Sturgis advertiser. (Sturgis, Dakota [S.D.]) 1887-1???, 1890-10-23

4 . !
TOPEKA, Oct 1S.--The decision of the
United States circuit court, made by Judge
John Phillips, of Missouri, and Judge
g. Foster, OF this district, has been fled in
the office of the United States district court
clerk. The decision was written last week
while Judge Phillips sat with Judge Foster
iu the hearing. Judge Foster wrote the de-
cision and the connection OF Judge Phillips
with it was only nominal. After it was
written it was sent to Judge Phillips, at
Kansas City, for his examination and con-
currence and was taken to Leavenworth by
Judge Phillips and was mailed to the United
States circuit court clerk, s. Harritt.
The case decided was the application OF
one Charles Rohrer, an original package
agent Of this city, for writ Of habeas cor
pus releasing him from the Shawnee county
Jail, where he had been confined, pending
trial, ON charge of selling liquor in orig
fnaI packages. After the passing of the
wilson and original package bills, the
state, by Attorney General Kellogg and
County Attorney WEIGH. of Shawnee county,
made two points prominent in the argu-
ments of the case before the court, viz:
i. That the Wilson bill is constitutional be.
cause the supreme court had pointed out in its
original Iowa decision that the remedy lay
with congress.
g. That the Wilson bill being constitutional,
the Kansas prohibitory law is effective and will
not have to be re-enacted.
In deciding the application the court does
not consider the first question, the constitu-
tionality of the Wilson bill, but considers
the second question only, i. e.: wherein the
Kansas prohibitory law, as far as it effects
the original package, is effective. In BRIEF,
fNn 10 In
so far as it effects original packages is in
operative and can only be made operative
by re-enactment by the Kansas legislature.
The state has given notice Of its appeal to
the supreme court of the United States and
makes this statement Of the case:
This is an application for a writ of habeas
corpus From the agreed statement OF facts in
this case it appears that the petitioner, Charles
A. Rohrer was the agent at Topeka Kan, OF
Mainerd Hopkins & Co., citizens OF the state
of Missouri, doing general wholesale business
in Kansas City, Mo-, in the sale OF intoxicating
liquors. The petitioner was appointed agent
of the said house in June, 1890. From that
time to the date of his arrest, on the 9th OF
August, 1890, he continued, as said agent, to
eei ff iiiis;s.ee at Topeka Kan in the original
packages as imported and not otherwise. For
sale thus made by him on the 9th OF August,
$780, he was arrested by the state authorities
for violation of what is known as the pl ohib
itory law of the state, and he petitions this
court for his discharge therefrOm on the ground
that he is restrained OF his liberty in violation
of his rights under the federal constitution by
order of the United States circuit court Judge
Hon John f. Phillips, judge of the United
States district court for the western district Of
Wisconsin, sat with Judge Foster on the hear
ing of the petition.
The following is the closing opinion Of the
court which in full is quite lengthy:
If the constitutionality of the Wilson bill is to
be upheld upon the theory as claimed by its ad-
yocates in the debate in the senate Of the
United States and in the argument at this
hearing that congress in the exercises OF its
power to regulate commerce among the states
and with foreign nations simply decided or de-
clared that it's jurisdiction should be confined
to certain subject matters OF commerce. or
that certain subject matters and things, which
may be considered subjects Of commerce.
should thereafter be excluded from its Juris-
diction under the commercial clause OF the con-
stitution and the traffic in intoxicating liquors
should be classified and RENTED to the sub
jects within the police power OF the state. Such
law, under every rule OF the constitution,
must be prospective in its operation, and it
must be further conceded that as the right of
the state to treat such an article of commerce
as subject 70 laws passed by the state in the
exercise OF the police power comes for the
first time ana alone from the enactment of the
Wilson bill. Until the state passes law for
bidding such traffic it has never exercised the
power, call it what you may, lodged in it by
congress. From this conclusion we see no
logical escape. The operation and scope of the
criminal laws should not be enlarged by impn-
cations but they should be strictly construed
and where there is any well founded doubt as
to any act being public offense, especially one
not malicious, it should not be declared such
but should rather be construed in favor OF the
q No. ;f III a ma
titioner is entitled to be discharged, and it is
accordingly so ordered.
The decision created great sensation in
this city. Already original package houses
are being opened, and it is hard to foretell
the future. Leading republicans claim
that the decision will increase the republic
can vote 10000 in the state. The democrats
think the result will be different. %
An Iowa Decision.
CEDAR RAPIDS, Oct. 1s.--Judge Stoneman,
of the superior court, has fled his decision
in the noted Anheuser- Busch Brewing COM
pany original package case. The facts in
brief are that one Joe. Coener, of Marion,
was running an original package joint, or
saloon. He was arrested and his liquors
seized on complaint of Ii. Fl. Abrams, Justice
Wickham issuing the papers, 70 recover
the liquors replevin suits against Abrams,
Wickham and the constable were begun in
the superior court and at the same time
temporary injunction was granted by Judge
Stoneman, enjoining Abrams ct al, from
bringing more suits against Coener,
who claimed to be acting as agent for the
Anheuser- Busch company. Judge Stone
man has decided that replevin would lie and
that it was the proper proceeding for the
tiauor dealer to take to recover his prop
erty. with regard to the injunction proceed
ings the judge decided that the temporary
injunction as to Defendant Abrams should
be made perpetual. but nothing here said or
enjoined is to be construed as to extending
to any prosecution or complaint to which
the complainants or their agents may be
lawfully subject for selling intoxicating
liquors otherwise than in original packages
as importers within the terms Of the federal
constitution as interpreted by the supreme
court Of the United States This decision
was based on the ground that the original
package decision simply paves the way for
future legislative action and does not In
ject any new life into the present statute.
Preparing to Reopen.
= DIES MONIES, Oct 1S.--The original pack
age men are proposing to reopen in Des
Moines in consequence of the decision Of
the United States circuit court at Topeka.
Kan. The Iowa cases covering the same
poiats involved In the Kansas decision were
to be submitted, to Judge Cole, Of this city,
to-day Mrs. J. Ellen Foster. who is sue
cessfui lawyer as well as an ardent prohibi-
. ZIONIST, said to-day upon hearing of the
1xn 40 In w yyiI eff ND II