I concur in the foregoing opinion of Judge Perkins.
Stuart, J.Beebe was prosecuted before the mayor of Indianapolis, for two distinct violations of the liquor law of 1855. The one was a charge for manufacturing beer, the other for selling it contrary to the provisions of that act. He was tried, convicted in both cases, and fined 50 dollars in each. Failing to pay or replevy the fines, Beebe was committed to prison. On his application to the judge of Common Pleas, a writ of habeas corpus was issued. The officer having him in charge returned, as the cause of detention, the proceedings, judgment and order of the mayor in the cases referred to. After hearing he was remanded to prison. From that order he appeals.
These cases have been twice argued orally, with distinguished ability on both sides. And what is still more commendable, the argument was conducted with that moderation and forbearance so becoming in forensic discussion.
The first inquiry is, what does the record present? Simply a question of legislative power. The details of the law are not before us, and are not, of course, considered.
The inquiry here is confined to the sale; for the question arising on the other case for manufacture, admits of a very different solution. Having for reasons given in that case, come to the conclusion that the agency feature, and the several parts of the law relating to manufacture, were unconstitutional, the question on the sale arising on the other Beebe record alone remains.
The act assumes to confine the use of liquor to the departments of science and the ordinances of Christianity. *523And the question is, was it competent for the legislature thus to restrain the sale and use of intoxicating liquor?
It is admitted in argument that there is no express provision of the constitution restricting the general assembly on that subject.
But it is insisted that such restriction is implied in the first section of the bill of rights. Let us place the statute and that section of the constitution together.
Stripped of all that relates to the agency and the manufacture, the first and fifth sections, as to sale, are, in substance, that no person shall keep for sale or sell, by himself or agent, directly or indirectly, any spirituous or intoxicating liquor, except for medicinal, chemical or mechanical uses only, and pure wine for sacramental use. Laws of 1855, pp. 209, 211.
To prevent misconception, the first section of the bill of rights is quoted entire:
“Sec. 1. We declare, that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty and the pursuit of happiness; that all power is inherent in the people; and that all free governments are, and of right ought to be, founded on their authority, and instituted for then peace, safety and well-being. For the advancement of these ends, the people have, at all times, an indefeasible right to alter and reform their government.”
According to all publicists, the right to hold and enjoy private property is among the unalienable rights. In the constitution of 1816, the right “of acquiring, possessing and protecting property,” was expressly enumerated.
It becomes important, therefore, to inquire, in what sense are the rights of life, liberty and property said to be unalienable ? It does not mean that the legislature shall not pass any law in relation to them. For the whole statute book is, in some measure, a standing interference with, and regulation of, these very things. The executive, the warden of the prison, the sheriff, the whole corps of executive and administrative officers, are continually taldng away those rights from some citizen.
*524It does not mean, therefore, that those rights are to be held superior to and above the laws. They are held subordinate to such municipal laws and police regulations as the political organization in which those rights are enjoyed may rightfully enact under the constitution. They are held subject to such restraints as “the peace, safety and well-being” of the body politic may require. Thus in Calder v. Bull, 3 Dallas 386, the Supreme Court of the United States say, “ The right of property is always subject to the rules prescribed by positive law. The right vested in the citizen is, to do certain acts, or possess certain things, according to the law of the land.”
These rights, therefore, may be taken away in “ due course of law,” as the forfeit of violating municipal enactments.
What, then, does the unalienable right of property mean? It might be comprehensively answered, that the whole constitution is a comment on that text. It means that the citizen shall be secure in his effects from unreasonable search and seizure; s. 11, art. 1; that he shall have a right to a public trial by jury; ss. 13 and 20, id.; that his services or property shall not be taken without just compensation; s. 21, id.; and so of all the other restrictions of the constitution. “ They are the barriers erected by the people” against the encroachments of the powers they have delegated to their public servants.
Locke says, it is against natural right for the government to “dispose of the estates of subjects arbitrarily, or divest vested rights at pleasure.” The legislature can not take the property of A. and give it to B. So, in the school cases, it was said by this Court, that the legislature could not take the property of A. and B., divert it from their use, and distribute it ratably to third persons. The unsoundness of such legislation, as violating fundamental principles, could not be doubted. 6 Ind. 83.
So also in Wilkinson v. Leland, 2 Peters 627. The property of heirs had been illegally sold, and the legislature of Rhode Island passed an act confirming the sale. It was in reference to this invasion of private property, that *525judge Story delivered the eloquent passage to be found in 2 Peters 657. He justly declares, “ that government can scarcely be free where the estate of the citizen can be transferred without trial, without notice, and without offence.”
So in Doe v. Douglass, 8 Blackf. 10, judge Perkins, speaking of a similar state of facts, says, “ The legislature is supreme, except wherein restrictions have been imposed.” He adds, “the restrictions of the constitution restrain the legislature from passing a law impairing the obligation of contracts, from the performance of a judicial act, and from any flagrant violation of the right of private property.” Here the remarks must be taken with reference to the facts of the case. Judge Perkins was not speaking of a municipal law made to protect all. tie had reference to an act of the assembly confirming the illegal sale of three lots in Evansville.
So in the celebrated case of Fletcher v. Peck, 6 Cranch 87. The question arose on an act of the legislature of Georgia, alleged to have been passed corruptly, authorizing the issue of a patent. Marshall, C. J., guardedly says: “ To the legislature all legislative power is granted. But whether the act of transferring' the property of an individual to the public, be in the nature of the legislative power, is well worthy of serious reflection.” Here, also, the venerable judge was speaking, not of a municipal law or police regulation to promote the peace, safety and well-being of the people of Georgia. He had reference to a law operating directly on specified property of a citizen of that state.
