State v. Mugler

29 Kan. 252

Opinions

The opinion of the court was delivered by

"Valentine, J.:

The defendant, Peter Mugler, was prosecuted criminally, in two different cases, for violations of the prohibitory liquor law. In the first case, the indictment contained but one count, charging that the defendant “did unlawfully manufacture, and aid, assist and abet in the manufacture” of certain intoxicating liquors. In the second case, the indictment contained six counts, in the first five' of which it charged that the defendant, on five different days, sold intoxicating liquors in violation of law; and in the sixth count it charged that the defendant was guilty of keeping and maintaining a common nuisance, by keeping for sale and selling certain intoxicating liquors. In the first case, a motion was made by the defendant to quash the indictment; for the reason that it did not state facts sufficient to constitute any offense, and because it contained a double charge against the defendant. This motion was overruled by the court. A trial was then had in the case, before the court without a jury, upon an agreed statement of facts, which admitted that the defendant, since October 1, 1881, without a permit, manufactured beer, an intoxicating liquor, in a brewery erected by him in Salina, Kansas, in 1877, and used thereafter by him as a brewery up to May 1, 1881, the time when the present prohibitory liquor law went into effect; • “ that said brewery was at all times after its completion, and on May 1, 1881, worth the sum of $10,000, for use in the manufacture of said beer, and is not worth to exceed the sum of $2,500 for any other purpose.” It was also admitted that the defendant used his brewery for the manufacture of beer after October 1, 1881, the same as he had done prior to May 1, 1881. In the second case, motions to quasb the indictment and to compel the prosecution to elect upon which count it would proceed, were made by the defendant, and were overruled by the court. A trial was then had in the second case, before the court without a jury, upon an agreed statement of facts, which admitted that the sale charged in the first count of the indictment was made by the defendant, without a permit, and that it was a sale of beer manufactured by the defendant before the passage of the prohibitory act of 1881; but whether the beer thus sold was manufactured before the adoption of the constitutional amendment, in November, 1880, prohibiting the manufacture and sale of intoxicating liquors, except for medical, scientific and mechanical purposes, the record is silent; and for what purpose the beer was sold, the record is also silent. In each of these two cases the defendant was found guilty, and fined $100, and in each he now appeals to this court.

The principal question supposed to be involved in these two cases is as follows: Is or is not the present prohibitory liquor law constitutional, so far as it affects the defendant and his business in manufacturing beer at his brewery, and selling the same? The defendant claims that such law is unconstitutional, and his counsel make a very able and elaborate argument in this court, to show that it is unconstitutional. Among other things, they say:

“Years prior to the enactment of the law, and even before the prohibition amendment to the constitution was discussed, the defendant erected his brewery and furnished it with the means necessary for the manufacture of beer, the subject of the charge in the indictment. When the amendment was adopted, and when the act for its enforcement became a law, the defendant’s money was thus invested, and his brewery was his ‘property.’ The effect of the act is to close the doors of his business, and leave what had been valuable property, recognized and protected by the law, lifeless, unrenumerative, and almost worthless, as it idly rests under the condemnation of the new departure. By a simple legislative edict the defendant is stripped of $7,500 in value of property, as effectually as if consumed by fire.

“ In this he is deprived of property without due process of law, in violation of fundamental principles of government, and of the fourteenth article of the amendment to the constitution of the United States, which provides: ‘Nor shall any state deprive any person of life, liberty, or property, without due process of law.’”

“The defendant is deprived of his property by mere force of the legislative decree. No rule is established or course prescribed by which his rights are in any way to be considered. The legislature finds him in the enjoyment of property, which public policy in this state has never even subjected to any police regulation, nor placed in any way under the surveillance of the law. It simply says to him: ‘This business which you have built up under the protection of the law, and which to this time has not been held to infringe upon public rights in any way, is henceforth condemned as a nuisance, and the value of your property confiscated for the public good.’ There is no notice, no hearing, no opportunity for redress; nothing is heard but this inexorable decree of annihilation, and the defendant sits in'the midst of the ruins of that which years of toil had accumulated, under the vain hope that he had security under the law.”

