The Indianapolis daily herald. [volume] (Indianapolis, Ind.) 1865-1868, 1865-12-11

zee that the exception We are considering. ret.
exclusively upon the principle that whenever
the reason of the rule docs not exit. the rt,Ie
ifsclf ccascsr
In the opinion by Parker. Justice. In Mitchell
re- Reynolds. 4. Williams. Isl. II l. stated.
THAT I'm all restraints q trade. where nothing
more appears. the law presumes them bad.
but. IL the circumstance are 1T forth. that
presumption J. excluded. and the court i a.
judge 81 these circumstance. AMI ,l.tey1uine
accordingly; and ifupOn them. 10 appears 1, De-
a Just and honest contract, II ought % b. main
tanned"
II j. very plain. that II the occupation which
l. prohibited by the contract now under con-
sideration. J. within the protective policy Of
the law, that the contract itsslf can not be-
sustained, for IL terms 10 not come within the
exceptions which have been declared 10 the
rule. Its within the exception. 20 FAR a. the
restriction extends tcrritorialiy. but the rule
j., that % sustain such contracts. the rcstric-
ton must BE- imposed for the benefit II r)me
one, who will himself engage In the same gen.
erai employment. 80 that the public NAV not
suffer inconvenience. nor be- deprived II the
/. good resulting from the continued carrying on
/ Of the pursuit. Laurence e.. hfdder. supra.
/ IL remains then 20 determine whether this
pursuit J. within the protection q the law.
/ Upon this question we are not aided by deeis-
I ions. and must determine in the language 81
\ Selden, Justice whether il l. within the reason
Of the rule. This can he determined alone. by
/ the course Of legislative action, and from that.
we must learn thopolicy 81 the law IN regard
/ 20 the protection Of the traffic.
Laws were passed In the rcgns Of Edward
the Third. Henry the Third and Henry the
/ Eighth. prohibit0ry In their character Of the
sale Of liquors. In the time Of Henry the
/ Third. AN act was passed disqualifying persons
engaged in such employment-. from holding
any Office Of a Judicial or executive character
| Early In the present century In our own cOun-
| try, movements were commenced among the
people, which 10 greater or less extent. have
from time 10 time influenced legislative action
and AZ present the traffic In intoxicating liquor
! a. a beverage, l. absolutely prohibited In some
/ Of the States Of the Union.
A. early as the year 1907. the General A.
sembly Of Indiana Territory passed am act,
{" declaring that for preventing disorders and
the mischieis that may happen by multiple
ity Of public houses Of entertainment no per-
son or persons shall In future keep public inn
| or tavern, ale house, or dram shop, or public
house Of entertainment In any county, town
I or place, within this Territory. unless such
person or persons shall first obtain PERMISSION
or license from the Court Of Common Pleas,
which shall continue for one year and no lon
ger"
II was provided that no person licensed a.
aforesaid shall knowingly suffer any disorder
as drunkenness, or unlawful games, under the
penalty Of five dollars for the first offence and
for the second offence, % be suppressed by the
judges Of the several courts.
bond was required 10 be given 10 the Gov
ernment Of the territory, that the person so re-
ceiying license would always be OF good beha-
vior, and observe all laws, ordinances etc. BY
/ the sixth section Of the act il was declared
q" That no person or persons, other than such
as are or shall be, qualified so 10 do by the law,
shall presume, under any color or pretense 10
sell, barter with, or deliver any wine, rum,
brandy or other spirits, or strong water, beer.
cider, or any mixed or strong liquors, to be
used, or within his, her or their houses, yards
or sheds, or 10 be, with his. her or their knowl-
edge, priyity or consent, used or drank i'm any
shelters, places or woods near or adjacent TO
them, by companies Of servants, slaves or
others, nor 10 retail or sell 10 any person or
persons, any rum brandy other spirits, or
strong water, by less quantity or measure than
one quart, nor any beer, ale or cider bv any
quantity less than two gallons. the same
liquors being respectively delivered To- one per
son, and ut one time, without any collusion or
fraud, contrary 10 the true interest and mean
ing ofthis law; every person offending therein
shall pay fine Of twelve dollars. ON conviction
10y indictment, TO the use OF the proper county =
Laws Of Indiana Territory. 1907, page ~.
