Plymouth weekly banner. (Plymouth, Ind.) 1855-1856, 1855-11-15
haoeas Corpus before Judge Perkins of
the Supreme Court.
HERMAN vs.. THE STATE.
OPINION or TIE IrDGr


Herman was arrested upon n CHARGE of ba,;no
vioiated the liquor act of 1855 He obtained writ
"a Haoeas corpus, pursuant to which he il now
Drought before US at Chambers with the cause of hi;
detention in custody
ms counsel moves for his discharge on the ground
IN oiu Hluor aet l. unconstitutional and Void
me ease Is submitted to us upon the ARGUMENTS
heretofore filed in the Supreme court in the case ~
Bebee.
We regret that this question has been thus pre-
scented TO US We had hoped that these applications
would have been confined to the inferior courts till
the Supreme Court had decided 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 habeas corpus from
the judges severaly of the Supreme Court; the
right has been exercised in this case and it is not
for upon slight prete shrink from the dis
charge of the duty, thus, 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 prohbtory por-
ton of said liouor act and that question WILL there
fore, without inquiry upon the point, be considered
We approach it with all the caution and solici,
;ude its nature is calculated inspire and that in
tention of careful investigation its importance de-
mands, feeling that the consequences of the prnci
pies we are about to assert will not be confined in
their operation TO this alone. Preliminary to
the discussion of the main questions involved how
ever the course of argument of counsel requires
that we should say-a word by way of fairly setting
forth the duty this court has perform in the prem
Uses, viz: this simply declaring the consttutionality
or unconstitutionality of the law, with assign
ment of the reasons upon which the declaration is
based.
Ii will not be for US to enquire whether il be q
good or bad law, in the abstract, unless the fact
il might turn out to be. should become of some con-
sequence in determining a doubtful point on the
main question. 1t not unfrequently becomes the
duty of courts to enforce inudcious acts of the leg
islature because they constitutional, and to
strike down such as, first view, appears to be ju-
dicious, because they are in conflict with the consti
tuition.
With these remarks we proceed to the examina-
ton of the feature of the liquor act of 1855 now
more especially presented to the court We shall
not spend time upon the enquiry whether, on the
day il came into force, there were existing unsold
manufactured products in the hands of the distlers
and brewers upon which it operated, rendering il
valulsss, or whether such products had all been dis
posed of between the passage and taking effect Of
the law. We shall direct our investigation to tn
character of its operation upon the future manufac
ture, sale and consumption of Intoxicating liquors
And,
1st. l. it prohibitory7
: The first section enacts .sthat person shall
manufacture, keep for sale, or SELF any sale, pOr
ter, malt beer, CIDER" wine, &C. The second sec
ton permits the manufacture and sale OF cider ano
wine Under certain restrictions by any and all OF the
citizens of the State.
Other sections permit the manufacture of whisky
ae &c, by persons licensed for the purpose, 30 fal
as may be necessary to supply whatever demand
certain persons called county agents, may make up
on them. These agents are authorized to sell fol
medicinal, mechanical and sacramental uses, and nc
other, and may procure their liquors of licensed
hut to-
as matter of fact, do not but obtain them, in mos
cases, from abroad. They constitute part of the
people engagedin business on their own account
but are appointed under the law by the County Com
missioners; supplied with funds from the county
treasury; paid compensation for their services by
the county; sell at prices fixed for them and make
the profits and losses Of the business for the public
treasury and not for themselves. We say they are
furnished with public funds. They are so in all cas-
es for when thew in the first instance, invest the
own, it is by way of loan to the county at hxet
rate of interest," and the amount is refunded by thu
county with interest. These selling agents, then
are. and for convenience, may be denominated gov
eminent agents; for it is all one in principle whethe
the government creates and furnishes them witt
funds through the medium of the counties, or ap
nropriate them directly by statue and supplies then
Will, funds from the State Treasury. To express
then. the substance of the main provisions OF thu
law, they NAV be paraphrased thus:
Be it enacted; lst. That the trade and ousines
of manufacturing whiskey, ale, porter. and beer
now and hereafter carried on in this State, shall
cease; except that any person specially licensed q
manufacture for medicine, &C., for the government
may do so, and sell to that extent, Ii the govern
ment should conclude to buyaf such person, but no
Otherwise.
2 That no person in this State shall sell any wills
XIV beer, ale or porter, unless the sale be to an agen
ofthe government or by such agent for medicine &c
3. That no person in this State shall drink an,
whisky, beer, ale or porter. beverage, and in n
iist,nce except as medicine