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3. Taxpayers may maintain suits against, the appropriation to the court-house be quasbed,

town officers to prevent or remedy misapplica- and for the restitution to the town treasury of tion of town funds.

the $675 already paid. 4. Although members of a town council On the 27th of March the appellants, in their

are not liable for the exercise of their discre- official capacity as town council, called in and tion in voting upoo measures before them, yet destroyed the $325 warrant, where they vote an appropriation for their own benefit, which is paid, the transaction is a conver- lants were all re-elected.

Al the town elect on beld April 3 the appelsion of trust funds for which each of them, as well as the mayor who orders, and the treasurer

Appellants then filed a motion to dismiss so who makes, the payment, will be liable; and the much of the complaint as related to the $325 subsequent re-election of the same parties to of- warrant, on the ground that the injunctive refice will not affect their liability.

lief bad been extinguished by its destruction,

which motion was overruled. They then (February 15, 1890.)'

moved to strike from the complaint all that

part wbich related to the $675, which motion PPEAL by defendants from a judgment of was also overruled. They then filed an answer cery in favor of plaintills in an action to annul struction of the warrant was virtually the rean alleged illegal appropriation of public mon- scinding of the resolution of February 3, espe ey, and to compel a return into the public cially to the extent of the $325 warrant, that treasury of whatever had been paid under such the act diverting the $675 from the public treasappropriation. Affirmed.

ury was witbin the legislative discretion of the This action was brought by taxpayers of the council and that defendants were not liable for Town of Russellville against the mayor, alder- their action in regard to that matter; tbat after men and treasurer of said town.

The appropriation bad been made and the money The allermen, among others, bad, in consid- paid, the matter had been submitted to the eration that the people would change the coun- qualified electors of the town, and the action ty seat of Polk County from Dover to Russell of the board approved by a large majority, and ville, exccured an approved bond for the use of appellauts all re-elected to office, anii that this the county to build a court-house at Russell. estopped appellees from bringing suit. ville and donate the bouse and ground to the The answer concluded with a demurrer upon county. During the course of construction of the following, among other, grounds: wani of the court-house appellants, in their capacity as proper parties plaintiff. The court had no ju. towo council of said town, on February 3, 1888, risdiction of the subject in so far as it related passed a resolution appropriating $1,000 to as to the $675. sist in the completion of the court-house. Two The court overruled the demurrer and after warrants were drawn against this appropria- hearing entered a decree in favor of plaintiffs for tion, one for $875 and the other for $325, the the recovery of the $675, en joining defendants former being immediately paid.

from attempting to renew the warrant for $325, On February 17 appellees filed a bill against and from making any provision for the pay. appellants in chancery, alleging that they were ment of the money mentioned in the resolution citizens and taxpayers of said town and pray- of February 3, 1848. From that decree deing for a temporary injunction restraining the fendants took this appeal. collection and payment of the $325 warrant, Messrs. Wilson & Granger and G. W. and that finally it be perpetually enjoined, that. Shinn, for appellants:

beld void; otherwise the court will enjoin or relieve Remedy against illegal acts of town authorities. against the expenditure which is unlawful. Robberts v. New York, 5 Abb. Pr. 41; Howes v. Racine,

Assessments for local improvements by munici. 21 Wis. 514.

pal corporations generally made a lien upon the One or more taxpayers, without showing any lands declared to be benefited thereby; each sepaother injury than that which they will suffer in

rate land owner had some kind of legal remedy, common with other property holders of the munici- either by action for damages against the officer enpality, may file a bill to restrain the allowance and forcing the unlawful collection, or by writ of cerpayment of an illegal claim, or the collection of the tiorari to review the assessment itself. But such tax for unauthorized objects, such as, for example, remedy is inadequate when compared with the to pay a fraudulent or collusive judgment. Barr comprehensive and complete relief furnished by v. Deniston, 19 N. H. 170, 180; Merrill v. Plainfield, the single decree in equity. Ireland v. Rochester, 45 N. H. 12; Douglass v. Placerville, 18 Cal. 643; 51 Barb. 415, 435: Scofield v. Lansivg, 17 Mich. 437; Drake v. Phillips, 40 III. 388.

