Dana Reed Bailey.

History of Minnehaha county, South Dakota. Containing an account of its settlements, growth, development and resources ... Synopsis of public records, biographical sketches .. online

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Online LibraryDana Reed BaileyHistory of Minnehaha county, South Dakota. Containing an account of its settlements, growth, development and resources ... Synopsis of public records, biographical sketches .. → online text (page 23 of 99)
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was liable to a fine not exceeding- one hundred dollars nor less than
thirty dollars, and in case the fine should not be paid, to confinement
in the county jail one day for every five dollars of fine. This law
took effect May 13, 1862, and from that time there has been trouble
in the traffic in quantities of less than a pint.

At the next session of the territorial leg-islature it was made un-
lawful for any person to sell or expose for sale any intoxicating- liq-
uors within two miles of any camp or g-rove meeting', convened for the
purpose of relig'ious worship.

At the third session of the territorial leg-islature an act was
passed "concerning- licenses," also an act prohi]:)iting- the sale of in-
toxicating- liquors to minors or to anv person on Sundav. These acts
took effect January <), 1864.

By the provisions of the act concerning* licenses, tlie lioard of
county commissioners and the president and board of trustees of in-
corporated towns were g'iven authority to g-rant licenses to keep sa-
loons, hotels, public houses and g'roceries, the applicant paying- into
the treasury for the privileg-e a sum not exceeding- three hundred


dollars, nor less than twenty-five dollars, in the discretion of the
hoard, and g-iviny a bond in the sum of live hundred dollars, condi-
tioned that he would "keep an orderly house and not permit any un-
lawful g"imin^- or riotous conduct in his house." Applications for
keeping- saloons or g-roceries mio-ht be rejected, and whenever the
board should be satisfied that the ])rivile,i>-e had been abused, thev
had the power to revoke the license.

The penal code, approved January 11, 18()5, provided for ])unish-
ino- persons g-uilty of sellino- intoxicating- liquors to Indians, habitual
drunkards, persons under eig-hteen years of ag-e and paupers. It also
provided that any person found intoxicated in a public place, should
be punished by a fine of ten dollars and costs.

The next leg-islation upon this subject was an act approved Jan-
uary 8, 1868, by which a license to run for a period of not less than
six months was required for the sale of intoxicating- liquors in any
quantity less than a quart. It was also made the duty of the county
board, at each term of the district court, to deliver to the g-rand jurv
a list of all licensed persons, and the g-rand jury were directed to in-
dict all persons eng-ag-ed in selling- intoxicating- liquors without a
license. An important feature of this act was the repeal of that por-
tion of the law of 1864 by which g-roceries were classified with

The leg-islature on the 10th dav of Januarv, 1873, passed "An act
to provide ag-ainst the evils resulting- from the sale of intoxicating-
liquors in the Territory of Dakota," which went into effect in July of
the same year. The first section of this act declared it to be unlaw-
ful for any person without having- first obtained a license, to sell in
any quantity intoxicating- liquors, to be drank in, upon or about the
|)remises where sold, and that no person should be g-ranted a license
without first g-iving- a bond in the sum of three thousand dollars, with
two g-ood sureties, conditioned that he would pay all damag-es to any
person or persons, which mig-ht be inflicted upon them, either in per-
son or property, or means of support, by reason of the person so ob-
taining- a license, selling- or giving- awav intoxicating- liquors.

By this act it was made unlawful to sell to minors, or to cause
the intoxication of any person; and all the property of the person
selling- intoxicating- liquors, real and personal, was made liable to
seizure and sale to pa}^ any tine or judg-ment ag-ainst the x>erson, for
the violation of the law. At the same session of the legfislature, it
was made unlawful to sell or g-ive away any intoxicating- liquors on
the dav of any g-eneral or special election.

On the 15th day of January, 1875, the leg-islature passed an act
amending- the laws enacted in 1868 and 1873. Under this law, one of
the conditions of the bond to be g-iven by the person obtaining a li-
cense was, that he would keep a quiet and orderly house, and that
the bond g-iven could be sued and recovered upon in a civil action for
the use of any person injured bv reason of the selling- of intoxicating-
liciuors by the person obtaining- a license. It was also ])rovided, that
before the license should be g-ranted, payment should be made in ad-
vance. But the most important chang-e was the provision making- it
competent and lawful for both the county commissioners of any


county and also the mayor and city council of any town or city situ-
ated therein, to require the payment of a license. Upon the adjourn-
ment of the lejo-islature of 1877, all the laws in reference to the sale of
intoxicatint>- liquors were in the revised political code.

