Phillipsburg herald. [volume] (Phillipsburg, Kan.) 1882-1905, 1895-03-21

but coupled with it he is clothed with
almost unlimited discretion as to his
action in administering the law; one
that he should be ever mindful not to
disregard or in any SO nse abuse.
In order that my action may be
fully understood, 1t would, perhaps,
be proper to note what discretion 10,
as the term is used in such cases. 'By
discretion, when applied to a court of
Justice, is meant sound discretion as
guarded by law. 1t must be legal,
not arbitrary, and yet it is not gov
erned by fixed rules, for then there
would he no discretion II governed
b, rule, then 1t would be matter Of
legal right to suitor in cases coming
within that rule, aud not a favor, or
within the discretion of the court.
When 1t is said. that something ia
left to the judge, 1t signifies that he
onght to decide according to the rules
of equity and the nature of crcum-
stances, and SO far rs 10 advance the
end OF justice"
10 make my meaning more clear on
this point, ut means when applied to
public functlonarlpS, Il power of right
conferred upon them by law, Of act
ing officially IA certain crcum stances
according TO the dictates Of their own
Judgment and conscience, aud not
controlled by the Judgment or con
science of others"
1t is but quite natural for any judi
cial officer desiring to be fair and
honest with himself and the public,
having such discretion placed in his
hands, to also desire that his exercise
of that power should be in the direc-
ton Of right and justice to all, and I
am not an exception to the rule.
Before passing to the facts as shown
by the evidence introduced in this
case, it might not be amiss for me to
say, that in my view of the law, no
person other than registered phar-
macist, at the same time in possession
of a permit from the probate Judge,
can, in any event, sell or barter in
toxicatiEg liquor. It is a personal
privilege or favor, granted to, the
beneficiary by such permit, that he
cannot delegate or deputize any other
person to exercise, be he partner,
clerk or otherwise. The statute uses
the words, "barter or SELL" the first
meaning to traffic or trade IN ex-
change of commodities, and the latter
meaning sale of an article and it's
purchase for money. This language
occurs in Sec. 2522, and by reference
to Sec. 1927, we find this language:
"Any person without taking out and
having permit to sell intoxicating
liquors as provided by this act Il
who shall secretly or indirectly sell
or barter any spirituous" X etc.
Now, in the case at bar, it is admit
ted that the firm to which applicant
belongs, is composed Of Major Drum
hitler and himself, are equal partners,
the firm owning stock Of drugs, lex
elusive of the prohibited articles) and
fixtures, stock amounting in value to
$1,000, Mejor Drumhiller and appli-
cant, APPEL, each owning $3.50 of such
stock.
There can be no doubt but that
Major Drumhiller pays his proper
tionate share Of the taxes on this
stock, both government, state, county
and municipal; that he receives his
one half Of the profits arising from
the sale OF this stock, including lntox-
icating liquors or the barter thereof;
that his interests in the concern are
identical in amount with the inter-
ests of Emil APPEL, applicant herein
and his associate in business; and we
would be but blind from the testimo-
nv if we did not conclude that they
we're partners in every sense OF the
word, so far as that stock is con-
cerned.
If a permit should be granted in
this case, to whom should or would it
issue? We answer, to Emil APPEL, the
only person named or known in this
Major Drumhiller is not,
nor does be claim to be, registered
pharmacist, has no permit nor has he
applied for any, aud there IS no pro-
vision Of law that / am aware Of, that
would authorize this court or its
indOe In issue a pArtnershiD permit,