The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1904-06-27
Nearly Every Section Is Held to
Be Invalid.
CAN'T MAKEANUISANCE
Hasn't Power to Declare One
Unless 1t Is i'm Fact.
Other Provisions Of the Ordi-
nance Are Unreasonable.

In the district court this morning
Judge Hazen sustained the motion to
quash in the case of the city of Topeka
against p. Plamondon. Plamondon was
arrested under the hop tea" ordinance
and convicted in police court. He APP
pealed to the district court. In sustain
ing the motion Judge Hazen knocked
out the hop tea ordinance.
In his opinion Judge Hazen said:
The defendant challenges the valid
fty Of ordinance No. 2425 under which
ne was convicted in the police court by
motion to quash the complaint.
The title of this ordinance indicates
that it is an ordinance to regulate the
sale Of Misunderstanding drinks Section
one of the ordinance may be properly
divided into two parts. The first part
makes II unlawful for any person to
sell or give away in the city of Topeka
any malt drink used as a beverage in
less quantities than one gallon. and
prohibits the drinking of the same
upon the premises. The latter part of
TINS section makes it unlawful to sell
or give away soda water, pop, mineral
water lemonade, sarsaparilla, ginger
ale or other like drinks in any store
SHOP. or place Of business screened from
public view by any partition, prescrip-
non case or other device to prevent
publicity.
an persons within the city are pro-
hibited from selling malt drinks in
less quantities than one gallon and
the drinking of the same uDOn the
premises is prohibited. Under this
provision the druggist who may law
Iully sell Intoxicating malt drinks is
prohibited from selling non-intoxicat-
Ing malt drinks in less quantities than
one gallon. The druggist would not
be permitted to sell a bottle of malt
as beverage without violating this
ordinance, but may sell a bottle of
beer. The latter part of this section
makes it unlawful for any person
within the city of Topeka to sell or
give away any soda water lemonade,
sarsaparilla, pop, mineral water. gin
ger ale or other like drinks in any
way screened from public view I'm
der this provision all persons desir-
ing to purchase and drink lemonade
soda water, sarsa parilla, ginger ale or
other like drink must do so only in
public view Any person who owns
an ice cream DarlOr or restaurant
would not be permitted to allow his
patrons or guests to drink glass of
lemonade, sarsaparflla, ginger ale or
soda water behind partition or
screen without subjecting himself to
imprisonment not exceeding three
months in the city Jail and a fine of
$500 A gentleman who desires to
treat lady to a glass of lemonade
must do so only in public view where
the gaze and curiosity of every
passerby may be full INDUCED. The
restaurant keeper may not serve
lemonade or ginger ale to his guests
I'm connection with their meals be-
hind partition or other screen; and
the enterprising dry goods merchant
Is prohibited from curtaining off a
cosy corner in his esta Adjustment for
the accommodation of lady customers
who may desire to drink a glass of
lemonade while resting therein with
out offending against this ordinance.
It is common knowledge that all pro-
hibitory liquor laws and all laws
regulating the sale of Intoxicating
liquor have been brought about by
the excessive use of intoxicants among
men. 1t is equally well understood
that soda water, lemonade, sarsapa
rilla and like drinks are largely used
by women and children. 1t would
seem that the city council in passing
the ordinance in question must have
believed that there was some neces-
sity for regulating the use of their
kind of drinks. The ordinance seems
to regulate drinks ST all kinds except
Intoxicating liquors and hydrant
water.
THE first question arising is wheth-
ed this ordinance falls within the DO
lice power of the state. Under the 20
lice power the city is authorized to en-
act all needful ordinances to secure the
health, peace, good order and general
welfare of the city. It needs no argu-
ment or citation of authority to show
that the regulation of lemonade, soda
water, sarsaparilla. mineral water and
like drinks do not come within the po-
lice power. If these drinks which are
universally known to be harmless are
subjects of police regulation then there
is no limit to that power. If these
things come within its scope then the
some power could be exercised to regu-
late the sale of peanuts, popcorn, can
dy- etc 1t is unnecessary to decide
whether this ordinance, so far as it at
tempts to regulate the sale of malt
drinks. comes within the police power
or not Under the decisions of our SUI
preme court malt drinks fall within
the police power. That follows, how