Mugler v. Kansas

KANSAS, MUGLER Syllabus. KANSAS. SAME.

SAME v. THE STATE OF TO THE SUPREME COURT OF KANSAS. ERROR Argued 11, 5, 1887. Decided December 1887. April

KANSAS v. ZIEBOLD. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR

THE DISTRICT OF KANSAS. Argued 5,1887. October Decided December prohibits spirituous,, legislation malt,' State manufacture fermented, vinous, liquors intoxicating or other within limits of the State, general beverage, to be there sold or bartered for use as a does necessarily infringe any right,, privilege immunity by not secured States, of the Constitution United Amendments thereto. Kansas, prohibition laws, The in the State of Constitution intoxicating the manufacture or sale within the limits of the State of liquors general beverage, fairly adapted use there as a is to the end community protecting against the evils which result from exces- that, spirits; subject objection use of sive ardent under the, police guise regulations, aiming deprive the State is the citizen rights. of his constitutional police State, legislation, powers Lawful state exercise of the prohibit malt, spirituous, the manufacture and sale within State of vinous, fermented, liquors, intoxicating or other beverage, to be used aas who, persons time, happen prop- enforced at the to own erty whose chief value consists in its manufacturing fitness for such purposes, compensating for the diminution in its value them prohibitory resulting from such enactments. prohibition upon purposes property A the use of that are declaréd health, legislation injurious safety to be valid morals or community, appropriation property public benefit, not an for the taking the sense which the exercise of the State’s power taking.or appropriation. of eminent domain is such a destruction, police power prop- the exercise of the of the State of used, law, erty public nuisance, maintaining in violation of is not a use, deprive taking of and does not of it owner without due of law. place kept A State has constitutional to declare that and main- TERM, 1887. 62é Mugler Statement Cases. illegal intoxicating liquors for the manufacture and sale of tained shall nuisance, abated; deemed common and bo and at the same time to provide for the indictment and trial of the offender. provisions nothing in statute of the There § 7, 188a, 19, 1881, amendatory February March of the act of so Kansas cases, procc'ediugs they apply reviewed in these far as to the liberty property; guarantees of the constitutional and inconsistent with equity-power by it to abate a nuisance conferred and principles harmony equity jurispru- by jury is in with settled a trial dence. provision prosecution indictment or otherwise the State that In a

If the not, instance, permit prove not the in first that the defendant lias need application proceeding equity required by to the in the statute has 1881, 1S85, in does as amended the statute Kansas authorized deprive presumption that he is innoccut of violation him the not lio,s as, permit, pro- injury, law; if ho he can him no and does duce it. requires present the court to decide a. case which not does record The intoxicating manufacture of forbid the of Kansas the statutes whether States; they exported to other. whether arc liqpors or carried clause of the Constitution of the ground that repugnant to. regulate for- Congress commerce with giving States United among and the several States. eign nations of Kansas contains the fol- of the State The constitution which was 10, art. 15 of article, adopted by b.eing lowing § 1880: November people “ shall be and sale of liquors The manufacture intoxicating medical, scientific, in this State, except forever prohibited mechanical and purposes.” this a statute to Kansas enacted carry

The legislature forth the court of which are set effect, into provisions is made. This to which reference case, in this in its opinion 18S1. 1st of on the May, took statute effect of a in error, brewery Mugler, proprietor The plaintiff -indicted in the District Court Kansas, was County, Saline for offences November, 1881, against in' that- count}'" statute. him contained five counts indictment charg first

The in November, 1881, different days on he, specified five ing “ and did sell, barter, unlawfully give of Saline county and other fermented, intoxicating vinous, malt, away spirituous, “ sell intoxicating liquors, -lie having permit liquors,” KANSAS. Mugler Statement Caaes. law, &c. and statutes,” j

as contrary provided sixth that in count Saline at a time named charging County, “ did in that he and maintain a certain month, unlawfully keep ” nuisance, common wit: his then and there brewery, kept used for illegal selling, bartering, giving away, sale, barter, use of keeping illegal' intoxicating violation an act,” &c. liquors, provisions made an statement of which was facts, agreed parties introduced in the case, all the evidence which was as fol- lows :

“It facts in the hereby stipulated agreed case evidence are, above-entitled would prove them to follows : be, “' That Peter has been defendant, a resident of Mugler, State of Kansas since 1872; that, be- year continually he in that declared born, his intention be- year ing foreign States, come a citizen the United since that time always such he in did, to become the month citizen, June, intending of the District Court 1881, of-Wyandotte judgment become a full Kansas, citizen the United and States, County, has since that time been a citizen United States and of the State of Kansas. “ in That said defendant erected and 1877 furnished year lots 152 154 Third a on Nos. and on in Street, brewery Saline Kansas, use in Salina, the manufac- city County, known ture of a malt as that such liquor commonly (beer; was constructed and for the manu- building specially adapted facture malt an actual cost' of such at and to liquor, expense of ten said defendant thousand and was used dollars, himby for which it for the was and intended after designed purposes its in and 1, 1877 1881. up May completion of the beer so and on

“That manufactured hand prior said made 1881, defendant one sale since 19, 1, February May count, the sale which in the first 1881, of the'indict- charged said sale made on the above-described ment, being premises; so sold was in the the beer which it original packages was after was sold for use nor manufacture, placed used on said that at time of sale said premises, VOL. CXXIII —io TERM, Mugler

Statement of Cases. had sell defendant no permit intoxicating liquors, as'pro- vided 128 Laws of 1881.” by chapter was to be and was sentenced adjudged guilty, "Mugler a fine of one hundred dollars and costs, motions for pay new trial in arrest of were overruled. This judgment judg- ment affirmed Court of the being State on Supreme the cause was here writ of error on his appeal, brought motion. indictment in the The second case on the first that, charged “ November, 1881, Saline he did

day County unlawfully manufacture, aid, abet in the assist, manufacture vinous, malt, and other fermented, spirituous, intoxicating violation &c., he then liquors, act,” provisions and there “not out taken and not having having permit manufacture, as law, intoxicating liquors provided by contrary statutes,” &c. made the statement of facts parties following agreed all the evidence introduced in case. “ It in the hereby stipulated the facts agreed above-entitled case are, and the evidence would prove them be, follows: “ defendant, That the Peter has been a resident of Mugler, that, State Kansas since the continually 1872; year being he in that born, declared his intention to year become foreign a citizen United States, and since that time in- always to become such in the citizen, he month of tending did, June,. Court District judgment Wyandotte . Kansas, become a full citizen of the County, United States and of the State of Kansas. That 1877said defendant erected and year furnished on lots Nos. 152 brewery Street, on Third Salina, of Saline for in use the manu- city Kansas, County, of facture. malt known as intoxicating liquor commonly beer. “ That such was constructed and building specially adapted .for the manufacture of such malt at an..actual cost and liquor, to said defendant of -ten expense thousand dollars, used him the for for it purposes which was designed 627 v. KANSAS. Mugler

Statement Cases. in Í881. after its 1st,- intended' completion May up was at all times and on That said after brewery completion worth the sum ten dollars use 1, 1881, thousand May manufacture of beer, said is not worth to exceed the süm of dollars for other any twenty-five purpose. hundred said since October 1881, That has used said defendant, the manner and for which was brewery purpose constructed and therein of such adapted by manufacturing malt and at the time > manufactur intoxicating liquors, malt said said defendant had no to manufac- liquors permit for medical, ture the same or mechanical scientific, purposes,- 128 of Laws of 1881.” by chapter provided The defendant was to be was fined one adjudged guilty,' dollars as in and, case, hundred the other costs, motions' for a trial and in new and- overruled, arrest judgment were affirmed Court judgment being Supreme State of Kansas on the defendant sued out a writ of appeal, to review it. error of errors in the first these cases was as assignment

follows: Said court

“First. erred in affirming judgment district court of Saline Kansas, the defendant, County, a fine of one hundred dollars Mugler, pay for the vio-'' alleged lation of statute of said State, the sale or barter prohibiting or malt spirituous scientific, and liquors, except medical, mechanical said statute purposes; violation of Article being the Constitution of the United States, which provides that no State shall sba.11 make or enforce law which any or immunities of citizens abridge privileges the United nor States; shall deprive person life, liberty, without due of law; nor deny any person within its .jurisdiction of .the equal protection laws.’

“Second. Said court erred affirming judgment district court of Saline Kansas, the motion County, overruling of defendant, for a new and in trial, Mugler, arrest of judg ment, motions should have been sustained.” In second case the was as follows: assignment “ First. Said court erred in affirming judgment 62S TEÍtM, 1887. Argument Mugler.

Mr. Vest's for of Saline district Kansas, court defendant County, Mug- a fine of one hundred dollars for the ler, pay violation alleged a statute of Kansas, the manufacture prohibiting spirit- malt or uous without liquors by any person having permit medical, manufacture liquors scientific, me- chanical said statute of Article purposes; being violation 14 of the Constitution United States, which provides make that ‘no State shall or énforce law which any shall or immunities of citizens of the abridge privileges United nor shall State States; any life, deprive any person liberty without, laiv; due nor process deny any person its within of the laws.’ jurisdiction equal protection “ erred in Said court Second. affirming judgment court of Saline district Kansas, the motions County, overruling for a "defendant, new trial and in arrest of Mugler, judg- which motions should been ment, have sustained, statute defendant under which said was convicted unconsti- being tutional in that said defendant of the attempts deprive to manufacture beer even for his own use, or for right storage out of the State of Kansas, also transportation deprives of his to use his defendant for the manufacture without due of law.” beer, process submitted The causes were at October argued together Term, G. Vest,

Mr. in error. George plaintiff The statute Kansas is in I. conflict with 14th Amend Constitution, ment it declares that “no .where State make enforce shall law which shall abridge privi of citizens or immunities of the United shall States; nor leges , deprive any psrson liberty, life due nor law; without within deny any person of the laws.” equal protection jurisdiction defendant was indicted for beer, manufacturing a license to manufacture for scientific, and medical, having mechanical There was no in the indict- purposes.” allegation ment, no that the beer proof attempt prove, or. manufactured for sale or barter. KANSAS.

MUGLER v.. Argument Mugler. Mr. Vest’s in the Kansas The naked contained constitution proposition citizen even for his is, that no shall manufacture statute, for use, own or exportation, any intoxicating liquor’s. to

The State has power unquestionably prohibit or manufacture, barter, for sale within intoxicating liquors it has the to manufacture of limits; prohibit such as substances, or dynamite explosive nitro-glycerine, nature to or from their are the lives which dangerous property but or no convention has the others, under legislature right, form of our to citizen from manu- government, prohibit any for own for use, his or or facturing article export, storage, any of food or drink not or endangering affecting rights others.

In the between the State cer- citizen, implied compact tain are reserved with which the latter, State rights These cannot interfere. the Federal rights guaranteed by and State Constitutions in the of those instruments provisions “ life, protect liberty, property.”

