KANSAS COLLECTION BOOKS

William G. Cutler's History of the State of Kansas


ERA OF PEACE, PART 31

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PROHIBITION IN KANSAS.

From the early Territorial times, there has been a reasonably strong temperance sentiment in Kansas. The Territorial Legislature of 1855 enacted a law entitled "An act to restrain dramshops and taverns, and to regulate the sale of intoxicating liquors." The act provided that a special election should be held on the first Monday of October, 1855, and every two years thereafter, in each municipal township in each county, and in each incorporated city or town in the Territory, to take the vote of the people upon the question whether dramshops and tavern licenses should be issued for the two years thereafter. The vote on the same was to be by ballot, which should either be "In favor of dramshop," or "Against dramshop." Before a license should be granted to dramshops, tavern keepers and grocers a majority vote must be case by each municipality "In favor of dramshops," and a majority of householders must petition for the same. In a city authorized by its charter to grant licenses, the county tribunal must first have granted it. The tax on such license should be not less than $10, or more than $500, for every twelve months, the same to be applied for county purposes.

Penalties. - For selling without a license, a fine of $100 should be assessed against the offender, and for every second or subsequent offense not less than the above named fine, and imprisonment in the county jail not less than five nor more than thirty days. Selling to a slave without the consent of his master, owner or overseer, or selling liquor on Sunday, subjected one to the above-named penalties, and a conviction worked a forfeiture of the license. The person obtaining the license must needs give a bond in the sum of $2,000, not to keep a disorderly house, not to sell to a slave, nor directly or indirectly to sell on Sundays, for which violations of the law a suit could be instituted against the principal or sureties on the bond.

Liquor License Act of 1859. - An act of the same title was that of 1855 was approved by Gov. Medary February 12, 1859; this act provided that no license should be granted by a tribunal transacting county business, or by a city council of an incorporated city, unless the petition requesting that a dramshop, tavern or grocery license be granted the applicant should have on said petition a majority of the householders in the township, county or ward where the license was sought. All corporated cities containing one thousand or more inhabitants were entirely exempted from the operations of this act, such cities possessing full power to regulate licenses for all purposes and dispose of the proceeds thereof.

Amount of Tax. - For every period of twelve months, the tax levied upon the dramshop keeper should not be less than $50, nor more than $500. This tax was to be paid into the treasury of the county or city granting such license, and used for the benefit of the township in which such license should be granted.

Penalty for Selling Without License. - The fine for selling without license was fixed at a sum not more than $100 for each offense; and for second and subsequent offense, the fine should not be greater than the above-named sum, or the offender might be indicted for a misdemeanor, and fined for not less than $500, and imprisoned in the county jail not less than six months.

It was made a misdemeanor to sell on Sunday, or on the Fourth of July, or to any one known to be in the habit of getting intoxicated, or to any married man against the known wishes of his wife. All places where liquor would be sold in violation of the act were declared nuisances; exemplary damages could be recovered by every wife, child, parent, guardian, employer or other person who should be injured in person or property or means of support, by any intoxicated person or in consequence of intoxication, and a married woman could sue as a single person. Giving away liquor, to evade the law, was deemed selling, and, in prosecutions it was not necessary to state kind of liquor sold, or to state to whom sold. For all fines and cost assessed against violators of this law, no property was exempted from execution under this act.

ACTION OF THE WYANDOTTE CONVENTION.

In the Constitutional Convention, Hon. John Ritchie, of Topeka, on July 11, 1859, offered the following resolution:

Resolved, That the Constitution of the State Of Kansas shall confer power on the Legislature, to prohibit the introduction, manufacture or sale of spirituous liquors within the State.

July 23, 1859, Hon. H. D. Preston, from Burlingame, offered

SECTION--. The Legislature shall have power to regulate or prohibit the sale of alcoholic liquors, except for mechanical and medicinal purposes.

On a motion to lay this on the table, it was lost by a vote of 19 to 31. Hon. S. A. Stinson moved to insert after the word "medicinal," the words "and other," which motion was laid on the table.

Hon. Solon O. Thacher, of Lawrence, hoped the convention would pause a little before going into this special legislation. He did not doubt that the Legislature had complete control over the question, but did not wish to see the constitution enter into these details; it is unwise to incorporate a provision of this nature in the constitution. There is no gain in it - there is loss. If the people demand a prohibitory law, he trusted we will have a Legislature that will pass such a law; it is not wise to have any special legislation in a constitution. We are framing the first constitution of the State, and it is unwise to jeopardize it with so much legislation.