It is in these cases, and in such a state of facts, that the dicta about unalienable rights, so often quoted by elementary writers, occur. These cases sufficiently indicate the meaning of “unalienable rights,” as used in the first, section of the constitution. They sufficiently distinguish between an act which assumes to transfer private property without trial, without notice, and without offence, from an act of municipal regulation having for its object the peace, safety and well-being of society. The application of this *526distinction is obvious. Suppose the legislature of Indiana had passed an act appropriating fifty barrels of the appellant’s beer to the use of the mayor of Indianapolis. This would have been an infringement of Beebe’s “unalienable rights.” Against such spoliation of his property, without offence, trial, or notice, the Courts would be bound to afford him prompt protection. But not against the operation of a municipal law enacted in conformity to the constitution.
Closely connected in the argument with unalienable rights, are the limitations of legislative power outside of the constitution. The relevancy of the inquiry is not readily appreciated. It involves many curious questions lying all along the exterior boundary of the rights and duties of rulers and people in extreme cases. It will be pardonable to decline speculation. Extreme cases seldom prove anything satisfactorily. We will therefore confine ourselves to the facts as we find them in the constitution and law, and our judicial duty in the premises.
The tendency of Courts is, or at least should be, anything but revolutionary. What rights and what legislative checks outside of the constitution, and not delegated by the people to their public servants, may exist, we are not careful to inquire. They can seldom, if ever, become a basis or rule of decision. Perhaps these inquiries might not be out of place in a popular assembly. But at this late day, in a government like ours, with distributive and well-defined powers and duties, the settlement of those abstruse questions does not seem to be the chief debt we owe the public.
It is enough for us to know, that whatever these extreme rights are, their protection does not fall exclusively within our jurisdiction. With the rights themselves the people have also prudently retained in their own hands the means of redress. They are ever ready to vindicate them at the ballot-box or by revolution, as the case may require. Among our people revolution has attained perfection. The evils or errors which afflict the body politic are intelligently investigated and traced to their source. *527The remedy is simple and effectual. A constitutional convention of eminent citizens is the substitute for the armed mob of other countries. If the powers hitherto delegated are too great consistently with the private rights of the citizen, they are quietly abridged. If insufficient to afford protection, they are enlarged and moulded to meet the circumstances. So that revolution should begin with the people, and not with the Courts. Any other revolution can not readily be distinguished from subversion.
The system we have adopted is marked for simplicity. The judiciary, and all the other departments, live and move and have their official being and sphere of action in the constitution. Art. 3, s. 1. The duty of the Courts is chiefly expository. When the constitution and laws come up for adjudication, both must be regarded as the work of the same hands. Both are of the people. Both must be respected unless they conflict. 4 Ind. 342, and the authorities there cited. In'case of conflict, the temporary will contained in the law, must yield to the paramount will contained in the constitution.
For the Courts to declare a law void on any other ground—to set it aside because it is impolitic or inexpedient, or even, like the liquor law, odious and oppressive in some of its features, looks like assuming to protect the people against themselves.
It is easy to imagine that the legislature may pass a very odious enactment. Our statute books abound with them. Such were both the bankrupt laws passed by congress. Interest or passion, or perhaps other dubious influences, often mould legislation. The advocates of ultra measures have the popular ear one year. A law is passed in accordance with their views. Next year those who suffer from the new policy appeal successfully to the same public. The reason is on the surface. Any enactment in advance of a sound and matured public opinion, or based upon the fluctuating fever of the horn-, or odious in itself under any healthy state of the public mind, is sure to be swept from the statute book before it is dry.
But it does not thence follow that the Cowts must *528hasten to declare it unconstitutional. Much is said in the reports about a law being against “common right.” Under the old constitution, a revenue law might have exempted half the property in the state from taxation. The whole burden would thus have been thrown upon the other half. This would have been against common right. 4 Ind. R. 87. Yet the Courts, acting within the sphere which our polity had assigned them, could not declare the act unconstitutional. They could not inquire into the expediency or policy of the measure. Bepley v. The State, 4 Ind. R. 264. That belonged to legislation—that the people had committed to the general assembly. The Courts could apply the rules of strict construction, and they did so. Baker v. Orr, 4 Ind. R. 86.—1 Kent, Lecture 20.—19 Ohio R. 110.—4 Peters R. 514.—Blackwell on Tax Titles, 481—2.
The people remedied this evil by amending the constitution. Sec. 1, art. 10.
All the Courts can do with odious statutes which are constitutional, is, to chasten their harshness by construction. Such is the imperfection of the best human institutions, that mould them as we may, a large discretion must at last be reposed somewhere. The best, and in' many cases the only security, is in the wisdom and integrity of public servants, and then- identity with the people. Government can not be administered without committing powers in trust and confidence. 1 Bibb 602.— Gibbons v. Ogden, 9 Wheat. R. 1.— The Providence Bank v. Billings, 4 Pet. R. 514.—Ex Parte Alexander, L. J. 44.
The settled rule of this Court is a strict construction of delegated powers. 5 Ind. R. 1.—4 id. 301.—Id. 342.— 5 id. 557.—6 id. 83. These decisions defined the powers of the legislature under various provisions of the new constitution. If they have led to the supposition that we could declare any statute void at pleasure, they have indeed had an evil influence. For our judicial powers are also delegated. They must receive the same strict construction which we have so often applied to those of the other departments. We hold them by the same tenure *529and are bound by the same rules. We have no power over the legislature but what is given us by the constitution. In the polity of all these states, our own among the rest, judicial and legislative duties are distinguished from each other. The assembly can not grant a new trial; nor can we inquire into the necessity, policy or expediency of the laws. 4 Ind. R. 301. The third article of the constitution defines the limits of each department thus:
“ The powers of the government are divided into three separate departments; the legislative, the executive, including the administrative, and the judicial; and no person, charged with official, duties under one of these departments, shall exercise any functions of another,” &c. 1 R. S., 48.
Yoimg v. The State Bank, 4 Ind. R. 301, was a direct decision on a corresponding provision in the old constitution. In that case the legislature had granted a new trial. The Court, by judge Perkins, pithily puts the case thus: “ The constitution says the legislature shall not perform a judicial act. The granting of a new trial is a judicial act. Therefore the legislature can not grant a new trial.”
