dissenting. — The several orders of Lieutenant Colonel Munson, whereby he granted to the petitioner the privilege or franchise to operate the bus line between Camp Joseph E. Johnston and the City of Jacksonville, are set out in full in the opinion of the court. I will, however, quote from the eleventh paragraph of the confirmation of the “privilege” granted to petitioner, which contains some of the reasons for the order:
“II. In the exercise and enjoyment of the exclusive privilege and right herein granted and confirmed to you, you will recognize that my reasons, for granting you the same, among other things, are that I have found it essential to the morale of the officers and men stationed at said Camp to permit them to visit said City on private business and for recreation, also to have said provost guards detailed for police duty in said City, to prevent said men, as far as possible, from participating in various forms of dissipation, and have further found it necessary to the morale of said officers and men to permit their relatives and friends to visit them at said Camp, and have found it necessary also for myself and members of my staff to go to and from said city on official business of the U. S. Government, for which purposes it was essential to provide a means of transportation between said Camp and said City for the officers and enlisted men stationed there, as well as for civilians having occasion to visit said Camp, there being no street car line to said Camp and no other adequate means of transportation available; also that I was desirous of having the entire bus service rendered to said Camp under one management, so that the responsi*114bility for injuries or damage to government men or property would be definitely located and assumed by a responsible party; also that the greatest possible safety would be obtained to the officers, men and Government property affected by said service!’-
The - precise question involved in this case has never been determined by the Federal courts, but the doctrines enunciated in cases - involving analogous questions, and from the trend of recent decisions, and from the spirit of the times, I have an abiding conviction that wherever the question of the power of a State court to nullify or to review an order made by a military commander in time of war,, whereby he contracts .for the performance of any service which he considers essential to the morale and safety of -the .officers and soldiers under his command, it will be determined, against such power being exercised by the State courts. ....
When a nation is at war, its rulers must necessarily be clothed with autocratic and absolute power.; less than this may result in failure to accomplish the purpose of the war, if not in defeat and disaster. Neither can the people demand all their constitutional rights, for all rights must be subordinate to and submerged in the great object of winning the war.
The people having elected to engage in a foreign war, they- must be prepared to sacrifice their -lives, their fortunes, their peace ideals and .even their-constitutional rights, if need be, to-gain an overwhelming victory.
The military arm of the government must- not be hampered by-local laws, ordinances or regulations. The commanding officer of a military camp is charged with the duty of maintaining the morale of his men and providing for their safety and comfort, and for any dereliction of his duty in these respects he is answerable to military *115authority. Whén he promulgates an Order, Rule or Regulation, wherein, as in this case he states that hé does so because it is “essential to the morale of the officers and men stationed at said camp” and “that the greatest possible safety would be obtained to the officers, men and government property affected by the service,” neither a city nor a State has any authority to nullify the effect' of his Orders, by requiring the agencies which he establishes or instrumentalities which he uses for the accomplishment of his ends, to pay a license tax for the privilege of performing the duties which he charges them with; '
The power to require the payment of an occupational license tax, carries with it the power to impose so great a tax as to amount to a prohibition, and it is quite clear that when the Military authorities in time of war consider certain services which are to be performed by another, necessary for the morale and safety of the army, such services cannot be crippled, hampered, or prevented by the exercise of the licensing power of the State. If the services which the commanding officer of Camp Joseph E. Johnston considérs essential for the morale, and safety of his men, are not in fact necessary, it is a matter for the National' authorities to determine, and is not subject to review by the State courts, and we cannot controvert his declaration that the auto service which he has established: between the camp and the city of Jacksonville is essential to the purposes stated in Genl. Order No. 33, and the amplification and confirmation thereof made by him on January 5th, 1918. If he has no authority under military regulations in time of war, to grant the franchise to the defendant, his act is subject to review and disapproval by the military arm of the Nation, and not by the State authorities, and as long as his order remains uncountermanded by the National *116authorities, its validity must be respected and given full recognition and obedience.
What the President himself as Commander in Chief of the army may do, attaches to the officer in charge of the military forces at Camp Johnston. As was said by the court in Ex parte Vallandigham, 16, 816 Féd. Cas.: “The only reason why the appointment is made is that the President cannot discharge the duties in person. He, therefore, constitutes an agent to represent him, clothed with the necessary power for the efficient supervision of the military interests of the government throughout the department, and it is not - necessary that martial law should be proclaimed or exist, to enable the general in command to perform the duties assigned to him.” The last portion of this citation meets the reference in the opinion of this court that this State is not under martial law.