The to doctrines Commune the State the give right control and habits of the tastes, citizen: his appetites, dress, drink, domestic relations are food, controlled and regu- lated the State. “The individual everything, In order to him a make citizen and nothing.” useful tax-payer, the State exercises a surveillance over all that he is and has. On the other our hand, system based government, individuality does intelligence not claim people, to control the as to citizen, his conduct to except others, leav- him the sole all as to affects ing judge only himself. for manufacture his own use either food or drink is or absolute natural certainly reserved right, —citizen one every Fourteenth Amend- guárante ment, and when, under the laws of Kansas ho is .punished “it his beer, as citizen manufacturing* abridges privileges “ the United States,” rives him liberty de^ “ without due and it law,” denies him the equal pro- tection of the laws.” Civil is defined to be that of a mem- liberty Blackstone ber of and is no other than so nafwal far re society, Uberiy TERM, 1887. Mugler. Argument

Mr. Vest’s no human laws further) necessary (and strained by for the advantage public.” general expedient .Kansas statute of leave If the constitution prohibitory it will anywhere, residuum of natural liberty remaining find If a State convention it. microscopical inquiry require beer, a citizen can manufacturing punish legislature or 'bartered or even not to be sold bread, away, given wine, are liv- then instead of civil we use, liberty, for his own but known unlimited and brutal the most despotism under ing history. can into man’s enter every

If a convention manufacture, he shall or shall what house, prescribe to dis- of whether he proposes entirely question ignoring others, or whether its manufactured the article .pose process manufacturing manufacture dangerous then it follows others, logically lives or habits, tastes, can expendi- the same power prescribe citizen. of ture every Mr. 36, 16 Wall. Justice Cases,

In Slaughter-House opinion, quotes approvingly Miller, majority delivering States. definition of Kent’s power police Chancellor Field, Justices Bradley also See opinions 111 U. S. Co., 746; v.Co. Crescent City Union Butxchers’ v. Cush. 53. 7 Alger, Commonwealth is, it cannot extend as this Broad comprehensive which are citizen, tastes and of the habits the individual to no effect others. to himself have upon confined entirely How. 583. Whatever be the 5 Cases, inju License or whatever beer, use of results'from rious intemperate as to it cannot difference sanitary opinion qualities, of manu that there is be contended process anything the lives or others. it which endangers property facturing 1 Wash. C. C. The constitution v. 371. Coryell, Corfield can on the Kansas defended only ground statute of its can take the State persons possession thein as and so and reform citizens absolutely, regulate father, ideal husband, tax-payer produce Commune. v. KANSAS. 631 Mugler. Argument Vest’s

Mr. discussed in the so fully into questions Without entering construction of the Cases proper Slaughter-House Amendment, Article Fourteenth first clause his case conten- submits confidently in error plaintiff of Kansas him statute deprives that the tion prohibition “ due law.” process and property liberty the citizen stands in the assumption If arewe right character, both as individual in dual the law a before former status he has certain that in the a member of society; to him but reserved to society, not surrendered natural rights and which the to his pursuit happiness, self necessary that his manufacture take away; right law cannot drink or of food provided process article apparel, of oth the lives does endanger manufacturing or natural then statute reserved one of these ers, rights, “ . of law.” As is not due of Kansas now process question ” Constitutional see Cooley’s due law what is Limi . 13 N Y. State v. ; v. 378 356; tations, Wynehamer People, v. 5 Cottrell, Sears Mich. McCord, Law, 55; 251; 2 Allen, 140; 11 Am. Dec. 274; Hoke Hill, 4 S. C. Porter, v. Taylor 677; 25 Am. Janes v. 4 Dev. S. C. Henderson, 1; v. Dec. Louisiana, v. Kennard U. S. 251; 480; 2 Texas, Reynolds, 18 How. Webster’s Co., 272; v. Hoboken Mr. argu Murray 4 Wheat. Woodward, 518; ment College Dartmouth Norman 86; Heist, 6 Penn. W. Hummell, St. Brown v. 40 Am. Dec. 171; & S. S. C. ¡the citizen laws society guarantee governing general until he beer, and sell his manufacture attempts right In this case the State of Kan- he barter cannot punished. the citizen of a enactment, sas, deprives by legislative and in in all free denied unlimited only governments, existing “ due This be law.” cannot despotisms. process is indicted,.arrested, the citizen tried If it said that and that this “due conviction, before constitutes by jury, that this the mere our is is law,” reply machinery The mandate to an unconstitutional statute. enforce citizen robs the of a imperative, privilege be denied. No a free cannot discretion which, government, G32 TERM, Argument Mugler.

Mr. Vest’s £or but courts, Kansas, the constitution of given made, statute means are abso- furnish enforcing lute and declare that manufacture mandatory. They State, shall be forever in the liquors intoxicating prohibited for medical, scientific, and except purposes.” mechanical Under the humane and which obtain in all free laws just in favor of reasonable intendment is made governments, every accused, rests his guilt .burden proving the State. If all that is indictment charged granted, what offence has been committed under the free laws any ? all For in the case the in error people appears plaintiff manufactured beer his or own to be use, exported, There is no that he intended to sell or evidence storage. then, barter, citizen of Kansas. "What give right, existed the authorities of that State to inflict pun ishment % has be,

There- never can never been, more any question or more vital to the existence of civil important than liberty centuries, involved this is the case. It question over and about which men have died, suffered and fought until out of the dark and truth dreary struggle great has been established that “the freedom which deserves only the name is that of our own in our own pursuing good way, so as we do not long others, attempt deprive impede their efforts obtain it. Each of his proper guardian health, own whether mental, or Mankind bodily, spiritual. each other live as seems greater gainers suffering than themselves, each to good live seems compelling to the rest.” John Mill Stuart “On good 28, 29. Liberty,” Cranch, 3 Ball, See Caldee Dall. 380; Fletcher v. 6 Peck, 87, 135 Dash v. Van ; Kleeck, 7 Johns. C. 5 477; SD. Am. Dec. Taylor Porter, 291; above cited ; Goshen v. Stonington, S. ; Conn. C. 10 Am. Dec. 121.

The claim legislative this can body country destroy absolutely private as in rights liberty, personal is case, monstrous at war with estab assumption, lished axiomatic of free principles government.

No protest is made in error plaintiff v. KANSAS. Mugler. for Argument Vest’s

Mr. the discretion of its constitutional' exercise legislature. invade the are not asked to The courts legitimate province in its exercise of the police legislative department and natural No claim of speculative rights visionary power. is Our contention the written constitution set outside of up. our form of has, under is no govern- legislature simply the from to citizen ment, power prohibit manufacturing for to that manufacture bo sale barter beer, others, unless of such a mere the citizen when deprived right legis- law.” it is not due lative enactment process statute of Kansas II. The deprives plaintiff prohibition of his error, absolutely, directly property, built in for 1877, “due of law.” His was brewery beer to be used a beverage, purpose manufacturing then law. industry, protection By legitimate under §10,000 of 1881 this worth enactment statutory for it was is reduced $2500 to which adapted, purpose not but direct value, proh indirectly, consequentially, use ibition of the real This primary property. has never been court. adjudicated by question directly In 18 Wall. was made Iowa, Bartemeyer attempt but court declined consider secure ques ruling, tion.

Prior to the amendment, constitutional pilor May, effect, law took had 1881, when Mugler prohibition beer to manufacture without restriction as to pur- it -wasto be sold or used. After that date the for which pose forbidden, manufacture was except specified purposes, was to obtain a It is ad- manufacturer required permit. he beer mitted that he had no when made after permit, 1881. ILul the the constitutional 1,May take him the use from without compensation his property, ? limited for certain purposes except specified of Kansas seem to have Court majority Supreme been that so as he was with idea long permitted impressed restricted, his no matter how use brewery any purpose, he of his This is posi deprived singular property. . and candid mind will- admit that the ordi tion fair Every TERM, Argument, Mugler.

Mr. Vest’s use of usual, beer as a nary, principal beverage, use for medical, scientific, mechanical purposes and rare. See Wynhamer above cited. exceptional People, v. As be that claimed, well who has might hotel-keeper, a valuable for constructed the building entertainment is not of his- or its use, when deprived for- public, the bidden to entertain unless an any legislature guest Such cavils are the invalid. unworthy importance observer knows that the statute Every question. intelligent of was Kansas enacted the of simply solely use destroy and for beer as a its take supporters behind beverage, refuge there was the that other is an unfair pretext purpose, is no There or claim that subterfuge. unworthy pretence has of sale itsor legislature prohibit beer, future, or barter in manufacture sale but that is very from different here as to the question presented, the value of vested destroy legislature rights by- legis- without lative enactment and without “due compensation, of law.” Not satisfied with legislating future, Kansas has attempted destroy property rights already under and created laws enacted vested, the same by. authority. “ can be That deemed to free where scarcely government are left the'will rights property wholly dependent upon- of a without restraint. The body fundamental .legislative maxims a free seem to that the government require rights should be liberty private held sacred.” personal property v. 2 Pet. Leland, Wilkinson 827. See also Mr. Justice Field’s in Munn v. 94 U. S. Mr. Illinois, 118; opinion Justice Brad v. above Iowa, cited ley’s concurring opinion Bartemeyer ; Massachusetts, Beer v. 97 U. S. Company That cannot be taken for private property public purposes, to the owner, needs no just compensation argument authorities. It is a maxim of fundamental all array free so of ours, that governments, whenever the essentially necessities of the that the of a public require citizen shall taken or must be destroyed, made for compensation the loss. The nature of a based very government upon KANSAS. Argument Mugler.

Mr. Vest’s in all 'its benefits its citizens idea equal participants this truth. and burdens implies great court disposed The effectually question 13 Wall. 166. Co., v. Green Bay Pumpelly of the court, Kansas, Court majority Supreme error came to the conclusion damages plaintiff the case came within so remote were consequential, described Justice the class of cases Strong Transporta U. S. 635. tion Co. Chicago, result of all the In Avork authority, Judge Cooley as follows: exer- him, is stated Any con, proper

pro which does not en- cise directly government powers individual, disturb him in croach him to will not entitle enjoyment, compen- possession sation.” rule, controvert this and it is

There no is disposition the the case now before court. it does affect evident that under neither taken a of was The property plaintiff proper The of exercise of indirectly. governmental power, right in him to manufacture beer as vested beverage, plaintiff is taken and law, directly absolutely by away legis existing in he is left of his lative enactment. Whilst brew possession is it for the and in fact the he forbidden use ery principal, for which it was erected. act of By simple only, purpose without he is the judicial deprived legislature, proceedings, value his and is told the three-fourths the property, him, and invited with the State which pretext equal just has the the in he invested savings industry which Iuavs, life and immoral. There is no here of of a question illegal and remote damages. shape consequential Nothing than law be more or even brutal the can direct legislation — It no of Kansas. no time gives preparation day to manufacture one his court —but sweeps away enactment. single to discuss further It deemed unnecessary meaning done in the due of law.” That has been

the term can be added to what first nothing part argument, Brewer. That is so questions forcibly expressed by Judge TERM, Argument Mugler. Mr. Vest’s nature, are of difference gravest great presented no has arisen them admit of doubt. regard opinion as eminent Even so experienced jurist Judge Cooley, there is no instance in which the “Perhaps says: to make such destroy regulations may legislature without the owner, value of compensation appears in a more than the case of statutes. these striking light in alcoholic drinks lawful, The trade and the being capital in it law, fully employed being protected by legislature in and then enactment based on steps general principles annihilates the traffic, utility public destroys altogether value, reduces a nominal employment, on hand. Even of that for the of sale keeping purpose a criminal offence, becomes whatever change own conduct or his merchant of employment yesterday becomes criminal of and the in which to-day, very building and conducts he lives to that moment business, becomes the if the lawful, statute subject legal proceedings, declare, so liable shall for a for proceeded against A feiture. statute which can do this must be justified upon reasons of but benefit, whether highest satisfactory or not address themselves they exclusively legislative wisdom.” of the writer character of the above as a high jurist forbids the that he commentator meant to de suspicion

clare that the could so exercise the legislature police power as to vested 'without destroy rights compensation, citizen is-left without redress in the courts. It true that in its enact such may, discretion, laws as it deem but its is limited may constitu proper, tional and there are and provisions, personal property rights and above its control. beyond

It is not claimed error, that the in plaintiff language of the learned who delivered the of the judge opinion Supremo. Court of Kansas, “could on with or without go legislation, and with or without a beer license, forever," manufacturing “ or he that, his continue to founds manufacture beer right and his vested solely exclusively supposed upon right oper

MUGLER v. KANSAS. 637 Statement of Ziebold’s Case. his in

ate undisturbed forever.” No such brewery tranquillity claim has ever in existed, except judicial imagination. But the does most and claim, plaintiff earnestly confidently, that his his as in vested him operate brewery laws of Kansas, cannot be taken the State without away by For an exhaustive of the just compensation. discussion ques see tion, above Wynehamer cited; State, Beebe 6 People, Ind. 63 S. C. Am. Dec. In 501; the matter 391; Jacobs House Y. (Tenement 98 N. Cigar Case),

Mr. B. S. General of the State of- Bradford, Attorney Mr. R. Mr. J. B. Kansas, Pede, and Johnson, George Mr. J. Barker for defendant submitted on George their -error, brief.

