Hedderich v. State

Decision Date12 May 1885
Citation101 Ind. 564,1 N.E. 47
PartiesHedderich v. State.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from Marion criminal court.

Bynum & Beck and J. N. Scott, for appellant.

The Attorney General, for the State.

Elliott, J.

The indictment upon which rests the judgment of conviction from which the appeal is prosecuted, charges the appellant with the offense of selling a gill of intoxicating liquor, to be drank as a beverage, between the hours of 11 o'clock p. m. of the twenty-first day of January, 1885, and 5 o'clock a. m. of the succeeding morning. The validity of the statute prohibiting the sale of intoxicating liquor between the hours of 11 o'clock p. m. and 5 o'clock a. m. is assailed upon the ground that the legislature does not possess the power to enact such a law; but no provision of the constitution has been pointed out which denies to the legislature the power exercised in the enactment of this statute.

In an argument of signal ability, counsel contend that in the enactment of the statute the legislature transcended its constitutional powers, because the statute encroaches upon the natural rights of the citizen. The argument finds no support from authority, and has none in principle. Whether a statute is or is not a reasonable one, is a legislative and not a judicial question. Whether a statute does or does not unjustly deprive the citizen of natural rights, is a question for the legislature and not the courts. There is no certain standard for determining what are or are not the natural rights of the citizen. The legislature is just as capable of determining the question as the courts.

Men's opinions as to what constitutes natural rights greatly differ, and if courts should assume the function of revising the acts of the legislature, on the ground that they invaded natural rights, a conflict would arise which could never end, for there is no standard by which the question could be finally determined. But there can be no such unseemly conflict, for there is only one standard for determining the validity of statutes, and that is supplied by the constitution.

In Pittsburgh, C. & St. L. Ry. Co. v. Brown, 67 Ind. 45, Worden, C. J., said: “If the law is unconstitutional the courts should hold it void, but upon no other ground can it be disregarded.”

This court quoted, with approval, in Welling v. Merrill, 52 Ind. 350, from the able opinion in Sharpless v. Mayor, 21 Pa. St. 147, the following: We are urged, however, to go further than this, and to hold that a law, though not prohibited, is void if it violates the spirit of our institutions, or impairs any of those rights which it is the object of a free government to protect, and to declare it unconstitutional if it be wrong and unjust. But we cannot do this.” The court, in speaking of an argument of a similar character to that advanced in this case, said: “That, however, is not a matter of judicial cognizance; it is not for the court to say that a constitutional law shall not have effect because it is, in the judgment of the court, unreasonable.” Barton v. McWhinney, 85 Ind. 481.

One of the ablest of our judges long since said: “The legislative authority of this state is the right to exercise supreme and sovereign power, subject to no restrictions except those imposed by our own constitution, the federal constitution, and by the laws and treaties made under it.” Beauchamp v. State, 6 Blackf. 299. This doctrine has been approved time and time again. Doe v. Douglass, 8 Blackf. 10;Maize v. State, 4 Ind. 342;Lafayette, etc., R. Co. v. Geiger, 34 Ind. 185,vide op. 198, 202; Fry v. State, 63 Ind. 552,vide 559; McComas v. Krug, 81 Ind. 327;Campbell v. Dwiggins, 83 Ind. 473,vide 480; Mount v. State, 90 Ind. 29.

The question here is, not as to the power of the legislature to absolutely prohibit the sale of intoxicating liquors, but as to the power to regulate the traffic. Counsel have not cited us to any provision of the constitution denying the power, nor have they brought to our attention a single authority construing the constitution as they claim it should be construed. It is clear to our minds, both upon reason and authority, that the statute is a valid exercise of the police power vested in the legislature.

In Morris v. State, 47 Ind. 503, it was assumed, without question, that a statute restricting the sale of liquor between prescribed hours was valid, and that it was within the power of the legislature to prohibit the sale on Sunday, on election days, and on legal holidays. We have a great many cases scattered through our reports holding statutes prohibiting sales on such days valid, and the principle is the same in those cases as in this, for the undergoverning principle of all these cases is that the legislature may regulate the retail liquor traffic. The statutes and decisions upon this subject were reviewed in Harrison v. Lockhart, 25 Ind. 112, and it was said: “It will be seen, from this rapid view, that it has not been the policy, either in England or this country, to encourage the traffic in intoxicating liquor, but that in this country the whole action of the legislative power has been uniformly to limit, restrict, or absolutely prohibit the traffic. With us, from the time almost of our earliest territorial existence to the present moment, that policy has been pursued.” The conclusion reached in the case cited was approved in McAlister v. Howell, 42 Ind. 15.

It is not questioned in any of our cases that the legislature may regulate the traffic; the furthest that any of the decisions go is to deny the right to absolutely prohibit the manufacture and sale of intoxicating liquors. If we should now deny this power to regulate the retail traffic, we should depart from a long and well-established course, and enter upon one not marked out by any principles, nor lighted by any decisions.

The adjudged cases, so far as we have been able to ascertain, uniformly agree that the legislature has power to regulate the traffic by prohibiting sales on holidays and election days, and by prescribing the hours within which sales may be made. Judge Cooley cites many cases asserting the power to enact such regulations. Cooley Const. Lim. (5th Ed.) 720, n.

In the case of Bertholf v. O'Reilly, 74 N. Y. 509, the court 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, and individuals against injuries committed by intoxicated persons under the influence of or resulting from their intoxication.”

In the cases of Crone v. State, 49 Ind. 538;Layton v. State, Id. 229; and Beardsley v. State, Id. 240, the constitutionality of the statute was not questioned, although there was much diversity of opinion upon other points, and separate opinions were filed by four of the members of the court. The title of the statute which contains the provision that this indictment is founded upon, is, “An act concerning public offenses and their punishment,” and we have no doubt that the title is sufficiently comprehensive to include all offenses of a public nature. If it does not include all, it does not include any; and if this be true, then it results that we have no general statute defining criminal offenses, and the legislature and the courts have gone far astray in assuming that a valid statute existed; but this is not true, for the title is sufficient under our constitutional requirements. It is true that the act defining the offense here charged applies to licensed vendors, but this does not affect its validity, for a license is not a contract; it is nothing more than the grant of a privilege, and it does not in anywise restrict the exercise of the police powers of the legislature. McKinney v. Salem, 77 Ind. 213. But if it were conceded that the license constituted a contract, it would not strengthen appellant's case, for it is established law that the legislature cannot, by any act, surrender...

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