Hon. William Hutchinson, of Lawrence, thought there was some necessity for the passage of this section; if we are looking for the future moral as well as political well-being of Kansas, let us throw a guard around it while the power is in our hands. It can do no harm.

Dr. James G. Blunt, of Anderson, believed that the history of the temperance cause in this country has proved that no good has ever resulted from attempting to legislate upon it in this way.

Mr. Preston, in response to the arguments of Mr. Thacher, said if the Legislature should ever want to enact a liquor law, I suggest that there should not be anything in the way.

Hon. Samuel A. Stinson, of Leavenworth, said that in Maine, where there is no constitutional provision, a law has been declared constitutional that is more stringent than any Kansas will ever have.

Mr. Preston thought that allowing the sale of intoxicating liquors indiscriminately as against humanity is the worst thing that could happen, and he desired to see the State take a stand upon the side of temperance, and if we have stringent laws upon statute books, we certainly shall have a moral people.

Hon. James M. Winchell, the President of the convention, called Hon. P. H. Townsend, of Big Springs, to the chair, and said if the decision of the courts has rendered it competent for the Legislature to deal with this question in its own way, it is folly, for different reasons, to incorporate it in our organic law. Mr. Hutchinson adding that a similar section had been incorporated into the constitution of Minnesota or California - which lacked confirmation - Mr. Preston withdrew the section.

Legislation of 1867. - An act, amendatory to the act of February 11, 1859, was approved February 21, 1867, which provided that before a dramshop, tavern or grocery license should be granted by a tribunal competent to issue the same, there should be a petition or recommendation signed by a majority of the residents in the township or ward of the city when the license was prayed for, or those over twenty-one years of age, male and female. The tax granting such license must be paid into the county or city treasury, as the case might be, and the amount should not be less than $50, nor more than $500, per year. This act passed the House by a vote of 71 to 6; the Senate, by a vote of 15 to 6. One of the affirmative voters in the House, Dan. Killen, of Wyandotte, offered the following, which was spread on the journal:

MR. SPEAKER: Allow me to thank the members of this House for the vote on House bill No. 157, in the name of the mothers, not only of the State of Kansas, but of the world, wherever this practice of using intoxicating liquors has wormed itself into the community - one of the practices (I think) cursed by God - all men who have not had a veil or fog of the demons of hell spread over their thinking powers. Likewise to thank in the name of a large number of men, who, to-day, are struggling with the accursed practice for the mastery.

The votes cast against this law in the House were one from Doniphan County, two from Leavenworth, one from Johnson, one from Jackson, and one from Washington County. In the Senate, of the votes against it, two were from Atchison County, three from Leavenworth, and one from Morris County.

The temperance sentiment of the State was never stronger then it was in the year ending April 1, 1867. Earnest workers in the cause at home and distinguished laborers from abroad, among whom where William Ross, of Illinois, and Dr. Charles Jewett, of Connecticut, developed a sentiment that made such legislation a certainty. Dr. Jewett lectured at Topeka during the session of the Legislature, which stimulated the temperance feeling to that extent that this recognition of the power of woman was so utilized, that, without having the right of suffrage conferred upon her, in this matter she was considered practically a voter.

All the territorial and State laws of Kansas made in 1868, and prior thereto, were revised, and the "General Statutes of 1868" was the result. This liquor local option law of 1859, amended in 1867, underwent a change, so that the so-called dramshop act, which went into effect October 31, 1868, had for its first section the following:

Before a dramshop license, tavern license or grocery license shall be granted to any person applying for the same, such person, if applying for a township license, shall present to the tribunal transacting county business a petition or recommendation signed by a majority of the residents of the township, of twenty-one years of age and over, both male and female, in which such dramshop, tavern or grocery is to be kept; or if the same is to be kept in any incorporated city or town, then to the city council thereof, a petition signed by a majority of the residents of the ward, of twenty-one years of age and over, both male and female, in which said dramshop, tavern or grocery is to be kept, recommending such person as a fit person to keep the same, and requesting that a license be granted to him for such purpose: Provided, That the corporate authorities of cities of the first and second class may by ordinance dispense with petition mentioned in this section.

Under this act, prohibition of the liquor traffic was measurably obtained in several of the cities of the third class and in many of the counties of the State, so thoroughly imbued with temperance principles were so many communities in different parts of the State.

