The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1886-03-13
THE KANSAS BREWERY CASE.
Important Decision Affecting Prohibi-
tory Liquor Laws.


The following is the full text of the de-
cision of Judge Brewer of the United States
Circuit Court for the District of Kansas in
the case of State ex rel, r. A. French Coun-
ty Attorney Of Douglass county vs. John
Walruff ct al, known as the Kansas Brew
cry case. 1t involves an important prlncl-
pie of constitutional law, which for the nov
city of its application has attracted general
attention, and the decision of the United
States Supreme court on this question will
be awaited with interest.
OPINION OF JUDGE BREWER.
United States Circuit Court, District of Kansas,
State ex REL, VS.. John Walrutf ct al
The facts upon which the foundation ques-
ton in this case rests are few and simple.
Between 1870 and 1874 the defendants con-
structed a brewery, in Lawrence, Kan. The
building, machinery and fixtures were oe-
signed and adapted for the making OF beer
and nothing else. For such purpose they
are worth $4,000; for any other purpose not
to exceed $4,000. At the time OF the erection
of the building and up to 1880, the making
Of beer was as legal, as free from tax, Incense
| or other restriction as the milling of flour.
In that year constitutional amendment was
adopted, prohibiting the manufacture OF
beer except for medicinal, scientific and me-
chanical purposes. In 1881 and 1859 laws
effect. Under these laws permit was es-
sential for the manufacture for the excepted
purposes. To the defendants this permit
was refused. An injunction was thereupon
sued out from the district court enjOining
defendants absolutely from the manufacture
of beer. Thus in strict conformity to the
laws of the State the defendants are prohibit
ted from using their property Tor the pur-
poses for which alone it is designed, adapted
and valuable, and are required without com
pensation to surrender $40, 600 of value which
they had acquired under every solemn I'M
limited guarantee of protection to proper
tv which constitutional declaration, ana the
underlying thought of just and stable gov
eminent could give.
The action in which this injunction was
granted they now seek to remove to this
court and insist that no matter what the
State may think or do, the fourteenth amend
ment to the federal constitution does give
protection, or at least that they are entitled
to the opinion and Judgment of the federal
courts upon the question whether that por-
ton of the fourteenth amendment which for
bids State to deprive any person of life,
liberty OF, property, without due process Of
law" and ito deny to any person within its
jurisdiction the equal protection OF the laws,
is not violated by this action of the State as
respects them.
tits idle to deny that the question here
presented is one of difficulty, and grave inn
portance. On the one hand it is insisted
that both the amendment and the laws were
duly and in compliance with established
forms of procedure adopted and enacted;
that the Withholding of the permit was the
act of judicial officer in the exercise OF a
proper and granted discretion; that the in
junction was issued out of the regular court
of general original jurisdiction, and in an
ordinary and familiar form OF action that
thus there has been "due process of law
and that the amendment does not prohibit a
State from depriving person of his proper
| ty but only prohibits such deprivation with
out due process of law" while on the other
hand it is apparent that the defendants hav-
legal business are stripped of the value of
| such properties, and that not as the indi-
| rect and consequential result of legislative
changes in the law, but by a direct prohibit
| ton upon the only use for which such prop
| critics are designated, adapted and valuable.
| Is State potent through the forms of law
| to take from citizen by direct action the
| value of his property without compensation?
| As the judge of an inferior federal court |
| turn naturally to the opinions Of my superior,
| the supreme court of the United States for
| information and guidance. In the case of
| Bartemyer VS.. Iowa Is, Wall 1919, the opn-
| ion of the court was delivered by Justice
| Miller, and in it the court uses this language;
| scented to us, that the defendant was the
| owner of the glass of intoxicating liquor
which he sold to Hickey at the time that
| the State of Iowa first imposed an absolute
| prohibition on the sale OF such liquors, then
we can see that two very grave questions
would arise, namely: whether this would be
a statute depriying him of his property with
| out due process of law; and secondly, wheth-
| er if it were so it would be so far violation
| of the fourteenth amendment in that regard
as would call for judicial action by this
court" In the same case in coneurring
opinion Justice Bradley said: "The law,
! therefore, was not an invasion of property
existing at the date of its passage, and the
| question of deprivlng person Of property
! without due process of law, does not arise
No one has ever doubted that q legislature
may prohibit the vending. of articles deemed
it does not interfere with the vested rights