Lafayette v. Fowler, 34 Ind. 140; Kennedy v. Troy,

14 Hun, 308, 312; Clark v. Dunkirk, 12 Hun, 181, 187; But, on the other hand, it has been decided in New York that resident citizens or taxpayers of a

1 Pom. Eq. Jur. 276. municip3l corporation cannot, as such, merely, either on their own behalf or on behalf of them

Injunction as a remedy. selves and all others baving a like interest, main. An injunction will not be granted, in general, to tain a suit to restrain or avoid corporate acts al restrain persons from acting as public officers. leged to be illegal. This doctrine, left open in The legal remedy is, in general, adequate to test Ketchum v. Buffalo, 14 N. Y. 356, and Guilford v. the right to a public office. Campbell v. Taggart, Chenango Co. 13 N. Y. 143, was first definitely estab. 10 Phila. 443; Jones v. Gran ville, 77 N. C. 280; Sneed lished in Doolittle v. Broome ('0. 18 N. Y. 155, dis- v. Bullock, 77 N. C. 28:2; Stone v. Wetmore, 42 Ga. approving, on this point, Adriance v. New York, 1 601; Sanders v. Metcalf, 1 Tenn. Ch. 419; 3 Pom. Eq. Barb. 19; Brower v. New York, 3 Barb. 254; Christo- Jur. 376. pher v. New York, 13 Barb. 567; Milbau v. Sharp, 15 Injunction will always be granted, if necessary, Barb. 143, 244, and De Baun v. New York, 16 Barb. to protect, aid or enforce any equitable estate, in382

terest or primary right, or to secure and render 42.

The claim to have the $675 refunded to the Tuck v. Waldron, 31 Ark. 462; Buell v. State, treasury of the town was a cause of action of 45 Ark. 337; Ottava v. Carey, 108 U. $. 110 21 a purely legal character, for which there was a L. ed. 669), and authorities there ciled; ('itizens full and adequate remedy at law, and therefore Sav. d Loan A880. v. Topeka, 87 U.S. 20 Wall. a court of chancery bad no jurisdiction. 655 (22 L. ed. 455); Ark Const. art. 12, $ 5; 2 Story, Eq. Jur. 156.

Halbut v. Forrest City, 34 Ark. 246; Jackson. A mandatory injunction will not be granted port v. Watson, 33 Ark. 704. where the thing complained of is accomplished, When a court of chancery acquires jurisdicand there is a remedy at law, although con- tion for one, it does for all, purposes. pected with the cause for injunction,

Conger v. Cotton, 37 Ark. 287; Bently v. Dil Rogers Locomotive & Mach. Works v. Erie R. Inrd, 6 Ark. 85. Co. 20 N. J. Eq. 379; Baxter v. Chicago Board Jurisdiction always depends on the state of of Trade, 63 III. 146.

things existing at the time the action is brought. Nor will equity, because it has jurisdiction Extes v. Martin, 34 Ark. 410; Sule v. McLean, of one cause of action, retain the case to decide 29 Ark. 612; Price v. State Bank, 14 Ark, 50. one purely legal.

