATE OF NORTH DAKOTA EX REL. V. that provision was enacted and which | panies belong. Of course we cannot so it was intended to qualify or restrain. hold. The reasoning on which the decisions proceed is illustrated in State ex rel. McNeal v. Dombaugh, 20 Ohio St. 167, 174. In dealing with a contention that a statute containing an unconstitutional proviso should be construed as if the remainder stood alone, the court there said: "This would be to mutilate the section and garble its meaning. The legislative intention must not be confounded with their power to carry that intention into effect. To refuse to give force and vitality to a provision of law is one thing, and to refuse to read it is a very different thing. It is by a mere figure of speech that we say an unconstitutional provision of a statute is 'stricken out.' For all the purposes of construction it is to be regarded as part of the act. The meaning of the legislature must be gathered from all they have said, as well from that which is ineffectual for want of power as from that which is authorized by law." CHICAGO & NORTHWESTERN RAIL- jurisdiction (See S. C. Reporter's ed. 485–491.) Federal courts suits to set aside or suspend orders of Interstate Commerce Commission United States as party. original Code, §§ 208 and 211, that suits to set aside 1. The requirement of the Judicial or suspend an order of the Interstate Commerce Commission must be brought against the United States in the commerce court, Here the excepting provision was in abolition of that court, effected by the Act was only modified, not repealed, by the the statute when it was enacted, and of October 22, 1913, and the transfer of there can be no doubt that the legisla- its jurisdiction to the district courts. ture intended that the meaning of the Federal other provisions should be taken as reSupreme Court jurisdiction stricted accordingly. Only with that suit by state. 2. The Federal Supreme Court will not [485] restricted meaning did they re-entertain original jurisdiction of a bill filed ceive the legislative sanction which was by a state against certain named railway essential to make them part of the stat-companies, to prevent them from applying ute law of the state; and no other au- mission, increasing intrastate rates, until an order of the Interstate Commerce Com thority is competent to give them a larger the Supreme Court can review the decision application. Had they been enacted with- upon which that order was made, but the out the excepting provision, and had it state will be remitted to the remedy affordbeen embodied in a subsequent amended by the Federal statutes, viz., a suit in atory act, a different situation would be the district court, to which the United presented, one in which that provision States is made a party. would have no bearing on the meaning or scope of the others,—because an existing statute cannot be recalled or restricted by anything short of a constitutional enactment. This was recognized in Truax v. Corrigan (December 19, 1921, 257 U. S. 312, ante, 254, A.L.R. -, 42 Sup. Ct. Rep. 124), where when an amendatory exception proved unconstitutional, we held that the original statute stood wholly unaffected by it. From what has been said it follows that, to sustain the tax in question, we should have to hold that the taxing officers, on finding that it could not constitutionally be assessed on the basis specially prescribed in the statute, were at liberty to assess it on another and different basis which the statute shows was not to be applied to corporations of the class to which these railroad com66 L. ed. [For other cases, see Supreme Court of the United States, I. c, in Digest Sup. Ct. 1908.] Parties United States as necessary party suit to set aside or suspend order of Interstate Commerce Commission. Code, § 211, that the United States be state jurisdiction suit by · United States as party. 