Beebe v. State

• Decision Date: 20 December 1855
• Citation: 6 Ind. 501
• Parties: Beebe v. The State
• Court: Indiana Supreme Court

6 Ind. 501

Beebe v. The State

Supreme Court of Indiana

December 20, 1855

fro the Marion Court of Common Pleas.

The judgment is reversed, and the prisoner discharged.

J Morrison, W. T. Otto, J. W. Chapman, D. Wallace, E. Coburn and J. S. Hester, for appellant.

D McDonald, L. Barbour, A. G. Porter, H. C. Newcomb, J. Coburn and N. B. Taylor, for the State.

Perkins J. Davison, J. Stuart, J.

OPINION

Perkins, J.

Roderick Beebe sued out from the Marion Common Pleas a writ of habeas corpus to obtain deliverance from imprisonment in the county jail. The sheriff, being jailer, made return to the writ that he held said Beebe in custody by virtue of mittimuses to him directed by the mayor of Indianapolis, reciting that said Beebe had been convicted and fined under the provisions of the act to prohibit the manufacture and sale, except, &c., of intoxicating liquors, passed by the legislature of 1855, approved on the 16th of February, and published in all the counties of the state on the 17th of May, and appointed to take effect on the 12th of June of that year, and had not paid or replevied the fines, &c.

The alleged offenses were shown to have been committed after the 12th of June.

Upon this return, Beebe moved the Court to discharge him from custody, but the Court overruled the motion. The ground of the motion, as stated, was, that the liquor act of 1855 was unconstitutional and therefore void; that a conviction under it was consequently invalid; and that, as the facts of the case appeared upon the face of the return, it showed that Beebe was illegally restrained of his liberty.

Counsel on both sides concede in argument that the record presents the question of the validity of, at least, what is alleged to be the prohibitory portion of said liquor act; and that question will, therefore, without inquiry upon the point, be considered. We approach it with all the caution and solicitude its nature is calculated to inspire, and that intention of careful investigation its importance demands, feeling that the consequences of the principles we are about to assert, will not be confined in their operation to this case alone.

Preliminary to the discussion of the main questions involved, however, the course of argument of counsel requires that we should say a word by way of fairly setting forth the duty this Court has to perform in the premises, viz., the simply declaring the constitutionality or unconstitutionality of the law, with an assignment of the reasons upon which the declaration is based.

It will not be for us to inquire whether it be a good or a bad law, in the abstract, unless the fact, as it might turn out to be, should become of some consequence in determining a doubtful point on the main question. It not unfrequently becomes the duty of Courts to enforce injudicious acts of the legislature because they are constitutional, and to strike down such as at first view, appear to be judicious, because in conflict with the constitution.

With these remarks, we proceed to the examination of the feature of the liquor act of 1855 now more especially presented to the Court. We shall not spend time upon the inquiry, whether, on the day it came into force, there were existing unsold, manufactured products in the hands of the distillers and brewers upon which it operated, rendering them valueless, or whether such products had all been disposed of between the passage and taking effect of the law. We shall direct our investigation to the character of its operation upon the future manufacture, sale, and consumption of intoxicating liquors. And,

1. Is it prohibitory?

The first section enacts, "that no person shall manufacture, keep for sale, or sell," any "ale, porter, mait beer, lager beer, cider," wine, &c.

The second section permits the manufacture and sale of cider and wine, under certain restrictions, by any and all of the citizens of the state.