The remedy for the recovery of the $675, Oakrilie Co. v. Double-Pointed Tack Co. 7 standing alone, is purely of equitable jurisdicCent. Rep. 720, 105 N. Y. 658; Charman v. Lee, tion. 11 West. Rep. 650, 45 Ohio St. 356; Pom. Eq. Ark. Const. art. 16, § 13; Mansf. Dig. SS 929, Jur. 178; Lippincott v. Barton, 7 Cent. Rep. 3731; Taylor v. Pine Blutf, 34 Ark. 607; Dodge 9:20, 42 N.J. Eq. 272; Dugan v. Cureton, 1 Ark. v. Il oolsey, 59 U. S. 18 How. 331 (15 L. ed. 401);

Bisph. Eq. § 49, p. 68; 1 Siory. Eq. $$ 60, 534. So far as the $675 was involved, the right of Ii does not matter that the money bas been action was in the town, not in private citizens. paid. Courts of chancery will decree restitu

2 Dillon, Mun. Corp. $ 729, note 1; 3 Dillon, tion of it. Mun. Corp. $$ 730 and note 1, 730a, 7300 and 2 Story, Eq. § 1252; Dillon, Mun. Corp. note 1, 732; Nixon v. School Dist. No. 92, 32 88 729, 730; Frost v. Belmont, 6 Allen, 152. Kan. 510.

Any person owning taxable property in the An illegal act which will increase taxation town may bring bis bill in chancery. cannot be questioned by a private citizen or Mansf. Dig. & 929; Jackson port v. Watson, 33 taxpayer, unless it is specially injurious to bim. Ark. 704; Peaboily v. Flint, 6 Allen, 52; Cooley,

Dillon, Mun. Corp. $$ 735 and note 1, 736; Torts, 518; Story, Eg. $ 1252 (a); Dillon, Mun. Bailey v. Culver, 84 Mo. 531; Ketchum v. Buf- Corp. $ 730, and notes, Frost v. Belmont, 6 Alfalo, 14 N. Y. 371, 372; Jones v. Lillle Rock, 25 len, 152; Crampton v. Zabriskie, 101 U. S. 601 Ark. 301.

(25 L. ed. 1070). If appellees bad no right to sue, they did not stale a cause of action in their favor.

Sandels, J., delivered the opinion of the Wi'son v. Galey, 1 West. Rep. 488, 103 Ind. court: 257; Sinker v. Floyd, 2 West. Rep. 218. 104 Ind. An analysis of the case shows six questions 291; Tipton Co. v. Kimberlin, 6 West. Rep. 885, for decision: 108 Iod. 449.

1. Has equity jurisdiction as to the matters Mr. J. G. Wallace, for appellees: stated in the billi

Appellants as the town council, bad po 2. Are residents and taxpayers proper parties power to appropriate and use the revenues and plaintiff? moneys of the town to build a court-bouse for 3. May affirmative, as well as injunctive, rethe county.

lief be had in such a proceeding? efficient any purely equitable remedy. So it will lie, the Coustitut on. If the right to maintain such a against corporations and their directors and offi- bill as this he denied, citizens or property holders cers, to restrain acts which are illegal, ultra vires would be without adequate remedy to prevent the or in violation of their fiduciary duties. Lord Auck- injury wbich might result to them from the unau. land v. Westminster Local Board of Works, L. R. thorized or illegal acts of the municipal govern| Ch. 597; Mills v. Northern R. of B. A. Co. L. R. 5 ment or its officers and agents. Baltimore v. Gill, Ch. 621; Pudsey Coal Gas Co. v. Bradford, L. R. 15 31 Md. 375, 395; New London v. Brainurd, 22 Conn. Eq. 167; Pickering v. Stephenson, L. R. 14 Eq. 3:22; 552; Merrill v. Plainfeld, 45 N. A. 126, and disapprov. Cannon v. Trask, L. R. 20 Eq. 669; Dowling v. Pon- ing Roosevelt v. Draper, 23 N. Y. 318; and Doolittle typool, C. & N. R. Co. L. R. 18 liq. 714; Featherstone v. Broome Co. 18 N. Y. 155. See also Frederick v. v. Cooke, L. R. 18 EP. 208; Mair v. Himalaya Tea Co. Groshon, 30 Mil. 436; Baltimore v. Porter, 18 Md. L. R. 1 Eq. 411; Carlisle v. Southeastern R. Co. 1 284; Coulson v. Portland, Deady, 481. Macn. & G. 689.

