Dodge City times. [volume] (Dodge City, Kan.) 1876-1892, 1885-03-26
THE PROHIBITION Law.

THE PROHIBITION LAW.
An Important Opinion From the Attorney General
TOPEKA, Kan, March II, 1855.
Chas. Curtis, County Attorney, Sha~nee County
Topeka, Kansas.
DEAR SIR: In answering the various questions
you asked concerning the new prohibi'Ory liquor
law, passed by the recent legislature will review
the general status of the law this subject, l. g.
the act of 1881 as amended and supplemented by
the act of 1885, which took effect March 10,
1855.
The act OF 1881 is still in force except amended
The only sections amended are two, three, four,
seven, eight nine, twelve thirteen and twenty one
The construction and decision of the
original act az remains unchanged, are
therefore authority for the Interpretation of the
ed sections, in far as the provisions thereof are
the same the provisions of the original sections
they should be construed as a continuation of the
old law, and not as a new enactment. Sec. l. Chap.
104. compiled laws of 1879 In this connection you
inquire: ''Can persons be now prosecuted TO: acts
committed prior to the enactment of the law of
1857
And "Are druggists permits issued under the
act of 1884, and unexpired by limitation still good
in law?''
Each Of these questions answered in the
affirmative upon the authority of the everal provi-
sions of subdivision first of section l, Chap 1O4.
d
affect any penalty incurred under or by virtue of
the statute repealed. This is answer to the first
question. The provisions of any statute,
far as they are the same as those
a continuation of such provisions and not a
new enactment. The provisions for obtaining a
law except that freehold instead of citizen petition
now required. Such provisions as are the
same are a continuation Of the former act, and not
as a new enactment. This Is an answer to the sec
sN,,I It S- to oyoA
renew permits gr anted under the law of 1881, prior
to their expiration.
But you ask "what is the status of the bond given
under the act of 1881, where a druggist continues
to sell under his old permit?"
The amendatory act repeats absolutely the bond
provisions and new bond is now required. The bond
given is therefore not held for violations commit
ted subsequent to the taking effect of the act of
1885. The repeal of a statute however does not
effect any rights which accrued, or
liabilities incurred under the statutes repealed.
Sec l, ch. 104, comp laws 1879. Therefore the
bond remains liable for all violations discovered
to be dis covered, committed prior to the repeal.
The first section of the act Of 1881 remains un-
changed making it a misGemeanor 10 manufacture
sell or barter any intoxicating liquors except for
medical, scientific and mechanical purposes
The second section of the act of 1881 is amended
by section one Of the act of 1885. The change SUBJ
antially is the requirement of freehold petitioners
instead of citizens and the striking out of the re-
quirement of any bond by the druggist. No bond
is required of druggists applying for permits sub
sequeut W tIlc pdSsdSo VI Tic dCl VI icoJ.
Upon this section you ask: whether two or
more parties engaged in business as a firm will be
required each and separately to take out per-
mitY"
And also, "Wil the prescription clerk of the
druggist be required to takO out peTnit?''
While the section remains unchanged, so far
these questions are concerned the courts have not
been called upon to construe the same in these par
ticulars. The section contemplates that the petit
TONERS should certify to the good mora character
of the appl cant or applicants, and that he they
lawfully engaged in the business of druggists,
that the probate judge in granting the petition
should be satisfied that the is true, and that
the applicant applicants can be entrusted with
the responsibility of selling liquor for the excepted
purposes Where two or more persons, each quail
ned to obtain permit, desire to take out one per-
init jointly as firm, there can be no objection to
their doing 60 They may each do SO separately,
and therefore there is'no reason why they may not
do go jointly. The petitioners in such case,
however, must certify that each are of good
moral character, and each are lawfully engaged in
the business of druggists, and the probate judge
must be satisfied that the petition is true as to each
and that each fit to be trusted with this respon
sibility. In the of such joint petition If the
probate judge is not satisfied in these particulars
to any one, he should refuse the petition although
satisfied concerning the essentials to all the 9TH
sers. Under permit granted to particular person
or to several persons doing business az firm, only
the person or persons named therein can sell. The
qualifications ard the trustworthiness of any other
person was not certified to by the petitioners
passed upon by the probate judge. Hence q pre-
scription clerk or other employe not having per
NIT of druggist or firm of druggists having per
NIT, cannot sell liquors under the permit of his en-
ployer or employers.
