Indiana State sentinel. [volume] (Indianapolis) 1841-1853, 1846-11-19
The License Law.

spriluous liquors in Marion couniyto the effect, that
the voters in the respective townships might decide
by vote whether the county commissioners should or
should not grant licenses according the Statute law
in force The result has led 10 numerous evasous Of
the Jaw and to no inconsiderable number Of indct-
mcnts by implication and otherwise. These indict-
nents are not sustained by the Court and neither
ought, nor, in our opinion, they be- We are as
much in favor Of the Temperance cause, any one.
But we not 10 be made so Jigoted and mad on the
subject to kill ourselves by drinking all the liquor
to save others :! The result Of the efforts of fer,
who lead many. in their anxiety be oyer-righteous
in this respect is doubt to open The door to inds-
crminate sales and the loss Of revenue, 1t shows,
also, the necessity for more care in legislation Enter
tanning these views, sought the opinions of others
on the subject, and present the following from able
counsellor. If it be shown to be incorrect, we
shall accordingly reverse our judgment"
have been requested to give legal opinion on
the following question: is the selling Of spirtuous
liquors in less quantity than quart, an indictable
offence in Centre township" The solution of it
depends on the effect of three several enaciments
By one of these, it is declared that Every person
" not 6eing licensed according to the lars force ut
g The time TO yend spirtuous liquors by retail, who
{" shall barter seany sprituous liquors to be drunk
g in his or her house, clubhouse, yard garden,
'appurtenance thereto belonging or who shall barter
sell any such spirtuous liquor by less quantity
a. than quart at a time, shall be fined in any sum
ssnot less than two dollars nor more than twenty
" dollars" See Revised Statutes p. go.
The expression in the above Statute, Every per-
not being licensed according to the laws in force
at the nne," renders it necessary to ascertain who
within its penalties, to inquire, 1hat the la1
an force al The time
& This inquiry is answered by referring TO the law
the subject of specific tares for county purposes.
See Revised Statutes p. 235, which enacts that there
shall be assessed and paid into the county treasury
for county expenditures the following taxes among
other taxes enumerated. For each license to vend
retail spirituous liquors not less than ten nor
" more than two hundred dollars" The penalty
consequent violation of this law is thus express
ed: Every person who shall transact or carry on
" any business above specified, rithout first procuring
+" the license required for each and every such offence
s. shall be liable to action in the of the
county treasurer for the amount of such sx before
any Justice of the Peace, and if judgment shall be
rendered for the plaintiff damages shall likewise be
/" awarded to four times the amount Of such tax
1t is evident from the whole language and spirit of
this latter act that it is essentially law made to
raise revenue; that the only offence which can be
committed under it, is selling cithOut license and pay.
ment Of the required tar For this, penalty of four
times the amount of the tax is awarded. The Statute
just quoted goes step farther, and superadds 10 the
quadruple tax, penalty of not less than two nor
more than twenty dollars.
There yet remains to be noticed the Statute of 1885,
entitled " An act giving the rights to the Of
Marion county to decide as to authorizing licences
" retail spirituous liquors in their townships
This act provides " That hereafter it shall be law
" ul for theboard doing county business to grant any
" license retail spiriuous liquors in any township
" in said county, unless majority of the qualified
" voters of such township in favor of such license
. being granted" 1t further odds that a vote Of
license no license shall be taken, and if the majo-
rty be in favor of the latter the commissioners shall
and prohibited from granting any. IL contains
provision declaring The sale # hquor by retail a
penal offence in The abstract The vote Of the people
of Centre township in pursuance of this Statute was
taken and declared to be against the license act The
commissioners obedient that vote and the
in question, grant no license.
Now what is the effect of the passage of this law
the vote taken in conformity to it, and the prohibition
upon the commissioners consequent upon it, from
licensing retailers If it has any legal operation
all, it goes TO repeal in Centre tocnShip the State
law which had declared it penal to sell with
out license and payment of a tax. If this original
law creating the offence be obliterated, what becomes
of the amendatory enactment which simply attaches
additional penalties for that rery offence 1t seems
to be entirely imperative. The expression contained
in it," Every person not being licensed according
to the laws in force the time presupposes Ian
susceptible of riolaiion and designates the person,
capable Of violating it. The law taken away, there
is no person within its purview.
Again. Selling liquor by retail under a gver
quantity is not offence at law. 1t requires
therefore cypress act Of legislation to make ii
offence 1t cannot be done by implication If the Statute
in place of the words Every person being Licensed
and who shall barter, &c.," read Every person whit
shall barter might then be held abstract pena
offence retail This, however, would be an amend
ment of the law which the Legislature alone has tn
constitutional power to make. A court of justic
which would thus amend the Statute would commi
an act of judicial Legislation.
am of opinion that according 10 the written Law
of the State, the selling of spriuous liquor by retail
in Centre township in any quantity is not indicabl
by Statute but existing right at common law.
JOHN B. THOMPSON,
Counsellor at Lar.
| GrMr. d. S. Duty, of this place, was dangerously
if not MORALLY wounded day before yesterday, by
blow on his head inflicted by Mr.. Sherman. with