U.S. Supreme Court

MUGLER v. KANSAS, 123 U.S. 623 (1887)

123 U.S. 623

MUGLERv.

STATE OF KANSAS,1 (two cases.)

STATE OF KANSAS ex rel. TUFTS, Asst. Atty. Gen., Gen.,v.

ZIEBOLD et al.

December 5, 1887

The defendant, Peter Mugler, was prosecuted criminally in two different cases for the violation of the prohibitory liquor law of the state of Kansas. In the first case, the indictment contained one count, charging that the defendant 'did unlawfully manufacture, and did assist and abet in the manufacture, of certain intoxicating liquors on, to-wit, the first day of November, A. D. 1881, in violation of the provisions of an act entitled 'An act to prohibit the manufacture and sale of intoxicating liquors, except for medical, mechanical, and scientific purposes, and to regulate the manufacture and sale thereof for such excepted purposes."

'It is hereby stipulated and agreed that the facts in the above- entitled case are, and that the evidence would prove them to be, as follows: The trial was had in this case before the court, without a jury, upon an agreed statement of facts, which statement of facts is as follows:

That the defendant, Peter Mugler, has been a resident of the state of Kansas continually since the year 1872; that, being foreign born, he in that year declared his intention to become a citizen of the United States, and always since that time, intending to become such citizen, he did, in the month of June, 1881, by the judgment of the district court of Wyandotte county, Kansas, become a full citizen of the United States and of the state of Kansas.

That in the year 1877, said defendant erected and furnished a brewery on lots Nos. 152 and 154, on Third street, in the city of Salina, Saline county, Kansas, for use in the manufacture of an intoxicating malt liquor, commonly known as beer; that such building was specially constructed and adapted for the manufacture of such malt liquor, at an actual cost and expense to said defendant of ten thousand dollars, and was used by him for the purpose for which it was designed and intended after its completion in 1877, and up to May 1, 1881.

That said brewery was at all times after its completion, and on May 1, 1881, worth the sum of ten thousand dollars for use in the manufacture of said beer, and is not worth to exceed the sum of twenty-five hundred dollars for any other purpose; that said defendant, since October 1, 1881, has used said brewery in the manner and for the purpose for which it was constructed and adapted, by the manufacture therein of such intoxicating malt liquors, and at the time of the manufacture of said malt liquor said

defendant had no permit to manufacture the same for medical, scientific, or mechanical purposes, as provided by chapter 128 of the Laws of 1881. And the foregoing was all the evidence introduced in this case, and upon which a finding of guilty was made.' The defendant was found guilty, and fined $100, and appealed to the supreme court of the state of Kansas, where the court below was affirmed. A writ of error was sued out, upon the grounds that the proceedings in said suit involved the validity of a constitutional enactment of the state of Kansas, and of a statute of said state; the defendant claiming that said constitutional enactment and statute are in violation of the constitution of the United States, and the judgment of said supreme court of the state of Kansas being in favor of the validity of said enactment and statute.

Plaintiff in error invoked in the argument before the supreme court of the state of Kansas a portion of the first section of the fourteenth amendment to the constitution of the United States, which provides: 'Nor shall any state deprive any person of life, liberty, or property without due process of law.' The amendment to the constitution of the state of Kansas which is complained of is as follows: 'The manufacture and sale of intoxicating liquors shall be forever prohibited in this state, except for medical, scientific, and mechanical purposes.' Const. Kan. art. 15, 10. This amendment was adopted by the people November 2, 1880. The statute complained of is chapter 128 of the Laws of Kansas, passed in 1881. That statute became operative May 1, 1881. Section 8 of that statute is as follows: 'Any person, without taking out and having a permit to manufacture intoxicating liquors as provided in this act, who shall manufacture, or aid, assist, or abet in the manufacture, of any of the liquors mentioned in section 1 of this act, shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall suffer the same punishment as provided in the last preceding section of this act for unlawfully selling such liquors.' Section 5 of that statute is as follows: 'No person shall manufacture or assist in the manufacture of intoxicating liquors in this state, except for medical, scientific, and mechanical purposes. Any person or persons desiring to manufacture any of the liquors mentioned in section one of this act, for medical, scientific, and mechanical purposes, shall present to the probate judge of the county wherein such business is proposed to be carried on a petition asking a permit for such purpose, setting forth the name of the applicant, the place where it is desired to carry on such business, and the kind of liquor to be manufactured. Such petition shall have appended thereto a certificate, signed by at least twelve citizens of the township or city where such business is sought to be established, certifying that such applicant is a person of good moral character, temperate in his habits, and a proper person to manufacture and sell intoxicating liquors. Such applicant shall file with said petition a bond to the state of Kansas, in the sum of ten thousand dollars, conditioned that, for any violation of the provisions of this act, said bond shall be forfeited. Such [626-Continued.]

bond shall be signed by said applicant or applicants, as principal or principals, and by at least three sureties, who shall justify, under oath, in the sum of seven thousand dollars each, and who shall be of the number signing said petition. The probate judge shall consider such petition and bond, and, if satisfied that such petition is true, and that the bond is sufficient, may, in his discretion, grant a permit to manufacture intoxicating liquors for medical, scientific, and mechanical purposes. The said permit, the order granting the same, and the bond and justification thereon, shall be forth with recorded by said probate judge in the same manner and with like offect as in a case of a permit to sell such liquors as provided in section two of this act; and the probate judge shall be entitled to the same fee for his services to be paid by the applicant. Such manufacturer shall keep a book, wherein shall be entered a complete record of the liquors manufactured by him, the sales made, with the dates thereof, the name and residence of the purchaser, the kind and quantity of liquors sold, and the price received or charged therefor. An abstract of such record, verified by the affidavit of the manufacturer, shall be filed quarterly in said probate court, at the end of each quarter during the period covered by such permit. Such manufacturer shall sell the liquor so manufactured only for medical, mechanical, and scientific purposes, and only in original packages.

He shall not sell such liquors for medical purposes except to druggists, who, at the time of such sale, shall be duly authorized to sell intoxicating liquors as provided in this act; and he shall sell such liquors to no other person or persons, associations or corporations, except for scientific or mechanical purposes, and then only in quantities not less than five gallons.'

'The State of Kansas ex rel. J. F. Tufts, Assistant Attorney General, Plaintiff, vs. Ziebold & Hagelin, Defendants. [626-Continued.]

'On application to remove to United States circuit court.

'MARTIN, J. This is an action under the clause of section 13 of the prohibitory liquor law, which was added by the legislature of 1885; the relator, averring that the defendants have no permit from the probate judge of this county, either to manufacture or sell intoxicating liquors, and that they are doing both at their brewery, near the city of Atchison, asks that they be enjoined from selling, and from manufacturing for sale, in the state of Kansas, any malt, vinous, spirituous, fermented, or other intoxicating liquors. The defendants have filed an answer, containing a general denial, and also an averment to the effect that the defendant's brewery, which is alleged to be of the value of $60,000, was erected prior to the adoption of the prohibitory amendment to the constitution of this state, and the passage of the prohibitory law, for the purpose of manufacturing beer, and that it is adapted to no other purpose, and that if the defendants are prevented from the operation thereof for the purpose for which it was erected, the same will be wholly lost to the defendants, and that said prohibitory act is unconstitutional and void. The defendants have also presented a petition and bond for the removal of the case to the circuit court of the United States for the District of Kansas for trial. In the petition for removal it is alleged that said prohibitory act is in contravention of article 4, and section 1 of article 14, of the amendments to the constitution of the United States.

