Herman v. State

• Decision Date: 30 October 1855
• Citation: 8 Ind. 545
• Parties: Herman v. The State
• Court: Indiana Supreme Court

8 Ind. 545

Herman v. The State

Supreme Court of Indiana

October 30, 1855

HABEAS CORPUS before a judge of the Supreme Court.

OPINION

Perkins J.

Herman was arrested upon a charge of having violated the liquor act of 1855. He obtained a writ of habeas corpus, pursuant to which he is now brought before us at chambers with the cause of his detention in custody.

His counsel moves for his discharge on the ground that said liquor act is unconstitutional and void. The case is submitted to us upon the arguments heretofore filed in the Supreme Court in the case of Bebee.

We regret that this question has been thus presented to us. We had hoped that these applications would have been confined to the inferior courts till the Supreme Court had decided upon the validity of the law in question.

But the legislature, acting, as we think, within the constitution has conferred upon the citizen the right of suing out the writ of habeas corpus from the judges severally of the Supreme Court; the right has been exercised in this case, and it is not for us, upon slight pretexts, to shrink from the discharge of the duty thus, as we cannot, indeed, but believe, injudiciously imposed upon us.

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 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 they are 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--

First. Is it prohibitory?

The first section enacts, "That no person shall manufacture, keep for sale, or sell" any ale, porter, malt beer, lager beer, cider, wine, etc. 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 whisky, ale, etc., by persons licensed for the purpose, so far as may be necessary to supply whatever demands certain persons, called county agents, 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 when 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:

Be it enacted, 1. That the trade and business of manufacturing whisky, ale, porter, and beer, now and heretofore carried on in this State, shall cease; except that any person specially licensed to manufacture for medicine, etc., 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 whisky, beer, ale, or porter, unless the sale be to an agent of the government, or by such agent, for medicine, etc.

3. That no person in this State shall drink any whisky, 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 whisky, ale, porter and beer, for use as a beverage; or, at all, except for the government, to be sold by it for medicine, etc., 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 they cannot be prohibited, and not in accordance with the spirit and policy of the State statute; and such 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, 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 into 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 whisky, ale, porter, and beer. The opinion has 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 cannot 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, cloths, 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 depredation 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. "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.

There are undertakings of a public character, such as the making of public highways, providing a uniform currency, etc., that a single individual has not power to accomplish, and which government must, therefore, prosecute; but they are not the ordinary pursuits of the private citizen.

These, certainly as the general rule, and we are not now prepared to name an exception, the government cannot engage in.

This is all we shall here say upon this point. Time and space forbid that we should elaborate all that arise in the case.

The question now presents itself--

Secondly. Could the legislature of this State enact the prohibitory liquor law under consideration?

Few, if...