A final question under this section is: "Can the
probate judge exercise the power of revocation
given by the new law, upon unexpired permits
granted under the old law"
He can. The permit to sell intoxicating liquors
is not contract. The legislature may confer upon
the probate judge power of revocation which did
not exist when the permits were granted, and they
have conferred just such power in this instance.
Section three of the act of 1881 is amended by Sec
ton two of the act of 1885. The first part of the
section is not changed by the amendment except
that under the circumstances that would authorize
the giving of a prescription, the physician is
authorized 10 administer the liquor himself. The
provisions regarding the affidavit required to be
made by the physician omitted, and the methods
of violating the law by the physicians are met by
statement of the circumstances under which they
will be deemed guilty of misd emeanor. The PEN
atty for such violations is also somewhat changed.
Section foud of the act Of 1881 is repealed and an
ton three of the act of 1885,, The first question you
ask upon this section Is: Can a druggist having q
permit sell intoxicating liquors upon the written or
printed statement of the applicant alones'
1t is my opinion that he can.
And again, 'Can q druggist having a permit sell
intoxicating liquors upon written printed pre-
scription without the statement of the applicantf
To this answer that he cannot will stale in this
connection that druggist having permit may
sell to regularly p1actcing physician who is en-
gagged in the practice Of his profession any into1i
Cat1ng liquors upon MS WFlIteu OF printed state
ment alone that said liquors will only be used for
medicinal purposes.
Your nexA question. "Are the statements and afr
davt required to be filed every thirty days exactly
In my opinion the legislature contemplated that
there should be a monthly filing.
Following In this section are certain amplifca-
lions of wnat shall constitute violations thereof,
which 1t will be well to notice: Every person whose
statement SO made for the purpose of obtaining in
toxicating liquors shall be false in any material
Every person who shall sell or furnish any of the
liquors thereon obtained to others q beverage
shall be deemed guilty of misdemeanor.
Sections and of the act of 1881, which relate to
manufacturers and prescribe the conditions under
which liquors may be manufactured for the ex-
cepted purposes remain unaltered and In full force
Section of the act Of 1881 is amended by section
of the act of 1885 by including ANY person not
lawfully and in good faith engaged in the business
of druggist in the class subjected to the penal
ties imposed by this section, which increased
prisonment instead of fine or imprisonment.
The increase Of the penalties for second and subse
quent violations found In the original section is
omitted in the new law.
The change in the language of section of the act
Of 1881 is found in the words, but nothing herein
contained shall be construed to prohibit the making
raised by the person making the same, for his own
use or the sale of wine for communion purposes"
With reference to the last clause Of this amend
ment will suggest that while it was probably not
the intention of the legislature to prohibit the sale
Of wine for communion purposes, sc:ne, liquor
commonly known a. an intox eating beverage, u
clearly within the first class mentioned in the ntox.
icatng liquor cases Is Kan. ISL, aud within the let
ter of the amendment If not within its spirit
Section nine of the act of 1881 Is amended by
ton six of the act of 1885, The changes consist Of
the following additional statements Of what shall
constitute Violations of the section, e., Or who
shall barter or sell the same to any person when he
has reason to believe that the person purchasing
the liquor Is obtaining the same for other than the
excepted purpoeee, although he may have q pre-.
scription or shall have made the statement herein
provided, who shall sell to any person under the
influence OF liquor or who Is In the habit OF becona
ing intoxicated or who shall allow liquor sold a.