State of Kansas v. Bradley
Decision Date | 31 December 1885 |
Citation | 26 F. 289 |
Parties | STATE OF KANSAS ex rel., etc., v. BRADLEY. |
Court | U.S. District Court — District of Kansas |
This is a proceeding commenced in the district court of Atchison county, under section 13, c. 128, Laws 1881, c 149, Laws 1885. The petition charged the defendant with keeping a saloon in violation of law, prayed an order declaring it a nuisance and abating it, and enjoining defendant from maintaining it. The defendant filed in the district court a petition and bond for removal. That court denied his application. 2 Kan.Law J. 246. Nevertheless defendant took a transcript of the record of that court and filed it in this. The plaintiff now moves to remand.
The question presented is whether the case is a removable one. No difference of citizenship exists, and the case is removable only on condition that in it exists what is commonly called a federal question. The latest definition given by the supreme court is in the case of Starin v. New York, decided November 2, 1885, and reported in 20 Reporter, (No. 23,) p. 707, S.C. 6 S.Ct. 28, and is as follows:
.' 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. More correctly it is said that there is no question, state or federal. This is the only fair starting point for consideration of a case like this. A state may absolutely prohibit the manufacture or sale of intoxicating liquors. No state supreme court has ever denied the power, and the supreme court of the United States, both before and after the adoption of the fourteenth amendment, has often and expressly affirmed it. License Cases, 5 How. 504; Bartemeyer v. Iowa, 18 Wall. 129; Beer Co. v. Massachusetts, 97 U.S. 25; Foster v. Kansas, 112 U.S. 205; S.C. 5 S.Ct. 97. This power, comprehensive and absolute, carries with it everything which is merely incidental. The means for executing the power go with it, and rest in the unquestioned discretion of the legislature. It were folly to say that the power exists, and in respect to it no federal question is involved, and at the same time to hold that the use of any of the ordinary means for executing such a power presents a question for the cognizance of federal courts. So, before any of the means and processes prescribed for the execution of this power can be held to present any question of federal cognizance, it must appear that such means or process discloses in and by itself a direct invasion of some right protected by the federal constitution.
Something was said in the argument about a conflict between this prohibitory law and the fourth, fifth, sixth, and seventh amendments to the federal constitution. It seems scarcely necessary at this late day to say that those amendments contain no limitations or restrictions on the powers of the state. Barron v. Mayor, etc., 7 Pet. 243; Livingston's Lessee v. Moore, 7 Pet. 469; Fox v. State, 5 How. 410; Smith v. State, 18 How. 71.
The real reliance of defendant is on the fourteenth amendment, which reads:
This contains three prohibitions on state action. The first has no application. So says the supreme court in Bartemeyer v. State, 18 Wall. 129, as follows:
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