On 7th Kansas March, passed act to” the act of 1881. “amendatory supplemental made, other was amended so as to read Among changes § as shown footnote.1 here, reprinted although For convenience this section is be will infra, opinion found court. places liquors manufactured, sold, intoxicating Sec. 13. All where are

bartered, given away any provisions act, or violation of this liquors sale, barter, intoxicating kept delivery or where are or in vio- nuisances, act, hereby lation of this declared to be common judgment any finding having jurisdiction place court siich be a section, sheriff, sheriff, deputy, any nuisance under this or his under proper comity, any city constable located, or marshal of where the same is up place by taking posses- shall be directed shut alíate liquors therein, destroying together all.intoxicating sion thereof and found screens, bars, signs, bottles, properly all glasses, with other used in nuisance, keeping keeper and maintaining said the owner thereof shall; upon conviction, maintaining adjudged guilty be common nui- sance, punished by and shall bo a fine of than one not less hundred dol- dollars, by imprisonment nor county lars more than live hundred in'the. jail ninety thirty days days. attorney not less than nor more than general, county county attorney, or where such citizen nuisance exists, kept, maintained, an action in the maintain name of abate, perpetually enjoin injunction the State to the samo. The shall action, granted at the bond commencement of no shall re- quired. Any person granted violating injunction terms in such proceeding, punished contempt, by shall be fine than less TERM, Argument

Mr. Choate’s for Ziebold. On the 13th there was filed in the office of 1886, August, the District Court for Atchison, Kansas, County information Ziebold and his who were partner, proprie tors of a there. The -information that the brewery prayed be to be a common brewery nuisance; might adjudged it be ordered to be shut abated; the defendants up or from to be used the enjoined using permitting premises as a where were or place sold, bartered, intoxicating liquors or for were or baiter, otherwise given away, kept sale, gift, than and that the law; defendants by authority, might from and from enjoined keeping brewery open, selling, or or for sale, or away, barter, bartering, giving keeping gift, about use or for premises, barter, sale, manufacturing in the State of Kansas, malt, vinous, gift spirituous, or other and from fermented, intoxicating liquors, permitting to be sold, &c.,- sale, or manu &c., kept liquors in&c., the State of Kansas. On the defend sale, factured motion this case removed to ants’ the Circuit Court of the States, United where an bill in was filed, equity amended for the relief asked state court. After praying of issue the Circuit Court dismissed the joinder hearing from decree the State bill, appealed.

Mr. B. S. General of the State of Kan- Bradford, Attorney A. sas, Mr. Edwin Assistant Austin, General of that Attorney and Mr. J. F. State, Assistant General for Tufts, Attorney Atchison Kansas, for submitted on County, their appellant 25, brief. October Mr. 1887, moved the court to Bradford the cause and it for reopen reassign 26, October argument. the court denied the motion. Mr. H. Ghoate for Joseph Mr. M. appellee. Robert Eaton and Mr. John G. Tomlvnson were with him on his brief.

I. The entire scheme of the thirteenth section which at mere enactment to tempts by legislative convert building- dollars, one hundred nor more than or'by imprisonment five hundred county jail thirty days months, not less than nor more than six imprisonment, both such fine and in the discretion of the court.” v. KANSAS. Argument for Ziebold.

Mr. Choate’s nuisance, into common appellees machinery the execute and also destruction, their attempts to compass of the the appellees, by equitable criminal law against persons trial, law is an a common instead of attempt proceedings and their their with of liberty these property persons deprive of is therefore void; law,” absolutely out due and the was exercise and the Circuit Judge refusing in the Circuit Court for either of such vested powers equity purposes. the thirteenth connec- section, examination of

A careful that it a distinct rest of the discloses is act, tion with the legis- trial, methods of to the ordinary lative additional scheme, the other sections conviction and by punishment, provided at the methods those the strikes novel act, and property by which, thus a ih the manufacture, question presenting engaged considered can has been court. as we find, by so/far never a within the this section finding brewery the By legislature, the time of the —which in actual operation, up passage , — a and of the act lawful protected industry instantly, the exercise its trial or mere notice, without hearing, by it be a common declares and nuisance, arbitrary caprice, the to follow then consequences inevitably prescribes the and statute, mandate commanded judicial involving the and exercise no discretion judicial permitting judg found in the court is not ment. The brewery being operation, it but the nuisance, to determine whether is common under is to it to be one. It is not the strict behest of statute find enacted made or it which thus to be a making liquor all common nuisance, itself, but place including prop — common nuisance used erty maintaining keeping instruments material machinery, embracing building, without distinction. The thus without having signed judge — and it the fact his own inquiry against against the court edict of the is com judgment legislature, —the to take manded, officers, place possession shut of the court ; and, lest the clos up possession security not be sufficient establishment should ing abatement continuance of against business, TERM,

Mr. Argument Choate’s for Ziebold. nuisance is to be the destruction, marshal, completed by ; all the he has no discretion but to property destroy Ho cannot the Avhole. short at stop liquor, glasses, or the but must all demolish used kegs, keeping the nuisance. Nor is all this destruction of maintaining- to be made edict, forfeiture property, by legislative con conviction offence, but sequent upon the inter vention real action, judicial because the merely so commands. much of the

So scheme the section is-directed against but brevers, what directed follows, their liberty, personal equally extraordinary. 8th and 7th, 9th sections of the act,

By complete pro for the vision made conviction all avIio punishment after shall either manufacture sell Avithouta or, permit, having shall sell for but the But the permit, any excepted purposes. thirteenth section that in an action, com provides equitable for the abatement of menced the nuisance, which be insti may tuted the General, Attorney citizen county attorney, any AArlicrethe nuisance county exists, shall injunction at issue the commencement the which action, of course can be an the crimes only injunction manufacturing all that are manufactured or sold must selling; liquors be manufactured or sold in some it to may ¡dace, apply any offenders. And for Adulationof the that is, for injunction, the crime as for manufacturing con selling, punishment the of a court of tempt, by which follow, equity, abe much severe more than 'is may as the- penalty prescribed trial and conviction for ¡penalty upon keeping maintaining, nuisance, the for the latter be a of five may hundred dol fine lars and in the imprisonment not more than county jail, ninety Avliile former be an the days, may equal and'imprisonment fine for six months. The act does not the make trial and conviction for keeping the. nuisance a condition to its maintaining precedent or to abatement, the suit in which these equity penalties be inflicted ; but, as case of these appellees, equity invoked at the the edict outset, register legislature,

MUGLER KANSAS. Argument Ziebold. for Mr. Choate’s to take nuisance, the a common possession that the place the it, criminals fine .to punish destroy property and imprisonment. for the condemnation, rem forfeit

As the proceedings the as a for and destruction ure, punishment if of beer, it crime for legislature of using manufacture that as the case intended to accomplish purpose, present really, first had, conviction trial in a assumes, the intervention of a- court law, known .form we that it submit is a owners, in a againát bill equity, filed their clear owners of withou case depriving t that due is within the this, law; procéss assuming within State prohibit province proper and to declare the 'all manufac traffic intoxicating liquors, to be nuisances. ture of them and sale 13, ánd as In connection with regulating proceedings^ § culminate, in the it, to which are confiscation provided by ' it is to be noted especially destruction 21, all 14, provides original expressly amending § § first instance cases “it not be necessary .that shall did not have per prove party charged ” i.e., mit to sell liquors excepted purposes; intoxicating not- the '.one fact the State shall required prove constitutes, intended to be punished by offence which and of act loss presumption' liberty property; from the thus taken charged. of innocence away party 1, 61C. Am. Dec. 381, In S. McGirr, Fisher Gray, act Massachu under review the prohibitory brought in the unanimous are 1852, setts of opin principles laid.dówh . C. Shaw, J., ion of the delivered entirely Court, .which at bar. the case applicable'to to' of the' con

And the only attempt there as a forfeiture and fiscate and penalty by destroy and conviction of after trial the-owner. way punishment, at com is, that, Here the amyproceeding proposition with a violation mon 1cmto owner keeper charge in which a in a bill it. statute, equity, proceeding begun m to shall or on the trial not be to equity necessary allege,’ cxxm —11 vol. TERM, 1887.

642 Argument Mr. for Ziebold. Choate’s be one offence to indispensable constituting prove, fact did viz.: That not have the party charged punished, per for .the mit to sell liquors excepted intoxicating purposes,” of forfeiture destruction be property may punishment the decree of a court inflicted by equity. this a mode of novel criminad lain.

Surely administering law it. criminal And here administered being no can See also v. 1 Curtis, there be Greene Briggs, doubt. Hibbard v. The 4 311, 129 328; 126, ; Mich. Neitzell People, 14 Concordia, Kansas, v. v. 116 443; States, United Boyd . U. S. 616 We submit, therefore, it was within the not of Kansas, to the device enact legislation by resorting be', á to a nuisance, to enable brewery a'court ing operation to decree convict a citizen of crime, equity him confiscation and destruction of his punish property. cannot be way Bights “arbitrarily v. Yates 10 destroyed' injured.” Milwaukee, capriciously 497, 504, Wall. Hutton 39 J. 505; Camden, v. N. Law (10 on 122, 129, 130; Const. Lim. Cooley Vroom), (5th ed.), p. cases cited. 3 Missouri Lowrey Rainwater, ; App., Missouri, 152; C. 70 Ieck v. 251. S. 57 Cal. Anderson, Such determination would also be void, because, legislative where the health or morals did not injury fact it as exist, here, would be an with the interference absolute American citizen follow such every adopt pur fit, as he suit sees not, provided fact, “injurious Y. 377, 386, N. community.” People Marx, cases cited. ' Here, edict is to be carried legislative .not out, through of a instrumentality machinery municipal government, of a court of which is agency act, through equity, but as a but court justice, simply legislative agent, the decrees aof Such register body. legislative legislation has been held Louis, unconstitutional. v. St. Quintini 1 Southern Rep.

As to the proceedings against person, provisions the thirteenth section are in violation of equally flagrant v. KANSAS'. 643 Argument for Ziebold.

