CHAPTER IX

TEMPERANCE AND PROHIBITION

In giving a further account of the activities of subsequent years it will be almost impossible to preserve anything like a chronological order of events, and it will be necessary to take up certain subjects or topics that employed much of my time and energies, and probably as important as any other part of my life was my connection with the subject of temperance and prohibition.

The code of Iowa enacted in 1850 took effect July 1, 1851. Under the head of "Intoxicating Liquors" it enacted as follows: "The people of Iowa will hereafter take no part in the profits of the sale of intoxicating liquors." It then provided that the establishment of any place for the sale of intoxicating liquors to be drank on or about the premises should constitute a public nuisance, and enacted penalties against the sale of intoxicating liquors to be drank on or about the premises, and provided for the abatement of such nuisances and the punishment of all persons violating the provisions of this statute. This code was very excellent in the principle upon which the law was based; to-wit, that the people and government ought not to be a party to or share the profits of the sale of that which was the cause of so much poverty and crime, and the statute aimed at the destruction of the places of resort where the habit of drinking such liquors was contracted and promoted; but in its practical operation the law itself and its provisions were a failure. The words, "To be drank on or about the premises," involved two uncertainties--first, as to the meaning of the words "on or about," and secondly, as to the guilty knowledge or intent of the vendor of the liquors when he made his sale, as to the manner and where the purchaser intended to drink. Courts and juries gave very different and very liberal interpretation in the application of this law to different cases, and many of our judges and justices were not well educated in the idea that the sale of intoxicating liquors as a beverage was really a crime against the community and against humanity. As a result of these uncertainties of the law, the people of the state in 1854 elected a legislature, the majority of the members of which were pledged to enact a statute of absolute prohibition. Such a statute passed both branches of the general assembly, and was approved by Governor Grimes. The settlements in the larger towns along the Mississippi river and in several of the interior counties embraced very many Germans and other persons of foreign birth, accustomed to the use, not only of intoxicating liquors, but to places of resort where the same could be drank at their leisure and pleasure. The result of this foreign demand was a fatal amendment to the statute of 1854-5 known as the "Wine and Beer Clause," which permitted the licensing and sale of beer and native wine made from the grapes or other fruits grown within the state. The practical result of this law was the establishment of the saloon in charge of keepers who paid no respect to the law and sold all kinds of intoxicating drinks under pretense of beer and native wine.

During our Civil War the people of the state were so absorbed in the progress of events that involved the existence of our nationality that they gave but little attention to local state and police legislation, but soon after the close of the war, the thought of the people was directed to the great curse of the licensed saloon and its effects upon the morals and habits of our people. In order that the policy of the state with reference to this matter might not be subjected to the caprice of political party conventions and elections, the people demanded and sought to enact an amendment to the constitution of the state that should embrace to its fullest extent a provision prohibiting the sale of intoxicating liquors as a beverage within the state, including not only alcoholic liquors, but also malt liquors. In order to secure such a provision by way of amendment to the constitution it was necessary to secure the election of two successive general assemblies to pass upon such an amendment, and to secure a vote of the people endorsing and adopting the same at a subsequent election. The provisions of our constitution on the subject of amending the same were as follows:

Any amendment or amendments to this constitution may be proposed in either house of the general assembly; and if the same shall be agreed to by a majority of the members elected to each of the two houses, such proposed amendment shall be entered on their journals, with the yeas and nays taken thereon, and referred to the legislature to be chosen at the next general election, and shall be published, as provided by law, for three months previous to the time of making such choice; and if, in the general assembly so next chosen as aforesaid, such proposed amendment or amendments shall be agreed to by a majority of all the members elected to each house, then it shall be the duty of the general assembly to submit such proposed amendment to the people in such manner, and at such time as the general assembly shall provide; and if the people shall approve and ratify such amendment or amendments by a majority of the electors qualified to vote for members of the general assembly, voting thereon, such amendment or amendments shall become a part of the constitution of this state.

