Weekly Indiana State sentinel. [volume] (Indianapolis [Ind.]) 1853-1861, 1856-01-03
1usfkIy Stats gfntineI,
PROHIBIT0RY LIQUOR LAW.
OF JUDGE STUART.


AFPEAL from TIE MARION CoNNON PLEA>.
Besbe was prosecuted before the Mayor Of In
dianapolis for two distinct violations OF the
lsauor law Of 1858. The one was a charge for
manufacturing beer. the other for selling il con-
trary u the provisions Of that act. tie was
uisa: convicted in both cases. and fined fifty
dollars each. Failing 70 pay OF rePlevy the
hRes. Beebe was committed To prison. On ms
application 10 the Judge Of Common Pleas. a
writ Of hsbeas corpus was issued The ofheer
having him in charge returned as the cause oil
dstsnIioa. the proceedings. Judgment, aud or
der Of The Mayor in the case referred To. After
hearing he was remanded To prison.
Ffom that order he appeals.
These cases have been twice argued orally,
with distinguished ability ON both sides. And
whaI - stili more commeudRble the argument
was conducted with that moderation and for
bsaraner So becoming in forensic discussion.
The first inquiry IS What does the record
presently Simply a question of Legislative
pow er. The details Of the law are not before us
and are not. OF course. consideted.
Tn inquiry here Is confined To the sail for
ths question arising on the other case for manu-
fsetUfe admits of a very different solution. Hav-
ing, for 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 re-
mains.
n al dochiicN - Nohllhc ~ - ~ iAiu't
10 the d~epaftmentso Of science aud the ordinances
OF christianity.
Aud the Question Is. is il competent for the
Legislature 10 thus restrain the sale aud use OF
intoxicating liquor.
His admittedly argulaest that there is no
express provisfuu OF The CONSTITUTION restricting
the general assembly on that subject. :
But il IS insisted that such restriction Is i'm
piled in the first section of the ball of rights
Let Us place the statute and that section Of The
constitution together
Strlpt Of all that relates to the agency and to
the manufacture, the lst and 9th sections as TO
ss.s are Ia substance: That no person shall keep
for sale OF sell by himself or agent. directly or
indirectly, any spiritgOus or intoxicating liquor,
except for medicinal. chemical, or mechanical
uses o1lv. and pure wine for sacramental USE
Laws 1888, p. 2J9, 2ll.
To prevent miseOUceptiOu the first section Of
the bill Of rights is quoted entire:
rSec. 1. We declare that all men are created
equal, that they are endowed by their creator
with certain inalienable rights; that among
these are life. liberty, and the pursuit of hap
piness, that all power IS inherent IN the people,
snd-that ali free governments are, aud OF night
Ought 20 Dc, founded upoU their authority, and
Instituted for IhsIr peace, safety, and well-be
ing. For the advancement Of these ends the
people have al all times an Indeieasable right
10 alter aud reform their government"
According to all publcists the right to hold
aud eajoy private property Is among the lnal-
isDsbls rights. Il the constitution of 1916 the
right "of acquiring. possessing. and protesting
property was expressly enumerated.
u becomes important, therefore. to inquire
III what seDse are the nights Of life, liberty
and property said TO be inalienable2 1t doe.
not mean that the legislature shall not pas:
any law IN relation 10 them. For the whole
statute book is IN some measure a standing in
terfsrence with, and regulation of these very
things. The Executioner, the Warden of tn
prison, the sheriff, the whole corps of executive
aud administrative officers are continually Ia
king wa these rights from some citizen.
u does not mean, therefore. that these right
ara 10 be held superior TO, and above the laws
They are held subordinate TO such municipal
laws and police regulations as the political or
gsnizarion IN which these rights are enioye,
may rightfully enact under the constitution
They are held subject to such restraints a
''the Bsace. safety, and peI being OF the bod,
polite may require. Thus in Calder ". Bull
Dallas $50, the Supreme Couat of the u. >
say: "The right of property is always subjeo
20 the rules prescribed by positive law. III
right vested In the citizen Is to do certain act
os possess certain things according to the Law
OF the land"
Thesetish's. therefore. may be taken ava
IN due course OF law" as the forfeit of VIOLA
ting municipal eiasst1oents.
