Beebe v. State

6 Ind. 501, 1855 Ind. LEXIS 383

• Court: Indiana Supreme Court
• Decided: December 20, 1855
• Status: Published

Opinions

Perkins, J.

Roderick Beebe sued out from the Marion Common Pleas a writ of habeas corpus to obtain deliverance from imprisonment in the county jail. The sheriff, being jailer, made return to the writ that he held said Beebe in custody by virtue of mittimuses to him directed by the mayor of Indianapolis, reciting that said Beebe had been convicted and fined under the provisions of the act to prohibit the manufacture and sale, except, &c., of intoxicating liquors, passed by the legislature of 1855, approved on the 16th of February, and published in all the counties of the state on the 17th of May, and appointed to take effect on the 12th of June of that year, and had not paid or replevied the fines, &c.

The alleged offences were shown to have been committed after the 12th of June.

Upon this return, Beebe moved the Court to discharge him from custody, but the Court overruled the motion. The ground of the motion, as stated, was, that the liquor act of 1855 was unconstitutional and therefore void; that a conviction under it was consequently invalid; and that, . as the facts of the case appeared upon the face of the return, it showed that Beebe was illegally restrained of his liberty.

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.

Note.—The act creating the office of Reporter requires that each volume of reports shall contain not less than 600 pages. It being necessary, in order to make out the 600 pages, to include in this volume some of the opinions delivered at the November term, 1855, it has been thought best, on account of the interest felt in the questions involved in the case of Beebe v. The State, to include tho opinions delivered in that case in this volume,

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 a 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 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,

1. 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, &c.

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 whiskéy, ale, &c., by persons licensed for the purpose, so far as may be necessary to supply whatever demand certain persons called county agents may 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 where 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:

1. Be it enacted, that the trade and business of manufacturing whiskey, ale, porter and beer, now and heretofore carried on in this state, shall cease; except that any person specially licensed to manufacture for medicine, &e., 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 whiskey, beer, ale or porter, unless the sale be to an agent of the government, or by such agent for medicine, &c. And, as no person is allowed to provide himself with those articles by manufacture or purchase, to use as a beverage, it results,

3. That no person in this state shall drink any whiskey, 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 whiskey, ale, porter and beer for use as a beverage, or at all, except for the government, to be sold by it for medicine, &c.; 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 it is conceded that they can not be prohibited, and not in accordance with the spirit and policy of the state statute; and which 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, or 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 in 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 whiskey, ale, porter and beer.

The opinion has, indeed, 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 ora 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 can not 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, clothes, 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 depredations 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, and is inconsistent with the right of private property in, and pursuits by, the citizen. “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, &c., 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 can not 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,

2. Could the legislature of this state enact the prohibitory liquor law under consideration ?

Few, if any, judicial decisions will be found to aid us in investigating this question, as no such law, in a country possessed of a judiciary and a constitution limiting the legislative power, has, till of late, been enacted. Hence, it has not often, if at all, as to this point, passed under judicial consideration.

A number of European writers on natural, public, and civil law, are cited by counsel on behalf of the state, to show the extent of legislative power; but those writers, respectable, able, and instructive upon some subjects as they are admitted to be, are not authority here upon this point. They are dangerous, indeed utterly blind guides to follow in searching for the landmarks of legislative power in our free and limited government; for they had in view, when writing, governments as existing when and where they wrote, under which they lived and had been educated, and which had no written constitution limiting their powers; governments, the theory of which was, that they were paternal in character; that all power was in them by divine right, and they, hence, absolute; that the people of a country had no rights except what the government of that country graciously saw fit to confer upon them; and that it was its duty, like as a father towards his children, to command whatever it deemed expedient for the public good, without first, in any manner, consulting that public, or recognizing in its members any individual rights.

Indeed the discovery of the great doctrine of rights in the people as against the government, had not been made, when the writers above referred to lived.

