Barton County democrat. [volume] (Great Bend, Kan.) 1885-1915, 1890-10-23
UNCONSTITUTIONAL.
Important Decision of the Federal
Court at Topeka
The State Prphibitory Law, So Far rs Orig
tnal Packages Are Concerned. Cnconstf-
tutional-Further Legislation
Needed.

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 counsel In this case. First, as to
the onsiitutionality of what is known as
the Wilson bill. passed by Congress on the
9Th day of August, 1880; and, second, whether
IL said bill be valid the existing Prohibitory
law of the State of Kansas applies, or is il
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 with
or without the constitutionality 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-
| in spirituous, malt. vinous. fermented
other Intoxicating liquors shall be guilty OF
a misdemeanor." etc. (Gen- Stats 1883
Sec. 2521)
of the United States, in Leisy Hardin,
135 U. S. 100, this statute. in far as 1t 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 AMI void. being
la conflict with section three. article one, of
the Federal Constitution which places the
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 the Wilson
bill. which declares THAT all ferm-nted. dis
titled or other intoxic ting liquors or liquids
transported into any Stare 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 ly the at
torneys for the State that the petitioner pre-
vi us to the passage OF tho Wilson bill was
engaged in a business vioIative of any law
of the State; but they do claim that imme-
diately after the passage of said bill by IN
gress, the petitioners business became and
| is a violation of the Prohibitory law of the
State. So that the proposition stands in
this form: On the eth day of August, 1880,
sales made by the petitioner were permits
| sible and lawful under the Constitution OF
the Unftei States, the Prohibitory law of
the State to the contrary notwith-
standing; therefore. If the 9th day
of August, 1890, the same act of the
defendant is taken from under the protec-
81 ,ff tx,E od4
lation of the same ProhibitoIy law OF the
State. the conclusion would seem to be in
evitable that this changed condition of liza
blIty is because of the enactment of Con-
gross on August6. 1880. 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 S at Legislature, making that which
was Legitimate business one day a crime
the next, not under any law of Congress, but
against the law of the stnte There is MOTH
ing in the wording of the act imply ing that
Congress assumed such power or intended
| to give such effect to this enactment
At The time Congress passed the Wilson
bill it was well known and recognized that
the Supreme Court had decided that such a
State Prob bitory law was void, in so far as
the de aler in imported liquors in the orig
inal package concerned. In other
words, there was no law and and could be
no law in existence making such business a
crime. 1t can not be assumed hat Congress
desired to introduce into the pres
article subject hitherto not in
cluded by those laws. How could
Congress- know that the people of all or any
of the States March 8. 1873, desired to
have such object or article embraced in
their police laws. The content on of coun-
sci for the State is that it is for the several
States themselves to determine the scope
and purpose OF their police laws, and Con-
gress has not undertaken to arro2ate to it
self any power or control over tn at subject
In employing the word sshall be the ope-
ration OF the laws of the state Congress lid
not use them in a mandatory hut in per-
missive sense. The most ardent and enthu-
siastic advocate of a strong central govern
ment would spurn the idea that Congress
assumed to dictate or convey mandate to
tine several States in the matter of the exer-
else of their police power.
On the contrary, The Wilson bill left it to
the free and untrammeled 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
it's statutes some police regulation OF the
traffic in Intoxicating liquors These stat
utes rue exempt irvm their opera
tion, either in express terms i'm
piication, imported liquors and their
sale in original Packages In some
of the States the exc -ption was ex-
pre- .ed as in the Iowa Prohibitory law of
1875 and the old New YORK law of Is 5 and in
ALL cases where not expressly reserved the
law of the lan.l a. declared by the supreme
| judicia tribunal supplied the exception.
thus indicating the general consensus that
hitherto it was not recognized as among the
police power of the State to regula in
teriict among the States the traffic in inn
| ported liquors.
The dec SO in Leisy VS. Hardin, supra.
| but emphasizes this fact and priacinie-
The Prohibito' Y law "f the State of Kansas.
where it touched upon Interstate com
MERGE was no law at al, the time of this
enactment nor since. Judge Cooley says:
sThs term, unconstitutional law,
ployed in American juri~pruience, is n mis-
| homer and implies contrrdicti' n That
enactment which is opposed to the Cons itu-
! tion being in fact no law at all Cooley on
| con siitutional limitations Again page
| ISL Ghis same author says "W hen a statute
| is adiudged to be Unconstitutional, it is as if
| 1t had never BEEN Rights can not be built
up under it; contracts which depend upon
| il for their construction are void IL consti-
| futes a protection to no one who has acted
under it, and no one can be punished for
| having refused obedience to 1t before the
decision made. And what is true OF
act void in toto, is true also as to any part
Of an act which is found to be unconstitu-
1 tionaI aud which consequently is to be
| zarded as having never at any time been
passed and in legal force"
How then can the act of Congress in Ques-
4 he r-1afu n