Bv this code the amount of the bond required for the sale of
intoxicating- liquors, was reduced from three thousand to live hun-
dred dollars, and one of the conditions of the bond in addition to
those before required was, that the place of business should "be
closed at the hour of eleven-thirty o'clock p. m. every night." An-
other new feature of this law was that after notice by any person to
a county commissioner or mayor, that a relative was in the habit of
o-etting" intoxicated, and of whom he w^as in the habit of obtaining- his
liquor, it became the duty of the commissioner or mayor to notify
such person not to furnish liquor to such habitual drunkard, and in
case he did so, he w'as liable to a heavy fine, and also to pay the per-
son causing the notice to be given, the sum of fiv'e hundred dollars
for each offense. The amount to be paid for a license was left in the
discretion of the county and city authorities, not to exceed three
hundred dollars, nor less than thirty dollars, and both county and
city license could be required and a city license could not be taken
out without first taking- a county license.

The territorial legislature in 1879, revised the whole law by the
enactment of chapter 26, comprising- 23 sections. The first section
required a license to sell in quantities less than five gallons, and the
amount to be paid for a license per year was left in the discretion of
the authorities g-ranting licenses, not to exceed five hundred dollars
nor less than two hundred dollars. A bond was required in the sum
of five hundred dollars, conditioned to keep a quiet, orderly house,
not to permit gambling, and to close at eleven o'clock P. M. every
nig-ht. The liabilities imposed for selling- to an habitual drunkard
by former acts were retained. Kvery person causing- the intoxica-
tion of another person by the sale or giving away of intoxicating- li-
quors was made liable to pay for his care while intoxicated, and the
person who became intoxicated was liable to a fine of not less than
five nor more than twenty-five dollars.

Commissioners were made liable to fine for taking- insufficient
bonds, and every person selling in violation of the law^ was made
liable to both fine and imprisonment.

Drugg-ists w'ere permitted to sell without license upon a physi-
cian's prescription. It was not law^ful to sell to minors, and the
g-rand juries were enjoined to indict all persons violating- the law.

The legislature of 1881 and 1883 made no change in the law, and
the legislature of 1885 only prohibited the sale within one-half mile
of any agricultural, horticultural or mechanical fair being held under
the auspices of the territorial board of agriculture; within three
miles of the University of Dakota; and within one mile of that part of
the village of Iroquois and Denver, lying in the county of Kingsbury,
during- the time no license should be granted in King-sbury countv.

The legislature of 1887 made no changes in the law of any ac-
count, except to raise the maximum fee for a license from three to
eig-ht hundred dollars.


The first innovation upon the practice of reg-ulating- the sale of
liquors by license, except in isolated cases, was the enactment of the
law March 11, 1887, providino- for prohibition by local option.

This act provided for prohibition by counties. Bv its terms,
whenever one-third of the lejjfal voters petitioned the county board to
submit the question of prohibition to the voters of the county, it be-
came the duty of the board to do so at the next g-eneral election after
the filing- of the petition. Chapter 70 of the session laws of 1887,
had no more than become the law of the territory, than the prohibi-
tionists in Minnehaha county commenced to make the "wheels o-o
round" under its provisions. The petition was obtained and sub-
mitted to the board at its July session. 1887, and by the board verv
deliberatelv examined, resulting- finallv in an election being" ordered
to determine the question in November.

