The Globe-republican., 1890-10-22
ORIGINAL PACKAGES.
Important Decision of the Federal
Court at Topeka.
The State Prphibitory Law. So Far as Orig
tnal Packages Are Concerned, Unconsti-
tutionaI-Further Legislation
Needed.

Topeka, Kan, Oct 17-The Circuit
Court of the United States filed its
opinion this morning touching the con-
stitutionality of the Prohibitory law of
Kansas The decision is very long, and
it declares the Prohibitory law of the
State unconstitutional. because of its
passage prior to the passage of the Will
son bill by Congress
The decision therefore leaves the sit
uation in Kansas the same as before the
passage of the Wilson bill
In rendering their opinion Judges
Philips and Foster said:
Two PRINCIPAL questions have been dis.
cussed by coun sci in this case. First, as to
the constitutionaity of what is known as
the Wilson bill, passed by Congress the
9Th day of August, 1880; and second whether
IL said bill be valid the existing ProhibitCry
law Of the State of Kansas applies, or IL it
needfui that additional legislation should
be had by the State to bring into action in
the State the provisions of the Wilson bill.
Under the view taken of the last question
We deem it unnecessary to enter upon any
discussion Of the FIRST proposition as with
or without the cOnstitutionalty Of the Will
son bill the result to the petitioner Is the
same
The first section OF the Prohibitory law Of
Kansas Is as follows: ANY person or per-
cons who shall manufacture sell or barter
in spirituous, malt, vinous. fermented or
other Intoxicating liquors shall be guilty OF
misdemeanor," etc. (Gen. Stats 1859
Sec. 252l.)
Under the decision of the Supreme Court
of the United States, in Leisy vs.. Hardin,
13o U. S. 100, this statute. in so far 1t at.
tempted to prob bit the sale Of intoxicating
liquors imported into the State and sold by
the m in ha jofp
package. was imperative and void. being
In conflict with section three article one, of
the r deral Constitution which places the
power exclusively in Congress to regulate
commerce with foreign nations and among
the States.
Sth day OF August, 1890. enacted the Wilson
bill, which declares "that all fermented dis
titled or other intoxic ting liquors or liquids
tran ported into any State or Territory or
remaining therein for use, consumption.
sale or storage therein, shall, upon arrival
in such State or Territory. be subject to the
operation and effect of the laws of such
STATE or Territory enacted in the exercise of
SIS police pOwers, to the same extent and in
same manner as though such liquids or
liquors had been produced in such State or
Te:rit ry, and sh Ill not be exempt there
from by reason of being introduced therein
in origin Il packages or otherwise"
1t 10 not claimed nor pretended by the at
torneys for the state that the petitioner pre-
vi US to the p IS &c of the Wilson bill was
engaged in a business v.olative of any law
of the STATE; but they 20 claim that imme-
diately after the passage of said bill by c n
gress, the petitioners business became and
is violation of the Prohibitory Law of the
State. So thai the proposition stands in
this form: On the 18th day of August, 1890,
sales made by the petitioner were permits
sible and lawful under the Constitution OF
the United States, the Prohibitory law of
the state to the contrary nOtwith-
standing; therefore, il on the 9th day
of august. 1890, the same act of the
defendant is taken from under the protec-
tfon of the Fedora Constitution and is vio-
latOn Of tn same Prohibitory law OF the
State. the conclusion would seem to be in
evitable that this changed condition of liza
bilty Ia because of the enactment of Con-
gress on AugustS 1880 In brief the conten-
ton of tn" tate is that the act of Con gress
enlarged the scope and operat on OF he act
of the at Legislature, making taat which
was a Legitimate business one day n crime
the next, not under any law of Congress, bat
against the Jaw Of the state There is moth.
ing il the wording of the act implying that
Congress assn ned sue h power or intended
to give such fife to this enactment
At The tim Congress passed the Wilson
bill it was well known and recogn lied that
the Supreme c, urt had decided that such a
the d. aler in imported liquors in the orig
mat package was concerned. In other
words, there was no law and aud could be
no law In existence max ing such business a
crime. 1t can not be assumed hat Congress
desired to Introduce into the pres
ent police laws of the State an
article subject hitherto not in
cluded by those laws How could
Congress know that the people OF all or any
of the states on March s. 1888, desired to
have such object or article embraced in
their police laws. The content. on OF coun-
sci for the State Is that it il for the several
States themselves to determine the scope
and purpose of their police laws, and Con-
gress has not undertaken to arrogate to it.
self any power or control over that subject.
In employin. the word "shsll he the ope-
ration OF the laws of the state Congress did
not use them In a mandatory but in a per-
missive sens. The most ardent and enthu-
siastc advocate of a strong central govern
mont would spurn the idea that Congress
assumed to dictate or convey a mandate TO
the several Stat"s in the matter of the exer-
else of their police power.
On the contrary, the Wilson bill left it to
the free and untrammeied act on of the sew
erai States TO determine whether they would
or would not include within their police
laws this particular article of commerce.
Every state in the Union probably has upon
its statutes some police regulation of the
utes a RUE exempt from their opera
iiou. ,ither in express terms or i'm
rlication, imported liquors and their
sale in original Packages. In some !
of the States the exc -ption was ex-
pressed. as in the Iowa Prohi5itory law of |
1855 and the old New York law of Is 5 and in |
all cases wnere not expressly reserved the |
law of the land as declared by the supreme |
judicial tribunal supplied the exception, |
thus indicating the general consensus that |
hitherto it was not recognized as among the |
police powers of the State to reguia e OF in |
teritct among the States the traffic in i'm |
ported liquors.
The dec,s on in Leisy vs. Hardin, supra,
but emphasizes this fact and principle |
The Prohioitory law Of the State of Kan sas,
where it touched upon Interstate COM
merce, was no law at all, at the time of this |
enactment nor since Judge Cooley says.
The term, Institutional law. As en-
ployed in American jurisprudence, is q mis-
homer and implies a contradiction. That
enactment which is opposed to the Constitu-
ton being in fact no law at all" Cooley on |
constitutional limtations& Again at page
1s7 this same author says: ''When q statute
is adju dyed to be uncon stitutiunal, It is as II
II had never been. Rights can not be built
mp under 1t; contracts which depend upon !