Weekly Indiana State sentinel. [volume] (Indianapolis [Ind.]) 1853-1861, 1856-01-24
Wsskly gtate Sentinel.
DECISION UPON THE LIQUOR LAW.
Clark Court of Common Pleas, an
uarY Term, 1885.
STATE OF IxDIANA Is. 5. l.. WARDEE AND
C--- D. -. w -.---

SrArE or IxDIASA Is. 5. /. WARDEE y
SANE Is. PEAK AED WAEDEE.
Upon appeal from tho Mayors Court of
Jefersonville. Judge Lowering delivered
the following opinion.
The decision of these cases involves the
necessity Of determining, for the action Of
this Court, the cOnstitutoDality Of the 10Th
and 18th sections, and, from their context,
Of the remaining provisions OF the Tempe
rance or Liquor act of 1855, Left unde-
termined by the divided opinions OF the
Judges of our Supreme Court. The respon-
sloility becomes more painful ION tho tNI-
ure in the few reported decisions OF the
Courts of our sister States, upon similar laws,
TO give the weight of their authority to de-
termire the questions here presented. Courts
are guided by precedent aud authority and
rarely challenge first principles, lest they mis-
apply them and shake the conservative char
actsr due to the tribunals established to up
hold the avs of the land. Il IS still no less
the province but the imperative duty Of the
Courts, to conserve hrst the rights of the citi-
zens inherent in our institutions and social
organization, as also those guarded by the
provisions Of our constitution, as the organic
law of the land.
in the direct a~ntagonism Of an act Of the
Legislature to the provisions Of our State or
Federal Constitution, the duty of the Court
Is plain. The responsibility Of pronouncing
such a law unconstitutional IS less than IN
deciding nice or cappicated qaestions of
private right Bat u decisions from deduc-
lions from constitutional provisions, and more
especially from doctrines Of private rights in
our social organization not surrendered by
our constitution, that responsibility IS tram
uocepdently increased and can only be assum-
Nsreful research into tho theory
OF our individual and social rights, and the
amount surrendered TO legislative control.
The current Of our Legitimate legislation and
recognized decisions, may indicate the Just
determination CO the question where no pro-
minent landmarks point to the correct result.
The act of February 18th, 1855, in ques-
ton, Is prohibitory IN its purpose ard details.
The first section recites this purpose and the
sxeeptional provisions through the act retain
the general admission Of this Prohibitory
character. An article, heretofore and yet re-
cognized as property in our legislation, Is
rendered coutraband, a traffic, recognized
throughout the christian dispensation and for
many centuries prior thereto, as legitimate, is
prohibited under heavy penalties. The sale
Of Intoxicating liquors is withdrawn from the
general purposes of trade and confined to the
express demands of science and the ordlnan-
ces of the church. The legal contemplation
of the property is changed by the act, and
that change is apparent in the sections under
immediate examination.
Our previous legislation upon this subject
had progressed upon the basis of regulation,
not prohibition Of the traffic. The penal
ties against unlicensed retailing and the lia-
bilities for sales to inebriates had but thrown
additional guards against tipping and dram
shops, declared nuisances at common law, fol
any disorderly conduct therein. They were
always under the close scrutiny Of the law as
leading more readily to abuses, while The
wholesale or larger traffic was not. Thai
portion of the law of 1646 which authorized
q limited and local prohibition of the retail
traffic, failed to receive any judicial sanction,
(Garner .. The State, 8 Blackf. P. 568-57l,
and the nuisance declared by the section Of
the act of 1853, receives authority from the
legislation of Crest Britain and our sistel
States, which has passed judicial ordeal.
Under the adjudication of our Supreme
Court, (Bepleyr. The State, " Ind. 264, and
Maize .. The State, same, 342,) upon the
act of 1853, the right OF property and it'
disposable condition remained unimpaired tC
those who submitted TO regulations provided
by the act against It's abuses. The increased
penalties against such abuses, did not changG
the character Of the act, from one Of regula-
ton to prohibition. The free traffic for GER
tain purposes indicated the purposes subjec
10 abuse in the opinion of the legislature
The general traffic, subject to abuse, was sub
ieeted to preventive scrutiny and guaranty
under increased penalties, but not prohibited
Whether the law Of 1853, or previous laws
furnished sufficient or proper protection o
remedies against abuses Of this traffic, is no
the question for the Courts, but the Legisla
s1re, to determine. The omission to mari
drunkenness with additional reproof ani
oaium by punishments against drunkards
according to the sphere of legislation agains
abuses sanctioned by authority, may we'll b
regretted.
Under all our previous legislation which
has received the sanction of our Courts, tn
traffic In intoxicating liquors remained opel
10 all classes alike, for general use, with re
stictive regulations by license, and its condi
lions, against such abuses as the retail trafh
might introduce.
Does not the act of 1856, restrict this traf
&c to particular classes, conditions, and spe
oi6c wants of our citizens? By 1t, a specie
of property is withdrawn from the genera
purposes and privileges of trade, by prohibit
don, and the right Of property is changed b,
svowedly restricting it 10 specific uses, no
heretofore absorbing half the traffic.
The inviolsbility and the protection o
property nave been favorite doctrines Of An
glo-saxon legislation. It was embraced il
the guaranty of the boasted Goth chapter G
the k.sia Charta won from King John, j
the year 1915, for the liberties Of English
men, and the text books Of the common la'
abound with dogmas upon the subiebr
Black. Com, Blk. ii, ch. !, PIP. l. 2; Ken
Com, Blk. 2, PIP. !, 2.
The right of the sovereignty under tn
British Crown, to take private property 70
public uses, was early restricted in our coua
Try, under the principles of our State an,
Federal republics, by written. constitution
and the sovereignty of the government wa
thereby subordinated to the sovereignty c
the people. The latter ever was Withheld
from the absorption of individual rights b
defined doctrines, limiting the power OF ma
lorities and aggregates from interference wit
the rights Of property and the pursuits Of tn
citizens Under our State constitution, pr
NAt1 pIOpcEbN CauIOb W ldhcu lOl III uSo I
the State, without a just compensate
therefor" nor for any other use or purpos
By law without such compensation first as
sessed and rendered"
Under the governments upon the Europea
continentthe inviolability of property remain
10 the subject protected by organic luw, eS
cept In direct competition with the govern
mept which is the source of authority an
lower. The monarchies Of Europe assail tn
<fu.ead in~violability OF property onI
upon the plea of State necessity, aud, a capr
eious legislation or other invasion of the rigt
ofproPerty beyond the taxes, would be deen
ed q return to barbarism. The constitution
al charter of the Bourbon dynasty in 1914
30, in France. declared all property inviol;
bic, and the civil code of the Emperor Napc
leon promulgated in 1905, and now in forC
over the most enlightened portions of cont
mental Europe, declares that " property is IL
right of disposing Of things in the most al