Much that counsel say we think has force. The legislature has probably gone a long way in destroying the values of such kinds of property as the defendant owned, and has possibly gone to the utmost verge of constitutional authority. And yet we do not think that the result reached by counsel for the defendant necessarily follows from the facts and circumstances of this case. The defendant is certainly not deprived of his brewery, or of his liquor, or of any of his other tangible property. So far as the constitutional amendment and the prohibition act are concerned,‘he still retains his brewery and hjs liquors, and all his other tangible property, just the same as he did prior to the passage or adoption of any of the present restrictive or prohibitory liquor laws. But probably it is not his tangible property which he claims has thus been taken or destroyed or confiscated. It is his intangible pi’operty, his vested rights, founded upon or incidental to the rightful enjoyment, or use, of his visible and tangible property, of which he claims to have been deprived. This brings us to a comparison between the former restrictive and prohibitory liquor laws of this state, and the present restrictive and prohibitory liquor laws.. In 1877, when the de fendant erected his brewery, he had a right to manufacture all the beer or other intoxicating liquors which he chose; and he can do so still, provided he first obtains a permit therefor from the probate judge, and he can easily obtain the permit by complying with the terms and conditions upon which permits are issued. At that time he could manufacture intoxicating liquors for any purpose which he chose; but since the adoption of the constitutional amendment, in November, 1880, he can manufacture such liquors only for medical, scientific and mechanical purposes. His right tó sell intoxicating liquors, however, was always restricted. In 1877, under the then existing laws, he had no right to sell his beer or any other intoxicating liquor in any quantity, or in any place in Kansas, or to any person, unless he had first obtained a license therefor. (The State v. Volmer, 6 Kas. 371; Dolson v. Hope, 7 Kas. 161; Alexander v. O’Donnell, 12 Kas. 608;) and such is still the law. The license is now called a “permit.” But even with a license, the defendant had no right under the old laws, to sell his beer on Sundays, or on election days, or on the Fourths of July; or to any person who was in the habit of becoming intoxicated against the known wishes of his wife, child, parent, brother, or sister; or to any minor against the consent of his parent or guardian; or at any place except the place designated in his license, which in the . present case would have been the city of Salina. Besides, the defendant had no assurance under the old laws that he could procure a license. Licenses were not granted to anybody and everybody, but only to a select few, and then the license would continue in force for the period of one year only, and no person could have any assurance that his license would be renewed. Both the issuing and the renewal of licenses depended entirely upon the temper and disposition of the community in which the application was made. Under the old laws, each community was given the privilege of determining for itself whether licenses to sell intoxicating liquors should be issued or not, and if none were issued, then the old law was as much a prohibition law as the present liquor law. The old law might properly be called not only a license law, but also an option law, and a contingent prohibition law— for licenses were allowed to be issued at the option of each community; and if they were not issued the law would become a virtual prohibition law. Under the old law the entire state might have become a complete prohibition state, at the option of its several communities, or each community might have authorized the issue of licenses, as it chose. In this respect the old law and the present law differ. The old law left the question of prohibition or license with each community separately and exclusively, while the present law theoretically enforces prohibition upon all communities, whether they are willing or unwilling. We do not here wish to be understood as .saying that our present liquor law, dr any liquor law which we have ever had in Kansas, is or has been an absolute and unqualified prohibitory liquor law. They have none of them been more than limited and qualified prohibition laws. Under the old law, the defendant, with a license, could sell his beer to any person and to all persons, with the exceptions heretofore mentioned; but under the present law, we suppose he is subject to at least one other restriction in his sales as to persons. He cannot now sell his beer for medical purposes except to druggists. It would seem, however,'that with a permit he may now sell his beer for scientific and mechanical purposes, to any and every person who might wish to purchase the same. And therefore it would seem that in this respect no additional restrictions over the old law are imposed. We think it will now appear that the old law and the new are not so vastly different as has been by some persons supposed. Both are restrictive in their character; both are criminal laws, and both are prohibitory to some extent; and yet neither is absolutely and unqualifiedly a prohibition statute. ' Both restrict sales as to times, places and persons, and the present law as to purposes; and yet both laws allow sales to be made. Under the old law, the defendant never had any authority to sell his beer, except with a license. He never had any positive assurance that a license would be granted to him, or if granted, that it would be extended or renewed; and even with a license, he could not sell his beer at any other place than at the city of Salina. And his right to sell beer for any considerable period of time was always based upon many uncertainties and contingencies. Under the present law, the defendant with a permit, which he can easily obtain, can manufacture all the beer for medical, scientific and mechanical purposes which he chooses to manufacture, and can sell the same for such purposes, provided he can find purchasers therefor. The material restrictions imposed by the present law, in addition to those imposed by the old law, are simply as to the purposes for which he may sell, and as to the persons to whom he may sell for medical purposes. There are no other material or substantial restrictions.

