McPherson v. State

• Decision Date: 16 December 1909
• Docket Number: No. 21,453.,21,453.
• Citation: 174 Ind. 60,90 N.E. 610
• Parties: McPHERSON v. STATE.
• Court: Indiana Supreme Court

174 Ind. 60

90 N.E. 610

McPHERSON

v.STATE.

No. 21,453.¹

Dec. 16, 1909.

Dissenting Opinion, Jan. 25, 1910.

Supreme Court of Indiana.

Appeal from Circuit Court, Hamilton County; I. W. Christian, Judge.

George McPherson was convicted of violating the local option law (Sp. Sess. Laws 1908, p. 4, c. 2), and he appeals. Affirmed.

Shirts & Fertig, for appellant. James Bingham, A. G. Cavins, W. H. Thompson, E. M. White, R. C. Minton, and Hanly, McAdams & Artman, for the State.

HADLEY, C. J.

On January 26, 1909, an election was held in Hamilton county, under the act of September 26, 1908 (Sp. Sess. Laws 1908, p. 4, c. 2), commonly called the “county option law,” at which election a majority of the votes cast were in favor of prohibiting the sale of intoxicating liquors, as a beverage, in said county, as contemplated by said act. Before said election, to wit, on December 8, 1908, the board of commissioners of said county, acting under existing state laws, granted appellant a license for the term of one year from said date to sell such liquors at retail. Subsequent to 90 days after said election, to wit, in April, 1909, and within the year of said license, appellant sold one gill of whisky to John Carey, claiming the right to make the sale under his said license, notwithstanding the result of said election. He was convicted for the making of an unlawful sale, and fined $20 and costs, from which judgment he appeals.

Appellant's motion to quash the affidavit, on the ground that the same does not state a public offense, was overruled, as was also his motion for a new trial, on the ground that the finding of the court was contrary to law, and not sustained by sufficient evidence, which rulings are assigned as error, and give rise to the same and only question presented, to wit: Is the county option law constitutional?

Appellant first insists that said act contravenes section 19, art. 4, of the state Constitution, which provides: “That every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title.” The point urged by appellant is that the subject of the act is “prohibition,” and the same is not expressed in the title.

In considering whether a legislative enactment is in conflict with the Constitution, some fundamental principles must be kept in view. Due regard for other departments of the state government must be maintained. The principle that forbids one branch of the state government from encroaching upon the duties and powers of another gives rise to the salutary legal rule, which requires us to presume that any act performed by the legislative or executive department is in the proper exercise of authority conferred by the Constitution. Confronted by this presumption, he who would strike down an act of the Legislature as unauthorized by the fundamental law must make its invalidity appear with such clearness and certainty as to remove all reasonable doubt. Concerning this subject, it was said in State v. Gerhardt, 145 Ind. 451, 44 N. E. 473, 33 L. R. A. 313: “An act of the Legislature comes to us as the will of the sovereign power. In the first instance the members of that body must be deemed to be the judges of their own constitutional authority. The state's executive and each member of its General Assembly take an oath to support the Constitution, both federal and State, and, as these can only be supported by obeying and enforcing their provisions, we must presume that these duties were discharged by our lawmakers in the passage of the particular act in question, and by the Governor when he officially gave it his sanction and approval. For these reasons, and others, all presumption as to its validity must be indulged in its favor, and it is only when made to appear clearly, palpably, and plainly, and in such a manner as to leave no reasonable doubt or hesitation in our minds, that a statute violates some provision of the Constitution, that we can consistently declare it void.” Justice Waite said, in Sinking Fund Cases, 99 U. S. 718, 25 L. Ed. 496: “Every possible presumption is in favor of the validity of the statute, and this continues until the contrary is shown beyond a rational doubt. One branch of the government cannot encroach on the domain of another without danger. The safety of our institutions depends, in no small degree, on a strict observance of this rule.” See State v. Fox, 158 Ind. 126, 63 N. E. 19, 56 L. R. A. 893;Isenhour v. State, 157 Ind. 517, 523, 62 N. E. 40, 87 Am. St. Rep. 228;Gustavel v. State, 153 Ind. 613, 614, 54 N. E. 123.