Apply this reasoning to our judicial powers. The constitution says the judiciary shall not perform a legislative act. The subject, necessity, policy and expediency of a law are matters of legislation. Therefore they do not belong to the judiciary. The argument is complete; the authority pertinent and conclusive as an exposition of the third article of the constitution.
Against this position there is not a single case in our own reports, but many in coincidence with it. Thus, what a law should embrace involves questions of policy more properly legislative than judicial. 5 Ind. R. 380. “Judge-made law has overrode the legislative department.” Perkins, J., in Spencer v. The State, 5 Ind. R. 46. “ Whether an act is politic, or expedient, or necessary, is not a question with which the Courts have anything to do.” Bepley v. The State, 4 Ind. R. 264. And it is the principle running through all our reports. If there be no constitutional objection to a statute, it is as absolute under our system of government as in any system. 1 Kent, Lecture 20.
*530On the other side, the learning and diligence of counsel have failed to produce a standard authority, or even any decided case, in which Courts have assumed to declare a statute which did not conflict with the constitution, void, because, to the judicial mind, it appeared to be against public policy or private right.
This Court has, therefore, no duties outside of the constitution ; and surely none of a legislative character conflicting with the express letter of that instrument. Courts are not to array their own reason against that of the legislature. Smith’s Comm. 287. We can not declare an act void because it conflicts with our opinion of policy, expediency or justice. This was said by Mr. Justice Baldwin, of the Supreme Court of the United States, in Bennett v. Bull, 1 Baldwin 74. So, also, Calder v. Bull, 3 Dallas R. 386.—1 Kent 408.
If we had the power to look into the reasons and justice of a liquor law, where would the principle end ? We might look into the justice of a tax law, or any other enactment; and thus place the representatives of the people at the feet of the judiciary. “ History informs us that the arbitrary discretion of a judge is the law of a tyrant, and warns us that it may be so again.” 5 Ind. R. 46.
That the people of the United States have such entire confidence in their Courts, has often been remarked to our credit by foreign travelers. Be Tocqueville, c. 6. This sentiment, so generally cherished, imposes upon that department reciprocal obligations. The judiciary can only retain the public confidence by the means which acquired it—the independence of its action and the exalted purity of its motives.
But when the judiciary enters the lists to contest questions of necessity and expediency with the legislature, it sinks in the public estimation into a detested council of revision, such as once held sway in the polity of a sister state. Kent, Lecture 20.—Ford’s History of Illinois.
The history and legislation of the times, particularly what was the state of the question at the adoption of the constitution, may be of some importance. Preston v. *531Browder, 1 Wheat. R. 115.—Rhode Island v. Massachusetts, 12 Peters R. 657.
It may be premised, that most of the colonies (Virginia as early as March, 1660,) enacted laws “ to prevent disorders and riots in places where drink was retailed.” Since the revolution, it is believed every state in the confederacy has passed laws more or less stringent in relation to the retail of spirituous liquors. At the present moment, the liquor traffic, its evils and remedies, is warmly agitated in many of the states.
The history of the territorial and state legislation of Indiana shows that she has invariably held a stern hand over that traffic. Every revision of her statutes, and almost every session of the general assembly, establishes a settled policy in this respect. It would be cumbrous to make quotations and references in point.
It need only be suggested to those familiar with the history of legislation, that she has long ago adopted a qualified prohibitory policy in relation to certain classes of her people. Of this character are the several statutes forbidding any person, under heavy penalties, to sell or give any spirituous liquors to minors, inebriates, or Indians. In all these enactments, her right to resort to the policy of qualified prohibition is fully vindicated. These are not all contained in one act—the vagary of a single session. They are numerous, repeated, varied and amended. Such legislation assumes the policy which it implies to be correct and settled.
The pertinence of this part of legislative history, so far as it goes to the question in hand, will be generally conceded.
It is not, perhaps, so generally known, that the principle of prohibition is not a new feature in our liquor laws. It has been repeatedly adopted before, both incidentally and directly.
The prohibitory policy was incidentally or contingently adopted in 1832; though there may have been earlier instances. The proviso to the fifth section of the act of February, 1832, puts it in the power of a majority of the *532freeholders of each township to defeat an application for license by remonstrance. Acts of 1832, p. 261. Thus were the inalienable rights of the people of the township invaded; the power to buy and sell liquor in every township in the state where a majority remonstrated was taken away. But this Court did not declare the law void.
By an act to license groceries in the counties of Carroll and Cass, it was left to the voters of the respective townships whether the retail of liquor should be licensed or prohibited. Gen. Laws of 1842, p. 156. The provisions of this act were subsequently extended to Clark county, with an amending section. Laws of 1844-5, p. 103. In 1847 this law was made general, with the exception of two counties. Acts of 1847, pp. 46-7. In the following year, that qualified or indirect prohibitory policy was reviewed, and of course approved, by amending the act, giving greater efficiency. Laws of 1848, p. 15. It was again amended in 1849, as to the counties of Decatur, Ripley, Jefferson, Dearborn, Henry, Ohio, Union, Parke, &c., making it still more stringent. Acts of 1849, p. 83. At the same session, there was a separate act of a similar character for Wabash county. Id., p. 84.
The same qualified prohibitory policy, by means of the township vote, was attempted under the new constitution, in the liquor act of 1853. It was declared unconstitutional for other reasons not going to the inhibitory feature. In commenting on that act, the Court say, “ Had the people of each township voted ‘ no license,’ there would have been no operative license law in the state for one year from April, 1853. And had the people so voted every year for all time to come, no license could ever have issued.” Maize v. The State, 4 Ind. R. 342. The prohibition to retail less than a gallon was complete. During all this period, from 1832 to 1853, there was a standing prohibition and penalty against selling without license. So that the prohibitory policy as to retail was distinctly evolved.