An act was passed by the state Legislature
In the year 1918, prohibiting the sale i'm less
quantity than quart AT time, or al retail 10
be- drank about the premises of any SDirituous
or strong liquors without a license therefor
license was TO be sranted ON application
by the Board Of County COmmi ssioners pro-
Vided the person 80 applying shall produce the
certificate of twelve Respectable householder,
that such person was Of good moral character.
and that II would be- for the benefit and con.
yencnce Of travellers for such person 10 be
licensed a aforesaid; provided also. that such
person shall first enter into bond, with sum.
cicnt securities, { To be approved by the Com.
missiOners, in the sum Of 800. PAYABLE TO the
county treasurer, that he or she would not per.
nit any gambling, rioting dIsorderly con-
duet in his or her house" No sprituous Ii.
quOr could be- sold 10 minors, apprentices or
servants without the consent of the parent or
master. \ sale upon credit TO an amount ex.
ceeding five dollars in value could not be col.
lected. Laws Of 1918, p, 296.
In the law passed in the year 1925. the Ger.
tiheates Of good moral character required Of the
applicant for license was 10 be signed by TWEEN.
ty-four respectable freeholders, inhabitant. of
the town or village, and was 10 contain the ad.
ditional avermcnt that the granting of the
license "would be conducive 10 the public
eoOd,r
This same spirit continued TO pcrvade ON
legislation. and in 1853 an act was passed re.
quIung the consent of a majority Of the legal
voters of the township. before a license 10 sell
Intoxicating liquor could be issued.
A bond was also required with securities
aud upon such bond suit could be instituted by
the wife. child, parent or guardian, emplove OF
other person who should be injured i'm person
property or means of support, by any intox.
icated person. when the principal in the bond
entered into by any person. while in state OF
intoXication, were declared voidable.
Laws have also been passed prohibiting the
sale. or giving away Of Intoxicating liquors
within two miles Of any collection Of inhab
: itants OF this state, met together for WOrShip
In the year 1870, law was passed prohibit.
ing the sale OF such liquors as beverage in
this state. In the language Of Perkins, Jus
tice, in Beebe rs. the state, Ind. 520 ..Th,
T Legislature enacted the law i'm question upou
the assumption that the manufacture and SAID
Of beer. etc., were necessarily destructive tC
the community"
The acts Of 1853 and Of 1855 were held un.
constitutional by this Court. but are neverthe.
less to be considered a. indicating the policy
Of the law-making power in regard To tho
traffic in intoxicating liquors. In 1859 an act
was passed by TIE Legislature, requiring q
license for the sale of Intoxicating liquor. am
only TO be issued TO the applicant. upon hi.
showing 10 the satisfaction of the Board Of
, Commissioners Of the county, that he was d
man Of good moral character, and iii 10 b,
trusted with said license, and upon his giving
bond. This act prohibited the sale To minors
and 10 persons in a state Of intoXication. or "a
any person who was in the habit of being in.
tONicated.
Ii will be seen from this rapid review. that
il has not been the policy, either IN England. OF
IN this country, 10 encourage the trafho in i'm.
toxieatlng liquors, but that in this country
the whole action Of the legislative power has
been uniformly 10 limit, restrict or absolutely
prohibit theIraiiie. With Us from the time
almost Of ouiearlest territorial existence. 10
the present moment that policy has been pur-
sued, and in the opinion Of the former Judge,
Of this Court, the utmost verge Of legislative
power, was passed. in the vain attempt 10 pro-
hibt the sale. In the light Of such a record
and with the legislative enactment still stand
ing unrepealed, and its power unquestiOned in
this Court, would IL become us 10 declare that
il was the settled policy Of this state to en-
courage the traffic in intoxicating liquor. and
protect IT. that il might add 10 the wealth Of
the State, or serve the convenience Of the pub
lie. We are not placed here by the people TO
dictate policy 10 the Legislature, but 10 de-
clare and give effect TO the policy they may
adopt, If that policy does not clearly contra
yene the provisions Of the Constitution.