Affirming State v. Mugler, 29 Kan. 252.
STATE OF KANSAS
December 5, 1887.
Error to the Supreme Court of the State of Kansas.
Appeal from the Circuit Court of the United States
for the District of Kansas.
STATEMENT OF FACTS
BY THE COURT.
cases involve an inquiry into the validity of certain statutes of Kansas
relating to the manufacture and sale of intoxicating liquors.
The first two are indictments, charging Mugler, the plaintiff in
error, in one case, with having sold, and in the other with, having
manufactured, spirituous, vinous, malt, fermented, and other intoxicating
liquors, in Saline county, Kansas, without having the license or permit
required by the statute. The
defendant, having been found guilty, was fined, in each case, $100, and
ordered to be committed to the county jail until the fine was paid.
Each judgment was affirmed by the supreme court of Kansas, and
thereby, it is contended, the defendant was denied rights, privileges, and
immunities guarantied by the constitution of the United States.
The third case (Kansas v. Ziebold & Hagelin) was commenced by
petition filed in one of the courts of the state. The relief sought is (1)
that the group of buildings in Atchison county, Kansas, constituting the
brewery of the defendants, partners as Ziebold & Hagelin, be adjudged
a common nuisance, and the sheriff or other proper officer directed to
shut up and abate the same; (2) that the defendants be enjoined from
using, or permitting to be used, the said premises as a place where
intoxicating liquors may be sold, bartered, or given away, or kept for
barter, sale, or gift, otherwise than by authority of law.
The defendants answered, denying the allegations of the petition,
and averring‑‑First, that said buildings were erected by them
prior to the adoption, by the people of Kansas, of the constitutional
amendment prohibiting the manufacture and sale of intoxicating liquors for
other than medicinal, scientific, and mechanical purposes, and before the
passage of the prohibitory liquor statute of that state; second, that they
were erected for the purpose of manufacturing beer, and cannot be put to
any other use, and, if not so used, they will be of little value; third,
that the statute under which said suit is brought is void under the
fourteenth amendment of the constitution of the United States. Upon the petition and bond of the defendants, the cause was
removed into the circuit court of the United States for the district of
Kansas, upon the ground that the suit was one arising under the
constitution of the United States. A
motion to remand it to the state court was denied.
The pleadings were recast so as to conform to the equity practice
in the courts of the United States; and, the cause having been heard upon
bill and answer, the suit was dismissed.
From that decree the state prosecutes an appeal.
a statute of Kansas, approved March 3, 1868, it was made a misdemeanor,
punishable by fine and imprisonment, for any one, directly or indirectly,
to sell spirituous, vinous, fermented, or other intoxicating liquors,
without having a dram-shop, tavern, or grocery license. It was also enacted, among other things, that every place
where intoxicating liquors were sold in violation of the statute should be
taken, held, and deemed to be a common nuisance; and it was required that
all rooms, taverns, eating-houses, bazaars, restaurants, groceries,
coffee-houses, cellars, or other places of public resort where
intoxicating liquors were sold, in violation of law, should be abated as
public nuisances. Gen. St.
Kan. 1868, c. 35. But in 1880
the people of Kansas adopted a more stringent policy.
On the second of November of that year they ratified an amendment
to the state constitution, which declared that the manufacture and sale of
intoxicating liquors should be forever prohibited in that state, except
for medical, scientific, and mechanical
**294 purposes. In order
to give effect to that amendment, the legislature repealed the act of
1868, and passed an act, approved February 19, 1881, to take effect May 1,
1881, entitled 'An act to prohibit the manufacture and sale of
intoxicating liquors, except for medical, scientific, and mechanical
purposes, and to regulate the manufacture and sale thereof for such
excepted purposes.' Its first
section provides 'that any person or persons who shall manufacture, sell,
or barter any spirituous, malt, vinous, fermented, or other intoxicating
liquors shall be guilty of a misdemeanor:
provided, however, that such liquors may be sold for medical,
scientific, and mechanical purposes, as provided in this act.'
The second section makes it unlawful for any person to sell or
barter for either of such excepted purposes any malt, vinous, spirituous,
fermented, or other intoxicating liquors without having procured a
druggist's permit therefor, and prescribes the conditions upon which such
permit may be granted. The
third section relates to the giving by physicians of prescriptions for
intoxicating liquors to be used by their patients, and the fourth, to the
sale of such liquors by druggists. The
fifth section forbids any person from manufacturing or assisting in the
manufacture of intoxicating liquors in the state, except for medical,
scientific, and mechanical purposes, and makes provision for the granting
of licenses to engage in the business of manufacturing liquors for such
excepted purposes. The
seventh section declares it to be a misdemeanor for any person, not having
the required permit, to sell or barter, directly or indirectly,
spirituous, malt, vinous, fermented, or other intoxicating liquors; the
punishment prescribed being, for the first offense, a fine of not less
than one hundred nor more than five hundred dollars, or imprisonment in
the county jail not less than twenty nor more than ninety days; for the
second offense, a fine of not less than two hundred nor more than five
hundred dollars, or imprisonment in the county jail not less than sixty
days nor more than six months; and for every subsequent offense, a fine
not less than five hundred nor more than one thousand dollars, or
imprisonment in the county jail not less than three months nor more than
one year, or both such fine and imprisonment, in the discretion of the
court. The eighth section
provides for similar fines and punishments against persons who
manufacture, or aid, assist, or abet the manufacture of, any intoxicating
liquors without having the required permit.
The thirteenth section declares, among other things, all places
where intoxicating liquors are manufactured, sold, bartered, or given
away, or are kept for sale, barter, or use, in violation of the act, to be
common nuisances, and provides that upon the judgment of any court having
jurisdiction finding such place to be a nuisance, the proper officer shall
be directed to shut up and abate the same.
that statute, the prosecutions against Mugler were instituted.
It contains other sections in addition to those above referred to;
but as they embody merely the details of the general scheme adopted by the
state for the prohibition of the manufacture and sale of intoxicating
liquors, except for the purposes specified, it is unnecessary to set them
out. On the seventh of March,
1885, the legislature passed an act amendatory and supplementary to that
of 1881. The thirteenth
section of the former act, being the one upon which the suit against
Ziebold & Hagelin is founded, will be given in full in a subsequent
part of this opinion.
facts necessary to a clear understanding of the questions, common to these
cases, are the following: Mugler
and Ziebold & Hagelin were engaged in manufacturing beer at their
respective establishments, (constructed specially for that purpose,) for
several years prior to the adoption of the constitutional amendment of
1880. They continued in such
business in defiance of the statute of 1881, and without having the
required permit. Nor did
Mugler have a license or permit to sell beer.
The single sale of which he was found guilty occurred in the state,
and after May 1, 1881, that is, after the act of February 19, 1881, took
effect, and was of beer manufactured before its passage. **295 The buildings and machinery constituting these
breweries are of little value if not used for the purpose of manufacturing
beer; that is to say, if the statutes are enforced against the defendants
the value of their property will be very materially diminished.
George R. Peck, J. B. Johnson, George J. Barker, Gleed & Gleed, and S.
B. Bradford, Atty. Gen., for the State.
Also S. B. Bradford, Atty. Gen., (Edwin A. Austin, Asst. Atty. Gen., and
J. F. Tufts, Asst. Atty. Gen., Atchison County, of counsel,) for the
G. G. Vest, for plaintiff in error, Mugler, and for appellees, Ziebold
Robert M. Eaton, John C. Tomlinson, and Joseph H. Choate, for appellees,
Ziebold & Hagelin.
Mr. Justice HARLAN, after stating the facts in the foregoing language,
delivered the opinion of the court.
The general question in each case is whether the foregoing statutes of
Kansas are in conflict with that clause of the fourteenth amendment, which
provides that 'no state shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States; nor shall
any state deprive any person of life, liberty, or property without due
process of law.' That legislation by a state prohibiting the manufacture
within her limits of intoxicating liquors, to be there sold or bartered
for general use as a beverage, does not necessarily infringe any right,
privilege, or immunity secured by the constitution of the United States,
is made clear by the decisions of this court, rendered before and since
the adoption of the fourteenth amendment; to some of which, in view of
questions to be presently considered, it will be well to refer.
the License Cases, 5 How. 504, the question was whether certain statutes
of Massachusetts, Rhode Island, and New Hampshire, relating to the sale of
spirituous liquors, were repugnant to the constitution of the United
States. In determining that question, it became necessary to inquire
whether there was any conflict between the exercise by congress of its
power to regulate commerce with foreign countries, or among the several
states, and the exercise by a state of what are called police powers.
Although the members of the court did *658 not fully agree as to the grounds upon which the decision
should be placed, they were unanimous in holding that the statutes then
under examination were not inconsistent with the constitution of the
United States, or with any act of congress. Chief Justice TANEY said:
'If any state deems the retail and internal traffic in ardent
spirits injurious to its citizens, and calculated to produce idleness,
vice, or debauchery, I see nothing in the constitution of the United
States to prevent it from regulating and restraining the traffic, or from
prohibiting it altogether, if it thinks proper.' Mr. Justice MCLEAN, among other things, said:
'A state regulates its domestic commerce, contracts, the
transmission of estates, real and personal, and acts upon internal matters
which relate to its moral and political welfare. Over these subjects the
federal government has no power. *
* * The acknowledged police power of a state extends often to the
destruction of property. A
nuisance may be abated. Everything prejudicial to the health or morals of
a city may be removed.' Mr.
Justice WOODBURY observed: 'How
can they [the states] be sovereign within their respective spheres,
without power to regulate all their internal commerce, as well as police,
and direct how, when, and where it shall be conducted in articles
intimately connected either with public morals or public safety or public
prosperity?' Mr. Justice
GRIER, in still more empathic language, said:
'The true question presented by these cases, and one which I am not
disposed to evade, is whether the states have a right to prohibit the sale
and consumption of an article of commerce which they believe to be
pernicious in its effects, and the cause of disease, pauperism, and crime.
* * * Without attempting to define what are the peculiar subjects
or limits of this power, it may safely be affirmed that every law for the
restraint or punishment of crime, for the preservation of the public
peace, health, and morals must come within this category.
* * * It is not necessary, for the sake of justifying the state
legislation now under consideration, to array the appalling statistics of
misery, pauperism, and crime which have their origin in the use or abuse
of ardent spirits. The
*659 police power, which is exclusively in the states, is alone
competent to the correction of these
**296 great evils, and all measures of restraint or prohibition
necessary to effect the purpose are within the scope of that authority.'
Bartemeyer v. Iowa, 18 Wall. 129, it was said that, prior to the adoption
of the fourteenth amendment, state enactments, regulating or prohibiting
the traffic in intoxicating liquors, raised no question under the
constitution of the United States; and that such legislation was left to
the discretion of the respective states, subject to no other limitations
than those imposed by their own constitutions, or by the general
principles supposed to limit all legislative power.
Referring to the contention that the right to sell intoxicating
liquors was secured by the fourteenth amendment, the court said that, 'so
far as such a right exists, it is not one of the rights growing out of
citizenship of the United States.' In
Beer Co. v. Massachusetts, 97 U. S. 33, it was said that, 'as a measure of
police regulation, looking to the preservation of public morals, a state
law prohibiting the manufacture and sale of intoxicating liquors is not
repugnant to any clause of the constitution of the United States.'
Finally, in Foster v. Kansas, 112 U. S. 206, 5 Sup. Ct. Rep. 97,
the court said that the question as to the constitutional power of a state
to prohibit the manufacture and sale of intoxicating liquors was no longer
an open one in this court. These
cases rest upon the acknowledged right of the states of the Union to
control their purely internal affairs, and, in so doing, to protect the
health, morals, and safety of their people by regulations that do not
interfere with the execution of the powers of the general government, or
violate rights secured by the constitution of the United States.
The power to establish such regulations, as was said in Gibbons v.
Ogden, 9 Wheat. 203, reaches everything within the territory of a state
not surrendered to the national government.
is, however, contended that, although the state may prohibit the
manufacture of intoxicating liquors for sale or barter within her limits,
for general use as a beverage, 'no convention or legislature has the
right, under our form of government,
*660 to prohibit any citizen from manufacturing for his own use, or
for export or storage, any article of food or drink not endangering or
affecting the rights of others.' The
argument made in support of the first branch of this proposition, briefly
stated, is that, in the implied compact between the state and the citizen,
certain rights are reserved by the latter, which are guarantied by the
constitutional provision protecting persons against being deprived of
life, liberty, or property, without due process of law, and with which the
state cannot interfere; that among those rights is that of manufacturing
for one's use either food or drink; and that while, according to the
doctrines of the commune, the state may control the tastes, appetites,
habits, dress, food, and drink of the people, our system of government,
based upon the individuality and intelligence of the citizen, does not
claim to control him, except as to his conduct to others, leaving him the
sole judge as to all that only affects himself. It will be observed that the proposition, and the argument
made in support of it, equally concede that the right to manufacture drink
for one's personal use is subject to the condition that such manufacture
does not endanger or affect the rights of others.
If such manufacture does prejudicially affect the rights and
interests of the community, it follows, from the very premises stated,
that society has the power to protect itself, by legislation, against the
injurious consequences of that business.
As was said in Munn v. Illinois, 94 U. S. 124, while power does not
exist with the whole people to control rights that are purely and
exclusively private, government may require 'each citizen to so conduct
himself, and so use his own property, as not unnecessarily to injure
another.' But by whom, or by what authority, is it to be determined
whether the manufacture of particular articles of drink, either for
general use or for the personal use of the maker, will injuriously affect
the public? Power to
determine such questions, so as to bind all, must exist somewhere; else
society will be at the mercy of the few, who, regarding
**297 only their own appetites or passions, may be willing to imperil
the peace and security of the many, provided only they are permitted to do
as they *661 please. Under our system that power is lodged with the legislative
branch of the government. It
belongs to that department to exert what are known as the police powers of
the state, and to determine, primarily, what measures are appropriate or
needful for the protection of the public morals, the public health, or the
does not at all follow that every statute enacted ostensibly for the
promotion of these ends is to be accepted as a legitimate exertion of the
police powers of the state. There
are, of necessity, limits beyond which legislation cannot rightfully go.
