Robert M. Eaton, John C. Tomlinson, and Joseph H. Choate, for appellees, Ziebold & Hagelin.

The entire scheme of the thirteenth section, which attempts by mere legislative enactment to convert the building and machinery of appellees into a common nuisance, and to compass their destruction, and also which attempts to execute the criminal law against the persons of appellees, by equitable proceedings instead of a common-law trial, is an attempt to deprive these persons of their property and liberty without "due process of law." The proceedings provided for in the thirteenth section are additional to the ordinary methods of trial, conviction, and punishment provided by the other sections of the act. By this section the legislature finding a brewery in operation within the state, which up to the time of the passage of the act was a lawful business, eo instante, without notice, trial, or hearing, by the mere exercise of its arbitrary caprice, declares it to be a common nuisance, and prescribes the consequences which are to follow inevitably by judicial mandate commanded by statute, and involving and permitting the exercise of no judicial discretion. The court is not to determine the brewery to be a nuisance, but is to find it to be one. And the court is commanded by its officers, to take possession of and shut up the place, and abate the nuisance by destroying all the property, not as a forfeiture consequent on conviction, but merely because the legislature so commands, and without the intervention of a real judicial action. And, again, an injunction shall issue, which is an injunction against a crime, and the violation of the injunction is punished as for contempt, by the process of a court of equity, which may be more severe than the penalty upon trial and conviction for keeping and maintaining the nuisance. And by section 14 the state shall not be required to prove the one fact which constitutes the offense, viz., that the party did not have a permit, thus taking away the presumption of innocence from the party charged.

This whole proceeding is but an attempt to administer criminal law in equity. That this is a criminal proceeding see Fisher v. McGirr, 1 Gray, 26; Greene v. Briggs, 1 Curt. 328; Hibbard v. People, 4 Mich. 129; Neitzel v. City of Concordia, 14 Kan. 446; Boyd v. U. S., 116 U. S. 616, 6 Sup. Ct. Rep. 524. A legislative enactment cannot make that a nuisance which is not such in fact. To make such a determination is a judicial function. Rights of property cannot be so arbitrarily destroyed or injured. Yates v. Milwaukee, 10 Wall. 497, 504, 505; Hutton v. City of Camden, 39 N. J. Law, 122, 129, 130; Cooley, Const. Lim. (5th Ed.) 110, and notes, 446; Lowry v. Rainwater, 70 Mo. 152; Jeck v. Anderson, 57 Cal. 251. Such a legislative determination would also be void, because, where the fact of injury to public health or morals did not exist, as here, it would be a violation of the absolute right of the citizen to follow such pursuit as he sees fit, provided it be not in fact "injurious to the community." People v. Marx, 99 N. Y. 386, 2 N. E. Rep. 29, and cases cited. Such legislation is unconstitutional. Quintini v. City of Bay St. Louis, 1 South. Rep. 625, 628.

Criminal law cannot be administered in a court of equity. Even in cases of public nuisances, where equity has jurisdiction, exceptional and extremely limited as it is, the question of nuisance or not must in cases of doubt be tried by a jury, and the injunction will be granted or not as that fact is decided. 2 Story, Eq. Jur. § 923. In practice the jurisdiction is applied almost exclusively to nuisances in the nature of purprestures upon public rights and property. Id. §§ 921-924. But the jurisdiction is never exercised on any idea that the nuisance is a crime, or with a view of preventing or punishing a criminal act. 1 Bish. Crim. Proc. § 1417. Equity has no jurisdiction in matters of crime. Lawrence v. Smith, (Lord ELDON,) Jac. 471, 473. Equity does not interfere to enforce penal laws unless the act is in itself a nuisance. Mayor, etc., of Hudson v. Thorne, 7 Paige, 261; Davis v. American Soc., etc.,

75 N. Y. 362, 368; Kramer v. Police Dept. N. Y., 21 Jones & S. 492; 1 Bish. Crim. Proc. §§ 1412-1417; 1 Spence, Eq. Jur. *689-*690. With the principle that "the settled course of judicial proceedings" is "due process of law," in view, (Murray's Lessee v. Improvement Co., 18 How. 280; Walker v. Sauvinet, 92 U. S. 90, 93,) the fourteenth amendment was adopted. On principle this secures jury trial in the states in all cases in which, at the time of its adoption, such trial was deemed a fundamental right. The Kansas constitution (section 5, Bill of Rights) provides that the right of trial by jury shall be inviolate. Section 10. In all prosecutions the accused shall have a speedy public trial by jury. No act is valid which conflicts with these provisions. Railway v. Railway, 31 Kan. 661, 3 Pac. Rep. 284. A jury trial is preserved in that state in all cases in which it existed prior to the adoption of the constitution. In re Rolf, 30 Kan. 762, 763, 1 Pac. Rep. 523; Kimball v. Connor, 3 Kan. 415, 432; Ross v. Commissioners, 16 Kan. 418. A prosecution for a matter made penal by the laws of the state, as for selling liquor without a license, is "unquestionably a criminal action." Neitzel v. City of Concordia, 14 Kan. 446, 448. In re Rolf, 30 Kan. 760, 761, 1 Pac. Rep. 523. And upon the point that section 14 dispenses with proof of the single fact which constitutes the crime, thereby taking away the presumption of innocence, not only is the section unconstitutional, but all the other parts of the act equally so.