Mr. Choate’s that no State mandate shall.“deprive any per- constitutional or without due law? of life, son liberty process of a method contrived crime, punish They simply intervention of a court atrial, equity. by inflicted stat is a case fine and It clear imprisonment by known to the but all ute for crime committed, safeguards and the of innocence denied, common law for protection a so as to it conferred court office of equity, upon imposing assume to well the State avoid a trial As jury. might crime the same fashion; other treat punish t an ac of the state would be what thought to issue an a court injunction against authorizing equity and to when committed offence, or punish theft burglary fine and the amount a imprisonment, contempt, ? measured’out the statute of which was term both to As proceedings against applicable under thife section, those thirteenth person, a be stated as little general requiring proposition, argm that the criminal law cannot' be ment for its adminis support, courts of of a tered equity. jurisdiction through in cases so nuisance, called,. court public properly equity limited in is Even extremely- exceptional, application. its. “ can be invoked the in cases where jurisdiction question in cases of be tried must, doubt, nuisance by jury; will not as that is de granted injunction fact cided,.” 923,. 2 Jur. In this Story’s Eq. practice, jurisdic § almost nuisances nature of tion exclusively applied as, for instance, public rights purprestures fivers, highways, public streets, encroachments upon squares, accommodations, and other exer docks bridges, an information at the suit of the Attor cised through chiefly But 2 Jur. 921-924. General. Story’s ney Eq. juris §§ nuisance, idea that the diction not exercised on any ques is a or with a view crime, tion preventing punishing Crim. Proc. And act. Bish. 1417. this is so criminal § 1 Eldon that, said, reason as Lord court very equity crime." Smith, no matters Lawrence v. has jurisdiction Thorne, See also Hudson v. 261 Jacob, 471, ; Paige, Y. 362. &c., v. American 75 N. Davis Society, TERM; 1887. Mr. Argument Choate’s for' ZIebold. “ these

With general in mind as principles constituting settled course judicial that' “due' .is, proceedings,” process of law,” v. Murray Hoboken 18Co., How. Walker 272, 280; 92 U. S. Sauvinet, v. 90, the- Fourteenth 93, Amendment to the Federal Constitution was that no State adopted, providing “ shall life, any person without deprive liberty-or property ss due law.” On a.s proce therefore,” principle, “ Bishop “ -says, secures trial in the provision States' all jury cases in which at the time of its such trial adoption was a 1 Bish. Crim. deemed Proc. 891. right.” § fundamental. in its narrowest sense this court’s definition of Accepting ” “ due law Walker v. 92 U. S. Sauvinet, above process that it find was settled in .cited, we Kansas when these pro “ commenced that were settled course of ceedings th'e judicial involved the to a trial in- proceedings” right by jury, every criminal Such a trial case. for in the constitu provided 5 and tion of- the 10 the Bill of State, Bights, §§ of that has held that Court n'o is legislation Supreme with valid which conflicts those Atchison Street provisions. 31 v. Missouri Railway, Kansas, Railway Pacific elsewhere, established in as State, It is also firmly “ mean that A trial these is all jury provisions preserved it existed which constitution. prior adoption cases it It the trial it: It does not extend preserves jury, simply that' disturbed or limited.” In re is, not inviola remains te Petitioner, 758, 30 3 Kansas; ; Connor, 762 Kimball Rolf's Kansas, Ross 16 432; Commissioners, Kansas, 411, a a and that for matter made 418; prosecution penal a State, is license, laws selling liquor ' u a,criminal Concordia, action.” Neitzell v. unquestionably In re above cited. Kansas, 446; Rolf, that, more If It seem need be said. the' Avould nothing it cannot do cannot what accomplish indirectly legislature. is it it to of his how possible deprive party directly, trial a court of to a simply by authorizing equity jury case? It there- submitted, take particular jurisdiction the statute doubt that, that there not fore, slightest .by of Kansas has violated fundamen- the legislature question, in. v. KANSAS. Argument' for Ziebold. Mr. Choate’s course of tal “settled judicial proceedings,” principles, that the statute therefore the law of the unconsti- land, tutional and void. meet should with the already expressed

If propositions be decisive court, yould they necessarily .the approval the affirmance of the decree case, appealed require from. of criminal As law applied punish- procedure to be ment would held of offenders provisions, frorp and therefore due law,” fatal departure void. that the four the one

And,. provision point, with “in all cases” téenth section, dispenses proof-in which State, on the first instance part party “is one did have a indispensa charged permit, the crime under act, fact” thereby tailing constituting ble innocence, of is the fundamental’ the away presumption crime, with not is the only of every charged person right thir and but all other of void, teénth section unconstitutional parts so. act are the equally the Fourteenth Amendment

H. the of this Within meaning of their and with- the liberty act property appellees deprived and the and. im- law, out due of -abridged process privileges as citizens of the United States. of munities the appellees of this and of We also as claim proposition, support part of of the it was one the the time of the it, act, that'at passage their fundamental of as citizens the pursue appellees rights for beer and use that of brewery calling manufacturing their the exercise and the could restrain that only purpose, could that that this virtue police power; for the,extent reasonable and be exercised only necessary it exercised,, for which "was viz., of the object promotion of the morals and the. health preservation promotion far that act Kansas; beyond goes people .what that in such it reasonable, excess so necessary invades them of their deprives property; appellees rights for the use other their than that property it destroys does this without that it compensation,; police purposes; exercise any-legitimate such demanded destruction, TERM, 1887. 646 Argument Mr. Choate’s for Ziebold. of their power,' police depriving them property

due law. process At the it should mind outset, be borne in that-“ constitutional for the should be provisions security person property construed.” It is the of the courts to be liberally watch duty ful of constitutional encroach rights, against any stealthy ments thereon.” United v. 116 Boyd States, U. S. 635. As of the Fourteenth general Amendment, “that .intent be no there should of life or arbitrary deprivation liberty, arbitrary Barbier see spoliation Connolly, property,” Yick Wo 31; U. S. S. Hopkins, U. in this presented case

Assuming question wholly with we submit deference that open, principle only saves from as condemnation, and im abridging -privileges munities of citizens United States, persons depriving of their without due state statutes law, Avhich invade of citizens and the peaceful occupations use them of their theretofore purposes permitted is the exercise of lawful, proper police power by legiti methods; far mate and constitutional so as such that, statutes do exercise and outside such meth go beyond proper do still ods, rate, at AÚolatethe Fourteenth Amend they citizens, entitle Avhose ment, privileges thereby abridged, citizens are that, when of their thereby protection; depriAred are still of it without due they deprived process of even law, be called though poAverworking deprivation power ; and that statute present Kansas, so police rate, at use far, prohibits their appellees the manufacture of beer, and enacts their brewery building and to be a nuisance, and dooms it machinery to destruc public the the mere of does tion transcend legislature, fiat in exercise or police power legitimate prohib regulating in the and is therefore void. intoxicating liquors, iting traffic limit to the That there exercise of the in police power and in business and that case, invading any given limit is found in what and reasonable for" necessary the which evil or threatens the guarding against injures case, welfare the cannot, given legislature v. KANSAS. 647-

MüGLER Argument for Ziebold. Choate’s Mr. of a' regulation, the pretext police go beyond

under guise down innocent invade and strike occupations that limit, and invasion of which are not the destruction property, private the needed relief the necessary accomplish reasonably abundant author reform, sustained needed propositions to be in the each and this, legislature ; allowing though ity evil of extent to is to be which existing case judge or prohibited. regulated Kansas sole of judge

Now, allowing legislature the morals the hab in how far shall of they go reforming the food and the prescribing its and regulating appetites are not to Kansas, certainly they drink of per of people habits the food and and the the morals mitted to regulate the United or the States, of res drink the rest people t of a for their under law when, liquor mankind; guise down persons strike occupations deprive own they people, to affect have no even the tem tendency do their Kansas, exceed the inhabitants they perance with the Fourteenth and come conflict powers, recognized Amendment. immoral or Where occupation itself no we make or to health safety, question

noxious and even them, its hand upon lay and, out of the where them in a case, way, put proper them. to destroy necessary, the familiar need to propositions Nor do we gainsay e on in th brief and relied cited, part law

State. v. 6 Peck, decisions Fletcher

But, light Lake 386; 3 Dall. View v. Bull, Calder Cranch, 87, 135; v. Jackson Co. Co., 191; Railway Ill. Hill 70 Rose Cemetery 25 Cases, inJ., Intoxicating Liquor Ill. ville, ; Brewer, Case, 98; 98 N. Y. House Cigar Tenement Kansas, 751, 765; insist that we cited, respectfully above Marx, People as it so far Kansas, goes beyond statute of the prohibitory and the morals tend that can protect fairly everything absolutely prohibits Kansas, habits of the people for sale at their brewery beer from manufacturing appellees OCTOBER'TERM, (cid:127)648 Argument Mr. Choate’s £or Ziebold.

m other and and countries, so as far it enacts especially States and their to be a common machinery buildings nuisance, s condemn them and destruction, exceeds the confiscation bounds exercise of.any proper police power, has the- utmost of constitutional beyond and to gone verge power, at extent, least, that of their deprives appellees “ due law,” their- abridges rightful and immunities as citizens. privileges ,will It not be the mere existence of the pretended in or the mere existence of beer therein in brewery operation, or in the the vats not intended for original sale packages, the, in the State, detrimental consumption any way in. health, or the morals Kansas, safety, people in remotest in tends its degree direction; world, other markets of the or the country, destination entirely consistent is' not with the complete pre- perfect of its vention State. consumption within.the safe is there in Nor the conduct of the business of anything beer,in or the or in vats, brewing, presence original in the intended for sale or brewery, packages consump State, in tion within which is the least akin the un wholesome trades and cited Chancellor Kent occupations referred, so in the often nor it to; said,that can be passage there is immoral the business of in its anything brewing, e On th of Massachusetts product. contrary, June, 1789, An act passed encourage manufacture leer, ale, oilier . malt consumption strong liquors.” There can no doubt- that the absolute prohibition by the use of the statute of which was owned brewery, appellee’s enactment, before the does in the sense of the law by-them them of their as if the actually deprive completely fee nine-tenths of were blotted out of ex destroyed this, istence the same enactment. show and it proofs of" conceded the brief on the State. part ,is.practically f dollars out o their thou It thousand fifty-five destroys sixty .of sand property. sipce this court

This can hardly open question case Green Bay Company, Pumpelly decision v. KANSAS. Argument for Ziebold.

Mr. Choate’s the what amounts 177, where of 166, question Wall. to.'“de ” decided. a of plumply person property priving that the that it was held case, In flooding, plaintiff’s the/ a dam defendant erected was in company, lands law, in of his And a effect takvng there property. though ” “ without; difference between. taking property great “ of his with depriving person compensation, property of law,” out due of view there .can many points process ” “ “ man’s that is no doubt him property taking depriving the same must have of that been used it,” language result if court and reached it had been the the same applying the the latter constitutional as it did provision,against wrong . that the former use See also against provision, applying S. 113, 141; 94 U. Babcock Munn v. Illinois, v. Buffalo, Co. v. 83 N. Y. Y. 189. 268; Bridge Paige, N. Chenango we have established that so far then, act, as it ex- If, the. the the exercise of ceeds necessary legitimate police power, of the' the use defendants’ brewery by prohibiting the. to be sold State, beer without manufacture of unconsti- their, tutional, it because deprives appellees previously due it without of law, must follow process property acquired' of the act, the entire as manufacture, prohibitions makes no between it distinction are invalid because pro- within the of the:State it is hibition which power impose,' in excess of' its lawful which is The and that authority. determine in each case cannot be left to whether ‘the' courts act, the intent of brewer or brewery within implicated an intent on which or innocence or make depend upon guilt . it the intent to sell not itself make viz., the act does dependent, within or without State. the beer statute one where as man case not part is constitutional can which independently' ufacture operate a vital which is But part unconstitutional. part and 'the act act itself unconstitutional, being prohibition rest,- from the no them means affording discriminating together. Wynehamer People, 13 Y. fall See must whole N. Kern.) (3 if of the state

III. But and authority TERM,. 1887. Argument for Ziebold.

Mr. Choate’s outside for sale whether beer, the manufacture to prohibit be absolute' held' to or within shall be State, it, doctrines maintained by then we -unlimited, submit, upon York the case Wynehamer of New the Court Appeals below, the Circuit Judge supra, People, owned, possessed brewery, its appellees’ application of. the statute took effect, them when act and used by h because it de Amendment, Fourteent Kansas violates the of law.” due them their prives of brewing, the act to be an absolute prohibition Assuming it did at the moment of as such passage, upholding of their only by destroying appellees deprive it was which it and of capable, use for was designed, had if the fee itself which was as a deprivation complete the,, immediate to the State.' operation been forfeited By the act committed statute, appellees the any without which the law existence of its the violation provisions, legal is as destroyed, and the Constitution designate property if the itself effected as is as thing the injury completely private taken were away. physically and its use for the the