'The record presents for adjudication certain federal questions which will require the removal of the cause, unless the propositions involved have been settled by decisions of the supreme court of the United States. But, as stated by the present learned judge for the Eighth circuit, 'when a proposition has once been decided by the supreme court, it can no longer be said that in it there still remains a federal question.' State v. Bradley, 26 Fed. Rep. 289. It is a part of the constitutional history of this country that the 10 amendments to the federal constitution, numbered 1 to 10, inclusive, which were submitted to the state for ratification by the first congress at its first session, were intended as limitations upon the powers of the federal government, and not as restrictions upon the authority of the states; and as a result no state statute can be held null and void by any court, state or federal, on account of a supposed conflict with these amendments, or any of them. Article 4, which is quoted in the petition for removal, and which relates to unreasonable searches and seizures, may therefore be dismissed from our consideration. Barron v. Mayor, etc., 7 Pet. 243; Livingston's Lessee v. Moore, Id. 469, 551, 552; Fox v. State of Ohio, 5 How. 410, 434, 435; Smith v. State of Maryland, 18 How. 71, 76; Twitchell v. Com., 7 Wall. 321, 325, 326; U. S. v. Cruikshank,  92 U.S. 542 , 552.

'The real point suggested by the petition for removal is whether, in view of the decisions of the supreme court of the [626-Continued.] The case of State ex rel. Tufts v. Ziebold et al. is a civil case, commenced in the district court of Atchison county, Kansas, in the name of the state, by the assistant attorney general for that county, to abate an alleged nuisance, to-wit, a place where intoxicating liquors are bartered, sold, and given away, and are kept for barter, sale, and gift, in violation of law, and a place where intoxicating liquors are manufactured for barter, sale, and gift, in the state of Kansas, and to perpetually enjoin the defendants from using or permitting to be used the premises described in the petition for the purposes mentioned, in violation of the prohibitory law of the state of Kansas. The defendants filed with the clerk of the district court a bond and petition for removal to the circuit court of the United States; and, on the hearing of said petition, the same was overruled by the judge of the district court, who rendered the following opinion, retaining the cases for trial:

"Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privilege or immunity of citizens of the United States, nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of its laws.'

'Our own supreme court, in a case nearly like this one, has held that the act is not in conflict with this section, Justice BREWER, (now of the federal circuit bench,) dissenting. State v. Mugler, 29 Kan. 252. The United States circuit court for the Northern district of Georgia also takes the same view as our supreme court in the case of a brewery similarly affected by the recent local option law of Georgia. Weil v. Calhoun, 25 Fed. Rep. 865. In the case of State v. Walruff, 26 Fed. Rep. 178, Judge BREWER adheres, however, to his dissenting opinion in the Mugler Case, and holds the statute in question to be in conflict with the fourteenth amendment, because no provision is made in the act for the payment of damages to property and business injuriously affected by its operation; and this decision has been followed by Judge LOVE, of the federal district court for Iowa, in two cases. [Kessinger v. Hinkhouse, Mahin v. Pfeiffer,] 27 Fed. Rep. 883, 892. The decisions of the state courts of last resort, and of the inferior federal courts, are not conclusive upon the interpretation of the federal constitution. The supreme court of the United States is, however, the final expositor and arbiter of all disputed questions touching the scope and meaning of that sacred instrument, and its decisions thereon are binding upon all courts, both state and federal.

'Is the doctrine of the Walruff Case supported by these decisions? With the utmost deference to the opinion of Judge BREWER, we are constrained to think not. The authorities cited by him certainly do not justify his proposition, and other cases not referred to are inconsistent with his views. He treats the Walruff brewery as if taken by the state for public use without just compensation. Yet this alone, if true, would not be a matter of federal cognizance. By the fifth amendment the federal government was inhibited from depriving any person of life, liberty, or property without due process of law, and also from taking private property for public use without just compensation? But, as re arked by Justice MILLER in Davidson v. New Orleans,  96 U.S. 97 , 105, in commenting on the clause of the fourteenth amendment forbidding the state from depriving any person of his property without due process of law, 'if private property is taken for public uses without just [626-Continued.] United States, it is yet an open question that the prohibitory liquor law of this state, in so far as it restricts the right to sell and manufacture beer, is or is not in contravention of section 1 of article 14 of said amendment, which reads as follows:

compensation, it must be remembered that when the fourteenth amendment was adopted, the provision on that subject in immediate juxtaposition in the fifth amendment with the one we are construing was left out and this was taken.' Prior to the adoption of the fourteenth amendment, a man whose property was taken by any state process for public use, without just compensation, could not on that ground resort to the federal courts for redress. His remedy was in the state courts, and it remains so to this day, that amendment being entirely silent upon the subject. But the doctrine in the Walruff Case seems to assume that the deprivation of property without due process of law is the same thing as the taking of private property for public use without just compensation, or that the former includes the latter. But the statesmen who framed the early amendments were at least as wise and had as accurate an understanding of the import of the words in a fundamental law as any who have succeeded them. They were not given to a waste of words, nor the useless and perplexing repetition of the same proposition in different forms.

'Neither the state nor the federal courts ever had any rightful power to avoid an act of a state legislature, because by such court deemed impolitic or unreasonable. It could only be so avoided when in contravention of the constitution of the state, or of the federal constitution, or some act of congress passed or treaty made in pursuance of its authority. The views of a court upon the merits or demerits of a statute have nothing to do with its validity. In the Walruff Case an effo t appears to be made to blend and combine two principles,-one embraced in the fourteenth amendment; and the other entirely outside of the constitution,-and then to show that the Kansas liquor law is in conflict with the combined principle. The syllabus of the case shows this. It reads as follows: 'The prohibitory amendment to the constitution of Kansas, and the laws passed in pursuance thereof, condemn and confiscate to public use all property then in use for the manufacture of the prohibited articles, and, having failed to provide compensation therefor, are in violation of the fourteenth amendment to the constitution of the United States, as taking property without due process of law.' Waiving, however, for the present, this unwarranted blending of constitutional and extra- constitutional principles, it is safe to assert that no decision of the supreme court of the United States either establishes or tends to establish the doctrine that a liquor law such as ours operates upon the owners of distilleries or breweries as a taking of private property for public use, or as a deprivation of property without a due process of law.