This act deprives the appellees of their liberty and property without due process of law, and abridges the privileges and immunities of the appellees as citizens of the United States within the meaning of the fourteenth amendment. At the time of the passage of this act it was one of the fundamental rights of appellees, as citizens, to manufacture beer, and to use their brewery for that purpose. The state could only restrain this right by virtue of the police power, which could only be exercised to the extent reasonable and necessary for the preservation and promotion of the morals and health of the people of Kansas. This act goes further than this. It destroys their property for the public use other than for police purposes, and without compensation. This is depriving them of their property without due process of law. This provision of the constitution is to be liberally construed, (Boyd v. U. S. 116 U. S. 635, 6 Sup. Ct. Rep. 524,) that there may be no arbitrary deprivation of life or liberty, or arbitrary spoliation of property. Barbier v. Connolly, 113 U. S. 31, 5 Sup. Ct. Rep. 357; Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. Rep. 1064. This question has never been decided by this court. Beer Co. v. Massachusetts, 97 Ū. S. 25, arose under the right of the state to impair the obligation of the contract entered into between the state and the company by its charter. In Bartemeyer v. Iowa, 18 Wall. 129, the court refused to decide the question on a moot case. In the License Cases, 5 How. 589, the sole question under consideration was the violation of the commerce clause. The Slaughter-House Cases, 16 Wall. 36, did not touch upon this question, as they decided that the police power could regulate slaughter-houses, even to the extent of granting a monopoly, and demonstrated that all persons could still pursue their business of slaughtering subject to these regulations. The cases of Union Co. v. Landing Co., 111 U. S. 746, 4 Sup. Ct. Rep. 652; Fertilizing Co. v. Hyde Park, 97 U. S. 659; and Stone v. Mississippi, 101 U. S. 814,-all arose and were decided under the contract clause of the constitution.

The police power cannot go beyond the limit of what is necessary and reasonable for guarding against the evil which injures or threatens the public welfare in the given case, and the legislature, under the guise of that power, cannot strike down innocent occupations and destroy private property, the destruction of which is not reasonably necessary to accomplish the needed reform; and this, too, although the legislature is the judge in each case of the extent to which the evil is to be regulated or prohibited. Where the occupation is in itself immoral, there can be no question as to the right of the legis

lature. 2 Kent, Comm. 340. Nor is it denied that every one holds his property subject to the proper exercise of the police power. Dill. Mun. Corp. 136; Tied. Lim. Police Power, §§ 122, 122a; Com. v. Tewksbury, 11 Metc. 55. Nor that the legislature can destroy vested rights in the proper excercise of this power. Coates v. Mayor of New York, 7 Cow. 585. But the unqualified statement that when the legislature has exercised its right of judging, by the enactment of a prohibition, all other departments of the government are bound by the decision, which no court has a right to review, (Bish. St. Cr. § 995,) cannot be true. The legislative power cannot authorize manifest injustice by positive enactment, or take away security for personal liberty or private property, for the protection whereof government was established. Calder v. Bull, 3 Dall. 386. The state cannot deprive the citizen of the lawful use of his property if it does not injuriously effect others. Lake View v. Cemetery Co., 70 Ill. 191. The state cannot enact laws, not necessary to the preservation of the health and safety of the community, that will be oppressive and burdensome to the citizen. Railway Co. v. City of Jacksonville, 67 Ill. 37. The constitutional guaranty of life, liberty, and pursuit of happiness is not limited by the temporary caprice of a present majority, and can be limited only by the absolute necessities of the public. Intoxicating Liquor Cases, (BREWER, J.,) 25 Kan. 765; Tenement-House Cigar Case, 98 N. Y. 98; Cooley, Const. Lim. (5th Ed.) 110, 445, 446. No proposition is more firmly established than that the citizen has the right to adopt and follow such lawful and industrial pursuit, not injurious to the community, as he may see fit. People v. Marx, 99 N. Y. 377, 386, 2 N. E. Rep. 29. The mere existence of a brewery in operation, or of beer therein in vats, or packages not intended for consumption in the state is not in any way detrimental to the safety, health, or morals of the people of Kansas; nor can it be said that there is anything immoral in the business of brewing, or in beer itself, as in gambling or lotteries. Stone v. Mississippi, 101 U. S. 814.

