Dodge City times. [volume] (Dodge City, Kan.) 1876-1892, 1886-02-04
WALRUFF WINS.

WAlRUFF WINS.
Judge Brewer. Of the United States Circuit
Court, Delivers . Very Important Deea-
sion In the Walrun Case.
TOPEKA, KAN, January 9a-Tks fol.
lowing important decision BY Judge Brewer,
of the United States Circuit Court, In the
case Of the State ". John Walrun, has been
rendered.:
The facts upon which the foundation Of the
case rests are few and simple. Between 1870
cry IN Lawrence. Kan. The buildings, ma
chinery and fixtures were designed and
adapted Tor the purpose Of making beer and
worth $s0.0OO: for any other purpose not 70
exceed 5000 At the time of the erection Of
the building and up to 1880, the making of
beer was as legal. as free from tax. license
In that year constitutional amendment was
adopted. prohibiting the manufacture Of
beer except TOR medicinal: scientific and
were enacted to carry this prohibition into
effect. Under these laws . permit was essen
tai Tor 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 man.
to sss law u the sssss
the defendants are prohibited FROM
using their property for the purposes for
which alone it is designed. adapted and val.
liable, and are required without compensa-
ton to surrender $500 of the value which
they had acquired under every solemn, un-
limited guarantee OF protection to property
which the constitutional declaration and un-
deriving thought Of just ana stable govern
ment could give. The action in " Mich this in
junction was granted they now seek TO re-
move to this court and insist that NO matter
what the State 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 judy
ment of the Federal Courts upon the Ques-
tiOn whether that portion of the fourteenth
amendment, which forbids State 10 deprive
any person of life, liberty or property. with.
out due process of law. and to deny to any
person within its jurisdiction the equal pro-
lection of the laws. 10 not violated by this &C.
ton of the State az respects them. As the
to the opinion of my superior. the Supreme
Court Of the United States. for information
lAfter quoting at length from the opinions
Massachusetts, Court, Judge Brewer con-
tinues]:
The light of this declaration of the su.
the Unrestricted right to use or sell glass OF
liquor, mere personal property, which with
Out injury or depreciation in value can be
c8ff1eu OUTSIDE the JuflSOlCUO0 OF the state.
legislation of a State prohibiting its sale. and
to that extent only diminishing its value,
presents grave question. Under the four.
teenth amendment the further positive as
sertiOn of one OF the Justices that such legis-
lation Is void under that amendment, and .
still further intimation of the court in later
case that vested rights Of property can not
be destroyed for the public good without
compensation. it would seem = contemptu-
Gus disregard by subordinate tribunal OF
the judgment of its superior for me to hold
that the legislation of 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 unresstable title, is clearly not in con-
fict with that amendment and presents al
solntely no question for the cOgnizance and
Judgment of the Federal tribunals.
But ! am not content to .eave this case
upon these authoritative suggestions of the
Supreme Court. As . new matter, 1t is clear
to me that there Is federal question giving
the right OF removal. and here l assert these
press prohibition from the use of his prop
erty for the sake of the public, 10 . taking Of
private property for public uses 1t Is the
power to use, and not the more title, which
that natural equity. as well as constitutional
guarantee, fOrbids such taking of private
property for public good without compeusa-
20 Kansas, 2b2. this question was presented to
the Supreme Court of Kansas, and a. a men,
Der of that court then expressed this opin.
jon. i am aware C06C my brethren Ol00re0
with me. aud the court held that the State
Constitution carried no such proposition. In
view Of that decisioa I shall have little to
say in respect to the guarantees in the State
to say, and do it with the highest respect
for the members Of that court, and with
tho utmost Difference to the its opinion and
judgments, that In the light Of the frequent
discussions of the question, since that deoi-
sion, and the more l have reflected thereon
the more profoundly am l convinced that tho
guarantees Of safety and projection to pr
Constitution. forbid that any man should
hus 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 au.
thorities to sustain these positions and then
Thirdly--I affirm that no matter what Leg
islat:ve enactment may be had, what forms
of procedure, judicial or otherwise, may be
If the plain purpose and inevitable result is
the spoliatjon of private property for the
benefit of the public, without Compensation.
i is a mistake to say that the forms Of law
plete and perfect definition of the phrase
"due process" of law has yet been given. The
most familiar. and the one for ordinary cases
webster in the celebrated Dartmouth Col
lege cnee, the Flaw of the land" being sub |
equivalent to due process of
law
Fourthly-Legislation which operates upon
the defendants, as this does, in conflict |
with tho fourteenth amendment and as to |
them is void, at least 1t 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 !
view of what has hitherto fallen from nv |
pen in other cases it may be unnecessary to |
add anything further, yet to guard against |
any possible Misrepresentation, as we'll 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-
ton is potential as against any one proposing
in the future to engage in such manufacture.
Any one thus engaging does 50 Mt his peril,
amendment, or demand the con.
alteration and judgment of the Federal |
Courts.
All that hold is. that property within the
the title and the right to use that. When the
right to use in a given way is vested in a citi-
zen it can not be taken from him for the
any doubt the State can prohibit the defend.
ants from continuing their business of brew
ng, but before it can do so 1t must pay the
Nothing that have said in this opinion 10
% be taken as bearing on the question of the
,ale of beer or the power of the State over
hat. Counsel claimed that the right to man.
without the right to sell, was q
barren right. Whatever limitations NAV
,xist in this State, the markets OF the world
ire open, and with such markets the right to
is far from . barren right. In
he course OF the various arguments, that
rave been made to me in this State and the !
lister State OF Iowa, on the question of re-
novals to the Federal Courts Of proceedings
o enforce their prohibitory laws. it has more
han once been intimated that Jurisdiction
n the Federal Courts Of such proceedings,
meant the nullincation Of those laws There
Ould be 20 greater mistake. The Judges of
hese courts are citizens of these States a.
as any citizen In the rood nar.,e of