The Saline County journal. [volume] (Salina, Kan.) 1871-1893, 1881-06-23

STATE OF KANSAs,(
sUPRElGH COURT.
From Lsavenworth county.

From Leavenworth county.
Ne ana 6tats ". Holma ChArgs:
Selling Bay Rom. Affirmed.
No. 42M. 6fate ". Holmes. Charge:
Selling Tincturs 0sntian. Affirmed.
No 3,260. State ". Holmes. Charge:
Selling NcI.ean's Cordial. Reversed
No 2,281. 6tate ". Holmes. Chafge:
selling Extract Lemon. Affirmed.
From Shawnee county.
No. 2,298. State ". Barnes. Chargs:
Selling Brandy. Affirmed.
No. 2,294. Stats ". Rowlsy. ChaFgs:
Selling Alcohol Affirmed.
No 2,286. State ". R0wley. Charge:
Selling Whisky. Tolu, etc. RsverSed.
No. 2,86. State ". Swim. charge:
Selling Prickly Ash Bittess. Reversed.
BY THE CoURr. BREwKR, J.
I. The LEGISLATURE hes the power
under the Consultation 10 cast upon
the pefson holding the olllce Of Judge
Of the Probate Court the duty Of issu-
ing permits or licenses for the ale OF
liquor, - provided In chapter l28 Of
the laws Of 1881.
2. Said chapter l2s % far - II pur-
ports to regulate the sale Of liquor for
medical and other purposes II not In
conflict with the Constitution because
It restricts the right TO sell to drug
gists.
8. While in order to determine the
true scope and meaning Of statute,
its letter % to be flDt examined and
considered, yet courts should also have
regard to the evil sought to be RENE
died, for that which u within the let
ter though not within the spirit Of the
statute b not In legal contemplation .
part Of Il.
4. The evil sought to b remedied by
said chapter l20 hes the use Of intoxi-
eating nqu0rs - . beverage. This
purpose interprets the law.
s. Whatever IL generally and pOpu-
larly known - intoxicating liquor,
such a. whisky, brandy, gin, &c, IL
within the prohibitions and regular
tons Of the statute, and may he % de-
clared - matter Of law by the courts.
6. Whatever ON the other hand 10
generally and popularity known -
medicine, an article for the toilet, or
for culinary purposes, recognized and
the formula for its preparation prescri.
bed in the United States Dispensatory,
or like standard authority, and not
among the Liquors ordinarily used -
intoxicating beverages; such a. tinct-
ure Of gentian, paragoric, bay rum,
cologne, essence Of lemon, &C., Is with
out the statute, and may be 80 declared
"a matter Of law by the courts. and
this notwithstanding such articles
contain alcohol, and In fact q charged
may produce intoxication.
7. As to articles intermediate these
two classes, articles not known to the
United States Dispensatory or other
similar standard authority, compounds
Of intoxicating liquors with other In.
Rredients. whether put upon Q single
prescription and for . single case, or
compounded upon given formula and
sold under . specific name Of bittsfs,
cordials, tOnics, ETC., whether they are
within or without the statute. Isl ques.
ton of fact for . jury and not Of law
for the court. The rule or test 10 this:
II the compound or preparation L. such
that the distinctive character and effect
Of intoxicating liquor IL gone, that it,
use a. an intoxicating beverage 10 pfac-
tically impossible by reason Of the
other ingredients, then 1t IL outside the
statute. But II on the other hand the
intoxicating liquor remain ~ . dis
tinctive force In the compound and
such compound IL reasonably liable to
be used ~ an intoxicating beverage,
then Il II within the statute.
All the justices c0ncurring.
A true copy. Attest:
IL. ST. &. ]. Brown,
Clerk Supreme Court
&c. J. Brown, Clerk Of the Supreme
Court Of the State Of Kansas, do here
by certify that the foregoing II . true
and correct copy Of the syllabi in the
abOve-entitled cases Is the same appear
ON file In my Office.
Witness my hand and official seal,
Il. 81 hereto attached, at my ONCE
In Topeka, this 2lst day Of
June, A. d. 1881.
[sELL. C.. J. BROWN,