Injunction will lie to restrain the imposition or On the ground that the remedy in equity is more enforcement of illegal taxes and other public burdirect, speedy and effectual than by certiorari, eq- dens, at the suit of taxpayers. Wagner v. Meety. uity will entertain jurisdiction of a bill on behalf 69 Mo. 150; Curtenius v. Hoyt, 37 Mich. 583; Cattell of taxpayers to enjoin mieapplication of the mon- v. Lowry, 45 lowa, 478; Albiny & B. Min. Co. v. Aueys of the corporation, Culton v. Hanchett, 13 III. ' ditor Gen. 37 Mich. 30;: Sinclair v. Winona (0.33 615; Mount Carbon Coal & R. Co. v. Blanchard, 54 Minn. 404; South Platte Land Co. v. Buffalo Co. III. 240; Wade v. Richmond, 18 Grait. (Va.) 58:3; Har- 7 Neb. 253; Burlington & M. R. R. Co. v. York ney v. Indianapolis, C. & D. R. (0.3? Ind. 244. See Co. 7 Neb. 487; George v. Dean, 47 Tex. 73: Douglass also Sherman v. Carr, 8 R. I. 431; 2 Dillon, Mun, v. Harrisville, 9 W. Va. 162; Marsh v. Clark Co. 42 Corp. 831.

| Wis. 502; Schettler v. Fort Howard, 43 Wis. 48; HagaThe same doctrine has been expressly sanctioned man v. Cloud Co. 19 kan. 3!4; It'orthen v. Badgetto by the Court of Appeas in Maryland, in a case in 32 Ark. 496; New Orleans, M. & C. R. CO. 1. Dunn, 51 which it was held that residents and taxpayers of a Ala, 128; Wells v. Dayton, 11 Nev. 161; Union Pac. R. cily might file a bill in equity to restrain the corpo. Co. v. Lincoln Co. 3 Dill. 900; Biowp v. ('oncord, 58 ration and its officers from taking steps to carry N. H. 375; Rockinghaun T. C. Sav. Bank v. Portsout a city ordinance creating a debt in violation of mouth, 52 N. H. 17; 3 Pum. Eq. Jur. 377.


4. Was the appropriation of the $1,000 valid (Canada) 67, cited in note on p. 902, Dillon, or void?

Mun. Corp 5. Are aldermen, as such, liable to an action There is no foundation in the authorities for for voies given upon measures before them? the claim that the power of chancery is only

6. What liability, if any, did the mayor or injurctive. It would be a reproach to justice dering, the treasuier paving and the counoil if it were true. In the present case, the approreceiving, the payment, incur by reason of this priation was made, the warrant drawn, and the trar saction?

money paid by the treasurer, betore an attorThe so-called appropriation was a nullity. ney could have comprehended the situation and Jacksonport v. Watson, 33 Ark. 704; Sykes v. bave written the caption of a complaint. Columbus, 55 Miss 115; ('onst. art. 12, $ 5; Mi. Chancery bas ample power to prevent furRot 8. Wext Roxbury, 112 Mass. 1.

ther wrong and require reparation for tbat The oflicers of the city are trustees in the wbich bas been done. 2 Story, Eq..jur. 1252 management and application of the funds of and notes; Frost v. Belmont, 6 Allen, 152; Citithe people of the city. 2 Dillon, Mun. Corp. zens Loun A380. v. Lyon, 29 N. J. Eq. 110; Atiy915.

Gen. V. Boston, 123 Mass. 460; Atly.Gen. v. Tbe application of municipal funds to illegal Dublin, 1 Bligh, N. R. 312; Atty Gen. v. Poole, purposes by tbem is a breach of trust. 2 Dil. 4 Myl. & Cr. 17; People v. Fields, 58 N. Y. 491; lou, Mun. Corp. 919 and notes.

