AND

ARGUMENTS ON SPECIAL POINTS.

THE KANSAS AMENDMENT,

AS ADOPTED BY THE PEOPLE AND SUSTAINED BY THE SUPREME COUBT OF THE STATE.

The following is the amendment to the Kansas state constitution which became Section 10 of Article 15:

"The manufacture and sale of intoxicating liquors shall be forever prohibited in this state, except for medical, scientific and mechanical purposes."

THE IOWA AMENDMENT,

ADOPTED BY THE PEOPLE JUNE 27TH, 1882, AT A SPECIAL ELECTION,

READS AS FOLLOWS:

Sec. 26. No person shall manufacture for sale, sell, or keep for sale as a beverage, any intoxicating liquors whatever, including ale, wine and beer. The General Assembly shall, by law, prescribe regulations for the enforcement of the prohibition herein contained, and shall thereby provide suitable penalties for violations of the provisions hereof."

The Iowa amendment, after a full and free discussion, both for and against, was adopted by over twenty-nine thousand majority. Immediately after its adoption, the entire liquor power of the nation combined to overthrow the popular will.

The Democratic party of the state declared, in their convention, their sympathy with the outlawed liquor-dealers, and their intention to work for the repeal of the amendment. The Republican party met in state convention, and, although the question of the enforcement of the amendment was the absorbing question in the state, it was entirely ignored in their platform.

The amendment thus standing with open and defiant enemies on the one side, and cowardly politicians controlling the other, was fiercely attacked.

A fictitious case to test the validity of the amendment was concocted between a brewer and a saloon - keeper. A district judge sustained the technical objections to the constitutionality of the manner of submitting the amendment. The case was taken to the supreme court, where, under influences which may be surmised, if not known, a mere clerical error was held sufficient to invalidate the declaration of the whole people, expressed by a decisive majority at the ballot-box.

Mr. Justice Beck, alone, of the whole court, dared to stand for the people against this gigantic wrong.

L

ARE LIQUOR DEALERS ENTITLED TO INDEMNITY FROM THE STATE FOR PROP

ERTY INJURED BY THE ENACTMENT OF PROHIBITORY LAWS?

ADDRESS OF HON. OLIVER P. MASON, EX-CHIEF JUSTICE OF NEBRASKA.

[This speech was delivered in City Hall, Lincoln, Nebraska, in response to a request of the prominent members of the legislature then in session.

The liquor advocates had claimed vested rights in property and that if the constitutional amendment was passed, the state would be responsible for property destroyed. To these claims Judge Mason replied.]

LADIES AND GENTLEMEN:-The legal questions involved in the proposed constitutional amendment are two in number, viz:

1. Whether this would be a constitutional ordinance, depriving persons of property without due process of law; and

2. Whether, if it were so, it would be so far a violation of the fourteenth amendment in that regard, as would call for judicial action, or interference by the courts.

Both these questions are of importance, and require serious and careful consideration. They are not to be lightly treated. Neither of the questions are de

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cided in the case of Bartmeyer vs. Iowa; and neither of them were drawn in issue in the case of Wynehamer vs. The People in 13 N. Y., p. 378, and this case was never the law and has been overruled. The last case, indeed, arose in July, 1855, long before the fourteenth constitutional amendment was adopted, and under a statute of New York for the prevention of intemperance, pauperism, and crime, and not upon a constitutional ordinance, or a provision of a stato constitution. Nor were these questions considered in the case of Bartmeyer vs. Iowa, because the court says:

“But, if it were true, and it was fairly presented to us, that the defendant was the owner of the glass of liquor which he sold to Hickey at the time the state of Iowa first imposed an absolute prohibition on the sale of such liquors, then we consider these questions would arise; but in the case before us, the supreme court of Iowa, whose judgment we are called upon to review, did not consider it."

They said the record did not present this matter, and the supreme court of the United States expressly declined to consider these questions; they did not arise in that case.

But there is a wide distinction between a constitutional provision and an act of the legislature. The one is the act of the creature, the other of the creator. The constitution is certain and fixed. It is the expressed and established will of the people, and is the supreme law of the land. It is paramount to the power of the legislature and all other departments of the government. What is the legis

To the

lature? The creature of the constitution. constitution the legislature owes its existence, and from the constitution it derives its power. The constitution is the work of the people in their original sovereign capacity. Statute laws are the work or the will of the legislature in its derivative or subordinate capacity. The one is the work of the creature, the other of the creator. The constitution fixes a limit upon legislative authority, and prescribes the orbit within which it must move. The power of the people in their constitution-making capacity is omnipotent, sovereign, and supreme. Upon sover

eignty, among nations, there are no limitations or restrictions. Upon the people of the states of the Union in their sovereign and constitution-making capacity, there is the limitation and restriction voluntarily imposed of the federal constitution. Independent of that, there is no limit upon the people in their sovereign power, except such as the people imposed upon themselves. It is an unseemly thing for the creature to call in question the power of its creator, or for the legislature to say to us-the people in our sovereign and constitution-making power, I will not trust you, the creator, to sit in judgment, because you might decide contrary to my views.

"Upon what meat doth this our Cæsar feed,

That he is grown so great?"

Who made thee wiser than all the people? For remember, the question is not whether the legislature