Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1904-07-21
LIQUOR PERMIT DECISION.

Supreme Court Of Kansas Has Passed
on the Matter Of Issuance Of
Licenses by Probate Judge.
The ruling Of Judge Cowan of this
state that all liquor permits issued in
the state to druggists for the sale of
intoxicating isuors are illegal, be-
cause the constitution does not in ex-
press terms grant to probate courts
the authority to issue liquor licenses,
is not in harmony with a decision of
the supreme court of Kansas, filed
back in 1881 by Justice Brewer. The
Kansas constitutions and the North
Dakota constitution are practically
identical upon the powers Of probate
courts, and the same question was
raised in that state. e., that the
probate court had no jurisdiction in
probate matters not expressly granted
by the constitution. Hence it was
argued, under prohibition statute
similar to that in North Dakota, that
druggists licenses from the probate
court were illegally granted. The
court ruled against this contention and
said in it's opinion:
We may remark that, while the jur-
isdiction of the probate court is de-
fined by the constitution, there is in
that instrument no prohibition on the
judges holding other offices of trust
and profit, as there is in reference to
the district judges and justices of this
court. Hence he may hold other Offices
whose duties are not inconsistent with
those of the probate court, and the
legislature may place upon the person
holding the Office of probate Judge
other duties and cares than those of
the court over which he presides, even
if it may not enlarge the jurisdiction
of the probate court This thought I'M
derlies the past rulings in this court,
the past legislation of the state; and to
disturb them now would unsettle many
proceedings and titles. 1t may be con-
coded that it would be more logical
and less Objectionable to say that the
legislature may create an office with
specified duties, and then make the
person holding the position of probate
judge the incumbent of such Office,
than to hold that certain duties may be
cast directly upon the person holding
the office of probate judge. But sub
stance is above form. That which
may properly be done in one way
ought to be upheld, if possible, though
done in another way; and an act Of
the legislature should be sustained
whenever by any reasonable construc-
ton the act can be brought within the
scope of the legislative power. If in
this case the legislature had created
the Office of commissioner of licenses,
and provided that the probate Judge
should ex-oficio be such commissioner,
there could be little doubt of the con-
stitutionality of such an act. Sub
stantiadly the same thing is accom-
plished by casting upon him the duties
named in this act. And having in
view the duty of upholding an act of
the legislature wherever possible, the
past decisions of this court, the gen.
eral recognition by all departments OF
the ment-executive Legislative
and judicial-of the correctness oil
such exposition of constitutional limi
tations, and the substance rather thar
the form of this proceeding, we thinl
the casting of this duty respecting
permits upon the person holding the
Office Of probate Judge must be ad
judged within the power or the legis
lature. Clearly, the act gives thu
power to the probate judge rather thar
the probate court. Only incidental
mention ought to override the force
of the express naming Of the Judge il
granting the power, sustained, as it is
by the frequent references to him al
through the act.