The Iola register. [volume] (Iola, Allen County, Kansas) 1875-1902, 1881-07-08

,reDarations which no man can believe were
within the intent of the Legislature: and any
| Interference with whose sale, II WITHIN tno
power of the Legislature. would be Ien uy
very one to be unnecessary and unreasOn'
,ble. Alcohol Is tho intoxicating princlple'
he basis of all intoxicating drinks. What.
| ever contains alcohol will. sa ina,ton
! Hence whatever liquor contains alconoi IS
within the statute. So reads ns les
the sI 'auo wse which contains alcohol We lind
| lengthy list of fluids which are never use1 as
| beverages. Cologne. extract OF lemon. pay
rum paseIe M Contain aico
| hol, and all will produce intOxicatlOn. Iney
| are seldom used as q beverage, ana yet they
has been known. Yet few will drink it. Its
uses are for the toilet. But three OF the cases
| before US are prosecutions for the sale OF pay
tian, respectively. These preparations con
| tain alcohol and will each, it Is charged. pro-
| duce intoxicatiOn. II the statute lnciu9e
and wholly shut out from sale. The excepted
purposes in the statute are medical seen
| tific and mechanical" But toilet ana cunna-
| nv purposes are strictly included within nei-
ther of the three. The lady who desires co,
| logne for her toilet purposes could not pet
physicians prescription therefor, nor ME an
affidavit that she wanted It for scleneinc or
this way does the act provide for sales.
Did the Legislature intend interference WIN
proper construction to be given to til, the
language in said Section 10? We nave
had occasion to notice heretofore tne
cardinal canon of construction: which Is
| that the intent. when ascertafned. governs,
and to that ali mere rules OF interpretation are
subordinate. Estate vs. Bancroft, y hans,
POSI- The letter does not always express the
| intent. "a thing which is within tine lnten-
ton of the makers OF statute !! as mu SE.
within the statute as II It were witnn tse "
| the statute IS not within the statute, unless u
be within the Intention of the makers; and
such ought to Se p4f II -
Carley. 81 NY, 800; Bacon's abridged stat
utes l. s. and 10: and authorities cited.) The
familiar illustration is that when ~ was ,, EN-
should be punished with the utmost severity,
it was held not to include a surgeon VINO
the vsn o. the
same thought in his commentary upon t .Ie
case of Eyston VS.. Studd, Plowden, 465 1t
sense of it that makes the law. and our law
Qike all others consists of two parts. VIZ: OF
body and soul; the letter of the law Is the
body of the law, and the sense and reason OF
est ANNA iegis And the law may be reSenoieo
to NUT which has a shell and kernel with.
Shell, and the sense of it the kernel; and as
YOU will be no better for the nut if you make
use only of the shell: ELL, so you M yaM rf #
you rely upon the letter; and as the fruit and
profit of the nut lies in the kernel and not In
the shell. so the fruit and profit OF the Jaw
And it often happens, that when you know
the letter. you know not the sense, for some
times the sense is more confined and con-
more large and extensive" Doubtless the
letter is first to be considered in order to DE-
termine the intent of the Legislature, for the
hoy
it should r. ID. But other matters may also
be consid ID, and among them the evils
s ught to be remedied. 1t was resolved by
the Barons of the Exchequer in Heydons case
3 Rep T. as follows: "For the sure and true In
depreciation of all statutes in general, be they
penal or beneficial, re-tricttve or enlarglng OF
. cerned and considered. l. What was the com
mon law before the making OF the act! =:
What was the mischief and defect against
which the common law did not provide: >;
J What remedy the Parliament hath resolved
and appointed to cure the disease OF the
Commonwealth? The true reason OF the
! remedy"
? Now, what was the evil sought to be ram.
! edied by this statute. and the Constitutional
amendment of which it was an outgrowth:
, 1t was the use of Intoxicating liquors as beV.
9 erage. As counsel for defendants aptly ana
forcibly expressed it, the movement OF which
!: the amendment and the statute were the e1-
preston and the result was not crusade
against cologne and the extract OF lemon.
And in this connection we quote from the
careful opinion prepared by the iearn ae,a
e "The history of the movement, which re.
suited in the adoption OF the .Preh ND n
{ now under consideration, and the object to
he thereby secured. are too well known to
= give rise to any dispute: Those VINO -. vote. .s
: | vent the use of articles common to toilet pur'
: poses or culinary use. 1t was no attack upon
: bay rum camphOr or tincture of lemon; II
e inf cd
!. and mixtures as were in ordinary and known
4 use as Intoxicating beverages-or which, in
e the failure to obtain such beverages, it could
e reasonably and fairly be believed would be
;. | used as substitutes 1t seems that this intent
I and object of the law must be taken into con
g sideration as an important element in its
t construct on; and that while some particular
r preparation, or patent medicine might pos.
3 sibly. in q few cases, with few exceptional
8 toxication-at an enormous risk of health OIL
), life perhaps-the real question and test &c
which each liquor or mixture Is to De sub
mitted, is about this: is there reasonable
d danger that this will be used as-or as ar
Q equivalent substitute for-an Intoxicating
). beverage? The law should receive reason
8 able cOnstructiOn-eQuallyr removed on the
3, one hand from a fanatical cOiOring. and or
i the other from a tendency to frtter it away
d With these general considerations we pass
n to q decision of the particular questions pre-
j. sented. 1t can not be doubted but that Sec
! ton 10 is broad and sweeping enough &c
d bring within the statute every iiqnid, which
e duce inIoxication, and this irrespective OF the
e amount of alcohol contained, or the presence
G. of other ingredients of such character as tC
l. prevent any use of the liquid as beverage
n But such was not the inten: of the Legi>laturt
l. in the act, and such therefore can not be ad
/. juged it's true import. And speaking for him
Is self alone. the writer OF this opinion does no
Y hesitate to say that such a construction II I'm
% peratively demanded by the language uset
r would carry the statute bevond the power o
d the Legislature. do not think the Legisla
ture can prohibit the sale or use of any ariel
o whose sale or use involves no danger to tnt
h general public. The habits, the occupation
it the food the drink, the lie of the individual
e are matters of his own choice and determine
,: ton and can be abridged or changed by tn
IS majority speaking through the Legisatur
r only when the public safety the public health
J. or the public protection REQUIRE. l do no
l. think the Legislature has the power to pro
1. hibit the raising and sale of corn. though GU
# of it whisky may be obtained. No more do
it believe the Legislature has the power to pro
W hibibit the sale of cologne, though alcohol b
< in il. The constitutional guarantee of life
!. liberty and the pursuit of happiness is no
II limited by the Temporary caprice of a presen