While every possible presumption is to be indulged in favor of the
validity of a statute, (Sinking Fund Cases, 99 U. S. 718,) the courts must
obey the constitution rather than the law-making department of government,
and must, upon their own responsibility, determine whether, in any
particular case, these limits have been passed.
'To what purpose,' it was said in Marbury v. Madison, 1 Cranch,
137, 167, 'are powers limited, and to what purpose is that limitation
committed to writing, if these limits may, at any time, be passed by those
intended to be restrained? The
distinction between a government with limited and unlimited powers is
abolished, if those limits do not confine the persons on whom they are
imposed, and if acts prohibited and acts allowed are of equal obligation.'
The courts are not bound by mere forms, nor are they to be misled
by mere pretenses. They are
at liberty, indeed, are under a solemn duty, to look at the substance of
things, whenever they enter upon the inquiry whether the legislature has
transcended the limits of its authority.
If, therefore, a statute purporting to have been enacted to protect
the public health, the public morals, or the public safety, has no real or
substantial relation to those objects, or is a palpable invasion of rights
secured by the fundamental law, it is the duty of the courts to so
adjudge, and thereby give effect to the constitution.
in view these principles, as governing the relations of the judicial and
legislative departments of government with each other, it is difficult to
perceive any ground for the judiciary to declare that the prohibition by
Kansas of the *662 manufacture
or sale, within her limits, of intoxicating liquors for general use there
as a beverage, is not fairly adapted to the end of protecting the
community against the evils which confessedly result from the excessive
use of ardent spirits. There
is no justification for holding that the state, under the guise merely of
police regulations, is here aiming to deprive the citizen of his
constitutional rights; for we cannot shut out of view the fact, within the
knowledge of all, that the public health, the public morals, and the
public safety, may be endangered by the general use of intoxicating
drinks; nor the fact established by statistics accessible to every one,
that the idleness, disorder, pauperism, and crime existing in the country,
are, in some degree at least, traceable to this evil. If, therefore, a state deems the absolute prohibition of the
manufacture and sale within her limits, of intoxicating liquors, for other
than medical, scientific, and mechanical purposes, to be necessary to the
peace and security of society, the courts cannot, without usurping
legislative functions, override the will of the people as thus expressed
by their chosen representatives. They
have nothing to do with the mere policy of legislation.
Indeed, it is a fundamental principle in our institutions,
indispensable to the preservation of public liberty, that one of the
separate departments of government shall not usurp powers committed by the
constitution to another department. And
so, if, in the judgment of the legislature, the manufacture of
intoxicating liquors for the maker's own use, as a beverage, would tend to
cripple, if it did not defeat, the efforts to guard the community against
the evils attending the excessive use of such liquors, it is not for the
courts, upon their views as to what is best and safest for the community,
to disregard the legislative determination of that question.
So far from such a regulation
**298 having no relation to the general end sought to be accomplished,
the entire scheme of prohibition, as embodied in the constitution and laws
of Kansas, might fail, if the right of each citizen to manufacture
intoxicating liquors for his own use as a beverage were recognized.
Such a right does not inhere in citizenship.
Nor can it be said that government interferes with or impairs *663 any one's constitutional rights of liberty or of property,
when it determines that the manufacture and sale of intoxicating drinks,
for general or individual use, as a beverage, are, or may become, hurtful
to society, and constitute, therefore, a business in which no one may
lawfully engage. Those rights
are best secured, in our government, by the observance, upon the part of
all, of such regulations as are established by competent authority to
promote the common good. No
one may rightfully do that which the law-making power, upon reasonable
grounds, declares to be prejudicial to the general welfare.
conclusion is unavoidable, unless the fourteenth amendment of the
constitution takes from the states of the Union those powers of police
that were reserved at the time the original constitution was adopted. But this court has declared, upon full consideration, Barbier
v. Connolly 113 U. S. 31, that the fourteenth amendment had no such
effect. After observing,
among other things, that that amendment forbade the arbitrary deprivation
of life or liberty, and the arbitrary spoliation of property, and secured
equal protection to all under like circumstances, in respect as well to
their personal and civil rights as to their acquisition and enjoyment of
property, the court said: 'But
neither the amendment, broad and comprehensive as it is, nor any other
amendment, was designed to interfere with the power of the state,
sometimes termed 'its police power,' to prescribe regulations to promote
the health, peace, morals, education, and good order of the people, and to
legislate so as to increase the industries of the state, develop its
resources, and add to its wealth and prosperity.'
Undoubtedly the state, when providing, by legislation, for the
protection of the public health, the public morals, or the public safety,
is subject to the paramount authority of the constitution of the United
States, and may not violate rights secured or guarantied by that
instrument, or interfere with the execution of the powers confided to the
general government. Henderson
v. Mayor of New York, 92 U. S. 259; Railroad v. Husen, 95 U. S. 465; Gas-Light
Co. v. Light Co., 115 U. S. 650, 6 Sup. Ct. Rep. 252; Walling v. Michigan,
*664 116 U. S. 446, 6 Sup. Ct. Rep. 454; Yick Wo v. Hopkins, 118 U. S.
356, 6 Sup. Ct. Rep. 1064; Steam-Ship Co. v. Board of Health, 118 U. S.
455, 6 Sup. Ct. Rep. 1114.
this ground, if we do not misapprehend the position of defendants, it is
contended that, as the primary and principal use of beer is as a beverage;
as their respective breweries were erected when it was lawful to engage in
the manufacture of beer for every purpose; as such establishments will
become of no value as property, or, at least, will be materially
diminished in value, if not employed in the manufacture of beer for every
purpose -- the prohibition upon their being so employed is, in effect, a
taking of property for public use without compensation, and depriving the
citizen of his property without due process of law.
In other words, although the state, in the exercise of her police
powers, may lawfully prohibit the manufacture and sale, within her limits,
of intoxicating liquors to be used as a beverage, legislation having that
object in view cannot be enforced against those who, at the time, happen
to own property, the chief value of which consists in its fitness for such
manufacturing purposes, unless compensation is first made for the
diminution in the value of their property, resulting from such prohibitory
interpretation of the fourteenth amendment is inadmissible. It cannot be
supposed that the states intended, by adopting that amendment, to impose
restraints upon the exercise of their powers for the protection of the
safety, health, or morals of the community.
In respect to contracts, the obligations
**299 of which are protected against hostile state legislation, this
court in Union Co. v. Landing Co., 111 U. S. 751, 4 Sup. Ct. Rep. 652,
said that the state could not, by any contract, limit the exercise of her
power to the prejudice of the public health and the public morals. So, in Stone v. Mississippi, 101 U. S. 816, where the
constitution was invoked against the repeal by the state of a charter,
granted to a private corporation, to conduct a lottery, and for which that
corporation paid to the state a valuable consideration in money, the court
said: 'No legislature can
bargain away the public health or the public morals.
The people themselves cannot do it, much less their servants. * * * Government is organized
*665 with a view to their preservation, and cannot divest itself of
the power to provide for them.' Again,
in Gas-Light Co. v. Light Co., 115 U. S. 650, 672, 6 Sup. Ct. Rep. 252:
'The constitutional prohibition upon state laws impairing the
obligation of contracts does not restrict the power of the state to
protect the public health, the public morals, or the public safety, as the
one or the other may be involved in the execution of such contracts.
Rights and privileges arising from contracts with a state are
subject to regulations for the protection of the public health, the public
morals, and the public safety, in the same sense, and to the same extent,
as are all contracts and all property, whether owned by natural persons or
principal that no person shall be deprived of life, liberty, or property
without due process of law, was embodied, in substance, in the
constitutions of nearly all, if not all, of the states at the time of the
adoption of the fourteenth amendment; and it has never been regarded as
incompatible with the principle, equally vital, because essential to the
peace and safety of society, that all property in this country is held
under the implied obligation that the owner's use of it shall not be
injurious to the community. Beer Co. v. Massachusetts, 97 U. S. 32; Com.
v. Alger, 7 Cush. 53. An
illustration of this doctrine is afforded by Patterson v. Kentucky, 97 U.
S. 501. The question there
was as to the validity of a statute of Kentucky, enacted in 1874, imposing
a penalty upon any one selling or offering for sale oils and fluids, the
product of coal, petroleum, or other bituminous substances, which would
burn or ignite at a temperature below 1300 Fahrenheit.
Patterson having sold within that commonwealth, a certain oil, for
which letters patent were issued in 1867, but which did not come up to the
standard required by said statute, and having been indicted therefor,
disputed the state's authority to prevent or obstruct the exercise of that
right. This court upheld the
legislation of Kentucky, upon the ground that, while the state could not
impair the exclusive right of the patentee, or of his assignee, in the
discovery described in the letters patent, the tangible property, the
fruit of the discovery, was not beyond control in the exercise of her *666 police powers. It
was said: 'By the settled doctrines of this court, the police power
extends, at least, to the protection of the lives, the health, and the
property of the community against the injurious exercise by any citizen of
his own rights. State
legislation, strictly and legitimately for police purposes, does not, in
the sense of the constitution, necessarily intrench upon any authority
which has been confided, expressly or by implication, to the national
government. The Kentucky statute under examination manifestly belongs to
that class of legislation. It is, in the best sense, a mere policy regulation, deemed
essential to the protection of the lives and property of citizens.'
Referring to the numerous decisions of this court guarding the power of
congress to regulate commerce against encroachment, under the guise of
state regulations, established for the purpose and with the effect of
destroying or impairing rights secured by the constitution, it was further
said: 'It has, nevertheless,
with marked distinctness and uniformity, recognized the necessity, growing
out of the fundamental conditions of civil society, of upholding state
police regulations which were enacted in good faith, and had appropriate
and direct connection with that protection to life, health, and property
which each state owes to her citizens.' **300 See, also, U. S. v. Dewitt, 9 Wall. 41; License Tax
Cases, 5 Wall. 462; Pervear v. Com., Id. 475.
decision very much in point upon this branch of the case, is
Fertilizing Co. v. Hyde Park, 97 U. S. 659, 667, also decided after
the adoption of the fourteenth amendment.
The court there sustained the validity of an ordinance of the
village of Hyde Park, in Cook County, Illinois, passed under legislative
authority, forbidding any person from transporting through that village
offal or other offensive or unwholesome matter, or from maintaining or
carrying on an offensive or unwholesome business or establishment within
its limits. The fertilizing
company, had, at large expense, and under authority expressly conferred by
its charter, located its works at a particular point in the county.
Besides, the charter of the village, at that time, provided that it
should not interfere with parties engaged in transporting animal matter
from Chicago, *667 or from
manufacturing it into a fertilizer or other chemical product.
The enforcement of the ordinance in question operated to destroy
the business of the company, and seriously to impair the value of its
property. As, however, its
business had become a nuisance to the community in which it was conducted,
producing discomfort, and often sickness, among large masses of people,
the court maintained the authority of the village, acting under
legislative sanction, to protect the public health against such nuisance.
It said: 'We cannot
doubt that the police power of the state was applicable and adequate to
give an effectual remedy. That power belonged to the states when the
federal constitution was adopted. They
did not surrender it, and they all have it now.
It extends to the entire property and business within their local
jurisdiction. Both are
subject to it in all proper cases. It
rests upon the fundamental principle that every one shall so use his own
as not to wrong and injure another. To
regulate and abate nuisances is one of its ordinary functions.'
is supposed by the defendants that the doctrine for which they contend is
sustained by Pumpelly v. Green Bay Co., 13 Wall. 168.
But in that view we do not concur.
This was an action for the recovery of damages for the overflowing
of the plaintiff's land by water, resulting from the construction of a dam
across a river. The defense
was that the dam constituted a part of the system adopted by the state for
improving the navigation of Fox and Wisconsin rivers; and it was contended
that, as the damages of which the plaintiff complained were only the
result of the improvement, under legislative sanction, of a navigable
stream, he was not entitled to compensation from the state or its agents.
The case, therefore, involved the question whether the overflowing
of the plaintiff's land, to such an extent that it became practically
unfit to be used, was a taking of property, within the meaning of the
constitution of Wisconsin, providing that 'the property of no person shall
be taken for public use without just compensation therefor.'
This court said it would be a very curious and unsatisfactory
result, were it held that, 'if the government refrains from the absolute
conversion of real *668
property to the uses of the public, it can destroy its value entirely, can
in flict irreparable and permanent injury to any extent, can, in effect,
subject it to total destruction, without making any compensation, because,
in the narrowest sense of that word, it is not taken for the public use.
Such a construction would pervert the constitutional provision into
a restriction upon the rights of the citizen, as those rights stood at the
common law, instead of the government, and make it an authority for the
invasion of private rights under the pretext of the public good, which had
no warrant in the laws or practices of our ancestors.'
principles have no application to the case under consideration.
The question in Pumpelly v. Green Bay Co., arose under the state's
power of eminent domain; while the question now before us arises under
what are, strictly, the police powers of the state, exerted for the
protection of the health, morals, and safety of the people. That case, as
this court said in Transportation Co.
**301 v. Chicago, 99 U. S. 642, was an extreme qualification of the
doctrine, universally held, that 'acts done in the proper exercise of
governmental powers, and not directly encroaching upon private property,
though these consequences may impair its use,' do not constitute a taking
within the meaning of the constitutional provision, or entitle the owner
of such property to compensation from the state or its agents, or give him
any right of action. It was a
case in which there was a 'permanent flooding of private property,' a
'physical invasion of the real estate of the private owner, and a
practical ouster of his possession.'
His property was, in effect, required to be devoted to the use of
the public, and, consequently, he was entitled to compensation.
already stated, the present case must be governed by principles that do
not involve the power of eminent domain, in the exercise of which property
may not be taken for public use without compensation.
A prohibition simply upon the use of property for purposes that are
declared, by valid legislation, to be injurious to the health, morals, or
safety of the community, cannot, in any just sense, be deemed a taking or
*669 an appropriation of property for the public benefit.
