The Kimball graphic. (Kimball, Brule County, Dakota [S.D.]) 1883-1905, 1890-05-30
The origina, Package ansiness
as Ass,,:eutO the Na1<otns.

lie mind AT present the GRAPHIC prevailed
upon Mr. Kos TO allow la to use the letter
for publication.
Office OF Rogers & Had!ey, Attorneys.
St Paul, Mimi. May II, 1880.
Mess. Julius kesser & Co.
Gentiemen:-Iou yesterday requested
us to give you an opinion as to the legal
right which you have TO import and sell
Intoxicating liquors in the states OF
North Dakota and South Dakota iii view
of the recent decision of the Supreme
Court of the United States OF Leisy VS..
Hardin, 10 Supreme Court Reporter, 68l.
This decision of the Supreme Court of the
United States above referred to, held that
the states have no authority TO prohibit
the importation OF Intoxicating liquors
within their boundary. nor to prohibit
the importer from selling the same in The
original packages in which they were
imported into the state. BY the term
original packages" We do not consider
that the Supreme Court held that these
packages should be the original packages
OF the manufacturer. necessarily. but the
original packages which were imported
into the state where the sale was made.
This decision holds that the importer
may employ persons to act rs his agents
to soil the liquors in their original pack
ages after they have been imported. The
question which We are to consider, is,
how far this case applies to the states
OF North Dakota and South Dakota.
These states are admitted into the
union by virtue of an enabling act pass
ed by Congress February end, 1889,
This enabling act provides for the hold
ing of a constitutional convention in
each OF said states, and authorizes such
conventions TO form constitutions and
state governments for the proposed states
and provides that "fhe Constitution"
shall be republican in form and make no
distinction in civil or politica! rights on
accounted race Or color, except as TO
Indians not taxed. and rDt to be rcpug-
nant to the constitution of the United
States and the principals Of the Declara-
ton OF Independence. This act further
provides in Sc elton s, that if The consti-
tutions and governments Of said propos-
ed states are republican i'll form, and if
all the provisions of this act have been
complied with, 1t shall be the duty Of the
President of the United States to issue his
proclamation, announcing the result Of
the election in each. and thereup0n the
proposed states which have adopted CON
situations and formed state governments,
as herein provided, shall be deemed adj
mitted by Congress into the Union, under
and by virtue of this Act, on an equal
footing with the .original states. from
and after the date Of said proclamation.
Thereafter the convention of North
Dakota met and adopted a constitution.
In this constitution Article 20 was as fol
lows: TO be submitted to a separate vote
Of the people as provided by the schedule
and ordinance"
pNN. -lI. NV tt'lStl. o0Sttlltlp ". VI
corporation shall within this State. man
ufaeture for sale or gilt, any i~nt9Xica-
ting liquors ana no person association OF
! corporation shall import any Of the same
fer sale or gift, or keepo or sell OF offers tn,
same for sale, or gift, barter or trade as
beverage. The Legislative Assembly
shall by law prescribe regulations for tlt
enforcement Of the provisions of this ar
ticle and shall thereby provide suitable
penalties for the violation thereof" /
was further proyidedthat this Article o
the constitution should be admitted fn1
rejection or adoption TO the vote OF tho
people. Thereafter within The time pre-
scribed in said enabling act, the said con
stitution was ratified, and the said Articl
20 adopted by a majority Of the voters o
said proposed state, and on the End day 0
November, 1883, a proclamation was isstI
admitting the state of North Dakota int,
the Union. Thereafter and on the 1871
day Of December, 1889, the Legislature 0
North Dakota passed an act prohibiting
the manufacture, importation, sale an
gift Of any spurious. malt, vinous. Ger
mented or other Intoxicating liquors an
provided penalties for any such act
This provides that for the first offens
the person shall be deemed guilty of
misdemeanor, and upon conviction Their,
of, shall be fined in any sum not les
than 5000. nGr more than $1,000. and
imprisoned in the County jail not les
than 80 days MOI more than II yea
and for the second and every successil
otfense, shall be deemed guilty of a felon
and be punished by imprisonment in I'll
9 states prison for a period not eNceedin
two years and not less than one yea
making an exception in certain cases t
registered pharmacists.
The question arises whether the pr
hibitionary law of North Da kota, iayiI
been a part OF the state constitution an
therefore has greater force and cffei
than a statue passed by the iegislatul
l Of a state, as was the case in Iowa.
> will be noticed that by the enabling az
Of Congress, authorizing the state
, North Dakota to form a constitution
d provides that the constitution shall II
be repugnant to the constitution Of Il
United States, and there can be no doul
: under the decision of the Supreme Cou
\ of the United States in Leisy vs. Hard
that Article 30 of the constitution
V North Dakota, so far as it prohibits t
importation of Intoxicating liquors is
u pugnant to the constitution of ii
United States. The proclamation of Il
President admitting this state into Il
Union can give no force to any provisit
: in the state constitution which is repn
y nant to the constitution of the Unit
y States. 1t is, therefore our opinion, tn
Z the constitutional provision of North L
k0to is of no greater force or effect, III
= far as ii conflicts with the constitution
IL the United States, and prohibits the il