Such governments as those described could adopt the maxim quoted by counsel, that the safety of the people is the supreme law, and act upon it; and being severally the sole judges of what their safety in the countries governed respectively required, could prescribe what the people should eat and drink, what political, moral and religious creeds they should believe in, and punish heresy by burning at the stake, all for the public good. Even in Great Britain, esteemed to have the most liberal constitution on the Eastern continent, Magna Charta is not of sufficient potency to restrain the action of parliament, as their judiciary does not, as a settled rule, bring laws to the test of its provisions. Laws are there overthrown only occasionally by judicial construction. Such a thing, indeed, as deciding a law or royal decree unconstitutional, in an absolute government is unknown. Hence the oppression of the people.

And it must be admitted that efforts have not been wanting to engraft upon the governments of this country something of the same principle. It is, in fact, the “general welfare” doctrine, under which it was claimed by latitudinarians that the congress of the United States could enact alien and sedition laws, national banks, &e., for the public good. It is the same principle upon which some of the states enacted laws compelling men to attend, on Sunday, a Protestant church, and pay to support it. The proposition was laid down in them in regard to religion, as by counsel for the state here in regard to prohibition, that it was for the public morals, and good of families, and prevention of crime, that men should observe the ordinances of the gospel, and occupy seats in Protestant '“churches, instead of other places, on the sabbath; and, hence, the state compelled them by law to do so. But the doctrine has been fraught with oppression, and has not produced, permanently, promised results. Limitations have been inserted in constitutions upon the legislative power to prevent this oppression. And over the people of this state hangs the shield of written constitutions, which are the supreme law, which our legislators are sworn to support, which grant a restricted legislative power, within which the legislators must limit their action for the public welfare, and whose barriers they can not overleap under any pretext of supposed safety of the people; for along with our written constitutions we have a judiciary, created by them a co-ordinate department of the government, whose duty it is, as the appropriate means of securing to the people safety from legislative aggression, to annul all legislative action without the pale of those instruments. This duty of the judicial department, in this country, was demonstrated by chief justice Marshall, in Marbury v. Madison, 1 Cranch 137, and has since been recognized as settled American law. Indeed it is a great distinguishing feature of a limited government.

The maxim above quoted, therefore, as applied to legislative power, is here without meaning.

Nor does it prove the power of the state legislature to enact the law in question, to show that the Supreme Court of the United States has decided that it can not declare such a state law inoperative, for that Court can only declare void such state laws as conflict with the restrictions imposed upon state power by the constitution of the United States; and if, in that constitution, the states are not restrained from passing laws in violation of the natural rights of the citizen, the Supreme Court of the United States can not act upon such laws when passed, because they do not fall within its jurisdiction. Rut it does not follow that because the constitution of the United States does not prohibit state legislation infringing the natural rights of the citizen, such legislation is valid. The constitution of the United States may not, but that of the state may inhibit it.

And so, indeed, according to many “eminent judges, may principles of natural justice, independently of all constitutional restraint. This doctrine has been asserted here. In Andrews v. Russell, 7 Blackf. 474, judge Dewey says: “We have said that the only provisions in the federal or state constitution, restrictive of the power of the legislature,” &c., “ are,” &c. “ There are certain absolute rights, and the right of property is among them, which, in all free governments, must of necessity be protected from legislative interference, irrespective of constitutional checks and guards.” Should we find, however, in the course of this investigation, that the constitution of our free states does in fact sufficiently protect natural rights from legislative interference, as it surely does, or it is grievously defective, it will not become necessary for us to inquire whether, in any event, it might be proper to fall back upon the doctrine above so unhesitatingly asserted.

But before proceeding further, it is proper we should say, that eminent judges of the Supreme Court of the United States have asserted that a state, so far as not restrained by the constitution of the United States, has the same “unlimited jurisdiction over all persons and things within its territorial limits as any foreign nation;” New-York v. Miln, 11 Peters 102; License Cases, 5 How. 504; and that we admit the doctrine for the purposes of this case, in the application which they gave it, viz., that the state, in its sovereign capacity, possesses this power; not that the legislature, under our state constitution, possesses it. The doctrine asserted is, that the state, in its sovereign capacity, possesses such power, which, by a constitution, she is capable of conferring, if she pleases, upon her legislature; not that she has conferred it. No judge of the Supreme Court of the United States, in the cases cited, assumed to analyze the constitution of this state, and say that it conferred upon, or left with, the legislature, the unlimited powers of a despotism, or what power it did grant or withhold.