There is no question that this enactment does in the sense of the law deprive appellees of their property. Pumpelly v. Green Bay Co., 13 Wall. 177; Munn v. Illinois, 94 U. S. 141.

It is a fundamental principle that where a nuisance is to be abated, the abatement must be limited by its necessities, and no wanton injury must be committed. The remedy is to stop the use to which the building is put, not to tear down or destroy the structure itself. Babcock v. City of Buffalo, 56 N. Y. 268, affirming 1 Sheld. 317; Bridge Co. v. Paige, 83 N. Y. 188-190; Wood, Nuis. § 738. The nuisance here is sale within the state. To that extent alone can the legislature authorize the nuisance to be abated or the property destroyed.

The act itself does not contain the limitation put upon it in argument, that the manufacture is only prohibited for sale, barter, or gift within the state, and as a vital part of the prohibition is unconstitutional, the whole is unconstitutional. Wynehamer v. People, 13 N. Y. 378.

But if the legislature has the power claimed for it, then the application of the act to the brewery owned, possessed, and used by appellees at the time of the passage of the act violates the fourteenth amendment, because it deprives them of their property without "due process of law." Wynehamer v. People, 13 N. Y. 378. The legislature can only take private property by awarding compensation. 1 Bl. Comm. 139. For a definition of "due process of law, see Wynehamer v. People, 13 N. Y. 378, 392, citing Norman v. Heist, 5 Watts & S. 193; Taylor v. Porter, 4 Hill, 145; Hoke v. Henderson, 4 Dev. 15; 2 Kent, Comm. 13. All that is beneficial in property is the use. Pumpelly v. Green Bay Co., 13 Wall. 177; Munn v. Illinois, 94 U. S. 141, citing 1 Bl. Comm. 138; 2 Kent, Comm. 320. erty, and strips it of the attributes erty, the owner is deprived of it.

When a law annihilates the value of propby which it is alone distinguished as propWynehamer v. People, 13 N. Y. 398. In

order to make a taking of property "due process of law" there must be adequate compensation. Sinnickson v. Johnson, 17 N. J. Law, 129; Gardner v. Newburgh, 2 Johns. Ch. 162; Pumpelly v. Green Bay Co., 13 Wall. 166. See on the whole subject the opinion of Judge BREWER, State v. Walruff, 26 Fed. Rep. 178. The criticisms of this opinion by Judge MARTIN in the present case are more specious than sound.


These cases involve an inquiry into the validity of certain statutes of Kansas relating to the manufacture and sale of intoxicating liquors. The first two are indictments, charging Mugler, the plaintiff in error, in one case, with having sold, and in the other with having manufactured, spirituous, vinous, malt, fermented, and other intoxicating liquors, in Saline county, Kansas, without having the license or permit required by the statute. The defendant, having been found guilty, was fined, in each case, $100, and ordered to be committed to the county jail until the fine was paid. Each judgment was affirmed by the supreme court of Kansas, and thereby, it is contended, the defendant was denied rights, privileges, and immunities guarantied by the constitution of the United States. The third case (Kansas v. Ziebold & Hagelin) was commenced by petition filed in one of the courts of the state. The relief sought is (1) that the group of buildings in Atchison county, Kansas, constituting the brewery of the defendants, partners as Ziebold & Hagelin, be adjudged a common nuisance, and the sheriff or other proper officer directed to shut up and abate the same; (2) that the defendants be enjoined from using, or permitting to be used, the said premises as a place where intoxicating liquors may be sold, bartered, or given away, or kept for barter, sale, or gift, otherwise than by authority of law. The defendants answered, denying the allegations of the petition, and averring-First, that said buildings were erected by them prior to the adoption, by the people of Kansas, of the constitutional amendment prohibiting the manufacture and sale of intoxicating liquors for other than medicinal, scientific, and mechanical purposes, and before the passage of the prohibitory liquor statute of that state; second, that they were erected for the purpose of manufacturing beer, and cannot be put to any other use, and, if not so used, they will be of little value; third, that the statute under which said suit is brought is void under the fourteenth amendment of the constitution of the United States. Upon the petition and bond of the defendants, the cause was removed into the circuit court of the United States for the district of Kansas, upon the ground that the suit was one arising under the constitution of the United States. A motion to remand it to the state court was denied. The pleadings were recast so as to conform to the equity practice in the courts of the United States; and, the cause having been heard upon bill and answer, the suit was dismissed. From that decree the state prosecutes an appeal.

