Des Moines, Iowa, March 19, 1887.Mrs. E. A. McMurray,Secretary of Iowa State Temperance Alliance:I have your communication of the 17th inst., and appreciating the motives that have prompted it, I take pleasure in responding to your inquiries.The case of I. E. Pearson and S. J. Loughran against John S. Kidd, now pending upon appeal in the supreme court of the state, and in which I have been retained for the defendant, involves only the question as to the right of the defendant to manufacture alcohol in this state, under the permit granted him by the board of supervisors of Polk county, for the purpose of export. There is no pretense that Mr. Kidd, since the taking effect of our present statute, has ever sold any intoxicating liquors, or alcohol, within the state of Iowa, for any purpose whatever. The only evidence offered to sustain the petition is contained in the official reports of Mr. Kidd to the auditor of the county, by which it appears that he has manufactured alcohol and shipped it out of the state. The article manufactured by Mr. Kidd and put upon the market is not itself a beverage, and is not and cannot be used as such in the form in which he has produced and sold it. The case was first tried in the circuit court of Polk county, before Judges Given and Henderson, upon an application for a preliminary injunction. In December last those two judges delivered an opinion in the case, deciding that Mr. Kidd had not in any manner violated the prohibitory law, and they refused an injunction. At the present term of the district court Judge Conrad, our newly-elected district judge, put a different construction upon the law and held, that by the amendment made to the prohibitory law by the legislation of 1884 it was unlawful to manufacture alcohol in the state for export; and this is the sole question to be determined by the supreme court upon the appeal. This answers the first inquiry in your letter, as to what is involved in the case.Your next question is whether or not my employment in this case is consistent with my past record; and whether or not it is calculated to impair my influence and usefulness for the cause of prohibition in the future.I was one of the committee appointed by the State Temperance Alliance to prepare a bill to be presented to the legislature for its consideration, in 1884, that should carry out the will of the people of Iowa, as expressed in the amendment to the constitution, which amendment the supreme court of the state had then decided was not operative, by reason of the failure of the eighteenth general assembly to properly enter the same upon their journals.As early as the 31st of May, 1881, I prepared and delivered before the Methodist state convention that was held in Des Moines at that date an address on the legal phase of the prohibitory amendment. This address was afterwards printed in pamphlet form by theProhibitionist, and was circulated during the amendment campaign as a campaign document, and seemed to meet with the views of the friends of prohibition at that time. In that address I took occasion to discuss the meaning and scope of the proposed amendment, and in it occurs the following passage, defining my view of the legislation that would be required by that amendment, if adopted. I quote:We have, in regard to spirituous liquors, laws upon our statute books designed to prohibit their manufacture or sale, except for medicinal, mechanical, culinary and sacramental purposes. For these lawful purposes certain persons are authorized to sell. They must obtain a permit, give bonds, keep books, etc., and are subject to the supervision and control of the authorities. The manufacturer could be required to sell only to persons thus authorized to sell for lawful purposes; if soldwithin the state, otherwise than as permitted by the statute, the act could be punished by fine or confiscation.May 12, 1881, I attended a meeting of the State Bar Association of Iowa, the proceedings of which are reported in the Des MoinesRegisterof May 13, 1881. That meeting discussed the meaning and interpretation of the proposed prohibitory amendment to the constitution. Mr. Cummins, an attorney of this city, offered a resolution at that meeting as follows:Resolved, That the proposed amendment prohibits the manufacture of intoxicating liquors within the state for sale as a beverage without the state.TheRegister'sreport says that "Judge Nourse arose and stated that Iowa had no control over the liquor after it left the state."From the above it will appear that my interpretation of the constitutional amendment and of the efforts that we were about to make at that time to control the manufacture of intoxicating liquors within this state, did not contemplate any interference with the manufacture of alcohol for the purpose of export. That this view was in entire harmony with the views and opinions of the great mass of the people then favoring legislation upon this subject, is conclusively shown by the following extracts taken from theIowa State Registerof the following dates:The Amendment's Meaning(Iowa State Register, February 3, 1882)Nine-tenths of the mass of the supporters of the amendment that we know of hold the view that it is to deal with liquors only so far as forbidding their sale for use as a beverage in this state. So it is not a "Des Moines idea" at all, but the view of the great body of supporters of the amendment itself.The truth is, then, as shown by the records of the supporters of the submission of the amendment in the legislature, and by the testimony of nine-tenths of the supporters of it among the people who have publicly expressed themselves, that the amendment was not intended to prohibit manufactures for export. The State Bar Association at its last meeting discussed the meaning of it, and failed to agree upon it, opinion being about equally divided as to whether it means absolute and total prohibition or only as to manufacture and sale as a beverage in this state. We do not doubt that the original friends of the amendment intended to have it go no further than to make it deal with liquor as a beverage in Iowa. Nor do we doubt that the great body of them hold to the view now that it is intended to go no further than that. They know that the state has no power to go beyond that, and they realize that to attempt to carry the amendment, with the interpretation of total prohibition or manufacture given to it, it would be defeated.For the people of Iowa will never consent, in our judgment, to prohibit the manufacture of their greatest staple into alcohol for export. In that form Iowa corn can be sent into South America and to the ports of the Mediterranean Sea, while in its raw form it can only go there by taking from five to ten bushels to pay the freight on one. This alcohol trade must be supplied, and will be supplied, and Iowa corn will inevitably supply a good deal of it, whether it is made up into alcohol for this purpose in Iowa, to the profit of the Iowa farmer, or whether it be shipped to Chicago and St. Louis, or elsewhere, at the loss of the Iowa farmer, and made into form there.We do not ask that the amendment itself shall be tinkered with. But we do ask that the same majority which shall vote to submit it to the people shall put on record the true interpretation of its meaning. From this position we do not intend to be driven either by the ridicule of whisky rings or whisky papers, nor by the sneers of temperance papers, which have not yet examined into the question themselves, and would have every body else as stupid about it as they are themselves.The Amendment's Meaning(Iowa State Register, February 7, 1882)The truth is, and all who have watched the progress of this contest know that it was never intended to make this amendment aim to do more than it was possible to do, namely, to exercise police power in its own state, and not aim to attempt to stop inter-state commerce, nor try and prohibit the use of liquor in other states.(Appended is a letter from Hon. L. S. Coffin, supporting theRegister'sview.)The Amendment's Meaning(Iowa State Register, February 21, 1882)We plainly told members of the convention before it met, in order that they might be warned in time, that thousands and thousands of voters were waiting for the true interpretation of the amendment before deciding as to their position toward it—The Registeras a paper, among them. When they adjourned, evading and ignoring a question on which probably hung, and still hangs, the fate of the amendment at the polls, we held that the legislature should take some action to ascertain the real meaning of the amendment before ratifying it. This we held could be done by asking the attorney general, the lawyer and adviser of the state, to give his views as to its actual meaning.These stills, encouraged by the government laws and by the people of Iowa, have begun their manufacture in the state. If Iowa is ever to be anything of a manufacturing state, it can hope to be so mostly, and will be profited mostly by manufactures from its own staple crop. This can go into alcohol, and always be sold, and yet rarely if ever, be used as a beverage. For alcohol is used in thousands of mechanical ways. It is made into varnish by putting gums and resins with it. It is mixed with spirits of turpentine, and makes camphene and burning fluids in endless quantities, used all over South America and Europe. It is made into cologne and other perfumed spirits by flavoring it with different kinds of oil, and all over Europe, when fuel is scarce, it is used in vast quantities for cooking and heating stoves. Millions and millions of gallons of it are used for other mechanical purposes. Very little of it in this form is ever used for a beverage. To say that Iowa corn should be made into this form in Illinois, or in Cincinnati, or New York, or Liverpool, but not in Iowa, is to still leave it to be so converted, and with Iowa bearing the whole loss and reaping none of the gain.So we say, let us have the amendment's real meaning, so that it may be fully understood by the people, and voted up or down as it shall deserve to be.As a member of the committee appointed to prepare a bill for the action of the general assembly of 1884, I can say that there was at no time any thought by the majority of that committee of asking any legislation that would prohibit the manufacture of intoxicating liquors for medicinal and mechanical purposes or for export and sale beyond the jurisdiction of our laws. That committee was composed of lawyers who fully understood that any legislation that we could obtain must be based upon the police power of the state to regulate the sale of intoxicating liquors within its jurisdiction. The Utopian idea that the legislature of Iowa could control the use to which intoxicating liquors, manufactured and sold as an article of commerce in the markets of the world, might be applied in another state, I do not think was at all entertained by the members of that committee, save perhaps one of them, Mr. Todhunter. The bill that was prepared by the committee and presented to the legislature was not enacted into a law in the form in which we originally presented it; but house file No. 516½ was reported by the committee as a substitute for that and other bills that had been introduced on the subject and was passed in both the house and the senate in the form in which it came from the committee, and constitutes chapter 143 of the acts of the twentieth general assembly. And it is this law upon which Judge Conrad bases his opinion. That the friends of this law never intended or believed that it would prohibit the manufacture of alcohol in this state for export clearly appears from the record. Pending the vote upon the passage of this bill in the house the friends of the bill indulged in very little speech-making, and Governor Carpenter and Mr. Kerr were the only members who undertook to reply to the assaults of its opponents. The first effort of the opponents of the bill was to try and load it down with amendments and thereby secure its defeat. An amendment was offered by Mr. Bolter, of Harrison, making the bill an absolute prohibition of the manufacture of intoxicating liquors in this state, and this amendment came within one vote of being adopted. The vote stood fifty votes against the amendment and forty-nine for it. The entire fifty members that votedagainstthis amendment of Mr. Bolter, votedforthe passage of the bill the next day, while of the forty-nine that voted for Mr. Bolter's amendment nearly all of them voted against the passage of the bill. TheIowa State Registerthe morning after this vote was taken contained the following leading editorial giving an account of this attempt to kill the bill. I quote from theState