We admit further, at this point, that it has also been declared, that the taxing power of a state is unlimited, and, hence, may be exercised in such a manner as practically to prohibit particular pursuits upon which it may be made too heavily to fall; for example, the selling of dry goods or liquors. But an enactment of such description has none of the features of a formal prohibitory law, for it is based upon the assumption that the taxed pursuit is to exist and not cease; its continuance is, indeed, invited by the act, as its cessation would defeat the very object of the enactment, being revenue; and prohibition, if it resulted, would not be found in the law, but in the accident that nobody happened to be able, or to feel disposed at the time, to pay the tax for the sake of the business. This would be accidental, and might be temporary.

The question then recurs, the one now to be decided— {^Does our constitution prohibit the passage of such an act as that involved in the present suit ?

That instrument contains a grant of legislative power, and it contains express limitations upon that grant. There are also, probably, implied limitations. But if the present case can be decided upon the express limitations, it will not be necessary for us to discuss the questions of the extent of power conferred upon the legislature by the general grant, and of implied limitations.

We proceed to examine the express limitations. The 'first section of the first article declares, that “all men are endowed by their Creator with certain unalienable rights t that among these are life, liberty and the pursuit of hap piness.” Under our constitution, then, we all have some rights that have not been surrendered, which are consequently reserved, and which government can not deprive us of unless we shall first forfeit them by our crimes; and to secure to us the enjoyment of those rights is the great aim and end of the constitution itself.

It thus appears conceded that rights existed anterior to the constitution; that we did not derive them from it, but established it to secure to us the enjoyment of them. And it here becomes important to ascertain with some degree of precision what these reserved natural rights are. To do this we must have recourse to the common law, as the section was undoubtedly inserted in the constitution with reference to it. Counsel, in the argument of this cause, on the part of the state, it is true, deny the existence of any such rights in Indiana. Our answer is, the constitution above quoted has settled the point here; and a legislature, acting under that instrument, is estopped by its solemn declaration to deny the existence of the natural rights there asserted. That assertion, while it remains, is binding within the territory of Indiana. When the people of the state shall become satisfied that it is founded in mistake, they can meet in their sovereign capacity, strike it from their organic law, and insert the contrary, that they are without natural rights, and at the mercy of the legislature., We may properly here observe, that added to these restrictive "provisions of the bill of rights, in the old constitution, was-the following:

“ Sec. 24. To guard against any encroachment on the rights herein retained, we declare that everything in this article is excepted out of the general powers of government, and shall forever remain inviolate.”

The new constitution does not contain this section; but that constitution did not intend to weaken the restraints designed for the protection of the people, and the section quoted was omitted because the expressly declared reservations in the bill of rights were necessarily taken from the absolute power of the legislature without such declaratory section. And it should be here remarked, that it is not said these rights are reserved to be used without restraint. Each individual being equally entitled to their exercise, the right of each operates as a check upon the right of every'other, compelling mutual regard for those of each, and subjecting each to punishment by the judiciary, under legislative regulations, for violating the equal right of every other, and giving the injured in all cases redress by law. And further provisions of the constitution, which must be construed together with that quoted, confer powers, such as taxation, &c., on the legislature relative to these rights. Such powers may be exercised.

We proceed, then, to inquire what these reserved rights are; and to ascertain, we go, as we have said, to the common law. Chancellor Kent, following Blackstone, says, vol. 2, p. 1, “The absolute [or natural] rights of individuals may be resolved into the right of personal security, the right of personal liberty, and the right to acquire and enjoy property;” not some property, or one kind of property, but, at least, what the society organizing government recognizes as property. Plow much does, this right embrace ? How far does it extend ? It undoubtedly extends to the right of pursuing the trades of manufacturing, buying and selling, and to the practice of using. These acts are but means of acquiring and enjoying, and are absolutely necessary and incidental to them. What, we may ask, is the right of property worth, stripped of the right of producing and using ?

The right of property is equally invaded by obstructing the free employment of the means of production as by violently depriving the proprietor of the product of his land. Say's Political Economy, 133.

