The Tiffin tribune. (Tiffin, Ohio) 1868-1887, 1874-08-06

we nave received or Rev. j. v
q Clokey, Of Middletown, the folIowi,
5 opinion OF Hon. Stanley Matthews.
e 10 the effect Of the license aud anti-I
I eense propositions submitted with Il
new Consultation to the people OF OH
: In regard to the liquor traffic. I'll
! document, vhicn Is clear and pOsitiv
J. will be read with general Interest.
j Cincinnati Gdzette:
CINCINNATI, July p, 1874.
Rev. j. W. OOkey, KIddIetova, OAic
DRAR SIR;-YOur letter Of the sth ins
! requesting my opinion la answer {
Certain questions supposed to arise al
on the construction Of the aftermath v
, clauses OF the new Constitution, fo
and against license 70 traffic in intoz
leating liquors, came during nv al
sence from the city, and for that rea
, son has not resolved an earlier reoIy
without giving specific answers /
each OF your Questions, [ will endea '
or 10 cover their entire ground in 4
statement OF my opinion upon tn
precise point which understand to b
the subject Of controversy.
The license clause, II adopted, pro
vldes that License to traffic in spirit
uous, Vinous, or malt liquors, unde
snoh regulations aud limitations q
shall be prescribed by Law, man b
granted, but this section shall not pre
vent the General Assembly from pAss
Ing laws To restrict such traffic and I,
compensAte injuries resulting there
fcum-"
The traffic in intoxicating Iiauors
IL may be assumed, is lawful, unIesl
prohibited by law and were the Con
stitution entirely silent on the subject
the power Of the General Assembly
under the general grant Of legislative
power, would be ample tO tolerate
regulate or prohibit il. Without auy
constitutional provision therefor, ttie
Legislature would have discretionary
power either to license or prohibit.
and that either absolutely or upon
such conditions as IL might adopt.
The adoption Of the license clause
above quoted, neither adds to, aOl
takes dICdy, frOm this power, Inherent
in the General Assembly, because
embraced i'll the general grsut Of Leg.
islative power.
The provision as to licenses is that
they may be granted not that t1ey
shall be granted. II Is permissive
only, not Imperative The limitation
in the latter part Of the clause Is 8
limitation up iu this permission, and
not OF tue general pIwers, otherwise
vested by Ine COnsJ. tuition In the
Legisture; aud its Ofii:e Is, I'm my
judgment, TO exclude the conclusion
that permission TO license, should be
as an actual dlld unconditional IL
celsing (; aud that the exercise OF the
power % license should be incOnsis-
tent with the idea of limiting and
curtdRiHg q { traffic, or prevent the
Legislature from imp bsinZ even upon
the licensed traffic the penalty Of COM
peusating for Injuries resulting from
1t. Indeed, / am OF the opinion that
1t is impossible to put upon the word
restrict" as used in this clause, any
rational definition which shall not
make itsubstantially an equivalent OF
prohibit" In other WOrus, as by the
clause the Legislature Is expressly de-
clsred to have unqualified power 10
''restrict such trdJfc," no court could
ever lawfully discover any limit to
such restriction except the discretion
of the Legislature Itself; even
although carried to the extent OF
actual prohibition, in the sense in
which that word Is commonly used.
The conclusion, therefore, Is that
under this clause, II adopted as part OF
the Constitution, the General Assem-
bly, has plenary power over the sub
ject, including power to license, TO
tax, TO adopt the principle OF local Op-
ton, or to prohibit, either wholly OF
partially.
The alternative section against IL
eense Is as follows
t.N4o Hs.~-.s-, se-A---f -fta>--fr = --i--< : =
eral Assembly may, by law, restrain
or prohibit such traffic, or provide
against evils resulting therefrOm."
This is not q self-executing provi-
sion, in the sense Of making the traffic
in intoxicating liquors illegal. ItprO-
hibits the General Assembly from
regulating the traffic by 8 system Of
licenses but It does not prohibit the
traffic itself I; and the latter part OF the
clause simply recognizes the power
which without IL would nevertheless
exist in as ample 3 manner-tO deal
with the traffic by any restraint or
prohibition not Involving 3 license.
1t confers no power Whatever. 1t
simply forbids the exercise Of the
power To license. Under this clause
the Legislature might refuse To take
any action at all. In that case the
traffic In intoxicating liquors, 10 every
form, would be legal, notwithst4ni-
ing the prohibition against licenses !;
ff 81 ~
the traffic In certain cases and upon
certain conditions, rs by the present
laws on the subject, which, la fact,
tolerate the trAffic In every other way
not expressly forbidden. T.
The essential and characteristic diff
ference between the two elauses, then
Is this, and only this: that under one
the license clAu-e-All power over
the subject Is vested In the General
Assembly; under the other, the Cen
eral Assembly Is deprived Of AL that
power over the subject involved In
regulating or restraining It by means
of q system Oflicenses. This, IL seems
to me, amounts to q denial Uf resort
to what Is known IS the local option
system, to the operation Of which, IS
I understand it, In one alternative, IL
eenses are essential.
Under the license clause, then, 10
my opinion, the power Of the Legisls-
ture, which may be judiclOusly exer-
eised for the suppression of tipDiing
and saloons, Is larger, and therefore
more efficaeiOus, than under the anti
license clause, miscalled the Prohibt-
tory clause.
It may be urged In opposition to the
view which leads to this conclusion,
that the word restrict ia the license
clause cannot fairly and reasonably be
construed as equivalent to prohibit,
and the use of both words in the other
clause may be pointed to As evidence
of q material distinction between
them. In point Of fact the word "re-
strict" used in the license clause, is
not contained in the other as 3 con-
trast to the word ''prOhibit," the word
employed in the latter case being "re-
strain" so that ths argument as to
the verbal meaning OF the instru-
ment from this source falls
But 1t seems TO me that 1t will be inn
possible ~ put any Judicial eonstruc-
LiOn upon the WOrl restrict" that
can practically lImit the power Of the
Legislature, even IL 1t should b exer-
eised to the extentl Of actual prohibi.
ton. Is not prohibition one degree Of
restriction? Is II not one Of the means
Of restriction ? Are no degrees and
means cOnfded to the discretion Of
the Legislature ? A similar question
arose upon the Embargo Acts in the
early history of the Federal Govern
ment. It was then decided that un-
der the general power 70 regulate COM
merce with foreign nations, Congress
had constitutional power TO pass an
act prohibiting all commercial inter-
course for an unlimited period, perm
anentIy and entirely (&Ory On
COnst., Sec. ], 1,29O).
Besides, In the license clanse, what
is it the Legislature Is authorized "
Testricti It is the "trAffic In spiritu-
Gus, yinous or malt liquors" Let Us
suppose that under that clause the
Legislature should pass an act totally
prohibiting all sale VI such Liquors by
retail, that Is, let Us say, In quanti-
ties less than twenty gallons. Would
that be more than = law ito restrict
such traffic ?" Clearly not, in my
opinion.
Tue debates ia the Convention, and
individual expressions found therein,
cannot have any weight against the
plain and natural meaning Of the Ian