Registerof February 29, 1884, as follows:The house spent the day yesterday on the prohibition bill. Our report in detail shows how desperately the democrats are fighting the inevitable.The spectacle of the democrats voting at one time yesterday, for dishonest purposes, for absolute prohibition, and next ranging themselves on the side of the low license or practically no temperance law at all, is a vivid illustration of the insincerity of that party on the temperance question. Their attitude is insincerity itself, and they are ready to do anything to defeat honest temperance measures. The only test vote had yesterday was on the Bolter absolute prohibition bill (amendment) which was defeated by forty-nine yeas to fifty nays; all the democrats and all the greenbackers and one republican, Mr. Schee, voting for the amendment. Fifty republicans voted in the negative.During the pendency of the discussion theRegisterof the same date contains a report of the speeches of Governor Carpenter and Mr. Kerr in favor of the bill. The following is the full text of Mr. Kerr's speech as reported in theRegisterof February 28, 1884. Mr. Kerr said:The opponents of the bill were wonderfully afraid it would not prohibit. There had never been any question as to the constitutionality of the amendment passed in 1882. It was only the manner of its enactment by the nineteenth general assembly that had rendered it invalid. He agreed with Mr. Dabney that the manufacture of liquors for any purpose was wrong. What was it the people of the state wanted to prohibit? The saloons; those hot-beds of infamy that were constantly bringing disgrace upon the state and misery upon the people. Any representative who fails to crystallize into form of law the will of the people fails to do his duty. How are we to know this sentiment, if not by the votes of the people? There is no better way. Mr. Bolter was eloquent in his denunciations of the evils of intoxication and he agreed with that gentleman and hoped when the time came the man from Harrison would vote in accordance with that sentiment. There are no interests in the state, vested or otherwise, that are higher than the interests of the whole people of the state, and it was better for a few to lose a few dollars than to entail and fasten upon the state an industry that directly or indirectly injures every man in it. It is best for all to have the business wiped out. Mr. Merrill asked Mr. Kerr if the bill permitted the manufacture of liquors for export. Mr. Kerr replied that the bill had been prepared by its friends and it was not intended to have it loaded down by its enemies.The intention of the law was not to prohibit the manufacture for exportation, as there were some doubts as to whether that could be done.This law as it passed the house was published in full in theRegisterof the 28th of February, and on the 29th of February we have this leading editorial in the same paper:TheIowa City Presstries to prove the impossible thing that the proposed prohibitory law in Iowa will discriminate against Iowa brewers and in favor of Iowa distillers. The same stale cry of the democratic campaign. We have heretofore shown that the proposed interdiction treats distillery and brewery alikeand leaves both free to manufacture for export.As to the vineyards of Johnson and other Iowa counties, their products ought to be able to ship as far and sell as well as the product of the Iowa distillers, and it will do so if it is a good article; if it is not a good article it will find no buyer at home now or abroad hereafter.I have quoted the above remarks of Mr. Kerr, for the reason that Mr. Kerr was one of the most staunch and extreme prohibitionists on that he was in favor of absolute prohibition; but at the same time he distinctly repudiates the idea that the legislation which he was then advocating was intended to accomplish any such end. The state temperance convention had simply demanded of the legislature that the will of the people of Iowa as expressed in the vote upon the constitutional amendment should be embodied in a law of the state. Or as Mr. Kerr very significantly remarks, should be "crystallized into law." It is well known as a part of the history of this temperance movement that theIowa State Register, the leading journal of the state that advocated the constitutional amendment, demanded of the nineteenth general assembly, as one of the conditions upon which it would support the amendment, that it should adopt a joint resolution defining the meaning and intent of that proposed amendment, and that it should declare that it was not intended to prevent the manufacture of intoxicating liquors for the purpose of export and sale beyond the state boundaries. That resolution, with the vote by which it was adopted, is on page 501 of the senate journal, 1882, and is as follows:Whereas, doubts have been suggested as to the true intent and meaning of the joint resolution proposing to amend the constitution of this state, etc.; therefore be itResolved by the senate, that said proposed amendment was and is designed and intended to prohibit the manufacture within this statefor sale within this stateas a beverage, of all intoxicating liquors, including ale, wine and beer, and to prohibit the selling of such liquorswithin this statefor use as a beverage, and prohibit the keeping of such liquors, for sale as a beveragewithin this state; and was not designed to prohibit the manufacture, sale or keeping for sale of such liquors for any or all other purposes.The yeas were: Senators Abraham, Arnold, Boling, Brown of Keokuk, CLARK OF PAGE, Cotton, Dashiel, Gillet, Greenlee, Huston, Hartshorn, HEMMINGWAY, Johnson, Kamrar, Logan, Marshall, Nichols of Benton, Nichols of Guthrie, NICHOLS OF MUSCATINE, Parker, Patrick, Poyneer, Prizer, Russell of Greene, Russell of Jones, Sudlow, Terrill, Wall, Whaley, Wilson, Wright—31.All republicans and allprohibitionists, except Wall, who was a greenbacker. Those who think that it is disloyalty to the cause in me to advocate this same doctrine now should reflect that Clark of Page, and Hemmingway, and Pliney Nichols, are all in the same boat—to say nothing of theIowa State Register, at whose special procurement this resolution was passed. The next morning after this resolution was adopted, March 18, 1882, theRegistercontained the following editorial:The senate defined the meaning of the proposed prohibitory amendment and gave to it the beverage interpretation for which theRegisterhas so steadily and persistently contended. So that now the people of Iowa have the true definition of the amendment, which is, that it is to deal with liquors in manufacture and sale only as a beveragein the state of Iowa. It was this interpretation that theRegisterasked for in order to support it.But the meaning of this law is, in my judgment, clear, from the text of the act itself without reference to this legislative history. This law left in full force section 1542 of the code, which defines the offense of keeping intoxicating liquors with intent to sell the same in the following terms:No person shall own and keep, or be in any way concerned, engaged or employed in owning or keeping intoxicating liquorswith intent to sell the same within this state, or permit the same to be sold therein, in violation of the provisions hereof.This is in entire harmony with two decisions of our supreme court rendered prior to 1884, declaring that alcohol was an article of commerce that might be lawfully held and owned and kept within this state and for sale and export beyond the state. The prohibition contained in this section, 1542, against keeping intoxicating liquors with intent to sell the same within the state, is a clear declaration of the legislature that to keep or own the same with intent to sell it beyond the bounds of the state is not a violation of the law. And the amendment of 1884 in regard to the transportation of liquors, an amendment which I prepared myself and which was incorporated in the law in the very language in which I wrote it, prohibits any railroad company or common carrier from knowingly "bringing into the state" or "transporting intoxicating liquors between points within the state" without first having been furnished with a certificate from the county auditor certifying that the consignee or person for whom the liquor is to be transported is authorized to sell the same within the state. It is very evident, that if this provision of law, which is section 1553, was intended to prohibit the export of intoxicating liquors, it would not have been so careful to limit the prohibition to importation and to transportation between points within the state. The section was written with express reference to the theory that the manufacture of intoxicating liquors in this state for purposes of export was not prohibited by law.After this law of 1884 took effect, it will be remembered, that we organized in Iowa county alliances for the purpose of prosecuting offenders and enforcing its penalties. Such an organization was effected in Polk county, and I had the honor of being nominated as the chairman of the judiciary committee of such organization, which committee was charged with the duty of employing attorneys and enrolling prosecutions under the law. In May, 1884, Judge C. C. Cole, of this city, received from the Western Export Association of Distillers in the United States a claim against the International Distillery for $17,499.68, which it was claimed Mr. Kidd owed the pool, on account of over-production. It will be necessary to give some explanation of the character of this claim. The Western Export Association is an association of the alcohol distillers of the United States, chiefly located at Peoria, Illinois, whereby they undertake to control the manufacture of alcohol and limit its production in relation to the demand, and thus control and keep up the price of the article. The entire scheme is an unlawful one as against public policy, in that it establishes a monopoly and prevents competition in the production of a legitimate article of commerce and sale. Judge Cole was too good a lawyer to go into court with a suit upon such a demand, and he conceived the idea of using the criminal processes of the law against Mr. Kidd for the purpose of extorting from him this demand of the whisky pool. In accordance with this purpose Mr. J. S. Clark, his partner and afterwards one of the plaintiffs in this present suit, Mr. S. J. Loughran, was induced to appear before the county alliance and offer the services of Mr. Cole free of any charge to the alliance, for the purpose of prosecuting the International Distillery and harassing them with prosecutions upon alleged violation of the law, and asking that the secretary of our association, Mr. Littleton, give the use of his name for the purpose of filing complaints. The proposition was referred to the judiciary committee of the county alliance, of which I was chairman, and was duly presented to me by the secretary. It is hardly necessary for me to say that I refused to enter into such a conspiracy or to favor the use of the alliance for any such purpose. We had organized in good faith in this county for the purpose of enforcing the prohibitory law in the interest of the cause of temperance, and not for the purpose of collecting the illegal demands of the whisky pool and the distillers of Illinois. The following is a literal copy of Judge Cole's letter to Mr. John S. Kidd, in relation to this claim:Des Moines, Iowa, May 24, 1884.John S. Kidd, Esq., President International Distillery Company,Des Moines, Iowa.Dear Sir: The Western Export Association has placed in my hands for collection by immediate suit a claim of $17,499.68 against the International Distillery Company, and you as its president. My pleasant personal associations with you have prompted me to ask and obtain permission for my client to delay the actual bringing of the suit till noon of Monday next, May 26th. I could not obtain leave for further delay because certain members of the association, who also have retained me to bring suit if this is not settled, claim that they are being further damaged to the extent of thousands of dollars daily, by the course of your company. Hoping to see you and to receive payment of the claim before Monday noon, I remain as everVery truly yours,C. C. ColeTo this very remarkable epistle Mr. Kidd made response of the same date as follows:Permit me to suggest that you should not allow personal considerations to interfere with professional duties. This bit of advice is given gratis and by way of friendly return for the favor of your grace over Sabbath on the modest demand you make.Yours truly,John S. KiddIt is unnecessary to say in this connection that Judge Cole never