In Arrowsmith v. Burlingim, 4 McLean 497, it is said: “ A freeman may buy and sell at his pleasure. This right is not of society, but from nature. He never gave it up. It would be amusing to see a man hunting through our law books for authority to buy or sell or make a bargain.” To the same effect, Lord Coke, in 2 Inst., c. 29, p. 47.— Rutherforth's Institutes, p. 20.

So far, then, we find that the people have expressly reserved the right of property, and its enjoyment, in forming their constitution, from the unlimited power of the legislature; and further to guard the right, have ordained that it shall not be taken from them without just compensation, nor be injured without a remedy therefor by due course of law, that is, a legal trial in Court, nor be subject to unreasonable seizure, See. See. 11, art. 1, and ss. 12 and 21 of the same article. They have, however, as we have said, authorized the legislature, by art. 10, sec. 1, to tax, by a “uniform and equal rate,” the property of the people of the state, and impliedly, as we have seen, to take it, by paying for it, for the public use. Now these restraints upon the legislative power were inserted in the constitution for some purpose; what was it ? And they have some meaning; what is it ? Wherein do they furnish security to the citizen? This Court must determine. Their object was, beyond all question, to protect the people from aggression on the part of the government; and under them the legislature can not take the property, the liquors of a single individual, if they are property, when not needed for public purposes, and then only upon compensation. But if the legislature can not deprive a single citizen of his property, can it, by a general law, deprive all the citizens of theirs ? If that body could not enact that A. B. should no longer cultivate his farm, could it by a general law enact that all the farmers of the state should cease to cultivate theirs? Further, these restrictions in the constitution apply alike to all property; they make no distinction. Is liquor, then, property ? Is a distillery property ? They are so, unquestionably, in Indiana. At the time of the adoption of our present constitution, there were fifty distilleries and breweries in the state, which turned out annually manufactured products to the value of half a million of dollars, used mostly by our people as a beverage. Liquor had always been an article of use and traffic in the state, and always been taxed as property. With these facts existing, the subject was repeatedly brought before the constitutional convention, and that body refused to make any change in the relation of the government towards this species of articles. We are safe in saying, then, that under this constitution, the government could not take, for public use, from a single individual, a single barrel of liquor without paying for it. Can it, then, by a general law, annihilate the entire property in liquors in the state ?

There are other provisions of the constitution that have some bearing upon this point, as evincing regard by that instrument for individual property and the right of traffic. Sec. 22, of art. 1, declares that—

“The privilege of the debtor to enjoy the necessary comforts 'of life, shall be recognized by wholesome laws, exempting a reasonable amount of property from seizure or sale for the payment of any debt or liability hereafter contracted.”

Now suppose the property of a debtor to consist, as the fact might be, entirely of liquor. Of what avail is this constitutional provision, if the government can step in at will and confiscate that property?

Again, section 24, of the same article, provides that no law shall ever be passed impairing the obligation of a contract. Yet here is a law, which, by prohibiting an entire - pursuit and rendering valueless all the property involved in it, must, of necessity almost, impair all executory contracts that have grown out of that pursuit, and render them utterly incapable of fulfilment.

The position, however, is taken, on the part of the state, that it is competent for the legislature, whenever it shall deem proper, to declare the existence of any property and pursuit deemed injurious to the public, nuisances, and to destroy and prohibit them as such; and that such action of the legislature is not subject to be reviewed by the Courts. We deny this position. We deny that the legislature can enlarge its power over property or pursuits by declaring them nuisances, or by enacting a definition of a nuisance that will cover them. Whatever it has a right by the constitution to prohibit or confiscate, it may thus deal with, without first declaring the matter a nuisance; and whatever it has not a right by the constitution to prohibit and confiscate, it can not thus deal with, even though it first declare it a nuisance. It can not do by indirection what it can not do directly. For example, the constitution of the United States prohibited the abolition by congress of the foreign slave trade till 1808. Const. U S., art. 1, s. 9. Now, prior to that date, congress could not have, by direct enactment, prohibited the slave trade, for want of power. Could she, then, have declared the trade a nuisance, and then abolished the nuisance? Had she the power to do that?

