The Richmond Indiana palladium. [volume] (Richmond, Ind.) 1854-1855, 1855-11-15
ua5cas Corpus before Judge Perkins of the
Supreme Court.
HERMAN rs. THE STATE
OPINION OF LIE IrpaE.

OPINION OF THE j DSE.
Herman was arrested upon the charge Of
having violated the liquor act Of 1855. He
obtained writ Of Habeas Corpus. pursuant
to which he is now broagh; before az
chamber with the cause of his detention IN
custody.
His counsel moves for his discharge the
ground tina. said liquor act is unconstitutional
and void The case is submitted 70 upon
the arguments heretofore filed In the Supreme
Court IN the case of Bebee.
We regret that this question has been thus
presented TO US. We lad hoped tina. these APP
plications would have been confined 70 the in
ferior courts till the Supreme Court had deci
ded upon the validity of the law in question.
But the Legislature, acting, as we think,
within the constitution, has conferred upon the
citizen the right Of suing out the writ Of ha
beas corpus from the judges severally Of the
Supreme Court; the right has been exercised
in this case, and it is not for us, upon slight
pretexts, to shrink from the discharge of the
duty, thus, as we cannot, indeed, but believe
injudiciously 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 will, therefore, without injury upon
the point, be considered.
We approach it with all the caution and So
icitude its nature is calculated to inspire and
that intention of careful investigation its i'm
portance demands feeling that the consequen
ces 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 questions involved however, the course
Of argument of counsel requires that we
Il. g fa,r Il
forth the duty this court has to perform in the
premises, viz: the simply declaring the con
stitutionality or unconstitutionality of the law
with an assignment of the reasons upon which
the declaration is based.
1t will not be for US to enquire whether it
be good or bad law, in the abstract. unless
the fact, as it might turn out to be. should be-
come of some consequence in determining a
doubtful point on the main question. 1t not
unfrequently becomes the duty of courts TO
enforce injudicious acts of the legislature be-
cause they arc constitutional, and to strike
down such as, at first view. appear to b. ju-
dlcious because they are IN the conflict with
the constitution.
With these remarks, we proceed to the cx-
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 Tito force,
there were existing unsold manufactured pro-
duets in the hands Of the distillers and brew
ers upon which it operated, rendering them
valueless, or whether such products had all
been disposed of between the passage and
taking effect of tie 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 prohibitory?
The first section enacts "that no person
shall manufacture. keep for sale, or SELF any
ale porter, malt beer. lager beer, cider,
wine. DC. The second section permits the
manufacture and sale of cider and wine under
certain restrictions, by any and all of the citi-
I zens of the State.
Other sections permit the manufacture o.
whisky. ale, DC, by persons licensed for the
purpose, so far as may be necessary 10 supply
whatever demand certain persons called
county agents. may make upon them These
agents are authorized to sell for medicinal
mechanical and sacramen,al uses, and nc
other, and may procure their liquors of the
licensed manufacturers, but are not required
| 10 do SO, and, as matter of fact, do not. bu
obtain them. in most cases, from abroad
They constitute no part Of the people engaged
in business on their own account. but are ap
pointed under the law by the County Com
missioners; supplied with funds from tbs
county treasury; paid compensation for thei
services by the county; sell at prices fixed fol
them. and make the profits and losses of the
business for the public treasury and not ior
themselves. We say they are furnished witt
public funds. They are so in all cases; fol
when they. il the first instance, invest then
own, it is by way of loan to the county at
fixed rate Of interest and the amount is re
funded by the county with interest These
selling agents, then, are, and for convenienc,
NAV be denominated government agents; fo
it is all one in principle whether the govern
ment creates and furnishes them with fund.
through the medium of the counties, or ap
points them directly By statute and supple:
them with funds from the State treasury, Tc
4 express then the substance of the main pro
visions OF the law, they may be paraphraseC
thus:
Be it enacted; LIST. That the trade and bus
ness of manufacturing whisky, ale, porter
and beer. now and hereafter carried on in thi,
State, shall cease; except that any person
specially licensed TO manufacture for Medicine
&c. for the government. may do so, and sci
10 that extent, il the government should con
clude TO buy of such person, but not other
wise.
Q. That no person In this State shall sell any
whisky, beer, ale, porter, unless the sal,
be to an agent Of the government or by suct
agen, for medicine, dc.
3. That no person in this State shall drinl
any whisky, beer, ale or porter, as beverage
and in no instance except medicine
4. 1t thus appears that the law absolutely for
bids the people of the State to manufactur,
and sell whisky, ale, porter. and beer for US,
as beverage; or. at all. except for the govern
ment. to be sold BY ii for medicine, &C.. anc
it prohibits absolutely the use of those article:
BY the people as beverage.
The exception as to the admission Of for
eisu liquors under the constitution and law:
of the United States, viii not be noticed, fol