Weekly Indiana State sentinel. [volume] (Indianapolis [Ind.]) 1853-1861, 1855-11-15

der to supply the people with liquor as bev- I
erage, renders the law dOubly Objectionable. for
while according to such a view The law designs 4
to permit the use of liquors as a beverage, it
prohibits the people from manufacturing for
their own use. Ii is as if the law were that the
people might eat bread but should not raise the
grain and grind it into flour where with To make
it. 1t would be an act 10 prohibit the people
from themselves producing; and TO compel
them to purchase from abroad what they might
need to eat and drink. 1t would involve the
principle Of an act to annihlate the State by
and such legislation would hardly cOmport, we
think, with constitution established TO pro-
mote the welfare and prosperity of the people.
We it established, then, that
the liquor act in question is absolutely pro-
hibitory of the manufacture. sale, and use as a
beverage, by the people of this State. OF whis-
XIV; ale, porter and beer. The opinion has been
advanced that the manufacture for sale out of
the State is not prohibited. but it has not the
substance of shadow; and the morality of That
law which prohibits the distribution Of pauper-
ism and crime disease and death, at home. but
permits them 10 be scattered amongst our neigh
bors, is not to be envied. And We may as well
remark here as anywhere, that if the manufac- (
ture and sale of these articles are proper to be I
carried in the State for any purpose, 1t IS nos
competent for the government TO take The busi Il
ness from the people and monopolise it. The
government cannot turn druggist and become
the sole dealer in medicines in the State. And
why2 Because the business was, at and before
the organization Of the government, and Is prop
erly at all times private pursuit Of the people,
as much As the manufacture and sale OF
brooms, tobacco. cloths, and the dealing in tea
coffee and rice, and the raising of potatoes; and
the government organized To protect the
people in such pursuits from the depreciation of
powerful and lawless individuals, the barons OF
the middle ages, whom they were too weak TO
resist single handed by force; and for the gov
eminent now to seize upon those pursuits is sub
versive of the very object fer which it was crea-
} ted "a government is guilty Of an invasion
upon the faculties Of industry possessed by in
dividuals when it approPriates to itself par
ticular branch Of industry, the business OF ex-
change and brokerage for example; or when it
sells the exclusive privilege Of conducting il
Says Political Economy, note to p. 1874
There are undertakings of public character
such as the making Of public highways, proyi-
ding a uniform currency, DC, that single in
dividual has not power to accomplish, and
which government must. therefore, prosecute
B but they are not the ordinary pursuits of the
private citizen. ~
These, certainly as the general rule, and We are
not now prepared to name an exception, the
government cannot engage in.
This is all We shall here say upon this point
Time and space 1OrDlu lnal We ShOulu eiaDofatt
e all that arise in the case
A The question now presents itself,
Secondly. Could the Legislature Of this State
IA enact the prohibitory liquor law under eonsid
II Grafton? 1I s1l
r Few, if any, judicial decisions viii be founs
= to aid us in investigating this question, as M
d such law, in a country possessed of a Judiciary
h and constitution limiting the legislative pow
err, has, till of late, been enacted. Some twelv
hundred years ago Mahomet made such Law
part Of his religious creed in opposition to tn
; Jewish and Christian systems which recon
mended the moderate, but forbid the excessive,
y use Of intoxicating liquors This law Of Ma
homet, Koran, pp- Is and SO, was perhap
the first prohibilosy act, but it does not aPpea
:, to have been adopted by civilized nations Ill
. its late revival in some shape or other in one o
more of our sister States. Hence, il has no
often, if at all, as to this point passed under ju
dicial consideration.
A number of European writers on natural
public, and civil law are cited by counsel OF
behalf of the State 70 show the extent of legisla
tive power; but those writers, respectable, able
y and instructive upon some subjects rs they ar
admitted Ia be, are not authority here upo, thi
ne point. They are dangerous, indeed. utserl,
he blind guides to follow in searching for tn
land marks of Legislative power in our free an
ne limited government; for they had in view whe
al writing, governments existing when an
"a where they wrote; sinder which they lived an
ne had been educated, and which had no write
constitutions limiting their powers-goveru
rs ments the theory Of which was that they wer
p paternal in character-that all power was i
n them by divine right, and they, hence, absolute
a that the people of a country had rights ex
cept what the government of that country era
h ciously saw fit to confer upon them, and that
u was its duty, like a father towards his child
as rem, to command whatever il deemed expedier
- IL
e, ner, consulting that public, or recognizing i
TO its members any individual rights
as Indeed, the discovery of the great doctrin
iy of rights in the people against the govern
ment, had not been made when the writers aboy
mt referred to lived Such governments those d.
ne scribed, could adopt the maxim quoted by cour
ne sell that the safety Of the people is the supren
At law and act upon it; and being severally tn
IN sole judges of what their safety, in the countris
governed. respectively required, could prescrit
O. what the people should eat and drink, what pc
I'd litical, moral and religious creeds they shoul
D. believe in, and punish heresy by burning at III
es stake. all for the public good. Even in Gres
OF Britain, esteemed to have the most liberal cor
e. stitution on the Eastern continent, Magns Chart
s. is not of sufficient potency to RESTRAIN the aetio
u of Parliament, as the judiciary do not, as a SCI
tied rule bring laws to the test Of its provisions
" Laws are there oyerthrown only occasionall
z: by judicial construction. But here We hav
or written constitutions which are the suprem
D. law, which our Legislators are sworn to SUP
n port, within whose restrictions they must limi
their action for the public welfare. and who's
Re barriers they cannot overleap, under any pre-
e text of supposed safety of the people; for alon
re with our written constitutions we have judi
ii ciary whose duty it is, the only means Of sc
, curing to the people safety from Legislative az
erosion, to annul ali Legislative action withou
the pale Of those instruments. This duty of tn
> judicial department in this country was demon
c strated by Chief Justice Marshall in Marberry v
Madison, Oranch l37, and has since been re
cognized as settled American law. The maxim
v above quoted. therefore, as applied to Legislative
e power, is here without meaning. ~ s
Nor does 1t prove the power Of the State leg
!, islature TO enact the law in question, 10 show
: that the Supreme Court Of the United States ha.
decided that it cannot declare such State Law
2 imperative, for that Court only declare void
such State laws as conflict with the restriction:
1 imposed upon State power by the Constitution
OF the United States; and it, in that constitution
the States are not restrained from passing laws
in violation OF the natural rights of the citizen
the Supreme Court of the United States cannot
act upon such laws when passed, because they
do not fall within its jurisdiction Hence, that
court has decided that a State may deprive its
citizens of property without making compensa-
ton, and Of the right of trial by Jury. Brown "
The Mayor, de-, Peters 2i3; may pass laws
) dePriving them of vested rights in property.
and of the benefit of Judgments they may have
obtained in courts, and the like; Salterlee v.
Matthewson, 2 Peters $780, and the license cases
IN 9th Howard 504; and no redress be obtaina
bic in the United States Courts because there
are no provisions in the United States Constitu-
ton prohibiting the passage Of such State laws.
But the Supreme Court Of this State has decided
that, under our State Constitution, the legisla
ture cannot enact a law for the taking Of pri-
vate property without making compensation;
cannot deprive the citizen of the right of trial
by jury, and cannot set aside the Judgment of
a court, DC. Young v. The State Bank, 4th
Ind. Rep. 3Ol.-Mccorrmick " Lafayette, LIST
Ind. 45. The State v. Mead. 4 Blackf 3O9
1t does not, therefore, follow that because the
constitution ~ the United States does not pro
hibit State Legislation infringing the natural
rights of the citizen, such legislatios is valid