Chapter IX: Temperance and Prohibition (1)

In giving a further account of the activities of subsequent years it will be almost impossible to preserve anything like a chronological order of events, and it will be necessary to take up certain subjects or topics that employed much of my time and energies, and probably as important as any other part of my life was my connection with the subject of temperance and prohibition.

The code of Iowa enacted in 1850 took effect July 1, 1851. Under the head of "Intoxicating Liquors" it enacted as follows: "The people of Iowa will hereafter take no part in the profits of the sale of intoxicating liquors." It then provided that the establishment of any place for the sale of intoxicating liquors to be drank on or about the premises should constitute a public nuisance, and enacted penalties against the sale of intoxicating liquors to be drank on or about the premises, and provided for the abatement of such nuisances and the punishment of all persons violating the provisions of this statute. This code was very excellent in the principle upon which the law was based; to-wit, that the people and government ought not to be a party to or share the profits of the sale of that which was the cause of so much poverty and crime, and the statute aimed at the destruction of the places of resort where the habit of drinking such liquors was contracted and promoted; but in its practical operation the law itself and its provisions were a failure. The words, "To be drank on or about the premises," involved two uncertainties--first, as to the meaning of the words "on or about," and secondly, as to the guilty knowledge or intent of the vendor of the liquors when he made his sale, as to the manner and where the purchaser intended to drink. Courts and juries gave very different and very liberal interpretation in the application of this law to different cases, and many of our judges and justices were not well educated in the idea that the sale of intoxicating liquors as a beverage was really a crime against the community and against humanity. As a result of these uncertainties of the law, the people of the state in 1854 elected a legislature, the majority of the members of which were pledged to enact a statute of absolute prohibition. Such a statute passed both branches of the general assembly, and was approved by Governor Grimes. The settlements in the larger towns along the Mississippi river and in several of the interior counties embraced very many Germans and other persons of foreign birth, accustomed to the use, not only of intoxicating liquors, but to places of resort where the same could be drank at their leisure and pleasure. The result of this foreign demand was a fatal amendment to the statute of 1854-5 known as the "Wine and Beer Clause," which permitted the licensing and sale of beer and native wine made from the grapes or other fruits grown within the state. The practical result of this law was the establishment of the saloon in charge of keepers who paid no respect to the law and sold all kinds of intoxicating drinks under pretense of beer and native wine.

During our Civil War the people of the state were so absorbed in the progress of events that involved the existence of our nationality that they gave but little attention to local state and police legislation, but soon after the close of the war, the thought of the people was directed to the great curse of the licensed saloon and its effects upon the morals and habits of our people. In order that the policy of the state with reference to this matter might not be subjected to the caprice of political party conventions and elections, the people demanded and sought to enact an amendment to the constitution of the state that should embrace to its fullest extent a provision prohibiting the sale of intoxicating liquors as a beverage within the state, including not only alcoholic liquors, but also malt liquors. In order to secure such a provision by way of amendment to the constitution it was necessary to secure the election of two successive general assemblies to pass upon such an amendment, and to secure a vote of the people endorsing and adopting the same at a subsequent election. The provisions of our constitution on the subject of amending the same were as follows:

Any amendment or amendments to this constitution may be proposed in
either house of the general assembly; and if the same shall be
agreed to by a majority of the members elected to each of the two
houses, such proposed amendment shall be entered on their journals,
with the yeas and nays taken thereon, and referred to the
legislature to be chosen at the next general election, and shall be
published, as provided by law, for three months previous to the
time of making such choice; and if, in the general assembly so next
chosen as aforesaid, such proposed amendment or amendments shall be
agreed to by a majority of all the members elected to each house,
then it shall be the duty of the general assembly to submit such
proposed amendment to the people in such manner, and at such time
as the general assembly shall provide; and if the people shall
approve and ratify such amendment or amendments by a majority of
the electors qualified to vote for members of the general assembly,
voting thereon, such amendment or amendments shall become a part of
the constitution of this state.

In pursuance of the provisions of this constitution the eighteenth general assembly of the state of Iowa, to-wit, in the year 1880, adopted as an amendment to the constitution of the state the following: "No person shall manufacture for sale, or sell, or keep for sale as a beverage, any intoxicating liquors whatever, including ale, wine and beer. The general assembly shall by law prescribe regulations for the enforcement of the prohibition herein contained, and shall thereby provide suitable penalties for the violation of the provisions hereof." This amendment, by omission of the clerk of the house of representatives, was not entered in full upon the journals of that body. It was, however, embraced in a joint resolution of the two houses and fully identified by its title upon the journal of the house and senate, and the vote adopting the same was duly recorded by yeas and nays as required by the constitution. The publication of this action of the eighteenth general assembly was duly made in the newspapers prior to the election of the nineteenth general assembly, and at the session of that body another joint resolution was passed in both houses embracing the amendment and reciting the action of the eighteenth general assembly thereon, and this joint resolution passed both houses, and the yeas and nays were fully recorded, and proclamation was made by the Governor of the state, and the people of the state at a subsequent election held on June 27, 1882, after a vigorous canvass of the merits of the question, endorsed and adopted the amendment by nearly thirty thousand majority.

