1918 KANSAS AND KANSANS Chapter 54 Part 1

CHAPTER LIV

PROHIBITION IN KANSAS

By CLARA FRANCIS, LIBRARIAN, KANSAS STATE HISTORICAL SOCIETY

FIRST LIQUOR LEGISLATION

Prohibition in Kansas was no sudden uprising of a people against the liquor traffic; no movement of a few fanatics, long haired men and short haired women; nor should it be attributed to a puritanical desire to legislate morals into a state. Rather it was a crystallization of the slowly developed sentiment of a majority of the people in Kansas into an expression on the dramshop laws under which the liquor traffic was operated.

That Kansas should have been the first state to incorporate a prohibitory amendment in her constitution is not unique. She was zealously striving for a better liquor law; she had the benefit of the experience of other states. And furthermore she was young; she had no traditions to violate and few precedents to follow. With her the times were plastic. One of her enemies was the liquor traffic, and with a vision far beyond her years she started out to destroy it.

Between the passage of the prohibitory amendment and the vote upon it, nearly two years elapsed. And they were two years of strife, each faction contending vigorously for its own belief. There was not a household in which prohibition and anti-prohibition were not discussed; there was not a pulpit from which the principles of temperance were not heard; there was not a platform whereon the advocates of one side or the other had not expounded its views. The newspapers argued the question pro and con, sometimes with extreme bitterness, and sometimes with tranquil earnestness and justice, desiring only the "greatest good to the greatest number."

It was the people who were to decide this question, and it was the people who were thinking deeply upon it. The vote was the final word of the people of the whole state, not of any one locality, nor of any one nativity, for it came from a population that had been drawn from nearly every quarter of the United States. And to attribute the result to any one faction or set of people is to make a great mistake. Public opinion is easily traced and to follow it on the temperance movement in Kansas needs no special insight. But to understand its growth one should begin at the very beginning.

The dram-shop law of 1855, taken bodily from the Missouri Statutes, was a local option law, and a reasonably good one even though one of the execrated "Bogus Laws." Because it was the first liquor law, effective in Kansas, through the action of the Territorial Legislature, and because all further action in restraint of dram-shops was based upon it, it is here given in full:

AN ACT to restrain drain shops and taverns, and to regulate the sale of intoxicating liquors

Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas, as follows:

Section 1. A special election is hereby ordered to be held on the first Monday of October, in the year of 1855, and on the first Monday of October every two years thereafter, in each municipal township in every county in the territory, and in each incorporated city or town in the territory, to take the vote of the people upon the question whether dram shops and tavern licenses shall be issued in the said township, incorporated city or town, for the next two years thereafter.

Sec. 2. At said election polls shall be opened at the usual place of voting in each township, incorporated city, or town, which shall be headed as follows, respectively: "In favor of dram shop," "Against dram shop;" and if the voting shall be by ballot, ballots shall be inscribed as above, respectively

Sec. 3. At such election all the qualified voters of the township, or of any incorporated city or town, shall be allowed to vote in such township, or incorporated city or town, and not elsewhere.

Sec. 4. Upon election being held, the tribunal transacting county business for the several counties in the territory shall examine, ascertain and adjudge in what township, incorporated city or town, a majority of all the qualified voters of said township, incorporated city, or town, have voted affirmatively in favor of dram shops in said township, incorporated city, or town, and thereupon, the tribunal transacting county business in the respective counties in the territory may, during the next ensuing two years, grant license to dram shops, tavern keepers and grocers, to such persons and under such restrictions as are hereinafter designated and provided.

Sec. 5. For and during the two years next ensuing the said election, no dram shop or tavern license shall he granted to any person within any township, incorporated city, or town, unless a majority of the votes polled at said election shall declare in favor of granting said license.

Sec. 6. Before a dram shop license, tavern license, or grocer license shall be granted to any person applying for the same, such person shall present to the tribunal transacting county business a petition or recommendation signed by a majority of the householders of the township; if in the county in which such dram shop, tavern or grocery is to be kept, or if the same is to be kept in an incorporated city or town, a petition signed by a majority of the householders of the block or square in which said dram shop or 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.