'The scope of the first section of the fourteenth amendment was first fully discussed by that tribunal in the Slaughter-House Cases, 16 Wall. 36: 'The legislature of Louisiana, on March 8, 1869, passed an act conferring upon the defendant company, a corporation created by the act, the exclusive right, for twenty-five years, to have and maintain slaughter- houses, landings for cattle, and yards for confining cattle intended for slaughter, within the parishes of Orleans, Jefferson, and St. Bernard, a territory comprising an area of 1,154 square miles, including the city of New Orleans, and prohibiting all other persons from keeping or having slaughter-houses, landings for cattle, and yards for confining cattle intended for slaughter, within said limits, and requiring that all cattle and other animals to be slaughtered for food in that district should be brought to the slaughter-houses and works of said company, to be slaughtered upon the payment of a fee and certain perquisites to the company for such service. The plaintiffs, an association of butchers, averred that, prior to the passage of the act in question, they were engaged in the business of procuring and bringing to said parishes, animals suitable for human food, and in preparing the same for market; that in the prosecution of this business they had provided in these parishes suitable establishments for landing, sheltering, keeping, and slaughtering cattle, and the sale of meat; that with their association about 400 persons were connected, and that in [626-Continued.] They recognized the fact that private property might be taken for public use under regular process without just compensation, and also that a man might be deprived of his property without due process of law, and yet obtain compensation therefor to the full measure of its value; and the federal government was inhibited from both of these forms of injustice, while the states were left free to establish such rules on the subject as they deemed proper. Since the adoption of the fourteenth amendment, however, the fact that a person is deprived of his property by a state, without due process of law, constitutes a ground for the exercise of jurisdiction by the federal courts. Referring to this subject in the case of Davidson v. New Orleans, supra, Justice MILLER says: 'It is not a little remarkable that, while this provision has been in the constitution of the United States as a restraint upon the authority of the federal government for nearly a century, and while during all that time the manner in which the powers of that government have been exercised has been watched with jealousy, and subjected to the most rigid criticism in all its branches, this special limitation upon its powers has rarely been invoked in the judicial forum or the more enlarged theater of public discussion. But while it has been a part of the constitution as a restraint upon the powers of the states only a very few years, the docket of this court is crowded with cases in which we are asked to hold that state courts and state legislatures have deprived their own citizens of life, liberty, and property without due process of law. There is here abundant evidence that there exists some strange misconception of the scope of the provision as found in the fourteenth amendment. In fact, it would seem from the character of many of the cases before us, and the arguments made in them, that the clause under consideration is looked upon as a means of bringing to the test of the decision of this court the abstract opinions of every unsuccessful litigant in a state court of justice of the decision against him, and of the merits of the legislation on which such a decision may be founded.' [626-Continued.]

'In the case of Bartemeyer v. Iowa, 18 Wall. 129-133, Justice MILLER, again delivering the opinion of the court, says: 'The weight of authority is overwhelming that no such immunity has heretofore existed as would prevent state legislatures from regulating, and even prohibiting, the traffic in intoxicating drinks, with a solitary exception. That exception is the case of a law operating so rigidly on property in existence at the time of its passage, absolutely prohibiting its sale, as to amount to depriving the owner of his property. A single case (Wynehamer v. People, 13 N. Y. 485) has held that as to such property the statute would be void for that reason. But no case has held that such a law was void as violating the privileges or immunities of citizens of a state or of the United States. If, however, such a proposition is seriously urged, we think that the right to sell intoxicating liquors, so far as such right exists, is not one of the rights growing out of citizenship of the United States, and in this regard the case falls within the principles laid down by the court in the Slaughter-House Cases.' The 'solitary exception' from the principle is then referred to as follows: 'But if it were true, and if it were fairly presented to us, that the defendant was the owner of the glass of intoxicating liquor which he sold to Hickey at the time that the state of Iowa first imposed an absolute prohibition on the sale of such liquor, then we can see that two very grave questions would arise, namely: First, whether this would be a statute depriving him of his property without due process of law; and, secondly, whether it would be so far a violation of the fourteenth amendment in that regard as would call for judicial action by this court.' [626-Continued.] said parishes almost 1,000 persons were thus engaged in procuring, preparing, and selling animal food. It is evident that the establishment of the plaintiffs would be rendered almost valueless, and their business substantially broken up, by the operation of the monopoly created by the legislature. And yet the supreme court held that this legislation was not in contravention of any of the provisions of the fourteenth amendment, but that it was a valid exercise of the police power of the state of Louisiana, with which the federal courts could not rightfully interfere.' In the entire official report of the case, embracing nearly one hundred cases, and including the brief of the unsuccessful counsel, the opinion of the court, and the views of three dissenting justices, there is not a word of reference to the taking of private property for public use without first compensation. The learned justice did not seem to regard this as one of the evils that the fourteenth amendment was designed to remedy. To the argument that the butchers were deprived of their property without due process of law, Justice MILLER, delivering the opinion of the court, answered as follows: 'It is sufficient to say that, under no construction of that provision that we have ever seen, or that we deemed admissible, can the restraint imposed by the state of Louisiana upon the exercise of their trade by the utchers of New Orleans be held to be a deprivation of property within the meaning of that provision.'

'In the Walruff Case, Judge BREWER lays great stress upon those passages relating to the doctrine in the New York case. But what relevancy they had to the Walruff Case in difficult to imagine. It was not claimed that Walruff had any beer that was manufactured prior to the adoption of the prohibitory amendment and the passage of the prohibitory law of 1881; and if such a fact had been made to appear, still neither said amendment nor the act of 1881 imposed an absolute prohibition upon the sale of such beer, and not even the slightest restriction upon its use, except that the owner shall not become drunk by imbibing it. Although the tenth amendment to our state constitution, and the legislation in pursuance thereof, are commonly called 'prohibitory,' yet they are not so in strictness of speech, as fully stated by our supreme court in the Mugler case. The evident purpose of both is to diminish the evils of intemperance by placing the manufacture and sale of intoxicating liquors under regulations more strict than those formerly existing.

'It is said, however, that Walruff owned a brewery,-a building and its appurtenances especially adapted to the manufacture of beer,-prior to the adoption of said amendment. This is a great remove from the 'solitary exception' mentioned by Justice MILLER in the Iowa case,-a remove from the product in the manufactory. But the title to such brewery is in no manner affected or incumbered by the amendment and the statutes. Neither the real estate nor the personal property is 'taken' by the state for public use. The state obtains no title, no easement, no license,-nothing. And the owner is in nowise deprived of his property; he parts with nothing. It is true that the state restricts and regulates to some extent the use of such property, so that, in the opinion of the legislature, it shall not be an instrument of hurt and injury to the public. And this brings us to the quotation by Judge BREWER from the opinion of Justice FIELD in the Chicago Elevator Case, entitled 'Munn v. Illinois,'  94 U.S. 113 , 141, as follows: 'All that is beneficial in property arises from its use and the fruits of that use; and whatever deprives a person of them deprives him of all that is desirable or valuable in the title and possession. If the constitutional guaranty extends no further than to prevent a deprivation of title and possession, and allows a deprivation of use, and the fruits of that use, it does not merit the encomiums it has received.' It must be remembered, [626-Continued.] And Justice FIELD, concurring specially, says: 'I have no doubt of the power of the state to regulate the sale of intoxicating liquors, when such regulation does not amount to the destruction of the right of property in them. The right of property in an article involves the power to sell and dispose of such article, as well as to use and enjoy it. Any act which declares that the owner shall neither sell nor dispose of it, nor use and enjoy it, confiscates it, depriving him of his property without due process of law.'

however, that this is not the opinion of the court, but only the view of one of the two dissenting justices. The court, by Chief Justice WAITE, states as its opinion that, by the powers inherent in every sovereignty, a government may regulate the conduct of its citizens towards each other, and, when necessary for the public good, the manner in which each shall use his own property. Accordingly, it was held that, notwithstanding the provisions of the fourteenth amendment to the constitution of the United States, the grain elevators built in Chicago by private enterprise, with private capital, and owned by individuals prior to the adoption of the constitution of 1870 by the people of Illinois, were so far subject to the power of the state under that constitution that a subsequent legislature might make rules and regulations for the government of elevators in their dealings with their patrons, and might fix the value of the use of such elevator property by establishing maximum rates for the storage, handling, and transfer of grain. The case of Beer Co. v. Massachusetts,  97 U.S. 25 , reaffirms Bartemeyer v. Iowa, and upholds to the fullest extent the authority of the states over the manufacture and sale of intoxicating liquors, subject to the one exception specified in the Iowa case, which has been already fully discussed.