Such legislation does not disturb the owner in the control or use
of his property for lawful purposes, nor restrict his right to dispose of
it, but is only a declaration by the state that its use by any one, for
certain forbidden purposes, is prejudicial to the public interests.
Nor can legislation of that character come within the fourteenth
amendment, in any case, unless it is apparent that its real object is not
to protect the community, or to promote the general well-being, but, under
the guise of police regulation, to deprive the owner of his liberty and
property, without due process of law.
The power which the states have of prohibiting such use by
individuals of their property, as will be prejudicial to the health, the
morals, or the safety of the public, is not, and, consistently with the
existence and safety of organized society, cannot be, burdened with the
condition that the state must compensate such individual owners for
pecuniary losses they may sustain, by reason of their not being permitted,
by a noxious use of their property, to inflict injury upon the community.
The exercise of the police power by the destruction of property
which is itself a public nuisance, or the prohibition of its use in a
particular way, whereby its value becomes depreciated, is very different
from taking property for public use, or from depriving a person of his
property without due process of law.
In the one case, a nuisance only is abated; in the other,
unoffending property is taken away from an innocent owner. It is true,
when the defendants in these cases purchased or erected their breweries,
the laws of the state did not forbid the manufacture of intoxicating
liquors. But the state did
not thereby give any assurance, or come under an obligation, that its
legislation upon that subject would remain unchanged.
Indeed, as was said in Stone v. Mississippi, 101 U. S. 814, the
supervision of the public health and the public morals is a governmental
power, 'continuing in its nature,' and 'to be dealt with as the special
exigencies of the moment may require;' and that, 'for this purpose, the
largest legislative discretion is allowed, and the discretion cannot be
parted with any more than the power itself.'
So in Beer Co. v. Massachusetts,
*670 97 U. S. 32: 'If the
public safety or the public morals require the discontinuance of any
manufacture or traffic, the hand of the legislature cannot be stayed from
providing for its discontinuance by any incidental inconvenience which
individuals or corporations may suffer.'
now remains to consider certain questions relating particularly to the
thirteenth section of the act of 1885.
That section, which takes the place of section 13 of the act of
1881, is as follows:
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 delivery 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
**302 section, the sheriff, his deputy, or under-sheriff, or any
constable of the proper county, or marshal of any city where the same is
located, shall be directed to shut up and abate such place by taking
possession thereof and destroying all intoxicating liquors found therein,
together with all signs, screens, bars, bottles, glasses, and other
property used in keeping and maintaining said nuisance, 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, and by imprisonment in
the county jail not less than thirty days nor more than ninety days.
The attorney general, county attorney, or any citizen of the county
where such nuisance exists, or is kept, or is maintained, may maintain an
action in the name of the state to abate and perpetually enjoin the same.
The injunction shall be granted at the commencement of the action,
and no bond shall be required. Any
person violating the terms of any injunction granted in such proceeding,
shall be punished as for contempt, by a fine of not less than one hundred
nor more than five hundred dollars, or by imprisonment in the county jail
not less than thirty days nor more than six months, or by both such fine
and imprisonment, in the discretion of the court.'
*It is contended by counsel in the case of Kansas v. Ziebold & Hagelin
that the entire scheme of this section is an attempt to deprive persons
who come within its provisions of their property and of their liberty
without due process of law; especially when taken in connection with that
clause of section 14, (amendatory of section 21 of the act of 1881,) which
provides that, 'in prosecutions under this act, by indictment or
otherwise, * * * it shall not be necessary in the first instance for the
state to prove that the party charged did not have a permit to sell
intoxicating liquors for the excepted purposes.'
We are unable to perceive anything in these regulations
inconsistent with the constitutional guaranties of liberty and property.
The state having authority to prohibit the manufacture and sale of
intoxicating liquors for other than medical, scientific, and mechanical
purposes, we do not doubt her power to declare that any place, kept and
maintained for the illegal manufacture and sale of such liquors, shall be
deemed a common nuisance, and be abated, and, at the same time, to provide
for the indictment and trial of the offender.
One is a proceeding against the property used for forbidden
purposes, while the other is for the punishment of the offender.
is said that by the thirteenth section of the act of 1885, the
legislature, finding a brewery within the state in actual operation,
without notice, trial, or hearing, by the mere exercise of its arbitrary
caprice, declares it to be a common nuisance, and then prescribes the
consequences which are to follow inevitably by judicial mandate required
by the statute, and involving and permitting the exercise of no judicial
discretion or judgment; that the brewery being found in operation, the
court is not to determine whether it is a common nuisance, but, under the
command of the statute, is to find it to be one; that it is not the liquor
made, or the making of it, which is thus enacted to be a common nuisance,
but the place itself, including all the property used in keeping and
maintaining the common nuisance; that the judge having thus signed without
inquiry, and, it may be, contrary to the fact and against his own
judgment, the edict of the legislature, the court is commanded to take
possession by its officers of the
*672 peace and shut it up; nor is all this destruction of property, by
legislative edict, to be made as a forfeiture consequent upon conviction
of any offense, but merely because the legislature so commands; and it is
done by a court of equity, without any previous conviction first had, or
any trial known to the law. This,
certainly, is a formidable arraignment of the legislation of Kansas, and
if it were founded upon a just interpretation of her statutes, the court
would have no difficulty in declaring that they could not be enforced
without infringing the constitutional rights of the citizen.
But those statutes have no such scope, and are attended with no
**303 such results as the defendants suppose. The court is not required to give effect to a legislative
'decree' or 'edict,' unless every enactment by the lawmaking power of a
state is to be so characterized. It
is not declared that every establishment is to be deemed a common nuisance
because it may have been maintained prior to the passage of the statute as
a place for manufacturing intoxicating liquors.
The statute is prospective in its operation; that is, it does not
put the brand of a common nuisance upon any place, unless, after its
passage, that place is kept and maintained for purposes declared by the
legislature to be injurious to the community.
Nor is the court required to adjudge any place to be a common
nuisance simply because it is charged by the state to be such.
It must first find it to be of that character; that is, must
ascertain, in some legal mode, whether, since the statute was passed, the
place in question has been, or is being, so used as to make it a common
untenable is the proposition that proceedings in equity for the purposes
indicated in the thirteenth section of the statute are inconsistent with
due process of law. 'In
regard to public nuisances,' Mr. Justice Story says, 'the jurisdiction of
courts of equity seems to be of a very ancient date, and has been
distinctly traced back to the reign of Queen Elizabeth.
The jurisdiction is applicable, not only to public nuisances,
strictly so called, but also to purprestures upon public rights and
property. * * * In case of
public nuisances, properly so called, an indictment lies to abate them,
and to punish the *673
offenders. But an information
also lies in equity to redress the grievance by way of injunction.'
2 Stroy, Eq. Jur. §§ 921, 922. The ground of this jurisdiction in
cases of purpresture, as well as of public nuisances, is the ability of
courts of equity to give a more speedy, effectual, and permanent remedy
than can be had at law. They
cannot only prevent nuisances that are threatened, and before irreparable
mischief ensues, but arrest or abate those in progress, and, by perpetual
injunction, protect the public against them in the future; whereas courts
of law can only reach existing nuisances, leaving future acts to be the
subject of new prosecutions or proceedings. This is a salutary
jurisdiction, especially where a nuisance affects the health, morals, or
safety of the community. Though
not frequently exercised, the power undoubtedly exists in courts of equity
thus to protect the public against injury.
District Atty. v. Railroad Co., 16 Gray, 245; Attorney Gen. v.
Railroad, 3 N. J. Eq. 139; Attorney Gen. v. Ice Co., 104 Mass. 244; State
v. Mayor, 5 Port. (Ala.) 279, 294; Hoole v. Attorney Gen., 22 Ala. 194;
Attorney Gen. v. Hunter, 1 Dev. Eq. 13; Attorney Gen. v. Forbes, 2 Mylne
& C. 123, 129, 133; Attorney Gen. v. Railway Co., 1 Drew. & S.
161; Eden, Inj. 259; Kerr, Inj. (2d Ed.) 168.
to the objection that the statute makes no provision for a jury trial in
cases like this one, it is sufficient to say that such a mode of trial is
not required in suits in equity brought to abate a public nuisance.
The statutory direction that an injunction issue at the
commencement of the action is not to be construed as dispensing with such
preliminary proof as is necessary to authorize an injunction pending the
court is not to issue an injunction simply because one is asked, or
because the charge is made that a common nuisance is maintained in
violation of law. The statute
leaves the court at liberty to give effect to the principle that an
injunction will not be granted to restrain a nuisance, except upon clear
and satisfactory evidence that one exists.
Here the fact to be ascertained was not whether a place, kept and
maintained for *674 purposes
forbidden by the statute, was per se a nuisance, that fact being
conclusively determind by the statute itself, but whether the place in
question was so kept and maintained.
If the proof upon that point is not full or sufficient, the court
can refuse an injunction, or postpone action until the state first obtains
the verdict of a jury in her favor. In
this case, it cannot be denied that the defendants kept and maintained a
place that is within the statutory definition of a common nuisance. Their
petition **304 for the removal
of the cause from the state court, and their answer to the bill, admitted
every fact necessary to maintain this suit, if the statute, under which it
was brought, was constitutional.
the provision that in prosecutions, by indictment or otherwise, the state
need not, in the first instance, prove that the defendant has not the
permit required by the statute, we may remark that, if it has any
application to a proceeding like this, it does not deprive him of the
presumption that he is innocent of any violation of law.
It is only a declaration that when the state has proven that the
place described is kept and maintained for the manufacture or sale of
intoxicating liquors, such manufacture or sale being unlawful except for
specified purposes, and then only under a permit, the prosecution need not
prove a negative, namely, that the defendant has not the required license
or permit. If the defendant has such license or permit, he can easily
produce it, and thus overthrow the prima facie case established by the
portion of the argument in behalf of the defendants is to the effect that
the statutes of Kansas forbid the manufacture of intoxicating liquors to
be exported, or to be carried to other states, and, upon that ground, are
repugnant to the clause of the constitution of the United States, giving
congress power to regulate commerce with foreign nations and among the
several states. We need only
say, upon this point, that
there is no intimation in the record that the beer which the respective
defendants manufactured was intended to be carried out of the state or to
foreign countries. And,
without expressing an opinion as to whether such facts would have
constituted a good defense, we observe that it will be time enough to
decide a case of that character when it shall come before us.
For the reasons stated, we are of opinion that the judgments of the
supreme court of Kansas have not denied to Mugler, the plaintiff in error,
any right, privilege, or immunity secured to him by the constitution of
the United States, and its judgment, in each case, is accordingly
affirmed. We are also of opinion that the circuit court of the United
States erred in dismissing the bill of the state against Ziebold &
Hagelin. The decree in that
case is reversed, and the cause remanded, with directions to enter a
decree granting to the state such relief as the act of March 7, 1885,
authorizes. It is so ordered.
concur in the judgment rendered by this court in the first two cases --
those coming from the supreme court of Kansas. I dissent from the judgment
in the last case, the one coming from the circuit court of the United
States. I agree to so much of
the opinion as asserts that there is nothing in the constitution or laws
of the United States affecting the validity of the act of Kansas
prohibiting the sale of intoxicating liquors manufactured in the state,
except for the purposes mentioned. But
I am not prepared to say that the state can prohibit the manufacture of
such liquors within its limits if they are intended for exportation, or
forbid their sale within its limits, under proper regulations for the
protection of the health and morals of the people, if congress has
authorized their importation, though the act of Kansas is broad enough to
include both such manufacture and sale.
The right to import an article of merchandise, recognized as such
by the commercial world, whether the right be given by act of congress or
by treaty with a foreign country, would seem necessarily to carry the
right to sell the article when imported.
In Brown v. Maryland, 12 Wheat. 447, Chief Justice MARSHALL, in
delivering the opinion of this court, said as follows:
'Sale is the object of importation, and is an essential ingredient
of that intercourse of which importation constitutes a part.
It is as essential an ingredient, as indispensable to the existence
of the entire thing, *676 then,
as importation itself. It must be considered as a component part of the
power to regulate commerce. **305
Congress has a right, not only to authorize importation, but to authorize
the importer to sell.'
one state can forbid the sale within its limits of an imported article, so
may all the states, each selecting a different article. There would then
be little uniformity of regulations with respect to articles of foreign
commerce imported into different states, and the same may be also said of
regulations with respect to articles of interstate commerce.
And we know it was one of the objects of the formation of the
federal constitution to secure uniformity of commercial regulations
against discriminating state legislation. The construction of the
commercial clause of the constitution, upon which the License Cases, 7
How., were decided, appears to me to have been substantially abandoned in
later decisions. Hall v. De
Cuir, 95 U. S. 485; Welton v.
State of Missouri, 91 U. S. 275; County of Mobile v. Kimball, 102 U. S.
691; Transportation Co. v. Parkersburgh, 107 U. S. 691, 2 Sup. Ct. Rep.
732; Ferry Co. v. Pennsylvania, 114 U. S. 196, 5 Sup. Ct. Rep. 826;
Railway Co. v. Illinois, 18 U. S. 557, 7 Sup. Ct. Rep. 4.
I make this reservation that I may not hereafter be deemed
concluded by a general concurrence in the opinion of the majority.
do not agree to what is said with reference to the case from the United
States circuit court. That
was a suit in equity brought for the abatement of the brewery owned by the
defendants. It is based upon
clauses in the thirteenth section of the act of Kansas, which are as
follows: '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
delivery 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 marshal of any
city where the same is located, shall be directed to shut
*677 up and abate such place by taking possession thereof and
destroying all intoxicating liquors found therein, together with all
signs, screens, bars, bottles, glasses, and other property used in keeping
and maintaining said nuisance; 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, and by imprisonment in the county jail not less than
thirty days, nor more than ninety days.
The attorney general, county attorney, or any citizen of the county
where such nuisance exists, or is kept, or is maintained, may maintain an
action in the name of the state to abate and perpetually enjoin the same.
