Dodge City times. [volume] (Dodge City, Kan.) 1876-1892, 1886-01-07
ANOTHER DECISION.

In the District Court at Leavenworth,
when the injunction suit brought by the At
I torney General against Harmon & Baum to
restrain them from selling liquor was
! called for trial, Judge Crozier, after reading
/ section Is of the State law, which declares
! that places where liquors are sold are COM
mon nuisances, rendered, in substance, the
/ following decision:
! The defendants by their counsel, object to
| the allowance of the temporary injunction
upon these grounds:
First, That the prohibitory act of 1851 and
the amendments thereto contain more than
| one subject, which is not clearly expressed
1 I'm the title:
Second, That the thirteenth section above
| quoted, is part Of a special act; and
Third. That this is prosecution and the
/ defendants are deprived Of a trial by Jury.
! First, AS to the first objection, section 16 of
/ article of the constitution provides: NO
bill shall contain more than one subject,
/ which shall be clearly expressed in the title.
/ The point of this objecton is that section Ii
| of the amendment to the prohbitory act
/ provides for civil and a criminal proceed
! ing, which are two distinct and separate sub
/ jects, and that the title of the act indicates
prohibit the manufacture and sale Of
| Intoxicating liquor except for medicinal.
scient fc ana mechanical purposes, and
to regulate the marufacture and sale
thereof for such excepted purpose. In
November, 1880, the following amendment
was added TO article Is of the constitution:
Section TO- The Manufacture and sale of in
tOxicating liquors shall be forever prohip-
tied in this State, except for medicinal. sci
entifc and mechanical purposes. This
Z nyNdy, ant a
providing therefor, authorizes the Legislation
necessary to carry it into effect. What that
legislation should he was left to the wisdom
and discretion of the law-making power,
subject only to the iimtations that IT snail
not violate the constitution of the United
States or other provisions or the Constitu'
| ton of this State. The Legislature might au-
thorize a civil or criminal proceeding,o or both.
! Second. Section II, article 2, of the constftu.
! ton reads rs follows: "All aw~of general
Eature shall have uniform operation
| q general law can be applicable, no speciai
! law shall be enacted. 1t is objected that the
! prohibition act singles out and makes spe-
! cial provision with reference to the nu!sanceS
! denounced by it, and Is therefore speclai
! legislation within the meaning OF this clause
| of the Constitution. 1t means what IT says:
| The Legislature may denOunce as crime and
! act within constitutions! limitations, proTid-
! ing separate punishment for ii and sep
! arate manner of treating it, and sucn a pro-
! vision will not be special legislation within
! the meaning Of the constitution, provided it
| apply uniformly to the same act, all over the
! State or, III other words, have uniform
| operation throughout the State. This law
| does provide thar keeping open house for
| the sale of Intoxicating liquors contrary 10
| the provisions OF the act shall be deemed a
nuisance, and provides the manner of treat
| ing it, which provisions apply to the same
| facts everywhere in the State, and therefore
| is not obnoxious to the sections OF the con-
stituticn above quoted. Hence, the law Is
not unconstitutional upon that ground.
| Third-The third objection is much more
serious one. and it would be ahectation in
me to say that proper construction ana al
iniStrat.On of this statute did not involve
great difficulty. What kind OF proceeding or
proceed ngs are provided for in this thir-
teenth section? Are they all. if there DO
more than one, criminal proceedings, or
is there but one. and that a criminal pro-
ceedng? Or, if there be more than one,
is one IA criminal proceeding: 1t will be 90
served that the original paper N TINS case Is
the Attorney General i'll the name of the
State. 1t gives the court TO be INFORMED
of what the Attorney General CLAIMS 10 ne
viOlat Ons of the act setting out what would
be necessary in case he proceeded TO only
abate the place as nuisance. Now. must II
be held that because he calls his paper nicd
a petition that the proceeding Is c,Vii
one: The act does not in terms give it that
designation. The allegation it contains are
agreements Of acts denounced by the statue
itself as crimes. The rule established for
the construction of the statutes in this State
is: THAT not the language alone Of the iegIs-
lation shall control, but the eSseIlce of the
thing itself shall he looked at to determine
its character" TO Illustrate: The law OF this
State upon the subject OF illegitimate chill
dren characterizes the proceeding to secure a
support for them as rproseeu.ion aI na,ye
of the State and by the County ~
tornev. The Supreme Court has dec1ded
that the proceeding, nevertheless is cNil
proceeding, and not a criminal one Inc law
regulating proceedings III f0rcble entry and
detainer provides for the filing OF a com,
plafnt to be sworn and trial is to be had and
may be by a jury. and the verdict thar Is 10
be rendered is guilty or mot guilty
phraseology peculiarly applicable TO Grim
nal proceedings: and yet the same court mas
sd that this IS civil proceeding. because
the object and purpose of it are civil objects
and purposes. Other illustrations might be
given. showing that in the opinion OF the
Supreme Court the essence OF the tnlng II
self must be looked to. to determine its CHAR
acter which must control, even against the
letter of the statute. and so say in this case
if the essence of the proceeding itself De
criminal. that must control. Nevertneless'
the Legislature may have used n term here
tofore applicable to civil proceedings alone
In other words, the Legislature may ADOPT
any portion of what has heretofore peem ,, n.,l
derstood to he civil proceeding in criminal
matter, which possibly they may nave zone
in this case If so, then the whole section is
to he admnSt aw of as this state and
a proceeding under it would be
criminal proceeding, that is. prosecu
ton The cOnSttut on provides in the tenth
section OF the bill of rights, that lin all pros
ecutlons the accused shall be allowed
speedy public trial by an impartial jury OF
the county or district in which the ofiense
section of the bill of rights, his honor. Judge
Brewer. when upon the Supreme Bench in
this State, held that proceeding under city
ordnance of this city for maintaining a
nuisance is prosecution" because the
act was criminal III its nature, notwIthstand-
ing the constitution provides in section II.
article 3, that ''all prosecutions shall be
carried on in the name OF the state. Here
was Il case where the prosecution was not in
the name of the State, but in the name of the
city of. J.eavenwOrth: nevertheless it was
held even as against this constitutional pro-
vision that the proceeding was "prosecn-
ton" The paper called a petition filed in
this case rectes acts which are contrary TO
the thirteenth sect on above quoted. and
it would be sufficient. if true, and the de-
PENDANTS were convicted of them, to author
ize an abatement of the place named as a
nuisance. In the State vs. Crawford, 2ssh
Kansas. 743. the Supreme Court in pass
ing upon this section says: lis
the remedy given by section -, chapter LIS.
of the laws of 1881. providing for shutting up
and abating ali places where Intoxicating
liquors are manufactured, sold, bartered or
given away in violation of law. civilization
or criminal proceeding" Inquest opahlJ
we think it is a criminal proceeding, The en-
tire section seems to be dealing with matters
of criminal nature and not with matters o.
civil nature. There is nothing in it that
seems TO SQuInt toward CIVIL actlOn sup
pose, for illustration. that upon final heSr-
ing Of this case q jury should acqu1t the de-
PENDANTS of the acts charged, thereby pre-
venting an abatement of the place, may the
court proceed to inquire into the truth of the
same allegations and make different md
ing for the purpose of an injunctionT Or
dnarIy such u construction should not be
placed upon statute unless the very Ian
guage of it compels it. 1t must be borne
in mind that the Legislature does not
say in terms that such shall be the
course of the proceeding. 1t does say
that the order for the abatement of the