Discussing the power of the courts to annul or reverse the action of a Military Commander in time of war, the court said: “He has done this under his responsibility as the commanding officer of this department, and in accordance with what he supposed to be the power vested in the president by the/constitution; and I am unable to perceive on what principle a judicial tribunal can be invoked to annul or reverse it. In the judgment of the commanding general, the emergency required it, and whether he acted wisely or discreetly is not properly a subject for judicial review.” The reasons given by Judge Leavitt for holding that a Federal Court has no power to' annul or reverse an order of a commanding officer in time of wax-, apply with greater force to the power of a State Court.
It is contended that because the Military authorities permit the petitioner to transport civilians to and from the camp, when the space in the busses is not wholly *117occupied by soldiers, he transcended his authority, and that ipso- facto, the instrumentality created by him for the benefit of his troops, became subject to the operation of the State and city laws imposing occupational taxes on the petitioner. To concede this contention, is to assert the authority of State courts to review, modify or annul an order of a Military Commander in time of war; thus, making the States the final arbiters of the wisdom, the necessity or the reasonableness of a military order. It begs the question to say that the order under which the petitioner is performing the service for which he is being held by the State authorities, was made by the commanding officer of a camp only, and not entitled to the dignity of a military order. The President of the United States advised Congress to “declare the recent course of the Imperial German Government to be in fact nothing less than war against the United States,” and Congress promptly acted on his advice and provided for raising an army to carry on the war. The duty pf organizing, equipping,, arming, training, disciplining ihis huge military machine is the result of Congressional action, and it devolved upon the President of the United States as Commander in Chief of the Army to carry it into effect, and through and by him this authority descends until it reaches the commanding officers of camps established for the purpose of preparing the army for war, and every order made by a military officer of a camp for the safety and morale of his officers and men, until revoked or disapproved by his superior in command, is made by virtue of and under the authority of the Commander in Chief of the Military forces of the. United States. To say that the orders of the commanding officer of a camp whereby he creates under his command, can be nullified by a city ordinance agencies or instrumentalities for the benefit of the Army *118imposing an occupational tax on a person to whom the commanding .officer has given a franchise or privilege for what he believes to be essential for the morale and, safety of his men, is to strike at the Commander in Chief of the Army himself, under whose authority and command the officer is acting. When Lt. Col. Munson granted to petitioner the privilege or franchise which the imposition of this occupational tax would tend to impede, cripple, or destroy, he acted under authority of Congress and for the President of the United States — as every official act of a Military Commander in time of war, is the act of the Commander in Chief, until disapproved or reviewed by him, or spme other military authority acting under him.
It may be that Lt. Col. Munson is mistaken when he says that it is necessary for the morale and safety of his men that civilians who have business at the camp or who desire to visit,his officers and men, may be transported in the busses of this transportation line, but such mistake, if it be one? is not reviewable by the State Courts; nor does his mistaken view of its necessity subject to imprisonment by State authorities for non-payment of an occupational tax, the person who is performing the duty imposed upon him by such military order.
The privilege granted to the petitioner by Col.,Munson in this instance is no less a franchise than one granted by Congress or any other department of the National Government.
The Federal Courts have passed on the question of the power of the states to destroy or abridge a franchise or privilege granted by the Federal authorities for National purposes, by the imposition of taxes, and the doctrine laid down in these cases decided in time of peace, apply with greater force in time of war.
Osborne v. Bank of the United States, 9 Wheat. (U.S.) *119738, is one of the great cases in which Chief Justice Marshall wrote his views into the Constitution of the United States, and settled the question that a,State had ho power to tax an instrumentality-of the Federal government, and the court illustrated its reasoning with a statement- which is peculiarly applicable to this case: “Can a contractor for supplying a military post with provisions, be restrained from making purchases within any State, or from transporting the provisions to the place at which the troops were stationed, or could he, he fined or taxed for doing so? We have not yet heard thesd questions answered in the affirmative. It is -true that the property of the contractor may be taxed, as the property of other citizens; and so may the local property of the Bank. But we do not adn it that the act of purchasing or of conveying the artioles purchased-, can be under State control.”
