State v. Weiss

• Decision Date: 11 February 1911
• Docket Number: 17,292
• Parties: THE STATE OF KANSAS, Appellee, v. MICHAEL WEISS, Appellant
• Court: Kansas Supreme Court

113 P. 388

84 Kan. 165

THE STATE OF KANSAS, Appellee, v. MICHAEL WEISS, Appellant

No. 17,292

Supreme Court of Kansas

February 11, 1911

Decided January, 1911.

Appeal from Sedgwick district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. INTOXICATING LIQUORS--Statute Prohibiting Sale for Any Purpose Held Valid. The constitutional amendment forever prohibiting the manufacture and sale of intoxicating liquors in this state, except for medical, scientific and mechanical purposes, is not a restriction upon the power of the legislature to prohibit by statute. In the absence of such amendment the legislature would possess such power, and its authority is not diminished thereby. Sections 1 and 2 of chapter 164 of the Laws of 1909 (Gen. Stat. 1909 §§ 4361, 4362), making it unlawful to sell intoxicating liquors for any purposes, upheld.

2. JURY AND JURORS--Agreement as to One Count, Disagreement as to Others--Reception of Verdict. Where the jury had been out some time, and reported an agreement on one count and a disagreement as to the others, and the court announced that it would receive such verdict, and did receive the same, held, not error.

D. M. Dale, S. B. Amidon, and Jean Madalene, for the appellant.

Fred S. Jackson, attorney-general, W. A. Ayres, county attorney, and George McGill, deputy county attorney, for the appellee.

OPINION

WEST, J.:

The appellant was charged in thirteen counts of an information with the sale of intoxicating liquor and in the fourteenth with maintaining a nuisance. Seven counts were eliminated by dismissal, leaving six for selling and one for maintaining a nuisance. After the jury had been out some time, but during the day on which the trial began, they reported an agreement on the fourteenth and a disagreement as to the other counts, and the court announced that it would receive such a verdict, to which the defendant objected. No finding was made by the court as to the disagreement, but the verdict stated that the jury did not agree on the fifth, sixth, seventh, eighth, ninth, and tenth counts. A motion for a new trial was denied, and sentence pronounced under the fourteenth count.

The appellant urges that the announcement by the court that such a verdict would be received amounted to a suggestion to the jury that a record thereof be made in the verdict, thus making possible a future prosecution. As no question of former jeopardy or acquittal arises here, it is not necessary to discuss what effect the verdict and discharge of the jury may have upon a further prosecution, should such be attempted, but see The State v. Allen, 59 Kan. 758, 54 P. 1060, and The State v. Klauer, 70 Kan. 384, 78 P. 802. There was no error in thus receiving the verdict.

The serious contention is that chapter 164 of the Laws of 1909 is void, because in conflict with the prohibitory amendment; that the sections of the act relating to sales are void for this reason, and, being inseparably connected with the nuisance section, their frailty attaches to that also. It is argued that the constitutional prohibition of the "manufacture and sale of intoxicating liquors . . . except for medical, scientific and mechanical purposes" (Const. art. 15, § 10), is equivalent to a mandate directing the legislature not to interfere with such manufacture and sale for the three excepted purposes. But we regard the amendment as a prohibition upon personal conduct, not upon legislative action, further than upon any attempt to legalize sales for beverage purposes. Without the amendment the legislature would have power to prohibit the manufacture and sale of intoxicating liquors (Haug v. Gillett, 14 Kan. 140; Kidd v. Pearson, 128 U.S. 1, 32 L.Ed. 346, 9 S.Ct. 6; Farmville v. Walker, 101 Va. 323, 43 S.E. 558; Hart v. State, 87 Miss. 171; City of New Orleans v. Smythe, 116 La. 685, 41 So. 33; Cook v. Marshall County, 119 Iowa 384, 93 N.W. 372), and certainly the amendment has not diminished such power unless, as counsel suggest, it means that "the manufacture and sale of intoxicating liquors shall be forever prohibited in this state, but that this restriction shall not apply to liquors used for medicinal, scientific and mechanical purposes." We are unable to construe the language of the amendment as a grant of power, for without it the legislature might have provided a license system or might have suppressed the traffic. Our attention is called to the language of Mr. Justice Brewer in the Prohibitory-Amendment Cases, 24 Kan. 700, that "license has limitations, restraints and penalties" (p. 723); but he was there giving the minority and not the controlling view of the court, and in the preceding paragraph the majority opinion was stated--that "the amendment has simply enlarged and increased these restrictions. It permits the sale for certain purposes. It thus, without abrogating penalties, simply puts additional limitations upon the sale. Before the amendment, and under the dram-shop act, the licensed dealer might sell to adults not habitual drunkards, upon secular days not devoted to special purposes. Under the amendment, such licensed dealer may still sell, but only for certain purposes. The right to sell remains. The conditions of license continue. The only change is in the limitations upon the purposes for which the sale may be made. My associates think this the sounder argument and the true construction." (p. 723.)

In In re Holcomb, Petitioner, &c., 21 Kan. 628, the question arose whether an act attaching territory as yet not divided into counties to an adjoining district, for judicial purposes, was within the general powers granted to the...