filed any petition in court on this modest demand. After the county alliance refused the use of its name or influence for the purpose of extorting this money out of Mr. Kidd, a clerk in Judge Cole's law office filed complaint against Mr. Kidd and procured warrants for the seizure of alcohol manufactured and shipped for export beyond the bounds of the state. All of these prosecutions proved ignominious failures. The present suit against Mr. Kidd was commenced in December, 1885, Lewis Todhunter appearing of record as attorney for the plaintiff, and I. E. Pearson and S. J. Loughran as the nominal plaintiffs.In October, 1885, Mr. Loughran, at a meeting of the county alliance, offered a resolution instructing its officers to commence suit against the International Distillery,provided evidence could be found against it. I was not present at the meeting, and on motion of Mr. Lee the resolution was referred to the judiciary committee.Upon inquiry of Mr. Harvey, the then president, and Mr. Littleton, the secretary, I found that neither of those officers had any information upon which a suit could be predicated, and neither would advise a prosecution. Mr. Loughran nor any one else ever approached the committee on the subject, or furnished the alliance any evidence.The statement has been made that I was at this time the attorney for Mr. Kidd. This is wholly untrue. It is true, however, that early in 1884 the firm of Nourse & Kauffman was called upon by Mr. Kidd, for a consultation with the attorneys, Messrs. Lehmann & Park, in regard to his business affairs, and upon the matter of the construction of the act of 1884, Mr. Kidd advising us at that time that he desired strictly to observe the law in the manufacture of alcohol. We gave him our opinion at the time, and he paid our firm a fee of fifty dollars. I have had no business connection with Mr. Kidd or the International Distillery since that time, until my employment in this case, after the decision of Judge Conrad a few weeks ago.Early in the year 1886 the secretary of the Polk county alliance reported that the funds of the organization and the available subscriptions were exhausted, and that liabilities had been incurred that we were unable to meet. Several unsuccessful efforts to have the subscriptions to our funds renewed were made. Mr. Harvey, on account of other engagements, declined a re-election as president of the county alliance in June, 1886. It seemed impossible to get a responsible person to accept of the position. Under these circumstances I. E. Pearson succeeded to that office. Though a gentleman of elegant leisure, he has never, since his election, been able, by his influence or exertions, to put a dollar into the treasury of the alliance.He has, however, been operating quite extensively on "his own hook," as he says. His principal enterprise, apart from his present suit against Mr. Kidd, has been to watch the incoming of the monthly reports that the law requires the druggist to make to the county auditor, and whenever, by any misadventure, their reports have been delayed a few days beyond the time fixed by the law, Pearson has brought suit against them for the one hundred dollars penalty provided by the statute, and then compromised for the largest amount he could get out of the defendant. In this way he has made hundreds of dollars for himself and has been able to support such an improved style of personal appearance that it has attracted public attention and newspaper comment.In this newroleof "affidavit maker" to theState Registerhe has already attained distinction. Whether this enterprise will prove a financial success I do not know, as I am not advised as to the terms of the new partnership. It is not yet known whether Pearson has taken theState Registerinto partnership, or whether theRegisterhas taken in Pearson.It has always been my fortune in life to antagonize men of this stamp. If I have not as many friends as some men of less positive opinions, I have the consolation to know that I have reason to be proud of the character of my enemies.By what means he has induced eminent counsel, backed by the active influence of theIowa State Register, to prosecute this case against Mr. Kidd, remains a mystery. To the oft-repeated inquiries of members of the alliance for information on this subject his answers have been evasive and entirely unsatisfactory. Judge Cole in his letter to Mr. Kidd mentions that certain members of the export association were being damaged "to the extent of thousands of dollars daily" by the course pursued by the International Distillery. "Thousands of dollars daily" is a large amount of money, and a very grave apprehension exists in the minds of many of the temperance men of this community that these "certain other individuals" are not idle spectators in this contest. When or how Judge Cole and Mr. Runnells or theIowa State Registercame into the case I do not know—I only know that they "got there.""… he has no wings at all,But he gets there all the same."Judge Cole and Mr. Runnells are also defending Hurlbut, Hess & Co., and the six thousand dollars of intoxicating liquors condemned by the jury in that case. They are also attorneys for Rowe, the man who shot down Constable Logan. No one, I believe, has questioned their right to act as counsel for the defense in these matters or even suggested the impropriety of their employment. I certainly would not do so. TheIowa State Registerhas besought the public to suspend any judgment as to the guilt or innocence of Rowe, but to await the judicial investigation of the case. This is certainly commendable forbearance, but why the same spirit of fair play should not be manifested toward Mr. Kidd pending the judicial determination of his rights, I cannot understand. Does it make any difference because Mr. Runnells is defending in the one case and prosecuting in the other? Surely a man who has invested two hundred and fifty thousand dollars in manufacturing in our city, by the advice and encouragement of theRegister, is entitled to as much consideration as the man who takes the life of a public officer whilst in the discharge of an official duty. The statement that the State Temperance Alliance has ever favored or endorsed the prosecution of Mr. Kidd is wholly without foundation.I have now answered very fully all of the inquiries in your letter save, perhaps, the last, and that is as to the relation and effect of the present suit to the cause of prohibition in Iowa. Permit me to say to you, and through you to the true friends of prohibition in this state, that we have now upon our statute books a most excellent law, that is every day gaining favor with the people, and that has survived all open warfare upon it. In my humble judgment the most we now have to fear is not the open opposition of its enemies, but the follies and indiscretions of its friends. As I have already conclusively shown in this communication, we procured the enactment of this law by assuring the people of this state that we did not intend to interfere with the manufacture of alcohol or intoxicating liquors for medicinal or mechanical purposes, nor as an article of commerce for export. The question is, have we anything to gain by duplicity and insincerity, and by now claiming for this law what we did not claim for it when we procured its enactment by the general assembly? Above all things, have we, as prohibitionists, anything to gain by entering into an alliance with the distillers of other states who are making war upon a productive industry in our own state, for the sole purpose of promoting their own pecuniary interests in destroying competition in their business? Have we anything to gain by turning aside from the great work that we have undertaken of destroying the saloon as a place of resort where our young men are taught the habit of intoxication, and engaging in the Utopian scheme of regulating the supply of alcohol in the markets of the world, the use of which it is impossible for us to control after it passes beyond the jurisdiction of our laws?There is another very grave and important question that the true friends of prohibition in Iowa should stop to consider. The courts of the United States have more than intimated that if the prohibitory law of Iowa does in fact destroy the value of property built for a use which was lawful at the time of its erection, that such a law is a violation of the constitution of the United States, unless it also makes provision for compensation to the owner.This International Distillery was built and in full operation before the amendment of 1884 was enacted. By virtue of its provisions a limitation only, in my humble judgment, was placed upon the uses for which alcohol might be sold within the state. The answer to the position that our law is unconstitutional because it affects the value of this property is, that it does not prevent the manufacture of alcohol for export or for sale within the state for lawful purposes. But if we propose to destroy the value of this property by this new interpretation of our statute, and say that it is our purpose and intent to prevent its use for the manufacture of alcohol for export, then may we not seriously apprehend that our law will be held unconstitutional, and may we not, in attempting too much, lose all? The fable of the dog crossing the log over the stream, that dropped the meat from his mouth in order that he might grasp the shadow, I would recommend to the careful study and perusal of some of our pretended friends.But there is still another political phase of this question that we ought to carefully consider. Heretofore we have put the opponents of this law upon the necessity of defending the saloon as an institution; we have made the suppression of these places of resort the war-cry of our campaign. Is it the part of wisdom to change this issue and assume the affirmative of the proposition that the good order and peace of society requires that we should ship our corn to Peoria to be manufactured into alcohol rather than have it manufactured in our own state, either for medicinal or mechanical purposes or for export? For one I fail to see any wisdom in such a proceeding. I am not prepared to join in or acquiesce in such a folly. In accepting a retainer from Mr. Kidd in the case now pending in the supreme court I did so because it was my plain duty, as a lawyer, to defend the legal rights as I believe them to be, of a man whose property was unjustly and illegally assailed. I was not employed in the case until after Judge Conrad's decision. That the temperance people of Iowa will find any fault with me for presenting to the supreme court the question of law involved in this appeal I cannot well believe. How will these questions be answered?First.Do they ask or desire that the property of any citizen shall be destroyed and condemned without a fair and full trial before the appellate court?Second.Does not a fair trial also involve the right of the citizen to have the aid of a counsel?Third.If the defendant is to have the aid of counsel, can my employment be any more objectionable than the employment of one who is an enemy of the law?Fourth.Is it not true that the view of the statute that I propose to present to the court, is the view that we nearly allpretendedto have when we procured the passage of the law?The decision of Judge Conrad, though made no doubt with the utmost sincerity and good faith on his part, I regard as a mistake, and an unfortunate one for the cause of prohibition. In the interview published by theRegisterI said that neither the decisions of courts nor the conduct of lawyers or newspapers would defeat the ultimate triumph of prohibition. I still have faith in that proposition. If I have erred, or if the courts shall decide too much or too little, yet legal prohibition as a principle is right, and I believe will ultimately triumph. I do not believe the present prosecution of Mr. Kidd is justified by the law or the facts, and injustice and illegal prosecutions are not in my judgment the means of success in a good cause. Whatever personal malice may originate of misrepresentation or abuse of me in this matter, gives me no concern. I am used to this kind of thing and have never turned aside from my professional duty because of attempted newspaper intimidations. I am now in the thirty-sixth year of my practice in Iowa, and can afford, I think, to perform a plain professional duty. Asking pardon for the extent of this communication, which I have necessarily made somewhat in detail in order that your questions might be fully answered, I remain as I have ever been, an earnest friend and co-worker in the cause of prohibition, andMost truly your humble servant,C. C. Nourse
Des Moines, Iowa, March 19, 1887.
