The Richmond Indiana palladium. [volume] (Richmond, Ind.) 1854-1855, 1855-12-13

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It saws so. May be it is mistaken. Let US
see if this word may forbids its effect. The
authority given TO commissioners to grant H.
censes, and appoint agents. is either Judicial
or ministerial. Which it may be is not mater
ial TO our argum ent. For the sake of argu-
/ ment, let us suppose, however, that it is Judi
cial, as the commissioners are court Of rec
ord fThe State V. Conner 5 Blackford, 325,
and as they can only grant the licenses and
appoint the agents while sitting as such Court.
If the doing Of these things IS judicial act,
we have no objection to constituting the term
I may as giving to the Court Discretionary
power of appointing manufacturers and
agents; for it cannot be doubted that the Leg
islature NAV give 10 Courts a Discretionary
power. Our Supreme Court has always re-
tcoeniZed the existence of such a power, in
relation 10 continuing causes, examining wit
nesses, granting new trials, and many other
things; IN the inferior courts. No, one ever
supposed that the new constitution could be
violated By the exercise of such Judicial dis
fcretion And surely the grant Of such dis
4cretionarv pow er cannot make the taking ef
feet Of the law depend on the will of the
Court, for the grant itself is the law, and the
Court could not exercise the discretion unless
the law to0t effect before it is exercised
On the other hand, it this power is not iu
dicial, but ministerial, then a we'll known rule
of construction requires that the word may
shall be deemed equiv alent to the term mast.
or, in other words. is imperative. This rule
has even been applied to the statute concern
ing pleading. The statute of and 9 w. g.
c. 1, s. 6. provided that suits on penal bonds,
''the plaintiff may assign breaches, and
''naoy suggest" breaches; and it has always
been held that under these provisions the
plaintiff must assign suggest breaches.
Saund. r. So. n /; Blackf. rs, n. /. We
understand the rule of construction, as to
statutes imposing ministerial duties, to be this:
in all cases where power is given to do min
isterial act is given by the word may. it shall
be construed must, if the rights of individuals
or The public good require the thing to be done
There are many authorities in support of this
rule. The following some of them: 5
Johns. Ch. R. 101; 5 Cowen. 1885, ii Sergaa
and Rawle, 429; b, C. l. R. As; 1 Pet
46; 9 Saia 609: 3 AK R, 146; Smiths Com,
! 724 to 730.
But we go further We insist that upon a
fair construction of the whole statute, the duty
Of appointing agents is imperative, whether it
be regarded ministerial Or judicial duty
The 9th section of the. act authorizes the
agent to sell. for lawful purposes, ito any
person of the aseof twenty 7one. years, being
"
tant OF Tie county IN Which such llquor IS
sold, or of township or city adjoining said
county" By this language the Legislature
evidently intended that agents should be ap
pointed in every county-otherwise there
could be no sale, even for medical, mechani
cal, or sacramental uses, TO most of the citi-
zens of the county where no agency happens
to be established. Again: the 34th section
provides that, in case of seizure of intoxica-
u
being taken the part OF the State, lie the
oficerI shall deposit the liquor seized with
the county agent for safe keeping, and make
his return accordingly" Hence. il appears
to be necessary and to have been contemp,a-
ted By the Legislature, that the agents must
be appointed in every county. Moreover, if
the privilege OF buving intoxicating liquors
be natural inaIienabie right, and privilege
Of so much importance, IS our opponents af-
feet to consider It. it becomes an imperative
duty on the county boards TO secure to them
that right by appointing agencies eyeTywl.sre;
and for -ha- very reason may ought 20 b
construed mast IN is connection above refer
red .
Besides all this If the construction OF .2ae
4th and 9th sections of the act as to this word
may be doubtful, and if to construe i.
as giving discretionary power merely, would
make the act unconstitutional. i on Ii: 10 be
construed mast on wellknown rule that
where there are words capable of two mean
ings. they ought to be construed as to give
effect to the statute. and not 50 as to make It
s nullity Smiths Com. $50, 633.
2 f. tits objected tina. this statute is void as
being in conflict with the constitutional right
Of trial by jury.
Tns objection is a mere inference from
g. ~, :
pressly provide for a jury trial. To render the
objection Of any weight, the statute must eth
er fo5bid jury trial, OF provide mode OF
trial without a jury Il does neither In
deed il plainly recognizes and supposes the
right OF trial By jury for it provides, in tie
2f.h section, for lie qualifications Of jurors
and the 53i section expressly provides io7 a
jury trial u case of appeals. Bat we have
general laws for jury Trials in al the Courss
To these the statute undoubtedly refers tie
party accused Of a breach Of t. When a
statute creates a new offence, it need not pro-
vide for a jury trial If this statute had pro
vlded 50, such provision would have been OBJ
Jected 70 by our opponents not being ger
main to the subiec: of the statute II the
objection made is good one. We have no
valid law by which man could be tried for
any crime: for neither our act concerning
b ietot4ieo, Aoi me s+S'ute feIAAAng 10 misoe-
mesnors, provides for ajury trial. Our vie W
is sustained by the decision IN the case Of Jones
v. the People, "A H. Il. 1896 That was a
prosecution under an Illinois liquor law which,
L seems. did not provide for a jury trial But
the Cour; said there IS TO force in the obiee-
ton. in any poin; of view. as tbs law makes
ample provision for calling jury in q case
pending before a justice of the pesce.'-
So do our statutes. See 2 &. S. 49S, soc.
ton 6.
5. lis supposed by the appellant that por-
tons Of this are In violation of the o2nd and
o-si s....;1...s Ii, arti..le IL CO.,