The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1888-01-10
THE POWER OF PROHIBITION.
Justice Field Does Not Think the State Can
Arbitrarily Destroy Property.

appeal of the Kansas prohibition cases. Mr. JUS
tce Field announced his dissent with the state
ment that he had not written out his opinion,
but would do so at some time in tine future.
Judge Field has completed his opinion The
cases were known as Peter Mugler plaintiff in
error, against the State of Kansas two cases),
and the State of Kansas OK rel j. F. Tufts, as
sistant Attorney general of the State OF Kansas
for Atchison county, Kansas, appellant, against
Herman Zeibold and Joseph Hagein, partners
as Zeibold 6 Hageln, which were appealed from
She Supreme Court of Kansas and the Circuit
Court of the United States of the district of
Kansas. Judge Fields opinion is follows:
81 concur in the Judgment rendered by this
court in the first two cases, those coming from
the Supreme Court of Kansas. l dissent from
the judgment in the last case. the one coming
from the Circuit Court of the United States. I
to much of the opinion asserts that
there is nothing in the constitution or laws of
the United States affecting the validity of the
act of Kansas prohibiting the sale of Intoxicating
liquors manufactured in the State except for
the purposes mentioned. But am not prepared
to say that the State can prohibit the manufact-
ure of such liquors within its limits II they are
intended for expectation, or forbid their sale
within its limits. under proper regulations for
the protection Of the health and morals OF the
people, If Congress has authorized their importa-
ton, though the act of Kansas is broad enough
to include both such manufacture and sale.
The right to import an article OF merchandise
recognized such by the commercial world
whether the right be given by act of Congress
or by treaty with foreign country-would
seem necessarily to carry the right to sell the
Article article when ,s imported; In Maryland ., ~
erng the opinion of this court. said as follows:
Sale is the object OF importation, and is an es-
sential Ingredient of that intercourse OF which
importation constitutes part. 1t IS as essen
tial an ingredient indispensable to the ex-
istence of the entire thing, then. importation
itself. 1t must be considered component
mn riff ha 0Unr IN Ytofa nYnr m ARCS
gress has a right, not only to authorize lmporta-
ton. but to authorize the importer to SELL
''If State forbid the sale within its
limits of imported article 80 may all the
States. each electlng different article. There
would then be little uniformity of regulations
with respect TO articles of foreign commerce i'm
ported into different States, and the same may
be also said of regulations with respect to ar
ticles of Interstate commerce. And weskuow it
was one of the objects of the federal Constitu-
ton to secure uniformity of commercial regua-
tons against discriminating State legislation.
The construction of the commercial clause of
the Constitution. upon which the license
in the TIN of Howard were decided. appears to
to have been substantially abandoned in
later decisions. HALL VS.. DeCuir. 95 U s. 4S5;
Welton vs.. State of Missouri, 81 Z. S. 275
County of Mobile VS.. Kinball, 1O2 U. S. 694;
transportation Company Parkersburg. 1O7
U. s. 691; Gloucester Ferry Company Va Penn
sylvania. la y. s. 1885, Wabash, st. Louis q
Pacific Railway Company VS.. Illinois, 11s U. s.
SOL l make this reservation that l may not
hereafter be deemed concluded by general
Il do not agree to what is said with reference
to the case from the United States Circuit Court.
That was a suit in equity brought for the abate-
ment of the brewery owned by the defendants.
It is based upon clauses in the thirteenth section
of the act of Kansas, which follows:
'An places where intoxicating liquors are manu-
featured, sold, bartered or given away, in viola
ton of any of the provisions of this act,
where intoxicating liquors kept for sale,
barter. or delivery, in violation of this act, are
hereby declared to become nusances; and when
the judgment of any court, having jurisdiction,
shall find such place to be nuisance under this
section, the sheriff, his deputy. or under-sherif,
or any constable of the proper county, Or mar
shall of any city. where the same is locat-
ed, shall be directed to shut up and
abate such place by taking possession thereof
and destroying all intoxicating liquors found
therein, together with all signs, screens, bars.
bottles, glasses and other property used in keep
ing and maintaining said nuisance; and the
owner or keeper thereof shall, upon conviction,
be adjudged guilty of maintaining common
nuisance. and shall be punished by a fine of not
less than 500 nor more than $500 and by i'm
prisonment in the county Jail not less than
thirty days more than ninety days The
attorney general, county attorney, or any
citizen of the county where such nuisance
exists or is kept or is maintained may main.
tain an action in the name OF the State
to abate and perpetualy enioiu tho same.
The injunction shall be granted at the com,
mencement of the action, and no bond shall
be required" By previous section all malt,
vinous and fermented liquors classed as in
toxicating liquors. and their manufacture. barter
and sale equally prohibited. By the thir-
tenth section, is we'll said by council, the
Legislature, without notice to the
hearing of any kind, declares every place where
such liquors cold, bartered or given away,
or kept for sale, barter delivery-in this case,
a brewery. whore beer was manufactured and
sold, which, up the passage of the act. a
lawful ndustry-to be a common nuisance and
then prescribes what shall follow on court
having Jurisdiction finding one of such places to
be what the Legislature has already pronounced
it. The court is not to determine whether
the place is common nuisance in fact, but
it is to find it to be so if it
comes within the definition of the
statute. and, having thus found it. the
executive officers of the court to be directed
to shut up and abate the place by taking posses
sion of it; and, as though this were not sufficient
security against the continuance of the business,
they to be required to destroy all tho
liquor found therein, and all other property
used in keeping and main tanning the nuisance.
1t matters not whether they of such char
acter could be used in any other business.
or be of value for any other purposes. No dis
erection is left in the judge or in the officer.
''These clauses appear to me to deprive one
who owns a brewery and manufactures beer for
sale, like the defendants, of property without
due process of law. The destruction to be or
dered is not as forfeiture upon conviction OF
any offense. but merely because the Legislature
has commanded. Assuming, which is
the Of Of shs
State, called its police power, may, without COM
pensation TO the owner. deprive him of the
of his brewery for the purpose for which it was
constructed under the sanction of the law, and
for which alone it is valuable, I cannot see upon
what principle. after closing the brewery, and
thus putting an end to its use in the future for
manufacturing spirits, it order the destruc-
ton of the liquor already manufactured. which
it admits by its legislation may be valuable for
some purposes, and allows to be sold for those
purposes Nor can see how the protection of
the health and morals of the people of the State
can require the destruction of property like bot
ties. glasses and other utensils, which may be
used for many lawful purposes. It has hereto
fore been supposed to be established
principle that where there is power to
abate nuisance the abatement must be
limited by its necessity, and wanton
necessary injury can be committed to the prop
erty rights of individuals. Thus, If the
nuisance consists in the use to which building
is put the remedy is to stop such use, not TO
tear down or to demolish the building itself.
to destroy property found within it. lBabcock
Us. City of Buffalo, Sc N. Y. 268; Chenaneo
Bridge Company VS.. Paige. SO N. Y, $780, The