Sec. 7. The city authorities of an incorporated town in this territory, authorized by its charter to grant dram shop or tavern license or grocers' license, shall only grant such license to persons who have previously secured a similar license from the tribunal transacting county business for the county in which said city or town is situated.

Sec. 8. Upon every license granted to a dram shop keeper and upon any license granted to a tavern keeper or grocer, there shall be levied a tax of not less than ten dollars nor more than five hundred dollars, for county purposes, for every period of twelve months, the amount of tax to be determined by the tribunal granting the license.

Sec. 9. If any person who, without taking out and having a license as grocer, dram shop keeper or tavern keeper, shall, directly or indirectly, sell any spirituous, vinous, or fermented or other intoxicating liquors, shall be fined in any sum not less than one hundred dollars for each offence; and any person convicted of violating this provision shall, for every second or subsequent offence, be fined in a sum not less than the above named, and shall in addition thereto, be imprisoned in the county jail not less than five nor more than thirty days.

Sec. 10. Any person, having license as aforesaid, who shall sell any intoxicating liquor to any slave without the consent of the master, owner or overseer of such slave, shall be deemed guilty of a misdemeanor, and shall be fined in a sum not less than one hundred dollars nor more than five hundred dollars, and imprisonment in the county jail not less than ten nor more than thirty days, and shall, upon conviction, forfeit his license; and no license as grocer, dram shop keeper or tavern keeper shall again be granted to said person during the two years ensuing the said conviction.

Sec. 11. Any person who shall keep open any ale, beer or porter house, grocery, dram shop or tippling house, or shall sell or retail any fermented, distilled or other intoxicating liquors, on the first day of the week, commonly called Sunday, shall on conviction thereof, be adjudged guilty of misdemeanor, and fined in a sum not less than one hundred dollars nor more than five hundred dollars, and shall be imprisoned in the county jail not less than ten days nor more than thirty days; if such person is licensed as grocer, dram shop keeper, or tavern keeper, he shall, in addition to the above provisions, forfeit said license, and shall not again be allowed to obtain a license under the law for a period of two years next after conviction.

Sec. 12. Before any person shall be licensed as a dram shop keeper or grocer, or tavern keeper, under the provisions of this act, he shall execute to the tribunal transacting county business, in favor of the county where he appeals for a license, a bond in the sum of two thousand dollars, with at least two securities, to be approved by the court, conditioned that he will not keep a disorderly house; that he will not sell, or permit to be sold, any intoxicating liquors to any slave without the consent of the master, owner or overseer of such slave; that he will not keep his dram shop, tavern or grocery open on Sundays; nor will he sell, allow to be sold, thereat, on Sunday, directly or indirectly, any intoxicating liquor: and upon said person being convicted of any of the offences enumerated therein, suit may be brought against said principal and securities, to recover the amount of the fine or fines adjudged against him on said conviction, in any court of competent jurisdiction.

This act to take effect and be in force from and after its passage.

This law was in force for four years, or until 1859, when the general revision did away with these so-called "Bogus Laws." Some scattered communities, however, had not been content with its provisions. Desiring more stringent measures, they had sought to accomplish prohibition by organizing towns wherein the sale of liquor was prohibited, and where a clause inserted in the deeds revoked the title should liquor ever be sold in any building erected on the property. Emporia was one of these towns, Topeka and Baldwin were others.

In casting about for the first glimmerings of prohibition in Kansas there arises for consideration the social movement involved in various lodges and secret societies. During the period between 1855 and 1859 there were such orders organized through the territory and most of them embodied temperance pledges in their constitutions. These lodges were often the only social outlet of remote groups of people, therefore the membership was large and the interest keen. Essentially, their share in fostering temperance sentiment was no inconsiderable one.

