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


[TOC] [part 34] [part 32] [Cutler's History]


SEC. 13. All places where intoxicating liquors are manufactured, sold, bartered, or given away, in violation of any of the provisions of this act, or where intoxicating liquors are kept for sale, barter or use, in violation of this act, are hereby declared to be common nuisances; and upon the judgment of any court having jurisdiction, finding such place to be a nuisance under this section, the Sheriff, his Deputy, or Under Sheriff, or any Constable of the proper county, or Marshall of any city where the same is located, shall be directed to shut up and abate such place, and the owner or keeper thereof shall, upon conviction, be adjudged guilty of maintaining a common nuisance, and shall be punished by a fine of not less than one hundred dollars, nor more than five hundred dollars, or by imprisonment in the county jail not less than sixty days nor more than ninety days, or both by such fine and imprisonment.

SEC. 14. Every person who shall, by the sale, barter, or gift of intoxicating liquors, cause the intoxication of any other person or persons, shall be liable for, and compelled to pay, a reasonable compensation to any person who may take charge of, and provided for, such intoxicated person, and five dollars per day in addition thereto for every day such intoxicated person shall be kept in consequence of such intoxication, to be recovered by civil action in any court having jurisdiction.

SEC. 15. Every wife, child, parent, guardian or employer, or other person, who shall be injured in person or property, or means of support, by any intoxicated person, or in consequence of intoxication, habitual or otherwise, or of any person, such wife, child, parent or guardian, shall have a right of action, in his or her own name, against any person who shall by selling, bartering or giving intoxicating liquors, have caused the intoxication of such person, for all damages actually sustained, as well as for exemplary damages; and a married woman shall have the right to bring suits, prosecute and control the same, and the amount recovered, the same as if unmarried; and all damages recovered by a minor under this act shall be paid either to such minor, or to his or her parents, guardian or next friend, as the court shall direct; and all suits for damages under this act shall be by civil action in any of the courts of this State having jurisdiction thereof.

SEC. 16. Every person who shall, directly or indirectly, keep or maintain, by himself or by associating or combining with others, or who shall, in any manner, aid, assist or abet in keeping or maintaining any club room or other place in which intoxicating liquor is received or kept for the purpose of use, gift, barter or sale as a beverage or for distribution or division among the members of any club or association by any means whatever, and every person who shall use, barter, sell or give away, or assist or abet another in bartering, selling, or giving away, any intoxicating liquors so received or kept, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars, or by imprisonment in the county jail not less than thirty days nor more than six months.

SEC. 17. The giving away of intoxicating liquor, or any shifts or device to evade the provisions of this act, shall be deemed an unlawful selling within the provisions of this act.

SEC. 18. All fines and cost assessed against any person or persons for any violation of this act shall be in lien on the real estate of such person or persons until paid; and in case any person or persons shall let or lease any building or premises, and shall knowingly suffer the same to be used or occupied for the sale of intoxicating liquor, contrary to the provisions of this act, the premises so leased and occupied shall be subject to a lien for and may be sold to pay all fines and cost assessed against any such occupant for any violation of this act; and such liens may be enforced by civil action in any court having jurisdiction; Provided, That the person against whom such fines and costs are assessed shall be committed to the jail of the county until such fines and costs are paid.

SEC. 19. It shall be unlawful for any person to get intoxicated, and every person found in a state of intoxication shall, upon conviction thereof before any Justice of the Peace, be fined in the sum of five dollars, or be imprisoned in the county jail not exceeding ten days.

SEC. 20. Whenever application is made to the Probate Judge for a permit to manufacture or to sell intoxicating liquors under the provisions of this act, he shall notify the County Attorney thereof, and thereupon such County Attorney shall appear and advise with the Probate Judge with reference to the issuance of such permit, and the approval of the bond. No person who shall inform of offenses under this act, or make complain therefor, shall be liable for the costs incurred in such prosecution, unless the court or jury trying the case shall find and determine that such prosecution was malicious and without probably cause.

SEC. 21. In all prosecutions under this act, by indictment or otherwise, it shall not be necessary to state the kind of liquor manufactured or sold, but shall be necessary to describe the place where sold, and it shall not be necessary to state the name of the person to whom sold; and in all cases the person or persons to whom such intoxicating liquors shall be sold in violation of this act, shall be competent witnesses to prove such fact, or any other fact tending thereto. And the members, shareholders and associates in any club or association mentioned in section sixteen of this act shall be competent witnesses to prove any violation of the provisions of said section, or of this act, or of any fact tending thereto.