There was a third series of legislative acts, directly adopting the prohibitory principle. Thus, in January, 1849, a special act was passed, prohibiting the sale of *533any spirituous liquors in Dalton township, Wayne county, for any other than scientific or medicinal purposes. Acts of 1849, p. 82. At the same session a similar act was passed, prohibiting the barter or sale of spirituous liquors in Posey township, Rush county, except for medicinal or mechanical purposes. Id., 85. The following year, contemporaneously with the convention, an act was passed for Plainfield, Hendricks county, prohibiting the sale of any intoxicating liquor whatever within two miles of the post-office, except for medicinal, scientific or sacramental purposes. Acts of 1850, p. 123.
Thus was the prohibitory principle adopted partially in regard to certain classes, as Indians; contingently all over the state by the township vote; and in certain localities directly.
To these may be added the power conferred by charter on towns and cities to inhibit or license the sale at their pleasure; thus clearly assuming that the state had herself the power which she granted to the municipalities.
Thus has the state, by a series of enactments, at different times and in various ways, asserted the principle of prohibition whenever she deemed it expedient.
During all this period, the action of the several departments of the government was concurrent and harmonious. The Courts expounded and indorsed these prohibitory laws; the executive officers enforced them. The State v. Stucky, 2 Blackf. 289.— The State v. Jackson, 4 id. 49.— The State v. Watson, 5 id. 155.—The State v. Graeter, 6 id. 105.—The State v. Freeman, id. 248.—The State v. Shearer, 8 id. 262.—Blodget v. The State, 3 Ind. R. 403.— The State v. Clark, id. 451.—Farrell v. The State, id. 573.
Such was the state of the question when the convention which framed the present constitution assembled.
There was a proposition presented to that body, to the effect that the state should divest herself of all complicity with the traffic in liquor as a source of revenue. That was the whole extent of the proposition, and it was voted down. What was the effect of that vote ? To leave the question where it found it. And perhaps it was thus dis*534posed of, like many other propositions, because deemed to ]3e more properly legislative than institutional.
While the convention was engaged in limiting such local legislation as these liquor acts were, they can not be supposed to have overlooked the prohibitory principle. Had that feature been obnoxious, it would have been modified. But while checking these local laws, they silently acquiesced in their principles. This is a weighty consideration as part of the history of the period. In accordance with the doctrine of this Court in 5 Blackf. 384, we can not doubt but that the convention intended to leave the liquor traffic—the prohibitory principle included—precisely where it found it, in the discretion of the legislature.
So that the state of the question when the present constitution was adopted, favors the prohibition.
Some confusion has arisen from a play on the words “regulate” and “prohibit.” It is conceded that the legislature has the power to regulate. And why ? The unregulated traffic is found to be pregnant with social evils, injurious to the health and morals of the community. In brief, it is notoriously inconsistent with that “peace, safety and well-being” of the body politic, which the constitution was ordained to promote.
Hence the right of the legislature to interfere in any manner. Upon any other hypothesis, the attempt to regulate would be as much a piece of legislative despotism as the attempt to prohibit. Even prohibition itself is but one kind of regulation. The regulation, whether mild or extreme, partial or entire, is the same in principle. The difference is not in the kind of interference, but in the degree. The act which prohibits the sale of intoxicating liquor by a less quantity than a quart, a gallon, or twenty gallons at a time, is courteously called a regulating law. But it is too plain for argument, that such a law is inconsistent with that despotic right of property which is claimed to be secured by the constitution. Is it the right of the citizen to buy and sell and enjoy property as he pleases? If so, a gallon law is an invasion of that right. *535So is every act limiting the quantity. No matter at what point you fix the limit, at two or ten gallons, or by what name you call it, regulation or prohibition, they are all in principle the same. Below the fixed point, they are all in their nature prohibitory.
So long as those who advocate the liquor traffic deny the right of the legislature to interfere in any degree, they are consistent. On abstract principles, that species of property is as sacred as any other. The owners of liquor list it for taxation, and pay taxes upon it like other property. The reciprocal duty of government is to protect. Upon what principles are liquor dealers to be called upon to procure a license at extravagant rates, and file a bond, &c., to entitle them to vend and deal in liquors? And why, even after that, should they be restrained as to quantity, time and place? Abstractly, free traffic in liquor is as much a right of private property as free traffic in flour, or corn, or merchandise. In the abstract, any duty, or tax, or burden imposed upon it, is utterly indefensible. Orr v. Baker, 4 Ind. R. 86. But if it is admitted that, to conserve “the peace, safety and well-being” of society, the traffic may be regulated and restrained in any degree, the whole point of controversy is conceded. After that concession, it will require a very nice and discriminating casuist to show that, to conserve the public “peace, safety and well-being,” the legislature may not, if need be, prohibit the traffic altogether.
In the abstract, all government is tyranny—all political discretion despotism—all interference to regulate the enjoyment of private property an invasion of right. Take a single example. Two men sit down to play cards for money. The room, the cards, the money, are all their own private property. By what right does the legislature call this amusement by the rough name of “gambling,” and punish it accordingly ? The only possible reason is, that this species of amusement is found to be prejudicial to the public morals.
A law to prohibit the sale of bread, would stand abstractly on the same principle as a law to prohibit the sale *5360f liquor. Wherein do they differ ? In the consequences of their use. The glutton is himself the chief sufferer. The tendency of the inebriate is, to disturb the peace and violate the decencies of society. In the end, the public purse is taxed either to support him as a pauper, or punish, him as a felon.
Hence the life of a law is the reason or necessity for its enactment. While the prohibition of the sale of bread would be legislative despotism, the like prohibition in regard to liquor, might be a measure of profound and necessary policy.
For my own part, I could not readily conceive what government was made for, if it had not the power, both to punish crime, and suppress, if it were deemed necessary to the public good, the means, instruments and incentives to crime. Self-preservation is the first law of governmental as well as individual being. It is justly said by the Supreme Court of Illinois, that a government which did not possess the power to protect itself against such evils as flow from the liquor traffic, would be scarcely worth preserving. Jones v. The People, 14 Ill. R. 196. So Woodbury, J., in the liquor cases, 5 Howard 504. It is said that these doctrines in Howard are not applicable. They were laid down as first principles, involved in the very idea of a sovereign state. They are applicable to all sovereignties. They were self-evident, independent of these cases, and needed not the authority even of judge Woodbury's great name.