In pursuance of the provisions of this constitution the eighteenth general assembly of the state of Iowa, to-wit, in the year 1880, adopted as an amendment to the constitution of the state the following: "No person shall manufacture for sale, or sell, or keep for sale as a beverage, any intoxicating liquors whatever, including ale, wine and beer. The general assembly shall by law prescribe regulations for the enforcement of the prohibition herein contained, and shall thereby provide suitable penalties for the violation of the provisions hereof." This amendment, by omission of the clerk of the house of representatives, was not entered in full upon the journals of that body. It was, however, embraced in a joint resolution of the two houses and fully identified by its title upon the journal of the house and senate, and the vote adopting the same was duly recorded by yeas and nays as required by the constitution. The publication of this action of the eighteenth general assembly was duly made in the newspapers prior to the election of the nineteenth general assembly, and at the session of that body another joint resolution was passed in both houses embracing the amendment and reciting the action of the eighteenth general assembly thereon, and this joint resolution passed both houses, and the yeas and nays were fully recorded, and proclamation was made by the Governor of the state, and the people of the state at a subsequent election held on June 27, 1882, after a vigorous canvass of the merits of the question, endorsed and adopted the amendment by nearly thirty thousand majority.

On the 26th day of August, 1882, a pretended suit was brought in the district court of Scott county by a brewing establishment owned and operated by Koehler & Lange against a saloon keeper by the name of Hill, in the city of Davenport, upon an account for beer sold by the brewer to the saloon keeper, and the saloon keeper set up by way of defense that he bought the beer and it was sold to him for the purpose of being sold as a beverage and that the sale was unlawful and contrary to the provisions of the amendment to the constitution. That this suit was a mere conspiracy for the purpose of having the amendment to the constitution declared void there can be no question. The judge of the district court of Scott county was opposed to the amendment personally and politically, as were also the attorneys that conducted these proceedings. The principal answer of the saloon keeper was to set up the constitutional amendment and the brewer replied stating that the constitutional amendment was not legally adopted, especially because the amendment had not been spread upon the journals of the house of representatives of the eighteenth general assembly verbatim, but that it had only been embraced in a certain joint resolution of the two houses. The judgment of the district court was against the brewer for the beer, and he took a pretended appeal therefrom to the supreme court of the state. When the case reached the supreme court J. A. Harvey, Esq., who had been an active man in the general assembly in favor of the amendment, and who was also an avowed prohibitionist and friend of the amendment, was employed by the Women's Temperance Union of the state to appear in the case and argue the matter before the supreme court, involving the legality of the amendment. The Women's Temperance Union also employed Judge William E. Miller, an ex-judge of the supreme court of our state, who prepared and filed in the case a printed argument. I was at that time absorbed in my own private practice and had a case on trial in the district court, and was unable to attend the session of the court at which the case was argued. I had been very active in the canvass pending the adoption of this amendment at the popular election, and had spent much time in making speeches before the people in its behalf. I had promised Mr. Harvey that if my other professional engagements would admit of it I would assist him in the oral argument before the supreme court. To my great surprise, and to the surprise and consternation of the people of the state, the majority of the judges of the supreme court decided that the amendment had not been legally adopted, giving as their chief reason therefor the failure of the eighteenth general assembly to have spread upon the house journal a verbatim copy of the constitutional amendment at the time it was adopted by that house. As soon as this decision was made known I prepared and filed in the supreme court of the state a petition for a re-hearing of the case. This re-hearing was granted. The Governor of the state employed Senator James F. Wilson of Fairfield, and Hon. John F. Duncombe, of Fort Dodge, to appear and make oral argument in behalf of the amendment. I also appeared in the case at my own request and upon my own motion and argued the case orally at Davenport on the final hearing. Two of the judges of the supreme court; Judges Seevers and Rothrock, were not friends of the amendment, and I think, in sentiment, were opposed to it. Judge