In this case, however, the beer company relied upon certain chartered privileges in the nature of a contract, rather than upon the fourteenth amendment; but the court held that the legislature could not by any contract divest itself of its police power, which was held to extend to the protection of the lives, health, and property of her citizens, the maintenance of good order, and the preservation of the public good. See, further, as to the police powers of the state, Patterson v. Kentucky,  97 U.S. 501 , and authorities cited. In Stone v. Mississippi,  101 U.S. 814 , it appeared that in 1867 the legislature of Mississippi granted a charter to a lottery company for twenty-five years, in consideration of a stipulated sum in cash, and the annual payment of a further sum, and a percentage of receipts for the sale of tickets. A provision of the constitution adopted in convention May 15, 1868, and ratified by the people December 1, 1869, declares that 'the legislature shall never authorize any lottery, nor shall the sale of lottery tickets be allowed, nor shall any lottery heretofore authorized be permitted to be drawn, or tickets therein to be sold.' And he also held that the prohibition of such lotteries was not an infringement of vested rights within the meaning of the constitution of the United States, and that the legislature could not, by chartering a lottery company, defeat the will of the people of a state authoritatively expressed in relation to the continuance of such business in their midst. The lottery company did not invoke any immunity by reason of the fourteenth amendment, although it was officially promulgated long before the ratification of the state constitution by the people of Mississippi. It relied, as did the beer company in the preceding case, upon the clause of the constitution of the United States declaring that no state shall pass any law impairing the obligation of contracts. And neither [626-Continued.]

'Some quotations have already been made from the opinion of the court in Davidson v. New Orleans,  96 U.S. 97 , where an assessment of certain real estate in New Orleans, for draining swamps of that city, was resisted in the state courts on the ground that the proceeding deprived the owner of his property without due process of law, in violation of the fourteenth amendment. But it was held that neither the corporate agency by which the work was done, the excessive price which the statute allowed therefor, nor the relative importance of the work to the value of the land assessed, nor the fact that the assessment was made before the work was done, nor that it was unequal as regards the benefits conferred, nor that the personal judgments were rendered for the amounts assessed, were matters in which the state authorities were controlled by the federal constitution, and the assessment was therefore held valid as against any objections which could be raised in the supreme court of the United States on a proceeding in error from the supreme court of Louisiana.

'In Barbier v. Connolly,  113 U.S. 27 , 5 Sup. Ct. Rep. 357, the court held that the fourteenth amendment of the constitution does not impair the police power of a state, and that an ordinance of the city of San Francisco, prohibiting washing and ironing in public laundries and wash- houses, within defined territorial limits, from 10 o'clock at night to 6 in the morning, was purely a police regulation within the competency of a municipality possessed of the ordinary powers. And in another case, under the same ordinance, (Soon Hing v. Crowley,  113 U.S. 703 , 5 Sup. Ct. Rep. 730,) it was held to be no valid ground of constitutional objection that the ordinance permitted other and different kinds of business to be done within the hours prohibited to laundries and wash-houses. the aggrieved parties nor the court seem to have discovered that the proceedings constituted a taking of private property for public use without just compensation, nor a privation of property without due process of law. In Foster v. Kansas,  112 U.S. 201 , 5 Sup. Sup. Ct. Rep. 8, (32 Kan. 765,) the supreme court of the United States, in an opinion covering only a few lines, holds our Kansas liquor law of 1881 to be valid, and not repugnant to the constitution of the United States, on the authority of the Iowa and Massachusetts cases before referred to. And the amendment of 1885 to the act of 1881 did not render the liquor law any more objectionable on any ground raised in this case or the Walruff Case.

'In the case of Railway Co. v. Humes, 115 U.S. 514, 6 Sup. Ct. Rep. 110, it was held that a statute of Missouri requiring every railway corporation in the state to erect and maintain fences and cattle-guards on the side of its road, and, if it does not, making it liable to double the amount of damages occasioned thereby and done by its agents, cars, or engines to cattle or other animals on its road, does not deprive a railroad corporation, against which such double damages are recovered, of its property without due process of law, or deny it the equal protection of the law in violation of the fourteenth amend ment. Justice FIELD, in delivering the opinion of the court, refers with approval to the remarks of Justice MILLER, in Davidson v. New Orleans, respecting the general misconception of the scope of these provisions, and says: 'If the laws e acted by a state be within the legitimate sphere of legislative power, and their enforcement be attended with the observance of those general rules which our system of jurisprudence prescribes for the security of private rights, the harshness, injustice, and oppressive character of such laws will not invalidate them as affecting life, liberty, or property without due process of law.' And again: 'It is hardly necessary to say that the hardship, impolicy, or injustice of state laws is not necessarily an objection to their constitutional validity; and that the remedy for evils of that character is to be sought from state legislatures. Our jurisdiction cannot be invoked unless some right claimed under the constitution, laws, or treaty of the United States is invaded. This court is not a harbor where refuge can be found from every act of ill-advised and oppressive state legislation.'

'This review of the leading decisions of the supreme court of the United States, giving a construction to section 1 of the fourteenth amendment, taken with the admitted doctrine of that court prior to said amendment, that the manufacture and sale of intoxicating liquors within a state were purely and exclusively matters of state regulation and control, is sufficient to establish the following propositions, namely: (1) The first clause of that section relates to the privileges and immunities of citizens of the United States, as distinguished from the privileges and immunities of citizens of the state, and the right to manufacture and sell intoxicating liquors is not one of those privileges and immunities which by that clause the states are forbidden to abridge. (2) The states have as complete power now, as ever, to so regulate the use of property within their limits that it shall not be made an instrument of injury to the public, but rather to promote the general welfare. (3) The regulation of the manufacture and sale of intoxicating liquors within a state, being matters of public and internal government, are not impaired by said section 1 of the fourteenth amendment; but the powers of the state to deal with the subject are as full, complete, and exclusive since as before the adoption of said amendment, provided that the owner of property be not deprived of it without [626-Continued.] This ordinance was intended to and did bear heavily upon the Chinese, who owned and kept laundries and wash-houses in that city, and such establishments must have been greatly depreciated in value by the enforcement of this restrictive regulation; yet the supreme court decided that the fourteenth amendment did not invest the federal courts with any power to grant relief, Justice FIELD delivering the unanimous opinion of the court in both cases. [626-Continued.]