On the 26th day of August, 1882, a pretended suit was brought in the district court of Scott county by a brewing establishment owned and operated by Koehler & Lange against a saloon keeper by the name of Hill, in the city of Davenport, upon an account for beer sold by the brewer to the saloon keeper, and the saloon keeper set up by way of defense that he bought the beer and it was sold to him for the purpose of being sold as a beverage and that the sale was unlawful and contrary to the provisions of the amendment to the constitution. That this suit was a mere conspiracy for the purpose of having the amendment to the constitution declared void there can be no question. The judge of the district court of Scott county was opposed to the amendment personally and politically, as were also the attorneys that conducted these proceedings. The principal answer of the saloon keeper was to set up the constitutional amendment and the brewer replied stating that the constitutional amendment was not legally adopted, especially because the amendment had not been spread upon the journals of the house of representatives of the eighteenth general assembly verbatim, but that it had only been embraced in a certain joint resolution of the two houses. The judgment of the district court was against the brewer for the beer, and he took a pretended appeal therefrom to the supreme court of the state. When the case reached the supreme court J. A. Harvey, Esq., who had been an active man in the general assembly in favor of the amendment, and who was also an avowed prohibitionist and friend of the amendment, was employed by the Women's Temperance Union of the state to appear in the case and argue the matter before the supreme court, involving the legality of the amendment. The Women's Temperance Union also employed Judge William E. Miller, an ex-judge of the supreme court of our state, who prepared and filed in the case a printed argument. I was at that time absorbed in my own private practice and had a case on trial in the district court, and was unable to attend the session of the court at which the case was argued. I had been very active in the canvass pending the adoption of this amendment at the popular election, and had spent much time in making speeches before the people in its behalf. I had promised Mr. Harvey that if my other professional engagements would admit of it I would assist him in the oral argument before the supreme court. To my great surprise, and to the surprise and consternation of the people of the state, the majority of the judges of the supreme court decided that the amendment had not been legally adopted, giving as their chief reason therefor the failure of the eighteenth general assembly to have spread upon the house journal a verbatim copy of the constitutional amendment at the time it was adopted by that house. As soon as this decision was made known I prepared and filed in the supreme court of the state a petition for a re-hearing of the case. This re-hearing was granted. The Governor of the state employed Senator James F. Wilson of Fairfield, and Hon. John F. Duncombe, of Fort Dodge, to appear and make oral argument in behalf of the amendment. I also appeared in the case at my own request and upon my own motion and argued the case orally at Davenport on the final hearing. Two of the judges of the supreme court; Judges Seevers and Rothrock, were not friends of the amendment, and I think, in sentiment, were opposed to it. Judge Day's action in the matter in agreeing with Messrs. Seevers and Rothrock was a surprise to his friends, but I have no doubt his decision was honestly made. I think this re-hearing might possibly have resulted in a favorable opinion from a majority of the court had it not been for the intemperate zeal of a portion of the public press, particularly the Des Moines _Register_ edited by the Clarksons in which the majority opinion of the supreme court was denounced. The judges who constituted the majority of the court could scarcely be expected to change their views and opinions under the pressure of the brutal attacks that were made upon them through the press. Judge Beck, the fourth judge of the court, had delivered a very able dissenting opinion sustaining the constitutional amendment. That the decision of the supreme court upon this question was radically wrong, I have never entertained the least doubt in my own mind. The supreme court in its majority opinion recognized the fact that the only proper and legal evidence of the final action of the legislative body in the enactment of its laws must be found in its enrolled bills, duly certified by the presiding officers of the senate and house of representatives respectively. The authorities were uniform, and no court had ever before undertaken to examine the journals of a legislative assembly for the purpose of contradicting and falsifying the duly certified action of the legislature by its presiding officer. Every bill that passes the general assembly of the state is duly enrolled by the clerk elected for that purpose by the house in which the bill originated. It is then supposed to be carefully examined by the committee on enrolled bills and reported in open session of the house, and is then presented by the clerk or secretary to the several presiding officers in open session for their signatures, and thence in the care of the proper committee on enrolled bills is presented to the Governor for his approval. To go behind this official action of the two branches of the legislature and undertake to examine and criticise the action of the clerk in recording or failing to record any part of its proceedings, by the courts of the state, is simply to destroy the independence of the law-making power, and is nothing more or less than usurpation on the part of a coördinate branch of the government. The constitution of Iowa in its provisions in regard to an amendment of that instrument selects, first, the two houses of the general assembly, secondly, the executive of the state, and thirdly, the people of the state, the source of all political power, and entrusts to them and them alone the power to amend its organic law. This amendment originated with and was carefully prepared by and approved by both branches of the eighteenth general assembly, and subsequently by the nineteenth general assembly, there can be no question; that it was then submitted to a vote of the people, voted and approved by the people by a large majority, was then proclaimed by the Governor of the state in his proclamation as part of the organic law of the state, there was no question, and I do not hesitate to say, after years of thought and deliberation upon this matter, that the decision of the supreme court of the state in the case of Koehler & Lange against Hill was simply usurpation. During the pendency of this re-hearing and before the final arguments in the case Mr. Hill, the saloon-keeper of Davenport, attempted to defeat the re-hearing by asking the court to strike from the files the petition for rehearing and denying the authority of the attorneys who had filed the same to act in his name. The Governor of the state, after the final disposition of the cause, appropriated $750 to the three principal counsel engaged in the re-hearing, and sent me one-third of the amount; to-wit, $250 for my services in the matter.

