KANSAS COLLECTION BOOKS

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


ERA OF PEACE, PART 32

[TOC] [part 33] [part 31] [Cutler's History]

PROHIBITION IN KANSAS, CONT'D.

The whole vote case on the amendment was 176,606; the Presidential vote at the same election was some 24,600 greater. Gov. St. John in his message to the Legislature, January 11, 1881, in referring to the prohibitory amendment, said:

This amendment being now a part of the constitution of our State, it devolves upon you to enact such laws as are necessary for its rigid enforcement. There are but few citizens to-day in Kansas who will not admit that "dramshops" are a curse to any people. More crime, poverty, misery and degredation flow from them than from all other sources combined. The real difference of opinion existing in relation to them, is not so much as to whether they are an evil or a blessing, but rather as to what course should be pursued toward them. Some have contended that they should be licensed, but it seems to me that if they are an evil no government should give them the sanction of the law. They should be prohibited as we prohibit all other acknowledged evils. It has been urged, as an argument in favor of licensing dramshops, that under that system a large revenue is derived. Granting this to be true, I insist that we have no right to consider the question of revenue at a cost of the sacrifice of principle. All the revenue ever received from such a source will not compensate for a single tear of a heart-broken mother at the sight of her drunken son as he reels from the door of a licensed dramshop. But viewing the question solely from a financial standpoint, all persons who take pains to give the matter a thorough and impartial investigation will be forced to admit that every dollar of revenue derived from such license cost the people not less than $10 in loss of time and property, cost of courts, prisons and poor-houses, say nothing of the destruction of the physical, mental and moral elements of mankind, which cannot be estimated. The people of Kansas have spoken upon the whole question in language that cannot be misunderstood. By their verdict the license system, as it relates to the sale of intoxicating liquors as a beverage, has been blotted from the statue books of the State. We now look to the future, not forgetting that is was here on our soil where the first blow was given that finally resulted in the emancipation of a race from slavery. We have now determined upon a second emancipation, which shall free not only the body but the soul of man. Now, as in the past, the civilized world watches Kansas, and anxiously awaits the result. No step should be taken backward. Let it not be said that any evil exists in our midst, the power of which is greater than the people.

In the Senate, the standing committee on temperance consisted of Senators Benson, of Franklin County; Broderick, of Jackson; Breyfoyle, of Johnson; Thacher, of Douglas, and Strang, of Pawnee. On the 26th of January, Senator Finch, of Sage, offered the following preambles and resolution:

WHEREAS The enforcement of the dramshop act in very many localities in this State has been a failure, for the reason that in such localities the local authorities have no sympathy for, or interest in, such enforcement; and

WHEREAS Any similar enactment will in all probability be a failure in said localities under the prohibitory amendment to our constitution; and

WHEREAS Some principle or plan of action should be adopted, general in its application, which should enforce said constitutional amendment; therefore, be it

Resolved, that in the judgment of the Senate of the State of Kansas, an act should be framed giving the execution of the laws to State officials in such localities where the local officials fail to perform their duties, to the end that the will of the majority of the people of the State, expressed at the recent election, be carried out.

It was referred to the Committee on Temperance, and its Chairman, Senator Benson, submitted a report January 29, in which the committee express their belief as follows:

Your committee are unwilling to believe that any laws of the State reasonable in their provision, and sanctioned by the constitution, will long remain inoperative in any part of the State. Of course the question of enforcing the laws regulating the sale of liquor in communities where public sentiment is opposed to their provisions, is a matter of the greatest concern; and that such laws, when passed, must be duly enforced, is a proposition that most people will readily agree to, and the real point of inquiry should be, how best to secure this result. Your committee have the utmost faith in the power, integrity and wisdom of the courts, and in the good faith and efficiency of the officers of the law. By placing in the hands of courts and officers the most effective methods for the detection and punishment of crimes, your committee believes that the liquor laws and all the penal laws may be fairly enforced in all parts of the State. Believing that the restoration of the grand jury system, simplified by reducing the number of jurors, and thus lessening expense, as proposed in the accompanying bills, will most effectually tend to the uniform and prompt execution of the criminal laws, while saving to individuals the peril of malicious prosecution, and believing that experience has fully shown the wisdom and efficiency of that system, your committee beg leave to present the accompany bills, and recommend their passage.