Under such circumstances, we hardly think that the defendant had such a vested interest in the old law, or in anything else, as would prevent the passage of a law like our present prohibition act. It would hardly seem that the defendant, by erecting a brewery in 1877, and by operating it for some time afterward, could obtain such a vested interest in anything as to prevent further legislation with respect to intoxicating liquors, of a more restrictive and stringent character; or that he could go on, with or without legislation, and with or without a license, manufacturing and selling beer forever. We suppose that the defendant founds his right to continue to manufacture and sell beer solely and exclusively upon his supposed vested right to operate his brewery in undisturbed tranquility forever. He certainly will not claim that, independent of his brewery, he had a vested right at the time the constitutional amendment was adopted, or at the time the present prohibition law was enacted, to either manufacture or sell any kind of intoxicating .liquor which had not yet been brought into existence. His whole claim we suppose springs from the rights which his brewery is supposed to have conferred upon him. But these rights we think cannot have such far-reaching conse •quences as the defendant claims. The beer which the defendant is prosecuted for manufacturing was not in existence at the time when the constitutional amendment was adopted, nr at the time when the prohibition act went into operation, but it was manufactured since; and hence, independent of the defendant’s interest in his brewery,-, he could not have had any possible vested right, at the time of the adoption and passage of the present prohibition laws, in the manufacture of such beer. Nearly the same may be said with respect to the beer which the defendant is prosecuted for selling. .Presumably it was not in existence at the time when the constitutional amendment was adopted. Besides, the sale of such kinds of liquor, when made as this sale was made, would have been a violation of the laws of Kansas, and a criminal offense, at any time for the last twenty-three years. In this respect the present law is not new. The sale in the present case was made without a permit or a license. It may be that the defendant has suffered great loss on account of the passage of the prohibition act, but such loss is not the direct and immediate result of such act; it is simply the remote and consequential result of the act, and is wholly speculative and problematical. Such indirect and remote losses cannot render acts of the legislature unconstitutional. (The Beer Co. v. Massachusetts, 97 U. S. 25; Bartemeyer v. Iowa, 85 U. S. [18 Wall.] 129.

It is frequently the case that the passage of statutes indirectly affects the values of property as this act does, and still we do not think that such statutes are ever declared to be unconstitutional merely for such reasons. We think that the present- prohibition act of Kansas is constitutional, so far as it affects the defendant, and so far as it has any application to the two cases now under consideration.' We do not think that the court below committed any error in either of these two cases; but even if it did with respect to the motions of the defendant, whicl} it overruled, the errors were-wholly immaterial. In the first case, the defendant was tried upon an agreed statement of facts simply for manufacturing intoxicating liquors contrary to law. In the second case, he was tried upon an agreed statement of facts, upon the first count only of the indictment, and merely for selling intoxicating liquor contrary to law, and for one sale only; and in both cases we think the judgment of the court below was correct; and it will therefore.be affirmed.

Horton, C. J., concurring.