2 Dillon, Mun. Corp. 509-912. Equity bas jurisdiction to prevent the mis. As against the liability of these defendants, application or waste of trust properly. 2 Story, it is contended that, a city council being in some Eq. Jur. 1252 and note.

soit a legislative body, its members are not liaThe fact that after the suit was brought the ble for the exercise of their discretion in voting city council recalled and canceled the unpaid upon measures before them. This is true, warrant did not oust the jurisdiction of the Jores v. Loving, 55 Miss. 109; Freeport v. Marks, court. That was but a part of the purely equi- 59 Pa. 253. table relief demanded. It was desired to pre- But here, after exercising their discretion in vent its re issue and cancel the appropriation. voting $1,000 of the money of the town to pay Besides, under our chancery system, had ibe an obligation wbich tbey and a few others bad cancellation of the warrant been the only orig. bound themselves to discharge, they or their ipal ground of equily jurisdiction, it was not building committee took the money. It was a lost. Price v. State Bank, 14 Ark. 50. con version of trust funds, for wbich each of

Suils by taxpayers against towns and their them, as also the mayor who ordered, and the officers to prevent or remedy misapplication of treasurer who made, the payment, are liable. town funds are not only allowed by statute, Frost v. Belmont, 6 Allen, 152; Citizens Loan but it is the prevailing doctrine in America that A880. v. Lyon and Atty-Gen. v. Poole, supra; taxpayers may maintain them, in the absence Atty-Gen. V. Wilson, 1 Craig & Ph. 1; Blaikio of statute. Their relations to the municipality v. Staples, 13 Grant, Ch. (Canada) 67. are analogous to those of stockholders to a pri. The vote of contidence given appellants at vate corporation. Mansf. Dig. $ 929; Jackson. the next ensuing city election does not affect port v. Watron, supra; Crampton v. Zubriskie, their liability to repay ihe money wbich they 101 U. S. 601 (25 L. ed. 1070); 2 Dillon, Mun, took from the city breasury. Corp. 914, 915; Blaikie v. Staples, 13 Grant, Ch. Affirmed.



F. W. FULKER, Appt.

another State to a point in Kansas are sub ject to the laws of Kansas relating to the sale and disposition of such property, to the same extent and in like manner as are other intoxicating liquors already rightfully existing in the State, and cannot be sold at the place of destination, in the original packages or other form, oxcept as tbe laws of the State prescribe. The police power of the State, so exercised, does not infringe on

(.... Kan.....)

Intoxicating liquors transported from

*Head note by JOHNSTON, J.

NOTE.-Statutes relating to imported liquors, valid. | a statute is not void mi a state regulation of inter

state commerce. Lang v. Lynch, 4 L. R. A. 81, 38 A state Act imposing a tax of ofty cents per gal- Fed. Rep. 489). lon on all spirituous liquors brought into a State is Stat. 1809, chap. 415, $ 27, permitting an importer constitutional, where the same tax is imposed on to sell in the original package liquore imported by liquors manufactured in the State, although the bim, legalizes such sale, although he knows that mode of collection is different. Hinson v. Lott, 75 the purchaser intends to resell the liquor in viola0.8.8 Wall. 148 (19 L. ed. 387).

tion of law. Richards v. Wood wird, 113 Mass. 285. The state statute which makes it a criminal of- Liquor purchased outside a prohibited district, fense to solicit or take orders for spirituous by one who advances his own money therefor as Liquors in the State, to be delivered at a place with the agert of the huyer, and not of the seller, the out the State, knowing or having reasonable cause purchaser making no profit ou the sale, is not a to believe that if so delivered the same will be sule within the district, wit Ala. Sese. Acts 185 transported into the State, and sold in violation of 52. p. 202. Dubois v. Stute, 87 Alu. 101. law, applies to orders for liquors taken by sulesinen Orders taken for the sule and delivery of liquors traveling for business houses in other States. Such I in violation of the law of the State are part of the 7 L. R. A.

the power delegated to Congress to regulate com- ! Johnston, J., delivered the opinion of the merce between the States

court : (January 11, 1890.)