4. A state may sue in a Federal district court where the United States is a and has not expressed its consent to be sued party and has consented to be sued there. [For other cases, elsewhere. see Courts, V. c, 3, d, in Digest Sup. Ct. 1908.] [No. 25, Original.] Argued on motion to dismiss January 5, substantive rights against the United 1922. Decided January 23, 1922. ORIG RIGINAL BILL in Equity by the State of North Dakota against certain named Railway Companies to prevent them from applying an order of the Interstate Commerce Commission, increasing intrastate rates. Dismissed. The facts are stated in the opinion. Mr. Karl Knox Gartner argued the cause, and, with Mr. Sveinbjorn Johnson, Attorney General of North Dakota, filed a brief for complainant: Neither the United States nor the Interstate Commerce Commission is a necessary party to this suit, as no remedy is sought against either. The only remedy sought in this suit is an injunction against the railroads made defendants, requiring them to republish and charge the rates previously in effect for intrastate application in North Dakota, and to refrain from charging rates other than those authorized by state authority, except as otherwise might thereafter be ordered by competent authority, which injunction will afford all the relief sought by the bill. Minnesota v. Hitchcock, 185 U. S. 373, 387, 46 L. ed. 954, 962, 22 Sup. Ct. Rep. 650. There is nothing in Illinois C. R. Co. v. Public Utilities Commission, 245 U. S. 493, 62 L. ed. 425, P.U.R.1918C, 1279, 38 Sup. Ct. Rep. 170, or in any other decision of this court, or in § 208, or in any other provision of the Judicial Code or any other law of Congress, that provides that the United States is a necessary party to a suit by a state against citizens of another state, brought originally in this court, even though such suit might| involve the nullification indirectly of an order of the Interstate Commerce Commission. Ames v. Kansas, 111 U. S. 449, 28 L. ed. 482, 4 Sup. Ct. Rep. 437; United States v. Louisiana, 123 U. S. 32, 31 L. ed. 69, 8 Sup. Ct. Rep. 17; Minnesota v. Northern Securities Co. 184 U. S. 199, 46 L. ed. 499, 22 Sup. Ct. Rep. 308; Minnesota v. Hitchcock, 185 U. S. 373, 46 L. ed. 954, 22 Sup. Ct. Rep. 650; Skinner & E. Corp. v. United States, 249 U. S. 557, 63 L. ed. 772, 39 Sup. Ct. Rep. 375. No right of action against the United States was created by any provision of the Commerce Court Act or Judicial Code which had not theretofore existed. The simple change in designation from Interstate Commerce Commission to United States is a change in a matter of title only, and does not create any new States. United States ex rel. Louisville Cement Co. v. Interstate Commerce Commission, 246 U. S. 638, 62 L. ed. 914, 38 Sup. Ct. Rep. 408. It is uncertain, under the wording of art. 3, § 2, of the Federal Constitution, whether the original jurisdiction of this court to try suits by a state against citizens of another state or states is exclusive. Ames v. Kansas, 111 U. S. 449, 28 L. ed. 482, 4 Sup. Ct. Rep. 437; United States v. Louisiana, 123 U. S. 32, 31 L. ed. 69, 8 Sup. Ct. Rep. 17. At the most, the District Court Jurisdictional Act created a jurisdiction in the United States district courts which, as respects suits by a state against citizens of other states, is simply concurrent with the original jurisdiction of this court, under art. 3, § 2, of the Federal Constitution. Congress may not by statute change the form of an action otherwise one between a state and citizens of another state, cognizable by this court upon original bill, so as to devest the state of its constitutional right to proceed originally in this court. Ames v. Kansas, supra. Mr. Charles W. Bunn argued the cause, and, with Messrs. Erasmus C. Lindley, Dennis F. Lyons, and Benjamin W. Scandrett, filed a brief for defendants: that is, all the railway companies doing This is a suit to enjoin defendants, business in North Dakota, from executing an order of the Interstate Commerce Commission. Therefore it is a case brought to enjoin, set aside, annul, or suspend an order of the Commission falling within § 207 of the Judicial Code. Illinois C. R. Co. v. Public Utilities Commission, 245 U. S. 493, 62 L. ed. 425, 38 Sup. Ct. Rep. 170. By statute it is required that the suit must be brought against the United States and in a certain district court. An original suit, therefore, will not lie in this court, where a state cannot sue the United States. United States v. Baltimore & O. R. Co. 225 U. S. 306, 56 L. ed. 1100, 32 Sup. Ct. Rep. 817; Ames v. Kansas, 111 U. S. 449, 28 L. ed. 482, 4 Sup. Ct. Rep. 437; Kansas v. United States, 204 U. S. 331, 51 L. ed. 510, 27 Sup. Ct. Rep. 388; United States v. Louisiana, 123 U. S. 32, 31 L. ed. 69, 8 Sup. Ct. Rep. 17; Illinois C. R. Co. v. Public Utilities Commission, 215 U. S. 493, 62 L. ed. 425, P.U.R.1918C, v. State Public Utilities Commission, 245 1279, 38 Sup. Ct. Rep. 170; United States v. California & Ô. Land Co. 148 U. S. 31, 43, 44, 37 L. ed. 354, 360, 361, 13 Sup. Ct. Rep. 458. Solicitor General Beck and Special Assistant to the Attorney