Haggart v. Stehlin

• Decision Date: 26 January 1892
• Citation: 29 N.E. 1073
• Parties: HAGGART et al. v. STEHLIN et al.
• Court: Indiana Supreme Court

29 N.E. 1073

HAGGART et al.

v.STEHLIN et al.

Supreme Court of Indiana.

Jan. 26, 1892.

Appeal from circuit court, Marion county; E. A. Brown, Judge.

Action by Mary E. Haggart and others against John H. Stehlin and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

Eli F. Ritter, for appellant, Kern & Bailey, for appellees.

ELLIOTT, C. J.

One question, and only one, is here presented; all others are excluded by the statements of counsel and by the record. That question is this: Is the statute of March 17, 1875, regulating the liquor traffic, requiring a license and imposing a tax upon dealers in the form of a license fee, unconstitutional? The assault upon the statute comes from a quarter different from that whence all assaults have come in the past, for it comes from citizens and property owners who are not engaged in the traffic; not from those whom the law requires to take out a license, and against whom penalties are denounced for a failure to pay the fee prescribed and to obtain the license which is required of all who engage in the business of dram-selling. The position of the appellants is a novel one; there is no instance in the books where such a position has been assumed. We are asked to overthrow a principle of law which has prevailed not merely for years, but for centuries. So far as we can ascertain, the power of the legislative department to regulate the liquor traffic by exacting a license has never been challenged by parties other than those of whom a license was exacted until now. In every reported case the power has been asserted to exist. The state courts have, without a break in the current of opinion, affirmed the validity of such statutes, but no court has asserted their validity in stronger or more emphatic terms than the supreme court of the United States. There is absolutely no diversity of opinion. There is, therefore, no room for doubt, no question as to our duty, for we are bound by the law as it exists. We are not lawmakers, and hence are without power to change the law. A change can be made only by the law-making department of the government. The question is so free from difficulty, and so firmly settled, that there is really no room for discussion; but we have concluded that it is due to the able and elaborate argument of counsel to consider somewhat in detail the points upon which a reversal of the judgment is asked.

The position that a license is required of liquor sellers for the promotion of their business is untenable. It has been asserted again and again by the courts and by the text writers that a license is required for the protection of the community, not for the benefit of the liquor dealers. The object of license laws is to restrict the traffic to the few, not to open it to all without restriction or restraint. But whether the policy of the law is good or bad is a question for the legislature, not the courts. In the License-Tax Cases, 5 Wall. 462, it was said: “The court can know nothing of public policy except from the constitution and the laws. It has no legislative power; it cannot amend or modify any legislative acts. No court can decide such a question without a flagrant violation of duty, and a usurpation of authority that no principle will justify nor any precedent excuse. We begin our quotations from the text-writers and the courts with one from a work of excellent repute, Mr. Tiedeman's work on Police Power. This author says that “since the primary object of such a law would be to operate as a restriction upon the trade, and not to raise a revenue, the incidental increase in the revenue would constitute no valid objection to the law.” Tied. Lim. 277. In the case of State v. Cassidy, 22 Minn. 312, the court said: “Regarding the law as a precautionary measure, intended to operate as a wholesome restraint upon a traffic, and as a protection to society against its consequent evils, the exacted fee is not unreasonable in amount.” The court of appeals of New York, in the case of Bertholf v. O'Reilly, 74 N. Y. 509, said: “The right of the state to regulate the traffic in intoxicating liquors within its limits has been exercised from the foundation of the government, and is not open to question. The state may prescribe the persons by whom and the conditions under which the traffic may be carried on. It may impose upon those who act under its license such liabilities and penalties as in its judgment are proper to secure society against the dangers of the traffic.” In the case of Welsh v. State, 126 Ind. 71, 25 N. E. Rep. 883, our own court said: “That the state of Indiana possesses the right to regulate and control the traffic in intoxicating liquors has never been an open question.” It was also said: “All laws regulating and imposing burdens on the business are prohibitory in their character. There is no difference between an absolute prohibitory law, a law providing for local option, and a license law, except in the extent to which they prohibit the manufacture and sale of intoxicating drinks. An absolute prohibitory law deprives all within its reach from engaging in the business; a local-option law prohibits all within a given locality from selling within that locality; while a license law prohibits all within the state who have not obtained a license from engaging in the business of retailing intoxicating liquors. Each of these is a restriction...