When this law brewery, passed, in the of which it was was property susceptible, only purpose term, the and as sense of most absolute unqualified lands, as of the Constitution much entitled the as protection makes Constitution or chattels of houses, any description. if different kinds of between no discrimination as we the Constitution from such legislation protected it inno- it is because now protected property considering, laws, under and not any theory existing cently acquired of its utility. comparative to be the the owner

If the community requires good no matter benefit, itof for any purpose public deprived be should common what, justice compensation requires it take statute which does away for it, directly made any for the uses of the from the owner compensa- public him of it of law. without due tion, deprives is cer- William Blackstone wrote a What Sir century ago under the which exists now as applicable property tainly v.' KANSAS. MUGLÉR Argument Ziebold. for Mr. Choate’s as it was then to constitutional provision protection such, had shield no against legisla- England, property the law for the encroachment: “So regard tive great will not -least viola- it authorize private the whole it; 'even no, tion of general good, of for it be In vain good community. urged to that for it individual community, ought yield man or allow even would private dangerous this common and to' tribunal to be Judge good public or not. Besides,'the decide whether it be expedient interested than more essentially pro; good nothing as modelled tection of individual’s every private rights alone can and does law. The legislature frequently municipal individual how But interfere acquiesce. compel ? Not does . by absolutely compel stripping interpose in cm but manner, his arbitrary giving. subject of him a indemnity eguimalent thereby injury full Bl. Com. 139.) sustcuvnedP (1 all the act should' For present purposes argument “ To it read : enable the- State administer be construed if liq laws its other the use and enforce intoxicating' State from and after date when brewery every uors, From, be at shall and forever closed.” this act takes effect once the act took effect the the moment brewery appellees with a could not instant view to its kept open single á one of use for except practically impossible any purpose medical, scientific, mechanical De purposes. brewing curat lex. The minimis non infinitesimal establishes exception of the act.' the universality prohibition sweeping of the statute in New York on manu- The effect attempted at all the time of its factured liquor existing passage, was taken the- title and- or use .which sale away, although in was left with and the demonstrated owner, possession Comstock in his to*be the' .owner by Judge opinion' depriving “ without due law,” of his no success- property process has ever been nor as we believe be made, ful answer can any this of “due made to His definition argument. process in as used the Constitution and to such law,” applicable has never 13 N. Y. 392. cases, (3 been surpassed. Kern.) p. TERM, 1887. Argument

Mr. Vest’s for Ziebold. 171; 3W. & Heist, also Norman v. S. Taylor Porter, See C. 11 Am. Dec. Hoke v. 274; Henderson, 4 Hill. S. 140; 25 Am. Dec. Law, 1; S. C. Devereaux these authoritative the statute of Kan- Tested by definitions the as it await- sas,- brewery operates upon appellees’ cannot, act of law on their itself' or violation part, ing as due of law.” mere set By operation up the actual and commercial itself, more, law without'anything annihilated. It it is cannot value used; property fór a moment’s use unlawful use it; made single attempted the act'takes effect all is withdrawn after legal protection it becomes a nuisance and doomed to actual from it; destruction. so laid'down this doctrine emphatically

According by in case, court entire substance Purrvpelly repeated of Munn v. Mr. Justice Field the case Illinois —all that it; is beneficial use enjoyment if that-is taken matters use is’the not away, left of title and are him that the husks with possession empty was once the owner. who for addition

Mr. G.Vest George points appellees, in. him in contended as follows: If the Case, made by Mugler's of Kansas amendment and statutes constitutional prohibit beer, manufacture storage personal exportation Constitution violate the Federal use, denying rights they a citizen States. citizen as United which every belong “ if do for hot counsel say It will opposing prop- if is of value used used defendants undiminished erty sale, fpr barter, manufacturing purpose'of gift States, if, of the United other sovereignty- parts defendants are not restricted use these proceedings, for such then these purposes, premises they enjoyment of it or of use or of their not deprived the Fourteenth Amendment.” within guarantee value Kansas, statutes of amendment The constitutional qannot and'without which it action, basis of constitute the' manufacture of beer at do stop prohibiting exist, .KANSAS. n Court, Opinion of the and sale-in but Kansas, thé they absolutely barter prohibit three, ,in in the State manufacture except specified'objects, which the manufacture for sale and barter in other is States not included.

These enactments must or fall their own stand upon legal effect, uncertain changing pleadings officers. prosecuting

We concede that the Fourteenth Article of the Fed- freely eral intended of-individuals Constitution protect rights as citizens of the United but States, no has the. power citizen of the manufacture deprive right unless its manufacture article, the lives endangers injures others. the health police power given States protect and morals of its but no citizens; convention or legislature - from, under the can, take guise exercising power, citizen his to manufacture unless the beer, of its manufacture the existence of the beer afterwards injuriously affects others. It is not these effects follow pretended-that ; them, does not and, exist. without Mr. Justice Harlan delivered the of the court. opinion These cases involve. an into the of certain inquiry validity statutes Kansas to the manufacture and sale of relating intoxicating liquors.

The first-two are indictments, charging Mugler, plaintiff in one error, with and in case, sold, with other, having manufactured, vinous, having malt, fermented, spirituous, other in Saline Kansas, intoxicating liquors, County, the license or the statute. The having permit required defendant, been found was fined, case, each having guilty, one hundred dollars, ordered to be committed to the until the fine was county Each jail paid. judgment affirmed Court of Supreme Kansas, thereby, contended, defendant was denied rights, privileges, immunities the Constitution of the guaranteed United States. IM, T

65é Opinion tfie Court. — & —-was Kansas v. Ziebold com Hagelin The third case in of the courts of the State.' The filed one menced by petition is: 1. That Atchison relief buildings group sought of the Kansas, defendants, brewery County, constituting & be a common'nui as Ziebold adjudged partners Hagelin, or directed to shut and the sheriff other sance, officer up proper abate, 2. That be same. defendants enjoined from or to. the said as used, using, premises permitting or where be sold, bartered, place intoxicating liquors may than sale, or otherwise barter, given awajq gift, kept of law. authority of the

The .defendants answered, allegations denying said were That erected First. buildings petition, averring: them Kansas, people prior adoption, constitutional amendment the manufacture and prohibiting than medicinal, scientific, sale of for other intoxicating liquors and before the and mechanical passage purposes, pro statute of that State. Second. That were they hibitory liquor beer, for the cannot be erected purpose manufacturing if not so will be of little use; and, used, other they put under which said suit That the statute value. Third. brought the Fourteenth Amendment Constitution is void under States. of the United. of the defendants the bond cause was

Upon petition of the United into the Circuit Court States for the removed Kansas the suit was one aris District of upon ground the Constitution of the United States. A motion to under ing state court was denied. The remand it to the were pleadings so as to conform to the courts of recast practice equity heard and, the bill States; the United having'been .cause - From that the suit was dismissed. decree the and answer,' an appeal. prosecutes March a statute of Kansas, 3, 1868, Ry. approved misdemeanor, amade and’imprisonment, punishable fine vinous, to sell one, for any directly indirectly, spirituous, other fermented, intoxicating liquors, having . It was also enacted, license tavern, dram-shop, grocery other where among things, every place intoxicating liquors v. KANSAS.' MUG-LEE - Opinion of the Court. statute should

were sold violation of the held, taken, to be a common and it nuisance'; and deemed was required that all rooms, taverns, bazaars, eating-houses, restaurants,, coffee-houses, or other cellars, resort places public groceries, were violation of sold, where should law, intoxicating liquors Kansas, nuisances. Gen.. Stat. 1868, be abated c. 35, §6. a more 1880, Kansas But, people adopted stringent the 2d of November of that ratified On year, they policy. the state constitution, amendment declared sale should be forever manufacture intoxicating liquors in that State, medical, scientific, except prohibited . mechanical purposes. to that amendment,

In order effect give the act of an act, passed approved repealed February " to take effect entitled An 1, 1881, act to 19, 1881, May pro manufacture and sale of hibit the intoxicating liquors, except and mechanical medical, scientific, for purposes, regu manufacture and sale for the thereof such late excepted pur " Its section or provides any poses." person persons first or barter manufacture, sell, malt, shall any spirituous, who or other vinous, fermented, shall be intoxicating liquors guilty a misdemeanor: That Provided, however, such liquors may medical, scientific, sold for and mechanical be purposes, pro in this act." The second section vided makes unlawful for or sell barter for either such any person excepted pur malt, vinous, fermented, or other intoxi any spirituous, poses liquors cating having procured druggist's permit without therefor, conditions which such prescribes upon permit The third section relates to the granted. giving for to be used prescriptions physicians intoxicating liquors their to the sale of such fourth, patients, liquors by fifth section manu from forbids druggists. person or in the manufacture of assisting facturing intoxicating liquors for State, medical, scientific, in the and mechanical except purposes, f nd makes for o licenses to provision granting a g in the business for such engage liquors manufacturin The seventh section declares it to be a excepted purposes. TERM,

Opinion of the Court. for any person, having misdemeanor required permit, or or sell barter, malt, vinous, directly indirectly, spirituous, or fermented, other intoxicating liquors; punishment pre scribed first a fine not offence, less than one being, nor hundred more than five hundred or dollars, imprisonment not less than nor more than county jail twenty ninety for the second a fine of not less offence, than two hun days; dollars, dred nor more than hundred five imprisonment not less than nor more than six county jail sixty days months and for ; offence, fine not less than every subsequent five hundred nor more than one thousand dollars, or imprison ment in the not less than three months nor more county jail than one or both such fine in the dis year, imprisonment, cretion of the court. The section for similar provides eighth fines and who punishments manufacture, against persons aid, or abet the assist, manufacture of any intoxicating liquors The thirteenth section having required permit. declares, other all where among things, places intoxicating bartered, are manufactured, sold, liquors or are given away, sale, barter, violation kept use, act, com mon nuisances; and provides judgment court to be a having jurisdiction nuisance, finding place officer shall be directed to proper shut abate the up same.

Under that statute, were prosecutions against Mugler instituted. It contains other- sections addition to those above but as to; referred' they details embody merely scheme general adopted by prohibi- of the manufacture and sale of tion intoxicating liquors, except for the it is to set them purposes specified, out. unnecessary

On the of 7th March, 1885, the an act legislature passed to that of amendatory 1881. The supplementary thir- teenth section of the former: the act, one which' the being suit Ziebold & is" will. be in founded, Hagelin -given against full in- a of -this subsequent part opinion.

The 'facts to a clear of necessary the understanding ques- tions, common to these are the cases, following: Mugler Ziebold & were Hagelin beer at engaged manufacturing v. KANSAS.