General Ester line filed a brief for the United States as amici curiæ. Mr. Justice Holmes delivered the opinion of the court: This is a bill in equity, brought in this court by the state of North Dakota, against certain named railroad companies, to prevent their applying an order of the Interstate Commerce Commission until this court can review the decision upon which that order was made. The order increased the intrastate rates in North Dakota upon a finding that the present rates were an unjust discrimination against interstate commerce, within the meaning of ¶ 4 of § 13 of the Act to Regulate Commerce, as amended by the Transportation Act of February 28, 1920, chap. 91, title IV., § 416, 41 Stat. at L. 456, 484. Re North Dakota Rates, Fares, and Charges, 61 Inters. Com. Rep. 504, Re Increased Rates (1920) 58 Inters. Com. Rep. 220. The ground of the bill is that the increase, if applied, will make the jobbing business within the state unable to compete with the [489] jobbers of Minnesota, and that the order of the Interstate Commerce Commission is invalid (1) because based upon an increase in interstate rates that the Commission ordered without complying with the conditions said to be imposed by §§ 15a and 19a of the Interstate Commerce Act (a physical valuation); (2) and because based upon a misconstruction of the above-mentioned § 13 (4). It is not necessary to state the objections more at length. The defendants move to dismiss the bill. The first reason offered is that a state cannot sue on account of the private grievances of its citizens. By an amendment the state alleged a property interest in itself, but that amendment did not cover the extent of the relief asked, and the case is argued on the broad ground originally taken. We shall leave this question on one side, without deciding whether this case can be distinguished from Oklahoma v. Atchison, T. & S. F. R Co. 220 U. S. 277, 286, et seq., 55 L. ed. 465, 468, 31 Sup. Ct. Rep. 434. The argument that we shall consider is that the suit is one to set aside or suspend the order of the Commission (Illinois C. R. Co. U. S. 493, 62 L. ed. 425, P.U.R.1918C, 1279, 38 Sup. Ct. Rep. 170); that therefore, by § 211 of the Judicial Code, the United States must be made a party, and that the United States has consented to be sued only in the district court, where such suits are required to be brought. Judicial Code, § 208. Act of October 22, 1913, chap. 32; 38 Stat. at L. 219. The state replies in the first place that the sections of the Judicial Code relied upon relate to the establishment of the commerce court, and therefore are repealed in terms by the Act of October 22, 1913, just referred to. But that argument cannot be maintained. A provision that all suits of a certain sort shall be brought in the commerce court is only modified, not repealed, by the abolition of tion to the district courts. Such a statute the court and the transfer of its jurisdicdoes not relate merely to the establishment of the commerce court. The [490] sections cited always have been assumed, we believe, to remain in force, and they were made a basis of decision in Illinois C. R. Co. v. State Public Utilities Com mission, 245 U. S. 493, 504, 62 L. ed. 425, 436, P.U.R.1918C, 1279, 38 Sup. Ct. Rep. 170. The main contention of the state is that if, in the opinion of the court, it has a substantial right that is infringed by what the defendants are doing, Congress neither can take that right away nor prevent the state from proceeding in this court for such remedy as law or equity may afford. But if these premises were granted, it would not follow that the bill should be maintained. It is a proceeding in equity in which the requirements of complete justice and of public policy must be taken into account. When they are considered it seems to us pretty clear that the state should be remitted to the remedy offered by the statutes,—a suit in the district court in which the United States is made a party. Complete justice requires that the railroads should not be subjected to the risk of two irreconcilable commands,-that of the Interstate Commerce Commission, enforced by a decree, on the one side, and that of this court, on the other. The decision in this case, although an authority, would not be res judicata, and the Commission would not be concluded from rearguing the whole matter. As to public policy, Congress has indicated the policy of the United States. For although it is argued that the requirement that the United States should