After the question had been settled that the people of Minnehaha
county would have an opportunity to vote upon the tjuestion, the next
thing- in order of course came about — a campaig-n for and ag-ainst the
measure. It was a campaig-n with some new features in it. Women
for the first time in the history of the county went to the polls and
labored industriously to obtain votes for the measure. When the
canvassers were throug-h with their labors, it was known that Minne-
haha county was prohibition by a vote of 1,676 /r>r, and 1,288 ar>-a/)is/.
The City of Sioux Palls cast 745 for, and 453 ag-ahist the measure.
Prohibition had been established by law, and the next question was:
What would it avail? It must be said that the prohibitionists, real-
izing- that a g-ood many persons would be compelled to stop business
at a loss not only of a dailv revenue but upon their fixtures, verv
kindly and g-enerously intimated by both acts and words, that those
who would make a beg-inning- towards closing- the business of selling-
intoxicating- liquors would not be unduly accelerated in their move-
ments. This disposition was indorsed by a g-ood many of the g-ood
people, but it was only a short time before it was evident that the
lions were eating- the lambs, and that closing- up the business in this
way would be a ling-ering- experiment, to say the least. Active
operations were commenced by way of injunctions. The forces
rallied on both sides, and it was for a while a sort of roug-h and
tumble fig-ht. One case went to the supreme court and the state pre-
vailed. After the law had been in operation a few months, the vio-
lators became enboldened, and when it was decided by the county
commissioners in July, 1889, to resubmit the question to a vote in
November, all restraint seemed to be removed, and the law had a
standing- place only upon the statute book. The vote cast at the No-
vember election was for the sale 2,314, ((i>-(ti)ts/ the sale 1,314, and
this was the end of prohibition in Minnehaha county under the ])ro-
visions of the local option law.

On the 22d day of February, 1889, the President sig-ned the act
providing- for the admission of South Dakota as a state. This was
no sooner done than the prohibitionists beg-an to work for constitu-
tional prohibition, and when the deleg-ates to the constitutional con-
vention assembled, it was soon evident that the cjuestion would hti
submitted to a vote of the people in some form.


So desirous were the members of the convention that there
should be a strong- vote in favor of the constitution to be submitted
by them, that the question of constitutional prohibition was submit-
ted to a separate vote. The vote in the county upon this question
was 2,24-4 in /'a vor a,nd 1,44-2 an-aii/s/. The vote in the state was 40,-
234 /"or and 34,510 as^-ahisf.

Article 24 of the constitution is as follows: "No person or cor-
poration shall manufacture or aid in the manufacture for sale, any
intoxicating- liquor; no person shall keep for sale, as a beverag-e, anv
intoxicating- liquor. The leg-islature shall by law prescribe reg-ula-
tions for the enforcement of the provisions of this section and pro-
vide suitable and adequate penalties for the violation thereof."

The first session of the leg-islature of the State of South Dakota
for the enactment of laws, convened January 7, 1890, and adjourned
the 7th day of March following-. One of the most important matters
considered by that body was the framing- of a law to enforce prohi-
bition, and as a result of their labors we have chapter 101 of the ses-
sion laws of 1890, comprising- 36 sections, which took effect the first
day of May following-. It was unskillfully arrang-ed and its meaning-
obscure, and it would seem that its authors, whenever in doubt just
what to do, adopted the plan of covering- the subject with blanket
provisions, hoping- that, in some way, a construction would be put
upon them, calculated to destroy the traffic in intoxicating- liquors.

Of course, it could not be expected, that the law would be a wise
one in all respects, but there was no excuse for its unintellig-ible pro-
visions in reference to jurisdictional matters, that must naturally
arise in its attempted execution. While criticising- it, it is but just
to say, that its provisions were strong- enoug-h to make it a terror to
evil doers, provided public sentiment had favored its enforcement.
It is one thing- to enact a law, and quite another to enforce it, and no
intellig-ent person will have the courag-e to say that there is any other
subject upon which penal leg-islation, here or elsewhere, has ever
been enacted that is so dependent upon public sentiment for its exe-
cution. The larg-e interests involved, the desire for strong- drink,
the dislike by persons and communities to be dictated to in matters
of this kind, all conspire to make the enforcement of prohibitory
laws almost an utter imposibility in certain localities. Minnehaha
county, and especially Sioux Falls, is one of those localities.

Soon after the first of May in 1890, proceeding-s were commenced
in Sioux Palls with the view of closing- the saloons. C. O. Bailey,
then state's attorney, proceeded to take testimony in reference to the
sale of intoxicating- liquors, but in his innocence failed to subpoena
before him such persons as had the required knowledg-e. It is in-
teresting- to know the different phases the defense has taken as time
lias ])rog-ressed. At first the witnesses had drank in several places,
but their recollection was dim as to when it was, possibly it was be-
Fore the first of May; it was whiskey and beer, but when it was, thev
could not remember.

The next attempt was made in Se[)tember, 1890. Testimon\- was
procured and injunctions broug-ht ag-ainst the Sioux Falls Brewery
and about thirty saloons in the county before the first day of Jan-
uarv, 1891.