The constitutional amendment thus attempted to be rendered null and void by the opinion of the supreme court in the case of Koehler & Lange against Hill was really only an amendment to the constitution enjoining upon the legislature the duty of enacting a prohibitory liquor law, and forbidding the enactment of any statute authorizing the license and sale of intoxicating liquors as a beverage. The immediate effect of the decision of the supreme court was to arouse the people of the state to an assertion of their rights in regard to these matters; consequently they elected a general assembly in the fall of 1883, a large majority of whose members were pledged to give the people, by legislative enactment, a law such as the constitutional amendment required, and in pursuance of that purpose the twentieth general assembly enacted the prohibitory law, chapter 143, page 146 of the laws of that session. This law was popularly known as the Clark law, taking its name from the fact that it was introduced into the senate by Senator Clark of Page county. He was not, however, the author of the law, and was only entitled to the credit of having introduced it as a member of the senate.

Some time before these events there had been organized in the state of Iowa a temperance league, with its headquarters at Des Moines. Mr. J. A. Harvey, before referred to, and myself, with Louis Todhunter of Indianola, had been appointed by the Temperance League a committee to draft a prohibitory law and secure its passage by the twentieth general assembly. Another effect of the decision of the supreme court in the Koehler & Lange case was the retirement of Judge Day from the supreme bench of the state, and the election of Judge Read of Council Bluffs in his stead. I was a delegate to the republican state convention from Polk county. I did not sympathize with the idea of the defeat for renomination of a judge of the court on the simple ground that his decision or action as judge did not meet with the approval of the people, but I could not, with my ideas of right and justice, approve of the renomination of any judge of the court that had assumed the prerogative attempted to be exercised by the majority of judges in the Koehler & Lange case, and I cordially supported Judge Read for the nomination. I had assisted Mr. Harvey in framing the prohibitory law that was enacted by the twentieth general assembly, part of which was written by myself. I did not entirely agree with the committee, however, in providing as that statute does that the prosecuting witness or party filing informations for a violation of the law should take to his personal use any part of the fines or penalties provided for in the statute. I disliked that feature of the law for the reason that I anticipated that bad men, for the sake of personal profit and gain, would bring the law into disrepute. The State Temperance League undertook to provide, to a greater or less extent, for the prosecution of offenders under this law of the twentieth general assembly. I was on the committee appointed by the League and was chairman of the committee that had advisory powers in regard to prosecutions undertaken or promoted by the officers of the League, and as chairman of that committee I had occasion, a number of times, to defeat the purposes and plans of those who sought to use the authority of the League for some ulterior purpose. The most serious case of this kind that arose during my administration related to the effort of a certain whiskey trust to use the prohibitory law as a means of destroying an industry established in Des Moines by invitation of its business men just prior to the taking effect of this prohibitory law of 1884. One of the chief men in encouraging the establishment of the International Distillery in Des Moines, so-called, was J. S. Clarkson, editor-in-chief then of the Des Moines _Register_. This International Distillery was an alcohol manufactory, established by a man by the name of Kidd. Before he invested his money in the plant he had taken the precaution to consult with a number of prominent citizens and prohibitionists of the city of Des Moines, to know whether or not his enterprise would at all be affected by the constitutional amendment or the statute that might be passed in pursuance thereof. Pending the action of the general assembly upon the constitutional amendment, the Des Moines _Register_ had insisted upon some legislative interpretation of the meaning and effect of the proposed amendment upon the question of the manufacture of alcohol within the state as an article of commerce, for the purpose of shipping the same to the markets abroad and not to be sold within the state. In pursuance of the suggestion of the Des Moines _Register_, the state senate of Iowa in 1882 adopted the following explanatory resolution as to the meaning and intent of the amendment then pending, and thereafter to be voted upon by the people, as follows:

Whereas, doubts have been suggested as to the true intent and
meaning of the joint resolution agreed to by the 18th general
assembly, and by this general assembly, as proposing to amend the
constitution of the state so as to prohibit the manufacture and
sale of intoxicating liquors as a beverage within this state; and

Whereas, it is desirable that such doubts should be removed as far
as practicable before said proposed amendment is voted upon by the
people; therefore,

Be it resolved by the senate, that said proposed amendment was and
is designed and intended to prevent the manufacture within this
state, for sale within this state, as a beverage, all intoxicating
liquors, including ale, wine and beer, and to prohibit the selling
of such liquors within this state for use as a beverage, and to
prohibit the keeping of such liquors for sale as a beverage within
this state; and was not designed to prohibit the manufacture for
sale, or keeping for sale, of such liquors for any or all other
purposes.