'The cases cited in the opinion in the Walruff Case, other than those already referred to, appear to be entirely irrelevant, unless it be in the case in 18 How. 272, which discusses the meaning of the phrase 'due process of law,' but it is not inconsistent with any position taken in this opinion. Pumpelly v. Green Bay Co., 13 Wall. 166, is cited as a 'leading case.' The action was commenced before the adoption of the fourteenth amendment, and it involved the construction of that provision of the constitution of the state of Wisconsin which declares that 'the property of no person shall be taken for public use without just compensation therefor.' The plaintiff's land to the extent of 640 acres was overflowed by reason of a dam erected by the defendant company, and had been substantially submerged before the action was commenced, and it was held that this was such a taking of the plaintiff's land as required compensation to be made,-a principle which would certainly be law in Kansas, the very principle of our mill-dam act. But here the defendant corporation obtained a valuable easement upon the land of th plaintiff, who was almost wholly deprived of its actual possession and use. The Illinois, New Jersey, and New York cases referred to in the opinion also treat of the right of eminent domain and the qualifications of that right, but they are no nearer in point than the case in 13 Wall. The doctrine of the Walruff Case is that, by force of the fourteenth amendment, a state cannot alter its laws and institute what it deems necessary reforms without first making compensation to those who would suffer a consequential loss by the change.

'At the beginning of the civil war, the business of the distiller was as free from interference and taxation by the general government as any other industry or manufacture. In order to raise revenue for the prosecution of the war, however, distilled spirits were taxed to several times their first cost, and distilleries were placed under the strictest government surveillance; and although during late years the tax has in part abated, yet the absolute government control still continues. Under the operation of the internal revenue laws, hundreds of the owners of the smaller distilleries were compelled to close them, or flee with them to the mountains and become 'moonshiners,' and their investments in them became almost a total loss. But, although by the fifth amendment the federal government has always been forbidden from taking private [626-Continued.] due process of law. (4) The present law of this state, prohibiting the defendants from manufacturing and selling beer without a permit, and restricting the purposes for which it may be manufactured and sold, is not a taking of the defendants' brewery by the state for public use, nor a deprivation of the defendants of their brewery, within any admissible construction of those respective clauses of said section. (5) And these propositions, having been settled by repeated decisions of the supreme court of the United States, there is no longer a federal question which should be certified by a state court to an inferior federal court for decision.

'Such a construction of the beneficent and liberal provisions of the first section of the fourteenth amendment is utterly untenable and inadmissible. The fourteenth is one of the three amendments growing out of the civil war, having in the main a unity of purpose in three successive steps: First, the emancipation of an enslaved race; secondly, the clothing of that race with national and state citizenship and full civil rights; and, thirdly, their political enfranchisement as a guaranty against the invasion of their newly-acquired rights. And, as Justice MILLER says in the Slaughter-House Cases, in giving the constructio to any of these amendments, it is necessary to keep this main purpose steadily in view, although their letter and spirit must apply to all cases coming within their purview, whether the party concerned be of African descent or not. Neither the advocates nor the opponents of the fourteenth amendment, while it was the subject of discussion in congress, before the state legislatures, and by the people, ever placed any such construction upon such section 1, as that set forth in the Walruff Case. If its advocates had avowed a construction so degrading to the states, and so subversive of their authority, it [626-Continued.] property for public use without just compensation, and also from depriving any person of life, liberty, or property without due process of law, yet we have never heard of the presentation of a claim by a ruined distiller against the government, for the reparation of his loss, and such a claim would certainly not be seriously entertained. But why is not such a claim against the United States as good as a like claim by the defendants upon this state? May not the state safely go as far in the exercise of her police power for the protection of the property, health, and morals of her inhabitants as the United States may proceed, under her power of taxation, to raise revenue to defray her extraordinary expenses? We will suppose the case of a new state where, either because no apparent necessity existed, or from inadvertence or neglect, no statute was enacted against the keeping of gambling-houses, and while this state of affairs existed many such places were established, at a large outlay of money, and the proprietors were carrying on a lucrative business. Must the state, as a condition precedent to the enforcement of legislation against the evil, purchase and pay for the houses, or their furniture and gambling devices, together with the good-will of their business? And the same inquiry might be made as to houses of ill fame and lotteries, under similar circumstances. Think of the states being compelled to buy up gambling- houses, brothels, and lotteries, and the good-will of such establishments, before any statute for their suppression could be enforced! Judge LOVE, following the authority and logic of the Walruff Case, holds that the protection of the fourteenth amendment extends to dram-shops or saloons which were in existence prior to the enactment of the Iowa prohibitory liquor law, and that the state must buy them out in order to their suppession. And the principle carried to its legitimate conclusion will also embrace all the supposed cases hereinbefore named, and cover them with like immunity.

'The applications to remove the case to the United States circuit court for trial will be denied.' is doubtful if it would have been ratified by a single member of the Union. Happily, the supreme court of the United States has repeatedly spoken in such terms as to give assurance against any fear that such an interpretation of that section shall ever become the law of the land.

The defendants, however, filed in said court a transcript of the record in the case, and the same was docketed in said court as pending therein. The state filed a verified plea in abatement, and to the jurisdiction of the court, controverting the facts alleged in the petition for the removal as the grounds of such removal. To this plea the defendants filed an answer, (replication?) and, upon the issue joined on the plea by such answer, the cause was submitted to the court. By agreement, the proofs of the parties, plaintiff and defendants, were made by affidavits, all objections being waived, and no question being raised on either side as to the proper practice of taking proof on such an issue. Upon the hearing of the plea in abatement, it appearing that the answers to said pleas were not verified, it was agreed that each of said pleas should be considered as denied, only in so far as the same were denied in the affidavits filed for the defense in said case. It was also admitted that no application for a permit to sell or manufacture liquor on the premises described in the petition, the selling or manufacturing of which was sought to be enjoined, had ever been made by either of the defendants under the law. It was also agreed that, upon the evidence offered upon said hearing, the said judge should consider, adjudge, and issue such order of injunction, if any, as ought to be issued in said case, provided the said case was retained in that court. The court overruled the plea in abatement, holding the case for hearing in the circuit court. After wards the complainant and appellant filed an amended and recast bill, alleging and praying as in the original petition in the state court, but framed according to the equity pleadings. This amended and recast bill contains, in addition to the allegations in the original bill, substantially these three following propositions: First, that all rights, interests, estate, and title in and to said premises, vested in said defendants, were acquired with a full knowledge that all places where intoxicating liquors are sold in violation of law, were by the statutes of said state of Kansas declared to be a common nuisance, and directed to be shut up and abated as public nuisances; second, that none of the malt, vinous, spirituous, fermented, or other intoxicating liquors now in possession of said defendants on said premises, the barter, sale, or gift of which in violation of the laws of the state of Kansas is sought to be enjoined in this action, were in existence prior to the adoption of said constitutional amendment, and the enactment of said acts by the legislature of the state of Kansas;

third, that at the time said defendants erected the buildings and [626-Continued.]

the appurtenances on the premises described in plaintiff's petition, and at the time said defendants acquired their present rights, interests, estate, and title to said premises, the sale, barter, and giving away of spirituous, vinous, fermented, or other intoxicating liquors, without first taking out and having a license or permit, was prohibited by the laws of said state, punished by fine and imprisonment, and all places where such liquors were sold or given away in violation of the law were declared to be common nuisances, and directed to be shut up and abated as such. These propositions were also contained in the plea in abatement. In addition to these allegations, and as part of the bill, there were annexed full copies of the laws of the state of Kansas, which authorize these proceedings, and also the law upon which the first and third of the foregoing propositions are based.

