The Abilene reflector. [volume] (Abilene, Kan.) 1883-1888, 1886-01-28
WAlRUFF WINS.
Judge Brewer, of the United States Circuit
Court, Delivers O Very Important Deci-

Judge Brewer, of the United States Circuit
Court, Delivers Q Very Important Deci.
sion in the Walrun Case.
TOPEKA, KAN, January 22.-The fol-
lowing important decision by Judge Brewer,
of the United States Circuit Court, in the
case of the State VS.. John Walruff, has been
rendered:
The facts upon which the foundation of the
case rests are few and simple. Between 1870
and 1874 the defendant constructed brew
cry IN Lawrence. Kan. The buildings, ma
chiDerg and fixtures were designed and
adapted FOR the purpose of making beer and
nothing else. For such purpose they are
worth $4,000; for any other purpose not to
exceed $500. At the time of the erection of
the building and up to 1850 the making of
beer was as Legal as free from tax, license
or other restriction as the milling OF flour.
In that wear a constitutional amendment WAS
adopted. prob biting the manufacture of
beer except for medicinal scientific and
mechanical purposes. In 1881 and 1885 laws
were enacted to carry this prohibition into
effect Under these laws permit was essen
tal for the manufacture for the excepted
purposes. TO the defendants this permit
sued out from the District Court enjoinin.
defendants absolutely from the man.
ufacture of beer. Thus. in strict
conformity to the law OF the State.
using their property for the purposes for
which alone II g designed, adapted and val
liable and are required without compensa-
ton to surrender $500 of the value which
they lad acquired under every solemn, uu-
limited guarantee of protection to property
which the constitutional declaration and IN
derly ing thought OF Just and stable govern
meut could give. The action in W n CHI this IN
Junction was granted they now seek to
move to this court aud insist that 10 matter
what the Safe may think or do. the four
teenth amendment To the Federal Constitu-
ton does give protection. or. at least, that
they are entitled To the opinion and Judg-
ment of the Federal Courts upon the queS-
ton. whether that portion of the fourteenth
amendment, which fUrbidS q State TO deprive
any person of life, liberty CO property, with
out due process of law, and to deny to any
person with n its jurisdiction the equal pro-
lection of the laws, IS not violated b. this
ton of the state as respects them. As the
Judge of an inferior court, turn naturally
to the opinion of my superior. the Supreme
Court of the United States. for information
and guidance.
AFTER quoting at length from the opinions
of Justices Miller, Bradley and Field, and the
Massachusetts Court, Judge Brewer con-
tinuesl:
The light of this declaration of the Su.
preme Court, that when a men owns, with
the unrestricted right to use or sell glass OF
liquor. mere personal property. which with.
out injury or deprec alton in value can be
carried outside the jurisdiction of the State.
legislation OF Il State prohibiting its sale, and
to that extent only diminishing its value,
presents a grave question. Under the four
teenth amendment, the further positive as
sertion of one of the Justices that such iegis-
iation is VOID under that amendment, and a
still further intimation of the court IN a later
case that vested rights of property can not
he destroyed for the public good without
compensation, II would seem a cOntemptu-
Gus disregard by subordinate tribunal of
the Judgment of its superior for me to hold
that the legislation of 4 State destroying the
value by prohibiting the use of property
which can not be moved, and in whose use
the owner had, prior thereto, an absolute
and unresistable title, is clearly not in cou-
fict with that amendment and presents ab-
sOlutely no question for the cOgnZauce and
judgment of the Federal tribunals.