From 1868 to 1879 there had been no systematic effort made for changes in the statue concerning the regulation and restriction of the liquor traffic. But Gov. John P. St. John, in his message to the Legislature January 14, 1879, on the subject of temperance, said:

The subject of temperance, in its relation to the use of intoxicating liquors as a beverage, has occupied the attention of the people of Kansas to such an extent that I feel it my duty to call your attention to some of its evils, and suggest, if possible, a remedy therefor.

Could we but dry up this one great evil that consumes annually so much wealth, and destroys the physical, moral and mental usefulness of its victims, we would need no prisons, poor houses or police. I fully realize that it is easier to talk about the evils flowing from the use of intoxicating liquors as a beverage, than it is to provide a remedy for them. If it could be fully accomplished, I am clearly of the opinion that no greater blessing could be conferred by you upon the people of this State, than to absolutely and forever prohibit the manufacture, importation and sale of intoxicating liquors as a beverage. But many people insist that a prohibitory law could not, or at least would not be enforced, and that any law that cannot be, or is not enforced, is worse than no law at all.

I have too much faith in the people of Kansas, to believe that any law intended to, and the effect of which would be, to promote the moral, physical and mental condition of mankind would not be rightly enforced. Yet, desiring the passage of no law in relation to the enforcement of which there could be any doubt, and with a view to the adoption of such measures only as will be backed up and enforced by the moral sentiment of our people, I respectfully call your attention to the first section of what is commonly known as the dramshop act, which reads as follows: (See foregoing section). And earnestly recommend that said section be amended by striking out the proviso therein contained, and requiring the party desiring a license under said section to publish his petition, with the names of the signers thereto, in some newspaper printed and of general circulation in the town, city or township in which he desires to obtain such license; or in case no newspaper is so published then in some newspaper published in the county and of general circulation therein, at least thirty days before making such application; and thus place all the cities, towns and townships in the State, irrespective of the particular class to which they belong, on an equal footing, and let the people in each locality settle this question for themselves.

On the 23d of January, Hon. M. W. Moore, of Republic County, introduced House Bill No. 86. An act to amend Section 11 of Chapter 35 of the Statutes of 1868, regulating the sale of intoxicating liquors, which was on the following day read a second time and referred to the Standing Committee on Temperance. February 8, House Bill No. 188, an act amendatory of and supplemental to an act entitled "An act to restrain dramshops and taverns, and regulate the sale of intoxicating liquors," approved March 3, 1858, was referred to the same committee, T. J. Calvin, of Labette County, Chairman. Petitions asking for legislation on this subject in general accord with the recommendations of the Governor, from January 24 to March 4, inclusive, came in from some thirty counties and were presented and referred to the Committee on Temperance. Opposed to this were petitions from 2,152 voters of Atchison County and from 500 voters from Ford County.

The Committee on Temperance, on February 13, introduced a substitute for House Bills Nos. 86 and 188, which in its provisions recognized the features of an amended law as suggested by Gov. St. John, providing that the petition for a dramshop license should be published in some newspaper in the county, or if there were none published in the same, then in some newspaper of general circulation in the county where the said petition prayed for a license, and that the said petition should be published for four consecutive weeks; proof thereof to be made by the affidavit of the publisher of said newspaper. It was provided that when a petition should be presented to a Board of County Commissioners or a City Council, if a remonstrance signed by a majority of the residents of a municipal township, or of any ward of a city, should be presented, praying that said license be not granted, then said license should not be granted; the remonstrance being signed by a greater number of the actual residents of a township or ward would prevent a license being issued by either a Board of County Commissioners or a City Council; those persons qualified to sign either a petition or remonstrance must have resided in the State six months and in the township or ward thirty days.

Action of the Legislature. - This bill came up for a third reading in the House, March 5, 1879, and passed by a vote of 75 to 25; absentees, 29; 65 being a constitutional majority. The bill was acted upon in the Senate, March 8, 11 votes being cast for it, 11 against it. A constitutional majority of the Senate was 21.

THE CONSTITUTIONAL PROHIBITORY AMENDMENT.

Hon. George F. Hamlin, Senator from Linn County, on February 8, 1879, by unaminous consent, introduced Senate Joint Resolution No. 3, which read as follows:

SENATE JOINT RESOLUTION NO. III.

Proposing an amendment to Article Fifteen of the Constitution of the State of Kansas, relating to the manufacture and sale of intoxicating liquors, by adding Section Ten to said article.