A. W. Benson, Chairman

There were several bills reported on the "Prohibitory Liquor Law," but the one enacted, which passed the Senate February 11, is a bill of twenty-four sections, and is entitled, "An act to prohibit the manufacture and sale of intoxicating liquors, except for medicinal, scientific and mechanical purposes, and to regulate the manufacture thereof for such excepted purposes, be deferred to some future time, which motion did not prevail."

The vote on the bill in the Senate was yeas, 32; nays, 7; absent one, Senator Benedict, of Wilson. The Senators voting nay were: Messrs. Aller and Boling, of Leavenworth; Briggs and Everest, of Atchison; Hutchinson, of Marshall; McLouth, of Jefferson, and Williams, of Doniphan.

The Senators voting against the bill represented constituencies that were adverse to "Prohibition," as may be seen in the following: Leavenworth County gave 2,396 majority against the "Amendment;" Atchison, 1,804; Marshall, 425; Jefferson, 417; Doniphan, 1,329; Wyandotte, 1,259; aggregating 7,620, which, taken from the majority for the amendment, 7,998, leaves a margin of 378. Senator Buchanan, of Wyandotte, voted for the bill, so as to move a reconsideration of the same, on the following day, which was done, the vote standing on a reconsideration, yeas, 7; nays, 32; absent or not voting, 8.

THE PROHIBITORY LIQUOR LAW.

The text of the bill passed by the Senate, which went to the House, and was passed there without amendment, on February 16, and was approved February 19, is as follows:

Be it enacted by the Legislature of the State of Kansas:

SECTION 1. Any person or persons who shall manufacture, sell or barter any spirituous malt, vinous, fermented or other intoxicating liquors, shall be guilty of misdemeanor, and punished as hereinafter provided: Provided, however, That such liquors may be sold for medical, scientific and mechanical purposes, as provided in this act.

SEC. 2. It shall be unlawful for any person or persons to sell or barter, for medical, scientific or mechanical purposes, any malt, vinous, spirituous, fermented or other intoxicating liquors, without first having procured a druggist's permit therefor from the Probate Judge of the county wherein such druggists may at the time be doing business, and such Probate Judge is hereby authorized, in his discretion, to grant a druggist's permit for the period of one year, to any person of good moral character, who is lawfully and in good faith engaged in the business of druggist in his county, and who, in his judgment, can be intrusted with the responsibility of selling said liquors for the purposes aforesaid, in the manner hereinafter provided. In order to obtain a druggist's permit under this act, the applicant therefor shall present to the Probate Judge of the county wherein such person is engaged in business, a petition, signed by at least twelve citizens of the township or city wherein such business is located, certifying that the applicant is a person of good moral character and lawfully engaged in the business of a druggist. He shall also file with such petition a good and sufficient bond to the State of Kansas in the sum of twenty-five hundred dollars, conditioned that such applicant will neither use, sell, barter nor give away any of the liquors mentioned in section one of this act in violation of any of the provisions of this act; and on such violation, said bond shall thereby become forfeited. Such bond must be signed by the applicant, and by at least two of the persons signing such petition as sureties, and such sureties must jointly or severally justify in writing, under oath, in the sum of five thousand dollars over and above all their debts, legal exemption and liabilities; Provided, That in cities, towns and places of less than five thousand population, said bond may be in the sum of one thousand dollars, and the sureties shall justify as provided above in the sum of two thousand dollars. The Probate Judge shall consider such petition and bond, and if satisfied that the petition is true, and that the bond is sufficient under this act, may in his discretion grant a permit to the applicant to sell intoxicating liquors for medical, scientific and mechanical purposes only, and thereupon, before delivering said permit, and before it shall be of any validity, the Probate Judge shall record upon the journal of his court the said permit, together with his order granting the same, and the bond filed therewith and justification thereon, which said permit shall be posted in a conspicuous place in the store where such business shall be carried on. The Probate Judge shall receive for said service the sum of five dollars, to be paid by the applicant.

