The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1904-06-27

ever. from the fact that some malt
drinks are Intoxicating while others
are not, and it may be difficult at times
to determine whether the malt liquor
in question belongs to the one class or
to the other.
1.-The second. section of the ordinance
makes it unlawful for any person tc
sell or keep for sale or use any of the
drinks enumerated in the first section
at any place where any Intoxicating IL
quOrS are sold or kept or permitted to
be kept for any purpose whatever but
this section shall not apply to drug
gists having a. permit to sell intoxicat-
ing liquors Under this section per
son engaged in selling lemonade, soda
water, SarSa parilla, etc, must not keep
any Intoxicating liquor in his place of
business for any. purpose whatever. If
he should keep intoxicating liquor in
his place for any purpose, then and in
that event the selling by him of lemon
ade, soda water, sarsaparilla, etc, would
become unlawful although sold in open
and public view. Under the state law
a party may keep Intoxicating liquor
for his own use and may drink it with
out violating any law, but under this
ordinance if he should have a bottle of
liquor for any purpose whatever, even
for medicinal purposes, in his place of
business, he has offended against the
ordinance He may not keep a bottle
of beer in the ice chest for his own
use without making himself liable to
fine and imprisonment The bare read
ing of this section shows that it is un-
reasonable in its provisions.
Section of the ordinance declares
every place a common nuisance where
malt liquors are sold or used in viola
ton of the ordinance or sold or kept for
sale OF use at a place where intoxicat-
ing liquors are found in violation of
section 2 and provides for abating such
place by Selling the bar or bars, glasses
and vessels, and all liquors found there
in. 1t is only necessary to say as to this
section that it is not within the power
of the city to make a place nuisance
by declaring it such unless it is in fact
a nuisance. That place where per
son is running a lemonade stand and
the proprietor keeps a bottle of intOXi-
eating liquor for his own use and not
to sell or give away cannot be declared
by the city council a common nuisance
and abated as sucn by Selling the pro-
prietors property, is not debatable
question.
1T is clear that this ordinance is I'M
reasonable in its provisions and that
the punishment provided Is excessive
In determining whether the punishment
escribed by an ordinance IS excessive
it is we'll settled that we must look to
the maximum punishment provided. NO
fair minded person can believe that a
person who sells lemonade, soda water
sarSa parilla mineral water or nonln-
tOxicating malt drinks. in violation OF
the provisions of this ordinance should
be punished by confinement IN the Guy
Jail for three months ana De Hned III d
sum of two hundred dollars. And the
same may be said with reference to I'M
posing such punishment upon a person
who sells those drinks in place where
he may have some Intoxicating liquor
for a lawful purpose.
1.-THE view that the court entertains
of this ordinance is that at least the
latter half of section one is invalid as
not falling within the police power; that
section two is invalid as being unrea-
sonable in it's provisions; that section
three is invalid because it is not with
in the power of the city council to make
a thing a common nuisance by so de-
claring it unless it is a common nuis-
ance in fact: that section four is in
valid because it authorizes the seizure
of property not authorized to be seized
under city charter; that section i've
which imposes the penalty is unreason-
able because it AUTHORIZES excessive
punishment.
1.-The court therefore holds that there
being so large portion of the ordinance
invalid the court cannot say that that
part pertaining to Misunderstanding matt
drinks would have been passed without
the other provisions, and therefore the
entire ordinance is invalid
THE motion to quash the complaint
will be sustained.