Mrs. E. A. McMurray,Secretary of Iowa State Temperance Alliance:
I have your communication of the 17th inst., and appreciating the motives that have prompted it, I take pleasure in responding to your inquiries.
The case of I. E. Pearson and S. J. Loughran against John S. Kidd, now pending upon appeal in the supreme court of the state, and in which I have been retained for the defendant, involves only the question as to the right of the defendant to manufacture alcohol in this state, under the permit granted him by the board of supervisors of Polk county, for the purpose of export. There is no pretense that Mr. Kidd, since the taking effect of our present statute, has ever sold any intoxicating liquors, or alcohol, within the state of Iowa, for any purpose whatever. The only evidence offered to sustain the petition is contained in the official reports of Mr. Kidd to the auditor of the county, by which it appears that he has manufactured alcohol and shipped it out of the state. The article manufactured by Mr. Kidd and put upon the market is not itself a beverage, and is not and cannot be used as such in the form in which he has produced and sold it. The case was first tried in the circuit court of Polk county, before Judges Given and Henderson, upon an application for a preliminary injunction. In December last those two judges delivered an opinion in the case, deciding that Mr. Kidd had not in any manner violated the prohibitory law, and they refused an injunction. At the present term of the district court Judge Conrad, our newly-elected district judge, put a different construction upon the law and held, that by the amendment made to the prohibitory law by the legislation of 1884 it was unlawful to manufacture alcohol in the state for export; and this is the sole question to be determined by the supreme court upon the appeal. This answers the first inquiry in your letter, as to what is involved in the case.
Your next question is whether or not my employment in this case is consistent with my past record; and whether or not it is calculated to impair my influence and usefulness for the cause of prohibition in the future.
I was one of the committee appointed by the State Temperance Alliance to prepare a bill to be presented to the legislature for its consideration, in 1884, that should carry out the will of the people of Iowa, as expressed in the amendment to the constitution, which amendment the supreme court of the state had then decided was not operative, by reason of the failure of the eighteenth general assembly to properly enter the same upon their journals.
As early as the 31st of May, 1881, I prepared and delivered before the Methodist state convention that was held in Des Moines at that date an address on the legal phase of the prohibitory amendment. This address was afterwards printed in pamphlet form by theProhibitionist, and was circulated during the amendment campaign as a campaign document, and seemed to meet with the views of the friends of prohibition at that time. In that address I took occasion to discuss the meaning and scope of the proposed amendment, and in it occurs the following passage, defining my view of the legislation that would be required by that amendment, if adopted. I quote:
We have, in regard to spirituous liquors, laws upon our statute books designed to prohibit their manufacture or sale, except for medicinal, mechanical, culinary and sacramental purposes. For these lawful purposes certain persons are authorized to sell. They must obtain a permit, give bonds, keep books, etc., and are subject to the supervision and control of the authorities. The manufacturer could be required to sell only to persons thus authorized to sell for lawful purposes; if soldwithin the state, otherwise than as permitted by the statute, the act could be punished by fine or confiscation.
We have, in regard to spirituous liquors, laws upon our statute books designed to prohibit their manufacture or sale, except for medicinal, mechanical, culinary and sacramental purposes. For these lawful purposes certain persons are authorized to sell. They must obtain a permit, give bonds, keep books, etc., and are subject to the supervision and control of the authorities. The manufacturer could be required to sell only to persons thus authorized to sell for lawful purposes; if soldwithin the state, otherwise than as permitted by the statute, the act could be punished by fine or confiscation.
May 12, 1881, I attended a meeting of the State Bar Association of Iowa, the proceedings of which are reported in the Des MoinesRegisterof May 13, 1881. That meeting discussed the meaning and interpretation of the proposed prohibitory amendment to the constitution. Mr. Cummins, an attorney of this city, offered a resolution at that meeting as follows:
Resolved, That the proposed amendment prohibits the manufacture of intoxicating liquors within the state for sale as a beverage without the state.
Resolved, That the proposed amendment prohibits the manufacture of intoxicating liquors within the state for sale as a beverage without the state.
TheRegister'sreport says that "Judge Nourse arose and stated that Iowa had no control over the liquor after it left the state."
From the above it will appear that my interpretation of the constitutional amendment and of the efforts that we were about to make at that time to control the manufacture of intoxicating liquors within this state, did not contemplate any interference with the manufacture of alcohol for the purpose of export. That this view was in entire harmony with the views and opinions of the great mass of the people then favoring legislation upon this subject, is conclusively shown by the following extracts taken from theIowa State Registerof the following dates:
The Amendment's Meaning(Iowa State Register, February 3, 1882)Nine-tenths of the mass of the supporters of the amendment that we know of hold the view that it is to deal with liquors only so far as forbidding their sale for use as a beverage in this state. So it is not a "Des Moines idea" at all, but the view of the great body of supporters of the amendment itself.The truth is, then, as shown by the records of the supporters of the submission of the amendment in the legislature, and by the testimony of nine-tenths of the supporters of it among the people who have publicly expressed themselves, that the amendment was not intended to prohibit manufactures for export. The State Bar Association at its last meeting discussed the meaning of it, and failed to agree upon it, opinion being about equally divided as to whether it means absolute and total prohibition or only as to manufacture and sale as a beverage in this state. We do not doubt that the original friends of the amendment intended to have it go no further than to make it deal with liquor as a beverage in Iowa. Nor do we doubt that the great body of them hold to the view now that it is intended to go no further than that. They know that the state has no power to go beyond that, and they realize that to attempt to carry the amendment, with the interpretation of total prohibition or manufacture given to it, it would be defeated.For the people of Iowa will never consent, in our judgment, to prohibit the manufacture of their greatest staple into alcohol for export. In that form Iowa corn can be sent into South America and to the ports of the Mediterranean Sea, while in its raw form it can only go there by taking from five to ten bushels to pay the freight on one. This alcohol trade must be supplied, and will be supplied, and Iowa corn will inevitably supply a good deal of it, whether it is made up into alcohol for this purpose in Iowa, to the profit of the Iowa farmer, or whether it be shipped to Chicago and St. Louis, or elsewhere, at the loss of the Iowa farmer, and made into form there.We do not ask that the amendment itself shall be tinkered with. But we do ask that the same majority which shall vote to submit it to the people shall put on record the true interpretation of its meaning. From this position we do not intend to be driven either by the ridicule of whisky rings or whisky papers, nor by the sneers of temperance papers, which have not yet examined into the question themselves, and would have every body else as stupid about it as they are themselves.The Amendment's Meaning(Iowa State Register, February 7, 1882)The truth is, and all who have watched the progress of this contest know that it was never intended to make this amendment aim to do more than it was possible to do, namely, to exercise police power in its own state, and not aim to attempt to stop inter-state commerce, nor try and prohibit the use of liquor in other states.(Appended is a letter from Hon. L. S. Coffin, supporting theRegister'sview.)The Amendment's Meaning(Iowa State Register, February 21, 1882)We plainly told members of the convention before it met, in order that they might be warned in time, that thousands and thousands of voters were waiting for the true interpretation of the amendment before deciding as to their position toward it—The Registeras a paper, among them. When they adjourned, evading and ignoring a question on which probably hung, and still hangs, the fate of the amendment at the polls, we held that the legislature should take some action to ascertain the real meaning of the amendment before ratifying it. This we held could be done by asking the attorney general, the lawyer and adviser of the state, to give his views as to its actual meaning.These stills, encouraged by the government laws and by the people of Iowa, have begun their manufacture in the state. If Iowa is ever to be anything of a manufacturing state, it can hope to be so mostly, and will be profited mostly by manufactures from its own staple crop. This can go into alcohol, and always be sold, and yet rarely if ever, be used as a beverage. For alcohol is used in thousands of mechanical ways. It is made into varnish by putting gums and resins with it. It is mixed with spirits of turpentine, and makes camphene and burning fluids in endless quantities, used all over South America and Europe. It is made into cologne and other perfumed spirits by flavoring it with different kinds of oil, and all over Europe, when fuel is scarce, it is used in vast quantities for cooking and heating stoves. Millions and millions of gallons of it are used for other mechanical purposes. Very little of it in this form is ever used for a beverage. To say that Iowa corn should be made into this form in Illinois, or in Cincinnati, or New York, or Liverpool, but not in Iowa, is to still leave it to be so converted, and with Iowa bearing the whole loss and reaping none of the gain.So we say, let us have the amendment's real meaning, so that it may be fully understood by the people, and voted up or down as it shall deserve to be.
The Amendment's Meaning
(Iowa State Register, February 3, 1882)
Nine-tenths of the mass of the supporters of the amendment that we know of hold the view that it is to deal with liquors only so far as forbidding their sale for use as a beverage in this state. So it is not a "Des Moines idea" at all, but the view of the great body of supporters of the amendment itself.
