Bismarck weekly tribune. [volume] (Bismarck, Dakota [N.D.]) 1884-1943, 1893-05-12
Attorney STEVENSON Makes a Good
Argument in Favor of Uncon-
stitutionality of Law.
And Attorney General standish and
Attorney Pollock Gets Back
At Him.
The Question Hinges On Number Of
Votes Required to Adopt Pro-
hibition Article.

the man Larrabee before the supreme
court Saturday, in accordance with the
mandate OF that court, so requiring.
His counsel, Halvor STEVENSON, who
had presented the petition for habeas
was present and proceeded with
an interesting and forcibly argumeula-
tive attack upon prohibition, as exem-
plifed in North Dakota. He had little
to present that was really new, but
made his points in an impressive man.
ner and held the close attention of the
court and an audience which was the
of the session thus far. Counsel
the main question in the case to
be "What is the meaning of the langu-
age of the enabling act Submit to the
and majority Of the legal votes
The courts have disapproved
of the doctrine that the number of legal
voters of a town, county or state, must
mean the whole Of them. by an exact
enumeration, but have recognized the
meaning of such a phrase to be the
whole number actually cast at a given
election. Among the cases in a long
list cited in support of this doctrine
we're several recent cases in Minnesota,
concerning the change of county seat.
His position was that Article 20 OF the
constitution was void, as not having re-
ceived the majority necessary under
the enabling act. Further, SO far
as concerns the statutes passed
pursuant to Article 20, they must be
holdens void, whether that article be so
regarded or not-because the constitu-
ton, which details with peculiar distinct
ness, the course to be pursued in the
passage of an act by the legislature re-
quires that each act shall cover but one
subject which must be set forth plainly
in its title. The prohibitory law does
not in it's title fulfill this requirement, in
either respect. Another point urged by
counsel was that the law wa %unconsti-
tutional in that it is not of uniform oper-
alton upon all citizens. The illustration
was prese nted of two individuals, jointly
guilty of the same act in violation of
the law, one of them being guilty for the
first time and the other having been pre-
viously found guilty; in this case one,
for the same act, would be guilty of a
misdemeanor, while the other is guilty Of
a felony, an unusual, cruel and unequal
application of penalties. Attorney
Steenerson argued further against the
law that 1t was not effective to carry out
the power of regulation of subjects per-
tanning to internal police, that it forbids
the manufacture, sale, ETC., of wine or
liquors for medicinal or similar pur-
poses, except by a druggist, an unjust
and unequal discrimination which can
not in any way favor the public health
or public morals. The legislature has
no power to forbid all men but druggists
to make Or sell the products of the
wheat, the corn or other vegetables
raised in the state or out of it.. It trans
cends the police powers of the legisla-
ture to make such an attempt.
G. A. Pollock opened the case of the
state in reply. He made his first point
upon the mathematics of the case show
ing from the figures presented that the
total vote upon Article 20, separately
submitted, was greater than that upon
the constitution itself-inferring that if
for such a reason that article was void,
the whole constitution must also be
void. Mr.. Pollock then confined him.
self mainly to argument in reply to the
position of the other side, relative to the
majority necessary to carry the separate
articles and the constitution itself. lie
commended that the rule relative to ordi-
nary elections in which the choice of
officers is made, applied here. All that
is necessary to the election OF any officer
is that he receive a majority, not Of the
largest number of votes cast for any
office at that election, but of the votes
cast for that particular office. The real
meaning of the clause in the enabling
act, requiring a majority of the legal
votes cast, was as if there had been
added such words as "upon that PROPOSE
tion"-that was the intention, not that
there must be a majority of all the votes
that were cast within the state Mt that
election. Counsel cited among others, a
decision in IL Kansas case by Judge
Brewer, strongly indorsing this view.
Attorney General Standish took up
the thread of argument here. An in.
spection of the enabling act will show
that there was no requirement that there
should be any election of officers Of the
state or otherwise mt the time Of voting
upon the adoption of this article. 1t
wat clearly not had in contemplation by
the trainers of the enabling act, that any
vote should be considered in computing
the majority upon this article other than