Admit that the vendors of liquor do not force men to drink, the legislature may plausibly urge that they provide the means and spread the allurements which lead thousands to ruin, and that therefore they come within the proper province of legislative cognizance.
The great objection urged to every law which has any semblance of a moral or sumptuary character, is this: that if it is an immoral or indecent habit, to which a great majority are addicted, the law will be nugatory. It can not be enforced. If it is a habit which only obtains with a minority, public sentiment will ordinarily suppress it *537without the aid of legislation. Hence it is urged that the liquor traffic should be left to public opinion to eradicate its evils.
This is an admirable theory. While pm-sued in this state conjointly with mild legislation, it worked wonders. But it is found that there are persons so lost to all sense of right, and propriety, and self-respect, as to be utterly callous of public opinion. They know no public opinion but that of the circle of vicious indulgence in which they move. Hence the necessity of legislation on that and other evils which, at a superficial glance, would seem to belong more appropriately to the department of private morals. Of this character are many of the sections under the head of misdemeanors in the revised laws. In these and numerous other instances, it is found that actual experience creates exigencies not anticipated by mere legislative speculation.
The policy of severe laws we are not permitted to discuss. That lies between the people and those to whom they have delegated the temporary power of maldng laws. 4 Ind. R. 264. Whether temperance is not better promoted by the influence of education and morality than by stringent enactments, is a subject worthy of grave consideration. But we may be permitted to remark, that a sudden change of policy, or the adoption of vindictive measures, is ever to be deprecated. “They provoke resistance, when they were designed to enforce obedience.” It may be observed generally of all the liquor laws of Indiana for the last twenty years, that if they failed to repress the evils of the liquor traffic, it was not the fault of the law. That was sufficiently stringent and vigorous. The fault was in the execution. These milder laws have always been, in particular localities, and more or less everywhere, a dead letter. Statutes can not execute themselves. In proportion to their severity, they shock the moral sense of the people and paralyze the executive arm. When even mild laws are not executed, it is extravagant to hope better things from odious enactments.
It is said that the opinion of this Court should be placed *538on such grounds as would withdraw the liquor question from the arena of politics. But this is clearly impossible. It will continue to agitate the public until it is definitely settled at the ballot-box. The opinion of a Court can no more make men think alike on that, or any other subject, than it can make them look alike. It was one of the despotic vagaries of Henry the eighth, to have an act of parliament passed to abolish all diversity of opinion. Act of April, 1539.
With far more truth has it been said, that our opinion, whatever it might be, should defend itself. Exactly so. That will be its fate. It should be such, as after the excitement of the hour has passed away, and the pressure of the moment has been lifted from us, our own “sober second thought,” as well as that of the public, will approve.
It is proper to add, what was announced in the outset, that the details of the law are not before us; and this opinion is not to be regarded as covering the search and seizure clause. It is confined wholly to the question before us—the power of the legislature to restrain the sale and use.
I am, therefore, of opinion, that it was competent for the legislature to restrain the use and sale of intoxicating liquor; but that so much of the act as relates to the manufacture and agency are unconstitutional and void; but I do not put it on the ground assumed by judge Perkins.
What the practical effect of this ruling will be, is not for me to say. The intent with which the liquor was sold in each particular case, whether as incident to the right to manufacture or otherwise, will always be a question for the jury. It presents similar difficulties to those in Brown v. The State of Maryland, 12 Wheat. R. 419. The Courts will have to settle it on analogous principles.
The case for manufacturing should be reversed, and Beebe discharged on the merits.
The conviction for selling is right; but the record and return being defective, should for that reason only be reversed.
*539Gookins, J.The appellant sued out a writ of habeas corpus, upon the allegation of an unlawful imprisonment by the sheriff of Marion county, who returned to the writ that the petitioner was imprisoned by virtue of two commitments issued by the mayor of Indimapolis, one upon a conviction for manufacturing, and the other on a conviction for selling, intoxicating liquors, in violation of the act of February 16, 1855, entitled “an act to prohibit the manufacture and sale of spirituous and intoxicating liquors, except in cases therein named, and to repeal all former acts inconsistent therewith, and for the suppression of intemperance.” On this return the petitioner moved to be discharged from custody. The motion was overruled, and the petitioner remanded; from which decision he appeals to this Court.
The ground assumed for the reversal of this judgment is, that the act above mentioned is unconstitutional and void.
The discussion of the case has taken a very wide range, involving an inquiry into all the provisions of the act. It will be necessary, however, in deciding upon the validity of the commitments, to examine only those portions of it to which they relate.
The first position assumed is, that the act in question transcends the power of the legislature. The argument assumes that the constitution is a grant of powers, rather than a limitation; and that the act is not authorized by any power in that instrument expressed or implied; but that it is expressly forbidden. Before pursuing the argument, it will be proper to refer to those portions of the act which are supposed to be liable to these objections.
The first section prohibits the manufacture or sale of any spirituous or intoxicating liquors, except as in the act provided. The exceptions are wine or cider, made from fruit grown in this state by the manufacturer, (which may be sold in quantities not less than three gallons); liquors imported under the laws of the United States, while remaining in the original casks or packages; liquors manufactured under authority from the board of commissioners *540of the several counties, which can be sold only to agents appointed by the board; and liquors sold by such agents, for medicinal, chemical and mechanical uses only, and pure wine for sacramental use. The manufacture, keeping for sale and selling of burning fluids, perfumery, essences, chemicals, dyes, paints, varnishes, cosmetics, solutions of medicinal drugs, medicinal compounds, and any other article, compounded in part of alcohol, or other spirituous liquors, if not adapted to use as a beverage, are also excepted. All other manufacturing and selling are declared unlawful, for the doing of which certain penalties are affixed; and liquors kept for unlawful sale, accompanied by the actual sale of a portion thereof, and the vessels containing them, are declared nuisances, and liable to be destroyed on being so adjudged in a regular and formal trial, for which the act provides.
