State v. Durein

• Citation: 80 P. 987,70 Kan. 13
• Parties: THE STATE OF KANSAS v. FRITZ DUREIN
• Decision Date: 06 May 1905
• Court: Kansas Supreme Court

80 P. 987

70 Kan. 13

THE STATE OF KANSAS v. FRITZ DUREIN

Supreme Court of Kansas

May 6, 1905

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. INTOXICATING LIQUORS -- Legislature May Absolutely Prohibit Manufacture or Sale. Whenever, in its judgment it is necessary for the protection of the health, morals, peace and safety of the people the legislature may prohibit the manufacture and sale of intoxicating liquors in this state for medical, scientific and mechanical purposes; and in the interest of the public welfare it may impose any conditions upon the conduct of those industries short of prohibition which it may deem proper.

2. INTOXICATING LIQUORS -- Right to Sell Not a Privilege or Immunity of Citizenship. The right to sell intoxicating liquors is not one of the privileges or immunities attaching to citizenship in the United States.

3. INTOXICATING LIQUORS -- State Constitution Affects Power of Legislature to Tolerate, Not to Restrain, Liquor Traffic. The amendment to the state constitution prohibiting the manufacture and sale of intoxicating liquors except for medical, scientific and mechanical purposes affected the power of the legislature to tolerate only, and did not abridge its power further to restrain or prohibit, the liquor traffic.

4. PROBATE JUDGE -- Discretion over Permits to Sell Liquors is Judicial. The discretion vested by the statutes of this state in the probate judge over the subject of granting and refusing permits to sell intoxicating liquors is not an option to act according to prejudice or caprice, but it is a judicial discretion, to be exercised only with reference to the facts and circumstances of each case, after a full hearing.

5. PROBATE JUDGE -- Statute Authorizing Appeal and a Proceeding in Error, if Permit be Refused, is Valid. The provisions of the statute of this state authorizing an appeal and a proceeding in error from the action of the probate judge in refusing to grant permits to sell intoxicating liquors are valid, and afford ample remedies to those who wrongfully may be denied such permits.

BURCH, J. All the Justices concurring.

OPINION OPINION ON REHEARING.

BURCH, J.:

Fritz Durein was convicted of selling intoxicating liquors without a permit, and appeals to this court. At a former hearing the conclusion of the court upon one of the questions involved was expressed in the following syllabus:

"The statutes of this state regulating the sale of intoxicating liquors are not violative of the fourteenth amendment to the constitution of the United States because of the discretion vested in the probate judges of the respective counties over the subject of granting permits to sell such liquors for medical, mechanical and scientific purposes." (Ante, p. 1.)

On account of the importance of this subject appellant's petition for a rehearing was granted, and he has again been heard, both by brief and oral argument.

The precise character of the statutes in question cannot be understood from an abridgment, and they are, therefore, reproduced here:

"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, and punished as hereinafter provided; provided, however, that such liquors may be sold for medical, scientific and mechanical purposes, as provided in this act." (Laws 1881, ch. 128, § 1; Gen. Stat. 190 1, § 2451.)

