The Evansville daily journal. [volume] (Evansville, Ia. [i.e. Ind.]) 1848-1862, 1855-11-15
once of publication Corner OF Main and water streets
EVANSVILLE IND, THURSDAY MORNING, NOVEMBER IS,
|Ggf Qailp gpnfnal
Habeas Corpus before Judge Perkins of the
Supreme Court. s.
HERMAN rs. THE STATE.
opIN1oR OF THE JuDeR.

/
writ of habeas corpus, pursuant to which he
is now brought before us at chambers, with the
cause of his detention,n custody b..&
| His counsel moves for his discharge or the
ground that said liquor act is Unconstitutional
and void. The case is submitted to eus upon
! the arguments heretofore fled in the supreme
| Court in the aseof Bebee. 9i1.a o.lf r
We regret that this question has been thus
presented to us. We had hoped that these
applications would have been confined to the
inferior courts till the Supreme Court had de-
lcided 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 sueing out the writ of
habeas corpus from the Judges severally ofthe
Supreme Court; the right has been exercised
lin this case, and it is not for us, upon slight
lpretexts, to shrink from the discharge of the
duty, thus, as we cannot indeed but believe
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 inquiry upon
the point will be considered.
We approach it with all the caution and So
llcitude its nature is calculated to inspire, and
that intention of careful investigation its i'm
portance demands, feeling that the consequence
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 ques-
Itions involved, however, the course of argu-
ment of counsel requires that we should say a
word by wayof fairly setting forth the duty
this court has to perform in the premises, viz:
the simply declaring the constitutionality OF
unconstitutionality of the law with an assign
ment of the reasons upon which the declara-
ltion is based.
1t will not be for US to inquire whether il
| 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 q
double point on the main question. 1t not
unffequently becomes the duty of courts to en-
force iniudicious acts of the legislature because
they are constitutional, and to stike down such
as, at first view, appear tobe judicious, because
they are in conflict with the constitution.
With these remarks we proceed to the ex
animation OF the feature of the liquor act of
1855, now more especially presented to the
court.s We shall not spend time upon the
inquiry whether, on the day it came into force,
there were existing unsold manufactured pro-
ducts in the hands of the distillers and brewers
upon whichitoperated, rendering them value
less, or whether such products had all been
disposed of between the passage and taking
effect of the law. We shall direct our investi-
CATION to the character of its operation upon
the future manufacture sale and consumption
of intoxicating liquors. And, M ,4Fos nr
1st. Is it prohibitory? s - faiefaa5
The frstsection enacts "that no person shall
manufacture, keep for sale, or selr' any ''ale
porter, malt beer, lager beer, CIDER wine &c.
| The second section permits the manufacture
and sale of cider and wine under certain res
trictions, by any and all Of the citizens of the
| State y ..,..-
Other sections permit the manufacture OF
whisky, ale, &c. by persons licensed for the
purpose, so far as may be necessary to supply
Whatever demand certain persons, called coun-
ty agents may make upon them. These agents
are authorized to sell for medicinal, chemical
mechanical, and sacramental uses, and no other
and may procure their liquors Of the licensed
manufacturers, butare net required to dorso;
and, as a matter of fact, do not but obtain them
= E, N most cases, from abroad. They constitute
no part Of the people engaged in business on
i their own account, but are appointed under
the law by the County Commissioners-su
lplied with funds from the county treasury
paid compensation for their services by the
lcounty-sell at prices fixed for them, and
make the profits and losses of the business foT
the public treasury, and not for thenselyes
1--WE say they are furnished with public funds
4 They are so in all cases; fer when they, IN the
/ first instance, invest their own, it is by way o.
loan to the county at a fixed rate Of interest
land the amount is refunded by the comfy
with interest. These selling agents, then, are
land for convenience, may be denomlnated Gov
Iernment Agents; for it is all one in principle
whether the government creates and furnishes
Them with funds through the medium of the
counties, or appoints them directly by statute
and supplies them with funds from the State
Treasury. To express, then, the substance
.. Iof the main provisions of the law, they may
: be paraphrased thus ,rg5
Be it enacted; 1st. That the trade and bu-
Isiness of manufacturing whisky, ale, porter
land beer now aud heretofore carried on inthiS
IState, shall cease; except that any person speci
Tally licensed to manufacture for medicine, &c
for the government, may do so, and sell t.
j THAT extent, if the government should conclude
to buy of such person, but not otherwise.
4 2. That no person in this. State shall sci
tany whisky, beer ale, or porter, unless the
!, sale be to an agent Of the government or by
such agent for medicine, &c. ..fe.t +
sl 8. That no person in this State shall drink
lany whisky, beer, ale, or porter, as beverage
and in no instance except as medicine. -, :
It thus appears that the law absolutely
lforbids the people of the State to manufacture
land sell whisky, ale, porter, and beer, for use
as beverage; or at all except for the govern
ment, to be sold by it for medicine &c; and il
prohibits, absolutely the use of those articles
Iby the people as a beverage. 19 =,
! The exception as to tie admission offoreigr
liquors under the constitution and laws of the
United States, viii not be noticed, for the rea-
; lson that they are admittedsimply because they