Three or four informations were tiled a^-ainst persons, charg-ino-
them with selling- intoxicating- liquors as a beverag-e, at the Septem-
ber term of the county court in 1890. In all these proceeding-s, W.
A. Wilkes, Esq., was associated with the writer in the prosecution,
having- been employed by the Sioux Falls Committee of One Hun-
dred. In March, 1891, several informations were tiled in the countv
court and jury trials had. In May following- about a dozen indict-
ments were found by the grand jury, charging persons with selling
and keeping- for sale intoxicating- liquors. Prom that time until 1895,
a few violations of the law were brought to the attention of the g-rand
jury, and indictments found, and occasionally an effort would be
made to close the saloons not only in Valley Springs, Garretson,
Hartford, Baltic and Dell Rapids, but in Sioux Falls.

Right here we will devote a little space to the history of the Law
and Order leagues that have been organized in Minnehaha countv,
especially those which were orgfanized after statehood.

As soonas the prohibitory law had been enacted, both its friends
and enemies looked upon Sioux Falls as the place where its efficiency
would be determined. At a very early date the friends of the law in
Sioux Falls organized a local leag-ue, a branch of the state leag-ue,
which had been organized for the enforcement of the law, and everv-
thing was put on a war footings. Notwithstanding this org-anization,
eighty-three citizens of Sioux Falls sig-ned a call for a mass meeting,
to be held on the 7th day of March, 1890, for the purpose of consid-
ering- the advisability of a still further local org-anization in aid of
enforcement. This meeting- w^as well attended, and the subject of
the enforcement of the law was discussed in all its bearings. After
a long session, a committee of tive was appointed to draft a constitu-
tion for the government of an independent local Law and Order
league. The meeting- adjourned until the 11th day of March, and on
that day the committee presented the draft of a constitution to gfov-
ern a local Law and Order association "to aid in the enforcement of
the laws of the state and the ordinances of the city." The work of
the committee was unanimously adopted, and the association orgfan-
ized with a full corps of officers.

It was about this time that a new feature was injected into the
prohibition arena. The "original package decision," rendered bv
the United States supreme court, gave the liquor dealers power to
practically evade the law, and they put on a bold front. The Val
Blatz brewing company of Milwaukee put on the streets of Sioux
Falls, for the delivery of beer in "orig-inal packag-es," a very tine red
wagon, drawn by a very attractive pair of horses "togg-ed out" in
g»-reat shape. But the prohibitionists of the country went to the
fountain head, and secured the passag-e by Cong-ress of an act that
took the "original packag-e" feature off the tield of battle.

But it is hardly \vithin the scope of this work, and we will rest
content with saying that in our opinion it is inexpedient and unwise
to attempt by such org-anizations to aid in the enforcement of law,
whether it be for the suppression of the sale of intoxicating*- liquors,
the whipping of immoral persons, or the lynching- of horse-thieves.
Efforts of this character, w^hen purely in aid of the local officials, are


at best ephemeral in character, and when they subside and their
stimulating- influence is a thing- of the past, it is impossible that the
lawfully constituted authorities should not be carried back from
their outposts with the subsiding- wave.

But to return to the history of the enforcement of the law in
Minnehaha county.

The trials to a jury upon informations and indictments were
anything- but satisfactory. In some cases where the testimony was
overwhelming-ly conclusive as to the g-uilt of the persons charg-ed,
and no attempt made to contradict the testimonv, the jurv acquitted
or failed to ag-ree. If the crime charg-ed had been burg-lary, robberv
or other crimes of like character, the testimony would have been am-
ple, and a conviction would have resulted. However much such a
state of facts was to be deplored, the fact remained that such was the
condition of affairs in Minnehaha countv during- the attempted en-
forcement of prohibition. In fact, the violation of the prohibitory
law was. not looked upon by the public like the violation of any other
law, and the verdicts of jurors will not rise above public sentiment,
and no one but an unreasoning- enthusiast will ever expect to enforce
a prohibitory law without the aid of a strong-, healthy public senti-
ment in favor of it. The adverse public sentiment not only affects
jurors, but it deters public prosecutors in the performance of their
duties, and our judg'-es are more or less influenced and intimidated in
their actions by it. It was impossible to convict anyone charg-ed
with selling- intoxicating- liquors, unless he was friendless. In some
cases where the defendant was known to be g-uilty of about every-
thing- else, and his character was known to the trial jury, a convic-
tion was obtained and the minimum punishment inflicted, but in no
other case was there a conviction, with one exception. The testi-
mony upon the trials was usually g-iven by either witnesses who were
employed to g-et the testimony, or by those who testified unwilling-ly,
and after four years of experience with them it is still an open ques-
tion with the writer which class is the most available. It would be a
hard matter to g-et tog-ether twelve jurymen who w^ould believe the
first class. There is a widespread prejudice ag-ainst spotter testi-
mony, as it is called, and verdicts of g-uilty upon the testimony of
"spotters" are not returned.