SEC. 22. It shall be and is hereby made the duty of all courts of this State before whom a grand jury is summoned, to charge such grand jury specially concerning this act, and direct said jury to inquire particularly of all violations of any of its provisions.

SEC. 23. Chapter 35 of the general statues of 1868, and all acts and parts of acts in conflict with this act, are hereby repealed.

SEC. 24. This act shall be immediately published in the official State paper, and take effect and be in force from and after the 1st day of May, A. D. 1881.

The vote on the bill in the House was 100 yeas, 23 nays, 14 absent or not voting. In the negative vote. Leavenworth County furnished five votes; Atchison, three; Douglas, Doniphan and Marshall, each two; Kingman, Wyandotte, Johnson, Montgomery, Clay, Ellsworth, Ellis, Ford and Ness, each one. Leavenworth County gave two votes for the bill, five against; Atchison, one for and three against; Doniphan, one for, two against; Wyandotte, two for, one against; Douglas, which gave 1,109 majority for the amendment, gave one vote for, two against; one, not voting; Montgomery, which gave 689 majority for the amendment, gave two votes for, one against; Clay, gave 389 majority for the amendment; Johnson, 243 against; one of its members voting for the bill; one against, one not voting; Ellsworth, Ellis, Ford, Ness and Kingman Counties, all voted against the amendment. The bill while pending in the House had twelve sundry amendments offered to it, and seven other original sections were proposed, additional to the bill, but they were all voted down, those having the bill in management in the House, claiming to have a belief that all legislation in the interest of prohibition, must be confined to that bill, and the introduction of any desirable amendment would place the whole interest in most fearful jeopardy.

On the 18th of February, protests against the passage of the act were entered by Hon. George W. Glick, of Atchison, and by Hon. A. B. Montgomery, of Rooks County, which were spread upon the journal, and which read as follows:


Mr. Speaker: I enter my protest against the passage of the act entitled "An act to prohibit the manufacture of intoxicating liquors, except for medical, scientific and mechanical purposes, and to regulate the manufacture and sale thereof for such excepted purposes."

I desire to say that I am not opposed to temperance or temperance laws, but am heartily in favor of both, and it is only to the arbitrary and extraordinary provisions of this act to which I object, and I submit the following as some of the reasons for my vote against it, and why I claim its passage a calamity to the cause of temperance and a wrong to the people of this State.

It makes the buying of wine for sacramental purposes a crime; it is oppressive, inquisitorial and impertinent in the effects, and will engender and organize strifes and malicious prosecutions in many communities.

It is an open and palpable violation of several provision of the constitution of the State.

It destroys private property without compensation.

It provides for the invasion of even private residences, and proposes to declare them nuisances, for contemptible and impertinent purposes.

It destroys the confidential relations heretofore existing between the physician and patient; it makes private medical prescriptions public records, and thus degrades the medical profession and tends to expose to public gaze the private diseases and complaints of the female part of the community, which is simply cruel in its action and disreputable in it purpose.

It repeals the exemption laws in certain case, and for the acts of the husband the wife and children are deprived of even the last bed or the last pound of flour to gratify this vicarious punishment for a crime of which they are innocent.

It denies the farmer the use of his vineyard and orchard for purposes heretofore regarded as legal and honorable.

It destroys the breweries of the State, without compensation.

It deprives the school fund of part of its revenues, in violation of the constitution.

It offers bribes for its execution, fosters the vocation of the informer and blackmailer, and uses the courts of justice for inquisitional and impertinent purposes.

It allows courts of justice to be used to gratify malice, and to encourage malicious prosecutions.

It destroys the business of druggists, and makes the sale or purchase of common medicines difficult or criminal, and their administration a crime unless a physician's prescription is secured, at an unnecessary expense.

It makes the use of alcohol in cases of emergencies or accidents a crime if used without first resorting to difficult and expensive proceedings, when the delay might result in the loss of life.

It provides for a change of the usual and ordinary rules of evidence, and the practice and proceedings in the courts of justice in criminal cases and violates by implication the Constitution of the State, by denying to an accused person the right to know the nature and cause of the prosecution against him.

It violates the fourteenth amendment to the Constitution of the United State, that no State shall deprive any person of life, liberty or property without due process of law, nor to deprive any person within its jurisdiction of the equal protection of the laws.

For the foregoing reasons, with others not stated, I enter my protest against the passage of said act.