By a statute of Kansas, approved March 3, 1868, it was made a misdemeanor, punishable by fine and imprisonment, for any one, directly or indirectly, to sell spirituous, vinous, fermented, or other intoxicating liquors, without having a dram-shop, tavern, or grocery license. It was also enacted, among other things, that every place where intoxicating liquors were sold in violation of the statute should be taken, held, and deemed to be a common nuisance; and it was required that all rooms, taverns, eating-houses, bazaars, restaurants, groceries, coffee-houses, cellars, or other places of public resort where intoxicating liquors were sold, in violation of law, should be abated as public nuisances. Gen. St. Kan. 1868, c. 35. But in 1880 the people of Kansas adopted a more stringent policy. On the second of November of that year they ratified an amendment to the state constitution, which declared that the manufacture and sale of intoxicating liquors should be forever prohibited in that state, except for medical, scientific, and mechanical

purposes. In order to give effect to that amendment, the legislature repealed the act of 1868, and passed an act, approved February 19, 1881, to take effect May 1, 1881, entitled "An act to prohibit the manufacture and sale of intoxicating liquors, except for medical, scientific, and mechanical purposes, and to regulate the manufacture and sale thereof for such excepted purposes." Its first section provides "that any person or persons who shall manufacture, sell, or barter any spirituous, malt, vinous, fermented, or other intoxicating liquors shall be guilty of a misdemeanor: provided, however, that such liquors may be sold for medical, scientific, and mechanical purposes, as provided in this act." The second section makes it unlawful for any person to sell or barter for either of such excepted purposes any malt, vinous, spirituous, fermented, or other intoxicating liquors without having procured a druggist's permit therefor, and prescribes the conditions upon which such permit may be granted. The third section relates to the giving by physicians of prescriptions for intoxicating liquors to be used by their patients, and the fourth, to the sale of such liquors by druggists. The fifth section forbids any person from manufacturing or assisting in the manufacture of intoxicating liquors in the state, except for medical, scientific, and mechanical purposes, and makes provision for the granting of licenses to engage in the business of manufacturing liquors for such excepted purposes. The seventh section declares it to be a misdemeanor for any person, not having the required permit, to sell or barter, directly or indirectly, spirituous, malt, vinous, fermented, or other intoxicating liquors; the punishment prescribed being, for the first offense, a fine of not less than one hundred nor more than five hundred dollars, or imprisonment in the county jail not less than twenty nor more than ninety days; for the second offense, a fine of not less than two hundred nor more than five hundred dollars, or imprisonment in the county jail not less than sixty days nor more than six months; and for every subsequent offense, a fine not less than five hundred nor more than one thousand dollars, or imprisonment in the county jail not less than three months nor more than one year, or both such fine and imprisonment, in the discretion of the court. The eighth section provides for similar fines and punishments against persons who manufacture, or aid, assist, or abet the manufacture of, any intoxicating liquors without having the required permit. The thirteenth section declares, among other things, all places where intoxicating liquors are manufactured, sold, bartered, or given away, or are kept for sale, barter, or use, in violation of the act, to be common nuisances, and provides that upon the judgment of any court having jurisdiction finding such place to be a nuisance, the proper officer shall be directed to shut up and abate the


Under that statute, the prosecutions against Mugler were instituted. It contains other sections in addition to those above referred to; but as they embody merely the details of the general scheme adopted by the state for the prohibition of the manufacture and sale of intoxicating liquors, except for the purposes specified, it is unnecessary to set them out. On the seventh of March, 1885, the legislature passed an act amendatory and supplementary to that of 1881. The thirteenth section of the former act, being the one upon which the suit against Ziebold & Hagelin is founded, will be given in full in a subsequent part of this opinion.

The facts necessary to a clear understanding of the questions, common to these cases, are the following: Mugler and Ziebold & Hagelin were engaged in manufacturing beer at their respective establishments, (constructed specially for that purpose,) for several years prior to the adoption of the constitutional amendment of 1880. They continued in such business in defiance of the statute of 1881, and without having the required permit. Nor did Mugler have a license or permit to sell beer. The single sale of which he was found guilty occurred in the state, and after May 1, 1881, that is, after the act of February 19, 1881, took effect, and was of beer manufactured before its pas

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