But how is it with the other class? They commence by knowing-
nothing-, and the longer you interrogate them the less they know.
Drive them into a corner and you will find that their eyesig-ht is dim
— their hearing- hard — their sense of smell impaired, and as to their
sense of taste, why, it never had been educated to discern liquids.
Call their attention to buttermilk and molasses, and a ray of intel-
lig-ence will brig-hten up their countenances for a moment, but name
beer or whiskey, and they will become as expressionless as a g-raven
image. xVnd this is what public sentiment will do to a witness.

The nuisance feature of the law, was at first supposed to be an
insurmountable obstacle in the way of maintaining- a place of business
for the sale of intoxicating- liquors. An injunction upon the business
and closing- the doors, would at first blush seem to be a pretty ef-
fectual remedy. But it did not prove to be very damag-ing- to the


liquor interests. Before proceedinjjfs could be commenced, testi-
mony had to be procured, and it had to be clear and unequivocal that
the premises soug-ht to be closed were used for the sale of intoxi-
cating- liquors contrary to law. This would appear to be an easy
matter, but instead of receiving- assistance in obtaining- testimony,
every conceivable obstacle was thrown in the wav of the prosecutor.
An unwilling- witness, as a rule, never tells the whole truth, and the
portion left untold is just what is wanted. If- a "spotter" is em-
ployed, he requires constant attention, and if his wants are not
looked after by his orig-inal employer, he g-ets nourishment from the
other side, and when you are ready to use him he is g-enerally to be
found in the camp of the enemy. For awhile, all the places closed
belong-ed to innocent parties, and under the statute they proceeded
at once to g-ive bonds, that the premises should not be used for a
year in the liquor business, and g-ot them released and the action
abated. Some of the places enjoined would not sell at auction for
ten dollars — the parties occupying- them worthless — and when von
closed one shanty, they would slide into another hen-house and set
up business.

One of the circuit judg-es in the state held that a person en-
g^aged in the business of selling- intoxicating- liquors himself in his
own building-, could repent, pay the costs, g-ive bonds for one year and
be absolved. In short, have the injunction dissolved and the pro-
ceeding-s abated. The platter had been pretty cleanly licked before,
l>ut this "lapped out the spoon."

Ag-ain, it was somewhat troublesome at times to g-et the neces-
sary and legfitimate costs paid. The county board, or rather a ma-
jority of the members believing- that nothing- could come of attempted
enforcement, were for the first two years adverse to expense being-
incurred in liquor prosecutions, and this made it unpleasant for the
officials eng-ag-ed in the work.

In 1893, the following- request, sig-ned l)y 256 citizens of Sioux
Falls, was sent to the writer, then state's attorney:

"Hon. D. R. Bailey, State's Attorney of Minnehaha county:

"Dear sir: — We the undersig-ned, citizens and taxpayers of the
City of Sioux Falls, Minnehaha county, do respectfully request that
in the future you desist from suing- out of court any writ or writs of
injunction restraining- the sale of liquors in this city, or taking- any
steps toward enforcing- the present prohibitory law. We respect-
fully sug-g-est that your own experience in seeking- to enforce such
law must have convinced you of the utter futility of such eifort, and
call your attention to the 'Fine System' so called, that is in opera-
tion in this city, and venture the opinion that it is productive of far
better results than the 'Hole in the Wall' system which prevailed

Online LibraryDana Reed BaileyHistory of Minnehaha county, South Dakota. Containing an account of its settlements, growth, development and resources ... Synopsis of public records, biographical sketches .. → online text (page 23 of 99)