The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1904-02-29
". LAKE WINS.
Judge Hazen Decides Druggist
Permit Case.
Orders County Clerk to Issue a
Permit.
NOT RIGHT METHOD.
Holds That Probate Judge Act
ed Without Authority.
Hay Have Important Bearing
on Probate Judge Law.

Judge Hazen this morning allowed
the peremptory writ of mandamus ask
ed for by W. F. Lake, druggist. to COM
peI County Clerk Newman to issue to
him his application blanks and books
for the use in the selling Of liquor
Chief of Police McCoIIum instituted
proceedings in the probate court seek
ing for the revokiug Of Lakes permit
On the ground that Lake had violated
the prohibitory law. A hearing was
held before Probate Judge Hayden One
witness testified to an illegal sale and
Judge. Hayden revoked the permit and
ordered County Clerk Newman not to
Issue to Lake any liquor permit books
Newman refused to issue the books to
Lake and Lake filed a writ of manda-
mus demanding that Newman issue the
books to him on the ground that the
probate Judge had no right to revoke
the permit in the manner followed
Judge Hazens decision is as follows:
The question of law presented IN this
case is How must the pEonaLe Judge
revoke the permit of d druggist to sell
intoxicating liquors p Must he revoke
IL upon q petition presented to him
signed by 25 reputable men and . re
putable women, and after d hearing
manner of revocation exclusive2 Or
may he revoke such permit upon his
own motion, or otherwise than upon a
petition signed in the manner above
fndicated2 If the probate Judge may
revoke such a permit otherwise than
uuou such petition then the peremptory
writ Of nandamuS must be denied, but
Il he may revoke such permit only up
on such a petition then the peremptory
writ must be allowed The decision Of
structiou of section /. chapter 165 Of the
session laws Of 1887
Where a statuta is to be construed
the court may look to the history Of the
legislation. and also to the evil sought
to be remedfed by the passage of the
act IN 1881 by chapter 12S, the leg
stature passed what IS commonly
known as the prOhibitory liquor law,
and among other things authorized the
probate judge of each county to grant
permits TO druggists to sell tntoxicat-
ing liquors for the excepted purposes,
but did not authorize probate judges to
revoke permits which had been grant
ed Where q druggist was convicted.
however. in a criminal action Of vIo-
1ation of the law a part Of the penalty
imposed was a forfeiture of his permit.
This statute remained in force until
1885 at which time the Legislature
amended the law of 1881 by section l.
Of chapter 149 Of the laws Of 1885, auth
OAlLilk6 the DEQD1tE JUICE III Ills 01SCIC-
ton to grant permits, and also author
tzing him in his discretion to revoke
such permits This statute remained
in force until 1887 at which time the
Legislature amended the law of 1885
by section L Of chapter 165. above re-
ferred to The statute of 1887 is now
the subject of construction.
The validity Of the statute Of 1891 au-
thOrizing the probate judge to issue
permits to druggists for the sale of in
faEfFa ting HfTfCs-= haFnrn 4Ha
pFeme court IN what IS known as the
Intoxicating liquor cases. Is Kansas 524.
The supreme court there sustained the
statute and held that it was within
the power Of the legislature to confer
upon q, probate judge the authority to
issue permits to druggists for the sale
Of intoxicating liquors. and held that
the power there conferred was upon the
person or individual holding the office
of probate Judge rather than upon the
probate court. and that the action of
the probate Judge in granting a permit
IS not a judicial act. Under the law Of
1881 no right of appeal was given where
the probate judge had refused to grant
& permit and the supreme court in the
case of Martin and MiIIiken vs. the
probate Judge of Rocks county, % Kan
sas 146 held that there was no appeal
from the decision Of the probate judge
refusing to grant Il druggists permit
placing the decision upon the ground
lGlat TIE atllofl % the EEUOaEE JUICE III
refusing the permit vas not a judicial
act and holding that where the probate
judge had refused to grant a permit
the druggist was without remedy,
Again in the case of Stanley vs.. Mon
net. "a Kansas 708, the supreme court
held that the probate judge was au-
thorized to refuse a permit and was at
liberty to do so without giving any rea-
son therefor.
BY these decisions it appear that
was authorized to either grant or re
fuse a permit at his pleasure He could
refuse to grant a permit upon a meri-
tOTioLs application or he could grant
one upon an application where il was
clear that it was to be a mere cover
for the Illegal handling of intoxicating
liquors. and in neither case could his
action be reviewed
Judge Hazen then enters into an ex-
haustive review of the legislation or
the subject and closes with the follow
ing:
Let us apply the construction con.
tended for by the respondent to q sup
posed case A petition conforming tt
the requirements of the statute is pre-
scented to the probate Judge asking thai
certain druggists permit be revoked
hearing IS had and the permit is re
voked; the druggist appeals to the dis
trfct court where the case is retired
and the decision of the prCba fe i11des
reversed the probate judge is directed
TO reinstate the permit and It is done
Now If the respondents construction O
the statute be correct the probate iudg.
could, Immediately after these proceed
ings, revoke the permit again. on hi.
own motion. and the druggist yvol1lf
then be without remedy, for no appea
would lie from this decision
'The clause in the law of 1885 auth
orizing probate judges to revoke per
ufts. and which was carried into tn.
law of 1857, cannot be treated ar9 -
sidered as It stood in the law of 1s8=
because the law of 1887 not only ha
conferred power upon the Droba r
judge but has pointed out the procedur
to be followed in the exercise of fha
power. And therefore We mus to
the law of 1887 as a continue ton ,,f n
power in the probate judge to revoke .
permit. but he must follow the r9rl.-g
duTe which has been pointed out il
that statute as preliminary a RI -