F. W. Fulker was prosecuted in the District Court of Marshall County upon an indictment

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tbe District Court for Marshall County cating liquors at tbe Town of Okeio, in Maroverruling bis motion for new trial in an action shall County. The jury returned a verdict in wbich judgment had been eniered sentencing finding bim guilty on five counts of the indicthim to fine and imprisonment after a verdictment, and on his motion to set aside the verdict by a jury convicting bim of unlawfully selling the conviction was sustained as to the first two intoxicating liquors. Affirmed.

counts, and set aside as to the oi ber three. The facts are fully stated in the opinion. The judgment of the court was that be sbould

Messrs. A. L. Williams, D. C. Lock- pay a fine of $100, and be imprisoned in the wood and Cal. T. Mann, for appellant: jail of Marshall County for thirty days on the Intoxicating liquors are an article of com- first count, and a like sentence for the convic

tion under the second count was pronounced. Separate opinion of Chief Justice Taney in The defendant appeals, and alleges that the the License Cars, 46 U. S. 5 How. 677 (12 L. court erred in overruling his motion for a new ed. 289): Bouran Case, 125 U. S. 501 (31 L. ed. trial. 713); Justice Field's separate opinion in Bor- The testimony offered on the trial showed man Cuse, 125 U. S. 493 (31 L. ed. 709); Jus- that the defendant sold 10 numerous persons tice Catron's separate opinion in License Cases, what were called “ Prize Packages," being 46 U. S. 5 How. 600 (12 L. ed. 299): Lot v. Ilin- boxes about twelve incbes equare, in each of 8on, 75 U. S. 8 Wall. 150 (19 L. ed. 388). wbich there was a jug of whiskey. These boxes

The neglect or refusal of Congress to legis- were shipped from Nebraska, avd were sold in late and to prescribe rules governing commerce Kansas by the defendant in the same form and between the several States is virtually an ex- condition in which they were shipped. The pression on the part of Congress that commerce defendant was in charge of the railioad depot in the commodities upon which it is silent sball and express office at Oketo, and the boxes were be free.

shipped by express from Blue Springs, Neb. Le Loup v. Port of Mobile, 127 U. S. 640 (32 Pait of them, at least, were consigned by L. ed. 311); Mobile (o. v. Kimball, 102 U. S. “M. L. R.” to “ M. L. Rawling," but who 697 (26 L. ed. 239); Robbins v. Shelby Taxing “ M. L. R.” was is not very clearly shown. Dist. 120 U. S. 492 (30 L. ed. 695).

Some of those who applied to purchase liquor The police power of a State is one of the re- from the defendant presented orders whicb served powers; the commercial power of the purported to come from Rawling and from a national government is one by express grant man called “ Ax” but the testimony indicates from the several States; and where a reserved that the deferdant sold to all who applied, power comes in condict with an express grant regardless of orders, and that many sales were the reserved power must give way and the ex- made when no such orders were presented. press grant stand.

At tbe close of the testimony the defendant Hannibal & St. J. R. Co. v. Husen, 95 U. S. asked the court to instruct the jury ibat if 468 (24 L. cd. 529); Bowman Case, 125 U. s. packages containing intoxicating liquors were 405 (31 L. ed. 700).

