The Chanute times. [volume] (Chanute, Kan.) 1897-1913, 1905-05-12

and sale of intoxicating liquor for
medical, mechanical and scientific
purposes when in its judgment such
prohibition is necessary for the pre-
lection of the health, morals, peace
and safety of the people; that Il {
right to sell intoxicating liquor is
not one of the privileges or i'm
munities attaching to citizenship in
the United States; that the amend
ment to the constitution prohibiting
the manufacture and sale of intexl.
eating liquor except for medical,
mechanical or scientific purposes
affected the power of the legisla'-
ure to tolerate only, and did net
abridge Its power to further restrain
or prohibit the traffic; that the dis
cretion of probate judge in grant
ing or refusing permits is not an
option to act according to prejudice
or caprice, but it is judicial dis
cretion to be exercised only with
reference to the facts and circum-
stances of each case after full
hearing.
In the opinion, which is long, MIR.
Justice Burch takes up this constitu-
uonal question and shows very ef-
fectively the distinction between
the manufacture and sale Of other
commodities, distinction which is
very generally overlooked by the
people.
E. S. Lee brought an action in
replevin against Frank Stahl to re-
cover some intoxicating liquors
which had been taken by Stahl under
the "search-and- seizure" ordinance
of the state. In the district court,
Stahl, in his answer, said that he
was holding the property as chief
of police, pursuant to warrant
under the "search- -andslezure" or
dinance. Mr.. Lee demurred to
this answer, and Judge Hazen sus-
tanned the demurrer, and rendered
judgement againt Stahl. Mr.. Stahl
appealed, and the supreme court
Ireverses the case and sends it back
with instructions to overrule the
demurrer. The opinion is written
by Justice Greene. The cour'
holds that the ordinance is not un'
constitutional.
This is the decision for which the
State Temperance Union has been
anxiously waiting, and the result was
so thoroughly anticipated by the
officers of the Union that they ad-
vised that no remedial legislation
be asked Of the last legislature.
In speaking of the contention of
Lees attorneys that the act of 1903
repealed the act of 1901 authoriz-
ing the search and seizure of intoxi-
eating liquor, which the court re-
fused to hold, Justice Greene said:
If We should give it the construct
ion contended for by the plaintiff In
error, we would have statute con-
ferring such power on cities of the
second and third classes and with
drawing it from. cities of the first
class. This contention would be
strangely at variance with the policy
q irsued in Kansas for the past
twenty-five years with refernce to
the suppression of the sale and use
of intoxicating liquor as beverage.
1t has been the constant endeavor
of the legislature during that time
to enact new laws of such character,
and to amend the old ones in such
ways, as to make the prosecution
and conviction of persons engaged
in this unlawful traffic more certain.
1t is within the knowledge OF
every person that In cities of the
second and third classes such laws
are reasonably we'll enforced by the
county officials of the counties in
which such cities are situated. 1t
is equally we'll known that in
counties where cities Of the first
class are situated, that county Of
fc;als are unable, because of the
additional duties arising from q
greater population, to give that time
10 such prosecutions which would
be expected from such officials in
less populous countries. Therefore
we would hardly expect the legisla'
ture to deprive such cities of the
power to enforce the law in question
by the enactment and enforcement
of such ordinances.-Tribune.