The Globe-republican., 1890-06-18
ORIGINAL PACKAGE DECISION.


Caldwell, in the United States Circuit
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 Caldwells decision is in line
with the Supreme Court decision, and
the petitioners for habeas corpus writ
Their names are as follows: W. w.
Beine, Carl Jockheck, Christian Schmidt,
j. R. Deisher, J. b. linn. w. H. Copp.
L. Yout, Jacob H. Sicher. Bernard
Touchman, c. A. Rahre, George Bell.
The following is the full text of Judge
Caldwell's decision:
Eleven different persons have sep arately
petitiOned 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-
gether. and while there is some difference
the minor details the material and con
trolling facts are the same in al. the cases.
Prosecutions were instituted against the
petitioners, charging them wi h selling
liquor in violation of the laws of this State
They were arrested and, failing to give bail,
were committed and thereupOn file 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
Kansas for selling liquor in that
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 as agents of such
shippers and importers, in the original
packages in which it was shipped by its
owners into this st tie that they sold liquor
in no other manner. and that far as the
Constitution and laws of this state make
such sales of liquor or me they are in con-
fict with the CONNIE rcial clause of the Con-
stitutiOn of the United 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,
owne and shipped from that State into this
State distilled liquors and beer. and that the
petitioners. as agents for said shippers and
importers, sold said liquor in this stat. in
the original packages in which it was
shipped into the State by its owners and
sold liquors in no other manner.
With an exception not material to be con-
sidered in this case, the Constitution and
laws OF this State make it crime for any
person to sell liquor in this State.
The Constitution ana 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 inflicts the same punishment on
both.
Every question of law raised in these cases
has been decided by the Supreme Court OF
the Untel States.
That Court IN a recent decision says: "That
ardent spirits, distilled liquors, ale and beer,
are subjects of exchange, barter and traffic,
like any other commodity in which a 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 State, in the absence of legislation on
the part of Congress, prohibit their mpOrta-
ton from abroad or from sister State? or
when imported, prohibit the sale by the i'm
poi ter?''
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 it
unlawful for the importer to sell sad:
'The plaintiffs in error are citizens of Hi.
nOis; 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) they had the right
to imp IT this beer into that State. and in the
view which we have expires ed they had the
right to sell it. by which act aloe it would
become mingled in the common mass of
within the State. UptO that point
of time We held that, in the absence of Con-
gressional pc: 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.
1.-THE legislation in question is to the extent
indicated repugnant to the third claus. 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,
as 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 lar guaRe of the Habeas
Corpus act, ''in violation of the Con-
stitution of the United States, and
lille sal, and this court has the jursdic-
tion," and it is made its duty, to discharge
any person illegally held in GUS
tOdy. question was raised in the aIgu-
ment as to whether TIL, smallness OF some of
the packages sold by some of the petitioners
did not deprive them of the protection given
to vendors Of original pa' kages. 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 sinsly and separately, as SO many
Instinct and separate packages.
1t is not perceived why in the absence of q
regulation by Congress to the contrary, the
importer may not determine himself the
lorm and size Of the package he puts up for
export. The idea that small packages of
liquor can not be treated as original pack
lges, because they are small, springs from
the conviction back Of it. that liquor in any
form. or in any sized package, is not q legit-
mate subject OF commerce That
question is put at rest BY the de-
:ision of tho Supreme Court Of the United
foSo