The defendants filed their answer to said amended and recast bill, alleging that, at the time they purchased and erected the buildings and premises described in the bill, the laws of the state of Kansas permitted the manufacture of beer and intoxicating liquors without any restrictions. That said buildings and premises were erected for that especial purpose; and that said property was useless for any other purpose than for that for which they were constructed, to-wit, the manufacture of beer and other intoxicating liquors, and if enjoined from prosecuting that particular business, they would suffer a total loss of the value of the buildings; that the law under which this prosecution was instituted was void and unconstitutional, and the provisions thereof were in violation of and in contravention to the provisions of article 4, and section 1 of article 14, of the amendments to the constitution of the United States.

On Thursday, February 10, 1887, at the November term, 1886, this cause being submitted on bill and answer, a final decree was made and pronounced in the cause, wherein it was, in substance, adjudged and decreed that the complainant and appellant, the state of Kansas, on the relation of J. F. Tufts, assistant attorney general of the state of Kansas for Atchison county, Kansas, was not entitled to the relief prayed for, and dismissing said bill at the cost of said complainant and appellant. The complainant then brought this appeal to this court.

ASSIGNMENT OF ERRORS.

The complainant and appellant assigns as error, and asks for a reversal upon, the following rulings of the court below: First, that the court below erred in overruling the plea in abatement to the jurisdiction of the court, and in holding the case for hearing; second, that the court below erred in rendering a final decree on the bill and answer for the defendants, and dismissing complainant's bill.

This statute and constitutional amendment have received [626-Continued.]

a construction at the hands of the supreme court of Kansas, Prohibitory Amendment Cases, 24 Kan. 700, and the case at bar, State v. Mugler, 29 Kan. 252, defining the privileges and liabilities under the old law and under the new. In 1877, when plaintiff in error, Mugler, erected his brewery, he had a right to manufacture beer or any other intoxicating liquors which he chose. He can do so still, provided he obtains a permit, which can be obtained by complying with the law. In 1877 he could manufacture intoxicating liquors for any purpose. Under the amendment, he can only manufacture for medical, scientific, and mechanical purposes. In 1877 he had no right to sell intoxicating liquors in any quantity, in any place, or to any person in Kansas, without a license. State v. Volmer, 6 Kan. 371; Dolson v. Hope, 7 Kan. 161; Alexander v. O'Donnell, 12 Kan. 608. Such is still the law. The license is now called a permit.

The word 'property,' as used in Const. U. S. 14th Amend., means the right of use and the right of disposal, without any control save only by the law of the land. Bl. Comm. 138. The police power of the state is a part of the law of the land. It does not affirmatively appear that plaintiff in error, Mugler, was the owner of the property at the time of the passage of the amendment, or at the time of the commission of the offense. If he was at the time he made his investment, he had-First, the right to sell it; second, the right to use it, limite by the police power of the state; and, by reason of statutes then in force, this right was a defeasible one,-a mere privilege or license. The right to manufacture and sell intoxicating liquors has always been held, by the common law of England, by the courts and legislatures of the states, by this court, and by the congress of the United States, as a peculiarly temporary, defeasible, and transient right, as particularly subject to the police power. The right of plaintiff in error to use his property at the time he acquired it for the purpose for which it was erected was, under the statutes of Kansas, but a mere license. The right to sell was a license. Mugler v. State, 29 Kan. 252. Sale is the object of manufacture. Brown v. Maryland, 12 Wheat. 419. The right to manufacture includes the right to sell. Beer Co. v. Massachusetts, 97 U.S. 32. To take away the right to sell is to take away, de facto, the right to manufacture. As to the right to manufacture for sale outside the state, see State v. Walruff, 26 Fed. Rep. 178. A state, in the enactment of a law, contemplates the existence of no other sovereignty than itself. Bartemeyer v. Iowa, 18 Wall. 129; Wynehamer v. People, 13 N. Y. 378. It does not appear that plaintiff in error was situated so as to sell outside of the state with profit. It follows, then, that plaintiff's privileges at the time he made his investment were expressly defeasible under the laws then in force.

It is not claimed that plaintiff has been deprived of his property objectively considered. He still has possession of it. He still has the right to sell it. Nor is it claimed that he is deprived of its use generally. The only claim is that he is deprived of the privilege to [626-Continued.]

use it for the manufacture of liquors for sale as a beverage. The absolute prohibition of the sale of intoxicating liquors is not contravened by anything in the constitution of the United States. Foster v. Kansas,  112 U.S. 205 , 5 Sup. Ct. Rep. 97; Beer Co. v. Massachusetts,  97 U.S. 25 ; Bartemeyer v. Iowa, 18 Wall. 129. Sale is the object of manufacture. Everything in this case indicates that the sole and only purpose plaintiff had in erecting his brewery was to use it in the manufacture of intoxicants for sale within the state. Plaintiff in error has only been deprived of a privilege which both by the statutes of Kansas and the common law, was always defeasible.

The law was within the police power of the state. Prior to the adoption of the fourteenth amendment, it was conceded that the regulation of the liquor traffic was purely and exclusively a matter of state control. License Cases, 5 How. 504, 631; Com. v. Kendall, 12 Cush. 414; Com. v. Clapp, 5 Gray, 97; Com. v. Howe, 13 Gray, 26; Santo v. State, 2 Iowa, 165; Our House v. State, 4 G. Greene, 172; Zumhoff v. State, Id. 526; State v. Donehey, 8 Iowa, 396; State v. Wheeler, 25 Conn. 290; Reynolds v. Geary, 26 Conn. 179; Oviatt v. Pond, 29 Conn. 479; People v. Hawley, 3 Mich. 330; People v. Gallagher, 4 Mich. 244; Jones v. People, 14 Ill. 196; State v. Prescott, 27 Vt. 194; Lincoln v. Smith, Id. 328; Gill v. Parker, 31 Vt. 610. But see Beebe v. State, 6 Ind. 501; Meshmeyer v. State, 11 Ind. 484; Wynehamer v. People, 13 N. Y. 378. It is also competent to declare the traffic a nuisance, and to provide legal process for its condemnation and destruction, and to seize and condemn the building occupied. Our House v. State, 4 G. Greene, 172; Lincoln v. Smith, 27 Vt. 328; Oviatt v. Pond, 29 Conn. 479; State v. Robinson, 33 Me. 568; License Cases, 5 How. 589. But see Wynehamer v. People, 13 N. Y. 378; Welch v. Stowell, 2 Doug. (Mich.) 332. See, also, Cooley, Const. Lim. (Ed. 1868) 581, 583, 584.

