Weekly Indiana State sentinel. [volume] (Indianapolis [Ind.]) 1853-1861, 1856-01-03

and then abolished the nuisance Had she
power to do that q
again, Art. l, sec. ., Of Inc constitution OF
Indiana declares that q
"No law shall be passed. restraining the free
of thought aHd opinion. OF restrict
ing the right 10 speak, write. ~ print. freely on
any subject whatever; but for the abuse Of that
right every person shall be responsible I
Under this provision, all will admit that If
the Legislature of this State should assume that
the press had become - licentious a. 10 require
it, suppression, aud should enact a law accord
ingly, that law would Ice VOID, and This Court
bound To pronounce ~ 50. But could the legis-
laturc evade thc constitutional provision by first
declaring the press throughout he State 4 nui
sauce. and then c~naciihg that % should cease 10
exist : II surely could not, ur The constitutional
provision A. worthless.
Now, a. the legislature cannot declare the
press and printing business nuisanceS because
protected 10y the constitution. - il cannot de-
clare properly, aud The acquisition aud use of II,
nuisamces, for precisely the same reason.
But The section. above quO,ed. Of The consti-
tuition Itself, points out the remedy for the evilOf
abuse. And ii indicates lhe general remedy in
all these eases. Ii - the responsibility, that 10,
the liability 10 suit and punishment, of EVERY
person. - who shall bc guilty Of committing such
evil. And the question of the guilt Of the indi-
yidual, in every case. j. To b. decided by the
Judiciary; aud the punishment inflicted 10y that
department. ANY other mode of adjudging
Guilt, and i~nllictlng punishment, Is but mob or
lynch law. But u reiurn: The questions,
whether a law IL ln conflict with the constiiu
/ ton or not, and whether a thing IL a nuisance or
not. are judicial. and 10 bc finally determined
by the Courts alone. Such q the organic law
OF the State, aud il is, hence. useless TO discuss
It's prupricty heie. See Doe y. Douglass, 4
Blackf. 80. Why II has been SO ordained ia the
demonstrations; whether because OF the superior
capacity of the judicial department Ia Judge of
such questions, ar for other reasons. q - not
particularly important 10 enquire. We may, IN
'his connection, hswever. quote with %prOpnety
from / "ang y. The Slate Bank, & Ind 3ol. a.
follows:
Vow. the constitution art. 2. Of ihai Of
ISL above quoted. says the Legislature shall
not perform a Judicial ACT. The granting Of o.
new trial, IN a suii la Court We have seen. =
a Judicial act. Therefore the legislature cannot
grant a neN triai Aud 81 = q power that should
not be- possessed 10y the legislature, "a It's legs
latiVe capacity. because Iu that capacirN. 81
would not be governed in ats GctiOnsl by legal
rules land to permit tito dispose OF Judicial
e questions in thai capacity, would be IN the
highest degsee dangerous Ia the rights OF the an
{ dividual members OF the community"
HIs. indeed, most Strenuously commended in
4 this cl~e. hy counsel, that the proPTiety and va
f lidity of the liquor Act. under consideration
weTe questions To- he determined 10y the dircre-
ton 81 the legislature. and that the determine
ton OF that body IS moi subject 10 review IA this
tribunal. and some early cases IN the Supreme
4 Court Of the United States, particularly NcCul
I loch =. The State Of Maryland 1 Wheaton. 3l6,
are cited as sustaining the doctrine. We shall
5 enter into no argumcnt upon the theory or first
o principles Of the question. We shall treat II as
Que 81 authority Indeed. in the case ia
5 Wheaton, supra. the distinguished Chief Justice
in the opening OF hs opinion. uses language
"a that might Justify a review of the law before
us by this Court. He saws that "a doubtful
2 question - lin which the great principles OF
y liberty are not concerned" might, perhaps, be
put Ia rest bv The repeated sction Of the legis.
latufe. imply ing, certainly, that had the ques-
d tIoa ia that case been one that was conceived Ia
p concern those great principles. Il might have
o been decided by a difirreH; rule. Such is the
e question now before this Court ior decision. Ii
does concern the great principles of liberty. II
5 lsio determine whether one single dollar worth
e of property in this State. and the right 10 pur-
r sue "A single employment. whether, indeed. q
l. single iott &c personal liberty remains 10 thu
ga people secure from the invasion of despotic leg
islation: tor IL IL IAN strike down one OF the re-
,, cognized pursuits OF the citizens, it can all.
q But whatever NAV be the rule asserted IN ihs
/ early eases. that OF Bronson as. Mckenzie, !
