The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1895-08-02
THE NEW LIQUOR LAW
JUDGE TAYLOR, OF TERRE HAuTE,
HOLDS THAT 1T Is INOPERATIvE,
Because of n Defect In the Clause Pro-
vfdinE Penalties for violations
Attack ON the Legislature.
Special to the Indianapolis Journal.

TERRE HAUTE. Ind. Aug Judge
Taylor. OF the Circuit Court. this morning
decided the two test cases under the Mich
olson law. and held that the law is in
operative The court said that IL was not
necessary to pass upon the constitutional
feature Of the act, as whether or not II is
constitutional. il cannot be enforced. at
least that part of 1t which Is included in
the third and fourth sections. Judge Tay-
lor's decision had been announced for
Tuesday, but the preparation of the opin-
ion gave him considerable concern. II will
be seen that he attempts to forestall 'criti-
cism by "laymen." and also lectures the
Legislature for passing a measure which
he says Is Ineffective. I'VE have here pre-
sented.'' said the judge. in his opinion.
two indictments under the law approved
March II. 1895. entitled AN act to better
regulate and restrain the sale of intoxicat-
ing spirituous. vinous and malt liquors,
providing penalties. etc.. commonly known
as the Nicholson law. One information is
the State of Indiana Albert Myers. in
three counts. the first charging him with
violation Of the first clause of the second
section of said act, namely, falling to pro-
vide for the sale of such liquor In a room
separate from any other business of any
other kind. and that he unlawfuly con-
Quoted, ran. managed and operated in the
same room billiard room. The second
count charges him with having violated the
second clause of said section. namely, that
he unlawfully kept In the same room
where such liquors were sold certain de-
vices for amusement, to wit, billiard tables,
on which certain persons whose names ere
unknown. were permitted to play billiards
for amusement. The third count charges
said Myers with violation of the third
clause of Section of said act, namely,
that he arranged. erected. placed and main
tanned on said premises blinds, screens and
distractions to the view so as to prevent
the entire view Of the room from the street
or highway upon which the said room was
situated after the hour Of II O'clock, etc.
The second information charges Louis Ger,
mar AL IN one count on With having violated
running another kind of business, to wit.
grocery store. In the same room where
said liquors were sold. This information. in
its one count. differs from the first count
of the indictment against Myers only in
this, that 1t charges the running or a
grocery store in the same room. being a
violation of the first clause of the said
second section, as heretofore stated, while
the first count of the Information against
Myers charges violation, of the second
clause of the said second section. pertain
ing to devices for amusement in the room.
All the counts of the first and also the
second informatiSn are sen s,r as will
tons of said act, and each count presents
different questions Of fact. The questions
Of law presented . nave been Suemit omit TO
of these informatjons and IL Is to the
several questions of law raised by these
motions that propose now to address my
self briefly. .s,.f
Counsel for defense have stoutly said
that these ought to be sustained for the
reason that the law itself is unconstitu +
unnecessary for this court to pass. as the
court deems it always best, when IT. can
be avoided. for a nisi prius court to leave
the question of the constitutionality OF a
law to a higher court.
MANY of the provisions Of this law are
by 1se e an Of Se
city of Terre Haute during my occupancy
Of the bench. upon which this court passed.
the Supreme Court. upon appeal, upheld.
This court would hold now, as II held then.
as to many of these provisions. that the
power of the Legislature to control the
sale of intoxicating liquor by proper en-
actment properly restraining so as to pre-
vent its grevious mischief is very broad
be by proper law. duly enacted. and not
clearly in violation of constitutional provi-
sions, the court will not interfere so as to
fence to the dealer. nor even though
Ii may be unreasonable In Its
upon the dealers. for he who enters into
a business which is, as this court believes
this to be. necessarily fraught with evil
the restraint of laws enacted for the pre-
vention of these evils. The courts will not
go out of their way to hold law Invalid
or to quash indictments presented under
that law where its provisions are. such
as to fully meet the plain principles of
statutory construction, but these plain
oat nd
souareIy and clearly. and it is this Ques-
tion rather than the question OF constitu-
tionaiity of the law to which will direct
of Of this law have been raised. however.
probably presenting a question OF more
gravity than those determined by this
ordinance mentioned but these as I have
stated, will leave to be determined by a
higher court, deeming 1t. as / said, UNI
questions involving the suficiency of the
Information in their several counts rnder
the provisions of this law ttaking il for
granted, but not deciding. that the law
is constitutional and valid)
ALLEGED DEFECTS.
Upon the sufficiency of the Information
under the provision of this law several
questions have been presented and ably
discussed by counsel for the defense In
oral argument and in brief submitted and
by counsel for the state in his brief Among
them il is contended by the defense that
there is no penalty in this law which pre-
tends to apply to the provision OF the Sec
tons under which the several counts Of
these indictments have been drawn, except
ing the provision OF Section Of said act,
and that as that provision. in its terms.
on its face, provides q penalty only IN
cases of violation Of the whole OF the
section instead of violation OF any OF
the several provisions thereof, there can
be no indictment or information drawn
under any of these sections which can be
held sufficient unless II Is charged that
all of the provisions OF that section had
been violated. All of the other questions
raised by counsel and discussed / will pass
by as deem this one sufficient 10 deter
mine the sufficiency OF these informations-
IL will be seen at glance that In Section
of this act there are three separate and
distinct offenses defined, in Section there
are four separate and distinct offenses de-
the defense he sustained then count
drawn under Section of this
act. to be sufficient, must charge
violation of the whole section, includ-
ing its three distinct offenses. and the
same as to Section T. including It's four
distinct offenses. The language of the pen
atty clause OF the fourth section NJ the act,
being the only clause az commended by
counsel for defense, attempting 10 provide
a penalty for the provisions OF sections z,
and 4 is as follows: Upon conviction
OF the violation OF this or either OF the
foregoing sections OF this act the defendant
shall be fined in any sum not less than $40
nor more than $780, TO which may be added
jnnprisonment In the county jail. etc. 1t is