The title of the act in question is as follows: “An act to regulate, restrain and control the sale of intoxicating liquors, and providing for local option elections.” It is agreed that the subject and purpose expressed in the title is the better regulation, restriction, and control of the liquor traffic. The contention is over the subject contained in the body of the act, which is affirmed by appellant to be unqualified prohibition, and by the Attorney General to be that which is clearly and accurately expressed in the title, namely, to better regulate, restrict, and control the sale of such liquors. It is readily seen that there is a marked difference in the two contentions. To “regulate, restrict, and control” the sale implies that the sale shall go on within the bounds of certain prescribed rules, restrictions, and limitations. Sweet v. Wabash, 41 Ind. 7;Duckwall v. City of New Albany, 25 Ind. 283;Loeb v. City of Attica, 82 Ind. 175, 42 Am. Rep. 494. “Prohibition,” as applied to the liquor traffic, implies the putting a stop to its sale as a beverage, to end it fully, completely, and indefinitely. So, if the purpose of the act in question is to authorize the exercise of unqualified prohibitory power, as usually understood by the term, the act is void because its subject is not expressed in the title. Then, is the subject and purpose of the statute-in other words, its subject-the better and further regulation of the traffic, or the prohibition thereof? Because the enactment contains the words “prohibit,” “prohibited,” and “prohibiting” 15 times, as averred, is by no means conclusive that it is a prohibitory statute. In no instance is the word employed to define or qualify the object and purpose of the law, nor does it go further than to qualify some act or procedure. A statute often speaks as plainly by inference and by means of the purpose which underlies it as in any other manner.

In arriving at the true purpose of the act, it may be useful to glance at the history of such legislation in this state. From the organization of the state government to the present, except for a brief period, the sale of intoxicating liquors, under license and some kind of restriction, has been recognized as a lawful business. The first act under the new Constitution (Acts 1853, p. 87, c. 66) was “An act to regulate the retailing of spirituous liquors and for the suppression of evils arising therefrom.” It was a township local option law providing that no license should issue, except upon the consent of a majority of the legal voters expressed upon the ballots at the April election. This act, while the principle pertaining to the effect of a vote was radically different from the statute before us, and while it continued for an indefinite period to prohibit the sale in all counties not voting in favor of license, and regulated and restricted sales under license, so far as appears, was never assailed or claimed to be a prohibitory law. A licensed seller was fined for sales on Sunday and for keeping a disorderly house, was required to take care of any one made drunk until able to return to his family, and in default liable to another who should do so. It also made the seller liable, on his bond, to wife, parent, or child for all damages from sales of liquor.

Two years later, to wit, in 1855 (Acts 1855, p. 209, c. 105), the law of 1853 was repealed, and all licenses issued thereunder declared void, and in its stead was passed a veritable prohibitory law, entitled “An act to prohibit the manufacture and sale of spirituous and intoxicating liquors, except in the cases named, for the suppression of intemperance, and to repeal all inconsistent laws.” Severe penalties were provided for the manufacture and sale of liquors, except that the county commissioners might permit the manufacture and sale to authorized county agents, to be by them sold only for medicinal, mechanical, and scientific purposes. As an evidence that the Legislature had clearly in mind the distinction between the terms “prohibition” and “regulation,” we find in the act of 1855 no such temporizing words as “regulate and restrict.”

In 1858 (Acts 1858, p. 40, c. 15) the prohibitory law of 1855 was unconditionally repealed, and in 1859 (Acts 1859, p. 202, c. 130) a return was made to the policy of regulation, and an act “to regulate and license” was enacted.The regulation provided in this latter act consisted of penalties for sales on Sunday, on election days, to persons intoxicated, to minors, and for keeping a disorderly house. Unimportant acts were passed in 1859 and in 1865 (Laws 1865, p. 197, c. 96) and in 1873 another act “to regulate the sale of intoxicating liquors” (Acts 1873, p. 151, c. 59), and repealing all former conflicting laws, known as the “Baxter law,” was enacted. This again provided for ward and township local option, to the effect that a license could only be granted upon a petition signed by the applicant and a majority of the legal voters of the ward or township. It also provided penalties for sales generally denounced in the former statutes, and in addition thereto for sales to persons in the habit of getting intoxicated, for sales made on any day between 9 o'clock p. m. and 6 o'clock a. m., for sales on any public holiday or election day, for becoming intoxicated, and contained many other radical provisions. The severity and...