The injunction shall be granted at the commencement of the action,
and no bond shall be required.'
a previous section all malt, vinous, and fermented liquors are classed as
intoxicating liquors, and their manufacture, barter, and sale are equally
prohibited. By the thirteenth
section, as is well said by counsel, the legislature, without notice to
the owner or hearing of any kind, declares every place where such liquors
are sold, bartered, or given away, or kept for sale, barter, or delivery,
(in this case a brewery, where beer was manufactured and sold, which, up
to the passage of the act, was a lawful industry,) to be a common
nuisance; and then prescribes what shall follow, upon a court having
jurisdiction finding one of such places to be what the legislature has
already pronounced it. The court is not to determine whether the place is a common
nuisance in fact, but is to find it to be so if it comes within the
definition of the statute, and, having thus found it, the executive
officers of the court are to be directed to shut up and abate the place by
taking possession of it; and, as though this were not sufficient security
against the continuance of the business, they are to be required to
destroy all the liquor found therein, and all other property used in
keeping and maintaining the nuisance.
It matters **306 not whether they are of such a character as could be used in
any other business, or be of value for any other purposes.
No discretion is left in the judge or in the officer. *678 These clauses appear to me to deprive one who owns a
brewery and manufactures beer for sale, like the defendants, of property
without due process of law. The
destruction to be ordered is not as a forfeiture upon conviction of any
offense, but merely because the legislature has so commanded.
Assuming, which is not conceded, that the legislature, in the
exercise of that undefined power of the state, called its 'police power,'
may, without compensation to the owner, deprive him of the use of his
brewery for the purposes for which it was constructed under the sanction
of the law, and for which alone it is valuable, I cannot see upon what
principle, after closing the brewery, and thus putting an end to its use
in the future for manufacturing spirits, it can order the destruction of
the liquor already manufactured, which it admits by its legislation may be
valuable for some purposes, and allows it to be sold for those purposes.
Nor can I see how the protection of the health and morals of the
people of the state can require the destruction of property like bottles,
glasses, and other utensils, which may be used for many lawful purposes.
It has heretofore been supposed to be an established principle that
where there is a power to abate a nuisance, the abatement must be limited
by its necessity, and no wanton or unnecessary injury can be committed to
the property or rights of individuals.
Thus, if the nuisance consists in the use to which a building is
put, the remedy is to stop such use, not to tear down or to demolish the
building itself, or to destroy property found within it.
Babcock v. City of Buffalo, 56 N. Y. 268; Bridge Co. v. Paige, 83
N. Y. 189. The decision of
the court, as it seems to me, reverses this principle.
is plain that great wrong will often be done to manufacturers of liquors
if legislation like that embodied in this thirteenth section can be
upheld. The supreme court of
Kansas admits that the legislature of the state, in destroying the values
of such kinds of property, may have gone to the utmost verge of
constitutional authority. In
my opinion it has passed beyond that verge, and crossed the line which
separates regulation from confiscation.
The defendant, Peter Mugler, was prosecuted criminally in two different
cases for the violation of the prohibitory liquor law of the state of
Kansas. In the first case,
the indictment contained one count, charging that the defendant 'did
unlawfully manufacture, and did assist and abet in the manufacture, of
certain intoxicating liquors on, to-wit, the first day of November, A. D.
1881, in violation of the provisions of an act entitled 'An act to
prohibit the manufacture and sale of intoxicating liquors, except for
medical, mechanical, and scientific purposes, and to regulate the
manufacture and sale thereof for such excepted purposes.''
The trial was had in this case before the court, without a jury,
upon an agreed statement of facts, which statement of facts is as follows:
'It is hereby stipulated and agreed that the facts in the above-entitled
case are, and that the evidence would prove them to be, as follows: That the defendant, Peter Mugler, has been a resident of the
state of Kansas continually since the year 1872; that, being foreign born,
he in that year declared his intention to become a citizen of the United
States, and always since that time, intending to become such citizen, he
did, in the month of June, 1881, by the judgment of the district court of
Wyandotte county, Kansas, become a full citizen of the United States and
of the state of Kansas; that in the year 1877, said defendant erected and
furnished a brewery on lots Nos. 152 and 154, on Third street, in the city
of Salina, Saline county, Kansas, for use in the manufacture of an
intoxicating malt liquor, commonly known as
**274 beer; that such building was specially constructed and adapted
for the manufacture of such malt liquor, at an actual cost and expense to
said defendant of ten thousand dollars, and was used by him for the
purpose for which it was designed and intended after its completion in
1877, and up to May 1, 1881; that said brewery was at all times after its
completion, and on May 1, 1881, worth the sum of ten thousand dollars for
use in the manufacture of said beer, and is not worth to exceed the sum of
twenty-five hundred dollars for any other purpose; that said defendant,
since October 1, 1881, has used said brewery in the manner and for the
purpose for which it was constructed and adapted, by the manufacture
therein of such intoxicating malt liquors, and at the time of the
manufacture of said malt liquor said defendant had no permit to
manufacture the same for medical, scientific, or mechanical purposes, as
provided by chapter 128 of the Laws of 1881.
And the foregoing was all the evidence introduced in this case, and
upon which a finding of guilty was made.'
The defendant was found guilty, and fined $100, and appealed to the
supreme court of the state of Kansas, where the court below was affirmed.
A writ of error was sued out, upon the grounds that the proceedings
in said suit involved the validity of a constitutional enactment of the
state of Kansas, and of a statute of said state; the defendant claiming
that said constitutional enactment and statute are in violation of the
constitution of the United States, and the judgment of said supreme court
of the state of Kansas being in favor of the validity of said enactment
Plaintiff in error invoked in the argument before the supreme
court of the state of Kansas a portion of the first section of the
fourteenth amendment to the constitution of the United States, which
provides: 'Nor shall any state deprive any person of life, liberty, or
property without due process of law.' The amendment to the constitution of
the state of Kansas which is complained of is as follows:
'The manufacture and sale of intoxicating liquors shall be forever
prohibited in this state, except for medical, scientific, and mechanical
purposes.' Const. Kan. art.
15, § 10. This amendment was
adopted by the people November 2, 1880.
The statute complained of is chapter 128 of the Laws of Kansas,
passed in 1881. That statute
became operative May 1, 1881. Section 8 of that statute is as follows:
'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 1 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.' Section 5 of that
statute is as follows: '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
one 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 shall 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 of the number signing said petition.
The probate judge shall consider such petition and
275 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 forth with recorded by said probate judge
in the same manner and with like effect as in a case of a permit to sell
such liquors as provided in section two 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 therefore.
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
manufacturer shall sell the liquor so manufactured only for medical,
mechanical, and scientific 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 or mechanical purposes, and then only in quantities
not less than five gallons.'
case of State ex rel. Tufts v. Ziebold et al. is a civil case, commenced
in the district court of Atchison county, Kansas, in the name of the
state, by the assistant attorney general for that county, to abate an
alleged nuisance, to-wit, a place where intoxicating liquors are bartered,
sold, and given away, and are kept for barter, sale, and gift, in
violation of law, and a place where intoxicating liquors are manufactured
for barter, sale, and gift, in the state of Kansas, and to perpetually
enjoin the defendants from using or permitting to be used the premises
described in the petition for the purposes mentioned, in violation of the
prohibitory law of the state of Kansas.
The defendants filed with the clerk of the district court a bond
and petition for removal to the circuit court of the United States; and,
on the hearing of said petition, the same was overruled by the judge of
the district court, who rendered the following opinion, retaining the
cases for trial:
State of Kansas ex rel. J. F. Tufts, Assistant Attorney General,
Plaintiff, vs. Ziebold & Hagelin, Defendants.
application to remove to United States circuit court.
ASSIGNMENT OF ERRORS.
complainant and appellant assigns as error, and asks for a reversal upon,
the following rulings of the court below:
First, that the court below erred in overruling the plea in
abatement to the jurisdiction of the court, and in holding the case for
hearing; second, that the court below erred in rendering a final decree on
the bill and answer for the defendants, and dismissing complainant's bill.
statute and constitutional amendment have received a construction at the
hands of the supreme court of Kansas, Prohibitory Amendment Cases, 24 Kan.
700, and the case at bar, State v. Mugler, 29 Kan. 252, defining the
privileges and liabilities under the old law and under the new. In 1877, when plaintiff in error, Mugler, erected his
brewery, he had a right to manufacture beer or any other intoxicating
liquors which he chose. He
can do so still, provided he obtains a permit, which can be obtained by
complying with the law. In 1877 he could manufacture intoxicating liquors
for any purpose. Under the
amendment, he can only manufacture for medical, scientific, and mechanical
purposes. In 1877 he had no right to sell intoxicating liquors in any
quantity, in any place, or to any person in Kansas, without a license.
State v. Volmer, 6 Kan. 371; Dolson v. Hope, 7 Kan. 161; Alexander v.
O'Donnell, 12 Kan. 608. Such
is still the law. The license
is now called a permit.
word 'property,' as used in Const. U. S. 14th Amend., means the right of
use and the right of disposal, without any control save only by the law of
the land. Bl. Comm. 138. The police power of the state is a part of the law of the
land. It does not
affirmatively appear that plaintiff in error, Mugler, was the owner of the
property at the time of the passage of the amendment, or at the time of
the commission of the offense. If
he was at the time he made his investment, he had -- First, the right to
sell it; second, the right to use it, limited by the police power of the
state; and, by reason of statutes then in force, this right was a
defeasible one -- a mere privilege or license.
The right to manufacture and sell intoxicating liquors has always
been held, by the common law of England, by the courts and legislatures of
the states, by this court, and by the congress of the United States, as a
peculiarly temporary, defeasible, and transient right, as particularly
subject to the police power. The
right of plaintiff in error to use his property at the time he acquired it
for the purpose for which it was erected was, under the statutes of
Kansas, but a mere license. The
right to sell was a license. Mugler v. State, 29 Kan. 252. Sale is the object of manufacture. Brown v. Maryland, 12 Wheat. 419. The right to
manufacture includes the right to sell.
Beer Co. v. Massachusetts, 97 U. S. 32.
To take away the right to sell is to take away, de facto, the right
to manufacture. As to the
right to manufacture for sale outside the state, see State v. Walruff, 26
Fed. Rep. 178. A state, in
the enactment of a law, contemplates the existence of no other sovereignty
than itself. Bartemeyer v.
Iowa, 18 Wall. 129; Wynehamer v. People, 13 N. Y. 378.
It does not appear that plaintiff in error was situated so as to
sell outside of the state with profit.
It follows, then, that plaintiff's privileges at the time he made
his investment were expressly defeasible under the laws then in force.
is not claimed that plaintiff has been deprived of his property
objectively considered. He
still has possession of it. He
still has the right to sell it. Nor
is it claimed that he is deprived of its use generally.
The only claim is that **286
he is deprived of the privilege to use it for the manufacture of liquors
for sale as a beverage. The
absolute prohibition of the sale of intoxicating liquors is not
contravened by anything in the constitution of the United States.
Foster v. Kansas, 112 U. S. 205, 5 Sup. Ct. Rep. 97; Beer Co. v.
Massachusetts, 97 U. S. 25; Bartemeyer v. Iowa, 18 Wall. 129.
Sale is the object of manufacture.
Everything in this case indicates that the sole and only purpose
plaintiff had in erecting his brewery was to use it in the manufacture of
intoxicants for sale within the state.
Plaintiff in error has only been deprived of a privilege which both
by the statutes of Kansas and the common law, was always defeasible.
law was within the police power of the state.
Prior to the adoption of the fourteenth amendment, it was conceded
that the regulation of the liquor traffic was purely and exclusively a
matter of state control. License
Cases, 5 How. 504, 631; Com. v. Kendall, 12 Cush. 414; Com. v. Clapp, 5
Gray, 97; Com. v. Howe, 13 Gray, 26; Santo v. State, 2 Iowa, 165; Our
House v. State, 4 G. Greene, 172; Zumhoff v. State, Id. 526; State v.
Donehey, 8 Iowa, 396; State v. Wheeler, 25 Conn. 290; Reynolds v. Geary,
26 Conn. 179; Oviatt v. Pond, 29 Conn. 479; People v. Hawley, 3 Mich. 330;
People v. Gallagher, 4 Mich. 244; Jones v. People, 14 Ill. 196; State v.
Prescott, 27 Vt. 194; Lincoln v. Smith, Id. 328; Gill v. Parker, 31 Vt.
610. But see Beebe v. State,
6 Ind. 501; Meshmeyer v. State, 11 Ind. 484; Wynehamer v. People, 13 N. Y.
378. It is also competent to
declare the traffic a nuisance, and to provide legal process for its
condemnation and destruction, and to seize and condemn the building
occupied. Our House v. State,
4 G. Greene, 172; Lincoln v. Smith, 27 Vt. 328; Oviatt v. Pond, 29 Conn.
479; State v. Robinson, 33 Me. 568; License Cases, 5 How. 589.
But see Wynehamer v. People, 13 N. Y. 378; Welch v. Stowell, 2
Doug. (Mich.) 332. See, also,
Cooley, Const. Lim. (Ed. 1868) 581, 583, 584.
the adoption of the fourteenth amendment, all rights are held subject to
the police power, and this power cannot by any contract be divested.
Beer Co. v. Massachusetts, 97 U. S. 25.
The amendment was not designed to interfere with the police power.
Barbier v. Connelly, 113 U. S. 27, 5 Sup. Ct. Rep. 357.
A proceeding similar to the one at bar was held not to raise a
federal question. Schmidt v.
Cobb, 119 U. S. 286, 7 Sup. Ct. Rep. 1373.
Inferior federal courts have held the same doctrine.
Weil v. Calhoun, 25 Fed. Rep. 872; U. S. v. Nelson, 29 Fed. Rep.
202. The Oleomargarine Cases
are recent illustrations. Powell v. Com., 7 Atl. Rep. 913; State v.
Addington, 12 Mo. App. 214, 77 Mo. 115; State v. Smyth, 14 R. I. 100.
See, also, the regulation of the sale of milk. Com. v. Evans, 132 Mass. 11; State v. Newton, 45 N. J.
