Autobiography of Charles Clinton Nourse / Prepared for use of Members of the Family

by Charles Clinton Nourse

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.