A short time before this resolution was passed a meeting of the board of trade of the city of Des Moines was held with reference to the same matter. It was attended by many of the most prominent prohibitionists of the city, and all concurred in the view of the amendment afterward taken by the senate. The sense of the meeting was expressed by a resolution reported by a committee, consisting of T. S. Wright, J. S. Polk, and J. S. Clarkson, and adopted with but one dissenting vote. The resolution is as follows:

Whereas, the agitation of the proposed amendment to the
constitution of this state, prohibiting the manufacture of
alcoholic liquors for sale, is creating doubt and uncertainty in
the minds of capitalists proposing to invest a large amount of
means in the manufacture of alcohol in this city; and

Whereas, we are satisfied the great majority of the people of the
state do not construe such amendment as prohibiting the manufacture
of alcohol for exportation, but that it simply prohibits its
manufacture for sale as a beverage in the state, a view in which
the leading friends and the most of the supporters of the amendment
concur; and

Whereas, we are sure the people of the state would vote down
overwhelmingly any amendment absolutely prohibiting the manufacture
of alcohol; therefore be it

Resolved, that the Des Moines Board of Trade accept the
interpretation of the leading friends and supporters of the
amendment, that it intends only to prohibit the manufacture for
sale of alcoholic liquors in the state as a beverage, pledges
itself to the support and defense of capitalists investing in such
manufacturing as against all doubts as to the real meaning of the
amendment, and further, that we will lend our active influence
toward securing such legislative expression as will put upon the
amendment the construction that it will only prohibit the
manufacture of such liquors for sale as a beverage in the state.

This meeting of the board of trade, which was attended by many of the prominent prohibitionists of the city and of the state, I did not attend, though invited to be present.

In pursuance of the encouragement thus given to Mr. Kidd, and prior to the taking effect of the prohibitory law of 1884, Mr. Kidd expended several hundred thousand dollars in the building of his plant for the manufacture of alcohol at the city of Des Moines, Iowa, and continued such manufacture without interruption until certain prosecutions were commenced against him at the instance of the Western Export Association, a whisky trust organized by the distillers of the United States to prevent an excess of alcohol being manufactured, and by this means to regulate and keep up the price of the article. After the decision of the principal suit undertaken in this behalf, in which I. E. Pearson and a man by the name of Loughran were nominal plaintiffs and the International Distillery and Mr. Kidd were defendants, a decision adverse to the distillery was obtained and the defendants took an appeal to the supreme court of the state. Mr. Kidd and his attorney called upon me and reminded me of the fact that our firm, consisting of B. F. Kauffman and myself, had given them a written opinion to the effect that the law of 1884 did not make it unlawful to manufacture alcohol in this state as an article of merchandise, to be shipped and disposed of beyond the limits of the state, and Mr. Kidd appealed to me to know if I was willing to accept of a retainer to argue that question in the supreme court of the state on his appeal, suggesting that he thought it my duty to do so as a lawyer, and asked if I was afraid to perform my duty in that behalf. I told him that I was not afraid and accepted of the employment.

As soon as this became known to the Des Moines _Register_, its editors commenced a series of abusive articles against me, containing misrepresentations and insinuations, and for some reasons best known to the editors of that paper and of which I am not advised, they became very active in trying to promote the success of this prosecution against the distillery and to destroy the same. These articles of the State _Register_ created, of course, quite an inquiry among the friends of prohibition in the state, and they wrote a number of letters to Mrs. A. E. McMurray, secretary of the State Temperance League, making inquiry in regard to the matter of my employment. She accordingly wrote a letter to me upon the subject and I answered the same very fully, giving a history of the whole controversy, and particularly the motives of the men that were trying to destroy Kidd and his enterprise. Though the letter is somewhat in detail, yet, as it is a complete answer to all of the criticisms that have been made of my professional conduct in this matter, I give it here in full:

DES MOINES, IOWA, MARCH 19, 1887.

Mrs. E. A. McMurray, Secretary of Iowa State Temperance Alliance:

I have your communication of the 17th inst., and appreciating the
motives that have prompted it, I take pleasure in responding to
your inquiries.

The case of I. E. Pearson and S. J. Loughran against John S. Kidd,
now pending upon appeal in the supreme court of the state, and in
which I have been retained for the defendant, involves only the
question as to the right of the defendant to manufacture alcohol in
this state, under the permit granted him by the board of
supervisors of Polk county, for the purpose of export. There is no
pretense that Mr. Kidd, since the taking effect of our present
statute, has ever sold any intoxicating liquors, or alcohol, within
the state of Iowa, for any purpose whatever. The only evidence
offered to sustain the petition is contained in the official
reports of Mr. Kidd to the auditor of the county, by which it
appears that he has manufactured alcohol and shipped it out of the
state. The article manufactured by Mr. Kidd and put upon the market
is not itself a beverage, and is not and cannot be used as such in
the form in which he has produced and sold it. The case was first
tried in the circuit court of Polk county, before Judges Given and
Henderson, upon an application for a preliminary injunction. In
December last those two judges delivered an opinion in the case,
deciding that Mr. Kidd had not in any manner violated the
prohibitory law, and they refused an injunction. At the present
term of the district court Judge Conrad, our newly-elected district
judge, put a different construction upon the law and held, that by
the amendment made to the prohibitory law by the legislation of
1884 it was unlawful to manufacture alcohol in the state for
export; and this is the sole question to be determined by the
supreme court upon the appeal. This answers the first inquiry in
your letter, as to what is involved in the case.

