The Emporia news. [volume] (Emporia, Kan.) 1859-1881, 1880-12-31
OpInIon 1by willard Davis


house. de Jaeto and dc iure, then the con-
stituiiOnai majority voted for the resolu
t1on but should il be held that 125 men,
beers OF the house are the absolute con
stltutional limit for valid legislation.
the resolution was carried by more than
the constitutional majority. For a de
cision bearing on this subject, see 20
has. 692; Second biennial report, attor-
ney general, 1879-S0, p. IA.
I'd. IL legally adopted, when did it
take effect, and does it abrogate
all existing licenses for the sale of
Intoxicating liquors: Answer: The
amendment was submitted under
Art. IA, Sec. l of the constitution,
and one sentance in that provision, spe.
cially important, is this: "and if q ma
j04'ity Of the electors Uotiag on said
dR,eHdEaeRt shall adopt the amendment,
the same shall become part of the con-
stitUtion." The evidence Is clear that a
majority of those voting ON said amend
ment advocated" it, and, independent
of all defects yet suggested in the ma
chinery by which the result has been de-
clared, 1t Is valid part of the constitu-
ton, because il was adopted as required
by that instrument; and this fact could
be proven If the state board had never
canyassed the returns. But if l err in
this, then the machinery provided in
CHI. 80, Dass, Comp. Laws 1878, under
the general title, ELECTIONS" indicates
substantially IN fact. If not in form, the
mode of declaring the intention of the
electors who vote either for things or
persons. Notwithstanding its asserted
deficiency, l think the machinery pro-
vided in said chapter was intended to
cover all elections provided by the con-
stitution; and because one section in
terms requires the state board 10 declare
the names of persons elected, il does not
negative the idea that said board shall
also declare the names of things elected
and brought Ia its notice, By perfor-
nance Of the implied duty required OF
all cunvassing officers, through all stages
from the polls 10 the highest. canvass
ing board in the state. Taking as a test
the rule laid down in "a Ala, in Collier
u.s. Fricrson, in which the supreme
court of Alabama held, that every re
quirment demanded by the instrument
(the constitution must "be observed.
and the omission of any one is fatal
TO the amendment" this amend
ment has been legally adopted, and, if
not in force Mt the close of the polls by
virtue of adoption by the electors, it did
take effect when the result was an
nounced by the state board of canvas
sers, SNovember %, 1880, and il abrogated
all existing licenses. The license does not
rise to the dignity of contract between
the lIcensee and the state. The statute
authorizing the license "was a public
law relating 10 a public subject, within
the domain of the general legislative
power of the state, and involving the
public rights and public welfare of the
community affected (NentoH rs Com
missioaers, 10 Otto, 557.) The effect of
a license was merely to permit person
10 carry on the trade under certain regu-
tions, and to exempt HIM from the pen
alties provided for unlawful sales. Il
therefore contained none of the elements
of contract o Gray ri Mass. 59S)
Permission to sell sis mere govern
mental subject" affecting nothing but
the public interest, and over it the law
making power has absolute control.
81. II the licenses are void, do the
penalties imposed by the dramshop act
stand unrepealed? This proposition de
serves and has received most serious con-
sideraiiOn. / hold that the penal por,
! tions of the dramshop act are not re-
| pealed by the amendment, not because
| il is clear To- me that they are not repeal
| ed, but because IL is not clear to me that
| they are repealed; and, in answering
thus, l adduce such reasons and authori-
! ity as seem to forbid the idea of repeal
| /. Where there is doubt as TO the repeal
! of statute. il (the statute) should be
| sustained 2 Courts do not favor re
I peals nv implication >. "The conflict
I with the constitution must be "mani
/ fest" Estate vs.. Ewing, "a Kas.
! second biennial report, attorney general
/ p. 40 The supreme court has already
| held, that The statute prohibiting the
3
cenSe is penal" (HaUg rs. Gfllett, Il
| kas 142) Also, that "The sale without
license Is criminal offense and a mis-
demeanor." Estate cs. Volmer, Kas
SD And that the sale being
prohibited by statute, mo action can b.
maintained to recover for such liquor
sold on credit" alexander VS.. O'Don
nell, 10 Kas. G05) If the penal portions
of the dramshop act were in force wher
no license had been granted, why ar
they not now in force when the right 4
obtain the license is taken diody, if Their
is enough left to sustain the Fundamental
purpose Of the acts
The title to the dramshop acts; AL
act 10 restrain dramshops and tavern:
and to regulate the sale of "intoXicatIn:
liquors." The main purpose was I,
prohibit or restrain" The purpos
was 10 limit and circumscribe the powe
of all the tribunals and certain classe
of persons named in the act, and not I
require exercise of power CONDITIONAL
granted. No person has natural RICH
: to sell Intoxicating liquors, and this &C
authorized a sale only when the local al
thorities, in their discretion, and undo
the prescribed conditions, permitted i
This was the field in which the legisl;
: Iure stood when it framed that &c
-. t1akr
the liquor traffic, even Ia prohibition
r (Hdug Us. Gillett, ii Kan. 142)
If the position is sound, then the que
ton whether the penal portion stand
unrepealed is easily solved. The act hi
been held to be constitutional, and III
| title clearly embraces but one subject
\ the prohibition of the sale of intoxica
! ing liquors, except as permitted by vi
: tue of license. Can this exception
repealed, and enough left to sustain III
i main purpose of the act, provided al
. correct as TO what was the main purpose
r / answer, Yes; and in support of tn
= position / cite lSdRto rs. State, ? low
+ i65. A prohibiiory law has been passG
I, In Iowa, not Objectionable to Il
1 constitution, ercept that he que
!. tioa IF prohibiting the sd
and manufacture Of Intoxicating tfQU0
n I
; state; and if it should appear that a IN
iority of the votes cast as aforesa
: should be- for the prohibitory law, the
) tho act was to take effect July 8, lS5
; The supreme court held "that this "
4 an attempt by the Legislature to shit q
a responsibility from themselves TO q
;. people, and was therefore void" b
!, that the remaining part 10 the act W
a constitutional.
. The supreme court OF the Unit
r States. in TieraGR rs. Ri'ak6r, has il
. decided as follows:
= "A statute of Texas regulating tax
n ton enacts:
y THAT there shall be levied on al
q collected from every person, firm or
n sociation OF persons pursuing any OF {
!, following occupations an annual tax,
]. follows: "For selling spirituous, vinoI
:. malt and other intoxicating liquors,
!, aGantihes less than one quart, 500;
! Quantities of a quart and less than {
= gallons, 500; provided, that Il
- section shall not be soconstrusd as to
\, clude any wines or beer manufacture
y in this state, or when sold by druggi
" for medical purposes"
IS "Reld, following WeitOR rs. Stat,
n Cent. l.. J. IL, that the statute Is unc'
X stitutional so far as it makes a 6iscri
,r inatlon against wines and beer impori
II from other states, when sold separati
{. from other liquors. A tax cannot be
M acted for the sale of wines and beer
be- foreign manufacture, if not exacted FRI
nd their sale when of home manufactu
er In the present case the petitioners
pt scribe themselves as engaged in the
ar cupation of selling spurious, vino
D. malt and other intoxicating liquors. Z
be is, in all the liquors mentioned and
X. ers not mentioned. There Is no rea:
why they sheuld be exempt from the