The midland journal. (Rising Sun, Md.) 1885-1947, 1890-11-07
A JUDICIAL DECISION.
ORIGINAL PACKAGE SALOONS LEGAL
IN KANSAS AND IOWA.

All License Tax and Prohibition Laws
Powerless to Stop Them-Can Be Opened
Anywhcre-Old Laws void-New Laws
Must Be Enacted.
A decision was rendered in the United
States circuit court in Topeka, Kan,
Oct. II, that has dropped like bomb
shell and created CONSERVATION among
the friends of Prohibition in Kansas.
The decision allows the reopening Of
original package liquor houses in that
state, and ill effect declares that the
Wilson bill enacted by congress does not
restore the power of the Kansas prohib-
itory law as against original package
saloons.
On the same day Judge Stoneman, of
the superior court of Cedar Rapids, Ia,
rendered decision in three liquor cases.
Last June the Anheuser- Busch Brewing
company, of st. Louis, opened an origi-
nal package house at Marion, and ap-
pointed Joseph Coenen as agent. H. H.
Abrams, pastor of one of the churches,
instituted search proceeding, and the
liquor was seized. The Anheuser-B Busch
company began proceedings to enjoin
Abrams from seizing the goods and also
commenced action in replevin to recover
goods already seized. Defendant de-
INJURED to the petition, holding that un-
der the state laws writ in replevin
would not lie to recover beer in the state
of Iowa.
Judge Stoneman, after hearing the
facts in the case, overruled the demurrer
of the defendant, holding that an action
in replevin would lie to recover under
an unconstitutional statute. AS to the
injunction proceedings instituted by
plaintiff, the court held that the act Of
congress approved 1890, known as the
Wilson bill, was not retrospective in its
operation, but it is simply permissive to
the several states to legislate in the exer-
else of state police powers on a subject
matter, and declaring that since the su-
preme court had, subsequent to the pas
sage of the Wilson bill, decided the Iowa
law as regards the sale of liquors in
original packages null and void, there
fore the law is still null and void. The
court, therefore, granted perpetual in
junction to restrain Abrams from fur
ther interfering with the business of the
plaintiffs in selling liquors in original
packages.
Under this decision it is evident that
neither prohibitory nor any restrictive
or license laws can prevent the opening
of original package saloons. The Penn
sylvania and Nebraska high license laws,
and the local option laws of Georgia
and Massachusetts, and the three mile
and four mile laws of other states, all
are powerless to prevent raid Of con-
scienceless liquor sellers.
Original package saloons can be open
ed in New York city in spite of all the
efforts of DR.. Howard Crosby's Excise
league to prevent the issuing of licenses.
They will not need licenses.
The only remedy is the prompt passage
of new laws to take the place of the old
ones, all of which are rendered null and
void by United States supreme court
decision which some of the best lawyers
in the nation regard as bad law.
Several saloons have resumed business
in Kansas, and there is nothing to pre-
lature convenes next January, and re-
enacts the prohibitory law.
The state has given notice of an ap-
peal to the state supreme court. This
decision is in part as follows:
"The contention of the state is that
the act of congress enlarged the scope
and operation of the act of the state leg
islature, making that which was legiti-
mate business one day crime the next,
not under any law of congress, but
against the law of the state. There is
nothing in the wording of the act imply
ing that congress asserted such power
or intended to give such effect to this
enactment.
''The Wilson bill left it to the free and
untrammeled action of the several states
to determine whether they would not in
clude within their police laws this par
ticular article of commerce. Every state
in the union probably has in its statutes
some regulations of the traffic in intoM-
eating liquors. These statutes, as rule,
exempt from their operation imported
liquors and their sale in original pack
ages. thus indicating the general consen-
sus that hitherto it was not recognized as
among the police powers of the state to
regulate or interdict among the states the
traffic in imported liquors. The prohibi-
tory law of the state of Kansas, where it
touched upon interstate commerce, was
no law at all at the time of this enact
ment nor since"
Judge Cooley says:
"The term unconstitutional law, as
employed in American Jurisprudence, is
a misnomer and implies contradiction;
that enactment which is opposed to the
constitution being in fact not law at ALL"
Again Judge Cooley says:
when n statute is adjudged to be
unconstitutional it is as if it had never
been. How, then, can the act of con-
gress in question have the effect and
operation claimed for it by the attorneys
for the state? For it must be kept in
mind that legislative act in conflict
with the constitution is not only illegal
or voidable, but it is absolutely void"
Continuing, the opinion states that
the Wilson law, under every rule of con-
must be prospective in the op-
Grafton. 1t must further be conceded,
says the decision, that inasmuch as the
right of the state in this new exercise of
its police power comes for the first time
and alone from the enactment of the
Wilson bill the state cannot apply the
law until it passes new law forbidding
the liquor traffic.
Tho oYNiniO,, onnal,Iao.