Maize v. State
| Decision Date | 29 November 1853 |
| Citation | 4 Ind. 342 |
| Parties | Maize v. The State |
| Court | Indiana Supreme Court |
APPEAL from the Tippecanoe Court of Common Pleas.
The judgment is affirmed with costs.
J Pettit and W. F. Lane, for the appellant.
L Reilly, G. S. Orth, E. H. Brackett, R. A. Riley, N. B. Taylor and J. Coburn, for the state.
This was a prosecution under the act of March, 1853, for retailing spirits without license. Maize admitted that the liquor was sold as charged. The cause was submitted to the Court. Finding and judgment for the state.
Among the "agreed facts" are the following: The prosecuting attorney admitted that at the time of the sale, the act of March 4, 1853, was not of uniform operation throughout the state, in this, viz., that some townships voted "license," others "no license;" that the township in which the liquor was sold voted "no license;" and that the act in question was, at, &c., in force, so far as publication could make it.
It is not worth while to inquire whether it was competent for the parties to make admissions of matters of law which the courts must judicially notice.
Counsel discuss several points as arising in the record, and which will be briefly noticed in their order.
First. Can the general assembly prohibit the sale of spirituous liquors?
This question does not seem to be involved in the case. The late act is not, either in terms or in its practical effect, prohibitory throughout the state. That it may become so, depends upon the happening of a particular and not very probable event. Whenever that question is directly presented, it will be time enough to inquire whether it is any longer open for discussion, since the series of elaborate opinions in the liquor cases, in 5 How. (U.S.) R., 577. On this point it is not deemed necessary to go beyond the decision in Bepley v. The State, at the last term. [1]
The second point is stated thus: "Admitting the act to be constitutional, is the evidence sufficient to justify the finding of the Court?"
We cannot see why is it not clearly so. Maize admits the sale of the liquor as charged--admits everything the state could be required to prove to entitle her to a conviction. If there is any prerequisite in the statute which is constitutional and with which he has not complied, then are the finding and judgment of the Common Pleas fully sustained.
The third point is presented in these words: "Is the act of March 4, 1853, or so much thereof as requires it to be submitted to a vote of the people of the several townships, constitutional?"
Such questions are always regarded by the Courts as of serious importance. The judiciary look to the acts of the legislature with great respect, and reconcile and sustain them, if possible. The general assembly is the immediate exponent of the popular will,--expressly delegated to clothe that will with the forms of law. The presumption that such a body has sanctioned enactments in violation of the constitution, is not to be lightly indulged. That the act is imperfect or impolitic is not enough. These defects subsequent legislation can remove by amendment or repeal. To bring its validity within the control of the courts, it must be clearly subversive of the constitution. Fletcher v. Peck, 6 Cranch 87.
It is not necessary to dwell on the power and duty of the judiciary to inquire into the constitutionality of the acts of the general assembly, when a proper occasion occurs. 1 Kent 450. The relative position of the co-ordinate branches is generally well understood and readily conceded. But in the argument of this cause great stress is laid on the practical construction which, in the case at bar, the general assembly has given to the constitution-- and the same argument is pressed in other cases--as though it were presumption in the courts, composed of few members, to question the correctness of so numerous a body. Were such a doctrine admitted, all constitutional questions must begin and end with the legislature; for the argument would be equally applicable and equally conclusive in every case that might arise.
And yet there are considerations which might somewhat abate this blind respect for legislative exposition. Where the constitutional provision is restrictive of legislative authority, the construction given by the legislature, sitting in judgment on the extent of its own powers, could not be entitled to much weight. "To admit such an exposition as binding," says a late writer, "would be to permit the department restricted to do away with the very restriction imposed." Smith's Comm. 441. Under our political economy and written constitution, Blackstone's omnipotence of parliament is comparatively an empty figure of speech. Marbury v. Madison, 1 Cranch 137.-- 1 Kent's Comm. 426. The general assembly is a mere agent of the people intrusted with certain delegated powers. The constitution is the letter of agency. In its action the assembly is governed sub modo by the same rules as other agents: whenever it transcends its authority, its acts are void.
When we further reflect on the manner in which important enactments are often passed through the forms of legislation, it would seem that our respect for the construction of the constitution impliedly given by such acts, might be profitably qualified. If, for instance, it appears from the journals, which are the records of the general assembly, that the constitutionality of the act had not been considered, such a tacit interpretation of the constitution, even by so numerous and respectable a body, could scarcely be considered of much weight, or pressed upon us as authority. Thus, in the present instance, bill no. 142 of the house, which subsequently became the act of March 4, 1853, does not appear to have been referred to the judiciary committee of either house. The question of its constitutionality was not even agitated.
Where the chain of legislative decision is not continuous, it detracts very much from its authority. A series of interpretations by different assemblies to the same effect, acquiesced in and acted upon for considerable time, would be entitled to serious consideration. But this looking to what has been decided, a feature so beneficial in the courts, is rare in the legislature. For very obvious reasons the principle which may have been partially established by previous assemblies, is not regarded as binding. Hence, there is not that uniformity and accumulated weight of authority, which, on almost all topics, obtain in judicial decisions. Even to the two sessions held under the new constitution, have not tended to fortify legislative construction. In accordance with the views just suggested, the second assembly has shown its independence of the first. What was unconstitutional in the one, was constitutional. These enactments are referred to, to illus-respected as authority by the second.
Thus, the acts embodied in chapters 11, 21, 22, 55, 59, 89, 90, 91, 96, 97, 108, &c., of the laws of 1853, were passed without seemingly a constitutional scruple. Yet most of these acts had in principle been decided by the previous assembly, almost nem. con., as clearly unconstitutional. These enactments are referred to, to illustrate the fickleness of legislative construction on constitutional questions, without intimating any opinion on statutes not judicially before us. Legislative constructions thus opposed to each other, hardly deserve to be quoted as authority. If there is any preponderance, it would seem to be with that which was more nearly contemporaneous with the constitution.
The first, second and third sections of the act of March, 1853, provide for taking a vote by townships, annually, at the April election, on the license question; and that without the consent of a majority of the legal voters of the proper township "for license," none can issue. In connection with the affirmative vote, a bond is also required. The 19th section expressly repeals all other laws on the subject of retailing spirituous liquors. The 20th section declares an emergency, and that the act take effect and be in force from and after its passage and publication. It was published on the 19th of March, 1853.
Several constitutional provisions are referred to, with either the letter or spirit of which, it is contended, the act of March 4, 1853, conflicts.
Thus--
"The legislative authority of the state shall be vested in the general assembly, which shall consist of a Senate and House of Representatives." Sec. 1, art. 4.
No law shall be passed, the taking effect of which shall be made to depend upon any authority, except as provided in this constitution. Sec. 25, art. 1.
Local laws for the punishment of offenders and for the regulation of county and township business, are expressly forbidden. Sec. 22, art. 4.
"Whenever a general law can be made applicable, all laws shall be general and of uniform operation throughout the state." Sec. 23, art. 4.
These provisions are all in the nature of restrictions on the legislative authority. A legislative construction...
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