Chapter IX: Temperance and Prohibition (2)

In October, 1885, Mr. Loughran, at a meeting of the county
alliance, offered a resolution instructing its officers to commence
suit against the International Distillery, _provided evidence
could be found against it_. I was not present at the meeting,
and on motion of Mr. Lee the resolution was referred to the
judiciary committee.

Upon inquiry of Mr. Harvey, the then president, and Mr. Littleton,
the secretary, I found that neither of those officers had any
information upon which a suit could be predicated, and neither
would advise a prosecution. Mr. Loughran nor any one else ever
approached the committee on the subject, or furnished the alliance
any evidence.

The statement has been made that I was at this time the attorney
for Mr. Kidd. This is wholly untrue. It is true, however, that
early in 1884 the firm of Nourse & Kauffman was called upon by Mr.
Kidd, for a consultation with the attorneys, Messrs. Lehmann &
Park, in regard to his business affairs, and upon the matter of the
construction of the act of 1884, Mr. Kidd advising us at that time
that he desired strictly to observe the law in the manufacture of
alcohol. We gave him our opinion at the time, and he paid our firm
a fee of fifty dollars. I have had no business connection with Mr.
Kidd or the International Distillery since that time, until my
employment in this case, after the decision of Judge Conrad a few
weeks ago.

Early in the year 1886 the secretary of the Polk county alliance
reported that the funds of the organization and the available
subscriptions were exhausted, and that liabilities had been
incurred that we were unable to meet. Several unsuccessful efforts
to have the subscriptions to our funds renewed were made. Mr.
Harvey, on account of other engagements, declined a re-election as
president of the county alliance in June, 1886. It seemed
impossible to get a responsible person to accept of the position.
Under these circumstances I. E. Pearson succeeded to that office.
Though a gentleman of elegant leisure, he has never, since his
election, been able, by his influence or exertions, to put a dollar
into the treasury of the alliance.

He has, however, been operating quite extensively on "his own
hook," as he says. His principal enterprise, apart from his present
suit against Mr. Kidd, has been to watch the incoming of the
monthly reports that the law requires the druggist to make to the
county auditor, and whenever, by any misadventure, their reports
have been delayed a few days beyond the time fixed by the law,
Pearson has brought suit against them for the one hundred dollars
penalty provided by the statute, and then compromised for the
largest amount he could get out of the defendant. In this way he
has made hundreds of dollars for himself and has been able to
support such an improved style of personal appearance that it has
attracted public attention and newspaper comment.

In this new _role_ of "affidavit maker" to the _State Register_ he
has already attained distinction. Whether this enterprise will
prove a financial success I do not know, as I am not advised as to
the terms of the new partnership. It is not yet known whether
Pearson has taken the _State Register_ into partnership, or
whether the _Register_ has taken in Pearson.

It has always been my fortune in life to antagonize men of this
stamp. If I have not as many friends as some men of less positive
opinions, I have the consolation to know that I have reason to be
proud of the character of my enemies.

By what means he has induced eminent counsel, backed by the active
influence of the _Iowa State Register_, to prosecute this case
against Mr. Kidd, remains a mystery. To the oft-repeated inquiries
of members of the alliance for information on this subject his
answers have been evasive and entirely unsatisfactory. Judge Cole
in his letter to Mr. Kidd mentions that certain members of the
export association were being damaged "to the extent of thousands
of dollars daily" by the course pursued by the International
Distillery. "Thousands of dollars daily" is a large amount of
money, and a very grave apprehension exists in the minds of many of
the temperance men of this community that these "certain other
individuals" are not idle spectators in this contest. When or how
Judge Cole and Mr. Runnells or the _Iowa State Register_ came
into the case I do not know--I only know that they "got there."

"... he has no wings at all,
But he gets there all the same."

Judge Cole and Mr. Runnells are also defending Hurlbut, Hess & Co.,
and the six thousand dollars of intoxicating liquors condemned by
the jury in that case. They are also attorneys for Rowe, the man
who shot down Constable Logan. No one, I believe, has questioned
their right to act as counsel for the defense in these matters or
even suggested the impropriety of their employment. I certainly
would not do so. The _Iowa State Register_ has besought the
public to suspend any judgment as to the guilt or innocence of
Rowe, but to await the judicial investigation of the case. This is
certainly commendable forbearance, but why the same spirit of fair
play should not be manifested toward Mr. Kidd pending the judicial
determination of his rights, I cannot understand. Does it make any
difference because Mr. Runnells is defending in the one case and
prosecuting in the other? Surely a man who has invested two hundred
and fifty thousand dollars in manufacturing in our city, by the
advice and encouragement of the _Register_, is entitled to as
much consideration as the man who takes the life of a public
officer whilst in the discharge of an official duty. The statement
that the State Temperance Alliance has ever favored or endorsed the
prosecution of Mr. Kidd is wholly without foundation.

