Indiana American. [volume] (Brookville, Ind.) 1833-1861, 1856-01-25
DECIsloN OF sUpsE lsEED.
THE STATE VS.. JOHN WISE.
NEUTRALITY-SUSPICIOUS. TO QuAan.


DEClNhON on JUDGE REED.
THE STATE VS.. JOHN WISE.
RETAiLiSg--MoTTos To QuAeu.
This Is an information by the prose.
cutor of the State against one John
Wise for unlawfully selling one pint
of Malt Beer, and Is predicated on the
Temperance Law Of 1856, approved
10th Of Feb, which is IAN act 10 pro-
hibit the manufacture and sale Of
Spurious and Intoxicating Liquors ex-
cept in cases therein. named. and 10
repeal all former acts inconsistent there
with, and for the suppression Of In
temperance.
The act contains some 42 sections,
and were the true intent and meaning
of the ,chois iaw undermined BY any
tribunal, and the act placed before US
as il came from the hands Of The Leg
is ature. we might have had more DIFF
fculty in determining the question Of
unlawful sale; but as the Supreme
Court have decided by three Of the
Judges only one dissenting J that those
sections and parts of sections which
relate to the manufacturing Of spirit
Gus and intoxicating Liquors; to the
county commissioners appointing coun-
ty agents for the sale of these articles;
and to the right Of search, seizure and
destruction Of them. embracing more
than two thirds Of The whole law, all
of which are declared unconstitutional
our task is not so difficult as it, other
wise might have been. But as the
Supreme Court were unable 10 agree,
on the question. whether the Legisla
ture had he right to prohibit entirely
the sale OF spurious and intoxicating
liquors as a beverage two of the
Judges holding, that that part of the
act prohibiting the sale. was unconsti-
tutional, and two that it was not. thus
leaving tins point undecided, by The
case before us we are forced to assume
theresponsibiIity. and slthouh the duty
may be unpleasant. yet we say with
Judge Marshall Of the Supreme Court
of the United States, that the Court
can be insensibIe neither to the mag
nitude nor delicacy of the question.
when the validity Of legislative act
is to be examined Wheaton. 5l8,
and especially when the highest law
tribunal of this State has been unable
to agree on the point in controversy.
But as this is imposed on us, and as
the task, may be somewhat delicate
and the decision important, it is a
duty from which we dare not shrink,
satisfied that the American people,
respect the man who dares 10 be hon
est and Independent even if his opin-
ion should run counter to some Of those
cherished by themselves.
The intention of the Legislature
then, as found il the act, was to pro-
hibit, the use Of spurious and intoxi-
eating Liquors as beverage, and to
suppress lntemperance; and the rule
adopted was the prevention Of the
manufacture and sale Of these articles
entirely within the State of Indiana,
and was intended strictly as prohibit
Eitory law so lar as this use was concern
ed. But as the Supreme Court has
held that it was unconstitutional to
prohibit the manufacture, this being a
right guaranteed by the Constitution
to every citizen, does it not follow as
an incident. the right TO sell, the thing
manufactured, Tor where would be the
use of the right to manufacture if the
right to sell or exchange the thing
so made was denied or prohibited?
In the case of Brown as. the State
of Maryland, 12 Wheaton 4l9, de-
cision which has been quoted as good
authority by both OF our Supreme
Judges, pro and con--the question was
not unlike the principle under discus
sion here Chief Justice Marshal, in
delivering the opinion of the Court
says: Commerce is Intercourse; one
of its most ordinary ingredients is
traffic. II is inconceiyable that the
power to authorize thistrafIic given ID
its most comprehensive terms, with
the intent that its efficacy should be
complete, should cease at the poinl
when lis, continuance is indispensable
to its value To what purpose should
the power to allow importation be Civ
en- unaccompained with the power t
authorize sale Of the thing imported
Sale is tn object of importation, ant
is an essential gredient of that inter
! course of which importation consti
> tutesa part 1t is as essential an in
gredieni, as indispensable to the exist
ance of the entire thing, as importa
ton itself. 1t must be considered a
a component part Of the power to reg
ulate commerce.
: Congress has right, not only t.
authorize importation, but to author
{ ize the importer to sell. So in lik'
manner we hold that the right to man
ufacture gives the right to sell-for o
!. what use would il be to manufacture
E on article, that could no, be lawful,
sold. But Judge Stuart argues tina
because. since the revolutionit il, be
LEVIED every State in the Union ha
: passed laws, more or less stringent II
;, relation to the retail of spurious liquor
e and that the right regulate the liqno
. traffic. has never been called in ques
tion--and not only the right TO regu
J late but the right to prohibit has beel
Q awarded to the legislature and refer
S to several acts where total prohibition
}, was engrafted with laws-hencc tn
. law must be constitutional But thes
were more local acts or laws not at
! Getting the rights Of the whole people
y they were enacted for certain town
ships and localities, and passed unno