Law, 469; People v. Clipperly, 101 N. Y. 634, 4 N. E. Rep. 107, reversing
44 Hun, 319. The regulations
of the opium traffic. Ex
parte Yung Jon, 28 Fed. Rep. 308. The
enactment in this case falls far short of those which have heen upheld by
this court in Beer Co. v. Massachusetts, 97 U. S. 25, and in the Slaughter-House
Cases. Only a single case has
decided that a statute of this kind is unconstitutional, (Wynehamer v.
People, 13 N. Y. 378,) and in that case it was not held void as violating
a privilege or immunity, but the statute operated so rigidly on property
in existence at the time, absolutely prohibiting its sale, as to amount to
depriving the owner of his property.
It is not shown in this case that the beer was on hand at the time
of the adoption of the amendment.
the case of State of Kansas v. Ziebold et al., the allegations of the plea
that the defendants are not deprived of the right to use their premises
for the purpose of manufacturing beer for sale in other states, and that
their property **287 is as
valuable for that purpose as if used for the purpose of manufacturing for
sale in this state are not denied, and must be taken as true.
The fourteenth amendment only extends to the rights that
individuals have as citizens of the United States, and not to such as they
have as citizens of the state. Presser
v. Illinois, 116 U. S. 252, 6 Sup. Ct. Rep. 580.
law is not in violation of article 4, Const. U. S., relating to
unreasonable searches and seizures, since that article is a limitation on
the power of the federal government, and not a restriction on the
authority of the state. Barron
v. Baltimore, 7 Pet. 243; Livingston's Lessee v. Moore, 7 Pet. 469, 551,
552; Fox v. State of Ohio, 5 How. 410, 434, 435; Smith v. State of
Maryland, 18 How. 71, 76; Twitchell v. Com., 7 Wall. 321, 325, 326; U. S.
v. Cruikshank, 92 U. S. 542, 552.
vested rights here claimed to be invaded rest not upon express legislative
authority. At the time of the
purchase of the premises and the making of the improvements, the
munufacture of intoxicating liquors was free from tax, license, or
restraint. The sale of such
liquors has always been under restraint, and places where such liquor was
kept for sale in violation of law have always been declared to be
nuisances. To hold that these
appellees had a right to continue the use of these premises for a purpose
which the legislature of the state has declared to be detrimental to the
state, until compensation is made, would be to hold that there is, because
of the absence of restrictive legislation at the time the improvements
were made, an implied contract right vested in them that the state would
never interfere with them if they made improvements adapted to this
particular business. The
supreme court has said that no express contract of this kind can be made.
Beer Co. v. Massachusetts, 97 U. S. 25; Fertilizing Co. v. Hyde Park, 97
U. S. 659; Stone v. Mississippi, 101 U. S. 814; Union Co. v. Landing Co.,
113 U. S. 746, 4 Sup. Ct. Rep. 652; Gas Co. v. Light Co. 115 U. S. 650, 6
Sup. Ct. Rep. 252. In the
case of Union Co. v. Landing Co., the defendants, relying on a grant from
the legislature of an exclusive right for 20 years, made extensive
improvements adapted to their particular kind of business, and yet the
supreme court held that the grant was no protection against subsequent
legislation; that the right of the state to protect public health and
public morals could not be contracted away by one legislature so as to
bind its successor. In the
case at bar the property, except for a particular use, is not interfered
with, and their vested rights, if any, exist because they made
improvements, not under express legislative authority granted them to
engage in this business, but in the absence of any legislation.
Can there be a vested right in the use of property to manufacture
beer more sacred than the contract rights above cited?
rights are held subject to the police power.
It is not a taking of private property for public use, but a
salutary restraint on a noxious use by the owner.
That this power extends to the right to regulate, prohibit, and
suppress the liquor traffic has not been doubted since the License Cases,
5 How. 504. Dill. Mun. Corp.
136; Tied. Lim. Police Power, §§ 122, 122a; 2 Kent, Comm. 340; People v.
Hawley, 3 Mich. 330; Com. v. Tewksbury, 11 Metc. 55.
To hold otherwise would be destructive of all social organization.
Coates v. Mayor of New York, 7 Cow. 585.
These laws are presumed to be passed for the public good, and
cannot be said to impair any right or the obligation of any contract, or
to do any injury in the proper and legal sense of these terms. Com. v.
Intoxicating Liquors, (Beer Co. v. Massachusetts, 97 U. S. 25,) 115 Mass.
153, citing Com. v. Alger, 7 Cush. 85, 86; Thorpe v. Railroad Co., 27 Vt.
140; People v. Hawley, Mich. 330; Presbyterian Church v. New York, 5 Cow.
538; Vanderbilt v. Adams, 7 Cow. 349; Coates v. New York, Id. 585, 604,
606. The right to
compensation for private property taken for public use is foreign to the
subject of preventing or abating public nuisances.
City of St. Louis v. Stern, 3 Mo. App. 48.
act has been held to be constitutional.
State v. Mugler, 29 Kan. 252.
Vested rights which do not rest on contract may be divested without, on
the provision of the constitution, that no state shall pass any law
impairing the obligation of contracts. Satterlee v. Matthewson, 2 Pet.
380; Watson v. Mercer, 8 Pet. 88, and cases cited; Louisiana v. Mayor of
New Orleans, 109 U. S. 285, 3 Sup. Ct. Rep. 211.
better presentation of this case can be made than is contained in the
opinion of Judge MARTIN on the petition for removal to the circuit court,
(see statement of facts.)
law of Kansas, prohibiting the manufacture of 'any spirituous, malt,
vinous, fermented, or other intoxicating liquors' except for 'medical,
scientific, and mechanical purposes is in conflict with article 14 of the
the indictment there was no allegation and no attempt to prove that the
beer was manufactured for sale or barter.
The proposition in the Kansas constitution is that no citizen shall
manufacture, even for his own use, or for exportation, any intoxicating
liquors. The state has the power to prohibit the manufacture of
intoxicating liquors for sale or barter within its own limits; but it has
no power to prohibit any citizen to manufacture for his own use, or for
export, or storage, any article of food or drink not endangering or
affecting the rights of others. In
the implied compact between the state and the citizen, certain rights are
reserved by the latter, with which the state cannot interfere.
These are guarantied by the federal and state constitutions in the
provisions which protect 'life, liberty, and property.'
Under the doctrines of the Commune, the state has the right to
control the tastes, appetites, and habits of the citizen.
But under our form of government, the state does not attempt to
control the citizen except as to his conduct to others. John Stuart Mill on 'Liberty,' 145, 146; 2 Kent, Comm. 1; 1
Cooley, Bl. 122, 123; Munn v. People of Illinois, 94 U. S. 113, citing
Thorpe v. Railroad Co., 27 Vt. 143. The
right to manufacture beer for his own use, either food or drink, is
certainly an absolute or natural right reserved to every citizen. It is a right guarantied by the fourteenth amendment; and
when the legislature of Kansas punishes the plaintiff in error for simply
manufacturing beer, it deprives him of that right 'without due process of
law,' and denies to him 'the equal protection of the laws.'
the legislature can prescribe what a man shall or shall not manufacture,
ignoring the question of whether he intends to dispose of it to others, or
whether its manufacture is dangerous in the process of manufacturing to
the lives or property of others, then the same power can prescribe the
tastes, habits, and expenditure of every citizen.
The right of the state to prohibit unwholesome trades, etc., is
based on the general principle that every person ought to so use his own
as not to injure his neighbors. This
is the police power; and it is much easier to perceive and realize the
existence and sources of it than to mark its boundaries. Slaughter-House
Cases, 16 Wall. 36; Union Co. v. Landing Co., 111 U. S. 588, 4 Sup. Ct.
Rep. 652, (opinions of Justices BRADLEY and FIELD;) Com. v. Alger, 7 Cush.
84. But broad and
comprehensive as is this power, it cannot extend to the individual tastes
and habits of the citizen. License
Cases, 5 How. 583. Whatever
may be the injurious results from the use of beer, it will not be
contended that there is anything in the process of manufacturing it which
endangers the lives or property of others.
Corfield v. Coryell, 4 Wash. C. C. 371.
There can be no doubt but that 'citizens of the United States' and
'citizens of the states' have the natural right to manufacture beer for
individual use. To this right
is added the right, secured by the other clause of the fourteenth
amendment, 'nor shall any state deprive any person of life, liberty, or
property without due process of law.'
'Due process of law' means such an exertion of the power of government as
the settled maxims of law permit and sanction, and under such safeguards
for the protection of individual rights as those maxims prescribe for the
class of cases to which the one in question belongs.
Cooley, Const. Lim. 356; Wynehamer v. People, 13 N. Y. 432; State
v. Allen, 2 McCord, 56; Sears v. Cottrell, 5 Mich. 251; Taylor v. Porter,
4 Hill, 140; Hoke v. Henderson, 4 Dev. 15; James v. Reynolds' Adm'rs, 2
Tex. 251; Kennard v. Louisiana, 92 U. S. 480.
The article is a restraint on the judicial and executive powers of
government, and cannot be so construed as to leave to congress to make any
process, due process of law. Murray's
Lessee v. Land & Imp. Co., 18 How. 276.
In Dartmouth College Case, 4 Wheat. 518, Mr. Webster defined 'due
process of law' to be the general law which hears before it condemns.
See, also, Brown v. Hummel, 6 Pa. St. 86; Norman v. Heist, 5 Watts
& S. 171. 'The general
laws governing society' guaranty the right to manufacture beer; and until
the citizen attempts to sell or barter, he cannot be punished.
If all that is charged in this indictment be proved, no offense is
shown to have been committed under the laws of any free people.
Under the power to regulate, the state cannot deprive the citizen
of the lawful use of his property, if it does not injuriously affect or
endanger others. Lake View v. Cemetery Co., 70 Ill. 191.
Nor can it, in the exercise of the police power, enact laws that
are unnecessary, and that will be oppressive to the citizen. Railway Co.
v. City of Jacksonville, 67 Ill. 37-40; Tenement-House Cigar Cases, 98 N.
Y. 98; People v. Marx, 99 N. Y. 377; Intoxicating Liquor Cases, 25 Kan.
765, (opinion of Judge BREWER;) Calder v. Bull, 3 Dall. 386; Fletcher v.
Peck, 6 Cranch, 135; Dash v. Van Kleeck, 7 Johns. 477; Taylor v. Porter, 4
Hill, 146, (per BRONSON, J.;) Goshen v. Stonington, 4 Conn. 225, (per
this statute deprives the plaintiff in error directly and absolutely of
his property, without 'due process of law.'
By the enactment of this statute the property is reduced in value,
not indirectly or consequentially, but by direct prohibition of its real
and primary use. This
question was not passed on in Bartemeyer v. Iowa, 18 Wall. 129.
To destroy the right to manufacture beer for a beverage is to
deprive the owner of his property, although he is left the right to
manufacture for other purposes, since that is the ordinary, usual, and
principal use of beer. Wynehamer
v. People, 13 N. Y. 387. This
is an attempt not merely to legislate for the future but an attempt to
destroy vested rights by legislative enactment without compensation, and
without 'due process of law.' Wilkinson
v. Leland, 2 Pet. 657. See,
also, Munn v. People of Illinois, 94 U. S. 113, (per FIELD, J.;)
Bartemeyer v. Iowa, (BRADLEY, J.,) 18 Wall. 129; Beer Co. v.
Massachusetts, 97 U. S. 25. That
private property cannot be taken for public purposes, without just
compensation, is a fundamental maxim of all governments.
Munn v. People of Illinois, (FIELD, J.,) 94 U. S. 113.
As to the distinction between taking for public use and
destruction, and also direct or consequential damages or loss, see Sedg.
St. & Const. Law, 519‑524, and notes.
Taking need not be confined to actual physical appropriation.
Id. If the owner is
deprived of the use for which it was designed, to retain title and
possession is of little consequence.
Munn v. People of Illinois, supra, citing Bronson v. Kinzie, (TANEY,
C. J.,) 1 How. 311. This
question was effectually disposed of by this court.
Pumpelly v. Green Bay Co., 13 Wall. 177.
The court below adopted the rule of consequential and remote
damages as laid down in Transportation Co. v. City of Chicago, 99 U. S.
838, citing Cooley, Const. Lim. 542, and notes.
That rule has no application to this case.
Since this case was heard it has been decided that depriving a
citizen by express prohibition from the use of his property for the sake
of the public is a taking of private property for public use.
State v. Walruff, 26 Fed. Rep. 178.
See, also, for an exhaustive discussion of the right to
compensation, Wynehamer v. People, 13 N. Y. 378; Beebe v. State, 6 Ind.
501; Tenement-House Cigar Cases, 98 N. Y. 98.
The entire scheme of the thirteenth section, which sttempts by mere
legislative enactment to convert the building and machinery of appellees
into a common nuisance, and to compass their destruction, and also which
attempts to execute the criminal law against the persons of appellees, by
equitable proceedings instead of a common‑law trial, is an attempt
to deprive these persons of their property and liberty without 'due
process of law.' The proceedings provided for in the thirteenth section
are additional to the ordinary methods of trial, conviction, and
punishment provided by the other sections of the act.
By this section the legislature finding a brewery in operation
within the state, which up to the time of the passage of the act was a
lawful business, eo instante, without notice, trial, or hearing, by the
mere exercise of its arbitrary caprice, declares it to be a common
nuisance, and prescribes to consequences which are to follow inevitably by
judicial mandate commanded by statute, and involving and permitting the
exercise of no judicial discretion. The
court is not to determine the brewery to be a nuisance, but is to find it
to be one. And the court is
commanded by its officers, to take possession of and shut up the place,
and abate the nuisance by destroying all the property, not as a forfeiture
consequent on conviction, but merely because the legislature to commands,
and without the intervention of a real judicial action.