The truth is, then, as shown by the records of the supporters of the submission of the amendment in the legislature, and by the testimony of nine-tenths of the supporters of it among the people who have publicly expressed themselves, that the amendment was not intended to prohibit manufactures for export. The State Bar Association at its last meeting discussed the meaning of it, and failed to agree upon it, opinion being about equally divided as to whether it means absolute and total prohibition or only as to manufacture and sale as a beverage in this state. We do not doubt that the original friends of the amendment intended to have it go no further than to make it deal with liquor as a beverage in Iowa. Nor do we doubt that the great body of them hold to the view now that it is intended to go no further than that. They know that the state has no power to go beyond that, and they realize that to attempt to carry the amendment, with the interpretation of total prohibition or manufacture given to it, it would be defeated.
For the people of Iowa will never consent, in our judgment, to prohibit the manufacture of their greatest staple into alcohol for export. In that form Iowa corn can be sent into South America and to the ports of the Mediterranean Sea, while in its raw form it can only go there by taking from five to ten bushels to pay the freight on one. This alcohol trade must be supplied, and will be supplied, and Iowa corn will inevitably supply a good deal of it, whether it is made up into alcohol for this purpose in Iowa, to the profit of the Iowa farmer, or whether it be shipped to Chicago and St. Louis, or elsewhere, at the loss of the Iowa farmer, and made into form there.
We do not ask that the amendment itself shall be tinkered with. But we do ask that the same majority which shall vote to submit it to the people shall put on record the true interpretation of its meaning. From this position we do not intend to be driven either by the ridicule of whisky rings or whisky papers, nor by the sneers of temperance papers, which have not yet examined into the question themselves, and would have every body else as stupid about it as they are themselves.
The Amendment's Meaning
(Iowa State Register, February 7, 1882)
The truth is, and all who have watched the progress of this contest know that it was never intended to make this amendment aim to do more than it was possible to do, namely, to exercise police power in its own state, and not aim to attempt to stop inter-state commerce, nor try and prohibit the use of liquor in other states.
(Appended is a letter from Hon. L. S. Coffin, supporting theRegister'sview.)
The Amendment's Meaning
(Iowa State Register, February 21, 1882)
We plainly told members of the convention before it met, in order that they might be warned in time, that thousands and thousands of voters were waiting for the true interpretation of the amendment before deciding as to their position toward it—The Registeras a paper, among them. When they adjourned, evading and ignoring a question on which probably hung, and still hangs, the fate of the amendment at the polls, we held that the legislature should take some action to ascertain the real meaning of the amendment before ratifying it. This we held could be done by asking the attorney general, the lawyer and adviser of the state, to give his views as to its actual meaning.
These stills, encouraged by the government laws and by the people of Iowa, have begun their manufacture in the state. If Iowa is ever to be anything of a manufacturing state, it can hope to be so mostly, and will be profited mostly by manufactures from its own staple crop. This can go into alcohol, and always be sold, and yet rarely if ever, be used as a beverage. For alcohol is used in thousands of mechanical ways. It is made into varnish by putting gums and resins with it. It is mixed with spirits of turpentine, and makes camphene and burning fluids in endless quantities, used all over South America and Europe. It is made into cologne and other perfumed spirits by flavoring it with different kinds of oil, and all over Europe, when fuel is scarce, it is used in vast quantities for cooking and heating stoves. Millions and millions of gallons of it are used for other mechanical purposes. Very little of it in this form is ever used for a beverage. To say that Iowa corn should be made into this form in Illinois, or in Cincinnati, or New York, or Liverpool, but not in Iowa, is to still leave it to be so converted, and with Iowa bearing the whole loss and reaping none of the gain.
So we say, let us have the amendment's real meaning, so that it may be fully understood by the people, and voted up or down as it shall deserve to be.
As a member of the committee appointed to prepare a bill for the action of the general assembly of 1884, I can say that there was at no time any thought by the majority of that committee of asking any legislation that would prohibit the manufacture of intoxicating liquors for medicinal and mechanical purposes or for export and sale beyond the jurisdiction of our laws. That committee was composed of lawyers who fully understood that any legislation that we could obtain must be based upon the police power of the state to regulate the sale of intoxicating liquors within its jurisdiction. The Utopian idea that the legislature of Iowa could control the use to which intoxicating liquors, manufactured and sold as an article of commerce in the markets of the world, might be applied in another state, I do not think was at all entertained by the members of that committee, save perhaps one of them, Mr. Todhunter. The bill that was prepared by the committee and presented to the legislature was not enacted into a law in the form in which we originally presented it; but house file No. 516½ was reported by the committee as a substitute for that and other bills that had been introduced on the subject and was passed in both the house and the senate in the form in which it came from the committee, and constitutes chapter 143 of the acts of the twentieth general assembly. And it is this law upon which Judge Conrad bases his opinion. That the friends of this law never intended or believed that it would prohibit the manufacture of alcohol in this state for export clearly appears from the record. Pending the vote upon the passage of this bill in the house the friends of the bill indulged in very little speech-making, and Governor Carpenter and Mr. Kerr were the only members who undertook to reply to the assaults of its opponents. The first effort of the opponents of the bill was to try and load it down with amendments and thereby secure its defeat. An amendment was offered by Mr. Bolter, of Harrison, making the bill an absolute prohibition of the manufacture of intoxicating liquors in this state, and this amendment came within one vote of being adopted. The vote stood fifty votes against the amendment and forty-nine for it. The entire fifty members that votedagainstthis amendment of Mr. Bolter, votedforthe passage of the bill the next day, while of the forty-nine that voted for Mr. Bolter's amendment nearly all of them voted against the passage of the bill. TheIowa State Registerthe morning after this vote was taken contained the following leading editorial giving an account of this attempt to kill the bill. I quote from theState Registerof February 29, 1884, as follows:
The house spent the day yesterday on the prohibition bill. Our report in detail shows how desperately the democrats are fighting the inevitable.The spectacle of the democrats voting at one time yesterday, for dishonest purposes, for absolute prohibition, and next ranging themselves on the side of the low license or practically no temperance law at all, is a vivid illustration of the insincerity of that party on the temperance question. Their attitude is insincerity itself, and they are ready to do anything to defeat honest temperance measures. The only test vote had yesterday was on the Bolter absolute prohibition bill (amendment) which was defeated by forty-nine yeas to fifty nays; all the democrats and all the greenbackers and one republican, Mr. Schee, voting for the amendment. Fifty republicans voted in the negative.
The house spent the day yesterday on the prohibition bill. Our report in detail shows how desperately the democrats are fighting the inevitable.
The spectacle of the democrats voting at one time yesterday, for dishonest purposes, for absolute prohibition, and next ranging themselves on the side of the low license or practically no temperance law at all, is a vivid illustration of the insincerity of that party on the temperance question. Their attitude is insincerity itself, and they are ready to do anything to defeat honest temperance measures. The only test vote had yesterday was on the Bolter absolute prohibition bill (amendment) which was defeated by forty-nine yeas to fifty nays; all the democrats and all the greenbackers and one republican, Mr. Schee, voting for the amendment. Fifty republicans voted in the negative.
During the pendency of the discussion theRegisterof the same date contains a report of the speeches of Governor Carpenter and Mr. Kerr in favor of the bill. The following is the full text of Mr. Kerr's speech as reported in theRegisterof February 28, 1884. Mr. Kerr said:
The opponents of the bill were wonderfully afraid it would not prohibit. There had never been any question as to the constitutionality of the amendment passed in 1882. It was only the manner of its enactment by the nineteenth general assembly that had rendered it invalid. He agreed with Mr. Dabney that the manufacture of liquors for any purpose was wrong. What was it the people of the state wanted to prohibit? The saloons; those hot-beds of infamy that were constantly bringing disgrace upon the state and misery upon the people. Any representative who fails to crystallize into form of law the will of the people fails to do his duty. How are we to know this sentiment, if not by the votes of the people? There is no better way. Mr. Bolter was eloquent in his denunciations of the evils of intoxication and he agreed with that gentleman and hoped when the time came the man from Harrison would vote in accordance with that sentiment. There are no interests in the state, vested or otherwise, that are higher than the interests of the whole people of the state, and it was better for a few to lose a few dollars than to entail and fasten upon the state an industry that directly or indirectly injures every man in it. It is best for all to have the business wiped out. Mr. Merrill asked Mr. Kerr if the bill permitted the manufacture of liquors for export. Mr. Kerr replied that the bill had been prepared by its friends and it was not intended to have it loaded down by its enemies.The intention of the law was not to prohibit the manufacture for exportation, as there were some doubts as to whether that could be done.
The opponents of the bill were wonderfully afraid it would not prohibit. There had never been any question as to the constitutionality of the amendment passed in 1882. It was only the manner of its enactment by the nineteenth general assembly that had rendered it invalid. He agreed with Mr. Dabney that the manufacture of liquors for any purpose was wrong. What was it the people of the state wanted to prohibit? The saloons; those hot-beds of infamy that were constantly bringing disgrace upon the state and misery upon the people. Any representative who fails to crystallize into form of law the will of the people fails to do his duty. How are we to know this sentiment, if not by the votes of the people? There is no better way. Mr. Bolter was eloquent in his denunciations of the evils of intoxication and he agreed with that gentleman and hoped when the time came the man from Harrison would vote in accordance with that sentiment. There are no interests in the state, vested or otherwise, that are higher than the interests of the whole people of the state, and it was better for a few to lose a few dollars than to entail and fasten upon the state an industry that directly or indirectly injures every man in it. It is best for all to have the business wiped out. Mr. Merrill asked Mr. Kerr if the bill permitted the manufacture of liquors for export. Mr. Kerr replied that the bill had been prepared by its friends and it was not intended to have it loaded down by its enemies.The intention of the law was not to prohibit the manufacture for exportation, as there were some doubts as to whether that could be done.