Again, art. 1, sec. 9, of the constitution of Indiana, declares that—

“ No law shall be passed, restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print, freely, on any subject whatever; but for the abuse of that right, every person shall be responsible.”

Under this provision, all will admit that if the legislature of this state should assume that the press had become so licentious as to require its suppression, and should enact a law accordingly, that law would be void, and this Court bound to pronounce it so. But could the legislature evade the constitutional provision, by first declaring the press throughout the state a nuisance, and then enacting that it should cease to exist ? It surely could not, or the constitutional provision is worthless.

Now, as the legislature can not declare the press and printing business nuisances, because protected by the constitution, so it can not declare property and the acquisition and use of it, nuisances, for precisely the same reason.

But the section above quoted of the'constitution itself, points out the remedy for the evil of abuse. And it indicates the general remedy in all these eases. It is the responsibility, that is, the liability to suit and punishment, and loss, by forfeiture, of the particular press made the instrument of abuse, of “ every person ” who shall be guilty of committing such evil. And the questions of the guilt of the individual and abuse of the property, in every case, are to be decided by the judiciary, and the punishment inflicted by that department. Any other mode of adjudging guilt and inflicting punishment, is but mob or lynch law.

But to return. The questions whether a law is in conflict with the constitution or not, and whether a thing is a nuisance or not, and, hence, liable to forfeiture, are judicial, and to be finally determined by the Courts alone.. Such is the organic law of the state, and it is, hence, needless to discuss its propriety here. See Doe v. Douglass, 8 Blackf. 10. Why it has been so ordained in the constitution, whether because of the supposed superior capacity of the judicial department to judge of such questions, or for other reasons, it is not particularly important to inquire. We may, in this connection, however, quote with propriety from Young v. The State Bank, 4 Ind. R. 301, as follows. “Now, the constitution [article 3 of that of 1851] above quoted, says, the legislature shall not perform a judicial act. The granting of a new trial [in a suit in Court] we have seen, is a judicial act. Therefore, the legislature can not grant a netv trial. And it is a power that should not be possessed by the legislature in its legislative capacity; because, in that capacity, it would not be governed in its action by legal rules. And to permit it to dispose of judicial questions in that capacity, would be in the highest degree dangerous to the rights of the individual members of the community.”

It is, indeed, most strenuously contended, in this case, by counsel, that the propriety and validity of the liquor act under consideration, were questions to be determined by the discretion of the legislature, and that the determination of that body is not subject to review in this tribunal; and some early cases in the Supreme Court of the United States, particularly McCullough v. The State of Maryland, 4 Wheaton R. 316, are cited as sustaining the doctrine. We shall enter into no argument upon the theory or first principles of the question. We shall treat it as one of authority. Indeed, in the case in Wheaton, supra, the distinguished chief justice, in the opening of his opinion, uses language that might justify a review of the law before us by this Court. He says that “a doubtful question, in which the great principles of liberty are not concerned,” might perhaps be put to rest by the repeated action of the legislature; implying, certainly, that had the question in that case been one that was conceived to concern those great principles, it might have been decided by a different rule. Such is the question now before this Court for decision. It does concern the great principles of liberty. It is to determine whether one single dollar’s worth of property in «this state, and the right to pursue a single employment; whether, indeed, a single iota of personal liberty remains to the people, secure from the invasion of a despotic legislature—for if it can strike down one of the recognized pursuits of the citizens, it can all. But whatever may be the rule asserted in the early cases, that of Bronson v. Kinzie, 1 Howard (U. S.) R. 311, so late as 1843, determines, beyond all doubt, that the Courts will review and decide upon the exercise of legislative discretion, so far as to determine whether, in the given case, the constitution has been violated. It involved and decided precisely the question so earnestly argued in this case, and which we are now considering. In that case, the legislature of Illinois enacted a law regulating the replevy of judgments and the sale of property on execution. There was no provision in the constitution expressly prohibiting legislation upon legal remedies, and hence it was claimed that, under the general grant of legislative power, the right to so legislate passed to the legislature in its discretion. But the constitution of the United States did forbid the passage of a law impairing the obligation of a contract; and the Supreme Court decided that they would look into the manner in which the legislature had exercised its discretion in a matter where there was no express restriction, to see that it had not, in that exercise, violated some express constitutional provision. Judge McLem dissented, contending for the right of legislative discretion; but the same Court, in subsequent cases, reaffirmed the doctrine of Bronson v. Kinzie, and it is now the settled law. McCracken v. Hayward, 2 How. (U. S.) R. 608.— Gantly’s Lessee v. Ewing, 3 id. 707.— Curran v. Arkansas, 15 id. 304. This Court unanimously adopted the same rule in Thomas v. The Board of Commissioners of Clay County, 5 Ind. R. 4, and in Maize v. The State, 4 id. 342. And can it be that legislative discretion shall be controlled in the matter of violating a contract, and not where it annihilates a great pursuit involving millions of dollars and innumerable contracts ?