Your next question is whether or not my employment in this case is
consistent with my past record; and whether or not it is calculated
to impair my influence and usefulness for the cause of prohibition
in the future.

I was one of the committee appointed by the State Temperance
Alliance to prepare a bill to be presented to the legislature for
its consideration, in 1884, that should carry out the will of the
people of Iowa, as expressed in the amendment to the constitution,
which amendment the supreme court of the state had then decided was
not operative, by reason of the failure of the eighteenth general
assembly to properly enter the same upon their journals.

As early as the 31st of May, 1881, I prepared and delivered
before the Methodist state convention that was held in Des Moines
at that date an address on the legal phase of the prohibitory
amendment. This address was afterwards printed in pamphlet form
by the _Prohibitionist_, and was circulated during the amendment
campaign as a campaign document, and seemed to meet with the
views of the friends of prohibition at that time. In that address
I took occasion to discuss the meaning and scope of the proposed
amendment, and in it occurs the following passage, defining my
view of the legislation that would be required by that amendment,
if adopted. I quote:

We have, in regard to spirituous liquors, laws upon our statute
books designed to prohibit their manufacture or sale, except
for medicinal, mechanical, culinary and sacramental purposes.
For these lawful purposes certain persons are authorized to
sell. They must obtain a permit, give bonds, keep books, etc.,
and are subject to the supervision and control of the
authorities. The manufacturer could be required to sell only to
persons thus authorized to sell for lawful purposes; if sold
_within the state_, otherwise than as permitted by the
statute, the act could be punished by fine or confiscation.

May 12, 1881, I attended a meeting of the State Bar Association of
Iowa, the proceedings of which are reported in the Des Moines
_Register_ of May 13, 1881. That meeting discussed the meaning
and interpretation of the proposed prohibitory amendment to the
constitution. Mr. Cummins, an attorney of this city, offered a
resolution at that meeting as follows:

Resolved, That the proposed amendment prohibits the manufacture
of intoxicating liquors within the state for sale as a beverage
without the state.

The _Register's_ report says that "Judge Nourse arose and stated
that Iowa had no control over the liquor after it left the state."

From the above it will appear that my interpretation of the
constitutional amendment and of the efforts that we were about to
make at that time to control the manufacture of intoxicating
liquors within this state, did not contemplate any interference
with the manufacture of alcohol for the purpose of export. That
this view was in entire harmony with the views and opinions of the
great mass of the people then favoring legislation upon this
subject, is conclusively shown by the following extracts taken from
the _Iowa State Register_ of the following dates:

THE AMENDMENT'S MEANING

(_Iowa State Register_, February 3, 1882)

Nine-tenths of the mass of the supporters of the amendment that
we know of hold the view that it is to deal with liquors only
so far as forbidding their sale for use as a beverage in this
state. So it is not a "Des Moines idea" at all, but the view of
the great body of supporters of the amendment itself.

The truth is, then, as shown by the records of the supporters
of the submission of the amendment in the legislature, and by
the testimony of nine-tenths of the supporters of it among the
people who have publicly expressed themselves, that the
amendment was not intended to prohibit manufactures for export.
The State Bar Association at its last meeting discussed the
meaning of it, and failed to agree upon it, opinion being about
equally divided as to whether it means absolute and total
prohibition or only as to manufacture and sale as a beverage in
this state. We do not doubt that the original friends of the
amendment intended to have it go no further than to make it
deal with liquor as a beverage in Iowa. Nor do we doubt that
the great body of them hold to the view now that it is intended
to go no further than that. They know that the state has no
power to go beyond that, and they realize that to attempt to
carry the amendment, with the interpretation of total
prohibition or manufacture given to it, it would be defeated.

For the people of Iowa will never consent, in our judgment, to
prohibit the manufacture of their greatest staple into alcohol
for export. In that form Iowa corn can be sent into South
America and to the ports of the Mediterranean Sea, while in its
raw form it can only go there by taking from five to ten
bushels to pay the freight on one. This alcohol trade must be
supplied, and will be supplied, and Iowa corn will inevitably
supply a good deal of it, whether it is made up into alcohol
for this purpose in Iowa, to the profit of the Iowa farmer, or
whether it be shipped to Chicago and St. Louis, or elsewhere,
at the loss of the Iowa farmer, and made into form there.

We do not ask that the amendment itself shall be tinkered with.
But we do ask that the same majority which shall vote to submit
it to the people shall put on record the true interpretation of
its meaning. From this position we do not intend to be driven
either by the ridicule of whisky rings or whisky papers, nor by
the sneers of temperance papers, which have not yet examined
into the question themselves, and would have every body else as
stupid about it as they are themselves.

THE AMENDMENT'S MEANING

(_Iowa State Register_, February 7, 1882)

The truth is, and all who have watched the progress of this
contest know that it was never intended to make this amendment
aim to do more than it was possible to do, namely, to exercise
police power in its own state, and not aim to attempt to stop
inter-state commerce, nor try and prohibit the use of liquor in
other states.

