Western Kansas world. [volume] (WaKeeney, Kan.) 1885-current, 1885-03-28
THE PROHIBITION Law.
An Important Opinion From the Attorney Genera


b chas Curtis, County Attorney. SAc,cnee Count,
Topeka, Kansas.
DEAR SIR: In answering the various question
you asket concerning the new prohibit Dry iquO
law, passed by the recent Legislature will revie,
tne general status of the law on this subject, q
lhe act of 1881 as amended and supplemented b.
1885.
The act Of 1881 is still in force except amended
1he only sections amended are two, three, four
-eNen, eight, nine, twelve thirteen and twenty one
The construction and decision Of tn
. higher courts upon SO much of tn
original oct as remains unchanged, ar
therefore authority for the Interpretation Of thu
law as it exists. With reference to the amend
the The provisions of the original sections
they should be construed a continuation of the
old law, and not as new enactment. Sec. ], Chap
104, compiled laws of 1879. In this connection YOU
inquire: Can persons be now prosecuted for actf
committed prior to the enactment of the law Of
1SS5?"
g. And, "Are druggists permits issued under the
act of 1884, and uHexpired by Limitation, still good
in law?''
= Each of there questions answered In the
affirmative upon the authority Of the everal provi-
compiled laws Of 1872 The repeal Of statute does
affect any penalty incurred under or by virtue of
The statute repealed. This is answer to the first
far as they are the same as those
of prior statute, shall be construed
as a continuation of such provisions and not as q
permit are the same now they were by the prior
law except that freehold instead of citizen petition
ers are 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
Ond question. 1t is not necessary TO surrender and
renew permits 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 q druggist continues
to sell under his old permit!''
The amendatory act repeats absolutely the bond
If SID nd pV is now ired he hOpd
given is therefore not held for violations commit
ted subsequent to the taking effect of the act of
lss' The repeal OF statute however does not
effect any rights which accrued. or
liabilities incurred under the statutes repealed.
Sec /, CHI. l04, comp laws 1879. Therefore the
bond remains liable for all violations discovered
to be discovered, committed prior to the repeal
The first section Of the act Of 1881 remains un-
changed making 1t a misLemeanor to 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
stanally 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 druggist applying for permits sub
sequent TO the passage OF the act of 1885.
Upon this section you ask: whether two or
more parties engaged in business as firm will be
required each and separately TO take out q per
mitg''
And also, Twill the prescription clerk of the
druggist be required to tako out per,nity''
While the section remains unchanged, so far as
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 or they
are lawfully engaged in the business of druggists,
and that the probate judge in granting the petition
should be satisfied that the same 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-
NIT jointly as firm there can be no objection to
their doing They may each do SO separately,
and therefore there Is no reason why they may not
do SO jointly. The petitioners In such case,
however, must certify that each 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 to each,
and that each fit to be trusted with this respon
sbiIty. la the case 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
ers Under permit granted to a particular person
or to several persons doing business q firm, only
The person or persons named therein can sell. The
qualifications ard the trustwOrthness of any other
person was not certified to by the petitioners,
passed upon 10y the probate judge. Hence a pre-
scripiOn clerk or other empIOye not having q per
nit OF druggist or firm of druggists having per
init, cannot sell liquors under the permit of his
ployer or employers.
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 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
ticn two of The act of 1886. The first part Of the
section Is not oh Dged by the amendment except
that under the circumstances that would authorize
the giving of prescription, the physician is
authorized TO 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 Q
fhA 1rlGfo rNdnR fl1u
will be deemed guilty of q misd emeanor. The PEN
atty for such violations Is also somewhat changed.
Section foud of the act of 1881 Is repealed and an
altogether new section substituted therefor by
ton three of he act of 1885, The first question you
ask upon this section Is: 'Can Q druggist having Q
permit sell intoxicating liquors upon the written
printed statement of the applicant aloneY"
1t Ia my opinion that he can.
And again. "Can q druggist having . permit sell
scription without the statement of the appicantf''
To this answer that he cannot. will state In this
connection that druggist having q permit may
sell TO a regularly pIactoing physician who lie
gagged In the practice of his profession any intoxi-
eating liquors upon his written printed state-
ment alone that said liquors will only be used for
medicinal purposes.
Your next question. "Are the statements and afii-
davit required to be filed every thirty days exactly
merely ol.ce q month";
In my opinion the legislature contemplated that
there should be a monthly fling.
Following In this section arc certain amplihca-
tions OF ~nat shall constitute violations thereof,
which IL Will De well 10 nOIco: Every person W0Oe0
statement made for the purpose of obtaining in
toxicating liquors shall be false In AZ. material
matter shall be deemed guilty of misdemeanor.
Every person who shall sell or furnish any of the
liquors thereon obtained to others a. Q beverage
shall be deemed guilty Of misderueanor.
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 1851 Is amended BY section
of the act of 1885 by including ANY person not
lawfully and In good faith engaged In the business
of q druggist" In the class subjected to the penal
ties imposed by this section, which increased as
to first offences by the imposition of fine and i'm
prisonment instead Of . fine 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
of wine or cider from grapes or apples grown and
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, V:ne, Q liquor
commonly known an intox eating beverage, 10
clearly within the first class mentioned In the intox
cating liquor cases, Is Kan. ISL aud within the let
ter of the amendment II not within its spirit
section nine of the act of 1881 IL amended by SEQ
sou eix of the act of 1885, The changes consist Of
the following additional statements of what shall
constitute violations of the section, L O., Or who
snail barter sell the same to any person when he