History of Dakota Territory, volume III, Part 104

Author: Kingsbury, George Washington, 1837-; Smith, George Martin, 1847-1920
Publication date: 1915
Publisher: Chicago, Ill. : S.J. Clarke Publishing Company
Number of Pages: 1146

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About the middle of July Tyndall County began to grant licenses to dealers in original packages. Deadwood had begun the same practice a short time before. It was believed by temperance people that this step was wiser, because the original package movement could thus be controlled, and it was certain it could not be prevented. Early in August the original package law passed the House of Congress and soon afterwards became a law. It was called the Wilson Bill and was signed by President Harrison on August 10th. This caused the original package houses in all parts of South Dakota to close their doors until they could devise methods of evasion. The Enforcement League at this time was thoroughly reorganized and began action along the new line.

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By September, 1890, there were open saloons at Sioux Falls. This was due, it was claimed, to the attitude of a new state's attorney who permitted evasions of the law. At once much excitement prevailed because the temperance people promptly secured bench warrants for the arrest of all saloon keepers who thus had opened for business. By the middle of September there were three organiza- tions in that city whose object was to see prohibition enforced. They were the Law and Order League, the Enforcement League and the Committee of One Hundred. However, in spite of these endeavors, no genuine and persistent effort to enforce the prohibition law had been made in that city up to the last of September. At this time there were thirty-two places in that city where beer and whisky could be had for the asking. After the passage of the Wilson Bill the original package plan of the liquor element was abandoned and liquor was placed on the bar as if no prohibitory law existed. In several saloons keg-bcer was drawn openly for customers. Previously, when under the old license law, there were in Sioux Falls twenty-two saloons which paid into the city treasury annually $22,000, but now there were thirty-two saloons running wide open with- out paying a dollar into the treasury. These facts were brought out with much emphasis by the local newspapers. The same conditions prevailed in many other cities of the state, particularly in the Black Hills. It was further noted that under license the sales were regulated; now they were not. The temperance people under these conditions said, "Just wait until after election; we will show you what will be done." At Deadwood in September thirty-eight injunctions, orders or warrants were served on saloons and original package joints amid great excitement. Crowds gathered in the streets and the officers were hooted and jecred. This court action was the work of the Enforcement League. Deadwood really had voted against prohibition, but when the injunctions were served all saloons were placed in the custody of the sheriff. Such was the condition through- out the state generally during the fall of 1890.

After the election of November, 1890, temperance matters were in more or less of an uncertain and chaotic condition in all parts of the state. Under the original package laws saloons ran much as they had before, and even after the decision of the Supreme Court had settled the principles of the original package law, means were found in all the villages and cities to evade or nullify the law and continue the sale. It is an astonishing fact of history that city officials in all parts of the state connived at this infraction of the law, even if they did not actually assist or co-operate in the unlawful proceedings. This reprehensible state of intemperance and immorality in many cities is shown by the course of the liquor dealers and the city officials of Yankton in January, 1891. Judge Barnes, one of the Committee of One Hundred, in an open letter to the public on the 30th, presented the following facts and made the following plea: That at the instance of a few men many citizens had petitioned the city council to collect a revenue from all liquor sellers, which had been done, thus practically putting a license system in operation ; that saloon keepers, by paying $25 monthly in advance into the city treasury as a so-called penalty, could continue the sale of liquor without further molestation except to pay the extra sum of $150 to the city marshal, without accounting therefor to the city treasurer, as his fee to see that no seller evaded this penalty; that officers shook dice to see who should pay for the drinks sold under this regime and immoral women were permitted to ply

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their business in the saloons; that a certain man who had testified in court to this reign of vice was told that for $150 he could be knocked on the head and thrown into the river, and under coercive measures was required to make oath to the contrary ; that five men went to his residence at night to tar and feather him and that he, being apprised of these circumstances, had fled "lest he should be slugged and put into the river."