Opinion of tile Court. for that establishments, (constructed specially their respective the consti- the several adoption years prior purpose,) continued such business of 1880. tutional amendment They without 1881, of the statute having in defiance have a license or did Nor permit Mugler required permit. was found of which he The sale guilty beer. sell single is, after 1, 1881, and after State, May occurred man- of beer took and was effect, 19, 1881, act of February ufactured before'lt's passage. these breweries

The machinery constituting buildings value if not used manufacturing are of little purpose are if the statutes enforced that is beer; say, will be the value of their materially defendants very diminished. in each case whether is, foregoing general question clause of Four- with that of Kansas conflict statutes “ no shall make State Amendment,

teenth provides or shall law which or enforce any abridge privileges States; nor of citizens of the United shall immunities life, any person liberty, deprive due law.” a State

That manufacture legislation prohibiting limits of to be sold within her there liquors, intoxicating use as a not necessarily bartered general beverage, does secured the Con- infringe any right, privilege, immunity United is made clear the decisions States, stitution rendered before and court, since adoption to some of view Amendment; which, Fourteenth ques- considered, to be it will be to refer. tions well presently 5 How. whether Cases, was, In License question New Rhode Massachusetts, Island, certain statutes were sale Hampshire, relating spirituous liquors to the Constitution of the In United States. deter repugnant became whether mining question, necessary inquire there conflict between the of its exercise by Congress countries, commerce with among regulate foreign of what are States, the exercise a State several did members of the court called police powers. Although CXXIII VOL. —4:2 TERM,

Opinion of the Court. not as to which the fully grounds decision agree upon should be were unanimous in they placed, holding statutes then under examination not were inconsistent with the Constitution of the United or States, with act of Chief Justice “If said: Congress. State deems Taney the retail and internal traffic ardent spirits injurious citizens, calculated to produce idleness, vice, or debauch I see in the Constitution of the ery, United States to nothing it from prevent regulating traffic, from restraining it if dt thinks prohibiting altogether, Mr. proper.” (p. 577.) Justice McLean, other “A said: among things, regu lates its domestic commerce, contracts, transmission of real and estates, and acts all personal, internal matters which relate its moral and welfare. political Over these the Federal has no subjects . . government . power. The of a State extends often to acknowledged police power destruction of A nuisance be abated. property. may Every health morals of thing prejudicial be re city may moved.” Mr. Justice (pp. 589.) observed: Woodbury “ How can they within their sovereign [the States] respec tive all spheres, their regulate internal com merce, well as and direct how, it police, when, where shall be in articles connected intimately conducted either with morals, or or the public safety, public prosperity?” Mr. Justice in still Grier, more (p. 628.) emphatic language, said: The true these question presented by cases, one am which I evade, is whether the disposed States have the' sale and prohibit article consumption commerce which believe to be in its they effects, pernicious and the cause of disease, . crime. . pauperism, . With out to define what are the attempting peculiar subjects limits of this power, safely affirmed, that every law for the restraint for the crime, punishment preservatidn and morals must health, come within public peace, . . It is not . for the sake of category. necessary, justifying the state now under legislation consideration, to array statistics of appalling misery, crime, pauperism, their have use abuse of ardent origin spirits. v. KANSAS.

Opinion of the Court. is alone com States, which is exclusively police power, evils, these all measures correction of great petent to the effect restraint or purpose necessary prohibition 631, of that within authority.” (pp. 632.) the'scope it was said 129, 18 Wall. In v. Iowa, prior that Bartemeyer state enact Amendment, the of the Fourteenth to adoption the or ments, intoxicating prohibiting regulating traffic the the Constitution raised no under question liquors, to dis was left the that such States; United legislation limitations to no other States, of the cretion subject respective constitutions, own or their gen those than imposed by Refer limit to all power. eral legislative principles supposed to sell contention that the intoxicating liquors right ring court Amendment, the said the Fourteenth was secured by " it is one of as not so far such exists, rights right In of the United States." Beer out of citizenship growing "as a that, was 33, said, 97 U. S. 25, v. Massachusetts, Co. to preservation measure looking police regulation, the manufacture law morals, a state prohibiting clause is not liquors repugnant sale intoxicating in Foster United States." the Constitution Finally, court said Kansas, 201, 112 U. S. question the manu of a State to the constitutional prohibit power no and sale of facture open intoxicating liquors longer rest in this court. These cases one upon acknowledged their inter of the Union to control of the States purely morals, and, health, in so affairs, nal protect doing, not interfere with do of their safety people regulations or the execution government, powers general of the United the Constitution secured violat rights e as was said The to establish States. regulations, reaches 1, 203, 9 Wheat. everything in Gibbons Ogden, to the national of a not surrendered State territory within government. the State is, contended, that, however, may

It although pro for barter sale or intoxicating liquors hibit manufacture conven as a no use limits, within her general beverage, form of under our or has the tion right, govern TERM, Opinion of the Court. citizen ment, from prohibit any his own manufacturing or for use, article of food export, storage, or drink of others.” affecting endangering rights argument made of the first branch of this support proposition, briefly that in is, stated, implied between the State and compact the citizen certain are reserved rights latter, which are the constitutional guaranteed by provision protecting persons life, against being deprived liberty, due and with law, which the State cannot inter fere that those is that of ; among rights manufacturing use either food one’s and that drink; while, according the doctrines of the Commune, control the habits, tastes, dress, appetites, food, drink people, our based system government, individuality of the citizen, does not claim control ex intelligence him, to to as his conduct him others, the sole as cept leaving judge to all that himself. affects only

It that will be observed and the proposition, argument made concede that it, to manu support equally facture drink one’s use is to personal the condition subject does that such manufacture or affect endanger rights If of others. manufacture does affect prejudicially and interests of the it from community, follows, rights has the stated, to very premises society power protect itself, by legislation, injurious consequences business. As was said Munn Illinois, 94 113, U. S. 124, does not exist with whole while to control power people that are purely exclusively private, rights government “ each citizen to so conduct and so use require himself, his oaaüi as not another.” injure unnecessarily

But what is it whom, to be determined authority, whether the manufacture of articles of drink, either particular use or for the use will general personal maker, injur affect the Power to determine such iously public? questions, bind so as to must exist will all, somewhere; else be at society who, the few, their own mercy only regarding appetites be passions, may willing imperil peace security do are many, only provided they permitted they KANSAS. 661

Opinion of the Court. our Under with the system lodged please. leg branch of the It islative to that government. belongs depart to exert what are known ment as the police powers and to State, determine, measures are what primarily, appro or needful for the morals, the priate protection public or the health, public safety. It does not at all follow that statute enacted osten every for the to be as a ends, sibly promotion these accepted exertion of the of the State. There legitimate police powers limits are, cannot necessity, beyond legislation right While is to be every fully go. possible presumption indulged in favor of the of a Fund validity statute, Cases, Sinking 700, U. S. the courts must the Constitution rather obey than the must, department law-making government, their own determine whether, upon responsibility, any par " case, ticular these limits have been To what passed. purpose," said in Cranch, Marbury v. Madison, 137, 176, and to "are what is that limited, limitation powers purpose if committed to these limits at writing, time, may, intended ? The restrained distinction passed by those between with limited and unlimited government powers if those limits do not abolished, confine the on whom persons are if acts and acts they allowed are imposed, prohibited The courts are not bound mere equal obligation." nor are forms, be misled mere they pretences. They at are under a indeed, solemn — to look liberty duty — at the substance of whenever enter things, they whether the has transcended the limits of inquiry a statute If, therefore, have been authority. purporting enacted to the the health, morals, the protect public public no has real or relation substantial to safety, those public or is a invasion of secured objects, the palpable rights fundamental it is the of the courts to so law, duty adjudge, to the effect Constitution. thereby give in view these the relations

Keeping principles, governing and' of judicial legislative departments government with each it is difficult other, to for the any ground perceive to the Kansas of the judiciary prohibition by declare TERM, n

Opinion of Court. the manufacture or within her sale, of limits, intoxicating liquors use there as is not general beverage, fairly adapted for. the of end the evils community protecting result from the confessedly excessive use ardent spirits. no There is that the justification State, under holding guise merely here police regulations, aiming, deprive the citizen of his constitutional for we cannot shut rights; out of view the within fact, that the all, knowledge public health, and the moráis, public safety, public use of endangered general drinks; nor intoxicating the fact, established statistics accessible to one, that every idleness, disorder, crime in the pauperism, existing least, are, some at country traceable to this evil. degree If, a state therefore, deems the absolute prohibition within, manufacture and sale, her limits, intoxicating for other medical, and manufactur- liquors scientific, than. to be ing purposes, necessary peace security cannot, courts ^society, func- usurping legislative override the will of the tions, as thus people expressed by their chosen have to do They with representatives. nothing the mere it is a Indeed, fundamental policy legislation. in our institutions, principle preservation indispensable that one of the liberty, separate departments shall not committed the Constitu- government usurp powers tion to another And so, if, department. judgment manufacture legislature, liquors intoxicating the maker’s own uáe, as would if tend beverage, cripple, it did not defeat, effort guard community against the evils the excessive use of such it is not attending liquors, for the their views as to what is courts, best and safest for the determination community, disregard legislative of that from So far such a no question. regulation having relation to the end to be general accomplished, sought entire scheme of as embodied the constitution prohibition, and laws of Kansas, if each citizen to fail, might right manufacture for his own use as a liquors intoxicating beverage were Such not inhere recognized. citizenship. .does Nor^can it be said interferes with government impairs- v. KANSAS. 663

Opinion of the Court. or constitutional liberty one’s rights. property, that the manufacture and sale of intoxicat- it determines when are, as a use, drinks, beverage, individual general ing therefore, a constitute, hurtful to become, society, may Those one which-no may lawfully engage. rights business the observance, in our secured, upon are best government, as are established com- of such all, the regulations part common No one the good. petent promote authority reason- which the do that ppwer, upon law-making rightfully welfare. to be able declares general prejudicial grounds, unless the Fourteenth is unavoidable, conclusion This the States of takes from Amendment of Constitution at time were reserved of- those Union police that powers has declared, was But court adopted. Constitution original 113 U. S. 27, v. Barbier consideration, full Connolly, , had no such effect. Amendment the Fourteenth 31 that Amendment other After among things, -observing, life liberty, forbade arbitrary deprivation and secured equal protection property, arbitrary spoliation as well to their -circumstances, to all under like respect per as to their and civil sonal enjoyment rights acquisition — But the court said: neither Amendment other is—nor amendment, broad comprehensive State, with the some to interfere designed its times termed power, prescribe pro police regulations order of education, health, morals, mote the good peace, so as increase the industries and to legislate people, its and add to wealth resources, State, develop prosperity.” when State,

Undoubtedly providing, by legislation, or the health, morals, public protection authority subject paramount public safety, violate States, of the United rights Constitution and may or interfere with instrument, secured guaranteed confided the execution of the general govern powers 92 U. S. 259; Henderson v. New York, ment. Mayor of 95 New Orleans Gas Co. Husen, 465; U. S. Railroad Co. 115 650; U. S. Co., v. Louisiana Walling Michigan, Light TEEM, OCTOBEE

Opinion of the Covirt. Wo v. 118 U. 446; U. S. Yick S. Hopkins, 356; Morgan's Co. v. 118 Health, Louisiana Board U. S. 455. Steamship of — if dowe the Upon ground misapprehend position — of defendants it is as the that, contended primary a use of beer as as their principal beverage; respective breweries were erected when was lawful to in the engage manufacture of beer for as such establishments every purpose; will of as become no value at or, least, will be mate property, in diminished value, if not in the rially manufacture employed of beer for the ; their so every purpose prohibition upon being a is, effect, for use with employed taking public out the citizen of his compensation, depriving without due of law. In other words, process the although in the her State, exercise of may police powers, lawfully pro hibit the manufacture sale, within her limits, intoxicat to used as a ing liquors beverage, legislation having in view cannot be object who, enforced those at against the time, to own the chief value which con happen property, sists in its fitness for such unless com manufacturing purposes, first made the pensation diminution value of their from such property, enactments. resulting prohibitory This of the Fourteenth Amendment interpretation is inad missible. It cannot be that the States supposed intended, by Amendment, restraints ex adopting the impose upon ercise their for the powers protection health, safety, or morals of the In to contracts, the community. respect hostile state obligations protected against legis this court in v. lation, Butchers' Union Co. Crescent Co., City 111 S. said 746, 751, U. State could not, con by any limit the tract, exercise her power prejudice health and the inSo, morals. v. public Stone public Missis S. 814, 816, U. where the sippi, Constitution was invoked charter, repeal by granted pri vate to conduct a which that corporation, cor lottery, to the State a valuable consideration in poration paid money, the court said: "No can away public bargain or health morals. themselves cannot do The public people it, much less their servants... . Government organized KANSAS.