Other cases which follow and extend the doctrine of Osborne v. Bank of the United States, supra, are California v. Central Pac. R. Co., 127 U. S. 1, 8 Sup. Ct. Rep. 1073; San Benito County v. Southern Pac. R. Co., 77 Cal. 518, 19 Pac. Rep. 827.
In the case of Western Union Tel. Co. v. Lakin, 53 Wash. 326, 101 Pac. Rep. 1094, the court said: “The franchise to do business on and over the highways and post roads in the United States is not only a permission, but an advantage to the government, growing out of the necessities of the administration. In it the Government has an interest. Upon it must be placed dependence in time of war and in time of peace. It is a creature not alone of the bounty of the government. It is born of its needs, and is essential to its maintenance.”
“It requires no argument to sustain the point that a mere tax on the privilege of doing lousiness, which in *120one way or another, might interrupt this governmental interest, cannot be sustained.”
The transportation line established by Lt. Col. Mun-son, is born of the needs of the army, or so much of it as is under his command, and “is essential to its maintenance,” and is not subject to State regulation or control. If the city can require the transportation line to take out a license as a condition to the right to operate, it can fix and control its tolls, its points and time of departure and return, its routes, and so regulate it as to defeat the purpose for which it was established by the commanding officer of the camp. The power to license including the power to regulate and control, and thus we would have the situation of the orders of a military officer in time of war, subject to control by the city authorities. To illustrate the impotence of municipal ordinances when it is sought to impose their conditions upon the military authorities in time of war, we need only call attention to those which prohibit keeping explosives within the limits of a city. What effect would such an ordinance have on the action of a Military officer who considered it necessary to store ammunition within the corporate limits?
The question in this case is somewhat obscured by the difficulty of thinking in terms of war, and attempting to apply doctrines which might be conclusive in time of peace, but which must yield to the higher authority of National necessity in time of war. To appreciate this distinction I need only call attention to the National Government “having assumed possession and control of the railroads;” the orders of the Fuel and Food Administrators, and the proposed action by Congress to regulate what food we may eat, and on what days we must abstain from eating prohibited articles.
*121In the case under consideration the Nation in its purpose of carrying on a great foreign war, through the Military Commander of Camp Joseph E. Johnston, is performing a function which it deems necessary for the morale of the Army and the safety of its officers and men, and if the State possesses the power to tax an agency of the Federal Government whereby it performs any of its functions, it might so impose taxation as to “cripple if not wholly defeat the operations of the National authority within its proper and constitutional sphere of action.”
Judge Cooley in his work on Constitutional Limitations (7th ed.) p. 680, says: “One of the implied limitations is that which precludes the States from taxing the agencies whereby the general government performs its functions. The reason is that, if they possessed this authority, it would be within their power to impose taxation to an extent that might cripple if not wholly defeat, the operations of the national authority within its proper and constitutional sphere of action.”
In the case of Farmers’ & Mechanics’ Sav. Bank of Minneapolis v. State of Minnesota, 232 U. S. 516, 34 Sup. Ct. Rep. 354, the court said: “A Federal instrumentality acting under Congressional authority cannot be subjected to an occupation or privilege tax by a State.” The petitioner is not only a Federal but a Military instrumentality acting under the orders of the Commanding Officer of Camp Joseph E. Johnston, — a camp, organized by Congressional authority, — and the franchise or privilege granted the petitioner by Lt. Col. Mun-son for the safety and morale of his men should not be subjected to the imposition of an occupational tax which might cripple if not wholly defeat the purpose for which camps are established — the preparation and training of *122the Army to fight in the great foreign war in which we ¡ire now engaged.
The power of Congress to create a vast army to he sent out of the country to engage in a foreign war was fully sustained by the Supreme Court of the United States in a decision rendered by Mr. Chief Justice White on January 9th, in the case of Arver. United States, and other cases decided at the same tin e, known as the Draft Cases. The court said that the “authority, to enact the statute must be found in the clauses of the Constitution giving Congress power to ‘declare war; * * * to make rules for the government and regulation of the land and naval forces’ Art. 1, Sec. 8. And of course the powers conferred by these provisions like are other powers given, carry with them as provided by the Constitution the authority ‘to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.’ ” Art. 1, Sec. 8.
