The Jasper weekly courier. [volume] (Jasper, Ind.) 1858-1922, 1873-04-18
Opinion Of Judge DunhaIn In Re-
latiOn to the New Liquor Law.


Judge L. l.. Durham. OH j. v. Kelso's
motion 10 dismiss the prosecution
|against sundry persons for violating the
Ioid liquor law, rendered his decision
substantially as follows:
l have carefully considered the cues.
ltions involved in this motion and have
arrived at tic following conclusions:
First that when the new statute covers
the same subject matters AS the old, the
new repeals the old statute.
Second, when statutes are rcpngnant
Ia their provisions, the last one enacted
ircpe;sls the formcr.
The new liquor law covers the same
ground as the old, and is repugnant there
10, hence tlic recent law repeats by i'm.
lplicafion the old law, even il it did moi
contain the repeating clause which il
does. The fact that the new law makes
II an oilense 10 sell tO minors. the same
as tiic former; Yet bccause Of the change
III The penalties against such sale, "A per-
son Violating the provisions OF the old
law cannot be- prosecuted under the new
one; Tor Ia apply the penalties of the new
law 10 oirhces against the old would be
10 make the law to operate retroactive.
ly, which can not be done under the
CONSTITUTION, which declares against ex.
post .actO laws. The only question now
left is as to whether the exception in the
cmergency clause in the new law con-
iinues III lOrce the old law as TO licensed
dealers:
First. Is the emergency clause consti,
iuiiollal, when considered in connection
with tie constitutional provision. "tila,
ail laws shall be general and OF uniform
Operation throughout the Statc:"
think IL Is. because the exception is as. tC
IA class. viz: licensed dealers. and il i,
uniiorinsin its operation as TO all person.
oi this Glass. This being 50, did the Leg
islaturc,.by their exception, intend 10
cont inue the old law in inrcc as to tlic>,
excepted persons. or did it intend The,
should engage inS,hc liquor traffic with
out being subject 10 any law! They be
ing licensed under the old law 10 en-
gage IN the liquor traffic on the condi
iions prescribed by this law. and llavin.
thereby acquired vested right. Ger
taiiiy the Legislature. by making the ex
rrrtion as Ia them in the cncrgenc,
chn~c, Intended 10 exempt them from
Tile conditions al the new law and We
The inference j. plain, from the languag'
Oi tie provisions Of the new act, That Ill,
Legislature did NOT intend tn let these HI
cen-ed dealers operate without bcin.
subject Ia the same law regulating ia,
salc of liqaor. do not believe il was tli,
intention Ia So especially favor them. :
Hence. ronclu,le that the intention wa,
d" continue the old law in force as To Ii
~"n>ed dealers. aud that they are unl,
ii BILE 10 he prosecuted under il. There
FIRE. the motion Ia qua>h j. sustained il
,ali the rasc~. where the indictment doe
hot show upon it, face thu; the deirn
dant was licensed dealer under the oit
law. and Ovcrruicd rs to those where j
SHOWS the defendant Ia have been 80 Ii
.censed.
| The effect of this decision was 10 dis
miss NIL liquor cases. thirty-iive in mum
her. except TWO. which BY co isent wer
continued until the next term. The mo
liicn was ably argued by Mr.. kclso TO
the defence. aud the Prosecuting Al
torncy. Mr.. Marsh. for State. and in ad
dition to tlse oral argument. Judge Dun
ham required written brief Of Mr.
Eclso which was furnished. Judg
I,nnlam lia> given this question mucl
thou.ht aud searching investi CATION
so that his dcrisiom will be entitled 4
lthe consideration of all parties interest
led. Il New Albany Ledger.