The Emporia weekly news. [volume] (Emporia, Kan.) 1881-1889, 1885-03-26
with reference 10 The last clause

low LIQUOR SOLD e. medicine or OthefWlse
to be drank on his premises; the increase
of penalty by imposing q fine and i'm
instead OF fine OF impris-
onment for the forfeiture of his permit
and by forfeiture of the right to OBJ
tain permit for the period of i've years.
The increased penalties for subsequent
ohenses are omitted.
FORFEITED PRIVILEGES.
Right here you further inquire: lisa
druggist VINO was convicted under this
section before amended and whose per-
NIT was declared forfeited by The court
rendering sentence on such conviction
procluded from the right Il Obtain q pre-
NIT for the period of five years I''
Under the act of 1881 for the first VIOLA
ton of this section by any druggist q
fine or imprisonment was imposed and
In addition thereto the druggist forfeited
his permit. For q second offense there
was an increased foe or Imprisonment,
forfeiture of penalty and forfeiture tor
the period of five years of his right to
obtain q permit. And Tor g third Of
Tense there was with the other penalty
an absolute forfeiture of such right for
ever.
The section as amended affixed the
penalty of forfeiture OF the right to OBJ
tain permit for f1Ye years to the first
offense. The penalty for the first viola
ton of the law of 1881 connot be incress-
ed by the law of 1888. A druggist con-
victed and sentenced of FIRST offense''
under the law of 1881 would have the
to Obtain q permit if that law had re-
NAMED unchanged. He may therefore
be granted a permit now nOtwithstand-
ing the change in the law.
But druggists who, prior to the amend
ment of the law, had been convicted of q
second or third offense, having already
lost the right to obtain q permit for the
period of five years or forever are not re-
lieved from such penalty by the amend
ment and repeal of the section under
which il was imposed
Section 10 of the act of 1881, defining
what shall be held to be intoxicating
liquors, and section II OF that act, re.
lating to the duration and the renewal
of permits to druggists and manufac
turers, are not amended or repealed.
Upon section 10 you PROFOUND the
following: "Does the law intend thai
prepared medicines containing sufficient
alcohol TO intoxIcate when sol in good
faith as medicines and not a. beverages
shall be soil as intoxicants upon state
ment in the case of liquors ~
The question depends upon a question
of fact that they can not be here deter
mined. The following quotation from
the intoxicating liquor cases, 25 Kan
| ISL, will explain what l mean: eff the
compound or preparation be such tha
! the distinctive character and effect o.
Intoxicating liquors are gone, that III
| use as an intoxicating beverage Is prac-
tically impossible by reason of thC
other ingredients it is not within
the statute" = = = On the other hand
if the intoxicating liquor remain al
a distinctive force IN the compound, anC
such compound Is reasonably liable e
| be used as an intoxicating beverage it il
within the state.' The element of gooC
faith in the sale does not avail the drug
| glst if the jury decide that the com
pound falliwithin the last mention class
II the druggist sells compounded med
| icines ana preparations containing al
cohol without observing the require
ments of this act, he takes the risk of tn
jury to whom this question must be sub
mitted in 3 prosecution of such sale as
violstiOn of finding this fact agains
him.
The amendments of the act of 1881 b.
the act of 1885 do not weaken or over
turn any of the decisions of the suprem
court constituting the original act.
1
the amended section, but the new section
IL (section Z of the new law) is substan
cialiY the same as the original section
SO far as 1t goes, except that the penalt'
for a violation OF its provisions is in
creased.
| SALOONS COMMON NUIsANCES.
Section ID of the act of 1881 i
amended by the section OF the sam
numbe of the act OF 1885. In the nev
section all of the old section is re-enacI
ed, with the difference that the place
where intoxicating liquors are kept 70
delivery are put under the head of com
mon nuisances, and the word use
omitted from the description of sue
places. The method of abatement /
explained i. e. by taking posses
sion thereof and destroying a
intoxicating liquors found therein t
Rether with all signs, screens, bars, bot
ties, glasses and other property used il
keeping and maintaining said nuisance.
The penalty il Increased by the Iemovs
OF the alternative of fine or imprisCJ
nent or the imposition of both. Tn
latter part of the new section relating {
the injunction against the maintenance
of sucn nuIssnces is new legislation.
Sections IA, IA, Is, 16, II, 10, 10, an
20 of the act OF 1881 remain unchanged
Section 81 of the act of 1881
amended by section IA of the act of 1888
The changes are that at shall not /
necessary, TO describe the place wheI
sold, except in prosecutions tor keepin
and maintaining DmmOn nuisance, {
where lien is sought to be establishe
against the place where such liquor
were illegally sold" and that lit sha
not be necessary in the first instance II
| T6n hot ho al,
did not have q permit to sell intoxica
: ing liquors for the excepted purposes
aud that mo person shall be excuse
from tesutying touching any OffenI
committed by another against any
: the provisions of this act by reason
|. his testimony tending to criminate hin
! self (the witness); but the testimoI
given by such person shall in no case
used against him."
This Is the last section of the act
1881 that IS directly amended or I
pealed
: Sections 8, o, 10, IL, I2, Is, 16, II al
!. 10 of the act of 1885 contain the new fe
: lures OF the law, except the minor move
: ties introduced IN the several amendt
sections, and which have been fully I
> ferred to above.
: EXAMINATION OF WITNESSES.
: Under section 8 you inquire: Are Il
examinations of the witnesses summonl
= by the county attorney to be public
+ private"
Being ex parte hearings and the statu
not declaring otherwise l am of tt
n opinion that 1t is IN the discretion Of q
county attorney to conduct such exaI
nations IN public OF private as may be
, advance the interests of justice, Il
+ county attorney having power to exclu
\ all persons except the witness tesiifyir
!. If he sees ut.
. Under section 10 you ask: ''What
4 Is the county attorney entitled to ha
taxed as costs In q prosecution for q vi
latinn of the law committed prior to d
a enactment of the law of 1885 but pros
a cuted, tried and concluded subsequent
n therefor
. 1 am of the opinion that he is entitl
n to the fee provided by the new law
n EXPRESS COMPANIES
y And as q f1nal question it is aske
= "Do the employees of express compaDi
!, and other common carriers violate al
!. of the provisions of this act by KNOWN
II ly carrying or delivering intoxicati
liquors shipped into the state fro
2 points outside of the state to indivldui
a for their private use"
e If the liquors are Consigned To the
dIviduals 10 be paid for on delivery. I
n common carrier and Its employees are /
" agents OF the consignor to complete I
sale, and being q sale in the state
ia other than the excepted purposes, and
q. persons not authorized 10 make sales
II the excepted purposes, the employees
nt undoubtedly violating the law and
20 subject to its penaltIes- If the deliver
" are made by such employees to indiviC
" ais to be sold IN violation of the l.
40 such employees are guilty of the off
rs prescribed by SECTION II of the aci
70 1885.
D If the express office is . place VII
intoxicating liquors are kept for de-
cry In violation of the Law, it Is decla
Il, by section Is of the act of 1885 to be
C. common nuisance, and the owner
rs keeper thereof is liable to convictior
ID Maintaining q common nuisance,
II penalty tor which Is prescribed IN
Is section last referred TO.
50 Information under section of
II