Whatever is doné by the Military authorities in the. organization of the army provided for in the Act- of Congress of May 18th, 1917, is done by virtue of this Constitutional provision, and the regulation of the army belongs exclusively to the United States Government. If there is any difference in degree in the powers granted to Congress by the National Constitution, the power to declare war, to raise and support armies, to make rules for their government and regulation, is the highest of all for upon it the existence, the integrity of the Nation depends, and the power of Congress over it is absolute.
While the question presented in this case has never been béfore the Supreme Court of the United States; there is a long line of decisions on the interstate commerce clause of the Constitution, pointing to the conclusion that it will be reached by that Court whenever *123this question comes before it, and which guide me in reaching my conclusion.
The power of Congress over interstate commerce is absolute. See Crutcher v. Kentucky, 141 U. S. 47, 11 Sup. Ct. Rep. 851, in which case the court said “we have repeatedly decided that a State law is unconstitutional and void which requires a party to take out a license for carrying on interstate commerce, no matter how specious the pretext may be for imposing it.”
A distinction sought to be made that because the order of the Commanding Officer of Camp Johnston, was not limited to the transportation of the officers and soldiers under his command, but permitted also the transportation of civilians, this license tax may be imposed. The license tax complained of makes no such distinction, but is imposed for the occupation of. transporting both the military and civil population, and in this it is obnoxious under the doctrine of the Supreme Court if the United States that licenses for carrying on both interstate and intrastate commerce, are unconstitutional. The States have the right to impose licenses oh intrastate, but not on interstate business, and they cannot link them together and impose a license on the entire business. In the case of Osborne v. State of Florida, 164 U. S. 650, 17 Sup. Ct. Rep. 214, a State tax imposed upon an express company for doing business in Florida, was upheld because the act’applied solely to business of the company within the State. The court in that case said, “The statute herein differs from the cases where statutes upon this subject have been held void, because in those cases the statutes prohibited the doing of any business in the State whatever unless upon the payment of the fee or tax. It was said as to those cases that as the law made the payment of the fee or the obtaining of the *124license a condition to the right to do any business whatever, whether interstate or purely, local, it was on that account a regulation of interstate commerce , and therefore void.” The distinction is clear, that if a license tax is sought to be imposed as a condition to doing a business which includes .both interstate and intrastate business, '.it is void. If, however, the law applies only to intrastate business, it is valid.
Examining the ordinance under consideration, we find that it requires, the payment of a fee or tax and the obtaining of a license as a condition to the right to do any transportation business whatever, and includes the transportation of soldiers as well as civilians, and in so far as it does this, it is, void.
. Although I have discussed this phase of the case, and think it supports my conclusion that the license tax sought to be imposed is inoperative and void, insofar as it affects the business which the petitioner is carrying on, still I rest my conclusion particularly and especially on the lack of authority of the State Courts to pass upon the validity, or the reasonableness of .a Military order in time of war, and as the petitioner is being held for not taking out a city license for operating a transportation line between Camp Johnston and Jacksonville, under the. authority of an order of the Military arm of the government, his arrest was unauthorized, and he is being unlawfully deprived of his “liberty.
When the Nation is engaged in a great foreign war which will tax the patriotism of the people to the extremes! limit, when our Nationals are called upon to give their lives without asking their consent, in order that we may win the war, it seems preposterous to contend for the shadow of States rights, — if there remains even a shadow of that sacred doctrine upon which vested *125our constitutional liberties) — and make the collection of a few dollars for license paramount to the morale and safety of the soldiers who are called upon to sacrifice their lives for the Nation.
The President of the United States has said “We are now about to accept the gage of battle with the natural foe of liberty, and shall, if necessary, spend the whole force of the Nation to check and nullify its pretentiousness and power.” Camp Joseph E. Johnston was established in pursuance of the plan to prepare an army to carry out this declaration of the President, and the establishment of the bus line by Lt. Col. Munson is the exercise of his Military authority to prepare the Army to “accept the gage of battle.” The bus line is an instrumentality or agency which the Commanding Officer says is necessary to accomplish this end. Military exigencies or necessities are to be determined by the Military authorities, or at least by the National, and not by State authorities, and a city cannot cripple, hamper, impair or destroy the instrumentalities established to meet a Military necessity or exigency, by passing an ordinance imposing a license tax on such instrumentalities, or by applying to them the provisions of an existing ordinance.
I think the application for a writ of habeas corpus should have been granted.