The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1895-09-22

| that way We would have some protec-
ton from the quantity and quality OF
| the legisl3t ton with which the people
are burdened, the courts would be saw
ed from excessive work in ascertaining
what is the law and the law officer
OF the state would have greater field
for fame and fortune than ne has found
in his present will o'the wisp' perform
anceS.
in the land is authority the Kansas
prohibitory law is in conflict with the
constitution of this state and of the
United States.
The Kelleher habeas corpus case pen
ding in the district court presents that
question. On the motion for re-hear-
ing, which is adllowed under the prac-
tice, the following additional author
tiles will be cited TO the court.
In a case in the supreme court Of the
United States Justice Field. who is
generally admitted 10 be the abiest jul
risth in that court. referring 10 Section
Is Of the Kansas prOhibitory law (the
very section on Which Kelleher's case
is baseD said: by the 18th section as
is well said by counsel the legislature
without notice TO the owner or having
of any kind declares every place where
such liquors are sold. bartered or Civ
en- away 10 be common nuisanees, and
prescribes what shall follow upon
court having jurisdiction finding such
place 70 be what the legislature has
already pronounced Ii, and then the Of
fcers Of the court are 10 shut up and
abate the place by taking possession
and a though they were not sufficient
security against the continuance of the
traffic they are required 10 destroy
ali the liquors found therein and all
oeher property: il matters not whether
the articles are of such a character as
could be used in any other business or
be of any value for any other purpose
1t is plain that great wrong Will often
be done if legislation like that embod-
led in this 18th section can be upheld.
The supreme court of Kansas admits
that the legislature of the state in de-
stroying the value of such property
may have gone to the utmost verge of
the constitutional authority. In myop-
inion It has gone beyond the verge and
crossed the line which separates regu-
lation from confiscation." And in the
same decision, which relates mainly
TO the question of compensation for
property built prior to the adoption Of
the prohibitory amendment in 1880.
which property became of little value
when not permitted to be used for the
justices of the supreme court agree in
stating that the meaning of the 18th
section is TO condemn and destroy prop
erty used for the manufacture and sale
of liquor without any previous convic-
ton first had or any trial known to the
law, and consequently that there is
no provision whatever for trial by jury
In a case in the United States circuit
court. district of Kansas. on the consti-
tutionality OF the prohibitory law. JUS
tice Brewer. formerly of the Kansas SUI
preme court and now of the United
States supreme court said that 1.-The
18th section is arbitrary, oppressive and
unjust and therefore should be declared
not to be due process of law" Justice
Brewer closes his opinion in these
words: "The good people of my state
in their zeal for temperance legislation
may have been led 10 infringe upon
sacred and property rights. / commend
, this to the thoughtful consideration
of my state-a state in whose past
glory and in whose future 1 believe"
And in a habeas corpus case in same
court in more fOrcible language than
that used by Justice Field or his assoc