Phillipsburg herald. [volume] (Phillipsburg, Kan.) 1882-1905, 1885-03-28
THE PRoHIBITION LAW.
An Important Opinion Prom the Attorney General

Topeka. Eagsas.
dear sIz: In answering the various questions
you asked concerning the new proh1Dl'ory liquor
ave Passe9 Dy the recent legislature VAL review
the general status OF the law this subject, j. E.
the act OF 1881 as amended and supplemented by
ISIS. &C. OF 1850 which TOOK eHs'' AlA1oh 10
The act Of 1881 is stI in force except as amended
Inc only sections amended are two, three. four
seven eight nine. twelve thirteen and renry-One
The construction and decision Of the
hlSAer courts upon so much OF the
therefore authority for the Interpretation of the
law as It now exists With reference to the amend
the same as the provisions OF the original sections
they should be construed continuation OF the
oLu law ana not as new enactment Sec j. Chap
1O=, compiled laws OF 1873. In this connection you
inquire: can persons be now prosecuted for acts
committed prior TO the enactment OF the law Of
And, Are druggists permits issued under the
acI OF Ieols and unexpiEed by limitation still good
Each of these questions are answered in the
affirmative upon the authority OF the several prOvi-
slons OF Subdivision first, OF section l. Chap 1O4
affect any penalty incurred under or by virtue OF
the statute repealed This is an answer to the first
so far they are the same as those
OF prior statute, shall be construed
ne" enactment The provisions Tor obtaining
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
are Iti0u az the former act. and not
"a $
ond question IL is not necessary TO surrender and
renew permits granted under the law of 1881, prior
to their expiration.
But you ask what is the status of the bond given
under the act of ISL where druggist continues
to sell under mis- old permits"
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
effect any rights which accrued. or
liabilities incurred under the statutes repealed.
Sec 1. ch. 104, comp. laws 1879. Therefore the
bond remains liable for all violations discovered or
to be discovered, committed prior to the repeal.
The first section of the act of 1881 remains un-
changed making II misGeneanor to manufacture
sell or barter any Intoxicating liquors except for
medical, scientific and mechanical purposes.
Inc second secllun or the act OF 1881 is amended
by section one OF the act of 1883 The change sub
sJautiay is the requirement OF freehold petitioners
instead OF clJlzen5 ana the STRIKING out OF the re
qutreneuJ of any bond by the druggist. No bond
Is required OF druggists applying for permits sub
sequent to the passage OF the act OF 1850.
Upon this section you ask: whether two or
more parties engaged in business as q IiIm viii be
required each and separately TO take out per
And also, ''Wiu the prescription clerk of the
druggist be required to taEO ont peTuit!'
While the section remains unchanged, so far as
hese que7 lloLs are concerned tne courts nave not
been called upon to cOnsrue the same In these par
uculars. The section contenplates that the petit
TONERS should certify to the good mora character
of the applicant or applicants, and that he or they
are Lawfully engaged IN the business OF druggists,
ana mat the PROBATE Judge IN granting the petition
should be satisfied that the same is true, and that
the applicant or applicants can be entrusted with
t-e responsibility OF selling Lquor Tor 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 so. 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 are of good
moral character, and each are lawfully engaged in
the business OF druggists, and the probate Judge
must be salts fed that the petition is true to each
and that each fit to be trusted with this resp0n
slblity In the case of such Joint petition, if the
TaF ind is nrnf EnfH fraT fH clone
TO any one, he should refuse the petition although
satisfied concerning the essentials to all the 9th
ers. Under permit granted to particular person
to several persons doing business q firm only
the person or persons named therein can sell. The
qualifications and the UrustwOrthiness OF any other
person was not ce1tlHeG 10 Dy me pet1uonerss nor
passed upon 10y the probate judge. Hence q pre-
scripl0n clerk or other en1plOye not having per
Ln!l OF d uE4sL or -f1n on druggists having per
nit cannot sell liquors under the permit Of his eI-
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 a contract The legislature may confer upon
me probate Judge a power or 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
ton two of the act OF 1885 The drst part OF the
section is not changed by the amendment except
that under the circumstances that would authorize
the giving of q prescription, the physician is
authorized to administer the liquor himself. The
provisions REGARDING the afidayt REQUIRED tn ba
made by the physician are omitted, and the methods
of violating the law by the physicians are met by
statement Ofthe circumstances under which they
viii be deemed guilty of nisd eIneanor. The pen
atty for such violations is also somewhat changed
Section fOud of the act OF 1881 is repealed and
ton three OF the act OF 1885, The first question you
ask upon this section is: Can a druggist having a
permit sell Intoxicating liquors upon the written
printed statement OF the applicant alone?"
1t is my opinion that he
And again, ''Can druggist having permit sell
Intoxicating liquors upon written or printed pre-
scriptiOn without the statement of the applicant?'
To this answer that he cannot viii state in this
connection that druggist having permit may
sell to regularly pIacuclug physician who is en-
gagged in the practice OF his profession any intOZi-
eating liquors upon his written or printed state
ment alone that said liquors viii only be used for
Your next question. ssAre the statements and afh-
or merely once month";
In my opinion the legislature contemplated that
there should be monthly filing.
Following in this section are certain ampiifCa-
tiGns of y-1at shan constitute Violations thereof
which it viii be well to notice: Every person whose
statement so made for the purpose of obtaining in
tozicatiug liquors shall be false in any material
matter shall be deemed guilty of miEdemeanOr
Every person who shall sell or furnish any OF the
liquors thereon obtained to others as beverage
shall be deemed guilty of a misdemeanOr.
Sections and of the act OF 1851 which relate to
manufacturers and prescribe the conditions under
which liquors may be manufactured for the eE-
cepted purposes remain unaltered and In 1uI force
Section of the act OF 1881 is amended by section
lawfully and IN good 1alIh engaged Ia the business
of q druggist' the class subjected to the penal
ties imposed by this section which are increased as
TO first offences by the imposition OF fine and inn
prisOnment instead of a 6ne 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 VIII suggest that while it was probably not
the intention of the legislature to prohibit the sale
of wine for communion purposes, tCille, liquor
commonly known intoxicating beverage, is
clearly within the first class mentioned in the intoE-
cating liquor cases. 25 kan 751, aud within the let
ter OF the amendment If not within its spirit
Section nine Of the act Of 1881 is amended by sec
ton six Of the act of 1855 The changes consist OF
the following additional statements Of what shall
constitute violations of the section + e., Or who