Evening star. [volume] (Washington, D.C.) 1854-1972, 1907-08-30
WILL make TEST CASE
constitutionaIity of Liquor Ii.
cense Questioned.
CRUSADERS PLAN APPEAL
Courts to Be Asked to Pass Upon the
Issue Raised.
OPINIONS OF JURISTs QUOTED
Application of the United States Con-
stitution to District Affairs-Local
People Interested.
OPINIONS OF JURIsTs QUOTED

/ the members OF the OTS6ulZatlOu are pan
ming to institute court proceedings early this
| fall to determine whether or not Congress
has the right under the constitution to es
| tablish an excise board to do anything "se
hurtful as to license one to conduct 9
saloon" In the course Of his communicar
| ton. Mr.. Mahoney says:
| 1.-THE prohibition crusaders, who conduct
ed the campaign in support Of the Weber
bill for prohibition in the District of Column
bia before Congress last winter, invites your
| attention to a new move which they propose
to make.
."Will you carefully read syllabus of
Judge Artman's and Judge Christians decis-
ions, which have at this time become almost
world famous? Also opinions of several
members Of the Washington legal bar, and
see If you do not come to the same con-
illusions with US that a test case before our
courts would lead to the overthrow of the
licensed liquor traffic in a way which would
be final.
THE crusaders will begin test case be-
fore our courts during the October term to
test the authority of Congress to grant a
license to the liquor traffic in our District
THE case will doubtless be carried to the
Supreme Court of the United States.
1T is hardly necessary to allude to the
startling and beneficial effect favorable
decision from a court of the Capital city
would have upon the country at large. 1t
would be a fulcrum upon which the friends
| or SObrfety In the states cOuld turu the
liquor traffic out of existence"
| Judges Opinions Cited.
The opinions Of Judges Artman and
Christian are inclosed.
Hearing on change of venue In the cir
cult court of Boone county, Ind.
Opinion by Judge Artman. February 13,
1907, on objections raised that the sale Of
| liquor as beverage to be drunk on the
| premises where sold is destructive of pub
| lie morals. ETC.. and therefore cannot be
| licensed under the constitution of Indiana.
| Held, 1. That when a state. in its con-
stitution, declares that it is instituted for
the peace, safety and well-being Of the
| people. there Is no power in the legislature.
| whether considered as ordinary legislative
| power or the exercise of police power, to
pass a law authorizing the licensing of
| saloons.
'2. Under the decisions of the Supreme
| Court of the United States the right to sell
right to sell other things, and the selling
of liquor has been declared by the court
| to be great evil
%. There being no common-law right
| to sell liquor. and 1t being apparent not
| only as a matter Of common knowledge,
but it also having been decided by numer-
| Gus courts that the retail sale of liquor by
the drink is an evil In the broader sense,
| license is refused notwithstanding an act
| of the legislature authorizing 1t under GER
tain conditions, on the grounds above
| stated"
BY Judge Christian:
I'm circuit court of Hamilton county In
diana.
Hearing on motion of defendant to auash
affidavit charging him with maintaining a
nuisa nce-saloon
Opinion on April 13, 1907.
| 1. While there Is no statute defining
nuisance there is statute providing for a
penalty for maintaining a nuisance.
2. "A saloon retailing liquors is of itself a
nuisance; and, therefore. a prosecution for
a nuisance can be maintained, without any
ance in detail.
3. "A license issued by authority of an act
OF the legislature is no protection or de-
tense; because under the constitution of
| ment of public order. &C., and the licensing
Of saloons being against and contrary to
those declarations, the legislature had no
stances, the granting of same"
| Local Attorneys Views.
Mr.. o. B. Hallam of the local bar is also
| quoted as follows:
'The opinion of Judge Artman, while a
new departure. is not in conflict with any
decision heretofore rendered by any court,
1 either in Indiana or elsewhere. In other
| words, while, as we all know and as I
have before stated, 1t has been generally
| accepted that the states have power to
| license saloons, the direct question was
never raised until in the Soltau case before
l Judge Artman.
| Since his decision, within the last few
weeks. Judge Christian of the Hamilton
| circuit court, Indiana, in criminal pro-
ceeding against q saloonkeeper. concurred
IN Judge Artman's view aud overruled a
motion to quash an affidavit charging the
| defendant with maintaining q nuisance in
| the shape of q saloon; holding, as Judge
Artman did. that the license did not pro-
| tect him. because the legislature had no
power to pass such a law. Particularly. as
want to impress you. because under the
declarations contained in the constitution
OF indiana, as to morals peace. safety,
| welfare. etc. OF the people, 1t was implied
| ~ prohibited. I am informed also, though
have not seen the opinion. that another
circuit Judge in Monroe county. Ind. has
| decided the same way, and that while the
| temperance forces are anxious to have the
| question passed on and decided by the SUI
preme court of Indiana. feeling confident OF
| a decision In their favor, the LIQUOR inter-
| ests want to avoid such hearing and refuse
to take any appeals. Ultimately this
| question must reach the supreme court of
that state. and ultimately q like question
must reach the Supreme Court of the
| United States.
! Constitution Quoted.
/ Coming now to the question in this Dis
trict: The Constitution of the United States.
in Its preamble, says:
1--WE, the people of the United States,
| In order to form a more perfect union,
establish Justice, insure domestic tranquil
lily, provide for the common defense, pro-
mote the general welfare, etc. do ordaia
| and establish this Constitution
This is SO close a paraphrase of the
| words in the Indiana constitution that 1t
may. be regarded as synonymous But
there is more than this; 1t has been uni
| formly held by the courts that the United
States power is limited. and that no act
can be passed by Congress unless power Is
given it Amendment x OF the United
States Constitution, says: The powers not
delegated to the United States by the Con-
stitution, nor prohibited by it to the states,
are reserved to the states respectively or
the people 1t follows that If state courts
hold that under the general welfare clause
the state, usually unlimited. has no power
to grant saloon license, by so much the
stronger reason the United States Congress,
being limited in its powers, cannot do
| SO. Hence l think that here In this Dis
trict we have much better ground than
| the Indiana courts had to declare license
law unconstitutional.
| What would be the decisions of the
| courts Is, of course, probiematical But
the general tendency of the later judicial
decisions tends against the liquor traffic,