This law as it passed the house was published in full in theRegisterof the 28th of February, and on the 29th of February we have this leading editorial in the same paper:
TheIowa City Presstries to prove the impossible thing that the proposed prohibitory law in Iowa will discriminate against Iowa brewers and in favor of Iowa distillers. The same stale cry of the democratic campaign. We have heretofore shown that the proposed interdiction treats distillery and brewery alikeand leaves both free to manufacture for export.As to the vineyards of Johnson and other Iowa counties, their products ought to be able to ship as far and sell as well as the product of the Iowa distillers, and it will do so if it is a good article; if it is not a good article it will find no buyer at home now or abroad hereafter.
TheIowa City Presstries to prove the impossible thing that the proposed prohibitory law in Iowa will discriminate against Iowa brewers and in favor of Iowa distillers. The same stale cry of the democratic campaign. We have heretofore shown that the proposed interdiction treats distillery and brewery alikeand leaves both free to manufacture for export.
As to the vineyards of Johnson and other Iowa counties, their products ought to be able to ship as far and sell as well as the product of the Iowa distillers, and it will do so if it is a good article; if it is not a good article it will find no buyer at home now or abroad hereafter.
I have quoted the above remarks of Mr. Kerr, for the reason that Mr. Kerr was one of the most staunch and extreme prohibitionists on that he was in favor of absolute prohibition; but at the same time he distinctly repudiates the idea that the legislation which he was then advocating was intended to accomplish any such end. The state temperance convention had simply demanded of the legislature that the will of the people of Iowa as expressed in the vote upon the constitutional amendment should be embodied in a law of the state. Or as Mr. Kerr very significantly remarks, should be "crystallized into law." It is well known as a part of the history of this temperance movement that theIowa State Register, the leading journal of the state that advocated the constitutional amendment, demanded of the nineteenth general assembly, as one of the conditions upon which it would support the amendment, that it should adopt a joint resolution defining the meaning and intent of that proposed amendment, and that it should declare that it was not intended to prevent the manufacture of intoxicating liquors for the purpose of export and sale beyond the state boundaries. That resolution, with the vote by which it was adopted, is on page 501 of the senate journal, 1882, and is as follows:
Whereas, doubts have been suggested as to the true intent and meaning of the joint resolution proposing to amend the constitution of this state, etc.; therefore be itResolved by the senate, that said proposed amendment was and is designed and intended to prohibit the manufacture within this statefor sale within this stateas a beverage, of all intoxicating liquors, including ale, wine and beer, and to prohibit the selling of such liquorswithin this statefor use as a beverage, and prohibit the keeping of such liquors, for sale as a beveragewithin this state; and was not designed to prohibit the manufacture, sale or keeping for sale of such liquors for any or all other purposes.The yeas were: Senators Abraham, Arnold, Boling, Brown of Keokuk, CLARK OF PAGE, Cotton, Dashiel, Gillet, Greenlee, Huston, Hartshorn, HEMMINGWAY, Johnson, Kamrar, Logan, Marshall, Nichols of Benton, Nichols of Guthrie, NICHOLS OF MUSCATINE, Parker, Patrick, Poyneer, Prizer, Russell of Greene, Russell of Jones, Sudlow, Terrill, Wall, Whaley, Wilson, Wright—31.
Whereas, doubts have been suggested as to the true intent and meaning of the joint resolution proposing to amend the constitution of this state, etc.; therefore be it
Resolved by the senate, that said proposed amendment was and is designed and intended to prohibit the manufacture within this statefor sale within this stateas a beverage, of all intoxicating liquors, including ale, wine and beer, and to prohibit the selling of such liquorswithin this statefor use as a beverage, and prohibit the keeping of such liquors, for sale as a beveragewithin this state; and was not designed to prohibit the manufacture, sale or keeping for sale of such liquors for any or all other purposes.
The yeas were: Senators Abraham, Arnold, Boling, Brown of Keokuk, CLARK OF PAGE, Cotton, Dashiel, Gillet, Greenlee, Huston, Hartshorn, HEMMINGWAY, Johnson, Kamrar, Logan, Marshall, Nichols of Benton, Nichols of Guthrie, NICHOLS OF MUSCATINE, Parker, Patrick, Poyneer, Prizer, Russell of Greene, Russell of Jones, Sudlow, Terrill, Wall, Whaley, Wilson, Wright—31.
All republicans and allprohibitionists, except Wall, who was a greenbacker. Those who think that it is disloyalty to the cause in me to advocate this same doctrine now should reflect that Clark of Page, and Hemmingway, and Pliney Nichols, are all in the same boat—to say nothing of theIowa State Register, at whose special procurement this resolution was passed. The next morning after this resolution was adopted, March 18, 1882, theRegistercontained the following editorial:
The senate defined the meaning of the proposed prohibitory amendment and gave to it the beverage interpretation for which theRegisterhas so steadily and persistently contended. So that now the people of Iowa have the true definition of the amendment, which is, that it is to deal with liquors in manufacture and sale only as a beveragein the state of Iowa. It was this interpretation that theRegisterasked for in order to support it.
The senate defined the meaning of the proposed prohibitory amendment and gave to it the beverage interpretation for which theRegisterhas so steadily and persistently contended. So that now the people of Iowa have the true definition of the amendment, which is, that it is to deal with liquors in manufacture and sale only as a beveragein the state of Iowa. It was this interpretation that theRegisterasked for in order to support it.
But the meaning of this law is, in my judgment, clear, from the text of the act itself without reference to this legislative history. This law left in full force section 1542 of the code, which defines the offense of keeping intoxicating liquors with intent to sell the same in the following terms:
No person shall own and keep, or be in any way concerned, engaged or employed in owning or keeping intoxicating liquorswith intent to sell the same within this state, or permit the same to be sold therein, in violation of the provisions hereof.
No person shall own and keep, or be in any way concerned, engaged or employed in owning or keeping intoxicating liquorswith intent to sell the same within this state, or permit the same to be sold therein, in violation of the provisions hereof.
This is in entire harmony with two decisions of our supreme court rendered prior to 1884, declaring that alcohol was an article of commerce that might be lawfully held and owned and kept within this state and for sale and export beyond the state. The prohibition contained in this section, 1542, against keeping intoxicating liquors with intent to sell the same within the state, is a clear declaration of the legislature that to keep or own the same with intent to sell it beyond the bounds of the state is not a violation of the law. And the amendment of 1884 in regard to the transportation of liquors, an amendment which I prepared myself and which was incorporated in the law in the very language in which I wrote it, prohibits any railroad company or common carrier from knowingly "bringing into the state" or "transporting intoxicating liquors between points within the state" without first having been furnished with a certificate from the county auditor certifying that the consignee or person for whom the liquor is to be transported is authorized to sell the same within the state. It is very evident, that if this provision of law, which is section 1553, was intended to prohibit the export of intoxicating liquors, it would not have been so careful to limit the prohibition to importation and to transportation between points within the state. The section was written with express reference to the theory that the manufacture of intoxicating liquors in this state for purposes of export was not prohibited by law.
After this law of 1884 took effect, it will be remembered, that we organized in Iowa county alliances for the purpose of prosecuting offenders and enforcing its penalties. Such an organization was effected in Polk county, and I had the honor of being nominated as the chairman of the judiciary committee of such organization, which committee was charged with the duty of employing attorneys and enrolling prosecutions under the law. In May, 1884, Judge C. C. Cole, of this city, received from the Western Export Association of Distillers in the United States a claim against the International Distillery for $17,499.68, which it was claimed Mr. Kidd owed the pool, on account of over-production. It will be necessary to give some explanation of the character of this claim. The Western Export Association is an association of the alcohol distillers of the United States, chiefly located at Peoria, Illinois, whereby they undertake to control the manufacture of alcohol and limit its production in relation to the demand, and thus control and keep up the price of the article. The entire scheme is an unlawful one as against public policy, in that it establishes a monopoly and prevents competition in the production of a legitimate article of commerce and sale. Judge Cole was too good a lawyer to go into court with a suit upon such a demand, and he conceived the idea of using the criminal processes of the law against Mr. Kidd for the purpose of extorting from him this demand of the whisky pool. In accordance with this purpose Mr. J. S. Clark, his partner and afterwards one of the plaintiffs in this present suit, Mr. S. J. Loughran, was induced to appear before the county alliance and offer the services of Mr. Cole free of any charge to the alliance, for the purpose of prosecuting the International Distillery and harassing them with prosecutions upon alleged violation of the law, and asking that the secretary of our association, Mr. Littleton, give the use of his name for the purpose of filing complaints. The proposition was referred to the judiciary committee of the county alliance, of which I was chairman, and was duly presented to me by the secretary. It is hardly necessary for me to say that I refused to enter into such a conspiracy or to favor the use of the alliance for any such purpose. We had organized in good faith in this county for the purpose of enforcing the prohibitory law in the interest of the cause of temperance, and not for the purpose of collecting the illegal demands of the whisky pool and the distillers of Illinois. The following is a literal copy of Judge Cole's letter to Mr. John S. Kidd, in relation to this claim:
Des Moines, Iowa, May 24, 1884.John S. Kidd, Esq., President International Distillery Company,Des Moines, Iowa.Dear Sir: The Western Export Association has placed in my hands for collection by immediate suit a claim of $17,499.68 against the International Distillery Company, and you as its president. My pleasant personal associations with you have prompted me to ask and obtain permission for my client to delay the actual bringing of the suit till noon of Monday next, May 26th. I could not obtain leave for further delay because certain members of the association, who also have retained me to bring suit if this is not settled, claim that they are being further damaged to the extent of thousands of dollars daily, by the course of your company. Hoping to see you and to receive payment of the claim before Monday noon, I remain as everVery truly yours,C. C. Cole
Des Moines, Iowa, May 24, 1884.
