Indiana State sentinel. [volume] (Indianapolis) 1841-1853, 1852-02-05
Decisions of the Supreme Court of Indiana.
NOVEMBER TERM, 1851.
REPORrED FOR THE STATE SENTINEL BY l. BOLLNAi

REPoRTED THE STATE SENTINEL BY l. BOLIVIAN.
As the subject Of the following decision has attracted
much attention. and both the Judges and the Bar are
DESTROYS of seeing the given the decision pub
lshed in full. 1t was made by Judge Perkins.-RE-
PoRTER.1
The State vs. Barbee. Error to the Marion Circuit
Court.
This is Indictment found at the December term
1851, of the Marion circuit against Sampson Bar
bee Tor retailing sprIuous liquor in less quantity than
quart without license 1t is based upon section &c. r.
979 of the X. S., which that every person who
shall so retail any sprtuOus liquor shall be hned The
indictment was quashed in the circuit court, the
ground that the section OF the Statutes above referred
local in its operation and hence abrogated by the
new constitution, adopted in August, 1851.
Ii Is admitted that said section general in its 3D.
GRAFTON its enactment, bat it is claimed that il had
been rendered local before the adoption OF the con.
stitution, by being repealed OF more of the
counties in the State.
COncedng for the present. for the sake Of the argu.
men that this latter position correct proceed
TO the question, whether the constitution
coming into force, did repeal abrogate the existing
local statutes OF the State in the specified in the
22d section of the 4th article of said Constitution
The question is important and deserves careful con-
sideratioa.
Said section % is as follows:
'The General Assembly shall not pass local or spec
al laws in any of the following enumerated cases that
is to say:
Regulating the jurisdiction and duties of Justices of
the Peace and of COnstables
For the punishment of crimes and misdemeanors
Regulating the practice in of Justice
Providing for changing the in civil and criminal
eases.
Granting divorces.
Changing the names OF persons
For laying out, opening, and working on highways
and for the election appointment of supervisors.
Nacating roads, town plas, streets, alleys, and pub
lie squares.
Summoning and empaneling grand and petit Jurors,
and providing for their compensation.
Regulating county and township business
Regulating the election of county and township off,
GERS and their compensation
For the assessment and collecting taxes for State,
county, township, and road purposes.
Providing for supporting common schools and for the
preservation of school funds.
In relation TO fees and salaries.
In relation to interest money.
Providing for opening and conducting elections Of
State. county, township officers and designating the
places of voting.
Providing for the sale Of real estate belonging to mi
other persons aborng under legal disabilities,
by executors administrators, guardians, trustees"
The 23d section OF said 4th article OF said constitution
is follows:
''In all the enumerated in the preceding section
and in all other where general law be made
applicable, all laws shall be general and of uniform op
Grafton throughout the State "
1t is contended that local laws in the
ed in said section 22 and in other like cases existing
the coming into force of the constitution in
consistent with said section 23 and therefore abro
gated by it.
1t will hence be necessary here to inquire whether
said 23d section is be construed prospectvcly,
having an immediate operation upon existing laws.
Section 22d is plainly prospeeiive-Plainy restric
tion upon the powers of future Legislatures-and we
think section % should be construed to have like oPe
ration with section % Both sections upon the
subject Indeed section % to he but conclusion
section 90, expressing afirmatively in general
the principle established by the latter seclOn and
tending that principle TO any and all where may
be applicable that might have been overlooked in the
enumeration in section p. Section % declares that IN
certain cases laws shall be local and 23d simply de-
clares how, what in those and the like cases, laws
shall he, viz: general and uniform And the question
is when they to be general and uniforms Ii
us, when Legislature under the constitution,
shall enact laws in said Ii would he
able suppose that the convention intended they should
be before the former existed that could make them
thus In fact they cannot he till then. The constuc-
given the section by the circuit court produce
the uniformity earlier The only effect Of that
strncton IS TO leave us without laws IN the enumerated
and other like cases till uniform laws enacted by
Legislature.
The Constitution itself provides no law in such cases.
and yet it declares that the laws in these cases shall be
uniform in operation throughout the State; thus
templatng the existence of positive laws these very
cases. and referring by its very terms TO the future
when such laws be enacted. The section Of the
Constitution question does that existing local
laws in said abrogated 10y IT, but that the laws
in them shall be uniform. Yet. the construction given
below the section makes it abrogae said local laws
and does not substitute In lien of them uniform laws,
but the absence Of all laws, which is contemplated
by the section We say substitutes the absence of all
laws in said eases. Take of the enumerated cases
instance-ihat Regulating the practice Of courts
of Justice" general law may have been passed oper
atng all the State, subsequently il may have been
repealed. a particular county. This, according
the decision below, renders both laws local. The
Constitution into force and abrogates both. IL
substitutes uniform law governing the practice,
and the consequence is, have law upon the prsc
tice of the law. So in relation the LAYING out and
working highways; the jurisdiction and duties Of
justices ef the peace and conStabes summonlng Jur
ors; regulating county business; the assessment of
taxes the supporting of schools and preserva-
ton of school funds, &c.
We satisfied that the sections % and %. OF art-
Gle A. of the Constitution, should be construed to oPer
ate prospectvey.
This being the case the next question presented is
whether local laws existing the taking effect of the
new Constitution, are inconsistent with provisions in
said Constitution prohibiting the passage, by future leg
slatures, of local laws. We do understand the az
imative of this proposition to be commended Tor, and
we think II cannot be successfully.
Existing local laws then, being not inconsistent with
the present Constitution, expressly continued IN
orce by it, The first provision OF the schedule annex
ed TO said Constitution, part thereof, declares
g That Inconvenience may arise from the change oil
The government. it is hereby ordered follows: first,
all laws force and inconsistent with this Con-
tuon shall remain in force until they shall expire
be repealed"
1t is the unanimous opinion of the Court that the de-
,sion of the Court below must be reversed.
In the of this opinion we have conceded Tor
he purposes of this case that the law under which this
Indictment was found had been rendered local by its
Understood deciding the point Ii is not material TO
he final disposition Of this cause. and hence does not
properly arise for decision in il. If the law net
endered local it has plainly been sbrogated; nor
las it, we have decided, if 1t was rendered local
Judgment reversed.
Jackson County.