sold by the defendunt in ihe original packages The word commerce,” as used in the Con. as delivered for shipment in Nebraska, and as stitution, means, not transportation simply, but received by bim in Kansas, such sales were not the right to transport,-carries with it by neces. in violation of the Constitution and laws of sary implication the right to sell the article or Kansas relating to the sale of intoxicating articles imported in their original form, or un- liquors. The request was refused, and in broken packages

chargivg the jury the court said : “I further Gilbons v. Ogden, 22 U. S. 9 Wheat. 7 16 L. instruct you that if you believe from the evi. ed. 24); Brown v. Maryland, 25 U. S. 12 Wheat. dence beyond reasonable doubt the defendant 447 (6 L. ed. 088); Le Loup v. Port of Mobile, knowingly sold intoxicating liquors at the place supra.

described in the complaint, and within two Messrs. L. B. Kellogg, Atty. Gen., and years prior to the 22d day of December, 1888, W. A. Calderhead for the State.

it would be no defense against such sales for

contract of sale and as such render the entire trans-, ceiving the payment guilty of selling it there action void, and no recovery thereon can be had. Pearson v. State (Mise.) 4 L. R. A. 435. Lang v. Lynch, supra.

Sales of intoxicating liquors by delivering them Where the order was made in New Hampshire, to a carrier to be sent C. 0. D. at a place where the but the sale completed in New York, by selecting seller was licensed, to fill orders received by mail the liquors, separating them from a larger mass, from the purchasers at a place where the seller was marking, directing and delivering them there, it not licensed, do not violate the Pennsylvania Stato was held to be a sale in New York; and if legal ute against sales without license. Com. v. Fleming there, an action for the price could be maintained (Pa.) 5 L. R. A. 470. in New Hampshire. Boothby v. Plaisted, 51 N. H. An order for the sale of intoxicating liquors 436; Schlesinger v. Stratton, 9 R. I. 578; Erwin v. taken within a district where such sales are probib. Stafford, 45 V t. 390.

ited, op wbich delivery of the liquors is made to A sale of liquor is complete upon delivery to the the carrier in pursuance of the order, at a place carrier, and the fact that the order for it was taken outside of such district, is not a sale within that in a country where the sale was prohibited by law, district, where there is nothing to show an express and that payment for it was received there, does intent to make the carrier the agent of the seller. not make the salesman taking the order and re-' Herron v. State, 51 Ark. 133.


the defendant to show by evidence tbat such | prohibition by Kapsas of the manufacture or intoxicating liquor so sold by him bad been sale, witbin her limits, of intoxicating liquors imported from another State over some route for general use tbere as a beverage, is not fairly ordinarily used for the transportation of mer: adapted to the end of protecting the commuchandise, in inclosed boxes, or packages, and nity against the evils which confessedly result that such intoxicating liquors bad been so sold from the excessive use of ardent spirits." by the defendant in the original boxes or pack- It is argued that the unrestricted sale of ages in wbich they had been placed for ship: liquors in the form in wbich tbey are shipped ment in another Siate, without breaking said from another State is an essential element of boxes or packages.” The refusal of the first traffic, and that, as the law of Kansas forbids mentioned instruction, and the giving of the such a sale, it constitutes a direct burden on second, presents the only question discussed interstate commerce. It must be remembered upon the appeal.

