Western Kansas world. [volume] (WaKeeney, Kan.) 1885-current, 1890-06-21
Judra ca1au.1l,. Decision.


LEANENwoRrH. KAS.-The United States
court room was crowded when Judge Cald-
well rendered his decision In the famous
original package case.
Judge Caldwell said:
Eleven different persons have separately
petitioned this court for writs of habeas cor
pus to relieve them from alleged lmprlson-
Inent in violation of the constitution of the
United States.
The cases were heard together, and while
there is some difference IN the minor details,
the material and controlling 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 failing to give bail were
committed and thereuDon filed their petit
tons in this court alleging that they were
imprisoned in violation of the constitution
of the United States, in virtue of the crln1-
inal prosecution commenced against them In
the state 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 Imprisoned,
was shipped by its owners, who were citizens
and residents of the state of Missouri, from
that state into this state and sold by the petit
TONERS as agents of such shippers and inn
porters 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 for forth as the constitution and
laws of this state make such sales OF liquor
crime they are in conflict with the CONNER
cial clause of the constitution OF the United
States and void.
The uncontradicted evidence supports the
allegations of the petitions, namely. that GER
tain persons and firms residing and doing
business in the state of Missouri owned and
shipped from that state into this state dis
titled liquors and beer, and that the petitioners
as agents for such shippers and importers
sold said liquors in this state in the original
packages in which it was shipped into this
state by its owners. and sold liquors In no
other manner. With an exception not mate
rial to be considered in this case. the constl-
tuition and laws of this state make 1t crlme
for any person to sell liquor in this state.
The constitution and laws of this state make
no distinction between the importer who
sells in the original packages and one who
sells in broken packages or by the glass. The
law inficts the same penalty on both.
Every question of law raised in these cases
has been decided by the supreme court of the
United States.
That court has said liquors. beer, ETC., are
subjects of exchange, barter and traffic, as
recognized by the usages of the commercial
world, the laws and the courts. Being thus
articles of commerce, state, In the absence
of legislation by congress. cannot prohibit
their lnpOrIdblOn lrOill dDTOdu VI lEOLu all
other state; nor prohibit their sale by the
importer.
It was then no offense for these petitioners
to sell liquors in the original packages
agents for the nonresident importers and
owners.
Having 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 cor
nus act Sin violation of the constitution" of
the United States and illegal, ard this court
has the jurisdiction, and it is made its duty
to discharge any person 80 illegally held in
custody. A 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 senders of original packages. Single bot
ties of beer and whisky packed or nailed up
in boxes made of palsteboard or wood were
shipped and sold in that shape. The boxes
containing one bottle were not packed in
any other box, but shipped singly or sepa-
rate as so many distinct and separate pack
ages. It is not perceived why in the absence
of a regulation by congress to the contrary
the importer may not determine for himself
the size and form of the packages he puts up
for export. The idea that small packages OF
liquor cannot be treated as original packages
because they are small, springs from the
conviction back of it that liquor in any form
or sized package is not a legitimate subject
of commerce. That question Is put at rest
by the decision 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 prohibition state the size of
the package is not of much consequence.
Congress alone can provide remedy for
this evil, so ably stated by the minority of
the supreme court.
1 do not sit here either 10 make or to dis
regard the law, but to enforce it regardless of
my own views of its policy or justice. It is
to the Legislative and not to the judicial de-
partment of the government that the people
of this and all other states must look for re-
lief against the evils of the sale of liquor in
original imported packages by the importer
or his agents. The several petitioners must
be discharged. Let prayer for appeal and
its allowance be entered in each case. The
stenographer will file with the clerk the testi-
mony in all the cases and the testimony re-
lating to each case will be filed and attached
to and made part of the record in the case.