(Appended is a letter from Hon. L. S. Coffin, supporting the
_Register's_ view.)

THE AMENDMENT'S MEANING

(_Iowa State Register_, February 21, 1882)

We plainly told members of the convention before it met, in
order that they might be warned in time, that thousands and
thousands of voters were waiting for the true interpretation
of the amendment before deciding as to their position toward
it--_The Register_ as a paper, among them. When they
adjourned, evading and ignoring a question on which probably
hung, and still hangs, the fate of the amendment at the polls,
we held that the legislature should take some action to
ascertain the real meaning of the amendment before ratifying
it. This we held could be done by asking the attorney general,
the lawyer and adviser of the state, to give his views as to
its actual meaning.

These stills, encouraged by the government laws and by the
people of Iowa, have begun their manufacture in the state. If
Iowa is ever to be anything of a manufacturing state, it can
hope to be so mostly, and will be profited mostly by
manufactures from its own staple crop. This can go into
alcohol, and always be sold, and yet rarely if ever, be used as
a beverage. For alcohol is used in thousands of mechanical
ways. It is made into varnish by putting gums and resins with
it. It is mixed with spirits of turpentine, and makes camphene
and burning fluids in endless quantities, used all over South
America and Europe. It is made into cologne and other perfumed
spirits by flavoring it with different kinds of oil, and all
over Europe, when fuel is scarce, it is used in vast quantities
for cooking and heating stoves. Millions and millions of
gallons of it are used for other mechanical purposes. Very
little of it in this form is ever used for a beverage. To say
that Iowa corn should be made into this form in Illinois, or in
Cincinnati, or New York, or Liverpool, but not in Iowa, is to
still leave it to be so converted, and with Iowa bearing the
whole loss and reaping none of the gain.

So we say, let us have the amendment's real meaning, so that it
may be fully understood by the people, and voted up or down as
it shall deserve to be.

As a member of the committee appointed to prepare a bill for the
action of the general assembly of 1884, I can say that there was at
no time any thought by the majority of that committee of asking any
legislation that would prohibit the manufacture of intoxicating
liquors for medicinal and mechanical purposes or for export and
sale beyond the jurisdiction of our laws. That committee was
composed of lawyers who fully understood that any legislation that
we could obtain must be based upon the police power of the state to
regulate the sale of intoxicating liquors within its jurisdiction.
The Utopian idea that the legislature of Iowa could control the use
to which intoxicating liquors, manufactured and sold as an article
of commerce in the markets of the world, might be applied in
another state, I do not think was at all entertained by the members
of that committee, save perhaps one of them, Mr. Todhunter. The
bill that was prepared by the committee and presented to the
legislature was not enacted into a law in the form in which we
originally presented it; but house file No. 516-1/2 was reported by
the committee as a substitute for that and other bills that had
been introduced on the subject and was passed in both the house and
the senate in the form in which it came from the committee, and
constitutes chapter 143 of the acts of the twentieth general
assembly. And it is this law upon which Judge Conrad bases his
opinion. That the friends of this law never intended or believed
that it would prohibit the manufacture of alcohol in this state for
export clearly appears from the record. Pending the vote upon the
passage of this bill in the house the friends of the bill indulged
in very little speech-making, and Governor Carpenter and Mr. Kerr
were the only members who undertook to reply to the assaults of its
opponents. The first effort of the opponents of the bill was to try
and load it down with amendments and thereby secure its defeat. An
amendment was offered by Mr. Bolter, of Harrison, making the bill
an absolute prohibition of the manufacture of intoxicating liquors
in this state, and this amendment came within one vote of being
adopted. The vote stood fifty votes against the amendment and
forty-nine for it. The entire fifty members that voted _against_
this amendment of Mr. Bolter, voted _for_ the passage of the bill
the next day, while of the forty-nine that voted for Mr. Bolter's
amendment nearly all of them voted against the passage of the bill.
The _Iowa State Register_ the morning after this vote was taken
contained the following leading editorial giving an account of this
attempt to kill the bill. I quote from the _State Register_ of
February 29, 1884, as follows:

The house spent the day yesterday on the prohibition bill. Our
report in detail shows how desperately the democrats are
fighting the inevitable.

The spectacle of the democrats voting at one time yesterday,
for dishonest purposes, for absolute prohibition, and next
ranging themselves on the side of the low license or
practically no temperance law at all, is a vivid illustration
of the insincerity of that party on the temperance question.
Their attitude is insincerity itself, and they are ready to do
anything to defeat honest temperance measures. The only test
vote had yesterday was on the Bolter absolute prohibition bill
(amendment) which was defeated by forty-nine yeas to fifty
nays; all the democrats and all the greenbackers and one
republican, Mr. Schee, voting for the amendment. Fifty
republicans voted in the negative.

