The Emporia weekly news. [volume] (Emporia, Kan.) 1881-1889, 1881-06-23

the manufacture or sale OF ANY spirit
uous, malt, vinous, ferrnentcd or other
intoxicating liquors." Now this Ian
guage IS broad and comprehensive.
"Other intoxicating liquors" extends the
scope so as to include every liquor which
comes within the general definition of
intoxicating liquor. And yet if this sec
ton stood alone there would be little
doubt as TO its meaning. 1t would in
clude only such liquors as are used as
beverage. No one would think of ex-
tending II to cologne, extract of lemon,
or any of those many preparations which
although they contain alcohol, the intox-
icating factor in all drinks, are never
used as beverages. But section 10 casts
tlle doubt upon the statute. Ii reads:
'tAl liquors mentioned in section one
of this act, and all other liquors
or mixtures thereof, by whatever
name called, that will produce in
tOxication, shall be considered and held
10 be Intoxicating liquors within the
meaning of this act" This section,
whose language is unfortunately chosen,
is the one which has provoked this Iiii.
CATION and has tended to create so much
prejudice against the statute. For its
letter reaches to preparations which no
man can believe were within the intent
of the legislature, and any interference
with whose sale, if within the power of
the legislature. would be felt by every
one to be unnecessary and unreasonable.
Alcohol is the intoxicating principle,
the basis of all intoxicating drinks
Whatever contains alcohol will, if a suf-
ficient quantity be taken, produce intox-
ication. Hence whatever liquor con-
tains alcohol is within the statute. So
reads its letter. But when We come TO
enquire as To the liquors which contain
alcohol, we find lengthy list of fluids
which are never used as beverages.
Cologne, extract of lemon, bay rum,
paregoric, tincture of gentian and many
other medical preparations contain alcO-
hol, and all will produce intoxication:
They are seldom used as u beverage and
yet they they may be.
IntOxicatiOn produced by drinking
bay rum has been known. Yot few will
drink it. Its uses are for the toilet.
But three of the cases before us are
prosecutions for the sale of bay rum, es-
sence of lemon and tincture of gcntian,
respectively. These preparations con-
tain alcohol, and wilk each, il is charged,
produce intoxication. If the statute in
cludes these articles, many of them are
absolutely and wholly shut out from
sale. The excepted purposes in the stat
ute are medical, scientific and mechan-
ical." But toilet and culinary purposes
are strictly included within neither of
the three. The lady who desires cologne
for her toilet purposes could not get a
physicians prescription therefor, nor
file an affidavit that she want
ed it for scientific or mechanical
purposes, and yet only in these
the legislature intend interference with
such articles, and if not, what Is the
proper construction to be given to the
language in said section 10? We have
had occasion to notice heretofore the car
dinal canon of construction, which is
that the intent when ascertained governs,
and TO that all mere rules of interpreta-
ton are subordinate. State VS.. Bancroft,
% Kas., 205. The letter does not always
express the intent. "a thing which is
within the intention of the makers of a
statute, is as much within the statute as
if it were within the letter, and thing
which is within the letter of the statute
is not within the statute, unless 1t be
within the intention of the makers; and
such construction ought to be put upon
it as docs not suffer it to be eluded.'
Holmes va. CarleY, 81 N. Y, 300. Ba-
cons abridged statute 1. S. 5, and 10.
And authorities cited. The familiar il
lustratiOn is, that when it was enacted
"that whoever drew blood in the streets
should be punished with the utmost Sc
verify" it was held not to include a sur
geOn who opened a vein of a person
having a fit in the street Plowden thus
quantity expresses the same thought in
his commentary upon the case of Eys-
ton VS.. Studd, PloWden, 465, at is not
the words of the law, but the internal
sense of it that makes the law, and our
law dixie 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 the law is the soul of tho
law, quGG ratio Eegis est ANNA Legfs.
And the law may be reSemblcd to nut,
| which has shell and kernel within.
The letter of the law represents the 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, so you will receive
no benefit from the law ifyou rely upon
the letter; and as the fruit and profit of
| the nut lies in the kernel and not the
shell, so the fruit and profit of the law
consists in the sense more than in the
letter. And it often happens, that when
you know the letter, you know not the
sense, for sometimes the sense is more
confined and contracted than the letter
and sometimes it is more large and ex.
| tensive. Doubtless the letter is first to
be considered in order to determine the
intent of the legislature, for the courts
may not read a law simply as they wish
| it should read. But other matters may
| also be considered, and among them the
evils sought to be remedied. 1t was re
solved by the Barons of the Exchequer
in HeydOn's case, 3 Rep. z, as follows:
"For the sure and true Interpretation
of all statutes in general, be they penal
or beneficial, restrictive or charging oil
| the common law, four things are 10 be
| disceYned and considered.
1. What was the common law before
| the making of the act?
2. What was the mischief and defect
| against which the common law did not
| provide?
3. What remedy the Parliament hath
resolved and appointed to cure the dis
ease of the commonwealth?
4. The true reason of the remedy"
Now, what was the evil sought to be
| remedied by this statute, and the consti
| tutional amendment of which it was an
| outgrOwth? It was the use of intoxica
ting liquors as beverage. AS counsel
for defendants aptly and forcibly ex
pressed it, the movement of which the
amendment and the statute were the ex
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
learned judge of the third district upon
some of the cases now before US:
THE history of the movement, which
resulted in the adoption of the 'protibi
ton amendment and the enactment oil
the law now under consideration, and
the object to be thereby secured, are toe
well known to give rise to any dispute
Those who voted for the amendment
were not voting TO prevent the use of ar
ticles common to toilet purposes or cul
mary use. 1t was no attack upon bay
rum, camphOr or tincture of lemon Il
was intended only 10 strike at such llu
uOrs and mixtures as we're in ordinary
and known use as intoxicating beverages
Tor which, in the failure to obtain such
beverages, it could reasonably and fairly
be believed would be used as substitutes
1 1t seems that this intent and object oi
the law must be taken into consideration
| as an important element in it's construc
ton; and that while some particular pre-
paratiOn, or patent medicine might
possibly, in few cases, with a few ex
ceptiOnal constitutions, produce effects
| similar TO intoXication-at an enormous
risk of health or life, perhaps-the rea
question and test to which each LIQUOR
or mixture is to be submitted, is about
this: is there reasonable danger thai
this will be used as-or as an equivalent
substitute for-an intoxicating bever
ager The law should receive reason
able constructiOn-equaliy removed or
the one hand from a tanatical coioring
and on the other from tendency TO frit
ter it away"
With these general considerations we
pass to a decision of the particular ques
tons presented. 1t cannot be doubted
but that section 10 is broad and sweep
ing enough TO bring within the statute
/ every LIQUID, which by reason of the