Since the adoption of the fourteenth amendment, all rights are held subj ct to the police power, and this power cannot by any contract be divested. Beer Co. v. Massachusetts,  97 U.S. 25 . The amendment was not designed to interfere with the police power. Barbier v. Connelly,  113 U.S. 27 , 5 Sup. Ct. Rep. 357. A proceeding similar to the one at bar was held not to raise a federal question. Schmidt v. Cobb,  119 U.S. 286 , 7 Sup. Ct. Rep. 1373. Inferior federal courts have held the same doctrine. Weil v. Calhoun, 25 Fed. Rep. 872; U. S. v. Nelson, 29 Fed. Rep. 202. The Oleomargarine Cases are recent illustrations. Powell v. Com., 7 Atl. Rep. 913; State v. Addington, 12 Mo. App. 214, 77 Mo. 115; State v. Smyth, 14 R. I. 100. See, also, the regulation of the sale of milk. Com. v. Evans, 132 Mass. 11; State v. Newton, 45 N. J. Law, 469; People v. Clipperly, 101 N. Y. 634, 4 N. E. Rep. 107, reversing 44 Hun, 319. The regulations of the opium traffic. Ex parte Yung Jon, 28 Fed. Rep. 308. The enactment in this case falls far short of those which have heen upheld by this court in Beer Co. v. Massachusetts,  97 U.S. 25 , and in the Slaughter-House Cases. Only a single case has decided that a statute of this kind is unconstitutional, ( Wynehamer v. People, [626-Continued.]

13 N. Y. 378,) and in that case it was not held void as violating a privilege or immunity, but the statute operated so rigidly on property in existence at the time, absolutely prohibiting its sale, as to amount to depriving the owner of his property. It is not shown in this case that the beer was on hand at the time of the adoption of the amendment.

In the case of State of Kansas v. Ziebold et al., the allegations of the plea that the defendants are not deprived of the right to use their premises for the purpose of manufacturing beer for sale in other states, and that their property is as valuable for that purpose as if used for the purpose of manufacturing for sale in this state are not denied, and must be taken as true. The fourteenth amendment only extends to the rights that individuals have as citizens of the United States, and not to such as they have as citizens of the state. Presser v. Illinois,  116 U.S. 252 , 6 Sup. Ct. Rep. 580.

This law is not in violation of article 4, Const. U. S., relating to unreasonable searches and seizures, since that article is a limitation on the power of the federal government, and not a restriction on the authority of the state. Barron v. Baltimore, 7 Pet. 243; Livingston's Lessee v. Moore, 7 Pet. 469, 551, 552; Fox v. State of Ohio, 5 How. 410, 434, 435; Smith v. State of Maryland, 18 How. 71, 76; Twitchell v. Com., 7 Wall. 321, 325, 326; U. S. v. Cruikshank,  92 U.S. 542 , 552.

The vested rights here claimed to be invaded rest not upon express legislative authority. At the time of the purchase of the premises and the making of the improvements, the munufacture of intoxicating liquors was free from tax, license, or restraint. The sale of such liquors has always been under restraint, and places where such liquor was kept for sale in violation of law have always been declared to be nuisances. To hold that these appellees had a right to continue the use of these premises for a purpose which the legislature of the state has declared to be detrimental to the state, until compensation is made, would be to hold that there is, because of the absence of restrictive legislation at the time the improvements were made, an implied contract right vested in them that the state would never interfere with them if they made improvements adapted to this particular business. The supreme court has said that no express contract of this kind can be made. Beer Co. v. Massachusetts,  97 U.S. 25 ; Fertilizing Co. v. Hyde Park,  97 U.S. 659 ; Stone v. Mississippi,  101 U.S. 814 ; Union Co. v. Landing Co., 113 U.S. 746, 4 Sup. Ct. Rep. 652; Gas Co. v. Light Co.  115 U.S. 650 , 6 Sup. Ct Rep. 252. In the case of Union Co. v. Landing Co., the defendants, relying on a grant from the legislature of an exclusive right for 20 years, made extensive improvements adapted to their particular kind of business, and yet the supreme court held that the grant was no protection against subsequent legislation; that the right of the state to protect public health and public morals could not be contracted [626-Continued.]

away by one legislature so as to bind its successor.

In the case at bar the property, except for a particular use, is not interfered with, and their vested rights, if any, exist because they made improvements, not under express legislative authority granted them to engage in this business, but in the absence of any legislation. Can there be a vested right in the use of property to manufacture beer more sacred than the contract rights above cited?

All rights are held subject to the police power. It is not a taking of private property for public use, but a salutary restraint on a noxious use by the owner. That this power extends to the right to regulate, prohibit, and suppress the liquor traffic has not been doubted since the License Cases, 5 How. 504. Dill. Mun. Corp. 136; Tied. Lim. Police Power , 122, 122a; 2 Kent, Comm. 340; People v. Hawley, 3 Mich. 330; Com. v. Tewksbury, 11 Metc. 55. To hold otherwise would be destructive of all social organization. Coates v. Mayor of New York, 7 Cow. 585. These laws are presumed to be passed for the public good, and cannot be said to impair any right or the obligation of any contract, or to do any injury in the proper and legal sense of these terms. Com. v. Intoxicating Liquors, ( Beer Co. v. Massachusetts,  97 U.S. 25 ,) 115 Mass. 153, citing Com. v. Alger, 7 Cush. 85, 86; Thorpe v. Railroad Co., 27 Vt. 140; People v. Hawley, Mich. 330; Presbyterian Church v. New York, 5 Cow. 538; Vanderbilt v. Adams, 7 Cow. 349; Coates v. New York, Id. 585, 604, 606. The right to compensation for private property taken for public use is foreign to the subject of preventing or abating public nuisances. City of St. Louis v. Stern, 3 Mo. App. 48.

This act has been held to be constitutional. State v. Mugler, 29 Kan. 252.

Vested rights which do not rest on contract may be divested without, on the provision of the constitution, that no state shall pass any law impairing the obligation of contracts. Satterlee v. Matthewson, 2 Pet. 380; Watson v. Mercer, 8 Pet. 88, and cases cited; Louisiana v. Mayor of New Orleans,  109 U.S. 285 , 3 Sup. Ct. Rep. 211.

No better presentation of this case can be made than is contained in the opinion of Judge MARTIN on the petition for removal to the circuit court, (see statement of facts.)

The law of Kansas, prohibiting the manufacture of 'any spirituous, malt, vinous, fermented, or other intoxicating liquors' except for 'medical, scientific, and mechanical purposes is in conflict with article 14 of the constitution.

In the indictment there was no allegation and no attempt to prove that the beer was manufactured for sale or barter. The proposition in the Kansas constitution is that no citizen shall manufacture, even for his own use, or for [626-Continued.]

exportation, any intoxicating liquors. The state has the power to prohibit the manufacture of intoxicating liquors for sale or barter within its own limits; but it has no power to prohibit any citizen to manufacture for his own use, or for export, or storage, any article of food or drink not endangering or affecting the rights of others. In the implied compact between the state and the citizen, certain rights are reserved by the latter, with which the state cannot interfere. These are guarantied by the federal and state constitutions in the provisions which protect 'life, liberty, and property.' Under the doctrines of the Commune, the state has the right to control the tastes, appetites, and habits of the citizen. But under our form of government, the state oes not attempt to control the citizen except as to his conduct to others. John Stuart Mill on 'Liberty,' 145, 146; 2 Kent, Comm. 1; 1 Cooley, Bl. 122, 123; Munn v. People of Illinois,  94 U.S. 113 , citing Thorpe v. Railroad Co., 27 Vt. 143. The right to manufacture beer for his own use, either food or drink, is certainly an absolute or natural right reserved to every citizen. It is a right guarantied by the fourteenth amendment; and when the legislature of Kansas punishes the plaintiff in error for simply manufacturing beer, it deprives him of that right 'without due process of law,' and denies to him 'the equal protection of the laws.'

