The Emporia weekly news. [volume] (Emporia, Kan.) 1881-1889, 1881-06-23
4 BOMB FROM BREWER.
The Decision of the Supreme
Court in the Druggist
Test Cases.
The COnstitutionaIiiy of the PrOhibitOry
Law Sustained by Rational
Construction.


cision was delivered by Judge Brewer
on Tuesday:
These cases present for our considera-
tiOn some enquiries concerning the pro-
hibitory law of last winter. Laws 1881,
chap. l2S. These enquiries relate 10
that portion of the statute which at
tempts to regulate the sale of liquors for
medical, scientific and mechanical pur-
poses. Nothing Is said as to that
portion which prohibits the manu-
facture or sale of liquors for use
as a beverage. That for the pur-
poses of these cases is conceded TO
be constitutional and valid. And in
reference to that which regulates, two
distinct classes of enquiry are presented.
One is as 10 the validity Of this portion
of the law taken as a whole, and the
other is, as TO its scope and extent if it
be adjudged valid. For proper under
standing of these questions a brief refer
encc to the statute is essential.
That statute, sec. l, prohibits the sale
of liquor, with proyiso that it may he
sold for the excepted purposes as pro
vided in the act. Then sec. 2 provides
that no one shall sell for the excepted
purposes without first having procured
druggists permit therefor from the
Probate Judge"
Upon this arises the first matter for
our consideration. It is insisted that
the Jurisdiction of the probate court is
defined by the constitution (conSt. art
3, sec. 81, and cannot be increased by
legislative action. ErpresSiO stnins er-
clusto GlteriuS. That while in sec. 2 of
the act the probate judge is named, the
statue, as a whole, shows that the power
was conferred upon the probate court as
a court, that il is not within the constI-
tutional prescription as to the powers OF
such court, and as a conclusion there
from that the court having no power to
issue permit, any permit issued would
be worthless and provision or scheme
resting upon such Il permit must fall
with it. 1t may be conceded that if the
permit is worthless, this entire portion
of the statue also fails, and the sale for
the excepted purposes is without limita-
ton or restriction. That such permit
has no legal 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 cannot yield our assent to this
view. We concede the force OF the ar
gument in its favor. And if the ques-
ton was a new one in this court entirely
unembarrassed by prior adjudicatiOns it
| would require careful consideration and
DOSSIDlY DS ullCICALly
ed. But we feel 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 lib
| erty, but only one of technical Limitation,
Is involved in those decisions, and hence
they should not be lightly departed from.
State VS.. Bosworth, Is Vermont, Ala. In
this case the court well says mo ques-
tons arise more frequently in this cOun-
try than those 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 opin-
ion. Where, then, is the security of in
dividual or corporate rights if these
questions are to be considered as always
open; if no acquiescence, even though
| sanctioned by judicial decree, is to be
| considered as settling them?" We may
remark that while the Jurisdiction of the
probate court is defined by the constitu
ton there is in that instrument no pro-
hibItion on the judges holding other of
! fees of trust and profit, as there is in
reference to the district judges and jus
| tees of this court. Art. 3, Sec. Is.
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 than those of the court over which
| he presides, even if it may not enlarge
j the jurisdiction of the Probate court.
This thought underlies the past rulings
in this court, the past legislation OF the
state, and to disturb it now would I'M
settle many proceedings and titles. In
1 Nk,an 81. I4I,n
| Mr.. Justice Valentine speaking for the
court notices the various Legislation con-
corning the many offices and duties cast
/ upon the Probate Judge, and q repetition
here would be useless. 1t may be con-
coded that it would be more logical and
1 less Objectionable to say that the Legis-
lature may create an office with specified
| duties and then make the person holding
the position of Probate Judge, the in
cumbent of such office, than to hold that
certain duties may be cast directly upon
the person holding the office of 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 should be sustained
| whenever by any reasonable construc-
ton the act can be brought within the
scope of the legislative power. If in
this case the legislature had created the
Office of Commissioner of Licences and
provided that the Probate Judge should
CT ObiciO be such commissioner, there
could be little doubt of the constitution.
atty of such an act. Substantially the
same thing is accomplished by casting
upon him the duties named in this act
And having in view the duty of uphold.
ing an act of the legislature wherever
possible. the past decisions of this court
the general recognition by all depart
mentS of the government, executive, leg
islative and judicial, of the correctness
of such exposition of constitutional linn.
itatiOns, and the substance rather than
the form of this proceeding, we think
the casting of this duty respecting per
mits upon the person holding the office
of Probate Judge must be adjudged
within the power of the legislature
Clearly the act gives the power to the
Probate Judge rather than the Probate
Court. Only incidentally is the court
mentioned and such incidental mention
ought not TO overrule the force of the
express naming of the judge in granting
the power, sustained as it is by the fire.
quent references to him all through the
act.
We pass then TO the second objection
and that is that this portion of the statute
l
and void because it is class legislation
because it restricts the privilege of deal.
ing in liquor to one class, the druggists
and thus debars many from engaging in
business which is profitable and by
some desired. This objection is not
very strenuOusly urged and cannot be
sustained. It will not be doubted tina!
the police power of the state is
broad enough and strong enough
to uphold any reasonable restrictions
and limitations on the keeping,
use or sale of any substance whose keep
Ing, use or sale involves danger to the
general public. The storage of powder
or explosive and highly inf1ammable oils
may be forbidden within city limits.
The Legislature may require railroads TO
fence their tracks, dangerous machinery
20 be everywhere enclosed, poisons to be
labeled when sold, the practice of any
profession requiring skill and knowledge
10 be confined to those who have passed
a certain examination or pursued q pre-
scribed course of study. BY virtue of
the same power it may commit the sale
of liquor 10 any particular class of per-
sons, which, by reason of its special
training and habits it may deem pecul.
iarly fit for such duty. In this case
iR re Ruth, 80 Iowa, 253. the
court says: at has been found
that the health and lives of the people
demand that few licensed persons be
empowered to sell these liquors for law
full purposes and that all others be for
hidden to deal in them. OF those who
are authorized, the law requires salts
factory proof of good moral character.
In this respect it differs not from all
license laws which bestow privileges
upon fit and proper persons making ap-
plicatiOn therefor. These laws have al
ways been sustained" Here the sale of
liquor being allowed for medical Dur.
poses, druggists who deal in medicines
were properly named as a suitable class
to whom TO entrust such sale. The law
.lr,on nsAor,r.s a r,.no.:I.. -. -