"Do the people know that these saloons have not only been in this way licensed, but have been put under certain so-called regulations, the men running them being given to understand that they will not be disturbed so long as the rules are complied with? Yet even such rules have with impunity been broken. Further- more, gambling, fighting and things still worse have in some of these licensed places been going on and the licensing has multiplied the evil. The saloon men complain bitterly of being disturbed. And after the encouragement of the peti- tioners and the action of the council, they argue well for many usual standpoints and with great force of reasoning when they maintain that they are less to blame than the petitioners and the council. There can be but one result to persistent antagonism to law. Law will be vindicated, as it always has been in this country, though sometimes by blood. There can be no suited harmony without right. Violence must come of determined wrong-violence to the innocent and punish- ment to the guilty. Property is nothing, even blood is nothing, when set in the balance with manhood and womanhood. In sacrificing virtue we lose all. Yank- ton cannot secure harmony and keep her saloons. This is not a question of sentiment or prohibition, but it concerns law and order. What says the funda- mental law to the citizens?" asked Judge V. V. Barnes, of Yankton.

Immediately after the November election of 1890, Rev. William Fielder of the South Dakota Enforcement League issued a circular in the name of the league declaring war on all violations of the prohibitory clause of the constitu- tion. He announced that all officers who did not enforce the constitutional measure would in all cases be asked to resign. He announced that Judge Cald- well and other judges of the United States Circuit Court had rendered opinions which permitted the Enforcement League to take this step if it saw fit.

In December, 1890, the Supreme Court decided that uncovered boxes con- taining sealed bottles were liquor in the original package. During this month saloon keepers in all parts of the state were arrested and fined in the courts under the prosecution of the Enforcement Lague.

"While the law passed to enforce the provisions of the constitution prohibit- ing the manufacture and sale of intoxicating liquors has not proven as successful as friends of temperance could desire, it is believed that the result is to be largely attributed to the decision of the Supreme Court of the United States, which has weakened public confidence in a measure. It is however enforced in most sec- tions of the state and by its means the evils of intemperance are believed to be largely diminished."-Governor Mellette, 1891.

At the legislative session of 1891 a prohibition bill was introduced into the Sen- ate by Reverend Fielder, of Huron, who had been elected senator. It was called the Resubmission Bill. Other bills similar in nature but somewhat different in form and requirements were also introduced at this session. Immediately after their introduction the fight over their passage commenced. The license men had a large lobby present and were determined upon resubmission. The Enforcement

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League and other temperance movements were equally determined, united and strong.

Committees of one hundred were formed in several of the cities to see that the prohibition law was enforced. The Press and Dakotan of February 4, 1891, said, "Our law practically excludes certain classes who do not regard the drink- ing of beer as a deadly sin. In this country the law is not sustained by public sentiment. Nine-tenths of our people are in favor of license and opposed to holes 111 the wall. With such an array of sentiment against the law how can it be enforced? Is it not infinitely better to have a revenue from the sale at home with the breweries running, than to have at least five hundred dollars each week sent to Nebraska, Illinois, Wisconsin, Minnesota, Ohio, Kansas, Pennsylvania, and other states for original packages? The individual who is fond of stimulants will use them if he has money to procure them. Hence it follows that either his money must be taken from him or his stomach in order to stop him from drink- ing."

