Abilene weekly reflector. [volume] (Abilene, Kan.) 1888-1935, 1890-06-19
HABEAS CORPUS.
Judge Caldwell Orders the Dis
charge Of Original Vendors.
FULL TEXT OF The JUDGES DECISION.
The Line Of the Supreme Courts Rendertng
EOlIowsd-SiZe of Packages Of No Con"
- sequence and Agents Not TO Be
Molested.

Court, Saturday afternoon rendered his
decision in the noted habeas corpus
''original package" cases from Shawnee
County.
Nine Of the cases decided were from
Topeka, the other being from Salina,
and grew out of the recent decision by
the United States Supreme Court in the
matter of the sale of intoxicants in the
original packages in which they are
shipped.
Judge Caldwell's decision is in line
with tbs Supreme Court decision, and
the petitioners for habeas corpus writ
were ordered discharged from custody.
Their names are as follows: w. w.
Beine, Carl Jockheck, Christian Schmidt
J. r. Deisher, J. B. Zinn, w. II. Copp,
I. Yout Jacob II. Sicher, Bernard
Touchman, C. A. Rahre, George Bell.
The following is the full text of Judge
Caldwell's decision:
Eleven different persons have separately
petltIoned this court for writs OF habeas
corpus to relieve them ON alleged impris'
onment In violation of the Constitution OF
the United States. The cases were heard to-
Rether, and while there is some difference
n the minor details the material and con-
trolling facts are the same in all the cases.
Prosecutions were instituted against the
petitioners, charging them with selling
LIQUOR In violation of the laws of this State.
They were arrested and, falling to give ball,
were committed and thereupon filed their
petitions in this court, alleging that they
were imprisoned In violation of the Consti-
tuition of the United States in virtue
of criminal prosecution commenced
against them in the State courts of
l,oN
State in alleged violation of Its Constitution
and laws; that the liquor, for the selling OF
which they were prosecuted and impris-
oned, was shipped by its owners, who were
citizens and residents of the State of Mis-
souri,, from that State into this State, and
sold by the petitioners agents of such
shippers and importers, in the original
packages in which it was shipped by its
owners into this State; that they sold liquor
in no other manner, and that SO far as the
Constitution and laws of this State make
such sales of liquor or me they are in con-
nict with the commercial clause of the Con-
stitutlon of the Unitrd States and void.
The uncontradicted evidence supports the
allegations of the petitioners. namely, that
certain persons and firms, residing and
doing business in the State of Missouri,
owned and shipped from that State into this
State distilled liquors and beer, and that the
petitioners, as agents for said shippers and
the original packages in which 1t was
shipped into the State by its owners, and
sold liquors In no other manner.
With an exception not material to be con-
Gidered in this case, the Constitution and
laws of this State make It a crime for any
person to sen liquor in this State.
The Constitution and laws of the State
make no distinction between the importer,
who sells in the original packages, and one
who sells broken packages, or by the glass.
The law inflcts the same punishment on
both.
Every question of law raised in these cases
has been decided by the Supreme Gonrt oi
she United States.
That Court in a recent decision says: 'sThat
srdent spirits, distilled liquors, ale and beer,
are subjects of exchange, barter and traffic,
like any other commodity in which right
OF traffic exists, and are so recognized by the
usages of the commercial world, the laws of
Congress, and the decision of courts, is not
denied. Being thus articles of commerce,
can a State, in the absence of legislation on
the part of Congress, prohibit their importa
tiOn from abroad or from a sister State? or
when imported, prohibit the sale by the i'm
porter?''
These questions that Court answered in
the negative, and that answer is conclusive
on this and all other courts in this country.
The Court referring to the laws of Iowa,
which, like the laws of this State, make il
unlawful for the importer to sell said:
''The plaintiffs in error are citizens of Illi-
nos; are not pharmacists. and have no per-
NIT, but import into Iowa beer, which they
sell in original packages, as described. I'm
der our decision in Bowman VS.. Chicago
Railway Company (supra) thSekhad the right
to import this beer into that state, and in the
view which we have expressed they had the
right to sell IL, by which act alone it would
become mingled in the common mass of
Hl,a faNn To Nlof INF
of time we held that, in the absence of Con-
gressional pei mission to do so, the State had
no power to interfere by seizure, or any
other action, in prohibition of importation
and sale, by the foreign, non resident i'm
porter.
''The legislation in question is to the extent
indicated repugnant to the third clause of
section of part first of the Constitution of
the United States"
It was, then, no offense for these petition
ers to sell liquor in the original package,
rs agents for the non resident importers and
owners.
Having a right to make such sales under
the Constitution of the United States, as con-
strued by the Supreme Court of the United
States. any Imprisonment of them for doing
that act, Is, in the language of the Habeas
Corpus act, "in violation of the Con-
stitution of the United States, and
illegal, and this court has the jurisdic-
"
any person SO Illegally held in Gus
tody. question was raised In the argu-
ment as to whether the smallness Of some of
the packages sold by some of the petitioners
did not deprive them of the protection given
to vendors of original packages. Single
bottles of beer and whisky, packed and
sealed or nailed up in boxes, made of paste
board or wood, were shipped and sold in
that shape. The boxes containing one bot
tie were not packed in any other box, but
shipped slngly and separately, as so many
distinct and separate packages.
1t is not perceived why in the absence of
regulation by Congress to the contrary, the
importer may not determine himself the
form and size of the package he puts up for
export. The idea that small packages of
liquor can not be treated as original pack
ages, because they are small, springs from
the conviction back of it, that liquor In any
form, or in any sized package, Is not legit-
innate subject Of commerce. That
question is put at rest by the de-
cision of the Supreme Court of the United
States until Congress shall act. AS long as
Packages of liquor in any form or size may
lawfully be sold by the importer or his
agent, in a Prohibition State, the size of
the package is not of much consequence
Whether the package be large or small, the
practical effect W ill be TO seriously impair
the efficiency of all laws intended to
protect society from the liquor traffic.
It was fOreseen this would be
the consequence of the decision of the Su-
preme Court. Mr.. Justice Gray, in his dis
senting opinion, anticipated as a result of
the decision of the Court, the very state of
things now confronting the people of this
State. He says: 'If the statutes of a State,
restricting or prohibiting the sale of in
tcxicating liquors, are to be held imperative
ana void, as applied to liquors sent or
brought from another State, and sold
by the importer in what are called
original packages, the consequence
must be that an inhabitant of any
State may under the pretext of Inter State
commerce, and without license or super