During the pendency of the discussion the _Register_ of the
same date contains a report of the speeches of Governor Carpenter
and Mr. Kerr in favor of the bill. The following is the full text
of Mr. Kerr's speech as reported in the _Register_ of February
28, 1884. Mr. Kerr said:

The opponents of the bill were wonderfully afraid it would not
prohibit. There had never been any question as to the
constitutionality of the amendment passed in 1882. It was only
the manner of its enactment by the nineteenth general assembly
that had rendered it invalid. He agreed with Mr. Dabney that
the manufacture of liquors for any purpose was wrong. What was
it the people of the state wanted to prohibit? The saloons;
those hot-beds of infamy that were constantly bringing disgrace
upon the state and misery upon the people. Any representative
who fails to crystallize into form of law the will of the
people fails to do his duty. How are we to know this sentiment,
if not by the votes of the people? There is no better way. Mr.
Bolter was eloquent in his denunciations of the evils of
intoxication and he agreed with that gentleman and hoped when
the time came the man from Harrison would vote in accordance
with that sentiment. There are no interests in the state,
vested or otherwise, that are higher than the interests of the
whole people of the state, and it was better for a few to lose
a few dollars than to entail and fasten upon the state an
industry that directly or indirectly injures every man in it.
It is best for all to have the business wiped out. Mr. Merrill
asked Mr. Kerr if the bill permitted the manufacture of liquors
for export. Mr. Kerr replied that the bill had been prepared by
its friends and it was not intended to have it loaded down by
its enemies. _The intention of the law was not to prohibit
the manufacture for exportation, as there were some doubts as
to whether that could be done._

This law as it passed the house was published in full in the
_Register_ of the 28th of February, and on the 29th of February
wehave this leading editorial in the same paper:

The _Iowa City Press_ tries to prove the impossible thing
that the proposed prohibitory law in Iowa will discriminate
against Iowa brewers and in favor of Iowa distillers. The same
stale cry of the democratic campaign. We have heretofore shown
that the proposed interdiction treats distillery and brewery
alike _and leaves both free to manufacture for export_.

As to the vineyards of Johnson and other Iowa counties, their
products ought to be able to ship as far and sell as well as
the product of the Iowa distillers, and it will do so if it is
a good article; if it is not a good article it will find no
buyer at home now or abroad hereafter.

I have quoted the above remarks of Mr. Kerr, for the reason that
Mr. Kerr was one of the most staunch and extreme prohibitionists on
that he was in favor of absolute prohibition; but at the same time
he distinctly repudiates the idea that the legislation which he was
then advocating was intended to accomplish any such end. The state
temperance convention had simply demanded of the legislature that
the will of the people of Iowa as expressed in the vote upon the
constitutional amendment should be embodied in a law of the state.
Or as Mr. Kerr very significantly remarks, should be "crystallized
into law." It is well known as a part of the history of this
temperance movement that the _Iowa State Register_, the leading
journal of the state that advocated the constitutional amendment,
demanded of the nineteenth general assembly, as one of the
conditions upon which it would support the amendment, that it
should adopt a joint resolution defining the meaning and intent of
that proposed amendment, and that it should declare that it was not
intended to prevent the manufacture of intoxicating liquors for the
purpose of export and sale beyond the state boundaries. That
resolution, with the vote by which it was adopted, is on page 501
of the senate journal, 1882, and is as follows:

Whereas, doubts have been suggested as to the true intent
and meaning of the joint resolution proposing to amend the
constitution of this state, etc.; therefore be it

_Resolved by the senate_, that said proposed amendment was and
is designed and intended to prohibit the manufacture within
this state _for sale within this state_ as a beverage, of all
intoxicating liquors, including ale, wine and beer, and to
prohibit the selling of such liquors _within this state_ for
use as a beverage, and prohibit the keeping of such liquors,
for sale as a beverage _within this state_; and was not
designed to prohibit the manufacture, sale or keeping for sale
of such liquors for any or all other purposes.

The yeas were: Senators Abraham, Arnold, Boling, Brown of
Keokuk, CLARK OF PAGE, Cotton, Dashiel, Gillet, Greenlee,
Huston, Hartshorn, HEMMINGWAY, Johnson, Kamrar, Logan,
Marshall, Nichols of Benton, Nichols of Guthrie, NICHOLS OF
MUSCATINE, Parker, Patrick, Poyneer, Prizer, Russell of Greene,
Russell of Jones, Sudlow, Terrill, Wall, Whaley, Wilson,
Wright--31.

All republicans and all _prohibitionists_, except Wall, who was a
greenbacker. Those who think that it is disloyalty to the cause in
me to advocate this same doctrine now should reflect that Clark of
Page, and Hemmingway, and Pliney Nichols, are all in the same
boat--to say nothing of the _Iowa State Register_, at whose
special procurement this resolution was passed. The next morning
after this resolution was adopted, March 18, 1882, the _Register_
contained the following editorial:

The senate defined the meaning of the proposed prohibitory
amendment and gave to it the beverage interpretation for which
the _Register_ has so steadily and persistently contended. So
that now the people of Iowa have the true definition of the
amendment, which is, that it is to deal with liquors in
manufacture and sale only as a beverage _in the state of
Iowa_. It was this interpretation that the _Register_ asked
for in order to support it.

But the meaning of this law is, in my judgment, clear, from the
text of the act itself without reference to this legislative
history. This law left in full force section 1542 of the code,
which defines the offense of keeping intoxicating liquors with
intent to sell the same in the following terms:

No person shall own and keep, or be in any way concerned,
engaged or employed in owning or keeping intoxicating liquors
_with intent to sell the same within this state_, or
permit the same to be sold therein, in violation of the
provisions hereof.