Ie Howard l.. :. Rep. 81. 20 late as 1913. deter
y mined beyond all donbt, that che courts viii
rev lew apd decide upon the exercise of legls
a. latiyc discretion, 80 far as 10 determine whether
ia The given ease, tne constitution has been viO-
# lated. IL involved and decided precisely tn,
: question 50 earnestly argued In this case and
, which We are now considering. IL thai ease
a the legislature oi Illinois enacted "a law regu
latiRg The rePleyy Of Judgments and the sale oi
IL properly on execution. There was leo pfsgi
Of SION IN the constitution expressly prohibiting
legislation upon legal remedies; and. hence, II
No. al.t...l fl.t uul-r tho General Ut4ut al
legislative power. the right Ia so legislaIe pass
ed la The legislature IN its discretion. But the
!, constitution OF the United States did forbid tbg
passage Of a law impairing the obligation OF a
contract aud tine Supreme Cont decided that
! they would look into The manner IN which the
Legislature had exercised its discretion ia A
N matter where there was no express restriction
n to see that IL had not, in that exercise. violated
Y some other constitutional provision. Judge
II Mclean di~ssented contending for the right OF
h Legislative discretion but the same court, IN
" subsequent cases, rcafiirmed the doctrine OF
Il Bronson rs. Mckinzie, and it is now the settled
: law. McCracken Us. Hayward, ? How. 6OS
Ganily's Lessee as. Ewing, 3 How. 90s. This
oonrt unanimously adopted the same rule in
: Thomas DS. The Board OF Commissioner OF
n Clay Comfy. ) Ind 4 Maize IS. The State. 4
Ind. 342. And can it be that legislative discre
ton shall be- controlled IN the matter of violat
inc 4 contract, and not where IL annihilates a
$3.50 INAR"fAN - 80 NNtA
innumerable eontraeisY
/, Another position is taken by counsel who
q last argued this cause for the State and insisted
upon with great confidence. Ii is this thai
+ he Legislature has unlimited power over the
commerce of the State. and can, hence. prohibit
altogether the sale of liqHors or direct the sole
purposes for which they may be sold.
= Il Is argued in this way. Congress has power
10 To regulate sorcign commence, commerce. be
e tween the States, aud with the Indian tribes
and under this power she may prohibit all cont
merce, in the named eases, confscaie proper
~, dc.
= The Legislature OF the State has power. under
/, the general grant, 10 regulate domestic com
meice, hence, like Congress, IL may prohibit,
confiscate, dc.
4 The cases are not parallel and the reasoning
= i unsound.
f Tho grant to Congress of power To regulate
. commerce, is, since 1905, unliiuitrd. There il
no bill of rights ia the constitution Of the l..
q States. ia short, no restriction, unless by im-
4 plication, upon The power of Congress to regu-
late trade ia the specified instances. Hence,
Congress. do what she may, cannot H. shows.
a ON this subject. 10 have violated any restriction
IN the federal constitution under which that
body acts because Al contains none. Now. Aoa
i IL with the legislature aud constitution of this
r S'atel Our state constitution contains, a. We
5 have seen. certain restrictions upon the legi-la
tive power. certain sections declaring nights ln
the citizens a. against the goi eminent, and
those restrictions operate just as p"tently upon
the power Of The legirlame 20 regulate com
merce. as 10 do amy thing elsc-prcvent that
body Just a, electualiy from infringing the re
served rights fy assumed REGULATIONS of com
morce. ~ bv aGv direct enactment.
/ To Illustrate. The constitution declares that
every citizen shall lie secure in the right 20 wor.
r ship God according 10 the dictates 81 his own
conscience. Now. The great body Of religious
denomination ia the State conscientiously be-
iieye they are bound ecelchrate one Of the or
dinaucss of the gospel by the use at bread aud
wine. Bat vine - an article Il commerce aud
IL purchase i5 a commercial transaction. Ihere-
lafe utnn The argiinsuf. the legI-latnre hr-
pewerto prohibit is use. or declare tho puipo-
ses for which Il may b. sold and purchased it
NAV. therefore, declare that II shall not be sold
OF purchased for sacramento use-thus, IN ef-
i ~ -u..rL hrauIuA-. IL .u-L.L,t..nnL .--.-.-