Day's action in the matter in agreeing with Messrs. Seevers and Rothrock was a surprise to his friends, but I have no doubt his decision was honestly made. I think this re-hearing might possibly have resulted in a favorable opinion from a majority of the court had it not been for the intemperate zeal of a portion of the public press, particularly the Des Moines _Register_ edited by the Clarksons in which the majority opinion of the supreme court was denounced. The judges who constituted the majority of the court could scarcely be expected to change their views and opinions under the pressure of the brutal attacks that were made upon them through the press. Judge Beck, the fourth judge of the court, had delivered a very able dissenting opinion sustaining the constitutional amendment. That the decision of the supreme court upon this question was radically wrong, I have never entertained the least doubt in my own mind. The supreme court in its majority opinion recognized the fact that the only proper and legal evidence of the final action of the legislative body in the enactment of its laws must be found in its enrolled bills, duly certified by the presiding officers of the senate and house of representatives respectively. The authorities were uniform, and no court had ever before undertaken to examine the journals of a legislative assembly for the purpose of contradicting and falsifying the duly certified action of the legislature by its presiding officer. Every bill that passes the general assembly of the state is duly enrolled by the clerk elected for that purpose by the house in which the bill originated. It is then supposed to be carefully examined by the committee on enrolled bills and reported in open session of the house, and is then presented by the clerk or secretary to the several presiding officers in open session for their signatures, and thence in the care of the proper committee on enrolled bills is presented to the Governor for his approval. To go behind this official action of the two branches of the legislature and undertake to examine and criticise the action of the clerk in recording or failing to record any part of its proceedings, by the courts of the state, is simply to destroy the independence of the law-making power, and is nothing more or less than usurpation on the part of a coördinate branch of the government. The constitution of Iowa in its provisions in regard to an amendment of that instrument selects, first, the two houses of the general assembly, secondly, the executive of the state, and thirdly, the people of the state, the source of all political power, and entrusts to them and them alone the power to amend its organic law. This amendment originated with and was carefully prepared by and approved by both branches of the eighteenth general assembly, and subsequently by the nineteenth general assembly, there can be no question; that it was then submitted to a vote of the people, voted and approved by the people by a large majority, was then proclaimed by the Governor of the state in his proclamation as part of the organic law of the state, there was no question, and I do not hesitate to say, after years of thought and deliberation upon this matter, that the decision of the supreme court of the state in the case of Koehler & Lange against Hill was simply usurpation. During the pendency of this re-hearing and before the final arguments in the case Mr. Hill, the saloon-keeper of Davenport, attempted to defeat the re-hearing by asking the court to strike from the files the petition for rehearing and denying the authority of the attorneys who had filed the same to act in his name. The Governor of the state, after the final disposition of the cause, appropriated $750 to the three principal counsel engaged in the re-hearing, and sent me one-third of the amount; to-wit, $250 for my services in the matter.

The constitutional amendment thus attempted to be rendered null and void by the opinion of the supreme court in the case of Koehler & Lange against Hill was really only an amendment to the constitution enjoining upon the legislature the duty of enacting a prohibitory liquor law, and forbidding the enactment of any statute authorizing the license and sale of intoxicating liquors as a beverage. The immediate effect of the decision of the supreme court was to arouse the people of the state to an assertion of their rights in regard to these matters; consequently they elected a general assembly in the fall of 1883, a large majority of whose members were pledged to give the people, by legislative enactment, a law such as the constitutional amendment required, and in pursuance of that purpose the twentieth general assembly enacted the prohibitory law, chapter 143, page 146 of the laws of that session. This law was popularly known as the Clark law, taking its name from the fact that it was introduced into the senate by Senator Clark of Page county. He was not, however, the author of the law, and was only entitled to the credit of having introduced it as a member of the senate.