Another position is taken by counsel who last argued this cause for the state, and insisted upon with great confidence. It is this: that the legislature has unlimited power over the commerce of the state, and can, hence, prohibit altogether the sale of liquors, or direct the sole purposes for which they may be sold. It is argued in this way. Congress has power to regulate foreign commerce, commerce between the states and with the Indian tribes; and under this power she may prohibit all commerce, in the named cases, confiscate property, &c. The legislature of the state has power, under the general grant, to regulate domestic commerce; hence, like congress, it may prohibit, confiscate, &e.

The cases are not parallel and the reasoning is unsound. The grant to congress of power to regulate commerce, is, since 1808, unlimited. There is no bill of rights in the constitution of the United States; in short, no restriction, unless by implication, upon the power of congress to regulate trade, in the specified instances. Hence, congress, do what she may, can not be shown, on this subject, to have violated any restriction in the federal constitution under which that body acts, because it contains none.

Now how is it with the legislature and constitution of this state? Our state constitution contains, as we have seen, certain restrictions upon the legislative power, certain sections declaring rights in the citizen as against the government, and these restrictions operate just as potently upon the power of the legislature to regulate commerce as to do anything else—prevent that body just as effectually from infringing the reserved rights by assumed regulations of commerce as by any direct enactment. To illustrate. The constitution declares that every citizen shall be secure in the right to worship God according to the dictates of his own conscience. Now the great body of religious denominations in this state, conscientiously believe they are bound to celebrate one of the ordinances of the gospel by the use of bread and wine. But wine is an article of commerce, and its purchase is a commercial transaction. Therefore, upon the argument, the legislature has power to prohibit its use, or declare the purposes for which it may be sold and purchased. It may, therefore, declare that it shall not be sold or purchased for sacramental use, thus, in effect, overthrowing the constitutional provision, that the citizen shall have the right to worship according to his conscience, and abolishing the general practice of the Christian ordinances in the state. This the legislature can not do. It must regulate within the restrictions of the constitution. So the purchase of nails and lumber is commerce. Can the legislature say, they may be purchased to build barns with, but not churches or dwellings ?

Again, the constitution says, as we have quoted above, that the right of printing—the freedom of the press—shall remain inviolate in this state. But the purchase of paper to print on, ink to print with, and type, is commerce. And can the legislature prohibit, or declare the uses for which such articles may be purchased, saying, they may be purchased for the purpose of printing advertising handbills, but not to print books or newspapers 1 Surely such a law would as effectually violate the constitution, as a direct enactment that no books or newspapers should be printed in the state.

We might continue these illustrations, but it can not be necessary.

The legislature has no more right to violate the constitution, under the guise of a regulation of commerce, than by a statute literally in conflict with it. And if, as in the above-instanced cases, the express provisions of the constitution secure to the citizen his property and its reasonable use, the legislature can not take away the right by any legerdemain of legislation. And whenever the legislature does so invade the constitutional right of the citizens, they are not bound to submit to the outrage for two years, till the assembling of another legislature, nor to resort to the terrible remedy of revolution, but may quietly and peacefully invoke the action of the judiciary to annul the act of legislative usurpation.