John S. Kidd, Esq., President International Distillery Company,Des Moines, Iowa.
Dear Sir: The Western Export Association has placed in my hands for collection by immediate suit a claim of $17,499.68 against the International Distillery Company, and you as its president. My pleasant personal associations with you have prompted me to ask and obtain permission for my client to delay the actual bringing of the suit till noon of Monday next, May 26th. I could not obtain leave for further delay because certain members of the association, who also have retained me to bring suit if this is not settled, claim that they are being further damaged to the extent of thousands of dollars daily, by the course of your company. Hoping to see you and to receive payment of the claim before Monday noon, I remain as ever
Very truly yours,
C. C. Cole
To this very remarkable epistle Mr. Kidd made response of the same date as follows:
Permit me to suggest that you should not allow personal considerations to interfere with professional duties. This bit of advice is given gratis and by way of friendly return for the favor of your grace over Sabbath on the modest demand you make.Yours truly,John S. Kidd
Permit me to suggest that you should not allow personal considerations to interfere with professional duties. This bit of advice is given gratis and by way of friendly return for the favor of your grace over Sabbath on the modest demand you make.
Yours truly,
John S. Kidd
It is unnecessary to say in this connection that Judge Cole never filed any petition in court on this modest demand. After the county alliance refused the use of its name or influence for the purpose of extorting this money out of Mr. Kidd, a clerk in Judge Cole's law office filed complaint against Mr. Kidd and procured warrants for the seizure of alcohol manufactured and shipped for export beyond the bounds of the state. All of these prosecutions proved ignominious failures. The present suit against Mr. Kidd was commenced in December, 1885, Lewis Todhunter appearing of record as attorney for the plaintiff, and I. E. Pearson and S. J. Loughran as the nominal plaintiffs.
In October, 1885, Mr. Loughran, at a meeting of the county alliance, offered a resolution instructing its officers to commence suit against the International Distillery,provided evidence could be found against it. I was not present at the meeting, and on motion of Mr. Lee the resolution was referred to the judiciary committee.
Upon inquiry of Mr. Harvey, the then president, and Mr. Littleton, the secretary, I found that neither of those officers had any information upon which a suit could be predicated, and neither would advise a prosecution. Mr. Loughran nor any one else ever approached the committee on the subject, or furnished the alliance any evidence.
The statement has been made that I was at this time the attorney for Mr. Kidd. This is wholly untrue. It is true, however, that early in 1884 the firm of Nourse & Kauffman was called upon by Mr. Kidd, for a consultation with the attorneys, Messrs. Lehmann & Park, in regard to his business affairs, and upon the matter of the construction of the act of 1884, Mr. Kidd advising us at that time that he desired strictly to observe the law in the manufacture of alcohol. We gave him our opinion at the time, and he paid our firm a fee of fifty dollars. I have had no business connection with Mr. Kidd or the International Distillery since that time, until my employment in this case, after the decision of Judge Conrad a few weeks ago.
Early in the year 1886 the secretary of the Polk county alliance reported that the funds of the organization and the available subscriptions were exhausted, and that liabilities had been incurred that we were unable to meet. Several unsuccessful efforts to have the subscriptions to our funds renewed were made. Mr. Harvey, on account of other engagements, declined a re-election as president of the county alliance in June, 1886. It seemed impossible to get a responsible person to accept of the position. Under these circumstances I. E. Pearson succeeded to that office. Though a gentleman of elegant leisure, he has never, since his election, been able, by his influence or exertions, to put a dollar into the treasury of the alliance.
He has, however, been operating quite extensively on "his own hook," as he says. His principal enterprise, apart from his present suit against Mr. Kidd, has been to watch the incoming of the monthly reports that the law requires the druggist to make to the county auditor, and whenever, by any misadventure, their reports have been delayed a few days beyond the time fixed by the law, Pearson has brought suit against them for the one hundred dollars penalty provided by the statute, and then compromised for the largest amount he could get out of the defendant. In this way he has made hundreds of dollars for himself and has been able to support such an improved style of personal appearance that it has attracted public attention and newspaper comment.
In this newroleof "affidavit maker" to theState Registerhe has already attained distinction. Whether this enterprise will prove a financial success I do not know, as I am not advised as to the terms of the new partnership. It is not yet known whether Pearson has taken theState Registerinto partnership, or whether theRegisterhas taken in Pearson.
It has always been my fortune in life to antagonize men of this stamp. If I have not as many friends as some men of less positive opinions, I have the consolation to know that I have reason to be proud of the character of my enemies.
By what means he has induced eminent counsel, backed by the active influence of theIowa State Register, to prosecute this case against Mr. Kidd, remains a mystery. To the oft-repeated inquiries of members of the alliance for information on this subject his answers have been evasive and entirely unsatisfactory. Judge Cole in his letter to Mr. Kidd mentions that certain members of the export association were being damaged "to the extent of thousands of dollars daily" by the course pursued by the International Distillery. "Thousands of dollars daily" is a large amount of money, and a very grave apprehension exists in the minds of many of the temperance men of this community that these "certain other individuals" are not idle spectators in this contest. When or how Judge Cole and Mr. Runnells or theIowa State Registercame into the case I do not know—I only know that they "got there."
"… he has no wings at all,But he gets there all the same."
"… he has no wings at all,But he gets there all the same."
"… he has no wings at all,
But he gets there all the same."
Judge Cole and Mr. Runnells are also defending Hurlbut, Hess & Co., and the six thousand dollars of intoxicating liquors condemned by the jury in that case. They are also attorneys for Rowe, the man who shot down Constable Logan. No one, I believe, has questioned their right to act as counsel for the defense in these matters or even suggested the impropriety of their employment. I certainly would not do so. TheIowa State Registerhas besought the public to suspend any judgment as to the guilt or innocence of Rowe, but to await the judicial investigation of the case. This is certainly commendable forbearance, but why the same spirit of fair play should not be manifested toward Mr. Kidd pending the judicial determination of his rights, I cannot understand. Does it make any difference because Mr. Runnells is defending in the one case and prosecuting in the other? Surely a man who has invested two hundred and fifty thousand dollars in manufacturing in our city, by the advice and encouragement of theRegister, is entitled to as much consideration as the man who takes the life of a public officer whilst in the discharge of an official duty. The statement that the State Temperance Alliance has ever favored or endorsed the prosecution of Mr. Kidd is wholly without foundation.
I have now answered very fully all of the inquiries in your letter save, perhaps, the last, and that is as to the relation and effect of the present suit to the cause of prohibition in Iowa. Permit me to say to you, and through you to the true friends of prohibition in this state, that we have now upon our statute books a most excellent law, that is every day gaining favor with the people, and that has survived all open warfare upon it. In my humble judgment the most we now have to fear is not the open opposition of its enemies, but the follies and indiscretions of its friends. As I have already conclusively shown in this communication, we procured the enactment of this law by assuring the people of this state that we did not intend to interfere with the manufacture of alcohol or intoxicating liquors for medicinal or mechanical purposes, nor as an article of commerce for export. The question is, have we anything to gain by duplicity and insincerity, and by now claiming for this law what we did not claim for it when we procured its enactment by the general assembly? Above all things, have we, as prohibitionists, anything to gain by entering into an alliance with the distillers of other states who are making war upon a productive industry in our own state, for the sole purpose of promoting their own pecuniary interests in destroying competition in their business? Have we anything to gain by turning aside from the great work that we have undertaken of destroying the saloon as a place of resort where our young men are taught the habit of intoxication, and engaging in the Utopian scheme of regulating the supply of alcohol in the markets of the world, the use of which it is impossible for us to control after it passes beyond the jurisdiction of our laws?
There is another very grave and important question that the true friends of prohibition in Iowa should stop to consider. The courts of the United States have more than intimated that if the prohibitory law of Iowa does in fact destroy the value of property built for a use which was lawful at the time of its erection, that such a law is a violation of the constitution of the United States, unless it also makes provision for compensation to the owner.
This International Distillery was built and in full operation before the amendment of 1884 was enacted. By virtue of its provisions a limitation only, in my humble judgment, was placed upon the uses for which alcohol might be sold within the state. The answer to the position that our law is unconstitutional because it affects the value of this property is, that it does not prevent the manufacture of alcohol for export or for sale within the state for lawful purposes. But if we propose to destroy the value of this property by this new interpretation of our statute, and say that it is our purpose and intent to prevent its use for the manufacture of alcohol for export, then may we not seriously apprehend that our law will be held unconstitutional, and may we not, in attempting too much, lose all? The fable of the dog crossing the log over the stream, that dropped the meat from his mouth in order that he might grasp the shadow, I would recommend to the careful study and perusal of some of our pretended friends.
But there is still another political phase of this question that we ought to carefully consider. Heretofore we have put the opponents of this law upon the necessity of defending the saloon as an institution; we have made the suppression of these places of resort the war-cry of our campaign. Is it the part of wisdom to change this issue and assume the affirmative of the proposition that the good order and peace of society requires that we should ship our corn to Peoria to be manufactured into alcohol rather than have it manufactured in our own state, either for medicinal or mechanical purposes or for export? For one I fail to see any wisdom in such a proceeding. I am not prepared to join in or acquiesce in such a folly. In accepting a retainer from Mr. Kidd in the case now pending in the supreme court I did so because it was my plain duty, as a lawyer, to defend the legal rights as I believe them to be, of a man whose property was unjustly and illegally assailed. I was not employed in the case until after Judge Conrad's decision. That the temperance people of Iowa will find any fault with me for presenting to the supreme court the question of law involved in this appeal I cannot well believe. How will these questions be answered?