Some time before these events there had been organized in the state of Iowa a temperance league, with its headquarters at Des Moines. Mr. J. A. Harvey, before referred to, and myself, with Louis Todhunter of Indianola, had been appointed by the Temperance League a committee to draft a prohibitory law and secure its passage by the twentieth general assembly. Another effect of the decision of the supreme court in the Koehler & Lange case was the retirement of Judge Day from the supreme bench of the state, and the election of Judge Read of Council Bluffs in his stead. I was a delegate to the republican state convention from Polk county. I did not sympathize with the idea of the defeat for renomination of a judge of the court on the simple ground that his decision or action as judge did not meet with the approval of the people, but I could not, with my ideas of right and justice, approve of the renomination of any judge of the court that had assumed the prerogative attempted to be exercised by the majority of judges in the Koehler & Lange case, and I cordially supported Judge Read for the nomination. I had assisted Mr. Harvey in framing the prohibitory law that was enacted by the twentieth general assembly, part of which was written by myself. I did not entirely agree with the committee, however, in providing as that statute does that the prosecuting witness or party filing informations for a violation of the law should take to his personal use any part of the fines or penalties provided for in the statute. I disliked that feature of the law for the reason that I anticipated that bad men, for the sake of personal profit and gain, would bring the law into disrepute. The State Temperance League undertook to provide, to a greater or less extent, for the prosecution of offenders under this law of the twentieth general assembly. I was on the committee appointed by the League and was chairman of the committee that had advisory powers in regard to prosecutions undertaken or promoted by the officers of the League, and as chairman of that committee I had occasion, a number of times, to defeat the purposes and plans of those who sought to use the authority of the League for some ulterior purpose. The most serious case of this kind that arose during my administration related to the effort of a certain whiskey trust to use the prohibitory law as a means of destroying an industry established in Des Moines by invitation of its business men just prior to the taking effect of this prohibitory law of 1884. One of the chief men in encouraging the establishment of the International Distillery in Des Moines, so-called, was J. S. Clarkson, editor-in-chief then of the Des Moines _Register_. This International Distillery was an alcohol manufactory, established by a man by the name of Kidd. Before he invested his money in the plant he had taken the precaution to consult with a number of prominent citizens and prohibitionists of the city of Des Moines, to know whether or not his enterprise would at all be affected by the constitutional amendment or the statute that might be passed in pursuance thereof. Pending the action of the general assembly upon the constitutional amendment, the Des Moines _Register_ had insisted upon some legislative interpretation of the meaning and effect of the proposed amendment upon the question of the manufacture of alcohol within the state as an article of commerce, for the purpose of shipping the same to the markets abroad and not to be sold within the state. In pursuance of the suggestion of the Des Moines _Register_, the state senate of Iowa in 1882 adopted the following explanatory resolution as to the meaning and intent of the amendment then pending, and thereafter to be voted upon by the people, as follows:

Whereas, doubts have been suggested as to the true intent and meaning of the joint resolution agreed to by the 18th general assembly, and by this general assembly, as proposing to amend the constitution of the state so as to prohibit the manufacture and sale of intoxicating liquors as a beverage within this state; and

Whereas, it is desirable that such doubts should be removed as far as practicable before said proposed amendment is voted upon by the people; therefore,

Be it resolved by the senate, that said proposed amendment was and is designed and intended to prevent the manufacture within this state, for sale within this state, as a beverage, all intoxicating liquors, including ale, wine and beer, and to prohibit the selling of such liquors within this state for use as a beverage, and to prohibit the keeping of such liquors for sale as a beverage within this state; and was not designed to prohibit the manufacture for sale, or keeping for sale, of such liquors for any or all other purposes.

