Marshall County Democrat. (Plymouth, Ind.) 1855-1859, 1855-11-15
Habeas Corpus before Judge Perkins of
the Supreme Court.
HERMAN VS.. THE STATE.
OPINION OF THE JUDGE.

OPINION THE JUDGE
Herman was arrested upon charge of having
violated the liquor act of 1855. He obtained writ
of Habeas Corpus pursuant To which he il now
brought before N Chambers with the cause of his
detention in CUSTODY.
His counsel for Isis discharge on the ground
;hat said liquor is unconstitutional aud void
The case i submitted 10 W upon the argument,
heretofore fled in the supreme court in The case q
Hcbec.
We regret that this question, has been thas pre-
scented to US. We had hoped that these application,
would have been confined to the inferior courts till
the Supreme Court had decided upon the validity OF
the lin in question,
Bot the legislature. acting think. within
the constitution, hls conferred upos the citizen the
RIGHT of suing the writ OF haheas corpus from
The iu.ig.s -cver.lllv Of the Supreme Court; the
RIGHT has been exercised in this case AMI il is not
US upon slight pretexs, TO shrink from the dis
h ,v,,.. of the duty, thus, cannot. indeed but
beley,. iniuliciou.ly imposed upo1tu~
Counsel on both sides cOnccdc in argument that
me record presents the question OF the validity of
~ l,ast what Is alleged 10 lee the pro6i;orv por-
sion of l liquor act, and that question WILL there
<nra vitheu: Inquiry upon the point, hc considered.
w. approach it With all the caution and Solici-
tuie IT. nature l. calculated inspire AMI that in
tenton of careful Investigation IL Importance de-
MINDS feeling that the consequences of the Drnci-
rls VIZ, ,,e about TO assert will not be confined in
;hcir operation this alone. Preliminary TO
the discussion Of the main questions involved. how
cver the course of argument Of counsel requires
That We should saw word by way of fairly setting
forth the duty this court has TO perform in the prem
ises viz: this simply declaring the conStutionalitv
or r,ncon.,itutonality of the Law. with an assign
,ncnt OF tie reason; upon which the declaration i,
based.
twill nor be for us L. enquire whether il be i,
no1 or bad law in the abstract, unless the fact A.
hN hpC4D #
sequence IN determining doubtful point on the
min uneStio.t IL not Unretucntlv becomes the
luty Of courts TO enforce iniulicous of the leg
i.l,ture because they are constitutional, and 10
sike down such as. at first view, appears 10 he jul
6ious bee luse ley are ia conflict with the consii
sutton.
With these remarks, proceed To the cxalnna-
zion of the feature of the liquor act OF l>,'J now
,aore especially presented 10 the court We shall
r,ot sucnd time upon the enquiry whether. on The
DIV il came into force, there existing unsod
N nuficturcd products in the hands OF the disllcr
anil brewers upon which it operated, rendering it
yalueSS or whether such products had all been dis
r,seJ of between the passage and taking effect oi
The Inv We shall direct our Investigation 10 the
character o. is operation upon the future n1ulifc-
tire. sale AMI consumption Of intoxicating LIQUORS
Ard,
lat Is il proiihtosy'
The first section cnacts '.that M person shall
Ter. malt beer, cider, wine, DC. The second sec
ion permits the manufacture and sale of cider and
wine under certain restrictions, v any and al Of the
citizens OF the State
Other sections permit The manufacture of whisky
ale Sc bv persons licensed Tor the purpose fan
"a nav be necessary tO supply whatever demand
certain, per-ons called county agents. NAV make up
on them. These agents authorized to sell foI
medicinal mechanical ana slcramcntal uses, and no
other, and may lr1cWe their liquors of licensed
manufacturers but are EOi required u 90 80, and
ssnatter Of fact 90 nor, bat Obtain them. in most
,,ases from abroad They constitute no part of the
r.enT,le engaged in business on their OWN account,
Tut are appointed under the law by the County Com
rniSsioncrs; supplied with funds from the coanty
treasury: pld COMPENSATION 70. heir services by
she county; sell at prices fixed for cin. and make
thc prnfi and losses OF tG business for the Iublic
treasury anil not lnr thcmsclycs. WcSly .ii,y are
furnished with public funds. They are - n all ca
"a: for when they in the iir- instance. invest their
own. Il i bv way OF ioin t. the count, AZ fixed
rtc OF interest. and the amount i refunded H. e
r)uu.y with inic"cst. These -rln5 a""At-, then.
are. ami for convenience. may he denOnlnafc,i GOV
crurncnt agents: for il i all III principle whether
the government creates and furnishes them with
ftnl- through the medium Ell the counties CT a1-
I,ropriae them cir, cts b, statue AMI supplies jic
with fund. from the State Treasury. 70 express.
tn n the substance Of t4r min prov ~ipns Of The
law thcy nav be par1phFascd thus:
lie il enacte,l; IL. That the trade ali business
of manufacturing whi-scy. ale. porter. and beer.
now and hereafter carried Ill this State III
cease: except that any person socially licensed To
,n,nr::,c ,lr, for medicine, Ac for the eoVcfra Mt,
m ~ do 81. AMI sell - that extent, II the govern
rnent should conclude u buyof ~ person. bu, not
Otherwise.
y Tint n = person in this STATE -iriil sell any wills
XIV beer al or porter. unes: the sale b. 10 an agent
oft. government liz SIc agent for medicine dc.
3 1ntt no person IN this Stat shall drink any
whisky, beer, ale porter, - beverage, and in
in.tInce except q medicine
Ii thus appears that the law absolutely foriiGs the
people of the State to manufacture and sell whisky
ae, porter an beer for beverage or, az all
sxce,d Tor the government. 10 lac sold by it for ncdi-
cine, &C. and il prohibits absolutely The tic OF those
articles by the people a l'eycta1f.
To the exception - To the ADM III Of foreign
liquors und r the con ttution and laws OF the nj
ted Suites. will not be noticed. Tor the reason that
tie. are admitted simply because they cannot be
prof. bi c, and not III accordance with the spirit and
noIicv ofthc State statute. and which foreign liz
uors iu1y or lnlv or not be Outlined here according
To the contingent action of other power anil for
the further reason, that their admission. il claimed
10 lie 4 part of the object ami policy oil the State
lino- law in order to supply the people with uuos
a. A beverage, renders the law dcu',ly Obiccti0ni-
bic, for while according such view the law de-
signs To permit the of liquors beverage, it
prohibits the people from manufacturing for their
own use. Its a. if the law were that the people
might eat bread but should not raise the grain and
grind it in -four whcrewth 10 mlkeit. Ii wOuldbc
an act to prohibit the people from themselves pro-
.iucine; ami compel them to purchase from abroad
what they might need TO eat AMI drink. 1t would
involve the principle of an act to annihilate the
State BY starving the people constituting IL to death
and such legislation would hardly cOmport, we
think with constitution established to promote the
we,fire and prosperity of the people.
Weassime it a. established, then, that the liquor
act in question is absolutely prohbitory of the man
ufecturc sale and use a beverages by the people
of this State of whiskey, ale, porter and beer The
opinion has been advanced that the manufacture loI
sale out of this State is not prohibited, but il ha-
not the sub stance of "A shadow; and the morality oil
that Law which prohibits the distribution of pauper
ian and crime disease and death, at home, 1T home
out permits them to be scattered amongst our neigh
bors, il aot TO be envied. AMI we mty a. well re-
mark here "A anywhere, that If the manufacture ant
sale these articles proper to be carried on ii
the State for any purpose, it is not competent to
the government take to take business from tho
people and monopolize it. The government cannot
Il