And, again, an injunction shall issue, which is an injunction
against a crime, and the violation of the injunction is punished as for
contempt, by the process of a court of equity, which may be more severe
than the penalty upon trial and conviction for keeping and maintaining the
nuisance. And by section 14 the state shall not be required to prove
the one fact which constitutes the offense, viz., that the party did not
have a permit, thus taking away the presumption of innocence from the
whole proceeding is but an attempt to administer criminal law in equity.
That this is a criminal proceeding see Fisher v. McGirr, 1 Gray,
26; Greene v. Briggs, 1 Curt. 328; Hibbard v. People, 4 Mich. 129; Neitzel
v. City of Concordia, 14 Kan. 446; Boyd v. U. S., 116 U. S. 616, 6 Sup.
Ct. Rep. 524. A legislative
enactment cannot make that a nuisance which is not such in fact.
To make such a determination is a judicial function.
Rights of property cannot be so arbitrarily destroyed or injured.
Yates v. Milwaukee, 10 Wall. 497, 504, 505; Hutton v. City of Comden, 39
N. J. Law, 122, 129, 130; Cooley, Const. Lim. (5th Ed.) 110, and notes,
446; Lowry v. Rainwater, 70 Mo. 152; Jeck v. Anderson, 57 Cal. 251. Such a
legislative determination would also be void, because, where the fact of
injury to public health or morals did not exist, as here, it would be a
violation of the absolute right of the citizen to follow such pursuit as
he sees fit, provided it be not in fact 'injurious to the community.'
People v. Marx, 99 N. Y. 386, 2 N. E. Rep. 29, and cases cited.
Such legislation is unconstitutional. Quintini v. City of Bay St.
Louis, 1 South. Rep. 625, 628.
law cannot be administered in a court of equity. Even in cases of public nuisances, where equity has
jurisdiction, exceptional and extremely limited as it is, the question of
nuisance or not must in cases of doubt be tried by a jury, and the
injunction will be granted or not as that fact is decided.
2 Story, Eq. Jur. § 923. In
practice the jurisdiction is applied almost exclusively to nuisances in
the nature of purprestures upon public rights and property.
Id. §§ 921-924. But
the jurisdiction is never exercised on any idea that the nuisance is a
crime, or with a view of preventing or punishing a criminal act.
1 Bish. Crim. Proc. § 1417.
Equity has no jurisdiction in matters of crime.
Lawrence v. Smith, (Lord ELDON,) Jac. 471, 473. Equity does not
interfere to enforce penal laws unless the act is in itself a nuisance.
Mayor, etc., of Hudson v. Thorne, 7 Paige, 261; Davis v. American Soc.,
etc., **291 75 N. Y. 362, 368;
Kramer v. Police Dept. N. Y., 21 Jones & S. 492; 1 Bish. Crim. Proc.
§§ 1412-1417; 1 Spence, Eq. Jur. * 689-* 690. With the principle that 'the settled course of judicial
proceedings' is 'due process of law,' in view, (Murray's Lessee v.
Improvement Co., 18 How. 280; Walker v. Sauvinet, 92 U. S. 90, 93,) the
fourteenth amendment was adopted. On
principle this secures jury trial in the states in all cases in which, at
the time of its adoption, such trial was deemed a fundamental right. The Kansas constitution (section 5, Bill of Rights) provides
that the right of trial by jury shall be inviolate. Section 10.
In all prosecutions the accused shall have a speedy public trial by
jury. No act is valid which
conflicts with these provisions. Railway v. Railway, 31 Kan. 661, 3 Pac.
Rep. 284. A jury trial is
preserved in that state in all cases in which it existed prior to the
adoption of the constitution. In
re Rolf, 30 Kan. 762, 763, 1 Pac. Rep. 523; Kimball v. Connor, 3 Kan. 415,
432; Ross v. Commissioners, 16 Kan. 418. A prosecution for a matter made
penal by the laws of the state, as for selling liquor without a license,
is 'unquestionably a criminal action.'
Neitzel v. City of Concordia, 14 Kan. 446, 448.
In re Rolf, 30 Kan. 760, 761, 1 Pac. Rep. 523.
And upon the point that section 14 dispenses with proof of the
single fact which constitutes the crime, thereby taking a way the
presumption of innocence, not only is the section unconstitutional, but
all the other parts of the act equally so.
act deprives the appellees of their liberty and property without due
process of law, and abridges the privileges and immunities of the
appellees as citizens of the United States within the meaning of the
fourteenth amendment. At the time of the passage of this act it was one of
the fundamental rights of appellees, as citizens, to manufacture beer, and
to use their brewery for that purpose.
The state could only restrain this right by virtue of the police
power, which could only be exercised to the extent reasonable and
necessary for the preservation and promotion of the morals and health of
the people of Kansas. This
act goes further than this. It destroys their property for the public use
other than for police purposes, and without compensation.
This is depriving them of their property without due process of
law. This provision of the
constitution is to be liberally construed, (Boyd v. U. S. 116 U. S. 635, 6
Sup. Ct. Rep. 524,) that there may be no arbitrary deprivation of life or
liberty, or arbitrary spoliation of property. Barbier v. Connolly, 113 U. S. 31, 5 Sup. Ct. Rep. 357; Yick
Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. Rep. 1064. This question has never been decided by this court.
Beer Co. v. Massachusetts, 97 U. S. 25, arose under the right of
the state to impair the obligation of the contract entered into between
the state and the company by its charter.
In Bartemeyer v. Iowa, 18 Wall. 129, the court refused to decide
the question on a moot case. In the License Cases, 5 How. 589, the sole question under
consideration was the violation of the commerce clause. The Slaughter-House
Cases, 16 Wall. 36, did not touch upon this question, as they decided that
the police power could regulate slaughter‑houses, even to the extent
of granting a monopoly, and demonstrated that all persons could still
pursue their business of slaughtering subject to these regulations.
The cases of Union Co. v. Landing Co., 111 U. S. 746, 4 Sup. Ct.
Rep. 652; Fertilizing Co. v. Hyde Park, 97 U. S. 659; and Stone v.
Mississippi, 101 U. S. 814 -- all arose and were decided under the
contract clause of the constitution.
police power cannot go beyond the limit of what is necessary and
reasonable for guarding against the evil which injures or threatens the
public welfare in the given case, and the legislature, under the guise of
that power, cannot strike down innocent occupations and destroy private
property, the destruction of which is not reasonably necessary to
accomplish the needed reform; and this, too, although the legislature is
the judge in each case of the extent to which the evil is to be regulated
or prohibited. Where the
occupation is in itself immoral, there can be no question as to the right
of the legislature.
**292 2 Kent, Comm. 340. Nor
is it denied that every one holds his property subject to the proper
exercise of the police power. Dill.
Mun. Corp. 136; Tied. Lim. Police Power, §§ 122, 122a; Com. v.
Tewksbury, 11 Metc. 55. Nor that the legislature can destroy vested rights in the
proper excercise of this power. Coates v. Mayor of New York, 7 Cow. 585.
But the unqualified statement that when the legislature has
exercised its right of judging, by the enactment of a prohibition, all
other departments of the government are bound by the decision, which no
court has a right to review, (Bish. St. Cr. § 995,) cannot be true.
The legislative power cannot authorize manifest injustice by
positive enactment, or take away security for personal liberty or private
property, for the protection whereof government was established.
Calder v. Bull, 3 Dall. 386. The
state cannot deprive the citizen of the lawful use of his property if it
does not injuriously effect others. Lake
View v. Cemetery Co., 70 Ill. 191. The
state cannot enact laws, not necessary to the preservation of the health
and safety of the community, that will be oppressive and burdensome to the
citizen. Railway Co. v. City
of Jacksonville, 67 Ill. 37. The
constitutional guaranty of life, liberty, and pursuit of happiness is not
limited by the temporary caprice of a present majority, and can be limited
only by the absolute necessities of the public. Intoxicating Liquor Cases,
(BREWER, J.,) 25 Kan. 765; Tenement-House Cigar Case, 98 N. Y. 98; Cooley,
Const. Lim. (5th Ed.) 110, 445, 446.
No proposition is more firmly established than that the citizen has
the right to adopt and follow such lawful and industrial pursuit, not
injurious to the community, as he may see fit.
People v. Marx, 99 N. Y. 377, 386, 2 N. E. Rep. 29.
The mere existence of a brewery in operation, or of beer therein in
vats, or packages not intended for consumption in the state is not in any
way detrimental to the safety, health, or morals of the people of Kansas;
nor can it be said that there is anything immoral in the business of
brewing, or in beer itself, as in gambling or lotteries.
Stone v. Mississippi, 101 U. S. 814.
is no question that this enactment does in the sense of the law deprive
appellees of their property. Pumpelly
v. Green Bay Co., 13 Wall. 177; Munn v. Illinois, 94 U. S. 141.
is a fundamental principle that where a nuisance is to be abated, the
abatement must be limited by its necessities, and no wanton injury must be
committed. The remedy is to
stop the use to which the building is put, not to tear down or destroy the
structure itself. Babcock v.
City of Buffalo, 56 N. Y. 268, affirming 1 Sheld. 317; Bridge Co. v.
Paige, 83 N. Y. 188-190; Wood, Nuis. § 738.
The nuisance here is sale within the state.
To that extent alone can the legislature authorize the nuisance to
be abated or the property destroyed.
act itself does not contain the limitation put upon it in argument, that
the manufacture is only prohibited for sale, barter, or gift within the
state, and as a vital part of the prohibition is unconstitutional, the
whole is unconstitutional. Wynehamer
v. People, 13 N. Y. 378.
if the legislature has the power claimed for it, then the application of
the act to the brewery owned, possessed, and used by appellees at the time
of the passage of the act violates the fourteenth amendment, because it
deprives them of their property without 'due process of law.' Wynehamer v. People, 13 N. Y. 378. The legislature can only take private property by awarding
compensation. 1 Bl. Comm.
139. For a definition of 'due process of law,' see Wynehamer v. People, 13
N. Y. 378, 392, citing Norman v. Heist, 5 Watts & S. 193; Taylor v.
Porter, 4 Hill, 145; Hoke v. Henderson, 4 Dev. 15; 2 Kent, Comm. 13. All that is beneficial in property is the use. Pumpelly v.
Green Bay Co., 13 Wall. 177; Munn v. Illinois, 94 U. S. 141, citing 1 Bl.
Comm. 138; 2 Kent, Comm. 320. When
a law annihilates the value of property, and strips it of the attributes
by which it is alone distinguished as property, the owner is deprived of
it. Wynehamer v. People, 13
N. Y. 398. In **293 order to
make a taking of property 'due process of law' there must be adequate
compensation. Sinnickson v.
Johnson, 17 N. J. Law, 129; Gardner v. Newburgh, 2 Johns. Ch. 162;
Pumpelly v. Green Bay Co., 13 Wall. 166.
See on the whole subject the opinion of Judge BREWER, State v.
Walruff, 26 Fed. Rep. 178. The
criticisms of this opinion by Judge MARTIN in the present case are more
specious than sound.
Opinion of J. MARTIN, as reported in
the S. Ct. Reporter.
This is an action under the clause of section 13 of the prohibitory
liquor law, which was added by the legislature of 1885; the relator,
averring that the defendants have no permit from the probate judge of this
county, either to manufacture or sell intoxicating liquors, and that they
are doing both at their brewery, near the city of Atchison, asks that they
be enjoined from selling, and from manufacturing for sale, in the state of
Kansas, any malt, vinous, spirituous, fermented, or other intoxicating
liquors. The defendants have
filed an answer, containing a general denial, and also an averment to the
effect that the defendant's brewery, which is alleged to be of the value
of $60,000, was erected prior to the adoption of the prohibitory amendment
to the constitution of this state, and the passage of the prohibitory law,
for the purpose of manufacturing beer, and that it is adapted to no other
purpose, and that if the defendants are prevented from the operation
thereof for the purpose for which it was erected, the same will be wholly
lost to the defendants, and that said prohibitory act is unconstitutional
and void. The defendants have
also presented a petition and bond for the removal of the case to the
circuit court of the United States for the District of Kansas for trial.
In the petition for removal it is alleged that said prohibitory act
is in contravention of article 4, and section 1 of article 14, of the
amendments to the constitution of the United States.
'The record presents for adjudication certain federal questions which will
require the removal of the cause, unless the propositions involved have
been settled by decisions of the supreme court of the United States. But, as stated by the present learned judge for the Eighth
circuit, 'when a proposition has once been decided by the supreme court,
it can no longer be said that in it there still remains a federal
question.' State v. Bradley, 26 Fed. Rep. 289.
It is a part of the constitutional history of this country that the
10 amendments to the federal constitution, numbered 1 to 10, inclusive,
which were submitted to the state for ratification by the first congress
at its first session, were intended as limitations upon the powers of the
federal government, and not as restrictions upon the authority of the
states; and as a result no state statute can be held null and void by any
court, state or federal, on account of a supposed conflict with these
amendments, or any of them. Article
4, which is quoted in the petition for removal, and which relates to
unreasonable searches and seizures, may therefore be dismissed from our
consideration. Barron v.
Mayor, etc., 7 Pet. 243; Livingston's Lessee v. Moore, Id. 469, 551, 552;
Fox v. State of Ohio, 5 How. 410, 434, 435; Smith v. State of Maryland, 18
How. 71, 76; Twitchell v. Com., 7 Wall. 321, 325, 326; U. S. v. Cruikshank,
92 U. S. 542, 552.
real point suggested by the petition for removal is whether, in view of
the decisions of the supreme court of the United States, it is yet an open
question that the prohibitory liquor law of this state, in so far as it
restricts the right to sell and manufacture beer, is or is not in
contravention of section 1 of article 14 of said amendment, which reads as
"Section 1. All
persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the state
wherein they reside. No state
shall make or enforce any law which shall abridge the privilege or
immunity of citizens of the United States, nor shall any state deprive any
person of life, liberty, or property without due process of law, nor deny
to any person within its jurisdiction the equal protection of its laws.'
own supreme court, in a case nearly like this one, has held that the act
is not in conflict with this section, Justice BREWER, (now of the federal
circuit bench,) dissenting. State
v. Mugler, 29 Kan. 252. The
United States circuit court for the Northern district of Georgia also
takes the same view as our supreme court in the case of a brewery
similarly affected by the recent local option law of Georgia.