be made a party is a mer matter of procedure, for the purpose of fully acquired before the effective date of giving the Department of Justice control, the Volstead Act of October 28, 1919, from we cannot limit the significance of the the government bonded warehouses in which such liquors were on deposit when acquired, Judicial Code, § 211, by such a speculato the respective dwellings of the owners, tion. The language of the section shows for lawful use, is forbidden by § 3 of that that public interests were before the mind act, which declares that no person shall of Congress, and that, in its opinion, an transport or possess any intoxicating liq order made in the public interest should uor except as authorized by the act, and not be hindered from going into effect un- that all of the provisions of the act shall be til the representative of the public had liberally construed to the ena that the use of intoxicating liquor as a beverage shall been heard. It appears to us that this be prevented, provided that nothing in the view is so reasonable that it should be act shall prohibit the purchase and sale of accepted by this court, even if not bound. warehouse receipts covering distilled spirits [491] There is no doubt that a state on deposit in government bonded warehouses, can sue in the district court when the and there is nothing to the contrary in the United States is a party and has consent-provisions of § 25, that it shall be unlaw ed to be sued there, and has not expressed tul to have or possess any liquor intended its consent to be sued elsewhere. United for use in violating such act, or of § 33, States v. Louisiana, 123 U. S. 32, 31 L. that it shall not be unlawful to possess liquors in one's private dwelling while the ed. 69, 8 Sup. Ct. Rep. 17; Ames v. same is occupied and used by him as his sas, 111 U. S. 449, 28 L. ed. 482, 4 Sup. dwelling only, or of § 37, which permits Ct. Rep. 437. For the reasons that we the storage in government bonded warehave indicated, it is equitable that a de- houses of liquors manufactured prior to the cree should not be entered except in such taking effect of the act, and the transpor form as to bind the Interstate Commerce tation of such liquor under permit to such Commission and the United States, and for sale to such druggist for purposes not warehouses, or to any wholesale druggist, therefore this bill must be dismissed. The prohibited, which latter section should be right of the state is sufficiently protected read in connection with § 6, which permits by its right to appeal from the decision distilled spirits produced and fit for bevof the district court. Cohen v. Virginia, erage purposes, remaining in bonded ware6 Wheat. 264, 395, et seq., 5 L. ed. 257, houses, to be withdrawn for denaturing, or for deposit in a bonded warehouse estab289. lished by the act. Bill dismissed. CHARLES CORNELI, Appt., V. Kan GEORGE H. MOORE, Collector of Internal GEORGE J. GHIO, Appt., v. GEORGE H. MOORE, Collector of Internal WILLIAM H. BRYAN, Appt., V. JOSHUA W. MILES, Collector of Internal WALTER A. EASTES, Appt., V. GEORGE F. CRUTCHLEY, Collector of Internal Revenue for the Sixth District of Missouri, et al. (No. 548.) (See S. C. Reporter's ed. 491–501.) Intoxicating liquors Volstead Act transportation from government bonded warehouse. Constitutional law due process of law taking property without compensation intoxicating liquors Volstead Act liquors previously manufactured and acquired. 2. Construing the provisions of the Volstead Act of October 28, 1919, as for bidding the removal of distilled spirits lawfully acquired before either that act or the 18th Amendment to the Federal Con stitution became effective, from the government bonded warehouses in which sucb liquors were on deposit when acquired, to the respective dwellings of the owners, for lawful use, does not render the act invalid, as depriving such owners of their property without due process of law, or as taking it for public purposes without just compensation. [For other cases, see Constitutional Law, IV. b, 5, in Digest Sup. Ct. 1908.] [Nos. 174, 175, 428, and 548.] Note. On construction and effect of the Volstead Act-see note to Street v. Lincoln Safe Deposit Co. 10 A.L.R. 1553. As to what constitutes due process of law, generally-see notes to Ulman v. Baltimore, 11 L.R.A. 224; Gilman v. Tucker, 13 L.R.A. 304; Pearson V. Yewdall, 24 L. ed. U. S. 436; and Wilson 1. The removal of distilled spirits law- v. North Carolina, 42 L. ed. U. S. 865. 