The Evansville daily journal. [volume] (Evansville, Ia. [i.e. Ind.]) 1848-1862, 1855-12-27
! EyANsVIILE, IND, THURSDAY MORNING. DECEMBER q,
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An Abstract of the opinion Of Judge Gookins on
- the Temperance Law-prepsred By, himself 4
sBEnEE Appeal from Marion p yas %
THEs STATE poe Common Pleass sa5i ,zetru
The appellant was committed by the May
or Of Indianapolis on charges ofmaking and sell
ing intoxicating liquors, in violation ofthe act
of February l6, 1885, entitled IAN act to pro-
hibit the manufacture and sale of spirituous
and intoxicating liquors, except in cases there
in named, and to repeal all former acts inco1-
sistert Herewith, and for the suppression of
Iintemperanee.1 He sobtained writ of ha5eas
lcofpus, from the Common Pleas, and claimed
to be discharged on the ground, that the act
was unconstitutional. On being remande he
appealed to the Supreme Court. s9a ,SeoA sli5
The first position he assumes is that the
act transeends the power of, the Legislature
that the Constitution is a grant of powers, in
the nature of power of attorney, and that
conSequently the act is unauthorized b93al
The act prohibits the manufacture and sale
Except Uncertain cases. The exceptions are
cider and domestic wines, which may be n sold
in quantities not less than three gallons, Il
quors imported under the laws Of the United
States, while remaining in the original casks
or packages, liquors manufactured under. au-
thority from the Board of Commissioners of
the several counties, which can be sold only
to agents, appointed by the Board, and liquors
sold by such agents formechanical and scienti-
lfic purposes, and used for religious ordinances
Drugs, medical compounds. and other articles
composed in part ofalcohol, if not adapted to
use as beverages, are also excepted. All'other
manufacturing and selling are declared un-
lawful, and liquors kept for unlawful sale
lor q portion thereof, are dsolarednuisances and
liable to be destroyed as such, on being SO ad-
Judged, in formal trial, which the act pro-
lyides. al-ls Oh bns ,itNoD ps17iiu 9Raa ins5la
The 1st section Of the 4tll article ofthe con-
stitutionis is as follows: ':IheIegislatiye author
ity of this State shall be vested in the General
Assembly, which shall consist OF a Senate and
House of Representatives. Whether .receiv-
ed as grant or Limitation, it includes all, pro-
Tpcr subjects of legislation. The instrument
specifies but few subjects of legislation, and
tifviewed as a grant, implyinga denial of all
laws must fall for the want of foundation on
which to rest. The legislative power of the
State is supreme, unless restricted by the con-
stitution. 8 Black, 299, 8 lb., 10 seed gFfd
- The State is sovereign, as declared in the
Declaration of Independence, the articles of
confederation of 177S, art. 2, and the Constitu-
| ton of the United States, amendments, art. g.
State sovereignty has not its origin in these
instruments; in the American governments it
pre-e xists, with all powers necessary to secure
the common good.
The act is said to violate those provisions Of
the bill of rights, which secure the people in
the right ofproperty and the pursuit of happi-
ness, that the State has invaded the rights of
the people by engaging in trade and manufac-
sure and creating monopoly.
This is a mistaken view of the tenor and OBJ
tjects of the law. 1t proceeds upon the grounds
that intemperance is an evil that ought to be
remeded, that he general prohibition of the
manufacture and sale are proper means of at
tanning that end. 1t comedies, however, that
for certain purposes liquors are necessary or
at least convenient, and it endeavors to supply
that necessity or convenience, through agents,
who are not interested in and derive no profit
from the business.
The main inquiry is, can commerce of intoxi-
lcating beverages be eut-lawcd? and, inciden-
tally, TO what department of the government
does it appcrtain to declare whether they
may not be?
Il Drunkenness is admitted to be an evil to the
individual and to the State, destructive to
the mind and botiy, productive of most
Iof the crime that is committed; it is sup
lported by taxation Of the people; it de-
I stroys the peace, safety and happiness of the
Ipeople, which the first article in the bill oi
rights declares all free governments are institu-
$ ted to secure and these effects are alleged to
result chiefly from commerce in the prohibited
lartices. The Legislature has assumed these
lewis to exist, and it does not deyole upon this
ICourt to declare that they do not The inquiry
lis not open to US. We cannot legally or consti-
Itutionally assume that we know more of the
4 effects of the traffic than the Legislature. To
e provide for the peace, safety and happiness o.
d the people, no power is given to this Court
lit is devolved upon the Legislature. An at
: tempted infringement by this Court upon the
powers ofthe Legislature would be itself uncoh
lstitutional and subversive of free government
If tribunal oflast resort over leaps its consti
tItional barriers, and inyades the province o
: the Legislature, there being no common arbiter
and the ballot box being powerless, there is
no remedy but revolution.
1t is said liquors are property; that they are
protected as such by the constitution; they arc
not precise nuisances, and that the Legislature
a has no power to declare them so.
This is only stating the objection in anoth-
er form. Who is to judge whether liquors a:
fused in commerce are nuisances or notf A
: nuisance is defined to be anything that work
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