A short time before this resolution was passed a meeting of the board of trade of the city of Des Moines was held with reference to the same matter. It was attended by many of the most prominent prohibitionists of the city, and all concurred in the view of the amendment afterward taken by the senate. The sense of the meeting was expressed by a resolution reported by a committee, consisting of T. S. Wright, J. S. Polk, and J. S. Clarkson, and adopted with but one dissenting vote. The resolution is as follows:

Whereas, the agitation of the proposed amendment to the constitution of this state, prohibiting the manufacture of alcoholic liquors for sale, is creating doubt and uncertainty in the minds of capitalists proposing to invest a large amount of means in the manufacture of alcohol in this city; and

Whereas, we are satisfied the great majority of the people of the state do not construe such amendment as prohibiting the manufacture of alcohol for exportation, but that it simply prohibits its manufacture for sale as a beverage in the state, a view in which the leading friends and the most of the supporters of the amendment concur; and

Whereas, we are sure the people of the state would vote down overwhelmingly any amendment absolutely prohibiting the manufacture of alcohol; therefore be it

Resolved, that the Des Moines Board of Trade accept the interpretation of the leading friends and supporters of the amendment, that it intends only to prohibit the manufacture for sale of alcoholic liquors in the state as a beverage, pledges itself to the support and defense of capitalists investing in such manufacturing as against all doubts as to the real meaning of the amendment, and further, that we will lend our active influence toward securing such legislative expression as will put upon the amendment the construction that it will only prohibit the manufacture of such liquors for sale as a beverage in the state.

This meeting of the board of trade, which was attended by many of the prominent prohibitionists of the city and of the state, I did not attend, though invited to be present.

In pursuance of the encouragement thus given to Mr. Kidd, and prior to the taking effect of the prohibitory law of 1884, Mr. Kidd expended several hundred thousand dollars in the building of his plant for the manufacture of alcohol at the city of Des Moines, Iowa, and continued such manufacture without interruption until certain prosecutions were commenced against him at the instance of the Western Export Association, a whisky trust organized by the distillers of the United States to prevent an excess of alcohol being manufactured, and by this means to regulate and keep up the price of the article. After the decision of the principal suit undertaken in this behalf, in which I. E. Pearson and a man by the name of Loughran were nominal plaintiffs and the International Distillery and Mr. Kidd were defendants, a decision adverse to the distillery was obtained and the defendants took an appeal to the supreme court of the state. Mr. Kidd and his attorney called upon me and reminded me of the fact that our firm, consisting of B. F. Kauffman and myself, had given them a written opinion to the effect that the law of 1884 did not make it unlawful to manufacture alcohol in this state as an article of merchandise, to be shipped and disposed of beyond the limits of the state, and Mr. Kidd appealed to me to know if I was willing to accept of a retainer to argue that question in the supreme court of the state on his appeal, suggesting that he thought it my duty to do so as a lawyer, and asked if I was afraid to perform my duty in that behalf. I told him that I was not afraid and accepted of the employment.

As soon as this became known to the Des Moines _Register_, its editors commenced a series of abusive articles against me, containing misrepresentations and insinuations, and for some reasons best known to the editors of that paper and of which I am not advised, they became very active in trying to promote the success of this prosecution against the distillery and to destroy the same. These articles of the State _Register_ created, of course, quite an inquiry among the friends of prohibition in the state, and they wrote a number of letters to Mrs. A. E. McMurray, secretary of the State Temperance League, making inquiry in regard to the matter of my employment. She accordingly wrote a letter to me upon the subject and I answered the same very fully, giving a history of the whole controversy, and particularly the motives of the men that were trying to destroy Kidd and his enterprise. Though the letter is somewhat in detail, yet, as it is a complete answer to all of the criticisms that have been made of my professional conduct in this matter, I give it here in full:

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 the _Prohibitionist_, 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 sold _within 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 Moines _Register_ of 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.

The _Register's_ report 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 the _Iowa State Register_ of 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 the _Register's_ view.)