This is in entire harmony with two decisions of our supreme court
rendered prior to 1884, declaring that alcohol was an article of
commerce that might be lawfully held and owned and kept within this
state and for sale and export beyond the state. The prohibition
contained in this section, 1542, against keeping intoxicating
liquors with intent to sell the same within the state, is a clear
declaration of the legislature that to keep or own the same with
intent to sell it beyond the bounds of the state is not a violation
of the law. And the amendment of 1884 in regard to the
transportation of liquors, an amendment which I prepared myself and
which was incorporated in the law in the very language in which I
wrote it, prohibits any railroad company or common carrier from
knowingly "bringing into the state" or "transporting intoxicating
liquors between points within the state" without first having been
furnished with a certificate from the county auditor certifying
that the consignee or person for whom the liquor is to be
transported is authorized to sell the same within the state. It is
very evident, that if this provision of law, which is section 1553,
was intended to prohibit the export of intoxicating liquors, it
would not have been so careful to limit the prohibition to
importation and to transportation between points within the state.
The section was written with express reference to the theory that
the manufacture of intoxicating liquors in this state for purposes
of export was not prohibited by law.

After this law of 1884 took effect, it will be remembered, that we
organized in Iowa county alliances for the purpose of prosecuting
offenders and enforcing its penalties. Such an organization was
effected in Polk county, and I had the honor of being nominated as
the chairman of the judiciary committee of such organization, which
committee was charged with the duty of employing attorneys and
enrolling prosecutions under the law. In May, 1884, Judge C. C.
Cole, of this city, received from the Western Export Association of
Distillers in the United States a claim against the International
Distillery for $17,499.68, which it was claimed Mr. Kidd owed the
pool, on account of over-production. It will be necessary to give
some explanation of the character of this claim. The Western Export
Association is an association of the alcohol distillers of the
United States, chiefly located at Peoria, Illinois, whereby they
undertake to control the manufacture of alcohol and limit its
production in relation to the demand, and thus control and keep up
the price of the article. The entire scheme is an unlawful one as
against public policy, in that it establishes a monopoly and
prevents competition in the production of a legitimate article of
commerce and sale. Judge Cole was too good a lawyer to go into
court with a suit upon such a demand, and he conceived the idea of
using the criminal processes of the law against Mr. Kidd for the
purpose of extorting from him this demand of the whisky pool. In
accordance with this purpose Mr. J. S. Clark, his partner and
afterwards one of the plaintiffs in this present suit, Mr. S. J.
Loughran, was induced to appear before the county alliance and
offer the services of Mr. Cole free of any charge to the alliance,
for the purpose of prosecuting the International Distillery and
harassing them with prosecutions upon alleged violation of the law,
and asking that the secretary of our association, Mr. Littleton,
give the use of his name for the purpose of filing complaints. The
proposition was referred to the judiciary committee of the county
alliance, of which I was chairman, and was duly presented to me by
the secretary. It is hardly necessary for me to say that I refused
to enter into such a conspiracy or to favor the use of the alliance
for any such purpose. We had organized in good faith in this county
for the purpose of enforcing the prohibitory law in the interest of
the cause of temperance, and not for the purpose of collecting the
illegal demands of the whisky pool and the distillers of Illinois.
The following is a literal copy of Judge Cole's letter to Mr. John
S. Kidd, in relation to this claim:

DES MOINES, IOWA, MAY 24, 1884.

John S. Kidd, Esq., President International Distillery Company,
Des Moines, Iowa.

Dear Sir: The Western Export Association has placed in my hands
for collection by immediate suit a claim of $17,499.68 against
the International Distillery Company, and you as its president.
My pleasant personal associations with you have prompted me to
ask and obtain permission for my client to delay the actual
bringing of the suit till noon of Monday next, May 26th. I
could not obtain leave for further delay because certain
members of the association, who also have retained me to bring
suit if this is not settled, claim that they are being further
damaged to the extent of thousands of dollars daily, by the
course of your company. Hoping to see you and to receive
payment of the claim before Monday noon, I remain as ever

Very truly yours,

C. C. Cole

To this very remarkable epistle Mr. Kidd made response of the same
date as follows:

Permit me to suggest that you should not allow personal
considerations to interfere with professional duties. This bit
of advice is given gratis and by way of friendly return for the
favor of your grace over Sabbath on the modest demand you make.

Yours truly,

John S. Kidd

It is unnecessary to say in this connection that Judge Cole never
filed any petition in court on this modest demand. After the county
alliance refused the use of its name or influence for the purpose
of extorting this money out of Mr. Kidd, a clerk in Judge Cole's
law office filed complaint against Mr. Kidd and procured warrants
for the seizure of alcohol manufactured and shipped for export
beyond the bounds of the state. All of these prosecutions proved
ignominious failures. The present suit against Mr. Kidd was
commenced in December, 1885, Lewis Todhunter appearing of record as
attorney for the plaintiff, and I. E. Pearson and S. J. Loughran as
the nominal plaintiffs.