Indiana American. [volume] (Brookville, Ind.) 1833-1861, 1856-01-04
lR0EIMY0lY HQT0R IAN.
OPINION OF JUDGE STUART
APPEAL FROM MARION CoMaos Pleas

Beope ". the state.
APPEAL FROM MARION CoMaoS PLEAS
Beebe was prosecuted before tn
Mayor Of Indianapolis for two distinc
violations of the liquor law Of 1855
The one was charge for manufactur
ing beer, the other for selling il con
trary to the provisions Of that act
He was tried; convicted in both case
and fined Fifty dollars each. Failin,
to pay or replevy the fines, Beebe wa
committed to prison. On his applica
ton to the Judge Of Common Pleas.
writ of habeas corpus was issued
The officer having him IN charge re
turned as the cause of detention, thu
proceedings, judgement. and order 0
the Mayor in the case referred to. AT
ter hearing he was returned to prison
From that order he appeals.
These cases have been twice argued
orally. with distinguished ability OF
both sides. Aud what is still more
commendable the argument was con
Quoted with that moderation and for
bearance so becoming in forensic dis
cussion.
The first inquiry is what does III,
record present? Simply question 0
Legislative power. The details Of III,
law are not before us, and are not, o
course. considered.
The inquiry here is confined 10 The
sale, for the question arising on the
other case for manufacture admits Of .
very different solution. Having. fol
reasons given in that case, come to the
conclusion that the agency feature, and
the several parts OF the law relating
to manufacture were unconstitutional,
the question on the sale arising on the
other Beebe record. alone remains.
The act assumes to conhne the use
of liquor to the departments Of the
sciences and the ordinances of christi
anity.
And the question is. is it competent
for the legislature to thus restrain the
sale and use of intoxicating liquor.
1t is admitted in argumentthat there
is no express provision Of the constitu-
ton restricting the general assembly
on that subject.
| LBut It'll insisted that such restric-
ton is implied in the first section Of the
bill of rights. Let US place the stat
ute and that section Of the constitution
together.
Stript of all that relates to the agen-
cy and to the manufacture. the lst and
9Th sections as to sale are in substance,
That no person shall keep for sale OF
sell by himself or agent, directly or in
directly. any spirituous or intoxicating
liquor, except for medicinal. chemical
or mechanical use. Laws 1855; p 209,
ell.
To prevent misconception the first
section of the bill of rights is quoted
entire:
"Sec. /. We declare that all men
are created equal. that they are en-
dowed by their creator with certain in
alienable rights: that among these are
life, liberty. and the pursuit Of happi-
ness; that all power is inherent in the
people, and that all free government,
are, and of right ought TO be, founded
upon their authority, and institated
for their peace. safety, and well-being
For the advancement Of these ends
the people have at all times an indef-
easable right to alter anu reform their
government"
According to all publicists the right
to hold and enjoy private property Is
among the inalieoable rights. In the
constitution Of 1916 the right "of nc.
curing. possessing, and protesting
property" was expressly enumerated
I'd. II becomes important. there
fore. to inquire in what sense are the
rights Of life. liberty, and property
said TO be inalienable? 1t does not
mean that the legislature shall not pass
any law in relation to them. For the
whole statute book is ia some measure
n standing interference with. and reg
ulation Of these very things. The
Executive, the Warden Of the prison,
the sheriff, the who'd corps OF execu.
tive and administrative officers are con-
tinually taking away these rights from
some citizen.
1t does not mean, therefore. that
these rights are 10 be held superior TO,
and above the laws. They are held
subordinate to such municipal laws
and police regulations as the political
or social organization in which
these rights are enjoyed may right
fully enact under the constitution
They are held subject to such re-
straints as "the peace, safety and wei
being" Of the body polite may re
quIre. Thus in Calder Us. Bull, 8
Dallas 1856. the Supreme Court o.
U. s.. says: 1.-The right of property
is always subject to the rules pre-
scribed by positive law. The righ
vested in the citizens is to do GER
tain acts or posses certain things &C
cording to the law Of the land"
These rights therefore, may be Ia
ken away ''in due course of law" a
the forfeit OF violating municipal en-
actments.
What. then. does the unalienabl'
right OF property mean. 1t might b,
comprehensively answered that thu
whole constitution is q comment OF
that text. 1t means that the citixeI
shall be secure in his effects from un
reasonable search and Seizure. Sect
II, Art 1. That he shall have
right to a public trial by jury. Sect
l2 and 90. i'd. That his services O
property shall not be taken withou
just compensation. Sect. 81. i'd
And so Of all the other restrictions o
the constitution. "They are the bar
riers erected by the people" sgains
the encroachment Of the powers the,
have delegated 10 their public ser
wants.
Locke says it is against naturs
right for the government to ''dlspos
Of the estates ofsubjecls arbitrarily 0