Indiana State sentinel. (Indianapolis, Ind.) 1861-1865, 1861-01-30
Decision of the Supreme Court ON the
Liquor Law of 1S59-Delivered by

1889 The case is appealed to this Court, where
a reversal of the judgment is sought, not on erro
neOus rulings of the Court, upon points of prac-
tice, but on the ground that the law itself is in
valid.
Questions almost without number are raised
and ably discussed, some of which do not legiti-
mately arise in this case, but do in others now
pending before us, and all of which must sooner
or later be decided, and will, therefore, be now
passed upon.
L. 1t is objected that no exceptions are made in
the law of sales for medicinal or sacramental pur
poses
The Court will make the exceptions where
proper. Donnell Us. The State 2 Ind. 656, Ind.
Dig 379.
3 1t is said the law confers special privileges.
Sec. % of Art. l of the Constitu ton declares
that privileges and immunities which upon tibet
terms shall not equally belong to all citzens,t
may not be granted.
Now who are citizens within the meaning of
this provision? Evidently none but those who
participated in the formation of the government
or have a right to participate in its administra-
ton. These are lrhite male citizens of the United
States, of the age of twenty-one years. and trhite
males of foreign BIRTH of the like age who have
declared their intentions under the act of Con.
cress TO become citizens of the United States and
have resided in the State six months. Sec. 2,
art 2 of the State Constitution, Whether these
latter are citizens? Query. 1t is said States
NAV confer privileges on those who are not cit
liens.
The term "ctizen" has come to us derived
from antiquity. 1t appears to have been used in
the Roman Government to designate person who
had the freedom of the city and the right to ex-
ercise all political and civil privileges of the
Government. There also at Rome partial
citizenship including civil but not political rights
Complete citizenship embraced bOth-Adams'
Roman Antiquities, PIP. Al, so, ct seq. Kent p.
76, note
Returning then from this DEPRESSION, we may
inquire what are the conditions imposed, and privi
leges conferred by the liquor act in question?
Substantially, they are that the incensee must be
an inhdbitdnt, not citizen (f the words are not
used anonymously must be of the male sex;
must be white; must be twenty-on years of age;
must be of good moral character; must pay fifty
dollars; give bond, etc. Acts of 1851, page 202.
Now, all persons upon filling these conditions,
these "same terms" can obtain license. Drapert
rs. the State, IA Ind. 1913. The law does not
seem to conflict with the provisions of the Consti-
tuition cited. See the Bank Us. the city of New
Albany, III Ind. p. al. Holden V. James ii,
Mass. Rep. 1886, Walk. Amer Law PIP. ls6, 81,
and note.
3. 1t is claimed that the fee for license, so dol
lars, is tax upon particular pursuit, and such
is prohibited by sec. of art. 10, of Consttu-
ton, providing for a uniform rate of taxation.
to the general levy alone. The Bank ps The
City, supra. Anderson. The Kems Draining
Company, Ia Ind, p. 1879. See as to unlimited
taxing power, Ind. Dig, p. 76l, sec. 10. The
license upon retailing is an excise. l Story on
the Const., p. go.
An excise is an indirect tax; but in this case
taxation was not the object in imposing it, and
the Legislature was not bound to appropriate its
proceeds to any object for which she is forbidden
4 rais NV al tax 4
was imposed in the exercise of the rightful po
lice power of the State, and is an incident of
legitimate police regulation. Hence it is not
within the prohibition of the 22d section of the 4th
article of the Constitution prohibiting local and
special taxation for Stale purposes. See How.
2S3- Story on the Constitution, p. 10, ct. seq.
4. 1t is urged that sec. il of the liquor law in
question, prohibiting the sale or giving away to
minors, is not within the title of the act. That it
is within it, has already been decided. The State
Us. Adamson, Ia Ind 2S6. But the defendant
may show reasonable ground of belief that the
minor was an adult.
5. 1t is denied that sec. IA of the act, giving
jurisdiction of the offences created by it TO the
Grand Jury, is valid
This point we regard as already settled by
Reed us. the State, ~ Indiana, GAL. 1t is there
held that certain felones may be prosecuted in
the Circuit Court or Common Pleas and that if
prosecuted in the former, they must be so upon
Indictment, if in the latter upon information. 1t
is decided in Short that the doctrine of uniformity
in the mode of prosecution does not apply to the
crime itself, but to the particular court in which
the prosecution is made. All criminal prosecu-
tiOns carried on in given court, must be by
uniform mode; but it is in The discretion of the
Legislature, when no constitutional regulation in
terpoSeS, to prescribe the court courts in which
any all crimes shall be prosecuted. This re-
suits from the fact, that the new Constitution has
authorized the Legislature to adopt such new
modes for the initiation of prosecutions of all
crimes its wisdom should deem expedient
within, of course, the general restrictions of the
Constitution. Art. Z sec. IL.
But it is argued, not without much plausbility
that sec. a. p. 3SS, 2 r. s., comforting jurisdic
ton of felOnies upon grand juries only, and
thereby upon circuit courts is not repealed by the
provision of the liquor law of 1859, extending
the jurisdiction of those bodies to certain misde-
meanors.
Sec 8, art. of our State Constitution, orlains
that circuit courts ''shall have such civil and
criminal jurisdiction as may be prescribed by law.
In Indiana, then, the mere creation of a court
does not confer any jurisdiction, and jurisdiction
is granted, not simply restrained, by statute.
This shows that the word ''only" in the statute
comforting jurisdiction, without meaning.
The grant was of jurisdiction over felonies, and
as the tribunal has such jurisdiction only Gas is
e.,
absence OF the restrictive term.
The case, then, stands thus: The statute of
1852 gave jurisdiction of felonies. That jurisdic
ton remains. The statute of 1859 confers juris-
diction of misdemeanors. This does not conflict
ornterfere with hejurisdction previously granted.
The statutes stand together. But, even suppose
they conflict, or that one, by implication, repeats
the other, such repeal is not within any constitu
tional prohibition, and need not be specially en-
braced in the title of the act. Spencer Us. The
State, Ind Al.
6. 1t is claimed that the act infiicts no PEN
atty for selling on Sunday, and that hence
convictions for sales upon that day are I'M
authorized. 1t was so held under the act of
1858, Ind. Dig, p. $40, sec. 10, and it is
claimed that the collocations of the sections in
that act and in the act of 1859, are alike rs to
this point, and the language of both similar.
That it is competent for the Legislature,
should it deem itpolcythus to act, to prohibit,a
a police regulation, under penalties, the sale of
liquor by retail on Sunday as we'll as upon
election and other public days on which in
creased danger of drunkenness and rioting and
public disturbance exists, we do not doubt I;
but at present, if it be true that the acts of
1853 and 1859 are alike, such sale can only be
punished, if at all, under the law for COM
polling observance of the Sabbath. 1t has
been held by this court that that law was
valid, Ind Dig, p. 1853; but the writer of this
opinion, speaking, on this point, for himself
alone, wishes to say tat further reflection
has led him to doubt the power of the Legis-
lature of Indiana, under our present Constitu-
ton, to enact such a statute.
When our existing government was created,
its creators determined that there were some
matters in which the majority should not con-
troll the minority; that there were some
things over which the Legislature should not
have authority; tina: in some things the people
should not be within the power of the Legis-
lature. Such is our organization of govern
ment-our Constitution. One of the subjects
withdrawn by that Constitution, in the bill of
rights, from legislative interference, is that
of religion; and the writer has no hesitation
in saying. highly as he individually values
the Sabbath, that if the Sunday law is upon
the statute book for the protection, or enforce