Weil v. Calhoun, 25 Fed. Rep. 865.
In the case of State v. Walruff, 26 Fed. Rep. 178, Judge BREWER
adheres, however, to his dissenting opinion in the Mugler Case, and holds
the statute in question to be in conflict with the fourteenth amendment,
because no provision is made in the act for the payment of damages to
property and business injuriously affected by its operation; and this
decision has been followed by Judge LOVE, of the federal district court
for Iowa, in two cases. [Kessinger
v. Hinkhouse, Mahin v. Pfeiffer,] 27 Fed. Rep. 883, 892.
The decisions of the state courts of last resort, and of the
inferior federal courts, are not conclusive upon the interpretation of the
federal constitution. The
supreme court of the United States is, however, the final expositor and
arbiter of all disputed questions touching the scope and meaning of that
sacred instrument, and its decisions thereon are binding upon all courts,
both state and federal.
the doctrine of the Walruff Case supported by these decisions?
With the utmost deference to the opinion of Judge BREWER, we are
constrained to think not. The
authorities cited by him certainly do not justify his proposition, and
other cases not referred to are inconsistent with his views.
He treats the Walruff brewery as if taken by the state for public
use without just compensation. Yet this alone, if true, would not be a matter of federal
cognizance. By the fifth
amendment the federal government was inhibited from depriving any person
of life, liberty, or property without due process of
**277 law, and also from taking private property for public use
without just compensation? But,
as remarked by Justice MILLER in Davidson v. New Orleans, 96 U. S. 97,
105, in commenting on the clause of the fourteenth amendment forbidding
the state from depriving any person of his property without due process of
law, 'if private property is taken for public uses without just
compensation, it must be remembered that when the fourteenth amendment was
adopted, the provision on that subject in immediate juxtaposition in the
fifth amendment with the one we are construing was left out and this was
taken.' Prior to the adoption
of the fourteenth amendment, a man whose property was taken by any state
process for public use, without just compensation, could not on that
ground resort to the federal courts for redress. His remedy was in the state courts, and it remains so to this
day, that amendment being entirely silent upon the subject.
But the doctrine in the Walruff Case seems to assume that the
deprivation of property without due process of law is the same thing as
the taking of private property for public use without just compensation,
or that the former includes the latter. But the statesmen who framed the early amendments were at
least as wise and had as accurate an understanding of the import of the
words in a fundamental law as any who have succeeded them. They were not given to a waste of words, nor the useless and
perplexing repetition of the same proposition in different forms. They
recognized the fact that private property might be taken for public use
under regular process without just compensation, and also that a man might
be deprived of his property without due process of law, and yet obtain
compensation therefor to the full measure of its value; and the federal
government was inhibited from both of these forms of injustice, while the
states were left free to establish such rules on the subject as they
deemed proper. Since the
adoption of the fourteenth amendment, however, the fact that a person is
deprived of his property by a state, without due process of law,
constitutes a ground for the exercise of jurisdiction by the federal
courts. Referring to this subject in the case of Davidson v. New Orleans,
supra, Justice MILLER says: 'It
is not a little remarkable that, while this provision has been in the
constitution of the United States as a restraint upon the authority of the
federal government for nearly a century, and while during all that time
the manner in which the powers of that government have been exercised has
been watched with jealousy, and subjected to the most rigid criticism in
all its branches, this special limitation upon its powers has rarely been
invoked in the judicial forum or the more enlarged theater of public
discussion. But while it has
been a part of the constitution as a restraint upon the powers of the
states only a very few years, the docket of this court is crowded with
cases in which we are asked to hold that state courts and state
legislatures have deprived their own citizens of life, liberty, and
property without due process of law.
There is here abundant evidence that there exists some strange
misconception of the scope of the provision as found in the fourteenth
amendment. In fact, it would
seem from the character of many of the cases before us, and the arguments
made in them, that the clause under consideration is looked upon as a
means of bringing to the test of the decision of this court the abstract
opinions of every unsuccessful litigant in a state court of justice of the
decision against him, and of the merits of the legislation on which such a
decision may be founded.'
the state nor the federal courts ever had any rightful power to avoid an
act of a state legislature, because by such court deemed impolitic or
unreasonable. It could only
be so avoided when in contravention of the constitution of the state, or
of the federal constitution, or some act of congress passed or treaty made
in pursuance of its authority. The
views of a court upon the merits or demerits of a statute have nothing to
do with its validity. In the
Walruff Case an effort appears to be made to blend and combine two
principles -- one embraced in the fourteenth amendment; and the other
entirely **278 outside of the constitution -- and then to show that the
Kansas liquor law is in conflict with the combined principle.
The syllabus of the case shows this.
It reads as follows: 'The
prohibitory amendment to the constitution of Kansas, and the laws passed
in pursuance thereof, condemn and confiscate to public use all property
then in use for the manufacture of the prohibited articles, and, having
failed to provide compensation therefore, are in violation of the
fourteenth amendment to the constitution of the United States, as taking
property without due process of law.'
Waiving, however, for the present, this unwarranted blending of
constitutional and extra‑ constitutional principles, it is safe to
assert that no decision of the supreme court of the United States either
establishes or tends to establish the doctrine that a liquor law such as
ours operates upon the owners of distilleries or breweries as a taking of
private property for public use, or as a deprivation of property without a
due process of law.
scope of the first section of the fourteenth amendment was first fully
discussed by that tribunal in the Slaughter-House Cases, 16 Wall. 36:
'The legislature of Louisiana, on March 8, 1869, passed an act
conferring upon the defendant company, a corporation created by the act,
the exclusive right, for twenty-five years, to have and maintain
slaughter-houses, landings for cattle, and yards for confining cattle
intended for slaughter, within the parishes of Orleans, Jefferson, and St.
Bernard, a territory comprising an area of 1,154 square miles, including
the city of New Orleans, and prohibiting all other persons from keeping or
having slaughter-houses, landings for cattle, and yards for confining
cattle intended for slaughter, within said limits, and requiring that all
cattle and other animals to be slaughtered for food in that district
should be brought to the slaughter-houses and works of said company, to be
slaughtered upon the payment of a fee and certain perquisites to the
company for such service. The
plaintiffs, an association of butchers, averred that, prior to the passage
of the act in question, they were engaged in the business of procuring and
bringing to said parishes, animals suitable for human food, and in
preparing the same for market; that in the prosecution of this business
they had provided in these parishes suitable establishments for landing,
sheltering, keeping, and slaughtering cattle, and the sale of meat; that
with their association about 400 persons were connected, and that in said
parishes almost 1,000 persons were thus engaged in procuring, preparing,
and selling animal food. It
is evident that the establishment of the plaintiffs would be rendered
almost valueless, and their business substantially broken up, by the
operation of the monopoly created by the legislature.
And yet the supreme court held that this legislation was not in
contravention of any of the provisions of the fourteenth amendment, but
that it was a valid exercise of the police power of the state of
Louisiana, with which the federal courts could not rightfully interfere.'
In the entire official report of the case, embracing nearly one
hundred cases, and including the brief of the unsuccessful counsel, the
opinion of the court, and the views of three dissenting justices, there is
not a word of reference to the taking of private property for public use
without first compensation. The
learned justice did not seem to regard this as one of the evils that the
fourteenth amendment was designed to remedy.
To the argument that the butchers were deprived of their property
without due process of law, Justice MILLER, delivering the opinion of the
court, answered as follows: 'It
is sufficient to say that, under no construction of that provision that we
have ever seen, or that we deemed admissible, can the restraint imposed by
the state of Louisiana upon the exercise of their trade by the butchers of
New Orleans be held to be a deprivation of property within the meaning of
the case of Bartemeyer v. Iowa, 18 Wall. 129-133, Justice MILLER, again
delivering the opinion of the court, says: 'The weight of authority is
overwhelming that no such immunity has heretofore existed as would prevent **279 state legislatures from regulating, and even prohibiting, the
traffic in intoxicating drinks, with a solitary exception.
That exception is the case of a law operating so rigidly on
property in existence at the time of its passage, absolutely prohibiting
its sale, as to amount to depriving the owner of his property.
A single case (Wynehamer v. People, 13 N. Y. 485) has held that as
to such property the statute would be void for that reason. But no case
has held that such a law was void as violating the privileges or
immunities of citizens of a state or of the United States.
If, however, such a proposition is seriously urged, we think that
the right to sell intoxicating liquors, so far as such right exists, is
not one of the rights growing out of citizenship of the United States, and
in this regard the case falls within the principles laid down by the court
in the Slaughter-House Cases.' The 'solitary exception' from the principle is then referred
to as follows: 'But if it
were true, and if it were fairly presented to us, that the defendant was
the owner of the glass of intoxicating liquor which he sold to Hickey at
the time that the state of Iowa first imposed an absolute prohibition on
the sale of such liquor, then we can see that two very grave questions
would arise, namely: First, whether this would be a statute depriving him
of his property without due process of law; and, secondly, whether it
would be so far a violation of the fourteenth amendment in that regard as
would call for judicial action by this court.'
And Justice FIELD, concurring specially, says:
'I have no doubt of the power of the state to regulate the sale of
intoxicating liquors, when such regulation does not amount to the
destruction of the right of property in them.
The right of property in an article involves the power to sell and
dispose of such article, as well as to use and enjoy it.
Any act which declares that the owner shall neither sell nor
dispose of it, nor use and enjoy it, confiscates it, depriving him of his
property without due process of law.'
the Walruff Case, Judge BREWER lays great stress upon those passages
relating to the doctrine in the New York case.
But what relevancy they had to the Walruff Case in difficult to
imagine. It was not claimed
that Walruff had any beer that was manufactured prior to the adoption of
the prohibitory amendment and the passage of the prohibitory law of 1881;
and if such a fact had been made to appear, still neither said amendment
nor the act of 1881 imposed an absolute prohibition upon the sale of such
beer, and not even the slightest restriction upon its use, except that the
owner shall not become drunk by imbibing it.
Although the tenth amendment to our state constitution, and the
legislation in pursuance thereof, are commonly called 'prohibitory,' yet
they are not so in strictness of speech, as fully stated by our supreme
court in the Mugler case. The
evident purpose of both is to diminish the evils of intemperance by
placing the manufacture and sale of intoxicating liquors under regulations
more strict than those formerly existing.
is said, however, that Walruff owned a brewery -- a building and its
appurtenances especially adapted to the manufacture of beer -- prior to
the adoption of said amendment. This
is a great remove from the 'solitary exception' mentioned by Justice
MILLER in the Iowa case -- a remove from the product in the manufactory.
But the title to such brewery is in no manner affected or
incumbered by the amendment and the statutes.
Neither the real estate nor the personal property is 'taken' by the
state for public use. The
state obtains no title, no easement, no license -- nothing.
And the owner is in nowise deprived of his property; he parts with
nothing. It is true that the
state restricts and regulates to some extent the use of such property, so
that, in the opinion of the legislature, it shall not be an instrument of
hurt and injury to the public. And
this brings us to the quotation by Judge BREWER from the opinion of
Justice FIELD in the Chicago Elevator Case, entitled 'Munn v. Illinois,'
94 U. S. 113, 141, as follows: 'All
that is beneficial in property arises from its use and the fruits of that
use; and whatever deprives a person of them deprives him of all that is
desirable or valuable in **280 the title and possession.
If the constitutional guaranty extends no further than to prevent a
deprivation of title and possession, and allows a deprivation of use, and
the fruits of that use, it does not merit the encomiums it has received.'
It must be remembered, however, that this is not the opinion of the court,
but only the view of one of the two dissenting justices.
The court, by Chief Justice WAITE, states as its opinion that, by
the powers inherent in every sovereignty, a government may regulate the
conduct of its citizens towards each other, and, when necessary for the
public good, the manner in which each shall use his own property. Accordingly, it was held that, notwithstanding the provisions
of the fourteenth amendment to the constitution of the United States, the
grain elevators built in Chicago by private enterprise, with private
capital, and owned by individuals prior to the adoption of the
constitution of 1870 by the people of Illinois, were so far subject to the
power of the state under that constitution that a subsequent legislature
might make rules and regulations for the government of elevators in their
dealings with their patrons, and might fix the value of the use of such
elevator property by establishing maximum rates for the storage, handling,
and transfer of grain. The case of Beer Co. v. Massachusetts, 97 U. S. 25, reaffirms
Bartemeyer v. Iowa, and upholds to the fullest extent the authority of the
states over the manufacture and sale of intoxicating liquors, subject to
the one exception specified in the Iowa case, which has been already fully
discussed. In this case,
however, the beer company relied upon certain chartered privileges in the
nature of a contract, rather than upon the fourteenth amendment; but the
court held that the legislature could not by any contract divest itself of
its police power, which was held to extend to the protection of the lives,
health, and property of her citizens, the maintenance of good order, and
the preservation of the public good.
See, further, as to the police powers of the state, Patterson v.
Kentucky, 97 U. S. 501, and authorities cited.
In Stone v. Mississippi, 101 U. S. 814, it appeared that in 1867
the legislature of Mississippi granted a charter to a lottery company for
twenty‑five years, in consideration of a stipulated sum in cash, and
the annual payment of a further sum, and a percentage of receipts for the
sale of tickets. A provision
of the constitution adopted in convention May 15, 1868, and ratified by
the people December 1, 1869, declares that 'the legislature shall never
authorize any lottery, nor shall the sale of lottery tickets be allowed,
nor shall any lottery heretofore authorized be permitted to be drawn, or
tickets therein to be sold.' And
he also held that the prohibition of such lotteries was not an
infringement of vested rights within the meaning of the constitution of
the United States, and that the legislature could not, by chartering a
lottery company, defeat the will of the people of a state authoritatively
expressed in relation to the continuance of such business in their midst.
The lottery company did not invoke any immunity by reason of the
fourteenth amendment, although it was officially promulgated long before
the ratification of the state constitution by the people of Mississippi.
