The Indianapolis journal., 1885-05-23
THE ELEVEN O'CLOCK LAW.
Full Text of the Opinion of the Supreme
Court, as Given by Justice Elliott.
The Law Upheld in All It's Parts-The Liquor
Trafficls Not To Be Unhampered, brtPub-
lie Policy Demands Its Regulation.

The following is the full text of the recent
opinion of the Supreme Court, sustaining the
validity Of the ii o'clock saloon closing laws
Christopher G. Hedderich VS.. State of Indiana;
from the Maricn Circuit Court. Elliott, j.
The indictment upon which rests the judg-
.ment of conviction, from which the appeal is
prosecuted charges the appellant with the Of
Hense Of selling gill of intoxicating liquor to
Ebe drank as beverage, between the hours of IL
loclock p. NJ, of the 21st day of January, 1885,
rand o'clock A. NJ of the succeeding morning.
THE validity of the statute prohibiting the sale
bof intoxicating liquors, between the hours of III
O'Clock P. NJ. and O'Clock A. NJ, is assailed upon
the ground that the Legislature does not
GDosseSs the power to enact such law, but no
provision of the Constitution has been pointed
pout which denies TO the Legislator the power
exercised in the enactment of this statute. In
an argument of signal ability counsel contend
That in the enactment of this statute the Legisla
lure transcribed its constitutional powers, be-
cause the statute encroaches upon the natural
rights of the citizen. The argument finds no
support from authority, and has none in principle.
Ahether statute does or does not unjustly de-
prive the citizen Of natural rights is a question
Tor the Legislature and not the courts There no
certain standard of determining what are or are
not the natural rights of the citizen. The Legis-
lature is just capable of determining the quess
Hion as the courts Mems opinions as to
what constitutes natural rights greatly
differ, and if courts should assume
the function of revising the acts of the Legisla-
ture, the ground that they invaded natural
rights, a conflict would arise which could
never end, for there is no standard by which the
question could be finally determined But there
can be no such unseemly conflict, for there is
only one standard for determining the validity
of statutes, and that is supple by the Constitu-
zion. In Pittsbury VS.. Brown 67 Ind, 45. Wor-
Aien, j., said: "If the law is unconstitutional the
courts should hold it void. but upon no other
ground can it be disregarded" The court quoted
with approval in Yelling vs.. Merrill, SO Ind,
a. Ill., -
21 Pa, 147, the following: 1--WE are
urged, however. to go further than this.
and to hold that law though
not prohibited, is void if it violates
the spirit of our institutions or impairs
any of those rights which it is the object of a
free government to protect, and to declare it un-
constitutional if it be wrong and unjust. But
we can not do that. The court in speaking of
an argument of similar character to that
advanced in this case, said That, how
ever, is not matter of judicial cognizance;
it is not for the court to say that constitutional
law shall not have effect because it is, in the
judgment of the court, unreasonable Barton
rs. McWhenney. 50 Indiana 4S1 One of the
ablest of our judges long since said "The leg
islative authority of this State has the right to
exercise supreme and sovereign power, subject
TO no restrictions except those imposed by
Dwn constitution, the federal constitution and the
laws and treaties made under It," Beauchamp
vs. State, Blackford, 1922 This doctrine has
been approved time ard time again.
of the Legislature to absolutely prohibit
tho sale of intoxicating liquors, but as to the
power to regulate the traffic. Counsel have not
cited US to any provisions of the Constitution de-
nying the power, nor have they brought to our
attention a single authority constituting the Con-
sttution as they claim it should be construed.
1t is clear, in our minds, both upon reason and
authority. that the statute is valid exercise of
the police power vested in the Legislature In
Morris vs. The State, AZ Ind, SOB, it was assumed
without question that the statute restricting the
sale of liquor between prescribed hours was
valid, and that it was within the power
of the Legislature to prohibit the
sale on Sunday, on election days and on legal
h holidays. We have great many cases scat
tered through our reports holding statutes pro-
hibiting sales on such days valid, and the prin-
ciple is the same in those cases as in this for
the undergirdng principle of all these cases is
that the Legislature may regulate the retail
liquor traffic The statutes and decisions upon
this subject were reviewed In Harrison VS..
Lockhart, % Ind. H. and it was said: 1T will
be seen from this rapid view that it has not
been the policy, either in England or this coun
try to encourage the traffic in intoxicating
liquors. but that in this country the whole ac-
tion of the legislative power has been uniformly
to liTUit, restrict and absolutely prohibit the
traffic. With US, from the time almost of our
earliest territorial existence to the pre- sent
moment. that policy has been pursued" The
conclusion reached in the case cited ap-
proved In the case, McAlister VS.. Horell, AZ Ind.
Is. 1t is not questioned in any of our cases that
the Legislature may regulate the traffic. The
furthcst that any of the decisions go is to deny
the right to absolutely prohibit the manufacture
and sale of intoxicating liquors. 1t we should
now deny this power to regulate the retail traffic
we should depart from long and well estab-
lished course, and enter upon one not marked
out by any principles, nor lighted by any decis-
ions. The adjudged cases.. SO far as we have
been able TO ascertain, uniformly
agree that the Legislature has
power to regulate the traffic by
prohibiting sales on holidays and other days and
By prescribing the hours within which sales may
be made Judge Cody cites many cases assert
ing the power to enact such regulations. In the
case of Bertholf VS.. OReily IA N. Y, 500, the
court said "The right of the State to regulate
the traffic in Intoxicating liquors within its linn
its has been exercised from the foundation of the
government. and is not open to question The
State may prescribe the persons by whom and
the conditions under which the traffic may be
carried on. They may impose upon those who
act under its license such liabilities and penalties
as in its Judgment are proper to secure society
against the damages of the traffic, and ndindividuas
against injuries committed by intoxicated per-
sons under the influence of, or resulting from
their intoxication.' In the case of Crone
vs. State 40 Ind, 538; Layton VS.. State. i'd, 229;
Beardsley VS.. State i'd, 240 The constitution
ality of the statute was not questioned, although
shere was much diversity of opinion upon other
points, and separate opinions were filed by four
of the members of the court.
The title of the statute which contains the
section that the indictment is founded upon is
'.An Act Concerning Public Offenses and Their
Punishment and we have no doubt that the
title is sufficiently comprehensive to include all
offenses of public nature. If it does not in
clude ALL it does not include any, and if this be
true, then it results that we have no general
statute defining criminal oifenses, and the Leg
islature and the courts have gone far astray
in assuming that valid statute existed;
but this is not true for the title is
sufficient under our constitutional requirements
1t is true that the act defining the offense here
charged applies to licensed venders, but this does
not affect its validity, for a license is not con-
tract it is nothing than the grant of a
privilege and il does not in anywise restrict the
exercise os the police power of the Legislature.
mckinney VS.. Town of Salem ~ Ind, 2l3
But if it were conceded that the license consti-