Indiana American. [volume] (Brookville, Ind.) 1833-1861, 1855-11-23

HERMAN VS.. THE STATE.
OPINION on THE JUDGE.

the cause oil his detention, IN custody
His counsel moves for his discharge
on the ground that said liquor act is
unconstitutional and void. The case
is submitted to us upon the argu-
ments heretofore fled in the Su-
preme Court in the case Of Bebee.
We regret that this question has
thus been presented TO US. We had
hoped that these applications would
have been confined to the interior
courts till the Supreme Court had de-
cided upon the validity Of the law in
ques ton.
But the Legislature. acting. as we
think, within the constitution. has
conferred upon the citizen the right Of
sueing out the writ Of habeas cor
/ pus 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 du-
ty. thus. as we cannot. indeed. but
believe. injudiciously imposed upon
as.
Counsel on both sides concede in
argument that the record presents the
question Of the ealidity Of. at least.
was the prohibitory portion OF said
liquor act, and that question will,
therefore, without Inquiry upon the
point, he considered.
We approach il with all the caution
and solicitude its nature is calculated
to inspire. and that intention Of care
ful investigation its importance de-
mands. feeling that the consequences
Of the principles We are about to in
sert will not be confined in their ope-
ration to this case alone. Preliminary
TO the discussion Of the main ques-
tons involved. however. the course OF
argument Of counsel requires that we
should say a word by way Of fairly
setting forth the duty this court has
TO perform in the premises. viz: the
simply declaring the constitutionality
or unconstituuonali,y Of the law. with
an assignment Of the reasons upon
which the declaration is based.
IL will not be for us to enquire
whether il be a good or bad law, in
the abstract. unless the fact. as it
might turn out To be should become
Of some consequences in determining a
doubtful point on the main question
IL not unfrequently bcomes the duty
Of courts to enforce injudicious acts Of
the Legislature. because they are con-
stitutional, and to strike down such
As. at FIRST view. appear judicious, be-
cause they are in conflict with the
constitution.
With these remarks. we proceed TO
the examination of the feature of the
liquor act Of 1856. now more especial
ly presented to the court. We shall
not spend time upon the enquiry
whether, on the day it came into force
there were existing unsold manufac-
tured products in the hands OF the
distillers and brewers upon which il
operated. rendering them valueless.
or whether such products had all
been disposed Of between the passage
aud taking effect Of the law. We
shall direct our investigation to the
character Of its operation upon the fu-
ture manufacture. sale and consump-
lion Of intoxicating liquors. And.
lst. Is il prohibitory?
The first section enacts "tbat no
person shall manufacture. keep for
sale. or SELF any "ale. porter, mall
beer. lager beer. cider" wine. DC
The second section permits the man.
ufacture and sale OF cider and wine
under certain restrictions. by any and
all Of the citizens OF the State.
Other sections permit the manufac-
ture of whisky. ale. DC, by persons Ii.
censed for the purpose. sofar as may
be necessary to supply whatever de
mand certain persons, called county
agents. may make upon them. Thes,
agents are authorized 10 sell for medic
inal. chemical. and mechanical. and
sacramental uses. and no other, anc
may procure their liquors Of the Ii
censed manufacturers, but arc not re,
quiied to do so: and. as matter o
Tact, do not. but abtain them, in cases
from abroad. They constitute no par
r