Opinion of the Court. view their cannot with divest itself of preservation, them." New Orleans provide Again, Gas power 115 U. S. Co., Louisiana 672: "The Co. Light consti state laws tutional prohibition impairing obligation does contracts not restrict the of the State to protect morals, health, public public safety, public the other be involved the execution of the one or from with contracts. contracts Rights privileges arising for the a State are subject regulations protection health, morals, public safety, public the same as are all contracts and extent, all sense, same whether owned natural persons corporations." property, that no shall be lib life, person deprived principle, due law, embodied, erty, if of of all, all, in the constitutions the in substance, nearly of the the Fourteenth Amend the time of States at adoption it never been with has ; regarded ment and incompatible to the vital, because essential peace the equally principle, all in this held of society, property country safety it that the owner's use of shall under the obligation implied to the Beer Co. Massachusetts, community. not be injurious 53. 7 Cush. An Commonwealth 25, 32; Alger, U. S. 97 afforded Patterson v. Ken of this doctrine is illustration as to the The there was U. S. 501. question validity tucky, 1874, enacted a statute Kentucky, imposing penalty oils fluids, one sale the offering selling upon other bituminous substances, coal, petroleum, product at a below 130° burn or which would ignite temperature within that common sold, Patterson Fahrenheit. having were issued in for which certain wealth, oil, letters-patent did not the standard come but which up required by indicted therefor, been statute, having disputed said or obstruct the exercise State's authority prevent Kentucky, court legislation upon This upheld right. the exclu could not State that while impair the ground, his in the or of discovery assignee, sive patentee, the fruit tangible described letters-patent, of her the exercise control was not of the discovery, beyond TERM, 1887. Opinion of the Court. " It said: the settled doctrines this By police powers. at extends, court the least, power police protection and the health, lives, community exercise citizen of his own injurious against rights. strictly legislation, legitimately police purposes, in the sense of the does not, Constitution, intrench necessarily which has been authority confided, upon any expressly to the national implication, government. Kentucky under statute examination to that manifestly belongs class of inis, It the best sense, mere legislation. police regulation, deemed essential of the lives protection and property of citizens." 504. to the numerous p. Referring decisions of this court guarding com Congress regulate merce under the encroachment, of state guise regu established and with lations, the effect of purpose secured destroying impairing rights Constitution, was further said: "It has, nevertheless, with marked distinct ness and uniformity, recognized out necessity, growing conditions fundamental of civil society, state upholding which were enacted faith, and had police regulations good direct connection with that appropriate protection life, which each State health, owes to her citizens." 41; See also United States v. 9 Wall. Dewitt, License Tax 462; 5 Wall. vear v. Per Cases, 5 Wall. Commonwealth, point decision, Another much very branch of Co. v. S. case, 97 U. Fertilizing Hyde Park, 659, 667, also decided after the of the Fourteenth Amendment. adoption The court there sustained the of an ordinance validity in Cook Park, village Hyde under County, Illinois, passed from authority, forbidding legislative any person transporting that offal or other offensive through village unwholesome or from on matter, an offensive or maintaining carrying unwholesome business establishment within its limits. The at had, and under au Fertilizing Company large expense, conferred its charter, located its works thority at expressly a the charter Besides, of the point county. particular at that that it should not time, interfere with village, provided animal matter from parties transporting engaged Chicago, m v. KANSAS.

Opinion of the Court. or from it into a fertilizer or other chemical manufacturing The enforcement of the ordinance in product. question oper ated to the business the destroy company, seriously the value its As, however, business impair property. had become a nuisance it was con which community and often ducted, discomfort, sickness, producing among large masses the court maintained the people, authority under sanction, to village, acting legislative protect public health such nuisance. said: cannot "We doubt It State and ade was police power applicable an effectual That give quate remedy. power belonged the States when Federal Constitution was adopted. They did it it, not surrender all It have now. extends they the entire business within their local jurisdiction. it Both in all cases. rests It subject proper shall his fundamental one so use own as principle every To not to another. and abate injure wrong regulate of its nuisances is one functions." ordinary It is defendants that the doctrine for which supposed contend is sustained 13Co., Green Bay they Pumpelly Wall. But that view we do concur. That was for the action for the recovery damages overflowing land from the construction by water, of a plaintiff's resulting dam across a The defence dam river. consti tuted system part adopted impro Fox and rivers; Wisconsin and it was ving navigation as the contended that com damages plaintiff were result of the under only plained improvement, legis stream, he was not sanction, lative entitled navigable from State or its The case, there agents. compensation involved whether fore, question overflowing to such an extent that became land, practically plaintiff's was a to be within the mean used, unfit taking Wisconsin, of the constitution of that "the providing ing of no shall be use taken person therefor." This court said it would be just compensation " if were it held result, that, curious unsatisfactory very refrains from the of real absolute conversion the government TERM, 868 Opinion of the Court. to the uses of the it can its value public, property destroy inflict can entirely, irreparable permanent injury in it to effect, total extent, can, without subject destruction, in the because, narrowest sense of making any compensation, it is not taken for the word, use. Such a construc- public tion would the constitutional into a restric- pervert provision tion of the as those citizen, stood at rights rights common instead of the law, and make it an government, for the invasion of under the authority private right pretext of the which had no warrant public good, laws of our ancestors.” 177, 178. practices pp.

These have no to the case under con application principles in sideration. The v. Green Com question Pumpelly Bay arose under the State's of eminent while domain; power pany before now us arises under what are, question strictly, of the exerted for the State, of the police powers protection That health, morals, safety case, people. court said Co. U. S. Transportation 642, Chicago, was an extreme qualification doctrine, universally that "acts done in the exercise of held, proper governmen and not tal directly powers, encroaching upon private prop these do consequences use," erty, though may impair a within the constitute of the constitutional taking meaning or entitle the owner of such provision, property compensa from the State or its him tion agents, give any right action. It was case which there was a "permanent invasion of the flooding private property," "physical real estate owner, ouster of private his practical His was, effect, to be possession." required devoted to use of and, he was public, consequently, entitled compensation.

As case must be stated, already .present governed by that do not involve the of eminent domain, principles in the exercise of which not be taken for property may use A compensation. prohibition simply upon use of that are valid declared, purposes leg to be islation, morals, health, injurious safety be deemed a dr community, cannot, sense, any just taking, KANSAS.

Opinion of the Court. of for the appropriation benefit. Such property public does not disturb the owner in the control legislation or use of his for lawful nor restrict his to dis property purposes, of but it, is a declaration the State that pose its use only one, certain forbidden is by any purposes,- prejudicial interests. Nor can ‘of that public character legislation come within the Fourteenth Amendment, case, unless any it is that its real is not the commu apparent object protect to, or nity, under promote general but, well-being, the owner of guise his police regulation, deprive liberty without due The property, process law. power the States have such use individuals of their prohibiting will be property prejudicial health, or morals, of thé is safety public, -and, with consistently not— existence and safety cannot be—bur organized society, dened with the condition that the State must compensate such individual' owners for losses sustain, pecuniary they may reason of their not a noxious use of being permitted, by their to inflict injury upon community. exercise of the the destruction of police power by property which is itself a nuisance, or the public its use prohibition in a its value becomes particular way, Avhereby depreciated, different from very use, or from taking public of his without due depriving person law. In the one case, a nuisance other, abated; only is taken from an innocent Owner. unoffending property away It is when the true, that, defendants in these cases purchased or erected their the laws of the did breweries, not forbid the manufacture of But the State did liquors. intoxicating or come assurance, under an thereby any give obligation, that its would remain legislation upon subject unchanged. Indeed, as was said in above cited, the Mississippi, Stone health and the supervision public morals is a public in its governmental nature," "to power, "continuing dealt with as the of the moment special re exigencies " " ; that, for this quire dis purpose, largest legislative cretion allowed, and the discretion cannot be with parted more than the itself." any So Beer v. Co. Massachu TERM,

Opinion of the Court. morals "If the S. 32: safety U. setts, public discontinuance of manufacture or traffic, any require cannot be from hand of stayed providing which indi incidental inconvenience its discontinuance suffer." viduals corporations may It now remains to consider certain relating particu- questions 1885. That section the act of sec- to the thirteenth larly — — 13 of the act of 1881 is as takes the tion which place § follows: " are manu All where SEC.13. intoxicating places liquors violation sold, bartered, factured, away given or where are act, intoxicating liquors provisions in violation of this barter, act, for sale, delivery kept nuisances; declared to common hereby judg such court to be ment of finding having jurisdiction place any section, sheriff, under this or under nuisance deputy, a his or marshal of or constable sheriff, any proper county, shall be directed to located, where the same shut city such thereof and de and abate by taking possession up place found with therein, all intoxicating liquors stroying together and bars, other screens, bottles, all glasses, property signs, in and said and the owner nuisance; used keeping maintaining shall, thereof be conviction, or adjudged guilty keeper nuisance, a common shall be by maintaining punished hundred dollars nor more than a fine of not less than one five in the not hundred dollars, by imprisonment county jail attorney nor more than than less thirty days ninety days. citizen of the attorney, county county g eneral, or is or is maintained, such nuisance exists, where kept, name of the State to an action abate and maintain per the same. The shall be at injunction enjoin granted petually no bond shall be re action, commencement terms of violating any injunction Any person quired. be as for in such shall punished contempt, proceeding, granted five one hundred nor more than of not less than a fine by less dollars, or not hundred county jail by imprisonment six more than both months, nor than thirty days in the discretion of the court." fine and imprisonment, v. KANSAS. MUGLEE 671 Opinion of the Court.