THE TOPEKA MOVEMENT

The Topeka Legislature, authorized by the Topeka constitution, had temperance brought to its notice immediately upon its assembling. This was the Free-State movement which so long stood in opposition to the cause of the general Government, and which represented the real sentiment of the people of Kansas. The Legislature convened on March 4, 1856, and the next day the House was asked for the use of Constitutional Hall, its place of meeting, for a temperance meeting. This request was granted. On the 11th the following memorial on the subject of prohibition was presented to the House by John Brown, Jr., one of its members. This memorial came from fifty-six women of Topeka, and on motion of Mr. Tuton was accepted, and on motion of Mr. William' Crosby was referred to the committee on "Vice and Immorality."

To the Honourable the Senate and the House of Representatives of the State of Kansas:

The undersigned your memoralists, citizens of Kansas, and the wives and daughters of your constituents beg leave respectfully to present to your honourable body that in the opinion of your memoralists the public interests require that suitable laws be immediately passed to prevent the manufacture and importation for sale or use as a beverage within the State of Kansas of any distilled or malt liquors.

It is not necessary for us in view of your own observations and the United testimony of all experience to enter into a minute discussion of the evils resulting to all classes of society from the use of intoxicating drinks as a beverage. Ever since the first manufacture it has been the aim of legislators to pass restraining laws, to prevent its use each year in the older states of the union new enactments have been found necessary until the Statute books have become literally loaded down with provisions on this subject.

It was not until within a few years that the true method was devised for its eradication and then those imaginary rights long established and entrenched behind the bulwark of law, and even of State constitutions were found in the way of an effectual remedy. Not so in Kansas here every thing is new, and those privileges acquired by law and long established customs do not exist. No one can point to the precedent of several general generations to sustain him in doing that which he frankly admits to he a wrong upon Society. Here in Kansas we are laying the foundation of a new society and you as the first law making power recognized by the people should examine with the greatest circumspection the evils existing in older States and by wise and judicious enactments protect the moral and social interests of the community. You will not [attempt] to pass by or neglect the enacting of stringent laws for the sale of lottery tickets the selling of unwholsome food, the adulterating of flour &c.

How then can you fail to give attention to a subject which improverishes a whole nation brings wretchedness and misery in its train, fills the land with mourning and sends the widow's wail and orphans sob to heaven for relief.

Into the plastic material which you have the power to mould into form, and clothe with lineaments and breath and in view of the great suffering entailed on us the females of the State who are unable by persuasion and kindness to influence those we love in the channel which leads to temperance prosperity and happiness and in view of their oft repeated declarations that if the destroyer could be removed from their sight and reach they would abstain from its use we therefore urgently but respectfully pray you to take our memorial into consideration and enact such laws in consonance with its spirit which your wisdom may suggest.

(Signed) MRS. L. M. MOORE, and 55 others, The ladies of Topeka.

A second memorial was presented by Mr. Brown on March 12th, from ninety women of Lawrence, "praying the passage of stringent prohibitory laws, in relation to the sale and use of intoxicating liquors." This memorial was likewise referred to the committee on Vice and Immorality. No further action was taken on these petitions, for on March 15th the Legislature took a recess until July 4th, when it convened only to be dispersed immediately after roll call, by Col. Sumner and his command on the order of the Government of the United States.

Women, however, were not the only early temperance workers, nor was all the strength of the movement found in petitions. There were men who were willing to go some lengths to keep the liquor traffic in bounds. In the spring of 1856 a Missourian opened a saloon in Big Springs. The few inhabitants protested in vain. He continued his business apparently secure in the protection of his friends. Finally, failing to dislodge him by more peaceful means, forty men went to his establishment, took out three barrels of whiskey and burned them. The agitation on the question of temperance had had its effect on this little community of Douglas county. From this time on the destruction of liquor by an exasperated community was not of infrequent occurrence. In this instance the man's nativity doubtless militated strongly against him.

