Evansville daily journal. (Evansville, Ind.) 1863-1866, 1865-12-19
Validity Of Bond Prohibiting Sale of
intoxicating L1quOrs--OplniOn by
Iudga Raw

intoxicating L1qu0rs--OplniOn by
Judge Ray.
q William r. Harrison ct al. Us. Alexan-
der Lockhart. Appeal from Morgan c. @.
The appellants brought this action
upon bond, the condition of which was
shat the appellee would not engage
thereafter, at any time, nor in any mat
ter whatever, in the business of retail
ing Intoxicating liquors, as beverage
or otherwise, within the original town
plat of the town of Martinsville, Nor
gan county, or within mile thereof, by
himself or through the agency of any
other person whomsoever" The con-
sideration of the bond was the sum of
forty dollars. The penalty was in the
sum Of five hundred dollars. The breech
of the bond assigned is that the appel
lee has engaged in the sale of intoxi-
eating liquors as beverage within the
limits of the original town plat of Mar
tinsville. A plea in abatement was filed,
but was not verified, and the court com
mitted no error in sustaining a motion
to strike out the answer. Bradley, VS..
the Bank, 20 Ind, 528. A demurrer
was sustained to the complaint. This
is the error assigned. The policy of the
law is TO permis parties capable of con-
tracing, TO make their own agreements,
and when founded upon good or valu.
able consideration, they will be enforced,
or damages given for their violation
Certain classes of contracts form an ex.
ception of this rule, and are declared
exceptions to this policy of the law.
Among these classes are what are called
contracts in restraint of trade. There
have been numerous decisions in which
this exception to the general policy of
the Law has been announced and vindi-
Gated And perhaps this has not been
done more satisfactorily by any Judge
than by Selden, Justice, in the case of
| Laurence vs.. Kidder, 10 Barbour
Sup. c. R, GAL He states the law, and
the reasons for the law, Thus: 3
"The validity of the contract does not
depend in the slightest degree upon the
question whether it is beneficial, or 9TH
erwise, to the party bound. sGG&
/ G ."The interests of the public alone
were considered in the adoption of the
rule These interests are Invisible into
two branches, and it will tend to eluci-
date the subject to make the distinction.
"The welfare of State is advanced
by the increase of its productive indus
try. 1t is important, therefore, that each
of its citizens should be free to employ
himself in that department of labor in
which his personal efforts will be likely
to add most to the aggregate productions
of the country. This is the first and
leading reason for the rule in question.
"But there is another. The conve-
nience of the public requires that all
the various trades and employments of
society should be pursued, each in its
| due proportion, a result with which the
exclusion of any individual from his ac-
customed pursuits has tendency to in
terfere The two reasons for the inva-
lidity of contracts in restraint of trade
are entirely distinct from each other:
one to the wealth and profit, and the
other to the convenience of the nation. I"
Certain exceptions are recognized as
existing, and in speaking of one excep-
ton to the rule, this eminent iurist uses
this language: If we take a general
view of the subject, and all the authori-
ties bearing upon it, we shall see that
the exception we are considering rests
exclusively upon the principle that when
ever the reason of the rule does not ex-
ist, the rule itself ceases" w.
In the opinion by Parker, Justice, in
Mitchell vs.. Reynolds, P. Williams,
ISL, it is stated, that all the restraints
of trade, where nothing more appears,
the law presumes them bad; but, if the
circumstances are set forth, that pre-
sumption is excluded, and the court is to
Judge of these circumstances and de-
termine accordingly; and if upon them,
it appears to be just and honest con.
tract, it ought to be maintained.
&. 1t is very plain, that if the occupatio n
whichis prohibited by the contract now
under consideration, is within the pro-
tective .policy of the law, that the con-
tract itself cannot be sustained, for its
terms do not come within the except
ions which have been declared to the
rule. 1t is within the exception, so far
as the restriction extends territorially,
but the rule is, that to sustain such con
tracts, the restriction must be imposed
for the benefit of some one, who will him.
self engage in the same general employ.
ment, so that the public may not suffer
inconvenience, nor be deprived of the
good resulting from the continued car
rying on of the pursuit-Lcs0rence Us.
K5ddss, uprG.
1t remains then TO determine whether
this pursuit is within the protection Of
the la v Upon this question we are not
aided by decisions, and must determine
in the language of Seldom, Justice
whether it is within the reason of tbs
rule. This can be determined alone, By
the course of legislative action, anG
from that, we must learn the policy o.
the Law in regard to the protection o.
the traffic.
Laws were passed in the reigns Of
| Edward the Third, Henry the I bird, and
Henry the Eighth, prohibitory in theil
character of the sale of liquors. In the
| time of Henry the Third, an act was
passed disqualifying persons engaged in
such employments, from holding any
Office of a judicial or executive charac
| ter. Early in the present century in
our own country, movements were com
menced among the people, which to q
greater or less extent, have from time
to time Influenced legislative action,
and at present the traffic in Intoxicating
Liquor as beverage, ia absolutely pro-
hibited in some Of the States of the
Union. Dob I