The Indianapolis journal., 1890-06-16
LEGALITY OF LOCAL OPTION
Hon. John NJ. Butler Plainly Shows that
Such Legislation Is Constitutional.
He Reviews the Question at Length apd Cites
Authorities in Support of His Position-In-
dorsed BY Many Prominent Lawyers.

There are many persons In Indiana who
contend that local option will not stand
the test of the courts; that such legislation
would be declared unconstitutional. AT
the request of frisnds of local option the
Hon. John NJ. Butler has devoted consider
able time to the preparation of an opinion
on the legality of locaI-option legislation.
and the result of his labor is herewith pre-
sented:
The ground upon which the opponents OF a To-
cal-option law base their objections is that such
law would conflict with the following provis-
ions of the Constitution, namely:
Art. A, Sec. %. 1.-THE General Assembly shall
not pass local or special laws In any of the fol-
loving enumerated cases. that is TO say:
For the punishment OF crimes and INSIDE
Regulating county and township business;
"For the assessment and collection of taxes
Tor State, county, township OF road purposes;
providing for supporting common schools
Art. 4. Sec. %. "In all the cases enumerated
in the preceding section and in all other cases
where general Lave can be made applicable all
laws shall be general. and OF uniform operation
throughout the State"
Art. 1, Sec. 25. "No law shall be passed, the
taking effect OF which shall be made TO depend
upon any authority, except as provided IL this
Constitution"
Art L, Sec. %. "The operation of the laws
shall never be suspended, except by the author
ity of the General Assembly"
These provisions of the State Constitution have
been repeatedly construed and passed upon by
the Supreme Court OF Indiana. III the decisions
of that court were uniform. and without con-
fiict, it would be easy TO close this opinion at
once by citing adiudicated cases and decisions
covering the constitutional question involved
BUT, unfortunately. the decisions OF the supreme
your request are not uniform, but are irrecon-
cilably conflicting. This conflict of decisions
view the leading decisions in which the above
| quoted provisions OF the Constitution have been
BY a. law enacted by The General Assembly OF
| the State of Indiana, approved March 4, 1853,
il was provided that no person shall retail spir-
| ical. chemical, medicinal or culinary purposes.
without the consent of a majority OF the legal
their votes % for license license at the April election @
This It viii be s observed was, in effect local
| option law.
| In Maize vs. The State, 4 Ind. 342, decided
Nov. %. 1858, the Supreme Court of Indiana
held this provision above quoted unconstitu-
| Sections 25 and 20 of Article i, and also with
Sections 22 and % of Article Of the Constitu-
By section a the a% enacted
by the General Assembly OF the State of Indiana,
| approved June IA, 1852, IL was provided: "The
voters OF any township shall have power at any
general or special meeting TO vote a tax for the
! purpose of building or repairing school-houses.
and purchasing sites therefor, providing fuel,
| furniture, maps, apparatus Libraries increase
thereof. or to discharge debts incurred therefor
and for continuing their schools after Che public
funds shall have been expended to any amount
not exceeding IN all so cents op each 500 OF
| property, and 80 cents on each poll"
In Greencastle Township VS.. Black, 3 Ind ,557 TO
577, decided Nov. II, 1854, the Supreme Court
| of Indiana held this provision last quoted un-
fiiot with the sections Of the Constitutios above
quoted particularly with Sections 22 and 2S OF
| If these decisions correctly interpreted and
construed the Constitution, II is very evident
that e local,option law would not be valid and
Under these decisions, and the decisions of
| other cases following their lead, a good and
| wholesome law regulating and restricting the
the principle of local option. was stricken down;
and the free-school system of Indiana was Grip
These decisions even If they were stir held to
| be correct interpretations of the Constitution,
would be of little or no value in behalf of that
| class Of temperance advocates who believe State
| prohibition of both manufacture and sale of in
toxicating liquors to be tho only proper method
| of dealing with the subject and who profess TO
believe it a sin to regulate and restrict the traffic
in Intoxicating liquors by penal license statute.
The rublic sentiment aroused by the decision
In the case of Maize vs. the State, SUPRA resulted
Legislature Of 1855. This proRibitory law was
1855. On Oct 80, 1855. in the habeas corpus
| proceedings of Herman VS.. the State, before q
judge of the supreme Court; this prohibitory
| law was held unconstitutional. (Herman vs. tho
Again. on Dec 20, 1855. in the case of Bebee
Supreme Court of Indiana held this prohibtory
law nconstitutional-Judge Gookins alone dis
| senting.
These decisions holding the prohibitory law OF
| 1855 unconstitutional based upon such
grounds as, If correct. would makeit well nigh i'm
| possible to SO amend the Constitution as 10 make
1t support prohibtory law. They hold. in ef-
feet, that the pr0hbtory law Is in direct conflict
with the foundation principles of civil govern
ment as embodied in the bill of rights. How
it could be possible that the Supreme Court OF
Indiana could ever have so held seems now
amazing and iIicomprehensible-
A comparison of these decisions of the Supreme
Court of Indiana, rendered In 1888, 1854 and
1855, with more recent decisions of that ocurt
will satisfy the most skeptical that the world
| moves and moves rapidly.
1t would now be very difficult to find any law
| yer. either in or out of Indiana, who would un-
dertake to defend the decisions in Maize VS.. The
| State and Greencaste Township VS.. Black,
supra, as just and correct interpretations OF the
They have been, either in express terms or
by direct implication, repeatedly overruled by
| the Supreme Court, while the Legislature has. in
the face of these decisions. and utterly ignoring
them as correct interpretations OF the Consttu-
ton, enacted many Important statutes, now IN
force and unquestioned, embodyiDg precisely the
| same principles that were embodied in the laws
stricken DOWN by these decisions.
The grounds upon which the local-opti0n law
of S53 and Section 40 of the free school law of
1852 were held unconstitutional were:
/. That they were local laws:
2. That they were not ''of uniform operation
throughout the State.'
3. That the taking effect of these laws was
therefore, legislative authority was vested in the
voters OF the several localities municipal sub
divisions of the State.
Neither of these objections will stand the test
of reason or authority.
| local law is a law affecting only a definitely
| described and limited portion of the State. and
| that cannot have any force or effect in any other
portion of the State
The ordinary and usual meaning of the word
"1ocai" is pertaining TO place, or TO fixed
or limited portion of space;" Limited or con-
fined to a spot, place, definite district" The
universal rule for the construction and interpre-
tation OF constitutions is that the words must
be taken in their ordinary and usual sense and
meaning. Hence IL il easy TO that Law
that grants precisely the same rights privileges
and 1mmunities 10 every portion and subdivision
of a State, and To every resident and citizen OF
. the state, cannot be local law III the sense IN
which the words are used la the Constitution
local-option law applying 10 the entire state
cannot, therefore, be obnoxious to the Constitu-
ti0n on the ground that il would be local law.
The very words .'localoptiOn law" clearly indt
cate that the law covers the entire state, grant
ing the same rights, privileges ana lmmuniuea
to all the people OF the state but that II gives 20
the people of the different localities and sub
divisions OF the State the right TO exercise an
| option regarding the manner In which they viii
use the rights privileges and iinnlunlties grant
ed by the law.
The objection that local-option laws cannot be
cot uniform operation throughout the State" Is
wholly untenable.
A law is of uniform operation throughout ths
State whenever il gives precisely the sams
1 rights. privileges and imlnunities TO all the peo
ple of the State and 10 every locality and sub
division of the state The people of one locaiit,
NAV use the rights, privileges and immunites
granted by the law In one way, the people o