I have now answered very fully all of the inquiries in your letter
save, perhaps, the last, and that is as to the relation and effect
of the present suit to the cause of prohibition in Iowa. Permit me
to say to you, and through you to the true friends of prohibition
in this state, that we have now upon our statute books a most
excellent law, that is every day gaining favor with the people, and
that has survived all open warfare upon it. In my humble judgment
the most we now have to fear is not the open opposition of its
enemies, but the follies and indiscretions of its friends. As I
have already conclusively shown in this communication, we procured
the enactment of this law by assuring the people of this state that
we did not intend to interfere with the manufacture of alcohol or
intoxicating liquors for medicinal or mechanical purposes, nor as
an article of commerce for export. The question is, have we
anything to gain by duplicity and insincerity, and by now claiming
for this law what we did not claim for it when we procured its
enactment by the general assembly? Above all things, have we, as
prohibitionists, anything to gain by entering into an alliance with
the distillers of other states who are making war upon a productive
industry in our own state, for the sole purpose of promoting their
own pecuniary interests in destroying competition in their
business? Have we anything to gain by turning aside from the great
work that we have undertaken of destroying the saloon as a place of
resort where our young men are taught the habit of intoxication,
and engaging in the Utopian scheme of regulating the supply of
alcohol in the markets of the world, the use of which it is
impossible for us to control after it passes beyond the
jurisdiction of our laws?

There is another very grave and important question that the true
friends of prohibition in Iowa should stop to consider. The courts
of the United States have more than intimated that if the
prohibitory law of Iowa does in fact destroy the value of property
built for a use which was lawful at the time of its erection, that
such a law is a violation of the constitution of the United States,
unless it also makes provision for compensation to the owner.

This International Distillery was built and in full operation
before the amendment of 1884 was enacted. By virtue of its
provisions a limitation only, in my humble judgment, was placed
upon the uses for which alcohol might be sold within the state. The
answer to the position that our law is unconstitutional because it
affects the value of this property is, that it does not prevent the
manufacture of alcohol for export or for sale within the state for
lawful purposes. But if we propose to destroy the value of this
property by this new interpretation of our statute, and say that it
is our purpose and intent to prevent its use for the manufacture of
alcohol for export, then may we not seriously apprehend that our
law will be held unconstitutional, and may we not, in attempting
too much, lose all? The fable of the dog crossing the log over the
stream, that dropped the meat from his mouth in order that he might
grasp the shadow, I would recommend to the careful study and
perusal of some of our pretended friends.

But there is still another political phase of this question that we
ought to carefully consider. Heretofore we have put the opponents
of this law upon the necessity of defending the saloon as an
institution; we have made the suppression of these places of resort
the war-cry of our campaign. Is it the part of wisdom to change
this issue and assume the affirmative of the proposition that the
good order and peace of society requires that we should ship our
corn to Peoria to be manufactured into alcohol rather than have it
manufactured in our own state, either for medicinal or mechanical
purposes or for export? For one I fail to see any wisdom in such a
proceeding. I am not prepared to join in or acquiesce in such a
folly. In accepting a retainer from Mr. Kidd in the case now
pending in the supreme court I did so because it was my plain duty,
as a lawyer, to defend the legal rights as I believe them to be, of
a man whose property was unjustly and illegally assailed. I was not
employed in the case until after Judge Conrad's decision. That the
temperance people of Iowa will find any fault with me for
presenting to the supreme court the question of law involved in
this appeal I cannot well believe. How will these questions be
answered?

_First._ Do they ask or desire that the property of any citizen
shall be destroyed and condemned without a fair and full trial
before the appellate court?

_Second._ Does not a fair trial also involve the right of the
citizen to have the aid of a counsel?

_Third._ If the defendant is to have the aid of counsel, can my
employment be any more objectionable than the employment of one
who is an enemy of the law?

_Fourth._ Is it not true that the view of the statute that I
propose to present to the court, is the view that we nearly all
_pretended_ to have when we procured the passage of the law?

The decision of Judge Conrad, though made no doubt with the utmost
sincerity and good faith on his part, I regard as a mistake, and an
unfortunate one for the cause of prohibition. In the interview
published by the _Register_ I said that neither the decisions
of courts nor the conduct of lawyers or newspapers would defeat the
ultimate triumph of prohibition. I still have faith in that
proposition. If I have erred, or if the courts shall decide too
much or too little, yet legal prohibition as a principle is right,
and I believe will ultimately triumph. I do not believe the present
prosecution of Mr. Kidd is justified by the law or the facts, and
injustice and illegal prosecutions are not in my judgment the means
of success in a good cause. Whatever personal malice may originate
of misrepresentation or abuse of me in this matter, gives me no
concern. I am used to this kind of thing and have never turned
aside from my professional duty because of attempted newspaper
intimidations. I am now in the thirty-sixth year of my practice in
Iowa, and can afford, I think, to perform a plain professional
duty. Asking pardon for the extent of this communication, which I
have necessarily made somewhat in detail in order that your
questions might be fully answered, I remain as I have ever been, an
earnest friend and co-worker in the cause of prohibition, and

Most truly your humble servant,

C. C. NOURSE

The case of Pearson & Loughran against the International Distillery and J. S. Kidd was submitted to the supreme court upon oral and printed argument at the June term, 1887.

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."