The Iola register. [volume] (Iola, Allen County, Kansas) 1875-1902, 1881-07-08
THE DRUGGIST TEST CASES.
opinion Of the supreme Court.

Opinion Of the Supreme Court.
The following opinion Of the Suprem
Court in the druggist test cases was deliv-
cred BY Judge Brewer on the 21st:
These cases present for our consideration
some inquiries concerning the Pruhi6itory
Law of last winter. claws 1881, hap. l2S.)
These inquiries relate to that portion OF .ne
| for medical, scientific and mechanical pur
poses. Nothing is said as to that portion
tine Tnas the
| purposes of these cases is cOnced~dt q be con-
| stitutional and valid. And in reference to
that which regulates: two distinct classes OF
| inquiry are presented. One is as the valid
| ity of this portion of the law taken as wi ole.
| and the other is as to its scope and extent hit
be adjudged valid. For proper understand.
| ing of these questions brief reference to the
| statute is essential
The statute, Sec. /, prohibits the sale of H.
quor, with prOviso that it may be sold Tor
| the excepted purposes as provided in the act.
| Then Sec. provides that no one shall sell for
| the excepted purposes without first getting
q druggists permit therefor from the Probate
Upon this arises the first matter for our con-
| sideration. 1t is insisted that the jurisdiction
of the Probate Court is defined by the Consti-
tuition (COnst. Art. 3, Sec. 3, and can not be
| increased by legislative action. Erpressio
| unius erclusio dlteriMs. That while In Sec. OF
the act the Probate Judge is named, the stat
| ute as q whole, shows that the power was
| conferred upon the Probate Court as Court,
that it is not within the constitu, ional pre-.
scription as to the powers OF such Court, ana
| as q conclusion therefrnm that the Court nav
ing no power 10 issue permit, any permit
issued would be worthless and provision or
scheme resting upou such permit must tail
| with it, 1t may be conceded that If the per-
init is worthless, this entire portion OF the
statute also fails. and the sale for the except
ed purposes is without limitation or restrlc-
ton. That such permit has nOlegal force was
the opinion of the learned Judge OF the First
District Court, from whose decision four OF
the cases before us are brought.
We can not Yield our assent to this view
We concede the force OF the argument in its
favor And ii the question was new one in
this Court, entirely unembarrassed by pror
eide, alton and might possibly be differently
de; ermined. But wefeel ourselves concluded
by past decisions, decisions running back TO
the early history of this Court. some OF them
made before any of the present Justices were
members thereof. No matter of absolute
right or personal liberty, but only one of tech
sions, and hence they should not be lightly
departed from. state VS.. Bosworth, l3 Yer
mont 4H. In this case the Court well SAYS
"nO questions arise more frequently in TINS
country than tuose which involve the con-
structiOn of the Constitution and the powers
of the different branches of the Government,
and in many of these there is no doubt an
honest difference of opinion. Where. then,
is the security of individual or corporate
rights if these questions are to be considered
as always open; il no acquiescence. even
be Considered as settling them?' We may
!, remark that while the jurisdiction of the Pro-
bate Court is defined by the Constitution,
there is in that instrument no prohibition on
the Judges holding other offices of trust and
profit, as there is in reference to the District
Judges and Justices of this Court. Art 3, Sec
H. Hence he may hold other offices whose
duties are not inconsistent with those of the
Probate Court, and the Legislature may cast
, upon the person holding the Office of Probate
judge other duties and cares thanthose of the
Court over which he presdes, even if 1t may
not enlarge the jurisdiction of the Probate
mss in this Conrt. the past legislation of the
|. State, and to disturb it now would unSettlG
many proceedings and titles. In the case OF
im re johnson, l2 kans. lG2 Mr.. Justice Valen.
] tine, speaking for the Court, notices the vari
GUS legislation concerning the MANY offices
and duties cast upon the Probate Judge. and
n repetition here would be useless. 1t may
be conceded that it would be more logical and
less Objectionable to say that the Legislature
{ may create an Office with specified duties ant
then make the person holding the position O
Probate Judge the incumbent of such Office
than to hold that certain duties may be cas-
directly upon the person holding the Office o
Probate Judge. But substance Is above form
That which may properly be done in one way
ought to be upheld, If possible. though done
, in another way; and an act of the Legislature
0 should be sustained whenever by any reason
. able construction the act can be brought with
in the scope of the legislative power. If il
thia case the Legislature had created the pfiic'
that the Probate Judge should er-o6fcio b.
G such Commissioner, there could be little doub
of the constitutionality of such an act. Sub
stantially the same thing is accompiis9ed IT,, Q!
act. And having in view the duty OF uphold
ing an act of the Legislature wherever posi-
'ne V al ~ Of
Government, executive, legislative and judi
cial, of the correctness of such exposition O
, rather than the form of this proceeding, W
think the casting of this duty respecting per
mits upon the person holding the Office O
poWer e Of " the Legi s Clearly the &C
gives the power to the Probate Judge Iathe
than the Probate Court. Only incidentally
: mention ought not to override the expires
| naming of the Judge in granting the power
: sustained as it is by the frequent references
e him all through the act.
}. We pass then to the second objection, an
that is that this portion of the statute must b
pronounced unconstitutional and void be
cause it is class legislation, because it restrict
the privilege of dealing in liquor to one class
the druggists, and thus debars many from en-
i. gaging in a BUSINESS which is profitable, AZ
4 by some desired. This objection has not bee
very strenuousiy urged and cannot be sus
;. tanned. 1t will not be doubted that the pc
q lice power of the State is broad enough an
strong enough to uphold any reasonable re
strctions and limitations on the keeping, us
!. or sale of any substance whose keeping, us
- or sale involves danger to the general public
e The storage of powder or explosive and high
|
city limits. The LEGISLATURE may require rail
- roads to fence their tracks. dangerous ma
i. c.linery to be everywhere inclosed, poison
to be labeled when sOld the practice of an
profession requiring skill and knowledge
{. | be confined to those who have passed 4 eel
>, tain examination or pursued prescribe
IL course of study. BY virtue of the same pow
d err it may commit the sale of liquor
any particular class of persons whic
by reason of its special training and habits
|, may deem peculiarly mt for sucn duty. In tn
!. | case in re Ruth, 32 Iowa, 25I, the Court says
cit has been found that the health and live
of the people demand that a few licensed pei
=. | sons be empowered to sell these liquors IL
lawful purposes and that all others be forbit
le den to deal in them. of those who are al
,. | thOriZed the law requires satisfactory proc
:, of good moral character. In this respect
~ | differs not from all license laws which beSto
J. | privileges upon tit and proper persons NAL
:. ing application therefor. These laws have a
10 WAYS been sustained" Here the sale of liqut
r. being allowed for medical purposes. druggis
"a | who deal in medicines were properly name
rs a suitable class to whom to entrust sue
., sale. The law does not attempt to present.
m who may and who NAV not become druggist
That question each individual settles for hin
u self. 1t simply SAWS that only druggists sha
q sell liquor. 1t is like a law which should 70
a bid any but licensed engineers from runnir
the engine of p s-enger train, any but
I'd censed attorneys from appearing for a cliel
in a court of record, any but medical grad,
ates from engaging in the practice OF med
80 s~A-. fr.<S ~,