The protest of Mr. Montgomery, was an approval of Mr. Glick's statements and opinions. He was prevented by a receipt of a telegram, summoning him to North Topeka at the hour of the third reading of the bill, from recording his vote against the passage of the bill. He said:

I therefore ask permission to join with Mr. Glick in the protest above referred to.

A. B. MONTGOMERY, 126th District.


The Senate on the 26th of February, passed a bill which was a substitute for Section 10 of the prohibitory liquor law. The vote on its passage was, yeas, 25; nays, 11; absent or not voting, 4.

Hon. Eugene F. Ware, of Fort Scott, Senator from the Twelfth District, presented the following protest:

I protest against the passage of Senate Bill Nol. 246, because it repeals section ten before section ten goes into effect; and amends section ten, and the amendment goes into effect prior to the act to which it is amendatory.

E. F. WARE, Senator Twelfth District.

This Senate bill was sent to the House, and was by that body referred to the House Committee on Temperance, where, in the hands of Chairman Calvin, it slept the sleep that knows no waking.

The text of this bill, intended to amend section ten, is as follows: All alcoholic, spirituous, vinous, malt and fermented liquors, and all bitters, cordial and medical compounds, by whatever name called, to be used as a beverage, shall be held to be intoxicating liquors within the meaning of this act; nor shall it be construed so as to prevent any physician from administering to a patient any medicine in his opinion needful for such patient without making a prescription therefor, nor to interfere with the sale by druggists to physicians of any medicine recognized by the different standard pharmacopias or dispensatories, nor shall the provisions of this act prevent the making of wine and cider from grapes and apples grown or raised by the person, making the same, provided that no such wine or cider, after such cider shall have fermented, shall be sold or bartered except to persons who are duly authorized to sell intoxicating liquor under the provisions of this act.

The Supreme Court of Kansas has decided that the amendment was valid, and it has declared that the law is constitutional and has given the scope of the liquor law. The exceptional instance of a Supreme Court decision unfavorable to its constitutionality is on Section 19.

Attorney General W. A. Johnston, on March 16, 1881, gave an official construction of Section 10, and on June 1, 1881, he gave an opinion on the use of wine at Sacrament under the Prohibitory Liquor Law, saying, "that there is nothing in the law which prohibits or makes such use unlawful."

On Sunday, May 1, 1881, Kansas changed from a partial system of local option as regarded the traffic in intoxicating drinks to that of presumptively absolute prohibition, with what success would be stated differently by different individuals.

Liquor prohibition was defended by the Republican part of Kansas at their State Convention which convened August 9, 1882, having adopted resolutions favoring more rigid prohibition as may be seen in the following declarations:

Resolved, That we declare ourselves unqualifiedly in favor of the prohibition of the manufacture and sale of intoxicating liquors as a beverage, and pledge ourselves to such additional legislation as shall secure the rigid enactment of the constitutional provision upon this subject in all parts of the State.

Resolved, That we request our delegation in Congress to secure such an amendment to the revenue laws as will prevent the issuing of licenses or stamps to sell intoxicating liquors to any person other than those authorized so to do under State laws.

The last resolution, savoring somewhat of "State Rights" doctrine, was supplementary to rather than a part of the platform.

Gov. St. John on the 10th, received 287 out of 363 votes for the nomination for Governor, which was 79 per cent of the whole. In accepting the nomination, he thanked the convention for a third endorsement, and referring to the result, said:

It is not a victory for myself, it is a victory for a principle that is everything. The Republican party is a party of the whole people. It extends a helping hand to suffering humanity everywhere. It means in Kansas, that our State shall be kept in the very front-rank of the highest civilization.

Hon. George W. Glick was made the standard-bearer of the Democrats, on the 31st of August, on a platform which favored a re-submission of the prohibition amendment to a vote of the people at the first general election, the assumption being that a majority vote had not been intelligently obtained for it. Their declaration is:

We are unqualifiedly in favor of temperance, sobriety, morality and good order, and we rely largely upon the wisdom, patriotism and honesty of the citizen to so order his life and conduct individually as to accomplish these ends. We are in sympathy with the cause of temperance in truth and in fact, not as a political hobby for the personal benefit of ambitious demagogues, unprincipled adventurers, and sham reformers, and we demand the enactment and enforcement of wise and just laws for the purpose of promoting the cause of temperance and we submit to the impartial judgment of every candid man, that the existing law on the subject, by reason of its unwise oppression and tyrannical provisions, has not been enforced, and that it now stands as a hindrance and obstruction to the growth of true temperance; that is has been and still is the cause of neighborhood quarrels, contention and strife, of fraud, corruption, perjury and violence, and because of these facts, we demand the enactment of such amendments, changes and modifications of the law as will make the law effective and useful for the purpose for which it was designed.