It relied, as did the beer company in the preceding case, upon the
clause of the constitution of the United States declaring that no state
shall pass any law impairing the obligation of contracts.
And neither the aggrieved parties nor the court seem to have
discovered that the proceedings constituted a taking of private property
for public use without just compensation, nor a privation of property
without due process of law. In
Foster v. Kansas, 112 U. S. 201, 5 Sup. Sup. Ct. Rep. 8, (32 Kan. 765,)
the supreme court of the United States, in an opinion covering only a few
lines, holds our Kansas liquor law of 1881 to be valid, and not repugnant
to the constitution of the United States, on the authority of the Iowa and
Massachusetts cases before referred to.
And the amendment of 1885 to the act of 1881 did not render the
liquor law any more objectionable on any ground raised in this case or the
quotations have already been made from the opinion of the court
**281 in Davidson v. New Orleans, 96 U. S. 97, where an assessment of
certain real estate in New Orleans, for draining swamps of that city, was
resisted in the state courts on the ground that the proceeding deprived
the owner of his property without due process of law, in violation of the
fourteenth amendment. But it
was held that neither the corporate agency by which the work was done, the
excessive price which the statute allowed therefor, nor the relative
importance of the work to the value of the land assessed, nor the fact
that the assessment was made before the work was done, nor that it was
unequal as regards the benefits conferred, nor that the personal judgments
were rendered for the amounts assessed, were matters in which the state
authorities were controlled by the federal constitution, and the
assessment was therefore held valid as against any objections which could
be raised in the supreme court of the United States on a proceeding in
error from the supreme court of Louisiana.
Barbier v. Connolly, 113 U. S. 27, 5 Sup. Ct. Rep. 357, the court held
that the fourteenth amendment of the constitution does not impair the
police power of a state, and that an ordinance of the city of San
Francisco, prohibiting washing and ironing in public laundries and
wash‑houses, within defined territorial limits, from 10 o'clock at
night to 6 in the morning, was purely a police regulation within the
competency of a municipality possessed of the ordinary powers.
And in another case, under the same ordinance, (Soon Hing v.
Crowley, 113 U. S. 703, 5 Sup. Ct. Rep. 730,) it was held to be no valid
ground of constitutional objection that the ordinance permitted other and
different kinds of business to be done within the hours prohibited to
laundries and wash‑houses. This
ordinance was intended to and did bear heavily upon the Chinese, who owned
and kept laundries and wash‑houses in that city, and such
establishments must have been greatly depreciated in value by the
enforcement of this restrictive regulation; yet the supreme court decided
that the fourteenth amendment did not invest the federal courts with any
power to grant relief, Justice FIELD delivering the unanimous opinion of
the court in both cases.
the case of Railway Co. v. Humes, 115 U. S. 514, 6 Sup. Ct. Rep. 110, it
was held that a statute of Missouri requiring every railway corporation in
the state to erect and maintain fences and cattle-guards on the side of
its road, and, if it does not, making it liable to double the amount of
damages occasioned thereby and done by its agents, cars, or engines to
cattle or other animals on its road, does not deprive a railroad
corporation, against which such double damages are recovered, of its
property without due process of law, or deny it the equal protection of
the law in violation of the fourteenth amend ment.
Justice FIELD, in delivering the opinion of the court, refers with
approval to the remarks of Justice MILLER, in Davidson v. New Orleans,
respecting the general misconception of the scope of these provisions, and
says: 'If the laws enacted by
a state be within the legitimate sphere of legislative power, and their
enforcement be attended with the observance of those general rules which
our system of jurisprudence prescribes for the security of private rights,
the harshness, injustice, and oppressive character of such laws will not
invalidate them as affecting life, liberty, or property without due
process of law.' And again:
'It is hardly necessary to say that the hardship, impolicy, or
injustice of state laws is not necessarily an objection to their
constitutional validity; and that the remedy for evils of that character
is to be sought from state legislatures.
Our jurisdiction cannot be invoked unless some right claimed under
the constitution, laws, or treaty of the United States is invaded.
This court is not a harbor where refuge can be found from every act
of ill-advised and oppressive state legislation.'
review of the leading decisions of the supreme court of the United States,
giving a construction to section 1 of the fourteenth amendment, taken with
the admitted doctrine of that court prior to said amendment, that the
**282 manufacture and sale of intoxicating liquors within a state were
purely and exclusively matters of state regulation and control, is
sufficient to establish the following propositions, namely:
(1) The first clause
of that section relates to the privileges and immunities of citizens of
the United States, as distinguished from the privileges and immunities of
citizens of the state, and the right to manufacture and sell intoxicating
liquors is not one of those privileges and immunities which by that clause
the states are forbidden to abridge.
(2) The states have as complete power now, as ever, to so
regulate the use of property within their limits that it shall not be made
an instrument of injury to the public, but rather to promote the general
The regulation of the manufacture and sale of intoxicating liquors
within a state, being matters of public and internal government, are not
impaired by said section 1 of the fourteenth amendment; but the powers of
the state to deal with the subject are as full, complete, and exclusive
since as before the adoption of said amendment, provided that the owner of
property be not deprived of it without due process of law.
(4) The present law of
this state, prohibiting the defendants from manufacturing and selling beer
without a permit, and restricting the purposes for which it may be
manufactured and sold, is not a taking of the defendants' brewery by the
state for public use, nor a deprivation of the defendants of their
brewery, within any admissible construction of those respective clauses of
said section. (5) And these
propositions, having been settled by repeated decisions of the supreme
court of the United States, there is no longer a federal question which
should be certified by a state court to an inferior federal court for
cases cited in the opinion in the Walruff Case, other than those already
referred to, appear to be entirely irrelevant, unless it be in the case in
18 How. 272, which discusses the meaning of the phrase 'due process of
law,' but it is not inconsistent with any position taken in this opinion.
Pumpelly v. Green Bay Co., 13 Wall. 166, is cited as a 'leading case.'
The action was commenced before the adoption of the fourteenth
amendment, and it involved the construction of that provision of the
constitution of the state of Wisconsin which declares that 'the property
of no person shall be taken for public use without just compensation
therefor.' The plaintiff's
land to the extent of 640 acres was overflowed by reason of a dam erected
by the defendant company, and had been substantially submerged before the
action was commenced, and it was held that this was such a taking of the
plaintiff's land as required compensation to be made -- a principle which
would certainly be law in Kansas, the very principle of our mill-dam act.
But here the defendant corporation obtained a valuable easement
upon the land of the plaintiff, who was almost wholly deprived of its
actual possession and use. The
Illinois, New Jersey, and New York cases referred to in the opinion also
treat of the right of eminent domain and the qualifications of that right,
but they are no nearer in point than the case in 13 Wall.
The doctrine of the Walruff Case is that, by force of the
fourteenth amendment, a state cannot alter its laws and institute what it
deems necessary reforms without first making compensation to those who
would suffer a consequential loss by the change.
the beginning of the civil war, the business of the distiller was as free
from interference and taxation by the general government as any other
industry or manufacture. In
order to raise revenue for the prosecution of the war, however, distilled
spirits were taxed to several times their first cost, and distilleries
were placed under the strictest government surveillance; and although
during late years the tax has in part abated, yet the absolute government
control still continues. Under
the operation of the internal revenue laws, hundreds of the owners of the
smaller distilleries were compelled to close them, or flee with them to
the mountains and become 'moonshiners,' and their investments in them
became almost a total loss. But, although by the fifth amendment the federal government
has always been forbidden from taking
**283 private property for public use without just compensation, and
also from depriving any person of life, liberty, or property without due
process of law, yet we have never heard of the presentation of a claim by
a ruined distiller against the government, for the reparation of his loss,
and such a claim would certainly not be seriously entertained.
But why is not such a claim against the United States as good as a
like claim by the defendants upon this state?
May not the state safely go as far in the exercise of her police
power for the protection of the property, health, and morals of her
inhabitants as the United States may proceed, under her power of taxation,
to raise revenue to defray her extraordinary expenses? We will suppose the
case of a new state where, either because no apparent necessity existed,
or from inadvertence or neglect, no statute was enacted against the
keeping of gambling-houses, and while this state of affairs existed many
such places were established, at a large outlay of money, and the
proprietors were carrying on a lucrative business.
Must the state, as a condition precedent to the enforcement of
legislation against the evil, purchase and pay for the houses, or their
furniture and gambling devices, together with the good-will of their
business? And the same inquiry might be made as to houses of ill fame and
lotteries, under similar circumstances.
Think of the states being compelled to buy up gambling-houses,
brothels, and lotteries, and the good-will of such establishments, before
any statute for their suppression could be enforced! Judge LOVE, following
the authority and logic of the Walruff Case, holds that the protection of
the fourteenth amendment extends to dram-shops or saloons which were in
existence prior to the enactment of the Iowa prohibitory liquor law, and
that the state must buy them out in order to their suppession.
And the principle carried to its legitimate conclusion will also
embrace all the supposed cases hereinbefore named, and cover them with
a construction of the beneficent and liberal provisions of the first
section of the fourteenth amendment is utterly untenable and inadmissible.
The fourteenth is one of the three amendments growing out of the
civil war, having in the main a unity of purpose in three successive
steps: First, the
emancipation of an enslaved race; secondly, the clothing of that race with
national and state citizenship and full civil rights; and, thirdly, their
political enfranchisement as a guaranty against the invasion of their
newly-acquired rights. And,
as Justice MILLER says in the Slaughter-House Cases, in giving the
construction to any of these amendments, it is necessary to keep this main
purpose steadily in view, although their letter and spirit must apply to
all cases coming within their purview, whether the party concerned be of
African descent or not. Neither
the advocates nor the opponents of the fourteenth amendment, while it was
the subject of discussion in congress, before the state legislatures, and
by the people, ever placed any such construction upon such section 1, as
that set forth in the Walruff Case. If
its advocates had avowed a construction so degrading to the states, and so
subversive of their authority, it is doubtful if it would have been
ratified by a single member of the Union.
Happily, the supreme court of the United States has repeatedly
spoken in such terms as to give assurance against any fear that such an
interpretation of that section shall ever become the law of the land.
applications to remove the case to the United States circuit court for
trial will be denied.'
defendants, however, filed in said court a transcript of the record in the
case, and the same was docketed in said court as pending therein.
The state filed a verified plea in abatement, and to the
jurisdiction of the court, controverting the facts alleged in the petition
for the removal as the grounds of such removal.
To this plea the defendants filed an answer, (replication?) and,
upon the issue joined on the plea by such answer, the cause was submitted
to the court. By agreement,
the proofs of the parties, plaintiff and defendants, were
**284 made by affidavits, all objections being waived, and no question
being raised on either side as to the proper practice of taking proof on
such an issue. Upon the hearing of the plea in abatement, it appearing that
the answers to said pleas were not verified, it was agreed that each of
said pleas should be considered as denied, only in so far as the same were
denied in the affidavits filed for the defense in said case. It was also
admitted that no application for a permit to sell or manufacture liquor on
the premises described in the petition, the selling or manufacturing of
which was sought to be enjoined, had ever been made by either of the
defendants under the law. It
was also agreed that, upon the evidence offered upon said hearing, the
said judge should consider, adjudge, and issue such order of injunction,
if any, as ought to be issued in said case, provided the said case was
retained in that court. The
court overruled the plea in abatement, holding the case for hearing in the
circuit court. After wards the complainant and appellant filed an amended
and recast bill, alleging and praying as in the original petition in the
state court, but framed according to the equity pleadings.
This amended and recast bill contains, in addition to the
allegations in the original bill, substantially these three following
propositions: First, that all
rights, interests, estate, and title in and to said premises, vested in
said defendants, were acquired with a full knowledge that all places where
intoxicating liquors are sold in violation of law, were by the statutes of
said state of Kansas declared to be a common nuisance, and directed to be
shut up and abated as public nuisances; second, that none of the malt,
vinous, spirituous, fermented, or other intoxicating liquors now in
possession of said defendants on said premises, the barter, sale, or gift
of which in violation of the laws of the state of Kansas is sought to be
enjoined in this action, were in existence prior to the adoption of said
constitutional amendment, and the enactment of said acts by the
legislature of the state of Kansas; third, that at the time said
defendants erected the buildings and the appurtenances on the premises
described in plaintiff's petition, and at the time said defendants
acquired their present rights, interests, estate, and title to said
premises, the sale, barter, and giving away of spirituous, vinous,
fermented, or other intoxicating liquors, without first taking out and
having a license or permit, was prohibited by the laws of said state,
punished by fine and imprisonment, and all places where such liquors were
sold or given away in violation of the law were declared to be common
nuisances, and directed to be shut up and abated as such.
These propositions were also contained in the plea in abatement.
In addition to these allegations, and as part of the bill, there
were annexed full copies of the laws of the state of Kansas, which
authorize these proceedings, and also the law upon which the first and
third of the foregoing propositions are based.
defendants filed their answer to said amended and recast bill, alleging
that, at the time they purchased and erected the buildings and premises
described in the bill, the laws of the state of Kansas permitted the
manufacture of beer and intoxicating liquors without any restrictions.
That said buildings and premises were erected for that especial
purpose; and that said property was useless for any other purpose than for
that for which they were constructed, to-wit, the manufacture of beer and
other intoxicating liquors, and if enjoined from prosecuting that
particular business, they would suffer a total loss of the value of the
buildings; that the law under which this prosecution was instituted was
void and unconstitutional, and the provisions thereof were in violation of
and in contravention to the provisions of article 4, and section 1 of
article 14, of the amendments to the constitution of the United States.
Thursday, February 10, 1887, at the November term, 1886, this cause being
submitted on bill and answer, a final decree was made and pronounced in
the cause, wherein it was, in substance, adjudged and decreed that the
complainant and appellant, the state of Kansas, on the relation of J. F.
Tufts, assistant attorney general of the state of Kansas for Atchison
county, Kansas, **285 was not
entitled to the relief prayed for, and dismissing said bill at the cost of
said complainant and appellant. The
complainant then brought this appeal to this court.