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 Register_ as 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. 516-1/2 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 voted _against_ this amendment of Mr. Bolter, voted _for_ the 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. The _Iowa State Register_ the morning after this vote was taken contained the following leading editorial giving an account of this attempt to kill the bill. I quote from the _State Register_ of 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 the _Register_ of 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 the _Register_ of 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 the _Register_ of the 28th of February, and on the 29th of February wehave this leading editorial in the same paper:

The _Iowa City Press_ tries 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 alike _and 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 the _Iowa 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 it

_Resolved by the senate_, that said proposed amendment was and is designed and intended to prohibit the manufacture within this state _for sale within this state_ as a beverage, of all intoxicating liquors, including ale, wine and beer, and to prohibit the selling of such liquors _within this state_ for use as a beverage, and prohibit the keeping of such liquors, for sale as a beverage _within 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 all _prohibitionists_, 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 the _Iowa State Register_, at whose special procurement this resolution was passed. The next morning after this resolution was adopted, March 18, 1882, the _Register_ contained the following editorial:

The senate defined the meaning of the proposed prohibitory amendment and gave to it the beverage interpretation for which the _Register_ has 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 beverage _in the state of Iowa_. It was this interpretation that the _Register_ asked 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 liquors _with 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 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

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 new _role_ of "affidavit maker" to the _State Register_ he 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 the _State Register_ into partnership, or whether the _Register_ has 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 the _Iowa 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 the _Iowa State Register_ came 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. The _Iowa State Register_ has 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 the _Register_, 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 all _pretended_ to 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 the _Register_ I 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 the _Register_, 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:

The sixth section of the bill of rights declares, that "all acts of a general nature shall have a uniform operation." Constitution, Article I. Recognizing as we do the distinction between laws of a general nature and those of a special or local character, we understand by the "operation" of a law is meant its practical working and effect. It is not, in our opinion, a sufficient compliance with the requirements of the constitution, that under the provisions of the act of the 29th of January, 1857, the question of licensing the sale of spirituous liquors is to be submitted to the vote of the qualified electors of all the counties of the state. Something more is contemplated by the constitution, in the words "uniform operation." We must look further, and to the effect of such submission to the vote of the people, and to the consequences to result from the adoption of the law. The prohibitory liquor law is a law of a general nature, and its operation must be uniform throughout the state. Can we say that such is the case, if it remains in full force in one county, while it is repealed in others by a vote of the people, and a license law adopted in its stead? And is the act of 1857, if the effect of it is to bring about this want of uniformity in the operation of a law of a general nature, to be deemed constitutional and valid? We think not.

The vote authorized to be taken upon the adoption of the act, while it is objectionable in a constitutional point of view, as transferring the law-making powers from the legislature to the people, is further objectionable in view of the possible, not to say the probable, result of such vote. We cannot undertake to determine, nor can it, under any circumstances, be foreseen, that the result of the vote will be uniform in all the counties of the state, either in favor of license or against it. In some of the counties the vote may not be taken; in others, the majority may be against license; while in others, the majority may be in its favor. Unanimity of sentiment, either one way or the other, can hardly be reckoned upon. These views, we think, add weight to the argument against the constitutionality of submitting the act to a vote of the people. We do not, however, base wholly upon them our conclusion against the validity of the act in question, nor upon the fact that the result of the vote upon the question of adopting it may not be uniform throughout the state. Upon this latter branch of the subject, the members of the court are not unanimous in opinion.

The majority of the court are of the opinion, that while the act must without doubt be deemed to be a law of a general nature, it is liable to objection, as prescribing no uniform rule of civil conduct to the people of the state, and as not providing of itself for its uniform operation. The legislative power must command. It must not leave to the people the choice to obey or not to obey its requirements. It is not a law enacted according to the requirements of the constitution, if there is left to the action and choice of the people upon whom it is to operate the determination of a question which may result in a want of uniformity in the operation of a law of a general nature.

I shall take occasion to refer to this decision of the supreme court hereafter when I come to notice the passage by the legislature of the miserable subterfuge now known as the "mulct law."