257 U. S. Decided Jan A.L.R. 1548, and note, 254 U. S. 88, 65 L. ed. 151, 41 Sup. Ct. Rep. 31. TWO WO APPEALS from the District Court of the United States for t Eastern District of Missouri to review deerees which dismissed the bills in suits to compel a collector of internal revenue to release distilled spirits on deposit in a government bonded warehouse. Af firmed. Also an A PPEAL from the District Court of the United States for the District of Maryland to review a decree which dismissed the bill in a suit for an injunction to compel a collector of internal revenue to release distilled spirits on deposit in a government bonded warehouse. Affirmed. Also an AP PPEAL from the District Court of the United States for the Western District of Missouri to review a decree which dismissed the bill in a suit to compel a collector of internal revenue to release distilled spirits on deposit in a government bonded warehouse. Affirmed. See same case below, in No. 174, 268 Fed. 993. The facts are stated in the opinion. Messrs. Elliott W. Major and Glendy B. Arnold argued the cause and filed a brief for appellants in Nos. 174 and 175: The National Prohibition Act author The 18th Amendment is expressly prospective in its operation, and does not prohibit the use or transportation, for beverage purposes, of liquor lawfully acquired before its adoption. Street v. Lincoln Safe Deposit Co. supra; Reynolds v. M'Arthur, 2 Pet. 417, 437, 7 L. ed. 470, 477; Ladiga v. Rowland, 2 How. 581, 589, 11 L. ed. 387, 390; Calhoun County v. Galbraith, 99 U. S. 214, 25 L. ed. 410; Shreveport v. Cole, 129 U. S. 36, 32 L. ed. 589, 9 Sup. Ct. Rep. 210; Leet v. State Bank, 115 Mo. 184, 21 S. W. 788. If the National Prohibition Act denies to complainant possession of his distilled spirits, and the right to transport same to his private dwelling, then it is in conflict with the 5th Amendment to the Constitution of the United States, and to that extent is void. Wynehamer v. People, 13 N. Y. 378; Street v. Lincoln Safe Deposit Co. 254 U. S. 88, 65 L. ed. 151, 10 A.L.R. 1548, 41 Sup. Ct. Rep. 31. Intoxicating liquor, manufactured and lawfully acquired prior to the adoption of the 18th Amendment, is property, and the right to use it, possess it, and en joy it is property, within the meaning of that term as used in the 5th Amendment. License Cases, 5 How. 504, 577, 12 izes the transportation of distilled L. ed. 256, 289; Slaughter-House Cases, spirits, lawfully acquired before the 16 Wall. 36, 127, 21 L. ed. 394, 425; Wynehamer v. People, supra; Preston v. passage of the act, from a bonded warehouse of the United States to the private Drew, 33 Me. 558, 54 Am. Dec. 677; Lindwelling of the owner, for any lawful use therein, including its use as a bever age. Street v. Lincoln Safe Deposit Co. 254 U. S. 88, 65 L. ed. 151, 10 A.L.R. 1548, 41 Sup. Ct. Rep. 31. Messrs. Julian S. Jones and J. Wallace Bryan argued the cause, and, with Messrs. James T. O'Neill, Glendy B. Arnold, and Elliott W. Major, filed a brief for appellant in No. 428: The delivery of the barrel of distilled spirits to complainant, and its transportation from the government bonded Warehouse to his private dwelling for lawful consumption therein, as authorized by § 33, of title II., of the National Prohibition Act, does not violate any provision of said act. The access to, delivery and transportation of, said spirits to complainant's private dwelling, are not a delivery and transportation within the meaning of § 3, of title II., of the aet. Street v. Lincoln Safe Deposit Co. 10 coln v. Smith, 27 Vt. 328; Scranton v. Wheeler, 179 U. S. 141, 170, 45 L. ed. 126, 140, 21 Sup. Ct. Rep. 48; Braceville Coal Co. v. People, 147 Ill. 66, 22 L.R.A. 340, 37 Am. St. Rep. 206, 35 N. E. 62; Boston Beer Co. v. Massachusetts, 97 U. S. 25, 32, 24 L. ed. 989, 991; Bartemeyer v. Iowa, 18 Wall. 129, 21 L. ed. 929; Street v. Lincoln Safe Deposit Co. supra. The 18th Amendment does not repeal the 5th Amendment. Petri v. F. E. Creelman Lumber Co. 199 U. S. 487, 497, 50 L. ed. 281, 286, 26 Sup. Ct: Rep. 133; Texas & P. R. Co. v. Abilene Cotton Oil Co. 204 U. S. 426, 437, 51 L. ed. 553, 557, 27 Sup. Ct. Rep. 350, 9 Ann. Cas. 1075; Street v. Lincoln Safe Deposit Co. supra; Chicago & W. I. R. Co. v. Englewood Connecting R. Co. 115 Ill. 375, 56 Am. Rep. 173, 4 N. E. 246; Grand Rapids Boom. Co. v. Jarvis, 30 Mich. 308. Warehouse receipts for distilled spirits in bond were, prior to the passage of the National Prohibition Act, and are now, by the provisions contained in the |