"Topeka, a little later, was likewise the scene of a whisky riot." in spite of a provision made by the Topeka Association against the sale of intoxicating liquors, saloons had opened in the town, but had been quickly put out of business. In the spring of 1857 a liquor establishment of some pretensions was opened on Kansas Avenue. Because of the capital invested in stock and equipment a good deal of uneasiness was felt, and there was some hesitation manifested as to the wisdom of attempting to deal with it as its forerunners had been dealt with. However an altercation brought matters to a climax. One of the patrons in a half drunken rage began the smashing. No sooner had the sound of the fray traveled through the open windows and doors than assistance rallied to him. Bottles and glasses went through the windows, while kegs and barrels were rolled into the street, the heads knocked in and the contents emptied into the gutters.

When everything had been destroyed the raiders went on to another place where beer was known to be stored and poured that into the street. Uncontrollably excited they pursued their quest through the town, visiting every place where the slightest suspicion could rest. Blood was spilled as well as liquor, and lawsuits grew out of this wholesale destruction. It was said that over $1,500 worth of property was smashed and poured out.

THE ACT OF 1859

Upon the revision of the laws in 1859 the dram shop law was much changed and became more difficult of enforcement as will be noted by a careful reading of its provisions.

AN ACT to restrain Dram Shops and Taverns, and to regulate the sale of Intoxicating Liquors

Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas:

Section 1. That, before a dram shop 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 of recommendation, signed by a majority of the householders; of the township or the county in which such dram shop, tavern or grocery is to be kept, or, if the same is to be kept in an incorporated city or town, then to the city council thereof, a petition, signed by a majority of the householders of the ward in which said dram shop, or tavern, or grocery is to be kept, recommending such person a fit person to keep the same, and requesting that a license be granted to him for such purpose.

Sec. 2. That upon every license granted to a dram shop keeper, and upon every license granted to a tavern keeper or grocery, there shall be levied a tax of not less than fifty dollars nor more than five hundred dollars, for every period of twelve months, the amount of 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 supervisors to appropriate all moneys received for license under this act for the benefit of the township in which such license was granted.

Sec. 3. That any person, without taking out and having a license as grocer, dram shop keeper, or tavern keeper, who shall, directly or indirectly, sell any spiritous, vinous or fermented, or other intoxicating liquors, shall be fined in any sum not more than one hundred dollars for each offence, and any person convicted of violating these provisions shall, for every second or subsequent offence, be fined a sum not more than the above named, or may 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. That any person who shall keep open any porter, ale, or beer house, grocery, dram shop 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 an 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 one hundred dollars, and be imprisoned in the county jail not less than ten nor more than thirty days. If such person is licensed as a grocer, dram shop keeper, or tavern keeper, he shall, in addition to the above provisions, 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. That, before any person shall be licensed as a dram shop keeper, or grocer, or tavern keeper, under the provisions of this act, he shall execute, to the tribunal granting such license, a bond, in 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 dram shop, 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 offences enumerated therein, suit may be brought against said principal and securities, to recover the amount of the fine or fines adjudged against him on said conviction, in any court of competent jurisdiction.

Sec. 6. That it shall be unlawful for any person or persons, by agent or otherwise, to sell intoxicating liquors to persons intoxicated or who are in the habit of getting intoxicated, or any married man, against the known wishes of his wife.

Sec. 7. That 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. That 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. That every person who shall, by the sale 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 one dollar 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. That 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 hand against any person who shall by selling 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 right to bring suits, prosecute and control the same and the amount recovered, the same as if a feme sole, 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 Territory having jurisdiction thereof.

Sec. 11. That the giving away of intoxicating liquors or other shifts or devices, to evade the provisions of this act, shall be deemed and held to be an unlawful selling within the provisions of this act.

Sec. 12. That for all fines and costs assessed against any person or persons for any violation of this act, the real estate and personal property of such person or persons of every kind, without exemption, 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 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 fourth or fifth sections, it shall not be necessary to state the names 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 witnesses, to prove such fact or any other tending thereto.

Sec. 14. Justices of the peace shall have jurisdiction and take cognizance of offences under this act, and shall have authority to impose fines not to exceed one hundred dollars, or to bind over for appearance at the proper court, under the act concerning criminal procedure.