SEC. 3. Any physician who is regularly engaged in the practice of his profession as a business, and who in cases of actual sickness shall deem any of the liquors mentioned in the first section of this act necessary for the health of his patient, may give such a patient a written or printed prescription therefor. But no such prescription shall be made or given except in case of actual sickness, and when, in the judgment of such physician, the use of intoxicating liquor is necessary as a remedy. Whenever, in the treatment of a minor, it shall be necessary to use intoxicating liquor as a remedy, the same shall be procured by his parent or guardian, or some other person of full age, to whom such physician may deliver a prescription for that purpose. Every physician, before making a prescription for intoxicating liquor, shall make and file with the Probate Judge of the county wherein he may practice his profession, an affidavit before some officer of the county authorized to administer oaths, in substances as follows:

STATE OF KANSAS, COUNTY OF ____________, SS.

I, A. B., do solemnly swear that I am a practicing physician of the State of Kansas, residing in the county of ________ in the State, and I do further solemnly swear that I will not prescribe intoxicating liquors of any kind for any person or persons whomsoever, unless in case of actual sickness, and when, the same is necessary for the health of the patient; that I will in all things faithfully keep, observe and perform all the requirements and conditions of the laws of Kansas regulating the sale and use of intoxicating liquors. So help me God.

Signed _____________,
Sworn to before me, and subscribed in my presence,
this ____day of _____, A. D. 18 ___.

And such affidavit shall be renewed and filed at the expiration of each five years of said physician's practice. Every physician, or person assuming to act as such, who shall make a prescription for any intoxicating liquors without having made and filed the affidavit in this section provided, or who shall, after making and filing such affidavit, violate any of the provisions of this act, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in any sum not less than one hundred dollars nor more than five hundred dollars; and for any second or subsequent offense shall, upon conviction, be subject to the same fine, and in addition thereto shall be imprisoned in the county jail not less than thirty days nor more than six months. No druggist shall sell upon or fill any prescription for intoxicating liquors until the physician making the same shall have made and filed the affidavit in this section provided, and shall not continue such sales for more than five years after such affidavit is filed, unless a new affidavit is filed, as required by this section. The Probate Judge shall forthwith deliver to each licensed druggist in his county a certificate of the filing of each physician's affidavit required by this act.

SEC. 4. Any druggist having a permit to sell intoxicating liquors under the provisions of this act, may sell for medical purposes only, upon the written or printed prescription of a practicing physician, duly signed by such physician, and who has made and filed the affidavit mentioned in the preceding section; and for scientific and mechanical purposes only upon a written or printed application, which shall be dated and shall set forth the name of the applicant, his residence and occupation, the kind and quantity of liquor required, and the purpose for which it is required, and shall have appended thereto an affidavit by the applicant made before some officer authorized to administer oaths in his county, that the statements contained in such application are true; and all such applications shall be retained by the druggist selling thereon, and at the end of every thirty days, or sooner, shall be by him filed in the Probate Court out of which his permit issued, where they shall be safely kept for the period of two years from the date of the filing of each. Every person wilfully (sic) taking a false oath in making such application shall be guilty of perjury, and upon conviction therefor in any court having jurisdiction shall be punished as provided by law for perjury in other cases: Provided, however, That no sales of intoxicating liquors shall be made by any such druggist, knowingly, to any minor in any case, except upon prescription for medical purposes, as in this act provided. The said druggist shall file away and keep all prescriptions for intoxicating liquors, and prescriptions partly for intoxicating liquors, by him filed, and shall also keep a book in which he shall make a record of all sales of intoxicating liquors by him made, which record shall show the names and residence of all purchasers of such liquors, the kind and quantity sold, the purpose for which sold, the date of such sales, the prices received, and if upon prescription, the name of the physician making the same. The record so kept shall be open to the inspection of the public at all reasonable times during business hours; Provided, That any druggist having a permit to sell intoxicating liquors under this act may sell such liquors in quantities not less than one gallon to any other druggist having a like permit.