And here we are called upon to mark the line which bounds the power of the legislature on the one hand and the right of the citizen on the other; to say what the legislature may and may not do in all cases. We answer that we have already pointed out the line, so far as to show that in this case the legislature has overstepped it and invaded the constitutional right of the citizen. This is all we can now be required to do. The judicial mind must place each case, as it arises, upon the proper side of the boundary admitted to exist. This will be its duty and no more. Such has been the practice.

We have said that we should treat the question of the right of the Court to judge of the grounds of a law alleged to infringe constitutional restrictions, as one of authority. We will however add the remark, that the Court knows, as matter of general knowledge, and is capable of judicially asserting the fact, that the use of beer, &c., as a beverage, is not necessarily hurtful, any more than the use of lemonade or ice-cream. See Burke's Works, vol. 2, Dearb. Lib. Ed., p. 190, in “ Thoughts on Scarcity.” It is the abuse, and not the use, of all these beverages that is hurtful. But the legislature enacted the law in question upon the assumption that the manufacture and sale of beer, &c., were necessarily destructive to community; and in acting upon that assumption, in our own judgment, has unwarrantably invaded the right to private property, and its use as a beverage and article of traffic.

What harm, we ask, does the mere manufacture or sale or temperate use of beer do to any one ? and the manufacturer or seller does not necessarily know what use is to be made by the purchaser of the article. It may be a proper one. And if an improper one, it is not the fault of the manufacturer or seller, but it is thus appropriated by the voluntary act of another person, and by his own wrong. And will the general principle be asserted, that to prevent the abuse of useful things, government shall assume the dispensation of them to all the citizens—put all under guardianship? Fire-arms and gunpowder are not manufactured and sold to shoot innocent persons with, but are often so misapplied. Axes are not made and sold to break heads with, but are often used for that purpose in the hands of murderers. Bread is not made to make gluttons with, but is perverted to that use. Razors are not made to cut throats with, but are applied in that way by the suicide. The Almighty did not create fists to knock people down with, but they are often put to that use, and still he permits men to be born with fists. Yet who,' for all this, has ever contended that the manufacture and sale of these articles should be prohibited as being nuisances, or be monopolized by the government? We repeat, the manufacture and sale and use of liquors are not necessarily hurtful, and this the Court has a right to judicially inquire into and act upon in deciding upon the validity of the law in question—in deciding, as was done in Bronson v. Kinzie, supra, whether it is an indirect invasion of a right seemed to the citizen by the constitution. This question the Court must decide; and it must, therefore, in some manner, satisfy its judgment and conscience upon it. 5 Hill (N. Y.) R. 121, and cases cited.

The act is not one to prohibit or punish drunkenness, or any abuse of the use of liquors. Were it, a different question might be presented—one, however, on which we here intimate no opinion, as it is not before us. When a case shall arise calling for a decision as to the extent of the power of the legislature to regulate, without prohibiting, we shall be prepared to make that decision according to the best of our judgment.

The restrictions which we have examined upon the legislative power of the state, were inserted in the constitution to protect the minority from the oppression of the majority, and all from-the usurpation of the legislature, the members of which, under our plurality system of elections, may be returned by a minority of the people. They should, therefore, be faithfully maintained. They are the main safeguards to the persons and property of the state. They will be maintained, in so far as depends upon us, notwithstanding the intimation at the argument, that whoever interposed an obstruction to the free course of this law, was to be swept away by an overwhelming torrent. We shall be deterred by no such ill-timed threat from what we believe to be the discharge of a solemn duty.

It is easy to see that when the people are smarting under losses from depreciated bank paper, a feeling might be aroused, that would, under our plurality system, return a majority to the legislature which would declare all banks a nuisance, confiscate their paper and the buildings from which it issued. So with railroads, when repeated wholesale murders are perpetrated by some of them. And in Great Britain and France, we have examples of the confiscation of the property of the churches even, which here the same constitution that protects the dealer in beer, would render safe from invasion by the legislative power.

In our opinion, for the reasons above given, the liquor act of 1855 is void. We express no opinion upon any single provision of the act, as in the view we have taken of its general scope, it is unnecessary.