Finally the question came to an issue-"Shall the Resubmission Bill pass?" By the middle of February the measure had found no serious trouble in getting through the House, but there was intense fear by its advocates that it would be unable to pass the Senate. The lobbyists for the measure did herculean and effective work. At the beginning of the session an actual and outspoken major- ity of the House opposed the bill, but the acute lobbyists resorted to every means in their power to secure the votes of the members. Finally, amid much excite- ment, the bill passed the House by the vote of sixty-six for and forty-seven against, with eleven absent and not voting. This result gave the bill eight votes to spare. Upon the election of Mr. Kyle to the senatorship there were continu- ous rumors that the democrats had voted for Mr. Kyle in return for votes in favor of resubmission. It was covertly admitted that this trade was not made directly with Mr. Kyle, nor perhaps with his closest friends, but that there were reasons for believing that a considerable body of democrats had gone over to the support of Mr. Kyle with this understanding. Many of the opposition sup- ported the bill, or at least claimed they did, because Elder Fielder, the president of the Enforcement League, had endeavored to help the republicans in the organ- ization of the House. The resubmissionists at once continued their desperate work to win in the Senate. The newspapers of that date said that they stopped at nothing. When they could not win by arguments, they threatened by political death. When such a threat failed they deliberately and openly aimed to defeat all bills in which those members were interested, including those for appropria- tions, and in every possible way sought to secure support by fright or other effective means. Finally the resubmission project was killed in the Senate by the narrow margin of twenty-two against to twenty for. The enemy had been alert and vigorous. It had furnished a powerful lobby and $10,000 in cash, but without avail. The Senate respected the wish of the people generally who did not care for resubmission at this time. Important facts were disclosed during this memorable contest.

It was openly declared that the unbearable measures and tactics of the pro- hibitionists during the campaign of 1890 in unjustly securing by threats the prohibition clause were now the reason for the passage of the resubmission measure by the House. It had been declared before and was again stated on

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the floor of the Houes that the prohibition clause of the constitution passed because the people were willing to vote for anything in order to secure statehood and did not desire to complicate matters, and hence everything and anything went forward without opposition. They thus voted for prohibition to save themselves from a worse fate, when they really did not want prohibition. This fact was further proved, it was declared, by the constant violation of the spirit and intent of the constitutional provision itself.

It was during this session that the prohibitionists declared that Senator Kyle had changed his stripes, was a chameleon, had voted for prohibition, but now was in favor of anything-resubmission, local option, or license. They further de- clared that he was thus too vacillating in principle and untrustworthy as far as the temperance movement was concerned. The vote in the House on the resub- mission question was not a matter of politics, as the vote was almost equally divided between the two principal parties. The independents were a little stronger for resubmission than were the republicans, while the democrats were almost solid for resubmission.

In July, 1891, Judge Plowman of Deadwood, in a case which tested the con- stitutionality of the prohibition clause, decided that no law should embrace more than one subject and that the subject should be expressed in its title. On this ground principally and on others partly he decided that the existing law concern- ing prohibition was unconstitutional. The constitution, he said, limited the power of the Legislature to prohibit the manufacture for sale and the keeping for sale of such liquor as a beverage. The article did not prohibit the manufacture for any purpose except that of sale and did not prohibit the keeping of intoxicating liquor for any other purpose than that of sale as a beverage. It would be law- ful, he said, to keep liquor for medical, sacramental, scientific, mechanical or any other purpose than that of sale as a beverage without any further legislation. The title of this act did not say "as a beverage," and hence did not embrace in the title as per the constitution the actual subject of the law, and hence was to that extent unconstitutional. It was necessary, he said, to go from the act to the constitution to find the meaning of the act. There were other matters inter- woven with this point which made the law confusing, and therefore the judge sustained the demurrer under which the case had come to his attention. He thus declared the enforcement statute which had been passed by the Legislature unconstitutional. He said that the title contained more than one subject, and that in this law there were provisions not contained in the title. This was denied by several newspapers throughout the state, one of which was the Sioux Falls Press. That paper declared that the title was simple, specific, sufficient and con- tained generally in the title the whole subject. However, at a later date even the Press admitted that the decision of the judge was just because based upon facts. The clause of the constitution was complete prohibition. The enforcement law, therefore, in order to confine itself to one subject, must contain only prohibition. But both the statute and its title pertained to other matters than prohibition and essentially and entirely affected the prohibition principle. It attempted to regu- late the sale for medical, sacramental and mechanical purposes. Prohibition and its regulation were entirely different. To regulate meant that the sale could be carried on under certain rules; but prohibition meant that the sale must stop wholly. Therefore the enforcement act, with the many indications thereof in its

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title, attempted to confer judicial powers upon the state's attorney and permitted him to fine recalcitrant witnesses for contempt contrary to the constitution. Also defendant was required under the enforcement act to give evidence against them- selves contrary to the limitations of the constitution. Also under the nuisance section of the act owners of property could without process of law be deprived of such property contrary to the constitution. Furthermore an assistant state's attorney could under the act stop the courts of the state. Still further, although there was nothing in the title for a penalty for intoxication, the enforcement statute declared it a misdemeanor for any person to appear in an intoxicated condition in any public street. Consequently, for these reasons, Judge Plow- man held that the enforcement act was unconstitutional.