SEC. 5. No person shall manufacture or assist in the manufacture of intoxicating liquors in this State except for medical, scientific and mechanical purposes. Any person or persons desiring to manufacture any of the liquors mentioned in Section 1 of this act for medical, scientific and mechanical purposes, shall present to the Probate Judge of the county wherein such business is proposed to be carried on, a petition asking a permit for such purpose, setting forth the name of the applicant, the place where it is desired to carry on such business, and the kind of liquor to be manufactured. Such petition shall have appended thereto a certificate signed by at least twelve citizens of the township or city where such business is sought to be established, certifying that such applicant is a person of good moral character, temperate in his habits and a proper person to manufacture and sell intoxicating liquors. Such applicant will file with said petition a bond to the State of Kansas in the sum of ten thousand dollars, conditioned that for any violation of the provisions of this act, said bond shall be forfeited. Such bond shall be signed by said applicant or applicants as principal or principals, and by at least three sureties, who shall justify under oath in the sum of seven thousand dollars each, and who shall be the number signing said petition. The Probate Judge shall consider such petition and bond, and if satisfied that such petition is true and that the bond is sufficient, may in his discretion grant a permit to manufacture intoxicating liquors for medical, scientific and mechanical purposes. The said permit, the order granting the same, and the bond and justification thereon, shall be forthwith recorded by said Probate Judge in the same manner and with like effect as in case of a permit to sell such liquors as provided in Section 2 of this act; and the Probate Judge shall be entitled to the same fee for his services, to be paid by the applicant. Such manufacturer shall keep a book, wherein shall be entered a complete record of the liquors manufactured by him, the sales made, with the dates thereof, the name and residence of the purchaser, the kind and quantity of liquors sold, and the price received or charged therefor. An abstract of such record, verified by the affidavit of the manufacturer, shall be filed quarterly in said Probate Court at the end of each quarter during the period covered by such permit. Such manufacturers shall sell the liquors so manufactured only for medical, scientific and mechanical purposes, and only in original packages. He shall not sell such liquors for medical purposes except to druggists who, at the time of such sale, shall be duly authorized to sell intoxicating liquors as provided in this act; and he shall sell such liquors to no other person or persons, associations or corporations, except for scientific and mechanical purposes, and then only in quantities not less than five gallons.

SEC. 6. All sales made by such manufacturer shall be upon a written or printed application, setting forth the name, occupation and residence of the applicant, the quantity and kind of liquors wanted, and for what purpose; and all such applications shall be verified by the affidavit of the applicant, made before some officer in the county having authority to administer oaths, that the statements in said application are true. Such manufacturer shall file all such applications in the Probate Court of the county wherein the applicant resides, within thirty days after receiving the same, where they shall be kept on file for two years from the date of such filing. Every person who shall wilfully swear falsely in making any of the affidavits in this section and in Section 5 of this act provided, shall be deemed guilty of perjury, and shall be prosecuted and punished therefor as in other cases arising under the laws of this State relating to perjury. Any rectification or adulteration of intoxicating liquors shall be considered manufacturing under this act. The record kept by such manufacturer shall be open to the inspection of the public at all reasonable times during business hours.

SEC. 7. Any person, without taking out and having a permit to sell intoxicating liquors as provided in this act, who shall directly or indirectly sell or barter any spirituous, malt, vinous, fermented or other intoxicating liquor, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in any sum not less than one hundred dollars nor more than five hundred dollars, or be imprisoned in the county jail not less than thirty days nor more than ninety days; and for a second offense shall be fined in any sum not less than two hundred dollars and more than five hundred dollars, or be imprisoned in the county jail not less than sixty days nor more than six months; and for a third, and every subsequent offense, shall be fined in a sum not less than five hundred dollars nor more than one thousand dollars, or be imprisoned in the county jail not less than three months nor more than one year, or shall suffer both such fine and imprisonment in the discretion of the court.

SEC. 8. Any person, without taking out and having a permit to manufacture intoxicating liquors, as provided in this act, who shall manufacture, or aid, assist or abet in the manufacture of any of the liquors mentioned in section one of this act, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall suffer the same punishment as provided in the last preceding section of this act for unlawfully selling such liquors.

