Mcpherson v. The State

• Decision Date: 16 December 1909
• Docket Number: 21,453
• Citation: 90 N.E. 610,174 Ind. 60
• Parties: McPherson v. The State of Indiana
• Court: Indiana Supreme Court

90 N.E. 610

174 Ind. 60

McPherson v. The State of Indiana

No. 21,453

Supreme Court of Indiana

December 16, 1909

Rehearing Denied April 1, 1910.

From Hamilton Circuit Court; Ira W. Christian, Judge.

Prosecution by The State of Indiana against George McPherson. From a judgment of conviction, defendant appeals.

Affirmed.

Shirts & Fertig and Ferdinand Winter, for appellant.

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

Hadley C. J. Jordan and Montgomery, JJ., dissent.

OPINION

Hadley, C. J.

On January 26, 1909, an election was held in Hamilton county, under the act of September 26, 1908 (Acts 1908 [s. s.] p. 4), commonly called the county option law, at which election a majority of the votes cast was 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 to sell such liquors at retail for the term of one year from said date.

Subsequent to ninety 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 making an unlawful sale, and fined $ 20 and costs, from which judgment he appeals.

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

Appellant first insists that said act contravenes article 4, § 19, of the state Constitution, which provides: "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, which 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 of the legislative or the executive departments is performed 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 the case of State v. Gerhardt (1896), 145 Ind. 439, 451, 44 N.E. 469, 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 to it his sanction and approval. For these reasons, and others, all presumptions 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 (1878), 99 U.S. 700, 718, 25 L.Ed. 496, 25 L.Ed. 504: "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 salutary rule." See State, ex rel., v. Fox (1902), 158 Ind. 126, 56 L.R.A. 893, 63 N.E. 19; Isenhour v. State (1901), 157 Ind. 517, 87 Am. St. 228, 62 N.E. 40; Gustavel v. State (1899), 153 Ind. 613, 54 N.E. 123.

The title of the act in question is as follows:

"An act to better regulate, restrict and control the sale of intoxicating liquors and providing for local option elections."

It is agreed that the purpose expressed in the title is better to regulate, restrict and control 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, better to 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. City of Wabash (1872), 41 Ind. 7; Duckwall v. City of New Albany (1865), 25 Ind. 283; Loeb v. City of Attica (1882), 82 Ind. 175, 42 Am. Rep. 494. Prohibition, as applied to the liquor traffic, implies 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. Is the object 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" fifteen times, as averred, it is not 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 lawful. The first act under the new Constitution (Acts 1853 p. 87) was entitled: "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; he was required to care for any one made drunk, until he was able to return to his family, and, in default, was liable to another who should do so. It also made the seller liable, on his bond, to the wife, parent or child for all damage from sales of liquor.

Two years later, to wit, in 1855 (Acts 1855 p. 209), the law of 1853, supra, was repealed, and all licenses issued thereunder were 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 therein named, and to repeal all former acts inconsistent therewith, and for the suppression of intemperance." 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, supra, no such temporizing words as "regulate and restrict."

In 1858 (Acts 1858 p. 40) the prohibitory law of 1855, supra, was unconditionally repealed, and in 1859 (Acts 1859 p. 202) 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, and in 1873 (Acts 1873 p. 151) another act, known as the Baxter law, "to regulate the sale of intoxicating liquors," and repealing all former conflicting laws, was enacted. This provided for ward and township local option, to the effect that a license could be granted only 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...