In other cases throughout the state the same principles were brought out in even a clearer light; so that in the end it was classified and held by the courts : (1) It is unconstitutional because the law contains more than one subject and the subject is not expressed in the title; (2) because it violates the citizens' rights of property by seizing and destroying the property without a hearing, or a de- fense or a judgment of any court; (3) because it violates the right of liberty and the security of his person by arresting him without a warrant, or a judgment of any court or without any hearing; (4) because it compels the defendant to be a witness against himself; (5) because it allows and authorizes a lawyer who is not a judge nor an officer of the law to arrest and imprison people upon his own order without the order of any court; (6) because in a certain case it de- prives a citizen of the right of being confronted face to face with the witnesses against him, and of cross-examining them; (7) because it makes the mere use of liquor a crime ; (8) because it contains more than twenty distinct and separate subjects not related to nor connected with the main subject in any manner; (9) because of these reasons it violates the constitution of the state and of the United States. This was the consensus of opinion in the courts early in 1891 concern- ing the enforcement act passed by the Legislature. Judge Edwin T. White also decided the enforcement act unconstitutional in a case tried before him similar to the one taken before Judge Plowman in the Black Hills. This defense was taken up by the liquor people all over the state to justify themselves as soon as the judg- ment of the courts became known.

In July, 1891, Rev. William Fielder, on behalf of the Enforcement League, denounced at length and in unmeasured terms the decisions of Judges Plowman, White and others in different parts of the state. He said, "I am not surprised. This is the history of prohibition legislation in every state that enjoys it. The weakness, real and apparent, of other laws is frequently ignored or overlooked, but never of prohibitory laws. They are attacked from every conceivable stand- point and with all the ability and ingenuity man can command. Not only are glaring flaws discovered and flashed into public notice, but defects which can be seen only through a powerful microscope are made the basis of vigorous assaults from the opposition. * Prohibition generally in the eastern portion of the state is working well; in a few localities quite poorly. The way it operated in many communities on July 4th was a great surprise. The good behavior and sober- ness of the multitude at Brookings, Watertown, Wessington and elsewhere were matters of general comment. The like was never before witnessed in the state, and many were converted to prohibition by what they saw on that day. I am

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not enough of a crank to say that prohibition is a perfect success, but I do assume that in the average community in this part of the state it has wrought a great change both in intemperance and in the amount of crime committed."

In August, 1891, Bishop Marty charged openly that prohibition in South Dakota was a failure as a temperance reform. He had organized and was still thus at work organizing total abstinence societies in his church. He claimed that temperance had lost ground since its friends had stopped work, because they had left the prohibition clause of the constitution and the enforcement act to do the work which they should then be performing.

In 1890 action was commenced in the court at Sioux Falls to close the Sioux Falls Brewing Company under the prohibitory clause of the constitution. In March, 1892, in the case taken before Judge Aikens, the court decided against the companies, whereupon an appeal to the higher courts was promptly taken.

During the spring of 1892, at the municipal elections in all parts of the state, the citizens considered and acted upon the prohibition question. In many cities prohibition boards of trustees or aldermen were elected and in many instances there were open fights at the polls. As a whole prohibition in the majority of instances was defeated at these elections.

In March the Supreme Court reversed the decision of Judge White in the case of the State vs. John Becker, at Yankton, which had involved the prohibition law. Thus the Supreme Court upheld the constitutionality of the constitution- ality of the prohibitory clause.

