The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1905-05-06
Supreme Court Says Search and
Seizure Ordinance Is Valid.
Liquor Men Are Getting the Cold
Shoulder Everywhere.
THEY MUST GO TO JAIL.
COnstitutiOnality Of the Law Is
Upheld in Durein Case.
Four unfortunate" Law Break.
ers to Serve Sentences.

Two important decisions sustaining
the prohibitory law in Topeka were
rendered today by the supreme court.
Judge Hazens decision in the case
of E. S. Lee the druggist, was re-
versed. .
The Fritz Durein case. involving the
eonstitutionality of the state prohibi-
tory law. was decided against Durein.
Lee brought replevin against
Frank NJ. Stahl to recover some intox-
icating liquors taken by Stahl under
the search and seizure ordinance Of
the city. In the district court Stahl, in
his answer, set up the fact that he was
holding the property as chief of pO-
lice pursuant to a warrant under the
search and seizure" ordinance. Mr..
Lee demurred to this answer and
Judge Eazen sustained the demurrer
and rendered judgment against Stahl.
Mr.. Stahl appealed and the supreme
court reversed the case and sends it
back with instructions to overrule the
demurrer. The opinion is written by
Justice Greene. The court holds that
the ordinance is not unconstitutional
This is the decision for which the
State Temperance union has been anx-
iously awaiting, and the result was so
thoroughly anticipated by the officers
of the union that they advised that no
remedial legislation be asked of the
last legislature.
In speaking of the contention Of
Lees attorneys that the act of 1908
repealed the act of 1901 authorizing
the search and seizure of Intoxicating
liquor, which the court refused to hoIu,
Justice Greene said:
of we should give it the construc-
ton 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 inconsistent with the policy
pursued in Kansas for the past twenty
i've years with reference to the sup
IRE ssion of the sale and use of intoxi-
eating liquors as a beverage 1t has
been the constant effort of the legis-
lature during that period of time TO
enact new laws of such character, and
to amend the old ones in such ways,
as to make the prosecution and conVlc-
ton of persons engaged in this unlaW-
full traffic more certain. It is within
the knowledge of every person that In
cities of the second and third classes
such laws are reasonably well en-
forced by the county officials of the
ated. It is equally well known that
in counties where cities of the first
class are situated county officials are
unable, because of the additional du-
ties arising from greater population
to give that time to such prosecutions
that would be expected from such Off
Gals in less pOpulOus counties. There
fore, we would hardly expect the Legs
lature to deprive such cities of the
power to enforce the law in question
1fT and T7f0rppT1anf of
ordinances"
In the case of Fritz Durein, who is
Topeka jointist of long standing, the
attorneys for Durein took the position
that the sale of liquor for medical, me-
ehanicaI and scientific purposes cannot
be prohibited by the legislature; that
such a prohibition would transcend
even the power Of the people them
selves acting in constitutional con-
vention; that intoxicating liquor, when
used for medical, mechanical and sci
entific purposes, is essential to the vel
fare of the people and is a lawful and
innocent commodity which the law
must protect; that a permit to sell it
for the purposes named is a matter of
right and a statute which gives a pro-
bate judge power to refuse such per-
nit is void.
The supreme court held contrary to
this contention, and went so far as to
say that the legislature might abso-
lutely prohibit the manufacture and
sale of intoxicating liquor for medical,
mechanical and scientific purposes
when in it's judgment such prohibition
is necessary for the protection of the
health, morals, peace, and safety of the
people; that the right to sell intoxicat-
ing liquor is not one Of the privileges or
immunities attaching to citizenship in
the United States; that the amendment
to the constitution prohibiting the man
ufacture and sale of liquor except for
medicaly mechanical and scientific pur-
poses affected the power of the legisla-
ture to tolerate only and did not abridge
its power further to restrain or prohibit
the traffic.
Judge Burch wrote the opinion in this
case, and draws a clear distinction be-
/ tween Intoxicating liquors and all other
commodities.
The cases of James Sheasley. Fred
Ross and Fred Simmons, all Topeka
! jointists, which We're before the court
on the same points involved in the
| Durein case, were all disposed of in
short opinions, simply following the
/ Durein case
This means that all of these well
known jointists will have to pay the
fines and serve the sentences which
| have been imposed upon them
The case of PIamondon. another To
peka jointist, who was involved in the
Ross case, was reversed and remanded.