The Evansville daily journal. [volume] (Evansville, Ia. [i.e. Ind.]) 1848-1862, 1856-01-17

1t will be seen from the fullowing that 8
Judge Bicknell, has decided the whole liquor
act of 1855, unconstitutional The case came q
up in the Scott circuit court in vacation:
Benz. Sebastian was on the 25th day of De-
cember, arragned before Esq. Campbell for
retailing spirituous and Intoxicating liquors.
He was tried by a jury and found gnilty and
fined twenty dollars. The defendant appeal
ed from Judgment of the Magistrate to the
Scott circuit court, and gave his recognizance
in the sum Of fifty dollars. On Saturday last
his bail delivered him up to the Sheriff, with
copy Of the reeognizance and the prisoner i'll
ed petition before Judge Bicknell fora writ
of of Habeas Corpus. The. writ was granted
and the Sheriff made return thereto, that the
prisoner was held by virtue ofsaid recognizance
and after hearing the arguments ofcounsel, the
following opinion was delivered, by the Court.
Before the Circuit Judge an Iaoation. In the
matter Of the petition Of BerDanaQn SeJastian, :
for ,grit of He5eas Corpus ri
The Temperance Act of1855 declares that
no person shall manufacture, keep for sale, by
or sell, by himself or agent, directly or indi
rectIy, any spirituouS or intoxicating liquors,
except as is thorein provided. section L.
The exceptions are as follows:
First-Sales Of cider or wine in certain cases
are valid-Secton 3 4
Second-Sales by importers of imported Ii
quors, in the original casks or packages, are
valid-Section g.
Thlrd-Sales to the County Agents are val
ii in certain ca~es.-Section 4
Fourth-Sales by the County Agents for
medicinal, chemical mechanical, and sacra-
mental uses, are yalid.-Section s.,
n Ffth-Sales Of combinations not adapted to
use as beverage are valid-Scction 26.
The Supreme Court has decided that so
much of the Act as prohibits manufacture, and
: prescribes the appointment, privileges and du-
ties of Country Agents, is void, but what eff
feet this decision has upon the other provisions
is yet to be determined. ,
In the opinion given by one Of the J I'D res in
the case Of Beebe, find the following: '.Stript
t of all that relates to the agency and to manu-
acture the first and fifth sections as to sale, are
in substance, that no person shall keep for sale
or SELL by himself or agent, directly or indi-
rectly, any sprituous ar intoxicating liquors,
except for medicinal, chemical or mechanical,
q uses ONLY, and pur, wine for sacIamental pui-
poses" ....a ....ss-
d This being the dictum Off single Judge, and
: not the opinion of the Court, has not the force
# of authority, and do not adoptit.
In reference to sales the law as enacted
was prohibition, with five exceptions; if all
4 the exception had been stricken ont by the
t Supreme Court, an absolute prohibition would
e have remained; but the third and fourth ex-
V ceptions only having been stricken out, the
: prohibition and the other three exceptions re-
> main.
, 1t seems to me, therefore, that after striking
IS out of the provisions above set forth, all that
Il relates to manufacture and to agency, the re-
!, mainder viii be as follows:
: "No person shall keep for sale. or sell, by
s. himself or agent, directly or indirectly any
Is spirituous or intoxicating liquors except as il
,e therein provided:
: Exception First-Cider and wine may b
= sold in certain cases Section 2.
u Exception SecOnd-Importers may sell i'm
n ported liquors in the original casks or packages
! -SectioA 3.
+ Exception Third-Anybody may sell com
bination not adapted to us as a beverage
Section 26.
l. And the question is can this by sustained
A. as a part of the law Of the land?
$. The law as enacted contained many 'provis
: IONS which together constituted a systemati
and thorough plan to suppress the use ofintox
y icating liquors in the State of Indiana.
e Ny opinion is, that taking away the provis
,e ions annulled by the Judges makes such
81 change in the effect ofthe remaining proyis
ions as invalidateS the whole Act.
10 Sometimes several parts of a law may b.
n declared invalid, without impairing the othe
r, parts, but various branches of a law, togethe
j. forming consistent plan, may be so intimatel,
= 81 connected and interviewer, with eachother tina
y some of them cannot be removed without de
q stroying the others The provisions of tn
N Temperance Law declared unconstitution by
r the Judges essentially modified the others; t.
> enforce the latter alone, would be introducin.
what the Legislature never devised-it would
Is be establishing law which never, in its pres
g ent shape, received the sanction of the Legis
II lature, either expressly or by necessary OF
=, reasonable implication; such law would IL
emphat!cally "a Jud re made law" open tx
% all the animadversions made by our Supreme
n curt in the case of Spencer as the State, {
if Ialiana, is 1t would be- toad the IN.
= guage of the Courtin that case, "a ,ldge m de
law overriding the Legislative Department
4 with this popularity that the very Judges wne
Ii by this indirectly, would. exercise the law
e making power, cannot themselves agree that
y the prncpleto be established is constitutional
! |, Therefore, hold that the Supreme Court BY
= its recent decision has in effect, annulged the
! Temperance act of 1866, and the defendant
being in custody for violating one of the pro-
q visions of that act must be discharged
iIIl3 aHI GEORGIA.. B1GkNELL.=ao
t SPECIAL NOTICES.