The Kinsley graphic. [volume] (Kinsley, Kan.) 1890-1940, 1890-10-24
ORIGINAL PACKAGES.
Important Decision of the Federal
Court at Topeka
the state ProhIbstory L.x, So Far a. odr-
Ina. Packages Are s,eacerneo. Unesnasi-
tutionsi-Farthsr Lset.l.tion
Needed


opinion this morning touching the con-
stitutfonaiity 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
astion 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 as
cusseo Dy counsel In this cIsc. First, as to
the eons,itutionaitiy of what Is known as
the wilson Dill. passed by Congress on The
SIN day OF August. 1850; and, second. whether
u ssiu Dill be valid the existing ProhibItory
law OF the State of Kansas appiIes or Is 1t
needfut that additional Legislation should
be had by the State to bring into action Ia
the State tho prov lsions of the Wi on bIIi
Under the view taken OF the last question
We deem h unnecessary TO enter upon any
discussion OF the nrst proposition as wi h
or without tiIe eonstftuiionaiity of the VIII
son bill the result to the petitioner Is the
same
The first section OF the Prohsbitory law of
Kansas Is as follows. ANY person or nor
sons who shalt manufacture. sell barter
IN spirituous, malt. vinous. fermentcd or
other Intoxicating liquors shalt be guilty OF
mlsdemeanor." etc (Gen statsL isi9
Sec. 252L)
Under tho decision of the Supreme Court
Of the United States, in Leisy va Hardin,
iss U. s. 100, this sttsutc in so lar as IL Mt
tempted to prohibit the sale of Intoxicating
liquors Inn ported into the State and sold Nv
the importer or his axens, in the origin al
package. was imperative AMI void. being
In conflict with section three, article one Of
the Federal Constitution which pisces the
commerce with foreign nations and among
the States
Incident to this decision. Congress on the
eth day OF August, 1890. TACT eG thu Wilson
bill. which declares that all ferrnsnted dis
titled or other ir Intoxicating liquors or liquids
transported Into any Sta g or Territory or
therein nj
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 aud In
the same manner as though such liquids or
liquors mad boon produced In such State or
Territory, and shall not be exempt there
from by reason of being introduced therein
in original packages or otherwise"
It lie not elaine nor pretended Iy the at
torneys for the State that the petitioner pre-
vi rs to the passage OF the Wilson bill was
engaged In u business yIoiativc of any law
OF the State; but they co claim that imme-
diateiy after the passage OF said bill by O n
gress, the petitioners business became and
ls a violation of the Prohibftory law of the
state. So that the proposition stands in
this form: On the 7th day of August. 1890,
sales made by the petitioner wore permits
s!bie and lawful under the Constitution of
the Unitei States. the Prohibitory law OF
she State to the contrary notwith-
standing; therefore, II on the 9Th day
OF August. 1890, tho same act of the
defendant Is taken from under the protec-
ton of the FEEDER a Constitution. and is vIo-
lation of thu same ProhibItory law of the
State. the conclusion wonid seem to be In
evttable that this change condition of riR-
bility Is because of the enactment of Con-
gress on Auguste. 1850 In brief the ooBten-
sion OF the State Is that the act OF Congress
enlarged the scope and opernt o. Of The act
of the 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 state There Is moth
ing In the wording OF the act I'm pI Ing that
Congress- assumed such a power or intended
70 O q a n q eff To ems rtV Anf
At the Tina Congress passed the Wilson
bill it was well known snd recognized that
State Prohibitory law was void, in far as
the dealer In imported liquors in the orig
nal package was 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
emit police laws of the State an
article or subject hitherto not in
SlSded ~ those rose, laws How could
OF the 'titrs on March 1873 desired to
Ia We sue object or article embraced in
their police laws. 1he content on of oun-
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
gross has not undertaken to arrogate to IT.
self any power or control over that subject
In employing the word "shali be the opc-
ration OF the laws of the State Con ress d i'd
not use them In a mandatory but in a per
tnissive sense. 1he most ardent and enthu-
siastic adyocats of a strong central govern
ment would spurn the idea that Congress
assumed to dictate or convey a mandate to
the several States In the matter of the exer-
else of their police power
On the contrary, the wilson bill left 1t to
the free and uutrammeled action of the sew
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 a rule exempt from their opera
ton, either in express terms or Inn
i'm tInu0ra md fI,nfr
sale in original packages In some
of the States the exception was ex-
pressed. as in the Iowa Prohibitory law of
1855 and the old New York law OF 10 S. and In
all cases where not expressly reserved the
judicial tribunal supplied the exception,
thus Indicating the general consensus that
hitherto IL was not recognized as among the
police power of the State so regulate or In
terdict among the States the traffic In i'm
ported liquors
The dec sion In Leisy vs. Hardin. supra.
The ProhibitOry Law of the st1te of Kansas.
where IL touched upon Inter State COM
merce. was no law at all, 1T the tune of this
enactment nor since Judge Cooley says:
The term. unconstitutional law. as en-
ployed in American turisprulence, is g mis-
homer and implies n contradiction. That
enactn-ut which is opposed to the Constitu-
tIon being in fact no law at all 4" Cooley on
con stitutional Limitations 3 Again at page
is aJ1udzed DO be uncon stitutioBaI, it is as IL
it had never been Rights can not DO built
it for their construction are VOID; IL consti-
tutes protection 40 one who has acfed
under it. and no one can be punished for
having refused obedience TO it before III :
decision was made. And what is true of an
act void In toto. Is true also to any part
OF an act which Is found to be unconstttu-
tionai and which consequently is to be re-
garded as having never at any time been
passed and in legal force"
How then can the acs of Congress in ques-
tion hive the effect and operation claimed
for it by the attorneys for the State FIR &c
must be kept la mind that a leg sIaffve act
in conflict with the Constitution is not only
iiiegai or yoidsble, but it il abs 5lutely void.
For Illustration, section 10 of article 1 of
the Federal Constitution declares that ssNo
State shall p any bill of alta inder. = post
fscto iw, OF law itnparting .he obligation of
CONT acts Suppose state should pass any
OF these prohibited cts and after its passage
the Constitution should be amend d by the
assent OF the requisite EuInber OF States and
the foregoing section dropped altogether. SO
that there was no longer any restriction
the States In this particular. Would any
one contead that prior enlistment In she
face of the Consultation dead at the time of
its cnactmept for the want of life giving
power, would at once arise from Its tSsno
and become a living. actual, lawful fhing7
suppose the Legislature of Kansas, In
these times Of Imputed financial dlssress.
should enact n law providing that In ali
cases OF Judicial sales OF real estate here