SEC. 9. Every person having a permit to sell intoxicating liquors, or to manufacture and sell intoxicating liquors under the provisions of this act, who shall sell or barter such liquor in any other manner or for any other purpose than in this act provided, or who shall violate any of the provisions of this act, shall, upon conviction thereof, be deemed guilty of misdemeanor, and shall be fined in any sum not less than one hundred dollars, nor more than three hundred dollars for the first offense, or be imprisoned in the county jail not less than thirty days nor more than ninety days, and in addition thereto shall forfeit his permit to sell under this act; for a second offense he shall be fined in a sum not less than three hundred dollars nor more than a five hundred dollars, or shall be imprisoned in the county jail not less than thirty days nor more than ninety days, and forfeit his permit, and for a period of five years his right to obtain a permit to sell intoxicating liquors under this act; and for a third and every subsequent offense he shall be fined in a sum not less than five hundred dollars nor more than one thousand dollars, or shall be imprisoned in the county jail not less than three months nor more than one year, and shall forfeit his permit and his right forever to obtain a permit to sell intoxicating liquors in this State under the provisions of this act. In all cases where forfeitures are provided in this act, the court, in rendering judgment in the action, shall declare such forfeiture in fixing the punishment.

SEC. 10. All liquors mentioned in section one of this act, and all other liquors or mixtures thereof, by whatever name called, that will produce intoxication, shall be considered and held to be intoxicating liquors within the meaning of this act.

SEC. 11. A permit to sell intoxicating liquor under this act shall continue in force for one year from the date thereof unless sooner forfeited under the provisions of this act; and a permit to manufacture and sell intoxicating liquor under this act shall continue in force for a period of five years from the date thereof, unless sooner forfeited under the provisions of this act; Provided, That the Probate Judge may require a renewal of the bond of said manufacturer at the end of any year by giving thirty days' notice to the principal in such bond, requiring him to renew such bond, and in default of his giving a new bond with sureties, to the satisfaction of such Probate Judge, after having been so notified, he shall forfeit his permit to manufacture and sell intoxicating liquors under this act; such forfeiture shall be declared by such Probate Judge, and entered of record in said Probate Court.

SEC. 12. It shall be the duty of all Sheriffs, Under Sheriffs, Deputy Sheriffs, Constables, Marshals and police officers of cities or towns, having any notice or knowledge of any violation of the provisions of this act, to notify the County Attorney of the county of the fact of such violation, with the name of any witnesses within his knowledge by whom such violation can be proven. If any such officer shall fail in any case to comply with the provisions of this section, he shall on conviction thereof be adjudged guilty of a misdemeanor, and fined in any sum not exceeding one hundred dollars, and such conviction shall be deemed a removal of such officer from office. If the County Attorney of any county shall be notified by any officer or other person of any violation of any provisions of this act, it shall be his duty forthwith to diligently inquire into the facts of such violation, and if there is reasonable ground for instituting a prosecution, it shall be the duty of such County Attorney to file a complaint in writing before some court of competent jurisdiction, charging the suspected person of such offense, and shall verify such complaint by affidavit, but it shall be sufficient to state in such affidavit that he believes the facts state in such complaint to be true. If any County Attorney shall fail or refuse to faithfully perform any duty imposed upon him by this act, he shall be deemed guilty of a misdemeanor, and on conviction thereof in the District Court shall be fined in any sum not exceeding five hundred dollars, and on such conviction shall be deemed to be removed from office. If in any prosecution begun by the County Attorney under the provisions of this section there shall be a failure to convict, the proper costs of such prosecution shall be paid by the county in which such prosecution was begun. It shall be the duty of the County Attorney, under penalty of forfeiture of his office, to prosecute any and all persons guilty of any violations of the provisions of this act, and for each successful prosecution he shall be allowed a fee of fifteen dollars, which shall be taxed as cost in the case, but the county in no case shall be liable therefor. The County Attorney shall bring suit on all bonds forfeited under the provisions of this act, immediately upon the happening of such forfeiture, to recover the penalty thereof; and all moneys collected thereon shall be paid into the school fund of the proper county. The County Attorney shall be allowed a fee of ten per cent upon all money so collected by him, to be paid out of the same.

[TOC] [part 33] [part 31] [Cutler's History]