Schmitt v. F. W. Cook Brewing Company

• Decision Date: 28 June 1918
• Docket Number: 23,439
• Citation: 120 N.E. 19,187 Ind. 623
• Parties: Schmitt, Superintendent of Police, v. F. W. Cook Brewing Company
• Court: Indiana Supreme Court

120 N.E. 19

187 Ind. 623

Schmitt, Superintendent of Police, v. F. W. Cook Brewing Company

No. 23,439

Supreme Court of Indiana

June 28, 1918

Rehearing Denied November 19, 1918.

From Vanderburgh Superior Court; Fred M. Hostetter, Judge.

Suit by the F. W. Cook Brewing Company against Edgar Schmitt, as superintendent of police of the city of Evansville. From a judgment for the plaintiff, the defendant appeals.

Reversed.

Phil C Gould, Ele Stansbury, Attorney-General, R. C. Minton, Wayne B. Wheeler, for appellant.

Philip W. Frey, Robinson & Stillwell, Charles E. Cox and Baker & Daniels, for appellee.

Townsend J. Myers, C. J., concurs in conclusion. Spencer, J., dissents.

OPINION

Townsend, J.

Appellee brewing company obtained a permanent injunction against appellant superintendent of police of the city of Evansville preventing the enforcement of the Prohibition Law, Acts 1917 p. 15. Appellant's demurrer to the complaint was overruled. He refused to plead further and judgment was rendered.

No question is raised as to the jurisdiction of a court of equity and, owing to the alleged property rights and to avoid a multiplicity of actions, the cause will be considered.

The sole question presented is the constitutionality of the act. It is claimed that the legislature has no power under our Constitution to prohibit the manufacture and sale of intoxicating liquors. This contention is erroneous; for it is admitted that the legislature may refer this to the people in county, township, city, or ward units and, if the majority desire, they may impose prohibition upon the minority, and it is admitted that this would be constitutional. This amounts to admitting that the majority may inflict on the minority that which is forbidden by the Constitution. This is based on the erroneous assumption that a state Constitution is a grant of power and that when a legislature assembles something is taken from the people by it and something is left at home in the way of legislative function.

It is fundamental that a state Constitution is a limit of power. It simply divides sovereign power of the people in the state into the several departments of government and all power inheres in the people, and they possess all of it except that which is granted to the United States by the federal Constitution, and they may pass any law which is not in violation of the limitations in the state Constitution and not in violation of parts of the federal Constitution applicable to the states.

If the present Constitution provided that all the people of the state should assemble once in two years, instead of the legislature, to enact laws, and all other provisions of the Constitution remained as they now are, it could not be that this body would have greater legislative power than the present legislative body. To admit this is to destroy the limitations in the Constitution and leave the minority unprotected. The very purpose of the limitations is to protect the people against themselves. The limitations are not to protect the people against the legislature alone. That protection is afforded by elections every two years. If the limitations in the Constitution are not sufficient to protect the minority against the majority, that is for the convention. The legislature is just as supreme in the legislative field as all the people would be. Both are bound by the limitations in the Constitution.

This court is bound by the same Constitution and has no right to curtail legislative authority this side of the expressed limitations in it. Nor has this court power to revolutionize the fundamental law by reading limitations into it. This court has nothing to do with the wisdom or unwisdom of the legislative act. A law may be repugnant to general principles of justice, liberty and rights not expressed in the Constitution, and yet the courts have no power to strike it down. State v. Gerhardt (1896), 145 Ind. 439, 450, 44 N.E. 469, 33 L. R. A. 313; Praigg v. Western Paving, etc., Co. (1896), 143 Ind. 358, 363, 42 N.E. 750; Hirth-Krause Co. v. Cohen (1911), 177 Ind. 1, 12, 97 N.E. 1, Ann. Cas. 1914C 708. The remedy in such a case is with the people in the legislative department or in convention forming a new Constitution. Mr. Cooley says: "By the Constitution which they (the people of the state) establish, they not only tie up the hands of their official agencies, but their own hands as well." Cooley, Constitutional Limitations (7th ed.) 56.