"It shall be unlawful for any person or persons to sell or barter for medical, scientific or mechanical purposes, any malt, vinous, spirituous, fermented or other intoxicating liquors, without first having procured a druggist's permit therefor from the probate judge of the county wherein such druggist may be doing business at the time; and such probate judge is hereby authorized, in his discretion, to grant a druggist permit for the period of one year to any person of good moral character who is a registered pharmacist under the law of this state, and lawfully and in good faith engaged in the business of a druggist in his county, and who in his judgment can be entrusted with the responsibility of selling said liquors for the purposes aforesaid, in the manner hereinafter provided; and said judge may at any time in his discretion revoke such permit. In order to obtain a druggist permit under this act, the applicant shall file in the office of the probate judge of the county wherein he is doing business, not less than thirty days prior to the hearing thereof, a petition signed by the applicant and twenty-five reputable freeholders having the qualifications of electors, and twenty-five reputable women over twenty-one years of age, of the township, city of third class, or ward of any other city wherein such business is located, setting forth: First, the city or township and particular place therein where such business is located, and that the applicant is a person of good moral character, and does not use intoxicating liquors as a beverage, and can be entrusted with the responsibility of selling the same; second, that said applicant is a pharmacist aforesaid, and is lawfully and in good faith engaged personally in the business of a druggist as the proprietor thereof at the place designated in the petition, and is well versed in his profession; third, that said applicant has, in his said business, exclusive of intoxicating liquors and fixtures, a stock of drugs, if in any city, of the value of at least one thousand dollars, and if elsewhere, of the value of at least five hundred dollars. Before any such petition shall be heard, or any permit issued to such applicant, he shall publish for at least thirty days next prior thereto a notice published in some newspaper in the township or city where such business is located, or if none be published therein, then in some paper of general circulation therein, stating the time and place set by such judge for the hearing of such petition. The applicant shall be required to prove the truthfulness of each and every statement contained in such petition, and the county attorney of such county shall, and any other citizen of the county may, appear and cross-examine the witnesses of the applicant, and may introduce evidence in rebuttal of the evidence offered by the applicant. If satisfied that the signatures to such petition were signed by such persons, and that such petitioners are citizens of such township, city, or ward, and that the statements in said petition are all true, the probate judge may in his discretion grant a permit to the applicant to sell intoxicating liquors for medical, mechanical and scientific purposes only; and such permit shall be recorded upon the journal of the probate court, and a certified copy thereof shall be posted in a conspicuous place in the store wherein said business is carried on before it shall be of any validity. Before such permit shall be of any validity such druggist shall file with the probate judge, to be approved by him, a good and sufficient bond to the state of Kansas in the sum of one thousand dollars, conditioned that such applicant and any one in his employ will neither use, sell, barter, nor give away any intoxicating liquors in violation of law; and on violation of the provisions of said bond the same shall thereby become forfeited, and the conviction of such pharmacist or any one in his employ shall be deemed prima facie evidence of such violation. Any applicant or any citizen feeling himself aggrieved by the decision of the probate judge may within ten days thereafter, upon filing a bond made payable to the state of Kansas in the sum of fifty dollars, to be approved by the probate judge, conditioned that he will prosecute the cause to its speedy determination and pay the costs occasioned by such appeal if the order of the probate judge shall be sustained, prosecute the cause upon appeal or error to the district court. The procedure in any case taken on error to the district court from the order of the probate judge, shall be as prescribed by article twenty-two of the code of civil procedure so far as applicable, and a case or bill of exceptions may be made, signed and certified by the probate judge as in said article provided. If the district court shall find that the probate judge has abused his discretion it shall have power to cause the probate judge to comply with its judgment, otherwise the order of the probate judge shall be by the district court affirmed. No appeal shall be allowed from the order of the district court. If the order of the probate judge shall be reversed, the costs shall be paid by the county." (Laws 1881, ch. 128, § 2, as amended by Laws 1885, ch. 149, § 1, as amended by Laws 1887, ch. 165, § 1; Gen. Stat. 1901, § 2452.)

These acts were passed subsequently to an amendment to the constitution, which reads as follows:

"The manufacture and sale of intoxicating liquors shall be forever prohibited in this state, except for medical, scientific and mechanical purposes." (Art. 15, § 10.)

The bill of rights contains the following provision:

"All political power is inherent in the people, and all free governments are founded on their authority, and are instituted for their equal protection and benefit. No special privileges or immunities shall ever be granted by the legislature, which may not be altered, revoked or repealed by the same body; and this power shall be exercised by no other tribunal or agency." (§ 2; Gen. Stat. 1901, § 84.)

The fourteenth amendment to the constitution of the United States, so far as applicable, is as follows:

"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...