The Iola register. [volume] (Iola, Allen County, Kansas) 1875-1902, 1886-01-29
wALaurF WINS.

WAlRUFF WINS.
Jsdes Brewer. q the Unitsd states Cireuit
Court, Delivers . vsry Important Desa.
sien In the walrn6 Case.
ToprxA. KAN, January sa.-The fol.
lowing important decision BY Judge Brewer,
Of the United States Circuit Court, In the
case Of the State ". John Walru6, has been
rendered:
The facts upon which the foundation Of the
case rests are few and simple. Between lSV
cry IN Lawrence. Kan. The buildings, ma.
chinery. and nxtures were designed and
adapted Cor the purpose OF making beer and
WORTH ss ess for any other purpose not 70
exceed 5000. At the time OF the erection OF
the building and mp to 1850. the making OF
or other restriction as the milling Of -four.
In that year n constitutional amendment was
adopted. prob biting the manufacture Of
mechanical purposes. In 1881 and 1855 laws
were enacted to carry this prohibition into
effect. Under these laws permit was essen.
purposes To the defendants this permit
was refused. An Injunction was thereupon
sued out from the District Court enioinnc
Ss.r 1 fS the h .4ss
conformity to the law of the State.
the defendants are prohibited from
using their property for the purposes for
which alone it g designed, adapted and val
liable. and are required without compensa-
ton to surrender $i5.oOo of the value which
they had acquired under every solemn. I'M
limited guarantee of protection to property
which the constitutional declaration and un-
derl, ing thought of just and stable govern
ment could give. The action I'm " nich 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-
ton. whether that portion OF the fourteenth
amendment, which forbids a State 10 deprive
any person of life, liberty O. property. with
Ouo due process of law, and to deny to any
person within its Jurisdiction the equal pro.
lection of the laws. is not violated by this &C.
ton of the State as respects them. As the
Judge of an inferior court, I 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-
The light of this declaration of the su.
preme Court, that when q men owns, with
the unrestricted right to use or sell glass of
out injury or deprec alton IN value can DO
carried outside the jurisdiction of the State.
legislation of State prohibiting its sale, and
to that extent only diminishing ifs value.
presents grave question. Under the four.
teenth amendment the further positive as.
sertion of one OF the Justices that such legs.
iation is void under that amendment. and q
still further intimatOn 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 q subordinate tribunal of
the judgment of its superior for me to hold
that the legislation of a State destroying tho
value by prohibiting the use of property
the owner had. prior thereto. an absolute
and unres;stable title. is clearly not i'm con-
fiict with that amendment and presents alb
iodwmsn no of tSe Federa, trbu"sis A""'e anu
But l am not content to .eave this case
upon these authoritative suggestions OF the
Supreme Court. AS new matter. it is clear
to me that there is federal question giving
the right of removal. and here assert these
propositions, first. debarring man by ex-
press prohibition from the use of his prop.
erty for the sake of the public. is taking OF
private property for public uses. 1t is tho
power to use. and rot the mere title. which
gives value to property. ! assert, secondly.
that natural equity, as well as constitutional
guarantee. forbids such u taking of private
property for public good without cOmpeusa-
ton. In the case of the State vs. Mugler,
the Supreme Court of Kansas aud as II men,
Der OF that court then expressed this Opin.
ion. i am aware that my brethren differed
with me. aud the court held that the State
/
view OF that decision ! shall have little to
say in respect to the guarantees in the State
Constitution. ! may, however: be permitted
to say, aud do IT with the highest respect
for the members of that court, and with
the utmost Difference to the its opinion and
judgments, that in the light of the frequent
discussions of the question, since that deci-
sion, and the more have reflected thereon
the moreprofoundly 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 or that which gives value
to- his property for the sake of the public
good without first receiving compensation
for that which is taken from MIN.
Judge Brewer quotes at length from au
thorities to sustain these positions and then
Thirdly--I affirm that no matter VIVA. Leg
fslative enactment may be had. what forms
of procedure, judicial or otherwise, may bc
II the plain purpose and inevitable result 10
the spoliation OF private property for the
benefit of the public, without compensation.
1t is Il mistake TO say that the forms OF law
alone constitute "due process" No com.
plete and perfect definition of the phrase
"duc process of law 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.
stRntally equivalent to ''due process Of
law
Fourthly-Legislation which operates upon
the defendants. Is this does, in conflict
with the fourteenth amendment and as to
| them is void. at least it presents 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, 10 unQuestiOnably In excess
| OF $500 The case is u removable one. In
view of what has hitherto fallen from my
pen in other cases it may be unnecessary to
any possible misrepresentation, 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
facture of beer. or doubt that such prohibi.
ton Is potential as against any one proposing
in the future to engage In such manufacture.
ANY one thus eng aging does SO at his peril,
and cannot invoke the protection of the
fourteenth amendment, or demand the con.
sidcration and judgment OF the Federal
Courts.
All that hold is, that property within the
meaning Of that amendment includes both
the title and the right to use that. When the
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 1t must pay the
value Of tine property destroyed.
Nothing that have said in this opinion 70
sale of beer or the power of the State over
! that. Counsel claimed that the right to man.
| ufacturc. without the right to sell. wss a
barren n, right t.. whatever hat limitations may
| are open, and with such markets the right to
| manufacture 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 to the Federal Courts of proceedings
to enforce their prOhibitory laws. it has more
| than once been minated that Jurisdiction
| in the Federal Courts of such proceedings
meant the nullification of those laws. Theae
| could he no greater mistake. The Judges Of
| these courts are citizens OF these States as
interested rs any citizen in the good name OF
| their States, the enforcement Of their lave,
| and the sObr,ety of their citizens. Exper:.
encA has shown that those courts opforcO