Indiana American. [volume] (Brookville, Ind.) 1833-1861, 1855-12-28
VNf - ~
CALEB MILLS,
Superintendent.
An abstract Of the Opinion of Judge
Gookins on the Temperance Law,
Prepared by Himself.

BEBEE vs.. Tue STATE.-Appeal
Marion Common Pleas.
The appellant was committed by
the Mayor OF indianapolis on charge
of making and selling intoxicating IL
auors. in violation Of the act Of Feb
ruary I6. eniilled, can act to prohib.
il the manufacture and sale OF spitilu
Gus and intoxicating liquors, exec pit in
cases therein named. aud to repeal all
former acts inconsistent Herewith and
for the suppression Of incompetence"
He obtained writ of habsos corpus
rom the Common Pleas, and claim
ed TO be discharged on the ground
tfat the act was unconstitutional. On
being remanded he appealed TO the
Supreme Court.
The first position he assumes is. that
the act transcends the power OF the
Legislature; that the Constitution is n
grant Of powers. in the nature Of a
power of attorney, and that conse-
quently the act is unauthorized.
The act prohibits the manufacture
and sale, except in certain cases
The exceptions are cider and domes-
Tic wines, which may BE- sold in guam
titles not less than thee gallons; Il.
quors manufactured under authority
from the Board Of Commissioners OF
the several counties. which can b.
sold to agents appointed by the Board;
and liquors sold by such agents foi
mechanical and scientific purposes. and
wine for religious ordinances. Drugs,
medical compounds, and other arti.
cles. composed IN whole or in part oil
alcohol, ii not adapted 10 use MS bev.
erages. are also excepted. All other
manufacturing and selling are declsr.
ed unlawful sale. with the actual sale
Of portion thereof. n. declared nii.
sances. and liable to be destroyed a,
such. on being 50 adjudged in u form.
CIR trial, or which the act provides.
The LIST section of the 4lh article |,
MS follows: 'The Legislative authority
" this State shall be vested in tn,
General Assembly. which shall con
sist of Senate aud House OF Repre-.
sentaiives" Whether viewed as 4
grant or limitation. II includes nj
proper subjects of legislation. The
instrument specifics but u few sub
jects Of legislation. and II viewed MS 4
grant. implying denial Of all power,
not enumerated. the great body of oul
laws must fall for the wac OF foun
dsti,n ON which, to rest. "The lcgis
lauve power OF the Safe is Supreme
unless restricted by the Constitution.
6 BIackf. 600. 8ib. 10. a.f
Tha State is sovereign. rs declared
in the Declaration OF Independence
the articles Of Confederation of 778
art 2. and the Constitution If the Uoi
ted States. amendments. ART o. Stat,
sovereignty has not It's origin in th~s'
instruments: IN the American govern
ment IL pre- exists. with all.powers ne
sessary TO secure the common ge,'l
The act Is said to violate those provi
sions of the hill OF rights. which secar,
the people in the rignt OF propcrt,
aud the pursuit., Of happiness. that lh,
State has invaded The rights OF III,
people by engaging in trade and man
ufacture. and creating monopoly.
Thisis a mistaken view of the tenor
and objects Of the law. IL proceeds
upon the ground that incompetence i,
An evil that ought to BE- remeded
that the general prohibition Of tn,
manufacture and sale are proper means
of attaining that end. Il comedies
however, that for certain purposes H.
quors are necessary. or at least con.
venient, and it endeav ors TO suppl,
that necessity or convenience. through
agents. who are not int rested in and
derive no profit from the business.
The main inquiry is. can commerce,
in Intoxicating beverages be ouilawed
And Incidentally. TO what department
Of the government does il appertair
to declare whether they may or may
mot be2