The Richmond Indiana palladium. [volume] (Richmond, Ind.) 1854-1855, 1855-11-15


Constitution. tie legislature csuno. enact
isw fer lie tskiaE s; private property without
making con- easatisE: cannot deprive the cit
izen .; she riyht Of maj by 5a.v. and cannot
s.; aside lie Judgment OF a cours. Gc.-
foaas Y. The State Bank. In Iai Rep , l.,
McCosu.i < \. Laay et.e Is. Ind s.. Tie
>tae s. Nesl I Back. 8 9.
Ii does not. therefore. ts..s~ TIA. because
Re caas.l I lon Il tile tsi.e3 : a-cS does n--
qrohlbi; Sac r.. >ls .ou .as~ia,ia, e n..- ls5-
-,htS OF ji- - Iz-n n. 3a5>4 I1sl j, ya.II.
Ile cons u-te# ~ ljse ~-f-e> may ta,
bat tat e the 81 ;Is, ie,iht
All - iodee
asteS r-e --s.as 81
ms doc me Hs~ -, d 49, ,- rae l. i.
drews v Russell. ; B.sckf Ill. Judge lew
ey says: We have said that the only pr1vis-
IONS in the Federal or Sac Constitution. re-
strlctise Of the power of the legislature / {
are. &c. There are certain absolute rights,
and the right Of property IS among them
which in ali free governments must 81 neees.
sity be protected from legislative interference.
irrespective OF constitutional checks l. guards
Should We find however, in the course of
this inyestigation that the constitution Of our
tree State does in fact. sufficiently protec. nat
ural rights from legislative interference as il
surely does or II IS grieyouSly defective. ii will
not become necessary for US 10 enquire wheth-
er. IN any event It might be proper to fail back
upon the doctrine above SO unhesitatingly as
serted.
Does our constitution. then, prohibit the
passage of such an act As that now being con
sldered? A dictum is quoted by counsel from
the opinion in Reply v. The State. Ind
Rep, 264. that ''lt IS competent for the legis-
lature to declare any practice deemed I'M
rious to the public nuisance. and TO punish
it accordingly" and hence. it is reasoned, anv
property, but dcts. as counsel well know,
are not necessarily law; are, in fact, generally
unconsideIed first impressions which, all legal
experience proves, are thrown out by all
judges in giving opinions, as hab.ually and
thoughtlessly as violations of the constitution
are psEpstrated by the legislature in enacting
laws, and Intimately more excaSably. Scarce
~ an elaborate opinion is written not contain
ing them. This the profession well under
stand, and hence are not misled by them ii
erroneous.
And it must be manifest to every one. on a
moments consideration. that the doctrine lust
quoted cannot be taken for law, and could not
have been so intended, in an unlimited sense,
by the learned Judge who uttered it. The
Legislature cannot declare any practice it NAV
deem I'M urious 70 the public nuisance and
punish It accordingly Il cannot SO declare
the reading OF the Bible, though, perhaps the
government of Spain once did. 1t cannot So
declare the practice of worshipping God accor-
ding TO the dictates of ones own conscience
though perhaps Massachusetts, in the DAYS OF
Roger Williams. did do it. 1t cannot SO de-
clare the practice of teaching schools, though
perhaps Virginia might have done so in 1874,
when Governor Berlly wrote from tha; colony:
Il thank God there are no FREE schools nor
printing; and hope shall not have these
hundred years; for learning has brought dis
obedience aud heresv and sects into the world
and printing has dIvulI ed them. and fbelS
against the best government. God keep us
from both Ii cannot SO declare the holding
Of political meetings and making speeches
the bearing Of arms, publishing OF new spa
pers. &c. dc, however injurious To the pab-
lie the legislature mi -ht deem such practice
to be; AMI why? Because the cans.i usicn
forbids such declaration ard punishment, and
permits the people TO use t.4eSe practices. So
with property; the lr, is.a urr cannot interfere
with 1t further. 4. all even < thau the consti
tuition permits. In short the Legislature can
not forbid and punish iha which Tie const-
tuition permits; ana cannot take from the c.i-
Zen that which the constitution says he shall
have and enjoy. If it can. then we think that
all will admit that the constitution is worth
less, the liberties Of The people dream. and
our government as despot;c Us any on earth.
And we may here remark that the legisla-
ture can add nothing to its power over things
j by declaring them nuisances. A public NUS
anee is that which is noxious, offensive TO all
the people who may come In contact with IT.;
and the offensive quality is in the thing itself
or the particular manner of its use, and it is
neither increased nor diminished by legis-
lative declaration. What the legislature has
a RICH, by the constitution to prohibit and
punish. even to the forfeiture of property, it
may thus deal without first declaring the mat
ter nuisance; and whatever it has not right
to prohibit and punish it cannot thus deal
with even though it first fix upon it that obi
Gus name. TO illustrate: the legislature has
power, perhaps unlimited, over the public
highways. II provides for opening, repair
ing and vacating them. They are not the
private property of the citizen. The le-isla-
ture. therefore. may declare what Instructions
may be permitted, and what removed, wheth-
or they be, N fact, nuisances or not. So with
Congress, In relation to the national highways
for commerce. These are public for purpos-
es Of nayi CATION. and are perhaps, completely
under the legislative power. So the legisIa-
tuTe. when tie practice was 10 license houses
for the exclusive retail Of spirtuous liquors.
that *. the sale of them in particular quanti-
ties at particular places. could impose condi-
lions upon which the license should be grant
ed, and could make the violation Of the con-
ditions cause OF forfeiture. whether it was
such as rendered the retailing house a NUS
suce or not, and whether il was so denomina-
ted or MOI.
IcoscL-pED wEEE-1
E twill be seen by the FLOWING list 0
premiums to be awarded a. tie January meet
ing Of the State Board that we are to have a
little F air at tina: time. intended we Judge. for