Weekly Indiana State sentinel. [volume] (Indianapolis [Ind.]) 1853-1861, 1855-11-15
Habeas Corpus before Judge Perkins
of the Supreme Court
HERMAN Us. THE STATE.
OPINION OF THE JUDGE.

Herman was arrested upon charge of having
violated the liquor act Of 1852 He obtained a
writ Of Habeas Corpus, pursuant 10 which he
is now brought before us at chambers with the
cause Of his detention in custody.
His counsel moves for his discharge ON the
ground that said liquor act is unconstitutional
and void. The case is submitted to as upon
the arguments heretofore fled in the Supreme
Court in the case of Bebee
We regret that this question has been thus
presented TO us. We had hoped that these APP
piications would have been confined to the in
ferior courts till the Supreme Court had dcci-
ded upon the validity of the law in question.
But the Legislature, acting. as we think, with
i'm the constitution, has conferred upon the citi-
Zen the right Of suing out the writ Of habeas
corpus from the judges severally OF the Supreme
Court; the right has been exercised i'm this case,
and il is not for US, upon slight pretexts, TO
shrink from the discharge Of the duty, thus, as
we cannot, indeed, but believe iniudiciously
imposed upon US.
Counsel on both sides concede in argument
that the record presents the question of the
validity Of. at least, what is alleged to be the
prohibitory portion OF said liquor act. and that
question viii, therefore, without inquiry upon
the point, be considered.
We approach it with all the caution and so
hctude its nature is calculated to inspire, and
that intention of careful investigation its i'm
portance demands, feeling that the consequences
Of the principles we are about to assert will not
be confined in their operation to this case alone
Preliminary TO the discussion Of the main aues-
tons involved, however, the course of argu-
Inent Of counsel requires that we should say a
word by way Of fairly setting forth the duty
this court has to perform in the premises. viz:
the simply declaring the constitutionality or
unconstitutionalIty Of the law, with an assign
ment Of the reasons upon which the declare
fion n based.
1t will not be for us to enquire whether it be
q good or bad law, in the abstract, unless the
fact, as It might turn out to be- should become
Of some consequence in determining doubtful
point on the main question. 1t not unfre-
quently becomes the duty of courts to enforce
lajGdicious acts of the legislature because they
are constitutional, and to strike down such as
~ first view, appear to be judicious, because
they are in conflict with the constitution
With these remarks, We proceed to the ex
animation Of the feature Of the liquor act of
1855 now more especially presented to the
court We shall not spend time upon the en-.
quiry whether, on the day it came into force,
there were existing unsold manufactured pro-
docts In the hands Of the distillers and brew
ers upon which it operated, rendering them
yalueless, or whether such products had all
been disposed of between the passage and
raking effect Of the law. We shall direct our
investigation to the character Of its operation
upon the future manufacture, sale and con
sumption Of intoxicating liquors. And.
LIST Is it prohbitory
me nrst section enacts that no person shall |
manufacture. keep for sale, or self" any "aIe. |
Porter, malt beer, lager beer, cider" wine. &c. l
Inc second section permits the manufacture
and sale OF cider and wine under certain re-
State VI '"e
Other sections permit the manufacture If
WHISKY, ale, de-, by persons licensed for the
purpose so lar as may be necessary TO supplv
Whatever demand certain persona. called crmnty
agents, may make upon them. These accents
are authorized to sell FOR medicinal, mechanical
chemical and sacramental uses and no other and
may procure their liquors of the licensed man.
ulacturers, but are not required to do so, and.
as matter of fact, do not, but obtain thor, =,
most cases, from abroad They constitnte NO
part OF the people engaged in business ON their
own account, but are appointed under the law
Sy me county Commissioners; supplied with
funds from the county treasury; paid com
pehsation Tor their services by the county. sell
Al prices liked for them. and make the nrof;ts
anu any. losses OF The business for the public treas
nfy and not for themselves We saw tbev or,
furnished with public funds They are "a in
all eases; for when they. in the first instance
invest their own, it is by way of loan ~ r.
county at fixed rate OF Interest ,,d 81
amount am Is refunded by the county with interest
these selling agents, then, IRE, and for con-
venlence. may be denomnatcd government
agents; for 1t IS all one in principle whether
the government creates and furnishes them with
funds through the medium Of the counties. or or
appoints them directly by statute and supplies
.ne'n Win funds from the Safe treasury. To
express, then, the substance Of the main nro,
thus: o PaPhfaseu
Re
s ~ enacted; ist- That the trade and bust
ness OF manufacturing whisky. ale norter asa
peer; now and Heretofore carried ON In .bis STATE
1 sin cease except that any person specially
licensed 70 manufacture for medicine. &c. for
tne government, may do so. and sell to that ex-
Tent !, the government should conclude to buv
OF such person, but not otherwise. wy
= That no person in this State shall sell anv
WHISKY, peer, ale or porter, unless the sale be
to an agent OF the government or by such aoent
&c. se"'
3. That no person in this State shall drink