It is, perhaps, not very material whether the power of legislation, contained in the constitution, is to be regarded as a grant or as a limitation. The language is so general that it is impossible to view it in any other light than as a mere designation of the department of the government to which the power of legislation is assigned. It is as follows: “The legislative authority of this state shall be vested in the general assembly, which shall consist of a senate and house of representatives.” Art. 4, sec. 1. Language could not be more general; and, admitting it to be a grant, it includes all proper subjects of legislation. Other parts of the instrument contain certain restrictions; and there are also a few subjects of legislation specifically mentioned, mostly referring to the state organization. If those specifications are to be regarded in the light of a power of attorney, which, by authorizing certain things to be done, implies a negative of all others, the instrument, as a form of government, would be wholly impracticable; and the great body of our laws must fall for the want of a foundation on which to rest. This Court has held the legislative power of the state to be supreme, except where restrictions are imposed. Beauchamp v. The State, 6 Blackf. 299.— Doe v. Douglass, 8 id. 10.
*541An argument to prove that the state is sovereign would ordinarily be regarded as quite superfluous; but when objections so radical are presented, to prove that she is not, a recurrence to the principles on which the claim rests may not be improper. The declaration of independence asserts the then colonies to be free and independent states, with full power to do all acts and things which independent states may of right do. The confederation of July 9,1778, art. 2, declares that each state retains its sovereignty, freedom and independence, and every power, jurisdiction and right not thereby expressly delegated to the United States in congress assembled. This provision was embodied substantially in the constitution of the United States, as follows : “ The powers not delegated to the United States by the constitution, nor prohibited to the states, are reserved to the states respectively, or to the people.” Amendments, art. 10.
Principles thus clearly announced need no comment. The rights declared have not their origin in the instruments .referred to. In the American governments, at least, they exist independently of any such declarations. The state is sovereign, with general powers to do all such things as are necessary and proper to secure the common good.
But the act is said to contravene those provisions of the bill of rights, which secure the people in the right of property, and the pursuit of happiness; and this is perhaps the most important inquiry involved in the case. Preliminary to the examination of this objection, a reference to the general scope and object of the statute seems necessary. It has been assumed in argument, that by this act the state has undertaken to engage in trade and manufacture, to create a monopoly in a particular branch of business, and take the profits to herself, which it is said she has no power to do. Without stopping to inquire whether she has or has not this power, if this construction of the act could be maintained, it would be no ground for the reversal of the judgment. The prohibitory part of the act would still be in force, which Beebe violated, and that *542the state has no power to manufacture and sell, does not give him the right. But this assumption is based upon a misapprehension of the objects of the statute, as declared in the title and shown by its provisions. It proceeds upon the ground that intemperance is an evil which ought to be prevented; that a proper mode of attaining that end will be to prohibit the manufacture and sale of intoxicating liquors, to be used as beverages. It concedes, however, that there are certain uses, for which they are necessary, or at least convenient, mechanical, chemical, medicinal, &c., and it endeavors to supply that necessity or convenience, through certain agents appointed for the purpose, who have no interest in and derive no profit from the business.
We come now to the main inquiry, can commerce in intoxicating beverages be outlawed ? And, as necessarily resulting from this inquiry, to what department of the government does it appertain to declare whether they may or may not be ?
That drunkenness is an evil, both to the individual and to the state, will probably be admitted. That its legitimate consequences are disease and destruction to the mind and body, will also be granted. That it produces from four-fifths to nine-tenths of all the crime committed, is the united testimony of those judges, prison-keepers, sheriffs, and others engaged in the administration of the criminal law, who have investigated the subject. That taxation to meet the expenses of pauperism and crime, falls upon and is borne by the people, follows as a matter of course. That its tendency is to destroy the peace, safety and well-being of the people, to secure which the first article in the bill of rights declares all free governments are instituted, is too obvious to be denied. That these evils result principally from commerce in the prohibited articles, is alleged.
The legislature have assumed in their enactment that these evils exist. Does it devolve upon this Court to declare that they do not? Suppose we enter upon the inquiry, whether so large a proportion of the pauperism and crime as is alleged does in fact result from drunkenness; or whether so large a proportion of these evils does or does *543not result from commerce in liquors, who is to try these issues ? To what department of the government has the constitution assigned the power of deciding questions like these? Can it b"e legally and constitutionally assumed that this Court knows more of the effects of this commerce, whether good or evil, than the legislature? The answer seems to be inevitable. The first section of the bill of rights declares, as has been said, that governments are instituted for the peace, safety and well-being of the people. To provide for these, no power is given to this Court; it is given to the legislature. An attempt to exercise such a power by this Court,' would be itself unconstitutional, and an infringement of that instrument subversive of constitutional government. The question is not whether the law is politic or impolitic. It can be retained, repealed, or amended, as the people, through their representatives, shall require. It is simply a question of power, and one that is vital to the constitutional rights of the people. And this power is sought to be exercised upon a mere question of governmental policy. The duty clearly devolving upon this Court, of comparing a statute with the constitution, and of declaring it void because of a conflict between the two instruments, is itself a delicate one, which should always be approached with great caution, and with due respect to the legislature. But we are asked to go beyond—to overleap our own constitutional barrier, and invade their province. When we do this, what is the consequence? There is no common arbiter, because we are the tribunal of last resort. The ballot-box is powerless, for that is but traveling in a circle. Even the reforming of the constitution can not supply a remedy, for rights of the nature claimed for these which are said to be invaded, natural, inherent and inalienable, can not be relinquished to or taken away by government. Revolution and anarchy seem to be the legitimate consequences of an unauthorized assumption of power on the part of this Court. I can not consent to take that step.