First.Do they ask or desire that the property of any citizen shall be destroyed and condemned without a fair and full trial before the appellate court?
Second.Does not a fair trial also involve the right of the citizen to have the aid of a counsel?
Third.If the defendant is to have the aid of counsel, can my employment be any more objectionable than the employment of one who is an enemy of the law?
Fourth.Is it not true that the view of the statute that I propose to present to the court, is the view that we nearly allpretendedto have when we procured the passage of the law?
The decision of Judge Conrad, though made no doubt with the utmost sincerity and good faith on his part, I regard as a mistake, and an unfortunate one for the cause of prohibition. In the interview published by theRegisterI said that neither the decisions of courts nor the conduct of lawyers or newspapers would defeat the ultimate triumph of prohibition. I still have faith in that proposition. If I have erred, or if the courts shall decide too much or too little, yet legal prohibition as a principle is right, and I believe will ultimately triumph. I do not believe the present prosecution of Mr. Kidd is justified by the law or the facts, and injustice and illegal prosecutions are not in my judgment the means of success in a good cause. Whatever personal malice may originate of misrepresentation or abuse of me in this matter, gives me no concern. I am used to this kind of thing and have never turned aside from my professional duty because of attempted newspaper intimidations. I am now in the thirty-sixth year of my practice in Iowa, and can afford, I think, to perform a plain professional duty. Asking pardon for the extent of this communication, which I have necessarily made somewhat in detail in order that your questions might be fully answered, I remain as I have ever been, an earnest friend and co-worker in the cause of prohibition, and
Most truly your humble servant,
C. C. Nourse
The case of Pearson & Loughran against the International Distillery and J. S. Kidd was submitted to the supreme court upon oral and printed argument at the June term, 1887.
The republican state convention that was to nominate a supreme judge met at Des Moines, August 24th of that year. The supreme court at that time consisted of W. H. Seevers, Joseph Reed, Jos. M. Beck, James H. Rothrock, and Austin Adams. The latter named judge's term expired the first of January, 1888, and either his renomination or the nomination of some one in lieu of him came before the republican convention to be held in August. J. S. Clarkson, the editor of theRegister, and Mr. John Runnells, Esquire, the attorney of record nominally of Pearson and Loughran, but in fact acting for the whisky trust; to-wit, the Western Export Association, secured their nomination as delegates to the republican state convention. During the sitting of the court and before any opinion was announced it was well understood in the community that Judges Seevers and Reed had written an opinion reversing the decision of Judge Conrad, and that Judges Beck and Rothrock had written an opinion affirming the case, and that the fifth judge; to-wit, Judge Adams, had not yet officially concurred in either opinion and that the result of the case would rest with Judge Adams as he might concur with one or the other of these opinions. J. S. Clarkson and Mr. John Runnells, just prior to the meeting of the state convention, asked for a private interview with Judge Adams, which was accorded them. Just what was said or done in that interview and what subjects were discussed between these gentlemen and Judge Adams I do not know. It is possible they talked about the weather and that the question of the renomination of Judge Adams, and his views and opinions or inclinations with reference to the distillery, may not have been mentioned between them. Very considerable opposition to Judge Adams's renomination had developed throughout the state, principally upon the ground of his alleged favoritism to the railroad interests, and his renomination was in great doubt; indeed, when the convention met Judge Adams failed to get the nomination, and his friends, Clarkson and Runnells, only succeeded in controlling thirteen votes in his favor in the Polk county delegation. After the convention and the defeat of Judge Adams, Mr. Clarkson wrote a very mournful howl over Judge Adams's defeat, exceedingly regretting the result. Still there was no opinion filed in the distillery case until the night of the 10th day of September following, when Judge Adams's name appears as concurring in the opinion written by Judge Beck. These two opinions are very remarkable. The opinion written by Judge Beck and concurred in by Rothrock and Adams assumes the extraordinary position that inasmuch as the law in expressed terms permitted the manufacture of alcohol within the state for medicinal, mechanical, and sacramental purposes, and did not in terms provide for the manufacture within the state for export, therefore it was prohibited by the law.
The opinion of the minority of the court written by Judge Seevers, and concurred in by Judge Reed, assumes the position that inasmuch as the manufacture for the purpose of export was not prohibited, therefore, it was lawful. The opinion of the majority of the court, it was claimed, was contrary to the language and decision of our supreme court in the cases theretofore decided by the court in Niles v. Fries, 35 Iowa, 41, and Becker v. Betten, 39 Iowa, 668. In the former case in 35 Iowa, Judge Beck himself in delivering the opinion of the court uses the following language: "Intoxicating liquors in the possession of a citizen who holds them for the purpose of selling them lawfully,within the state, or for transporting them without the state for lawful traffic, are not, under the statute, subject to seizure." Judge Beck gets rid of the force and effect of his prior decision by saying that his language was "obiter dicta." When, however, the opinion comes to wrestle with the question as to confining the police power of the state, to matters that concern the good order of society and the health of the people of the state, but did not extend to the inhabitants of the other states of the Union, Judge Beck gets rid of this suggestion by claiming that there is a sort of comity between the states by which the legislature of one state ought to consider the well being and happiness of the people of the other states. This suggestion is rather fanciful than otherwise, particularly as applied to this case, for that the other states, particularly New York to which this alcohol was exported, have never undertaken to control either the manufacture, sale, or use of alcoholic spirits. In the interpretation of all statutes and in case of doubt it is a well recognized rule of interpretation that the court must consider what evil it was existing prior to the enactment of the statute that the statute was intended to correct or remedy. The idea that the people of Iowa were seized with a desire to limit the manufacture of alcohol in order to prevent it being taken to New York was simply Utopian and had no real existence. The real parties that were attempting to limit the manufacture of alcohol in Iowa for export was the whisky trust that desired to keep up the price of the article in the New York market, and this fact was well known to the supreme court and to the three judges that concurred in the opinion of the majority. Judge Beck's opinion, aside from the question of law involved, was a very excellent temperance speech against the use of alcohol as a beverage, but had no relation whatever to the case. I write thus freely upon this subject for the reason that Mr. Kauffman and myself had given a written opinion as to the reasonable construction of this law, relying upon the former decisions of our own supreme court and the language of Judge Beck himself. Mr. Kidd had made his investment in good faith in a manufacturing industry, manufacturing an article that was recognized as useful for many purposes, both as a medicine and for mechanical purposes, and there was nothing in the article itself to determine the use for which it was intended when it was manufactured. Whilst it might be used for the purpose of making a beverage destructive to human life and happiness, yet, so far as the law was concerned, it was only by restricting the sale of it for the destructive uses to which it might be applied that any remedy could be made effectual.
The effect of this decision politically, as a means of destroying the faith of the people in a law that the legislature had wisely passed, was soon made manifest. There was at this time in the city of Des Moines a young lawyer, then attorney for the Chicago and Rock Island Railroad Company, ambitious for political preferment, by the name of A. B. Cummins. His partner in business was Mr. Carroll Wright, the son of ex-Chief Justice Wright who was attorney for Koehler & Lange in securing the opinion of the supreme court that destroyed legally the constitutional amendment. A meeting of anti-prohibition republicans was called and held at the city council chamber in the city of Des Moines about August 25, 1887, in which certain resolutions were adopted denouncing the prohibitory law and favoring local option and licensing of the sale of intoxicating liquors. The resolutions of that convention were signed by ninety-two nominal republicans, and they nominated as their candidates for the legislature A. B. Cummins and Adam Baker. Mr. Cummins accepted the nomination in a letter dated August 25, 1887, writing a letter joining in the denunciations against the prohibitory law of Iowa and the fraudulent practices of the constables who had taken advantage of the law to make profit to their own use.
In addition to this work of the enemies of prohibition in Iowa, performed as its pretended friends and advocates, there were several other causes at work to weaken the confidence of the people in the statute. Two constables of the city of Des Moines set about to make money out of the enforcement of the law. They entered into a conspiracy with the persons who were selling intoxicating liquors, inducing them to put one or two bottles of liquor in a convenient place in their establishments, and then filing information under the law against the place, procuring a search warrant, searching the place and finding these few bottles, prosecuting and destroying the two bottles, no one appearing to claim the same, and then having the costs of the proceedings all taxed up against the county. These bills ran up to hundreds of dollars, and the enemies of the law were loud in their denunciations of the statute, but had little to say against the criminal practices of those whose duty it was to observe and enforce the law.
Mr. Cummins made a vigorous canvass of the county, receiving in addition to the nomination of these so-called republicans, the nomination of the democratic convention, and by the aid of the democratic party and the whisky interests of the county he succeeded in being elected a member of the next general assembly under his oft-repeated pledge during the canvass to secure if possible the repeal of the prohibitory law, and the enactment of the license law.
With all these influences, however, operating against the law, the next general assembly made no serious attempt to repeal the act. By an act approved January 29, 1857, the legislature had attempted to establish what was known as local option in Iowa. The act of 1857 provided for the license and sale of intoxicating liquors in any county of the state where the people by majority vote of the electors adopted the same, and by such adoption that the provisions of the act of 1854 would stand repealed as to that county. Our supreme court held this act of 1857 to be unconstitutional for the reason that our constitution required that all laws should be of uniform operation, and upon this subject of uniformity the court uses the following language: