|1918 KANSAS AND KANSANS||Chapter 54||Part 2|
During the years following, temperance sentiment continued to grow, and agitation went on. There were "liquor spillings" here and there, and various other forms of dissatisfaction were manifested. In 1860 an act was passed by the Territorial Legislature prohibiting the sale, exchange, gift or barter of spiritous liquors or wine to any Indian within the Territory, unless directed by a physician for medical purposes. A heavy penalty was attached to any violation of this law. By this time the Indians had become so adept at evasions and excuses to obtain whiskey, that there was great need of this enactment, and it was but a matter of protection for them.
On October 9, 1861, occurred the first annual meeting of the Kansas State Temperance Society, and the following resolutions were unanimously passed:
Resolved, That we look to the churches of our State for earnest co-operation in the work of Temperance, and we suggest that self-defense will demand total abstinence from intoxicating drinks as a beverage as one test of membership.
Resolved, That we invite and expect all Ministers of the Gospel to actively support our cause, and hope that in every part of the State, they will take immediate steps to organize auxiliary societies.
Resolved, That as temperance men we discountenance the use and sale of intoxicating liquors as a beverage by refusing our patronage to those who engage in their manufacture and sale, especially by refusing to dispose of our products for their manufacture.
The personnel of this convention is interesting, names appearing that had been known to the territory from the beginning. These men were those who had helped in the Free-State movement, who had been members of the Territorial assemblies, and who had been prominent in various other ways. Dr. Amory Hunting was senior vice-president, H. M. Greene was secretary pro tem. Among the new officers elected that year were J. P. Root, H. A. Seaver, Abraham Ellis, who afterwards was known as "Bullet-hole Ellis" on account of a bullet-hole in his forehead which he received at the hands of Quantrill on March 7, 1862. Benoni Wheat, W. W. Updegraff, J. C. Douglas, F. W. Giles, J. C. Burnett, a member of the Wyandotte Constitutional Convention, and Dr. Peter McVicar, all representative citizens and coming from then widely scattered communities.
It was during the Civil War that a precedent for Carrie Nation and her hatchet was established by the women of Mound City. It had been an unwritten law that no saloons should exist in the town. But an enterprising individual, seeing what he thought a good opening on account of a command of soldiers stationed nearby, came into the village and started a bar-room. It of course became an intolerable nuisance to the citizens. Drunken soldiers were a common sight. Practically all of the able-bodied men were in the army, so the women undertook to cope with the situation. One morning a wagon load of women from the direction of Moneka, a village a mile and a half northwest of Mound City, drove into town. They were supplied with hatchets and axes, and were soon joined by a squad of their Mound City sisters. The company marched straight to the open door of the saloon and filed in. Some one made a move to intervene, but was promptly stopped by a revolver in the hands of a bystander, who told him he would shoot if he attempted to interfere with the women. The women drove out the bar-keepers and the loungers, and then deliberately broke every bottle, glass and decanter in sight, and knocked in the heads of every barrel and keg. Having completed their work they filed out and went to their homes, and a saloon was no more in Mound City, for the result was a prohibition that prohibited for many years without assistance of law or courts.
By 1866, so strongly were people becoming imbued with temperance principles that a measurable prohibition of the liquor traffic was being enforced in many of the counties of the state and in several of the cities of the third class. This year saw the enactment of a special law for the benefit of the public schools of the town of Humboldt in Allen County. The money derived from the granting of a dram-shop license was to be turned to the use of the schools in that village. A vicarious good to grow from ill-gotten gains. This plan was also followed in some other localities.
The winter of 1866-1867 found distinguished speakers from abroad working in the temperance cause in Kansas. One of them, Dr. Charles Jewett, of Connecticut, lectured in Topeka during the session of the Legislature. All this was inclined to stimulate legislative activity along the line of temperance, and that winter, 1867, the dram-shop act of 1859 was amended. The change in section one of the law was a distinct advance, providing as it did, that the petition or recommendation presented to the county tribunal for a township license must be signed by a majority of both male and female residents of the township, of twenty-one years of age and over. If the petition was for a town or city it must contain the signatures of a majority of the residents of the ward of twenty-one years of age or over, both male and female, before its presentation to the city council. Section two was amended in the amount of tax levied, "not less than $50 nor more than $500 for every period of twelve months." Section fifteen was repealed. This section exempted all corporate cities of 1,000 or more inhabitants from the operations of the act and gave them the power to regulate licenses and dispose of the proceeds derived therefrom.
There was likewise passed at this session of the Legislature an act prohibiting the sale of intoxicating liquors in the unorganized counties of the state. The penalty for violation of this law was a fine of not less than $100 nor more than $1,000, or confinement in jail for a term of not less than four nor more than twelve months.
By legislative act approved Feb. 18, 1867, the appointment of a commission was authorized to revise and codify the laws. Their report was adopted by the Legislature of 1868. And on March 3, 1868, "An Act to restrain dramshops and taverns and to regulate the sale of intoxicating liquors" was approved. The basis for this law was the law of 1859 amended in 1867, and as will be seen, it differed very little from the law of 1859.
Section 1. Before a dramshop license, tavern license or grocery license shall be granted to any person applying for the same, such person, if applying for a township license, shall present to the tribunal transacting county business a petition or recommendation, signed by a majority of the residents of the township, of twenty-one years of age and over, both male and female, in which such dramshop, tavern, or grocery is to be kept; or if the same is to be kept in any incorporated city or town, then to the city council thereof, a petition signed by a majority of the residents of the ward, of twenty-one years of age and over, both male and female, in which said dramshop, tavern, or grocery is [to be] kept, recommending such person as a fit person to keep the same, and requesting that a license be granted to him for such purpose: Provided, That the corporate authorities of cities of the first and second class may, by ordinance, dispense with the petition mentioned in this section.
Sec. 2. Upon every license granted to a dramshop keeper, and upon every license granted to a tavern keeper or grocery keeper, there shall be levied a tax of not less than one hundred dollars nor more than five hundred dollars for every period of twelve months; the amount of the tax to be determined by the tribunal granting the license; the said tax to be paid into the treasury of the county or city granting such license. And it shall be the duty of the board of county commissioners to appropriate all moneys received by such tribunal for license under this act, for the benefit of the township in which such license was granted; and all incorporated cities shall appropriate the moneys received by such cities for license under this act, as the council thereof may provide.
Sec. 3. Any person, without taking out and having a license as grocer, dramshop keeper or tavern keeper, who shall, directly or indirectly, sell any spirituous, vinous or fermented or other intoxicating liquors, shall be fined in any sum not more than one hundred dollars for each offense; and any person convicted of violating these provisions, shall, for every second or subsequent offense be indicted for a misdemeanor, and fined not less than five hundred dollars and imprisoned in the county jail not more than six months.
Sec. 4. Any person who shall keep open any porter, ale or beer house, grocery, dramshop or tippling house, or shall sell or retail any fermented, distilled or intoxicating liquors on the first day of the week, commonly called Sunday, the fourth of July, or upon any election day, shall, on conviction thereof, be adjudged guilty of a misdemeanor, and fined a sum not less than twenty-five dollars nor more than hundred dollars, or be imprisoned in the county jail not less than ten nor more [than] thirty days, or by both such fine and imprisonment. If such person is licensed as a grocer, dramshop keeper or tavern keeper, he shall, in addition to the above provision, forfeit his license, and shall not again be allowed to obtain a license under the law for the period of two years next after conviction.
Sec. 5. Before any person shall be licensed as a dramshop keeper, or grocer, or tavern keeper under the provisions of this act, he shall execute to the tribunal granting such license a bond to the sum of two thousand dollars, with at least two securities, to be approved by said tribunal, conditioned that he will not keep a disorderly house; that he will not sell or permit to be sold any intoxicating liquors to any minor, without the consent of the guardian of such minor; that he will not keep his dramshop, tavern, or grocery open on Sundays, fourth of July, or any election day, nor will he sell or allow to be sold thereat, on Sunday, fourth of July, or any election day, directly or indirectly, any intoxicating liquors; and, upon said person being convicted of any of the offenses enumerated therein, suit may be brought against said principal and securities, to recover the amount of fine or fines adjudged against him on said conviction, in any court of competent jurisdiction.
Sec. 6. Every person who shall, directly or indirectly, knowingly sell, barter or give away any intoxicating liquor to any person who is in the habit of being intoxicated, after notice shall have been given him by the wife, child, parent, brother or sister of such person, or by any civil officer charged with the care and custody of the poor of the township, city or ward where he resides, that such person is in the habit of being intoxicated, or to any person in a state of intoxication, or to any minor without the consent of his parents or guardian, shall be deemed guilty of a misdemeanor, and, upon conviction thereof shall be punished by fine not less than five nor more than one hundred dollars, or by imprisonment not less than ten nor more than sixty days, or by both such fine and imprisonment.
Sec. 7. All places where intoxicating liquors are sold, in violation of this act, shall be taken, held and declared to be common nuisances; and all rooms, taverns, eating houses, bazaars, restaurants, groceries, coffee houses, cellars or other places of public resort, where intoxicating liquors are sold in violation of this act, shall be shut up and abated as public nuisances.
Sec. 8. It shall be unlawful for any person to get intoxicated; and every person found in a state of intoxication shall, upon conviction thereof, before any justice of the peace, be fined the sum of five dollars.
Sec. 9. Every person who shall, by sale, barter or gift of intoxicating liquors, cause the intoxication of any other person, such person or persons shall be liable for and compelled to pay a reasonable compensation to any person who may take charge of and provide for such intoxicated person, and five dollars per day in addition thereto for every day such intoxicated person shall be kept in consequence of such intoxication; which sum may be recovered by a civil action before any court having jurisdiction.
Sec. 10. Every wife, child, parent, guardian, employer or other person, who shall be injured in person or property or means of support, by any intoxicated person, or in consequence of intoxication, habitual or otherwise, of any person, such wife, child, parent, guardian, employer or other person shall have a right of action in his or her own name against any person who shall, by selling, bartering or giving intoxicating liquors, have caused the intoxication of such person, for all damages actually sustained, as well as exemplary damages; and a married woman shall have the right to bring suits, prosecute and control the same and the amount recovered, the same as if unmarried; and all damages recovered by a minor under this act shall be paid either to such minor or to his or her parents, guardian or next friend, as the court shall direct; and all suits for damages, under this act, shall be by civil action in any of the courts of this state having jurisdiction thereof.
Sec. 12. For all the fines and costs assessed against any person or persons for any violation of this act, the real estate and personal property of such person and persons, of every kind, not exempt, shall be liable for the payment thereof, and such fines and costs shall be a lien upon such real estate until paid; and, in case any person or persons shall rent or lease any building or premises, and knowingly suffer the same to be used and occupied for the sale of intoxicating liquors, contrary to this act, such building and premises, so leased and occupied, shall be held liable for and may be sold to pay all fines and costs assessed against the person occupying such building or premises, for any violation of this act.
Sec. 13. In all prosecutions under this act, by indictment or otherwise, it shall not be necessary to state the kind of liquors sold, but shall be necessary to describe the place where sold; and for any violation of the third or fourth sections, it shall not be necessary to state the name of any person to whom sold; and, in all cases, the person or persons to whom intoxicating liquors shall be sold, in violation of this act, shall be competent as witnesses to prove such fact or any other tending thereto.
Until 1870 the temperance movement in Kansas had no real cohesion, but from that date to the time of the vote on the prohibitory amendment a continued and united effort was made to bring about a satisfactory change in the dramshop law. By 1870 temperance was a topic of nationwide discussion. The church, always a vital power in the temperance movement, was holding revivals throughout the country. The Murphy or Blue Ribbon Workers were increasing in numbers. And all this was leading up to the "Woman's Crusade" inaugurated at Hillsboro, Ohio, in 1873, when after a temperance revival the women of the town undertook by a crusade of prayer to drive the saloons from their city.
Prior to this time, probably the most potent factor in the temperance movement in Kansas had been the Independent Order of Good Templars, a national temperance society, organized at Utica, N. Y., in 1851, and an outgrowth of the Sons of Temperance which had been organized some ten years previous. Article two of its constitution was the pledge that "No member shall make, buy, sell or use, as a beverage, any spiritous or malt liquors, wine or cider, and shall discountenance the manufacture and sale thereof, in all proper ways." In 1858 Tecumseh had a flourishing lodge of Good Templars. Lawrence, too, was an early stronghold. On September 26, 1860, a Grand Lodge was organized at Leavenworth by delegates from ten subordinate lodges over the territory. At one time and another previous to the organization of the Grand Lodge there had been thirty-four subordinate lodges in Kansas.
The Grand Lodge proceedings of 1866 speak of an awakened interest in temperance throughout the land. In New York a National Temperance Society had been organized issuing publications and sending out lecturers. And some discussion was evoked as to the propriety of making the Kansas Grand Lodge an auxiliary society to the National Temperance association that they might gain thereby the advantage of the "powerful advocacy of its press and the influence flowing from its publishing house." For some years the Good Templars in Kansas had deprecated the lack of temperance literature and were therefore anxious to seize opportunities that offered the publicity of the press, and gave them a channel for their propaganda.
In 1871 a member of the Good Templars brought to the Grand Lodge the suggestion that some action be taken to secure an amendment to the laws on the suppression of the liquor traffic, "the laws, as they now stand, being practically a dead letter." He asked that petitions be circulated and presented to the Legislature at its next session praying for "a law which shall better suppress the sale of intoxicating drinks." The Good Templars had by this time increased to 173 lodges in the state with a total membership of some 3,000 people, and had, of course, a corresponding influence in public affairs.
The effect of their work developed in the legislative session of 1872 when Dr. James H. Whitford of Garnett introduced, on January 11, House bill No. 7, "An Act to provide against the evils resulting from the sale of intoxicating liquors in the State of Kansas." The temperance people were fortunate in securing the ear of a man of Dr. Whitford's type. He understood legislative procedure, having served in the House of Representatives in 1870, and was a man of large and varied experience. He was born in Circleville, Ohio, in 1822, and as a boy helped his father in a wool-carding mill. After reaching manhood he was for a time engaged in the contracting and construction of public works in both Ohio and Virginia. In 1852 he went to California, where he mined gold for two years. Returning to his native state he began the study of medicine in 1856, attending Starling Medical College, and graduated in 1858. He practiced at Royalton, Ohio, until the beginning of the Civil War, and in August, 1861, was appointed assistant surgeon to the 30th Ohio Infantry, and commissioned surgeon in March, 1862, which position he filled until July 29, 1865. After the battle of Antietam he acted as Brigade surgeon, and after Chickamauga as Medical Director of the Fourth Division, Fourteenth Army Corps. For some months he served as Medical Director of the Wheeling district. After the close of the war he practiced at Circleville for a short time, moving to Garnett, Kansas, in 1867, where he continued the practice of his profession.
Unfortunately no copy of House Bill No. 7, nor its substitute, has been preserved. We can only judge it by its title, by newspaper notices, and by the antagonism created against it among the liquor-dealing element in the state. The bill was introduced, as has been noted early in the session, and on account of the opposition dragged a weary length through the House. Dr. Whitford had been made chairman of the special committee on bills relating to the sale of intoxicating liquors. With three others on this subject, House bill No. 7 was referred to his committee. On January 25, it was reported back to the House without amendment and with the recommendation that it pass. Later it was returned to the committee for further consideration and on Feb. 6, they reported a substitute to the House. A minority report was made on Feb. 8, and here follows:
MR. SPEAKER: The undersigned, a minority of your Committee to whom was referred all bills and petitions relating to the sale of intoxicating drinks, unable to agree with the majority of said Committee in all the details of their report, beg leave to submit the following report:
By the provisions of the bill recommended by the Committee but one grade of license is to be granted, and that embracing the sale of all kinds of distilled wines and fermented liquors, thus throwing the whole of the traffic in the milder beverages, such as wines and fermented liquors into the hands of the licensed whisky shops; especially will this be the case under the heavy license and bonds required to obtain a license. We think this policy unwise, because many of our citizens, especially those of foreign birth, who are in the habit of using these milder beverages seldom or never indulge in the more hurtful and intoxicating liquors, and they would not desire to be obliged to go into and patronize the whisky saloon, in order to get a glass of wine or of beer. Instead of giving a monopoly of the sale of all these beverages to the whisky saloons virtually, prohibiting wine and beer houses, we would reverse the rule and authorize the selling of wines and fermented liquors manufactured within this State, on mild and equitable terms, holding, of course, the licensed party to a strict responsibility for any violation or abuse of his privilege, while we demanded of the dealer in distilled, drugged and adulterated liquors heavier license and severer penalties.
Provided, That for the exclusive sale of wines and fermented liquors, manufactured within this State, the bond for license shall be in the sum of five hundred dollars, and conditioned that he will only sell wines and fermented liquors manufactured within this State, and
Provided further, That nothing herein contained shall be construed to prevent the manufacture of wine and fermented liquors within the State from selling at wholesale in the usual way, without having obtained a license under the provisions of this act.
From accounts drawn from several newspapers it appears that Section one of this bill provided that a bond of $3,000 must be given as security before a license could be obtained. Section two provided that it should be unlawful to sell to minors, to intoxicated persons or to those in the habit of getting intoxicated. Section four provided that every person who should by the sale of intoxicating liquor cause intoxication of any other persons should be liable for and should be compelled to pay a reasonable compensation for the care of such intoxicated person. Section five provided for the right of action against the seller of intoxicants in the event of injury in person, property or support. The remaining sections defined fines and penalties for violation of the law and, were not included in the account. On February 13th the bill came up for final consideration and passed the House by a vote of 57 yeas to 34 nays. On the 14th it was messaged to the Senate and there was referred to a special committee who eventually reported it back to the Senate with some amendments. It was re-committed for further consideration, and later, the Senate, in Committee of the Whole, moved that the special committee be instructed to report as soon as the bill was printed. But since this motion was had only four days prior to the adjournment of the Legislature, and since no action was taken on it, it is but natural to believe that the bill died in the hands of the committee.
The petitions submitted to the Legislature asking for favorable action on this bill were surprisingly numerous and proved the activity of the Independent Order of Good Templars. Nearly fifty petitions were presented to the House and some fifteen to the Senate. A conservative estimate of the number of signatures would place it at 6,000 names. Seven remonstrances against any change in the laws governing the liquor traffic were submitted, aggregating some 3,000 signatures.
The newspapers took an active part in this campaign, those of Leavenworth and Atchison were naturally strongly opposed to any change in the liquor laws. The Leavenworth Times of January 28th had this to say:
In Massachusetts prohibitory laws have proved failures, and the use of liquors have constantly increased since the law was passed. Good sense ought to govern, and we think will. If so, our legislature will let well enough alone, and we will move along smoothly.
The Atchison Weekly Champion of February 3rd had a long article on "The Liquor Law," from which the following is quoted:
|Every year for at least ten years back, there have been members of the legislature who have insisted on tinkering away at the liquor laws. Occasionally they have made changes, and in one or two instances have submitted entirely new acts for the old acts. The legislature of this winter is, as usual, discussing the subject of the liquor law.|
Then follows an argument on the impossibility of a law, unsustained by public sentiment, becoming effective. The same argument that has been used since time immemorial against any legislation tending to raise the moral standard of a people. The article closes with this paragraph:
|And hence we go back to the first principles of legislation and urge our legislators to remember that laws not sustained by the popular will are always, in this country, inoperative, inexpedient, impractical and useless. It is well to let well enough alone.|
Many open letters were published in the papers both for and against the proposed liquor law, but the policy of the larger newspapers was undoubtedly against so stringent a measure, and inclined strongly to the "let well enough alone" theory.
That the liquor dealers took an active hand in the campaign is shown by the following newspaper extracts:
The object was to effect an organization for the purpose of defeating any movement for changing the laws of the state in relation to the sale of liquor, and to meet and defeat temperance work in general.
What are we coming to is a problem worthy the serious attention of all who have the welfare of the community at heart. That the labors of the friends of temperance and sobriety, and of implanting principles of industry and morality in the characters of the youth of our land, have a work to do, the magnitude of which is daily increasing, should be recognized as a startling reality. Topeka State Record, Jan. 24, 1872.
From the Leavenworth Times we find that the "Anti-Liquor Law Convention came off according to plans, and that its meeting was considered successful. There were present 119 delegates from over the state, resolutions were passed, and the convention adjourned subject to call. The resolutions were to the effect that all restrictions necessary were already imposed by the dramshop act of 1868. They recited that the liquor dealers were among the heaviest tax payers in the state. That they were a most respectable body of business men "desirous of obeying every just law, and the legislation on so personal an affair as what a man should eat and drink was contrary to the constitution of the United States and all liberty." They further stated that experience had proven such stringent laws ineffectual and that the convention should "heartily unite against the movement now on foot to crush our social liberties by fanatics. And that further trust be refused any party that upholds the principles enunciated in the temperance law now before the legislature." Copies of these resolutions were sent to the Speaker of the House and to the President of the Senate to be presented to the Legislature as a protest against, the law.
A resolution looking to a permanent organization of the liquor dealers was also passed.
The activity of the temperance people, and they were exceedingly busy during the legislative session, is shown through the many announcements of temperance meetings and in fact that the State Temperance Union held its annual meeting in Topeka while the Legislature was in session. An urgent invitation was extended to the Legislature to attend the sessions of the Temperance Union.
How this invitation was received is illustrated by an extract from the Leavenworth Times of January 18.
Yesterday a letter was sent to a prominent brewer of Leavenworth, stating that if he wanted to defeat the bill regulating the sale of intoxicating liquors, he would have to send up some beer, and this afternoon (Jan. 16), when the legislature received an invitation to attend a session of the State Temperance Convention, the announcement was also received that five kegs of beer had arrived from Leavenworth. So much for a practical joke.
On motion of Gen. Strickler the representatives of the Times, Commercial and Call were included in the invitation to the Temperance Convention, and the anti-Temperance men, not to be thwarted by anything of this kind, included the reporters in the invitation to the beer banquet. The Congressional aspirants, who were obliged to attend both "blowouts" were somewhat exhausted and hope to have more harmony among their constituents hereafter.
Of a meeting on the evening of February 5th the newspaper says that the temperance men rallied in force at representative hall. "Not only were the cold-water men there but the cold-water girls as well. On a whole it was a temperance victory, and an ice-water ovation. Speeches were made, all for the bill." That the bill was already lost was a foregone conclusion, and probably none knew it better than the "cold water men," but public sentiment was being educated.
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