The Iola register., 1886-01-08
ANOTHER DECISION.
Judge Croker Renders . Decision In the
Leavenworth Liquor Cases.

VIC
Leavenworth Liquor Cases.
In the District Court at Leavenworth,
when the injunction suit brought by the At
torney General against Hanron & 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 1881 and
the amendments thereto contain more than
ono subject, which 10 not clearly expressed
in the title;.
Second, That the thirteenth section above
quoted, Is part Of special act; and
Third, That this IL prosecution, and the
defendants are deprived of a trial by jury.
First, As to the first objection. section 1s of
article /. of the constitution provides: mo
| bill shall contain more than one subject,
which shall be clearly expressed in the title"
The point OF this objection is that section 13
of the amendment to the prohibitory act
provides for a civil and a criminal proceed
ing, which are two distinct and separate sub
jects, and that the title of the act indicates
but one subject The title is: IAN act to
prohibit the manufacture and sale of
intoxicating liquor except for medicinal,
scientific and mechanical purposes, and
to regulate the manufacture and sale
as November. % $50 % the w following R'd a%endment
was added to article Is of the constitution:
Section 10. The manufacture and sale of in
toxicating liquors shall be forever prOhib-
SfnA ,s, th,o Gf0tn fnv vrn6 tnQ cni.
entific and mechanical purposes. This
amendment without any clause specially
providing therefor, authorizes the legislation
necessary to carry it into effect. What that
legislation should be was left TO the wisdom
and discretion of the law-making power,
subject only to the limitations that it shall
not violate the constitution of the United
States or other provisions of the Constitu-
ton of this State. The Legislature might au-
thorize civil or criminal proceeding, or BOTH
Second: Section II. article = OF the consiitu;
nature. shall have uniform operation
throughout the State and in all cases where
general law can be applicable, no special
law shall be enacted. 1t is objected that the
prohibition act singles out and makes spe-
cial provision with reference to the nuisances
denounced by ii, and Is therefore special
of the Constitution. 1t means what 1t says
The Legislature may denOunce as crime and
act within constitutional limitations. provid-
ing a separate punishment for it and sep;
arate manner of treating it, and such pro-
vision will not be special Legislation within
the meaning of the constitution, provided il
apply uniformly to the same act, all over the
State, or, in other words, have u uniform
operation throughout the State. This law
does provide thar keeping open q house for
the sale of intoxicating liquors contrary to
the provisions of the act ehRll be deemed u
nuisance, and provides the manner of treat
ing it, which provisions apply to the same
facts everyw here in the state. and therefore
is not obnoxious to the sections OF the con-
ctit ohnv tod Hnnoa a
not unconstitutional upon that ground.
Third-The third objection is much more
serious one, and it would be affectation in
ministration of this statute did not involve
great difficulty. What kind OF proceeding or
proceed ngs arc provided for in this thir-
teenth section! Are they all. if there be
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 a criminal proceeding! 1t will be OBJ
served that the original paper IN this case is
called a petition" fled upon the relation of
the Attorney General in the name of the
State. 1t gives the court to be Uniformed
of what the Attorney General claims to be
violations of the net setting out what would
be necessary in case nc proceeded to only
abate the place as a nuisance. Now. must it
a petition that the proceeding is II civil
one? The act does not in terms give it that
designation. The allegation it contains are
agreements Of acts denounced by the statute
the construction of the statutes in this State
is: THAT not the language alone of the lcgis-
lat:on shall control, but the essence of the
thing itself shall be looked at to determine
its character" To illustrate: The law of this
State upon the subject of i!legitimate chill
dreu characteriZes the proceeding to secure Il
izes it to be conducted in the name
of the state and by the County At.
torney. The Supreme Court has decided
that the proceeding. nevertheless. is civil
tnn md rnf n
regulating proceedings IN forcible entry and
detainer provides for the f1ling of u com.
pa.nt to be sworn. and trial is TO be had. and
may be by jury. and the verdict that is to
be rendered is guilty" or mot guilty
phraseology peculiarly applicable to GRIM
inal proceedings: end yet the same court has
the object and purpose of it are civil objects
and purposes. Other illustrations might be
given, showing that in the opinion of the
Court TIE tn S nhe ihn cbar
acter. which must control, even against the
letter of the statute. and so scy IN this case
if the essence OF the procee ding itself oe
criminal. that must control. Nevertheless.
the Legislature may have used Il term here
tofore applicable to civil proceedings alone.
In other words. the Legislature may adopt
any portion of what has heretofore been un-
derstood to be civil proceeding in u criminal
matter. which possibly they NAV have done
in this case. If so. then the whole section is
the be ermna aw of this stass and
proceeding under it would be u
criminal proceeding. that is. prOsecu
ton. The constitution provides in the tenth
section OF the bill OF rights, that lin all pros
ecutions the accused shall be allowed q
speedy public trial by all impartial jury of
the county or district in which the Oficnsc
section of the bill of rights. his honor. Judge
Brewer. when upon the Supreme Bench i'll
this State, held that a proceed ng under a city
ordnance Of this city for .maintain:ng u
act was criminal N its nature. nOtwithstand-
ing the constitution provides in section II,
article ). that "all prosecutions shall be
carried on in tho name OF the State Here
was case where the prosecution was not in
the name of the State. but in the name of the
city OF LeavenwOrth: nevertheless, it was
vision that the proceeding was a ''prosecu-
ton" The paper called petit on filed in
this case rccteS acts which are contrary to
the thirteenth sect on above quoted. aud
PENDANTS were convicted of them, to author
ize an abatement Of the place named rs q
nuisance. In the State VS.. Crawford, 18th
Kansas, AS. the Supreme Court in pass
ing upon this section says: is
the remedy given by section u. chapter 12S.
of the laws of 1851. providing fer shuttn ng up
liquors arc manufactured, sold. bartered or
given away in violation OF law. a civilization
or i'm nal proceeding" Inquest Onably
we tn nix il is criminal "a proceeding The en-.
of a criminal nature and not with matters of
civil nature There is nothing in it that
seems to SOU Mt toward u civil action. Sup
pose, for illustration. that upon a final hear
ing of this case jury should acqut the de-
PENDANTS of the acts charged, thereby pre-
venting IN abatement of the place. may the
court proceed to inquire into the truth of the
same allegations and make a different find
ing for the purpose of an injunctiOn?" Or.
dinarily such 4 construction should not be
placed upon q statute unless the very Ian
guage of it corlpels it. 1t mus; be borne
in mind that the Legislature does not
say in terms that such shall he the
course of the proceeding. 1t does say
that the order for the abatement of the
place as a nu saDce can not be made un-
til after u conv. .ctiOn. which, of course,
means q conv c:ion in the ordinary way I'm
criminal proceedings. ;owt: The verdict OF