86 Kan. 347 | Kan. | 1912
The opinion of the court was delivered by
The learned judge of the district court, in summing up the case, stated that he realized its importance to the appellant and the public, and had carefully considered the constitutional amendment,’ the various acts of the legislature relating to intoxicating liquors, and the decisions of the supreme court, and that he was “irresistibly' impelled to the conclusion that the ultimate good sought to be attained by such amendment and the various enactments of our legislature on the subject of intoxicating liquors is the total abolition of the use of intoxicating liquors as a beverage.” The court then, proceeded to find the defendant guilty of a sale, and not guilty of the unlawful use of intoxicating liquors by keeping or aiding and abetting in the maintaining of a nuisance as charged in the complaint. n
The facts being settled, the single question to be determined is whether the appellant was guilty of a sale •of intoxicating liquors contrary to law. If the thing procured had been seed wheat or provisions or binding-twine, or any other article of commerce except intoxicating liquors, no one would characterize the transaction as a sale or think of it as such. It was a purchase of something outside the state by a number of persons for their common use and enjoyment. The only sale was one which occurred in the state of Missouri, the sale by the brewery there to the defendant in Kansas and the other persons who joined with him in the purchase. The defendant had the same interest in the transaction as the others, and was no more the owner of the liquor when it arrived than each of those who had jointly contributed to the purchase price. No. profit or advantage was to accrue to him mpre than to the
The writer, in addition to what is stated in the opinion of the court, feels constrained to add that the theory upon which the lower court decided the case proceeds upon an erroneous conception of the purpose sought to be accomplished by the prohibitory amendment and the statutes and ordinances enacted to carry it into effect. The declared purpose of that law is to prohibit, not the use, but the manufacture and sale of intoxicating liquors in this state. The use of such liquors as a beverage or for any other purpose is not prohibited except where the' place or the manner in which they are used constitutes a nuisance. In The State v. Barrett, 27 Kan. 213, Justice Valentine) speaking for the court, used this language in reference to the prohibitory law:
“With regard to what should be done with the liquors, independently of their manufacture and sale, it was silent. The title to the act does not, in the slightest or most remote degree, refer to the use of the*352 fiquor in the abstract. So far as the title of the act is concerned, after the liquor has been manufactured and sold, any person in the lawful and bona fide possession of it may use it as he sees fit; he may drink it, or bum it, or give it away, or he may use it in any other manner or for any other purpose to which his inclinations may lead him.” (p. 219.)
To the same effect is The State v. Standish, 37 Kan. 643, 647, 16 Pac. 66.
It is true that the ultimate purpose of the prohibitory law is to make intoxicating liquors so difficult to obtain that the use of them within the state will be minimized. The proper use of such liquors, however, is still as lawful within the state as before the prohibitory law was enacted. One of the results of the law is that a person who desires to make lawful use of such liquors here must resort to the inconvenience of procuring them from outside the state.
Reversed and remanded, with directions to enter judgment for the defendant.