Be it enacted by the Legislature of the State of Kansas, two-thirds of all the members elected to each House voting therefor:

SECTION 1. The following proposition to amend the Constitution of the State of Kansas shall be submitted to the electors of the State for adoption or rejection, at the general election to be held on the Tuesday succeeding the first Monday of November, A. D. Eighteen hundred and eighty: PROPOSITION. - Article Fifteen shall be amended by adding Section Ten thereto, which shall read as follows: "The manufacture and sale of intoxicating liquors shall be forever prohibited in this State, except for medical, scientific and mechanical purpose."

SEC. 2. The following shall be the method of submitting said proposition to the electors: The ballots shall be either written or printed, or partly written and partly printed; and those voting for the proposition shall vote, "For the proposition to amend the Constitution;" and those voting against the proposition shall vote, "Against the proposition to amend the Constitution."

SEC. 3. This resolution shall take effect and be in force from and after its publication in the statue books.

On this resolution the following action was held February 21:

Senate Joint Resolution No. 3, being on third reading, but not yet reported to the Senate by the Committee on Engrossed bills, Senator Guthrie moved that Senate Joint Resolution No. 3, proposing an amendment to Article Fifteen of the Constitution of the State of Kansas, relating to the manufacture and sale or intoxicating liquors, be considered engrossed and read the third time now, which motion prevailed.

Thereupon Senate Joint Resolution No. 3 was read the third time, and the question being, Shall the bill pass? The roll was called, with the following results: Yeas, 37; nays, 0.

The Senators absent or not voting were: Messrs. Benedict, of Wilson; Williams, of Doniphan, and Wells, of Pottawatomie.

This resolution came before the House at an evening session, March 5, and consequent upon a call of the House, a resolution was adopted by a vote of 88 to 31; absent or not voting, 10. A constitutional majority was 86.

March 11, 1879, this action met with executive approval. The amendment was voted upon November 2, 1880, and the vote upon it was as follows:

========================================
              For           Against
              Proposition   Proposition
COUNTIES.     To Amend The  To Amend The
              Constitution. Constitution.
========================================
Allen........    1,305            951
Anderson.....      909            870
Atchison.....    1,343          3,147
Barbour......      220            213
Barton.......      490          1,058
Bourbon......    1,410          1,964
Brown........    1,345          1,288
Butler.......    2,211          1,141
Chase........      597            660
Chautauqua...    1,051            819
Cherokee.....    2,421          1,944
Clay.........    1,296            907
Cloud........    1,454          1,261
Coffey.......    1,025          1,209
Cowley.......    3,243            870
Crawford.....    1,655          1,469
Davis........      628            607
Decatur......      146            251
Dickinson....    1,477          1,222
Doniphan.....      821          2,150
Douglas......    2,711          1,602
Edwards......      121            194
Elk..........    1,232            564
Ellis........      355            463
Ellsworth....      611            781
Ford.........      125            488
Franklin.....    1,967          1,293
Graham.......      207            358
Greenwood....    1,059            941
Harper.......      424            316
Harvey.......    1,148            858
Hodgeman.....      147             65
Jackson......    1,056          1,098
Jefferson....    1,306          1,723
Jewell.......    1,557          1,256
Johnson......    1,545          1,787
Kingman......      265            346
Labette......    2,082          2,123
Leavenworth..    1,486          3,882
Lincoln......      613            733
Linn.........    1,494          1,292
Lyon.........    2,337            877
Marion.......    1,020            825
Marshall.....    1,428          1,853
McPherson....    2,134            912
Miami........    1,488          1,751
Mitchell.....    1,348          1,178
Montgomery...    1,939          1,250
Morris.......      895            885
Nemaha.......    1,213          1,185
Neosho.......    1,528          1,164
Ness.........      200            216
Norton.......      575            491
Osage........    2,287          1,684
Osborne......    1,035            873
Ottawa.......    1,163            835
Pawnee.......      604            218
Phillips.....      978            708
Pottawatomie.    1,549          1,475
Pratt........      151            142
Reno.........    1,006            932
Republic.....    1,330            919
Rice.........    1,087            625
Riley........    1,178            828
Rooks........      503            696
Rush.........      315            305
Russell......      443            655
Saline.......    1,410          1,207
Sedgwick.....    1,868          1,716
Shawnee......    3,159          2,513
Sheridan.....      101             69
Smith........    1,274            851
Stafford.....      393            301
Sumner.......    2,394          1,201
Trego........      220            120
Wabaunsee....      622            990
Washington...    1,112          1,610
Wilson.......    1,487          1,069
Woodson......      748            530
Wyandotte....    1,222          2,481
                 -----          -----
     Total...   92,302         84,304
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