The Emporia news. [volume] (Emporia, Kan.) 1859-1881, 1881-06-02
CRozlER.s CONSTRUCTION.

A decision was rendered by Judge
Crozier, of The First judicial district, in
test case brought against Mr.. Holmes,
druggist of Leavenworth, on last Fri
day. The following from the Times of
the 2Sth, in relation to the opinion of
the court, will be of general interest:
-Four cases were before the district
court yesterday, involving construc-
ton of the prOhibitory amendment
to the constitution and the act of the
Legislature TO carry 1t into effect.
Mr.. Holmes a druggist of this city
was charged with four violations of the
law-First, by selling bay rum" for
toilet purposes; second, by selling ''tinc
ture of gentlan compound for medical
purposes; third, by selling "McLean's
Cordial" for medical purposes, and
fourth. by selling essence of lemon"
for culinary purposes. The information
filed by the county attorney in each case
charged that the article sold would "pro-
duce intoXication," and that Mr.. Holmes
had no permit to sell the same from the
probate judge.
The defendant moved TO quash each
information, claiming that neither stated
he had been guilty OF offense.
Jude CroZier, III sustaining the mo-
tions, delivered very elaborate oral
opinion, which, we are informed, will be
written out by HIM and hereafter fur
nIshed for publication if desired. The
main points of the decision are as fol-
lows:
Under the constitutional amendment
the legislature may regulate, but cannot
prohibit, the manufacture and sale of
Intoxicating liquors. for medical, me-
pbanipal or ociaDtifin y1nr,NOcos That
body did not, N the act under consider
alton, attempt to do otherwise. The title
of the act, and all its provisions, are evil
dence of that. All that was attempted
was regulation of the sale of intoxi-
cantS for the excepted purposes.
Upon this branch of the cases, all that
was commended for by counsel for the de-
I ndant was that the phrase "intoxicat-
ing liquors. does not include, and was
not intended by the legislature to in
clude. the compounds mentioned in the
informations filed in these cases.
The court, held, however, that mas
much as the legislature by enacting the
tenth section undertook to, and did de-
fine the meaning of Intoxicating
liquors." the court Is bound by that def
nitlon. That section, taken in connec-
ton with the first section, says, that any
spirituous, yinous, malt or fermented
liquors, or any Nurture thereof which
"1ciH produce iRtOriodtiOR," shall be
taken to include any of the "intoxica-
ting liquors" mentioned in the act. And
so, the allegation in the Information
that the article sold would produce in
toNicatiOn," taken as true, the informa-
ton did charge public offence, unless
some other provision OF the act, properly
construed, would bring about different
result, and this suggestion made il nee
essary TO consider other provisions of the
act.
The legislature cannot prohibit, abso-
lutely, the sale of intoxicating liquors
for the excepted purposes, but if it has,
in the attempt to regulate their sale i'm
posed impossible, or nugatory condi-
tons, the result would be the same.
1t is provided that no person, druggist
or other, shall sell for the excepted pur-
posses without permit" If. under
the provisions of the act, permit can
not be lawfully obtained, of course the
prohibition must be held to be absolute,
which the constitution says cannot be
done. a careful examination of the act
will convince any man, lawyer or lay
man, that the attempt OF the legislature
was to confer the power to give the "per-
nit" upon the probate court and not
upon the probate judge. Such power
cannot, under the constitution, be con-
ferred upon the probate court, and
hence no lawful permit can be obtain
ed. All the machinery of the law being
made to depend upon this permit" of
course 1t follows that if the permit"
cannot be lawfully obtained, the ma
chinery must be imperative
And so Judge Crozier. decided that al
though irrespective of the ''permlt," a
81 .aN.-
yet, because no legal means were pre-
scribed for obtaining 'permit," ali the
penalties prescribed for selling intoxi-
eating liquors for the excepted purposes
were nugatory and the motions to quash
the infoTmations should be sustained.