It is contended counsel the case Kansas v. Ziebold & that the scheme of this section is an entire Hagelin, attempt come within its of their who deprive provisions persons due law; and of their without liberty taken in connection with clause when especially, § the act of (amendatory 1881) provides § "in indictment other under this act, prosecutions wise, ... it shall not the first instance necessary the State to that the did not have prove party charged to sell for the permit intoxicating excepted purposes." liquors "We unable to these perceive anything regulations with inconsistent the constitutional of liberty guarantees The State manu- property. having authority prohibit facture and sale for other than medical, intoxicating liquors scientific, and mechanical we do doubt her power purposes, to declare that and maintained for the any place, kept illegal manufacture sale of such shall be a com- deemed liquors, mon nuisance, and, at the abated, same time, pro- vide for thte indictment and trial of offender. One is used for forbidden proceeding against purposes, while the other is for the offender. punishment

It is said that the thirteenth act of section within the State in actual legislature, finding brewery opera tion, notice, trial, mere exercise of hearing, by it to declares be a common arbitrary caprice, nuisance, then which are to follow inevita prescribes consequences mandate bly by judicial statute, required by involving exercise no discretion or permitting judicial judg ment that the ; found in the court brewery being operation, is not to it determine whether a common is nuisance, but, one; Under the command of the statute, is to it to be find that it is not made, or the of it, which is liquor making itself, thus enacted to be a common but the nuisance, place all the used in including keeping maintaining the common nuisance; that thus judge having signed — without it and, be, to the fact and inquiry may contrary — his own edict of the judgment legislature, court is commanded to take officers possession by TERM,

Opinion of the Court. is all this destruction it nor and shut up; place made as a forfeiture to be edict, consequent by legislative but because the offence, conviction merely legis upon a and it is done court .with lature so commands; equity, trial first known to had, conviction out any previous the law. is a formidable legisla

This, arraignment certainly, a founded and if it Kansas, interpreta tion of were upon just no court would have her statutes, difficulty tion of could not be enforced infringing that they declaring those statutes the citizen. But the constitutional rights no results as the with and are attended have no such scope effect The court is not required give. defendants suppose. ” “ unless enactment edict,” every decree to a legislative characterized. is to be so of State law-making power to be is deemed that establishment It is not declared every been maintained it have nuisance because prior common as a of the statute manufacturing to the place passage in its The is statute opera prospective liquors. intoxicating of a common nuisance not the brand that does is, tion, put is after its unless, place kept passage, any place, to be declared maintained for purposes court Nor is the to the required community. injurious because it nuisance to be a common simply any place adjudge find must first it to be such. It to be charged the. in some mode, must ascertain, character; is, legal of that has the statute was question since place whether passed it a common nuisance. so as to make used, been, being, is the proceedings untenable proposition Equally in the thirteenth section of indicated for the purposes equity of law. "In re with due are inconsistent the statute "theju Justice Mr. nuisances," Story says, public gard risd date, ancient to be of of courts seems very iction equity Queen Elizabeth. traced back has been reign distinctly nuisances, only public applicable jurisdiction also to so but called, upon public rights strictly purprestures In nuisances, . case properly property... and to them, to abate an indictment lies punish so called, . 673 v. KANSAS. Opinion of the Court. But an lies in information, also,

offenders. to redress equity 2 921, way injunction." Story's grievance Eq. §§ The cases of 922. jurisdiction ground purpresture, as as of is the courts of nuisances, well public ability equity a effectual, more than permanent give speedy, remedy, can can had at law. not nuisances that only They prevent before mischief but threatened, ensues, irreparable or abate those in arrest and, by progress, perpetual injunction, them the courts future; whereas protect public can reach nuisances, law future acts only existing leaving to be the of new This is subject prosecutions proceedings. a a where nuisance affects the salutary jurisdiction, especially health, morals, not fre safety community. Though exercised, exists courts quently power undoubtedly thus District equity protect public against injury. v. 242, Boston Railroad 16 Attorney Lynn Co., Gray, 245 v. ; General New 2 Attorney Green, Ch. Jersey Railroad, 139 239, General v. Ice 104 Mass. ; Attorney Tudor Co., 244; 5 State v. Porter 279, Hoole v. (Ala.), 294; Mayor, Attorney General, 22 Ala. 194; Attorney Hunter, General 1 12; Dev. General & Cr. Eq. Attorney Forbes, Myl. 123, 129, 133; General v. Northern Attorney Great Railway 1 Drew. & Sm. Co., Eden 154, 161; on Kerr 259; Injunctions, on 168. (2d Injunctions ed.),

toAs that the statute objection makes no provision trial cases like this it is one, sufficient to jury say such a of trial is not mode in suits in required equity brought abate nuisance. The direction that an statutory issue at the commencement of the injunction action is not to construed with such as is dispensing preliminary proof to authorize an necessary suit. injunction pending court is not to issue because one is injunction simply asked, or because-the is máde that a common nuisance is charge in violation of maintained law. The statute leaves court 'the at effect to the that an liberty give principle injunction will not be to restrain a granted clear nuisance, except upon thát evidence one exists. satisfactory Here the fact to be ascertained was, whether a and maintained for kept place,

vol. cxxm —43 TERM,

Opinion of the Court. forbidden the statute, purposes was, per se, nuisance— — fact that determined being conclusively statute itself but whether in was so question the’place maintained. kept

If the that is not full or proof upon point sufficient, the court can refuse an injunction, action until the postpone State first obtains the of verdict a in her favor. In jury this it cannot be denied case, that the defendants kept a maintained that is within the place definition of a statutory common nuisance. Their for the removal of the cause petition from the state to court, their answer the bill, admitted fact to if every suit, maintain this necessary under statute, which it was was constitutional. brought, that in

Touching indictment prosecutions, by provision or otherwise, the State need first not, instance, prove that the defendant has not the statute, required permit Ave remark if it a that, has any application proceeding like this, does not him of the that he is deprive presumption innocent of violation of It laAV. declaration that only . when the State has that the described is proven place kept and maintained for the manufacture or sale of intoxicating — such manufacture or sale unlaAvful liquors being except — and then under specified purposes, only permit prose need á cution that the defendant negative, namely, prove not thé license or If has the defendant has required permit. he can such license it, thus over permit, easily produce throAvthe case established the State. pruna facie of A behalf of .the argument defendants is to portion of effect that the statutes Kansas forbid the manufacture to be carried to other intoxicating liquors exported, and, States, clause of ground, repugnant the United States, the Constitution of giving Congress power with nations and commerce the several foreign among regulate We need that there is no inti States. only say, upon point, that the in the record beer which the defend mation resjrective was intended to be carried manufactured out the State ants countries. And, foreign expressing opinion such facts would constituted a to whether have defence, good it will be time we observe that decide case enough shall us. when it come before character MUGLER KANSAS.

Separate Opinion of Mr. Justice Field. the reasons we that the stated, For opinion judgments are Court Kansas not denied have Supreme Mug in error, ler, any right, or immunity plaintiff privilege, States, secured to him the Constitution the United in each and its case, is, judgment, accordingly, affirmed. We are, that the Court also, Circuit opinion States erred the State United bill dismissing reversed, Ziebold & case is decree Hagelin. remanded, nd the cause with to enter a directions a decree to the State such as the March act granting relief 1885, authorizes. Justice Field delivered the opin Mr. following separate ion.

I dissent from the in the last the one case, coming judgment from the Circuit Court of United States.

I to so much of the as asserts that there agree opinion in the Constitution or laws States of the United nothing of act of Kansas affecting validity prohibiting sale of State, manufactured liquors except intoxicating under health proper regulations protection morals of the But I am not to people. say prepared the State can the manufacture of such within prohibit liquors its limits if forbid intended for they exportation, their sale limits, within its if under like Con regulations, has authorized of their the act gress importation, though Kansas is broad both to include such manufacture enough an sale. The article of right import merchandise, recog — nized as commercial world whether the by right act of with a Congress given treaty foreign country — would seem to sell the article necessarily carry In when Brown v. 12 Wheat. imported. Maryland, 4A7, Justice Marshall, Chief of this delivering opinion said as court, “Sale is the of follows: object importation, is an essential of that intercourse of which ingredient constitutes It a is as essential an importation part. ingre dient, as to the existence the entire indispensable thing, TERM, 1887.

676 Separate Opinion of Mr. Field- Justice must itself. It be considered as a then, importation com commerce. ponent part regulate Congress authorize but to has a author importation, only right, ize the to sell.” importer sale within its limits of

If can forbid the one State all the each States, so differ article, selecting may imported then be little ent article. There would uniformity regula commerce tions with to articles into foreign imported respect and the same also said States, different may regulations And of interstate commerce. we with articles respect formation of it was one know objects commercial to secure Federal Constitution uniformity reg state The con ulations discriminating legislation. Constitution, clause struction commercial were decided, License in the 7th Howard which the cases me to been abandoned later have substantially appears 95 U.S.4 85 v. Cuir, ; Hall v. De Welton State decisions. 91 v. 102 275; Kimball, U. S. Mobile Missouri, County of S. Co. 107 U. 691; 691; U. S. Transportation Parkersburgh, 196; U. S. Wabash, Co. Ferry Pennsylvania, Gloucester Illinois, & Co. v. U. S. Railway St. Louis Pacific I I this reservation that not hereafter be make deemed concurrence concluded opinion general majority. said

I do not to what is with reference case agree That was suit in the United States Court. from Circuit for the abatement of owned brought equity brewery in the It is based clauses thirteenth the defendants. upon the act follows: Kansas, section of are as “All where are manufactured, intoxicating places liquors in or violation sold, bartered, away any given pro are act, or where visions kept intoxicating liquors or are sale, act, violation of this barter, hereby delivery and to be common declared nuisances; judgment upon to be nui court having finding any jurisdiction place or' under under this section, sheriff, sance his deputy, marshal or or sheriff; constable any proper county, of. to shut located, where the same shall be directed any city m KANSAS. Separate Opinion of Mr. Justice Field. such, abate and thereof and

up place by talcing possession all found therein, destroying intoxicating liquors together with all screens, and other bars, bottles, signs, glasses, prop said and nuisance; used the. erty keeping maintaining d or thereof shall, conviction, owner keeper upon adjudge a common shall be nuisance, maintaining pun guilty less than ished a fine of not one hundred dollars nor more five hundred in the dollars, than by imprisonment county less than nor more than jail thirty days days. ninety General, citizen Attorney county attorney, any where such nuisance or is or is main exists, county kept, maintain an action- in the name of the State to tained, may the same. The shall abate perpetually enjoin injunction at the commencement of the and no bond action, granted shall be required.” section all malt, vinous, fermented

By previous liquors as áre classed their bar- manufacture, intoxicating liquors, section, and sale are the thirteenth ter, By equally prohibited. said counsel, is well without notice to the legislature, kind, owner or declares where such any hearing every place are sold, bartered, sale, bar- given liquors away, kept — in this case a ter, where beer was delivery brewery, to, sold, manufactured and which, up act, passage be a lawful common and then industry nuisance; —to follow, what shall a court prescribes jurisdic- having of such tion one be what the has places finding it. The court is not to determine whether already pronounced a common nuisance fact, but is to find it to be place within the definition of so if it comes the statute, and, having the executive it, found officers of the thus court are to be to shut abate the directed up place by taking possession ás this were not and, sufficient it; though security against of the business, continuance are to be to de- they required found and all therein, all the other used liquor stroy the nuisance. It matters not maintaining keeping of such a character as could be used in whether they or be of business, value for other other No purposes. or in officer. is left discretion judge TERM, 1887.

Separate Opinion of Mr. Held. Justice clauses one who owns a brew These to me deprive appear for like the sale, manufactures beer defendants, ery of law. The without due destruction to be property as a offence, ordered is not forfeiture conviction upon because the has so commanded. Assum but merely legislature which conceded, that the the exercise ing, legislature, of that its State, undefined called power police power, the owner, him of the may, compensation deprive use of his for the for it which was con brewery purposes structed under the sanction of the for which law, alone it is I cannot see what valuable, after principle, closing thus an end to its use in the future brewery, putting it can order the destruction of the manufacturing spirits, which it admits its already manufactured, liquor legislation be valuable some and allows to be sold may purposes, e those Nor can I se how the purposes. protection health and morals of the can the State people require destruction of bottles, utensils, like and other glasses, used for lawful It has hereto many purposes. fore been to be an established that where supposed principle, there ais to abate a the abatement nuisance, must be limited and no wanton or necessity, unnecessary injury can be committed to the of individuals. rights Thus, if the nuisance consists the use which a building is to not to tear put, remedy use, down or to stop itself, demolish or to found building destroy property within it. Babcock v. N. Y. City Buffalo, 268; Che Co.v. 83 N .Y. Bridge The decision nango Paige, court, me, seems reverses this principle.

It will often be done to great manu- plain wrong facturers of if like that embodied liquors, legislation can thirteenth section Court of Kan- upheld. Supreme sas admits that State, destroying of such kinds of values have to the utmost property, may gone of constitutional In it has authority. verge my opinion passed crossed the line which beyond verge, separates regu- lation from confiscation.

Case Details

Case Name: Mugler v. Kansas

Court Name: Supreme Court of the United States

Date Published: Dec 5, 1887

Citation: 123 U.S. 623

Docket Number: 19

Court Abbreviation: SCOTUS