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

by Charles Clinton Nourse

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."