Sec. 15. All corporated cities, containing one thousand inhabitants or more, shall be entirely exempt from the operations of this act, and such cities shall have full power to regulate licenses for all purposes and dispose of the proceeds thereof.

Sec. 16. This act shall take effect and be in force from and after its passage.

Approved February 11, 1859.

The exemption of all incorporated towns of 1,000 or more inhabitants did not meet with unqualified approval, and other provisions of the law failed to entirely satisfy the temperance people. There was a strong sentiment among them for a law so stringent that prohibition of the liquor traffic would result.

THE WYANDOTTE CONSTITUTIONAL CONVENTION

In the meantime the constitutional convention was soon to meet at Wyandotte and some expression of the already strong temperance sentiment in the territory was looked for there. Without disappointment it came on July 11, 1859, when Mr. John Ritchey, a delegate from Shawnee county, introduced the following resolution:

Resolved, That the constitution of the State of Kansas shall confer power on the legislature, to prohibit the introduction, manufacture, or sale of spiritous liquors within the State.

On motion of Mr. Blunt this resolution was referred to the Committee on Legislative Department. On July 23 the matter came up for discussion when Mr. H. D. Preston, of Burlingame, offered the following section:

Sec. __. The legislature shall have power to regulate or prohibit the sale of alcoholic liquors, except for mechanical and medicinal purposes.

A motion was made to table the section, but it failed to carry, and a warm discussion followed. Solon O. Thacher, of Lawrence, was opposed to the section. He held that it would be a grievous mistake to load special legislation on the constitution, believing that it would fend to defeat it before the people. And that if eventually a prohibitory law was demanded by the people the legislature could, and should, pass such an act but that enemies of the constitution could be only too glad to seize upon a provision of that kind. He closed his argument with an appeal:

Don't let us jeopardize the interests of our party by bringing in questions of this kind. In New York it was sought to be inserted there, but it was opposed by the strongest temperance men in the State, upon the ground that it was not in the issues at all. The great issue with us being freedom or slavery, let us settle this question. I beg of you not to incorporate a handle for our enemies to employ against us. Leave it to the Legislature, and let us pass only upon our legitimate business.

One of those strongly in favor of the sections was William Hutchinson, the newspaper correspondent, and a delegate to the convention from Shawnee county. Among other things he said:

I believe there is some necessity for the passage of this section. If it were true that we are to struggle forever for the freedom of Kansas; if it were true that the one question of slavery was to be kept forever alive in Kansas, then I would like to see nothing but what would bring "nigger" before our eyes; but I believe there are questions of the utmost importance which will come before us, as well as that question. If we are looking to the future moral as well as political well being of Kansas, let us throw a guard around it, while the power is in our hands. It can do no harm. I doubt whether there is a man in the whole state who will vote against the constitution in consequence of a provision of that kind.

Another delegate opposed to the section was J. G. Blunt, of Leavenworth. He objected to voting down the constitution by loading it with extraneous issues, and maintained that the history of the temperance cause in the United States had proved that little good ever resulted from attempting to legislate upon it in this way. "The legislature has jurisdiction over this matter, and has authority to pass stringent laws upon the subject." Mr. J. M. Winchell, the president of the convention, was likewise opposed to it, believing the section to be unnecessary.

Mr. Preston objected to Mr. Thacher's arguments and in defense of the section said:

I want to know if we have not several articles in substance like this, already in the constitution, saying the legislature shall have power to do this thing and that thing? If the legislature has power to act without special constitutional enactment, why not say that they shall have power to do what they please? If the legislature should ever want to enact a liquor law, I suggest that there should not be anything in their way.

Mr. Stinson of Leavenworth made the statement "that in Maine, where there is no constitutional provision, a law has been declared constitutional more stringent than any you will get here."

After some further argument Mr. Preston withdrew the section, and the discussion of the subject of temperance legislation was dropped in the Wyandotte Constitutional Convention.

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A Standard History of Kansas and Kansans, written and compiled by William E. Connelley, transcribed by Carolyn Ward, 2000.

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