Other sections permit the manufacture of whiskey, ale, &c., by persons licensed for the purpose, so far as may be necessary to supply whatever demand certain persons called county agents may make upon them. These agents are authorized to sell for medicinal, mechanical, chemical and sacramental uses, and no other, and may procure their liquors of the licensed manufacturers, but are not required to do so, and as matter of fact do not, but obtain them in most cases from abroad. They constitute no part of the people engaged in business on their own account, but are appointed, under the law, by the county commissioners; supplied with funds from the county treasury; paid a compensation for their services by the county; sell at prices fixed for them; and make the profits and losses of the business for the public treasury and not for themselves. We say they are furnished with public funds. They are so in all cases; for where they, in the first instance, invest their own, it is by way of loan to the county at a fixed rate of interest, and the amount is refunded by the county with interest. These selling agents then are, and for convenience may be denominated, government agents; for it is all one in principle whether the government creates and furnishes them with funds through the medium of the counties, or appoints them directly by statute and supplies them with funds from the state treasury. To express, then, the substance of the main provisions of the law, they may be paraphrased thus:

1. Be it enacted, that the trade and business of manufacturing whiskey, ale, porter and beer, now and heretofore carried on in this state, shall cease; except that any person specially licensed to manufacture for medicine, &c., for the government, may do so, and sell to that extent, if the government should conclude to buy of such person, but not otherwise.

2. That no person in this state shall sell any whiskey, beer, ale or porter, unless the sale be to an agent of the government, or by such agent for medicine, &c. And, as no person is allowed to provide himself with those articles by manufacture or purchase, to use as a beverage, it results,

3. That no person in this state shall drink any whiskey, beer, ale or porter, as a beverage, and in no instance except as a medicine.

It thus appears that the law absolutely forbids the people of the state to manufacture and sell whiskey, ale, porter and beer for use as a beverage, or at all, except for the government, to be sold by it for medicine, &c.; and it prohibits absolutely the use of those articles by the people as a beverage.

The exception as to the admission of foreign liquors under the constitution and laws of the United States, will not be noticed, for the reason that they are admitted simply because it is conceded that they can not be prohibited, and not in accordance with the spirit and policy of the state statute; and which foreign liquors may, or may not, be obtained here, according to the contingent action of other powers; and for the further reason, that their admission, if claimed to be a part of the object and policy of the state liquor law, or in order to supply the people with liquor as a beverage, renders the law doubly objectionable, for, while, according to such a view, the law designs to permit the use of liquors as a beverage, it prohibits the people from manufacturing for their own use. It is as if the law were that the people might eat bread, but should not raise the grain and grind it in flour wherewith to make it. It would be an act to prohibit the people from themselves producing, and to compel them to purchase from abroad what they might need to eat and drink. It would involve the principle of an act to annihilate the state, by starving the people constituting it to death; and such legislation would hardly comport, we think, with a constitution established to promote the welfare and prosperity of the people. We assume it as established, then, that the liquor act in question is absolutely prohibitory of the manufacture, sale and use, as a beverage, by the people of this state, of whiskey, ale, porter and beer.

The opinion has, indeed, been advanced, that the manufacture for sale out of the state is not prohibited, but it has not the substance of a shadow; and the morality of that law which prohibits the distribution of pauperism and crime, disease and death, at home, but permits them to be scattered amongst our neighbors, is not to be envied.

And we may as well remark here as anywhere, that if the manufacture and sale of these articles are proper to be carried on in the state for any purpose, it is not competent for the government to take the business from the people and monopolize it. The government can not turn druggist and become the sole dealer in medicines in the state; and why? Because the business was, at and before the organization of the government, and is properly at all times, a private pursuit of the people, as much so as the manufacture and sale of brooms, tobacco, clothes, and the dealing in tea, coffee and rice, and the raising of potatoes; and the government was organized to protect the people in such pursuits from the depredations of powerful and lawless individuals, the barons of the middle ages, whom they were too weak to resist, single-handed, by force; and for the government now to seize upon those pursuits is subversive of the very object for which it was created, and is inconsistent with the right of private property in, and pursuits by, the citizen. "A government is guilty of an invasion upon the faculties of industry possessed by individuals, when it appropriates to itself a particular branch of industry, the business of exchange and brokerage for example; or when it sells the exclusive privilege of conducting it." Say's Political Economy, note to p. 134.

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