Barbour County index. [volume] (Medicine Lodge, Kan.) 1880-current, 1883-05-11
A Higher Law than the ordiuauO.

As we predicted last week the result
then reported in the prosecutions against
the parties charged with selling liquor, was
not the last Of the cases. Police Judge
Hess imposed fine OF SO on A. L. Dun
cas for selling one glass of liquor, the only
one that IL was proved he sold, and ordered
him committed to Jail until the fine and
costs were paid. He had previously i'm
posed a fine Of $40 on Byron Mize for
contempt Of court, in that he refused to
answer certain questions propounded to
him IN the prosecution of the Eckert ease.
Both he and Duncan were put in the hands
Of the sheriff, who held them in construc-
tive confinement until Tuesday, when both
were released by Judge Shepler, probate
judge, under the HABEAs CORPUS act. Ap-
plication was made to him on Monday by
the counsel for the defense, G. w. Ellis.
and an alternative writ directed TO the sher-
if was Issued, retnrnable last Tuesday.
The formalities were waived and the case
came up on its merits. By consent OF
NOuhoSA NhC NWO NsArCo NCIC COISlNGICU
the same time, 1t being agreed that the
same questions were involved In both, to-
wit: Had the police judge authority or ju-
risdictiOn, under ordinance No. 30. of this
city, to impose fine for the violation OF
that ordinance.
Ordinance No. 30, dated April 30, 1880,
prohibited any person from selling wine,
beer, spurious or malt liquor without first
having obtained license from tire city of
Medicine Modge, and provided a penalty
for n violation,
Mr.. Ellis contcnded that ordinance No.
80 was rendered null and void OF the adop-
ton Of the prolibitory amendment to the
constitution which prohibits any county or
municipality FROM licensing tire sale of
liquor. As there was bit the one subject
trItcd Of In ordinance No. 30 and the con-
stitntiOnal provision repealed all laws and
cnactments affecting the sale Of lix.to the
whole ordinance was repealed. In support
OF his position, Mr.. Ellis cited numerous
decisions, all going to show that the repeal
OF bylaw, or ordinance relating exclu-
sIyrIy to one subject, had the rff,ct Of re-
peallng everything In that bylaw or ordl =
nance. That every right Of the city to
prosrcIte under ordinance No. 30 was
swept away by the prohlbitary amendment
II the police court had no authority to pros
ecnte under ordinance No. 30, 1t had no
right to impose fine for contempt of court
In any prosecution under that section. So
the fine imposed on Mize was unwarrant-
ed.
Mr. Jenkins. city attorney, argued that
though the city had no right to grant a
liquor license under ordinance No. 30, BY
reason OF the constitutional prohibition, YET
the ordinance was not repealed entirely by
the constitution, and the city still held the
right to enforce the penalties prescribed
by the ordinance for It's violation. He
cited case Ia 9th Kansas report, which
went up from Ottawa. An ordinance en-
braced several aIbjccts-among them Wal
the requirement Of dramshop license un-
der that ordinance also the prohibition Of
the sale OF liquor contrary to any law, ant
the penalties for any violation Of the two
Provisions. The supreme court held in thIl
case that the city did not lose its authori.
ty to punish for a violation OF the ordi
nance; but did not specify which provision
Mr.. Ellis argued that the intention Of TIM
CONT was, evidently, to protect that part o.
the ordinance which imposed penalty fol
selling liquor contrary TO law; thstit coalt
not mean that the city could punish for tn,
violation ofan ordinances which lt was MOI
authorized % enact.
Judge Shepler took this view Of the cas-
and held that the police Judge had no juris
dIctiOn, whatever, unoer ordinance No. 30
which L.. and has been null and volt
since the adoption Of the Prohibition amend
ment. he had no hesItancy In ordering
the prisoners discharged.
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