Meshmeier v. State
| Decision Date | 12 January 1859 |
| Parties | Meshmeier v. The State. Lamb and Another v. The State. Hyland v. The State. Leyner and Another v. The State. Harney v. The State. Sterling v. The State. Zelt v. The State. Shubert v. The State. the State v. Monroe |
| Court | Indiana Supreme Court |
For Meshmeier--From the Wayne Common Pleas.
For Lamb and Another--From the Kosciusko Common Pleas.
For Hyland--From the Spencer Common Pleas.
For Leyner and Another--From the Wayne Common Pleas.
For Harney--From the Orange Common Pleas.
For Sterling--From the Kosciusko Common Pleas.
For Zelt--From the Hamilton Common Pleas.
For Shubert--From the Jennings Common Pleas.
For the State--From the Scott Common Pleas.
The judgment is reversed, Cause remanded to be dismissed.
For Meshmeier--M. Wilson and C. H. Burchenal, for appellant.
J Railsback, for state.
For Lamb and Another--L. M. Ninde, for appellants.
For Hyland--W. C. Moreau, for appellant.
D. C Chipman, for the state.
For Leyner and Another--O. P. Morton, J. F. Kibbey, C. H. Test and J. M. Wilson, for appellants.
C. H Burchenal and D. C. Chipman, for the state.
For Harney--J. Payne and J. Cox, for appellant.
For Sterling--Dodge and Copeland, for appellant.
For Zelt--Moss and Evans, for appellant.
For Shubert--Walker and Vawter, for appellant.
For The State--J.E. McDonald, attorney general, for the state.
E. Dumont, O. B. Torbet, and P. H. Jewett, for appellee.
This was a prosecution by the state against the appellants for retailing spirituous liquors in violation of the liquor law of March, 1853. The defendant was convicted and judgment rendered against him, over a motion in arrest.
Two questions are presented by the record--
First. Was the act of March 4, 1853, ever valid and binding as a license law?
Second. If so, was it repealed by the prohibitory law of February 16, 1855?
The provisions of the act of 1853, upon which the first question depends, are contained in the first five sections thereof, which are as follows:
The fourth section defines the word "retail," and the fifth provides a penalty for a violation of the preceding sections.
In the case of Maize v. State, 4 Ind. 342, this act underwent a judicial examination, and it was there held that so much of it as related to the township vote, was void, as being inconsistent with the constitution of the state: but that such part might be considered as stricken out, leaving the law in force as a valid license law. This decision has been followed in the subsequent cases.
That branch of the decision which holds so much of the act as submits the question of license to a vote of the people of the township to be unconstitutional and void, we think, is entirely correct, and shall enter upon no discussion of that subject.
But the other branch of the decision, holding that such portion may be considered as stricken out, and the law enforced as a valid license law, does not rest upon an entirely satisfactory foundation.
The proposition that a statute may be good in part, and in part void, because unconstitutional, is not controverted. It is established by numerous authorities. Commonwealth v. Kimball, 24 Pick. 359.--Fisher v. McGirr, 1 Gray 22.--Armstrong v. Jackson, 1 Blackf. 374.--Clark v. Ellis, 2 Blkf. 8.
But it would seem that the provisions of the statute held to be constitutional, should be substantially the same, when considered by themselves, as when taken in connection with other parts of the statute held to be unconstitutional; or, in other words, where that part of a statute which is unconstitutional, so limits and qualifies the remaining portion, that the latter, when stript of such unconstitutional provisions, is essentially different, in its effect and operation, from what it would be were the whole law valid, it would seem that the whole law should fall. The remaining portion of the statute, when thus stript of its limitations and qualifications, cannot have the force of law, because it is not an expression of the legislative will. The legislature pass an entire statute, on the supposition, of course, that it is all valid, and to take effect. The Courts find some of its essential elements in conflict with the constitution, strip it of those elements, and leave the remaining portion, mutilated and transformed into a different thing from what it was when it left the hands of the legislature. The statute thus emasculated, is not the creature of the legislature; and it would be an act of legislation on the part of the Courts, to put it in force. The Courts have no right thus to usurp the province of the legislature.
The statute in question prohibits the retail of spirituous liquors (save for the purposes therein named), except upon two conditions: First, the consent of the majority of the voters of the township who may cast their votes on that subject; and, secondly, giving bond and procuring a license.
The condition respecting the vote, so enters into, qualifies, and forms a part of the prohibition, as to leave that an essentially different enactment, when stript of such condition. The first condition qualifies the prohibitory feature as much as the second, and the law could as well be enforced with the second condition stricken out, as the first. In such case, the law would be purely prohibitory, and void, as has been held in reference to the statute of 1855. Suppose the condition in reference to giving bond and procuring license were void by the constitution. In such case, it will hardly be contended that it might be stricken out, and yet, that the balance would be substantially the same law, as when taken in connection with the part providing for bond and license. There is conceived to be no difference in principle between striking out the first and the second condition. They both, to a greater or less extent, enter into, and form a part of an entire provision. They are so blended with the entire enactment, that neither can be separated therefrom without destroying the harmony of the whole, and leaving the remaining portion to have an effect different from that shown by the whole law to have been the intent of the legislature. Upon this view of the statute, the case of Washington v. State, 8 Eng. (Ark.) 752, seems to be in point. The defendant was indicted for keeping a ten-pin alley without paying a license either into the state or county treasury. The Court says:
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