But | am not content to cave this case
upon these authoritative suggestions of the
Supreme Court AS a new matter, it is clear
to me that tEerA is a federal question giving
the right of removal. and here | assert these
propositions, first, declaring q man by eX-
press prohibition from the use OF his prop
erty for the sake of the public, is a taking of
private property for public uses. 1t is the
power to use. and Eot the mere title, which
gives value to property. | assert, secondly,
that natural equity, as well as constitutional
guarantee, forbids such a taking of private
property for public good without cOmpensa-
ton. In the case of the State VS.. Mugler,
% Kansas, 80 this question WAS presented to
the Supreme Court of Kansas, and as MEM
Der OF that court then expressed this Opin-
ion. / am aware that my brethren differed
with me. and the court held that the State
Constitution carried no such proposition. In
view Of that decision 1 shall have little to
saw in respect to the guarantees in the State
Constitution. | may, however, be permitted
to say, aud do il with the highest respect
for the members of that court and with
the utmost Difference to the its opinion and
judgments, that III the light of the frequent
discussions of the question: since that deci-
sion, and the more | have reflected thereon
the more profoundly am | convinced that the
guarantees of safety and protection to pri-
waite property contained within our State
Constitution, forbid that any man should
thus be deSpoiled of that which gives value
to his property for the sake of the public
good without FIRST receiving compensation
for that which is taken from him.
Judge Brewer quotes at length from eu-
thOrities 10 sustain these positions and then
proceeds:
Thirdly-I affirm that no matter what Leg
islatve enactment may be had, what forms
of procedure, judicial or otherwise, may he
prescribed. there is no due process of law"
if the plain purpose and inevitable result iG
the spolatlOn OF private property for the
benefit Of the public, without compensation.
IT is n mistake 10 say that the forms OF law
alone constitute due process" No com.
p,ete and perfect definition of the phrase
''duc process" of Jaw has yet been given. The
most familiar. and the one for ordinary cases
sufficiently accurate, is that given by Daniel
Webster in the celebrated Dartmouth Col
lege case. the law of the land" being sub
stantialIy equivalent to due process of
law
NEUTRALITY-SUSPICIOUS. which operates upon
the defendants. Is this does, in conflict
with the fourteenth amendment and as to
them is void, at least il presents q question
arising under such amendment, as to which
they are entitled to. The opinion and judg-
ment of the Federal Courts. as to the amount
in controversy, is unquestiOnably in excess
of $500 The case is removable one. In
view of what has hitherto fallen from my
pen in other cases il may be unnecessary to /,
add anything further, yet to guard against I
any possible misapprehension, as well as to ]
indicate that my views, as expressed upon
other questions had not changed, let me say
that do not in the least question the power .
of the State to absolutely prohibit the manu-
fGcture of beer, or doubt that such prohibit
ton is potential as against any one proposing
in the future TO engage in such manufacture. ,
Any one thus engaging does so at his peril /
and cannot invoke the protection of the :
fourteenth amendment or demand the con- ,
alteration and judgment of the Federal
Courts.
All that hold is. rlat property within the
meaning of that amendment includes both !
the title and the right to use that. When the /
right TO use in given way is vested in n citi- |
zen it can not be taken from him for the |
public good without compensation. Beyond /
any doubt the State can prohibit the defend /
ants from continuing their business of brew
ing, but before it can do so ii must pay the
value of the property destroyed.
Nothing that have said in this opinion Is
to be taken as bearing on the question OF the
sale of beer or the power of the State over
that. Counsel claimed that the right to man.
without the right to sell, was a
barren right. Whatever limitations may
exist in this State. the markets of the world
are open, and with such markets the right to
is far from barren right. In
the course of the various arguments that
have been made to me in this State and the
sister state of Iowa, on the question of re-
movals 20 the Federal Courts of proceedings
to enforce their prOhibitory laws. it has more
than once been lntimated that Jurisdiction
in the Federal Courts OF such proceedings,
meant the notification of those laws There
could be no greater mistake. The Judges Of
these courts are citizens of these States as
interested as any citizen in the good name of
their States, the enforcement of their laws,
and the sobriety of their citizens. Expert
ence has shown that those courts enforce
laws as strictly as any, are as little disposed
to tolerate rihiDg or evasion of their orders
and generally with a severer hand.
If it should so happen, that, by the iudg-
menJ OF the Supreme Court of the United (
States, the ultimate tribunal in this Nation. {