tbat our law does not absolulely forbid the use It is urged ibat intoxicating liquors trans. or sale of intoxicating liquois. They may not ported from another State to Kansas may be only be freely introduced and stored, but they sold by the importer, or person to wbom ibey may be sold for medical, scientific and me are shipped, in tbe original packages, free from chanical purposes. A person may purchase state control ; and tbai, so far as our Constitu- and bring liquorinto the State for his own use, tion and laws would restrict or probibit such without violating the Statute; and one so law. sale, they violate the provision of the Federal fully obtaining possession of intoxicating Constitution wbich declares that Congress liquor may use it as be sees fit, by drinking it shall regulate commerce among the several bimself or giving it to another, provided it is States. Counsel for appellani argue with done in good faith, and not as a shift or device great ability that in interpreting the commer- to evade the provisious of the Prohibitory Act. cial clause of the Constitution intoxicating State v. Standish, 37 Kap. 643. liquors must be regarıled as articles of com- So it appears that the law does not absolutely merce which may be imported from another prohibit the importer from using or selling State, and sold at the end of the transit in this liquors, but it ouly requires that the sales sbali State, the same as other commodities, and that be made for beneficial and proper purposes, the restriction of our laws upon the sale of and by duly authorized persons. It does not liquors upon reaching Kansas is a direct bu den operate directly on commerce, or upon the on interstate commerce, and a usurpation by introduction of liqnors, but only provides that the State of a power exclusively, vested in Con- they shall be subject to a reasonable police gress. We cannot assent to this proposition. regulation when brought within the territorial That the power to regulate interstate commerce limits of the State. The fact that such regubelongs exclusively to Congress, and that the lations may to some extent diminish the traffic laws of a State which would encroach upon or incidentally affect interstate commerce does that power or directly interfere with such com not render them invalid." In conferring upon merce cannot stand, all concede. Nothing in Congress the regulation of commerce, it was the Constitution or statutes of Kansas evinces never intended to cut the States off from legisany purpose on the part of the people of the lating on all subjects relating to the health life State to trench upon this power, or antagonize and safety of their citizens, though the legisthe freest commercial intercourse with other lation might indirectly affect the commerce of States. It is not necessary to review at length the country. Legislation, in a great variety of the statutory provisions relating to the manu. ways, may affect commerce and persons enfacture and sale of intoxicating liquors witbin gaged in it without constituting a regulation the State. It is enough to say that they do not of it. within the meaning of the Constitution." purport to restrict in any manner the trans. Sherlock v. Alling, 93 U. S. 99 [23 L. ed. 819); portation of liquors into or through the State. Willson v. Black Bird Creek Marsh Co. 27 U. Such property may be carried over the State S. 2 Pet. 245 [7 L. ed. 412] : Giiman v. Phila. witbout burden or restraint, the same as any delpliia, 70 U. S. 3 Wall. 713 (18 L. cd. 96] ; other commodity, and there is like freedom in Couley v. Philadelphin Board of Wardens, 53 bringing it in. Wben liquors are brought U. S. 12 How. 299 (13 L, ed. 996]: Osborne v. from another State, they are subject to no Mobile, 83 U. S. 16 Wall. 479 [21 L. ed. 470); other or dillerent regulation than like property | Munn v. Illinois, 94 U. S. 113 [24 L. ed. 77); produced in Kansas. Our law is enforced with Hall v. DeCuir, 95 U. S. 485 [24 L. ed. 547) ; perfect equality, without any discrimination Pound v. Turck, 95 U. S. 459 [24 L. ed. 525) ; between citizens of this and other States, or Wheeling, P. & C. Transp. Co. v. Wheeling, 99 between liquor brought in and that already U. S. 273 [25 L. ed. 412); Wiggins Ferry Co. bere.

V. East St. Louis, 107 U. S. 365 [27 L. ed. The validity of our Statute has been repeat-419] ; Morgan's Steamship Co. v. Louisiana edly sustained by this court, and all question Board of Llealth, 118 U. S. 455 [30 L. ed. 237). of the right of the State to enact such legisla- The regulation and control of the liquor tion has been set at rest by the decisions of the traffic is purely an exercise of the police power Supreme Court of the United Siates in Fuster of the State, and between it and the commerv. Kansas, 112 U.S. 201 (28 L. ed. 629], and cial power conferred on the general govern. Mugler v. Kansas, 123 U. S. 623 (31 L. ed. ment there is no antagonism. The commercial 205). In the latter case it was held, after a power is delegated to Congress, and cannot be most elaborate and learned treatment of the limited by the States, but the police power is questions involved, that our laws were not reserved io and remains alone with the State. repugnapt to the Federal Constitution, and it These powers are to be exercised by the difwas said that "it is difficult to perceive any ferent departments of government, for the ground for the judiciary to declare that the l public good, and both are to be construed

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