But it is said that the first and eleventh sections of the bill of rights are infringed. They are as follows:
*544“Sec. 1. We declare, that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness; that all power is inherent in the people; and that all free governments are, and of right ought to be, founded on their authority, and instituted for their peace, safety, and well-being. For the advancement of these ends, the people have, at all times, an indefeasible right to alter and reform their government.
# * * * *• * *
“ Sec. 11. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.”
The record before us presents no question of search or seizure, and no objection is taken to the commitments for matters of form; but it is said that intoxicating liquors are property; and that the manufacture and sale of them can not be prohibited by law; that they can not be commercially outlawed and declared nuisances.
Here again arises the question already considered: who is to judge whether they are or are not, in the manner in which they are generally used in commerce, such property as the constitution protects? It will probably be conceded that some species of property are not thus protected. A nuisance is defined to be “anything that worketh hurt, inconvenience or damage to the public.” Disorderly inns, alehouses, gaming-houses, stages for rope-dancers, mismanaged theatres, &c., are nuisances, because their tendency is to encourage idleness, to corrupt the public morals, &c. The State v. Bertheol, 6 Blackf. 474.—3 Blk. Comm. 215.—5 Bac. Ab. 147.—The State v. Mullikin, 8 Blackf. 260.—Bepley v. The State, 4 Ind. R. 264. In the latter case, the evidence tended to prove that Bepley, on a single occasion, sold liquor by a less quantity than a gallon, and suffered it to be drank in his house; and it appeared that he had bottles of different kinds of liquor *545usual in retail establishments. It was held, that a jury-might convict of nuisance on that evidence. The prosecution was based upon the 17th section of the act of 1853, p. 89, which declares all places or houses wherein spirituous liquors shall be sold or bartered without license, in less quantity than one gallon, or suffered or allowed to be drunk in or about such place, to be common and public nuisances.. Stuart, J., in delivering the opinion of the Court, says the 17th section is not liable to any constitutional objection; that it is competent for the legislature to declare any practice deemed injurious to the public a nuisance, and to punish it accordingly; and that with the policy or expediency of the measure the Courts have nothing to do. Language could not well be more explicit, nor its application to the point now in judgment more direct. It is not a dictum,, but a decision bearing directly upon the question before us. This view of the subject is fully sustained by a decision of the Supreme Court of Massachusetts, in Fisher v. McGirr, reported in the second vol. Am. Law Leg. 460. Shaw, C. J., in noticing a similar objection to a similar law, said: “ If spirituous liquor is rightfully taken at all, it is on the ground that it is illegally kept; that being so kept, it is noxious to the public, and de facto a nuisance; and when it is adjudged forfeited, it is because it is so noxious, and declared to be such by law, the owner’s right of property is divested by the judgment, and he can have no claim to compensation.” And again, he says: “The theory of this branch of the law [the abatement of nuisances] seems to be this: That the property of which noxious and injurious use is made, shall be seized and confiscated, because, either it is so unlawfully used by the owner, or person having the power of disposal, or by some person with whom he has placed and intrusted it, and who intends to make a noxious and injurious use of it, of which the public have a right to complain, and from which they have a right to be relieved. Therefore, as well to abate the nuisance as to punish the owner, the property may justly be declared forfeited, and *546either sold for the public benefit or destroyed, as the circumstances of the case may require, or the wisdom of the legislature may direct.”
We have had statutes in this state, before and since its organization, extending as far back at least as 1807, maldng the traffic in intoxicating liquors, under certain circumstances, unlawful, and declaring places where they were sold nuisances. And we have had numerous enactments absolutely and entirely prohibiting sales to any person in certain districts of the state, sometimes depending on the vote of the people of a township, town, or city, and sometimes without such vote, and this Court has sustained numerous convictions for the violation of such laws. Gambling apparatus, obscene books, &c., are subjects of traffic, as much so as liquors, and yet the manufacture of and commerce in them have been outlawed. R. S. 1843, p. 985, s. 122.—2 R. S. 1852, p. 441, ss. 52, 53. No copyright can exist, consistently with principles of public policy, in any work of a clearly irreligious, immoral, libelous, or obscene description. Story’s Eq. Jur., s. 936, et seq. It may be stated as a general principle, clearly deduced from an unbroken current of authorities, that property which has become a nuisance is placed beyond the pale of the law’s protection; that it may lawfully be destroyed by those who are injured by it. Wetmore v. Tracy, 14 Wend. 250.— Gates v. Blancoe, 2 Dana 158.—Ellis v. The State, 7 Blackf. 534.—Meeker v. Van Rensselaer, 15 Wend. 397.— Bemis v. Clark, 11 Pick. 452.—Baker v. Boston, 12 Pick, 184.— Crosby v. Warren, 1 Rich. 385.— The State v. Doon, 1 R. M. Charlt. (Ga.) 1.—The State of Pennsylvania v. The Wheeling Bridge Co., 13 Howard R. 518. Probably no case was ever more elaborately argued than the one last quoted. The interests of the two great states of Pennsylvania and Virginia were involved, as well as property to a very large amount; but these considerations, weighty as they were, were not sufficient to save the immense and costly structure from an order for its demolition, and the Court said that if the structure be declared a nuisance, there is no room for a calculation and comparison between *547the injuries and benefits which it produces. This was certainly property.
There are other instances of property being commercially outlawed. The abolition of slavery in the territory northwest of the Ohio river, by the ordinance of 1787 and the constitution of 1816, is one. When that ordinance was adopted, slaves were held at Vincennes and Kaskaskia; and it was held by this Court, in the case of The State v. Lasselle, 1 Blackf. 60, that there was no doubt of the power of the legislature to enact a statute of emancipation, nor of the binding force and efficacy of the law when enacted. It is said that large sums are invested in distilleries in this state. Large as the amount may be, it is probably small in comparison to the amount that was invested in the slave trade, when it was abolished and declared piracy. The cases of seizure and confiscation of property engaged in smuggling, are too numerous and familiar to require particular reference to them. It has been suggested that the right to hold slaves is not of common law origin, from which it is inferred that they form an exception to other property. There is no difference between a vested right in property by the common law and by statute. One is as sacred as the other.
