The Iola register., 1890-10-24
UNCONSTITUTIONAL.
Important Decision Of the Federal
Court at Topeka.
The State Prphibitory D~w. So Far rs Orig
inal Packages Are Concerned, Unconsti-
tutIonal- Further Legislation
Needed

1 opihiou tulS morning tOuCuiug bno Cuu-
stitutionality of the Prohibitory law Of
Kansas The decision is very long. and
1t 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 counsel In this case. First, as to
the constitutionality of what Is known as
the Wilson BILL passed by Congress on the
sth day of August, 1890; and, second. whether
| IL said bill be valid the existing Prohibitory
| law of the State of Kansas applies, or Is it
| needful 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 1t unnecessary to enter upon any
discussion OF the first proposition as with
or without the constitutionality of the VIII
SON bill the result to the petitioner is the
same
| The first section OF the Prohbitory law Of
Kansas Is as follows: ANY person or per-
sons who shall manufacture, sell or barter
1 In spirItuous, malt. vinous. fermented or
other Intoxicating liquors shall be guilty OF
| misdemeanor," etc. (Gen. Stats 1854
| Sec. 252l.)
Under the decision OF the Supreme Court
OF the United States, in Leisy vs.. Hardin,
| 1S5 U. & 100, this statute. In so far as IL at.
| tempted to prohibit the sale of intoxicating
| liquors imported into the State and sold by
She importer or his agent, In the original
| package, was imperative and void. being
| In conflict with section three, article one, of
l h. MI. ~.,t H. G-lx IL -
power exclusively In Congress to regulate
commerce with foreign nations and among
| the States.
Incident to this decision, Congress on the
| sth day of August, 1890. enacted ths Wilson
| bill, which declares "that all fermsnted, dis
| titled or other intoxicating liquors or liquids
| transported 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
its police powers, to the same extent and in
| the same manner as though such liquids or
| liquors had been produced In such State or
Territory, and shall not be exempt there
| from by reason OF being introduced therein
| in original packages or otherwise"
1t is not claimed nor pretended by the at
torneys for the State that the petitioner pre-
vi US to the pass" ge of the Wilson bill was
engaged In a business yiolatiye of any law
of the State; but they do claim that imme.
dlately after the passage of said bill By Con-
gress, the petitioners business became aud
| is a violation OF the Prohibitory law of the
State. So that the proposition stands In
this form: On the 7th day of August, 1890
sales made by the petitioner were permis-
sibIe and lawful under the Constitution OF
the United States, the Prohibitory law of
the State to the contrary notwith.
thprafOrq
of August 1890, the same act of the
defendant Is taken from under the protec-
tion of the Federal Constitution. and is a vio-
lation of the same Prohibtory law Of the
State, the conclusion would seem to be In
evitable that this changed condition of liza.
bIlity Is because of the enactment of Con-
gress on Augusts. 1890 In brief the conten.
ton of the State is that the act of Congress
enlarged the scope and operat on of the act
of the at Legislature, making that which
was legitimate business one day a crImo
the next, not under any law of Congress, but
against the law of the state There is moth
ing IN the wording of the act implying that
Congress assumed such power or intended
to give such effect to this enactment.
At the tins Congress passed tho Wilson
bill it was we'll known and recognized that
the Supreme Court had decided that such n
State Prohibitory law was void, In so far as
the dc aler in imported liquors In the orig
words, there was no law and and could be
no law in existence making such business a
crime. 1t can not be assumed that 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. 1881. desired to
have such object. or article embraced in
their police laws. Ihe contention of coun.
sci for the State Is that Il is 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 employing the word "shall be the ope- |
ration OF the laws of the State Congress did |
not use them In q mandatory but in n per. |
missive sense. The most ardent and enthu- |
siastic advocat, of strong central govern
ment would spurn the idea that Congress !
assumed to dictate or convey a mandate to |
the several Stats In the matter of the exer- |
else of their police power.
On the contrary, the Wilson bill left IL to |
the free and u ultrammeed action of the sew |
eral 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 |
traffic In Intoxicating liquors. These stat |
utes as a rule exempt irom their opera |
tIon. either In express terms or i'm |
plication. imported LIQUORS and their |
sale In original packages In some |
of the States the exception was ex- |
pressed. as In the Iowa Prohibitory law of |
1883 and the old New York law of 1875 and in |
all cases where 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 1t was not recognized as among the |
police power. Of the State to regulate or in.
terIict among the States the traffic In i'm |
ported LIQUORS.