No provision of our Constitution has been pointed out which forbids the passage of laws to protect the health, morals, or welfare of the people in connection with the traffic in intoxicating liquor, even though such laws destroy previously recognized property without paying for it. That the liquor traffic is within the police power of the state no one denies. When this is admitted, there must follow the power to take such steps as are reasonably suitable to carry out this purpose.

There is no difference in constitutional principle between the prohibition of the sale of intoxicating liquor as a beverage and the prohibition of the manufacture in order to stop the sale. The thing aimed at is the traffic in liquor as a beverage. If the people of the state, in order to stop the traffic in the beverage, deem it necessary to stop the manufacture, they have a right to do this so far as any limitations in our Constitution are concerned. When it is admitted that by local option ninety-two counties in the state may forbid absolutely the sale of intoxicating liquor without violating the provisions of the Constitution, it then follows that, in order to accomplish the same purpose, the people of the state may prohibit the manufacture. He who has a charter from the state to manufacture is deprived of his property, in part at least, when he loses the opportunity to sell in ninety-two counties of the state. From the standpoint of the constitutional limitations, there can be no difference in principle between the destruction of one dollar's worth of property and one million dollars' worth. Charter rights, license rights, contract rights are all subject to the inherent power of government to protect the health, morals, or welfare of the public. Skelton v. State (1909), 173 Ind. 462, 468, 89 N.E. 860, 90 N.E. 897; Moore v. City of Indianapolis (1889), 120 Ind. 483, 491, 22 N.E. 424; Boyd v. Alabama (1876), 94 U.S. 645, 24 L.Ed. 302; Pittsburgh, etc., R. Co. v. Chappell (1914), 183 Ind. 141, 147, 106 N.E. 403, Ann. Cas. 1918A 627.

It is also insisted on behalf of appellee herein that it has been decided by this court that there is no power to prohibit the manufacture of intoxicating liquor under our Constitution, and that the case of Beebe v. State (1855), 6 Ind. 501, 63 Am. Dec. 391, and a few cases following, settle that question. It cannot be determined by those cases on what principle the court was acting. The question stood undecided for three years and then the law was pronounced void without assigning any reasons as to whether it was considered void under the state Constitution or federal Constitution. That law in some of its particulars would have been void at that time under the federal Constitution, but since then there have been passed by federal Congress the Wilson Act and the Webb-Kenyon Act, both of which have been upheld by the Supreme Court of the United States. Wilkerson v. Rahrer (1891), 140 U.S. 545, 11 S.Ct. 865, 35 L.Ed. 572; Clark Distilling Co. v. Western, etc., R. Co. (1916), 242 U.S. 311, 37 S.Ct. 180, 61 L.Ed. 326, L. R. A. 1917B 1218, Ann. Cas. 1917B 845. That law also provided for official agencies to dispense liquor, thus creating a monopoly on the part of the state in the traffic, and it may have been considered void for that reason. But since that time public monopolies have been justified in the control of intoxicating liquor upon the ground that the nature of the traffic warrants its entire prohibition. 15 R. C. L. 267, 268, and authorities there cited.

The principle of stare decisis, if it existed, has no application to the police power, because there can be no property rights which are not subject to this power. In Pittsburgh, etc., R. Co. v. Chappell supra, 146, this court said: "A long and firmly settled principle of law which has grown out of a well ordered civil society is that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it may be so regulated that it shall neither encroach injuriously on the equal enjoyment of their property by others who have an equal right to the enjoyment of their property, nor be injurious to the community. The law is also so fixedly settled as to be beyond controversy that rights and privileges arising from contracts with a state are subject to regulations for the protection of the public health, the public morals and the general safety of persons and property, in the same sense as are all contracts and all property whether owned by private persons or by corporations. Laws carrying these principles into effect in particular instances are but a proper exercise of the police power by the legislature and are not to be hindered or overthrown by the constitutional limitations named as is claimed by counsel. Indeed the legislature cannot contract away its police power--the power to legislate for the protection of the lives, health, and property of the citizens of the State." And in the case of King v. Inland Steel Co. (1911), 177 Ind. 201, 212, 96 N.E. 337, 97 N.E. 529, this court said: "The rule of stare decisis, which counsel invoke to induce us to adhere to those decisions, cannot chain us to error. That may be so when decisions have become a rule of property, but not in decisions involving a...