'Due process of law' means such an exertion of the power of government as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the [626-Continued.] If the legislature can prescribe what a man shall or shall not manufacture, ignoring the question of whether he intends to dispose of it to others, or whether its manufacture is dangerous in the process of manufacturing to the lives or property of others, then the same power can prescribe the tastes, habits, and expenditure of every citizen. The right of the state to prohibit unwholesome trades, etc., is based on the general principle that every person ought to so use his own as not to injure his neighbors. This is the police power; and it is much easier to perceive and realize the existence and sources of it than to mark its boundaries. Slaughter-House Cases, 16 Wall. 36; Union Co. v. Landing Co., 111 U.S. 588, 4 Sup. Ct. Rep. 652, (opinions of Justices BRADLEY and FIELD;) Com. v. Alger, 7 Cush. 84. But broad and comprehensive as is this power, it cannot extend to the individual tastes and habits of the citizen. License Cases, 5 How. 583. Whatever may be the injurious results from the use of beer, it will not be contended that there is anything in the process of manufacturing it which endangers the lives or property of others. Corfield v. Coryell, 4 Wash. C. C. 371. There can be no doubt but that 'citizens of the United States' and 'citizens of the states' have the natural right to manufacture beer for individual use. To this right is added the right, secured by the other clause of the fourteenth amendment, 'nor shall any state deprive any person of life, liberty, or property without due process of law.'

class of cases to which the one in question belongs. Cooley, Const. Lim. 356; Wynehamer v. People, 13 N. Y. 432; State v. Allen, 2 McCord, 56; Sears v. Cottrell, 5 Mich. 251; Taylor v. Porter, 4 Hill, 140; Hoke v. Henderson, 4 Dev. 15; James v. Reynolds' Adm'rs, 2 Tex. 251; Kennard v. Louisiana,  92 U.S. 480 . The article is a restraint on the judicial and executive powers of government, and cannot be so construed as to leave to congress to make any process, due process of law. Murray's Lessee v. Land & Imp. Co., 18 How. 276. In Dartmouth College Case, 4 Wheat. 518, Mr. Webster defined 'due process of law' to be the general law which hears before it condemns. See, also, Brown v. Hummel, 6 Pa. St. 86; Norman v. Heist, 5 Watts & S. 171. 'The general laws governing society' guaranty the right to manufacture beer; and until the citizen attempts to sell or barter, he cannot be punished. If all that is charged in this indictment be proved, no offense is shown to have been committed under the laws of any free people. Under the power to regulate, the state cannot deprive the citizen of the lawful use of his property, if it does not injuriously affect or endanger others. Lake View v. Cemetery Co., 70 Ill. 191. Nor can it, in the exercise of the police power, enact laws that are unnecessary, and that will be oppressive to the citizen. Railway Co. v. City of Jacksonville, 67 Ill. 37-40; Tenement-House Cigar Cases, 98 N. Y. 98; People v. Marx, 99 N. Y. 377; Intoxicating Liquor Cases, 25 Kan. 765, ( opinion of Judge BREWER;) Calder v. Bull, 3 Dall. 386; Fletcher v. Peck, 6 Cranch, 135; Dash v. Van Kleeck, 7 Johns. 477; Taylor v. Porter, 4 Hill, 146, (per BRONSON, J.;) Goshen v. Stonington, 4 Conn. 225, (per HOSMER, J.)

But this statute deprives the plaintiff in error directly and absolutely of his property, without 'due process of law.' By the enactment of this statute the property is reduced in value, not indirectly or consequentially, but by direct prohibition of its real and primary use. This question was not passed on in Bartemeyer v. Iowa, 18 Wall. 129. To destroy the right to manufacture beer for a beverage is to deprive the owner of his property, although he is left the right to manufacture for other purposes, since that is the ordinary, usual, and principal use of beer. Wynehamer v. People, 13 N. Y. 387. This is an attempt not merely to legislate for the future but an attempt to destroy vested rights by legislative enactment without compensation, and without 'due process of law.' Wilkinson v. Leland, 2 Pet. 657. See, also, Munn v. People of Illinois,  94 U.S. 113 , (per FIELD, J.;) Bartemeyer v. Iowa, (BRADLEY, J.,) 18 Wall. 129; Beer Co. v. Massachusetts,  97 U.S. 25 . That private property cannot be taken for public purposes, without just compensation, is a fundamental maxim of all governments. Munn v. People of Illinois, ( FIELD, J.,)  94 U.S. 113 .

As to the distinction between taking for public use and destruction, and also direct or consequential damages or loss, see Sedg. St. & Const. Law, 519-524, and notes. Taking need not be confined to actual physical appropriation. Id. If the owner is deprived of the use for which it was designed, to retain title [626-Continued.]

and possession is of little consequence. Munn v. People of Illinois, supra, citing Bronson v. Kinzie, (TANEY, C. J.,) 1 How. 311. This question was effectually disposed of by this court. Pumpelly v. Green Bay Co., 13 Wall. 177. The court below adopted the rule of consequential and remote damages as laid down in Transportation Co. v. City of Chicago, 99 U.S. 838, citing Cooley, Const. Lim. 542, and notes. That rule has no application to this case. Since this case was heard it has been decided that depriving a citizen by express prohibition from the use of his property for the sake of the public is a taking of private property for public use. State v. Walruff, 26 Fed. Rep. 178. See, also, for an exhaustive discussion of the right to compensation, Wynehamer v. People, 13 N. Y. 378; Beebe v. State, 6 Ind. 501; Tenement-House Cigar Cases, 98 N. Y. 98.

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

This whole proceeding is but an attempt to administer criminal law in equity. That this is a criminal proceeding see Fisher v. McGirr, 1 Gray, 26; Greene v. Briggs, 1 Curt. 328; Hibbard v. People, 4 Mich. 129; Neitzel v. City of Concordia, 14 Kan. 446; Boyd v. U. S.,  116 U.S. 616 , 6 Sup. Ct. Rep. 524. A legislative enactment cannot make that a nuisance which is not [626-Continued.]

such in fact. To make such a determination is a judicial function. Rights of property cannot be so arbitrarily destroyed or injured. Yates v. Milwaukee, 10 Wall. 497, 504, 505; Hutton v. City of Comden, 39 N. J. Law, 122, 129, 130; Cooley, Const. Lim. (5th Ed.) 110, and notes, 446; Lowry v. Rainwater, 70 Mo. 152; Jeck v. Anderson, 57 Cal. 251. Such a legislative determination would also be void, because, where the fact of injury to public health or morals did not exist, as here, it would be a violation of the absolute right of the citizen to follow such pursuit as he sees fit, provided it be not in fact 'injurious to the community.' People v. Marx, 99 N. Y. 386, 2 N. E. Rep. 29, and cases cited. Such legislation is unconstitutional. Quintini v. City of Bay St. Louis, 1 South. Rep. 625, 628.

Criminal law cannot be administered in a court of equity. Even in cases of public nuisances, where equity has jurisdiction, exceptional and extremely limited as it is, the question of nuisance or not must in cases of doubt be tried by a jury, and the injunction will be granted or not as that fact is decided. 2 Story, Eq. Jur. 923. In practice the jurisdiction is applied almost exclusively to nuisances in the nature of purprestures upon public rights and property. Id. 921-924. But the jurisdiction is never exercised