Nhai, then, does the uaalienabie right G
property mean ? II might BE- comprehensive
answered that the whole constitution. is a com
ment on that text 1t means that thu eitizel
shall be secure in his effects from unreasolahl
search and seizure. Sect. IL. Art 4. That IA
shall have a light To a public trial by Jury
Sects. Ia and 90, i'll. That his services or pre-
perty shall not be taken without Just cotnpensa
fico- Sect 81, id. and so Df all the other re
strictions OF the constitution. "They are tn
sarrers erected by the people" against the er
rOachments OF the powers they have delegate
10 their public servants.
Locke says il is against natural right for tn
government TO dispose of the estates of sui
@ets arbitrarily or divert vested rights at plea.
ure." The Legislature cannot take the prOpert
Of A. and give IT to B.. So in the school ease
Il was said by this court that the iegislatur
could not take the property of A aud b., diveI
AZ from their use. and distribute II rateably
third persons. The unsoundness of such legi,
lsrion "a violating fundamental principles cOul
not be doubted. G Ind.
So also in Wilkinson ps. Leland, , Pet. 62
The property of heirs had been illegally sol
and the Legislature Of Rhode Island passed a
act confirming the sale. IL was in reference
this invasion of private property that Judg
Story delivered the eloquent passage 10 }
found in 2 Peters, 657. lie Justly declares, 9Th:
government can scarcely he free when the estai
Of the citizen can be transferred without tria
without notice, and without offence"
30 IN Doe Ds. Douglass, 8 Blackf- Judge Pc
kins speaking Of n similar state Of facts say,
"The Legislature is supreme, except wherein r,
stncuons have been imposed Tie adds, eth
restrictions of the constitution restrain the Il
g~islature from passing a law impairing III
obligation Of contracts from the performance
q judicial act. and from any fragrant ~violatio
Of the right Of private property" Here the r,
marks must be taken with reference to the fact
Of the case. Judge Perkins was not speakin
Of q municipal law made To protect all. He ha
reference to an act OF the assembly conirmin
the illegal sale Of three lots i'm Evansville.
So IN the celebrated case Of Fletcher rs. Peel
8 Crauch 81. The question arose on an act {
the Legislature Of Georgia, alleged to have bee
passed corruptly, authorizing the issue Of
patent Marshall, G. j., guardedly says IT
the legislature all Legislative power is granted
But whether the act OF transferring the propert
Of an individual TO the pubic, be in the natur
Of the legislative power is well worthy of 81
Tious reflection" Here also, the venerabl
Judge was speaking, not of a municipal law q
police regulation To promote the peace, safef,
ard reH being of the people Of Georgia. Ii
had reference ~ a law operating directly o
specified property of q citizen of that Stats
lt is IN these cases and in such a state of fact
that the dicta about unalienable rights SO ofte
quoted by elementary writers, occur.
These cases sufficiently indicate the meanin
Of unbelievable rights" as used In the frs
section OF The constitution. They sufficieDtl
distinguish between an act which assumes I
transfer private property without trial, wiihou
ncuce. and without offence, from an act of mu
uicipal regulation having for its object tn
Sez soy. and ueh betng of society. The APP
pieatioo OF this distinction is obvious. Sup
Poss the legislature Of Indiana Lad passed al
act sPpropriating nifty barrels Of appellant
beer . ns Use OF the Mayor Of indianapolis
This would have been an Infringement Of Bee
bsis .rnglienabie rights Against such spo
iIald0bf his property without offence, trial, o
notice, the courts would be bound to afford hii.
Yroppt protection but not against the opera
ton of . municipal law enacted in conformit,
10 the constitution.
Closely connected. in the argument, will
uuzlis1aabls rights, are the limitations of legis
l4tive power outside of the constitution. In,
reie yancy Of the inquiry is not readily appre
eiated. IL involves many curious question,
lying all along the exterior boundary OF tn
rights and duties Of rulers and people in ex