Of the 176,606 votes case on the amendment, 92,302 were for; 84,302 against; majority for it, 7,998. Gov. St. John, in 1882, received, 75,158 votes; in 1880, he received 115,204. Gov. Glick's vote was 83,237; Mr. Ross's vote in 1880, was 63,557. Democratic gain, in two years, 19,680; Republican lost, 40,046. Gov. St. John's majority in 1880 was 31,468; Gov. Glick's plurality in 1882 was 8,079.

Herewith is submitted a table showing in sundry counties the vote for and against the amendment in 1880; two years later, for the champion and opponent, respectively, of the cause of liquor-prohibition:

                    VOTE ON AMENDMENT.
COUNTIES.                   1880
                    FOR.      AGAINST.       
Allen.........       1,305         951
Butler........       2,221       1,141
Cherokee......       2,421       1,944
Franklin......       1,477       1,222
Greenwood.....       1,967       1,293
Harvey........       1,059         941
Jewell........       1,148         858
Kingman.......       1,557       1,256
Lyon..........       2,337         877
McPherson.....       2,134         912
Neosho........       1,528       1,164
Osage.........       2,287       1,684
Phillips......         978         708
Riley.........       1,178         828
Sumner........       2,394       1,201
Wilson........       1,487       1,069
Woodson.......         748         530
Sheridan......         101          69
Trego.........         220         120
Smith.........       1,274         851
Republic......       1,330         919
Pottawatomie..       1,549       1,475
Ottawa........       1,163         835
Nemaha........       1,213       1,185
Mitchell......       1,348       1,178
Linn..........       1,494       1,292
Johnson.......       1,545       1,787
Douglas.......       2,711       1,602
Atchison......       1,343       3,147
Cowley........       3,243         870

                 VOTE ON GOVERNOR.
COUNTIES.             1882.
                 Rep.      Dem.   Nat. Lab.
                 St. John  Glick  Robinson.
Allen.........   1,035     1,014       80
Butler........   1,530     1,554      405 
Cherokee......   1,517     1,639    1,061
Dickinson.....   1,112     1,437      247        
Franklin......   1,404       782    1,143         
Greenwood.....     904       809      275
Harvey........   1,010     1,047      188
Jewell........   1,187       528    1,169
Kingman.......     392       268       83
Lyon..........   1,664     1,280      227     
McPherson.....   1,285     1,127      392  
Neosho........   1,068     1,154      298
Osage.........   1,781     1,490      935
Phillips......     596       347      463
Riley.........     670       827      350
Sumner........   1,433     1,517      304  
Wilson........   1,179     1,097      262 
Woodson.......     604       542      111
Sheridan......      22        50       33
Trego.........     224       116       27 
Smith.........     810       489      543
Republic......   1,017       663      548              
Pottawatomie..   1,357     1,836       92 
Ottawa........     769       843      331
Nemaha........     949     1,749      127  
Mitchell......     774     1,076      406 
Linn..........   1,148       805      769 
Johnson.......   1,227     1,492      335
Douglas.......   1,861     1,455      322         
Atchison......   1,530     2,830      124
Cowley........   1,995     1,627      280

Here are thirty counties, taken from different portions of the State, which seemingly show that in Kansas the political sentiment for prohibition has lost but little, and shows no signs of appreciable gains.

As a sequence to the election of 1882, the Executive Committee of the Kansas State Temperance Union issued an address to the people calling a Temperance State Convention for January 9 and 10, 1883, in which address they say:

On a straight prohibition platform, the Republican party can, in ordinary years, carry the State against any possible combination. The prohibition victory in the Republican State Convention was so overwhelming, and so easily won, that the victors generally could see no necessity for special effort in the campaign, and did not realize that defeat was possible, until the returns came in. ********* When the amendment was adopted and the law enacted, too many considered the campaign ended. Temperance societies were allowed to die, the circulation of temperance documents ceased; churches paid less attention to the subject of creating and strengthening a healthy temperance sentiment, irrespective of party, or purely partisan considerations; and too often the law was left to enforce itself. ******* It is useless for any one to deny the fact that the sentiment in favor of prohibition has steadily strengthened in this State for years. Of the 183,167 votes cast at the last election, fully 100,000 would vote for it, were it submitted as a separate question, disconnected from the scramble for offices.

[TOC] [part 34] [part 32] [Cutler's History]