In 1892 the saloon keepers at Pierre paid the police sums of money for so- called licenses, and were thus given immunity to sell liquor openly. One saloon keeper succeeded in getting a judgment against the city in a peculiar case that was taken before the court.

In the fall Rev. William Fielder lectured over the entire state on the prohibi- tion question, and did all in his power to kindle enthusiasm for the cause of temperance.

In 1892 the liquor men were not idle, they were even more determined than the prohibitionists were or had been. They invaded every county and in many instances succeeded in securing the nomination and election of resubmissionists to the Legislature of 1893. During the campaign the liquor people brought every influence to help secure the election of men favorable to their cause. Some- times they succeeded and at other times did not. When the Legislature finally assembled it was at first thought that the members were about equally divided on the subject. The Woman's Christian Temperance Union and the State Con- gregational Assembly, both of which had conducted elaborate and spirited cam- paigns, appointed commissions or lobbies to wait upon the Legislature and look after the interests of prohibition. Rev. William Fielder was present, active and prominent at this session. The prohibition people realized that the attitude of Senator Pettigrew and of the republican leaders would have much to do with the fact of the resubmission question ; therefore every effort to influence these mem- bers in favor of prohibition was made. The populist and republican leaders found that they must divide upon the resubmission question. This was determined apon, as it was learned and believed that politics after all had nothing to do with the question. As a matter of fact both parties in the Legislature moved with caution in order not to offend either the prohibitionists or the resubmis-

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SOUTH DAKOTA: ITS HISTORY AND ITS PEOPLE

sionists. The liquor men threatened the members and so did the prohibitionists, with the result that the members of both houses hedged and resorted to artifice to prevent a climax on the question. It was believed at this time that about 40 per cent of the vote of the state favored prohibition, and it was further admitted that about two thirds of the prohibitionists were republicans. Much artifice was resorted to by all factions to win success. The prohibitionists threatened to go · over bodily to the populists unless the republicans should support prohibition. Senator Brockway introduced the joint resolution to resubmit the prohibition clause to the voters of the state. The resubmissionists managed to secure control of the committees in charge in the Legislature and at the start had much the advantage. To aid the prohibition movement Professor Free of Yankton Col- lege went to Pierre to assist in the fight against resubmission. Many other promi- nent men and women throughout the state did likewise. Other bills on the sub- ject were introduced. One provided that the prohibition clause should be voted on by women. Another called for a constitutional option amendment with municipal local option and state liquor inspection. All measures were finally defeated, though a license bill was introduced at the last minute.

At a mass meeting held in Sioux Falls late in July, 1893, the feasibility and practicability of enforcing the prohibition law was fully considered in a public discussion by the ablest speakers of the city, among whom were Judge Edgerton, E. B. Meredith, Judge Brookings and Mr. Caldwell. Judge Brookings said that he had voted for prohibition, but did not believe now that it could be enforced in Sioux Falls when twenty-two ministers and churches and the officers of the city did not exert themselves to enforce the law. He opposed useless prosecu- tion, and as the liquor sellers could not be converted why pile up expenses? He said that the prohibition people had shown themselves to be cowards in fighting against resubmission and in refusing to submit prohibition to a popular vote. He said, "I don't care how bold you talk, or how loud you cheer your speakers ; you showed yourselves rank cowards when you refused to submit this question to a vote of the people." Mr. Meredith was president of the Baptist College at Sioux Falls, was a member of the Commercial Club and had greatly aided the enforce- ment movement. He united with the sheriff in a movement to secure incriminat- ing evidence against the liquor dealers.

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History of Dakota Territory, volume III, Part 104

Author: Kingsbury, George Washington, 1837-; Smith, George Martin, 1847-1920 Publication date: 1915 Publisher: Chicago, Ill. : S.J. Clarke Publishing Company Number of Pages: 1146

Author: Kingsbury, George Washington, 1837-; Smith, George Martin, 1847-1920
Publication date: 1915
Publisher: Chicago, Ill. : S.J. Clarke Publishing Company
Number of Pages: 1146