Now, as the legislature has declared the manufacture of and traffic in intoxicating beverages unlawful, and such as is kept for unlawful sale, and a sale in fact of some portion thereof, a nuisance, the question arises, has this Court the power to declare the enactment invalid ? Does this Court judicially know that commerce in intoxicating beverages does not work hurt or damage to the public ? that it is not injurious to the public morals or to the public health? and that it does not produce idleness, vagrancy and crime? Nay more, as this Court can not declare an act of the legislature invalid, unless its unconstitutionality is so clear as to admit of no doubt, (The State v. Cooper, 5 Blackf. 258; Beauchamp v. The State, 6 id. 299,) do we know, so much better than the legislature, that such effects do not flow from such a cause, as that we can declare beyond a doubt that they are wrong in their enactment ? *548Nothing less than this will authorize us so to declare. Such a conclusion involves an absurdity no less than that this Court knows that to be false which the rest of mankind know to be true.
It has been urged that the act is a sumptuary law; that it interferes with the abstract rights of individuals, in the pursuit of happiness, which is guaranteed by the bill of rights. The object of a sumptuary law is to restrain and limit the expenses of individuals. The act attempts nothing of the kind, nor is there any provision to prevent a person from drinking whatever he can get. It is commerce that is prohibited. The “pursuit of happiness” is a vague and indefinite term, which can have no relation to relative rights or duties. Allowing what is claimed for it, there would be an end of the criminal code. On a motion to quash an indictment for bigamy, for instance, this claim of abstract rights would receive little consideration. It is the common pretence of communists, anti-renters, and other outlaws, that society has invaded their abstract and inalienable rights; but until society is revolutionized and instituted upon a different basis, these claims will be disallowed.
We have prohibited marriages between whites and blacks; 1 R. S. 1852, p. 361, s. 2; and have made such marriages felony; 2 id., p. 422, s. 47. Personally considered, such a marriage would be a mere matter of taste; but the state deems the product of such marriages, and of commerce in liquors, an undesirable class of persons, and will yield to no clamor in favor of unalienable rights which shall override the public good.
Much has been said in argument of a distinction between the prohibition and the regulation of a traffic. The latter, it is admitted, may be done, while power to do the former is denied. The laws of this state have always absolutely prohibited the sale of liquors to minors, drunken persons, Indians, &c. R. S. 1843, p. 980, ss. 95, 96.—2 R. S. 1852, p. 435, s. 26. This, it is said, is but a regulation, because it prohibits sales to certain persons only, while if sales can be made to no persons, it amounts to a prohibition. But *549it must be remembered that we are considering the doctrine of unalienable rights, and while this distinction has great respect to the rights of the vender, it pays none at all to those of the buyer. It claims that the vender must, at all events, have the privilege of selling; but that some may be deprived of the privilege of purchasing. As a matter of fact, it can not be denied that the inebriate, incipient or confirmed, needs protection as much as the actually drunken, the minor or the Indian; but all such considerations are necessarily disallowed. This same distinction between regulation and prohibition has also been supposed to apply to the quantity sold. Retailing, it is assumed, to the persons mentioned, may be prohibited, while the sale of large quantities can not be. It is difficult to see how the choice of words, between regulation and prohibition, or the quantity bartered, can have so great an influence upon a man’s inalienable rights—rights which he can not relinquish if he would. It is difficult to see how, consistently with these rights, he may be absolutely prevented from buying, under a mere regulation, or how he can have an inalienable right to buy a large, but no right at all to buy a small quantity.
Again, it has been said that the admitted evils flowing from commerce in liquors may be regulated by imposing a tax for the license to sell; and that, as the taxing power is unlimited, the tax may be so high as to amount, not in theory but in practice, to a prohibition. Waiving the question whether, in a well-regulated government, crime or its producing cause should be made a subject of revenue, in the form of an indulgence, it is not easy to see upon what principle the abstract and inherent rights of men may be invaded indirectly, when they can not be directly. Government is not mere theory; it is eminently practical, and useful only as it is practical and substantial. To deny men their rights, in plain terms, has, at least, the merit of open straightforwardness. If that can not be done, a false pretence of raising a revenue, is not a means that will sanctify the end.
From this view of the case, it follows, that there is no middle ground on this question of power, and the conclu*550sion is irresistible, that if the right be of the character supposed, any regulation which interdicts the sale to any person, or class of persons, in any quantity, is void as against natural right, and that all our previous legislation, for fifty years, in which tins has been done, was void. Our laws heretofore have permitted sales to some persons, and prohibited them to others. The present enactment does the same, and the only difference is that the prohibition is extended beyond the former limits.
But if the power to regulate be admitted, that of prohibition follows. Chancellor Kent treats it as a settled question, that the power to regulate commerce contained in the constitution of the United States, includes the power to prohibit it altogether. 1 Kent’s Comm., 2d Ed., 431. On this principle the embargo laws were sustained.
The law is said to operate unequally upon certain classes of citizens. That is no sufficient argument against the legislative power. Human laws, from their inherent imperfection, would always be invalid, if this were a sufficient reason. This point was discussed with great ability, by president Jackson, in the celebrated proclamation of December 10, 1832, an argument which drew from judge Story the high commendation of declaring it among the ablest commentaries ever offered upon the constitution. 2 Story’s Comm. on the Const., s. 1096, note.
A position has been assumed in argument, that the 5th section of the act, which provides for the appointment of agents to vend liquors for purposes deemed lawful, conflicts with the 23d section of the bill of rights, which is as follows:
“The general assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens.”
It is more easy to discover what that section does not mean, than to find any practical operation for it as a principle of government. It may be that some unforeseen event may, in process of time, transpire, which shall call the principle announced in that section into exercise, but the section of the act referred to does not seem destined *551to perform that office. It was correctly argued by the appellant that the agency here provided for was an office. The relation of the agent to the public is similar to that of inspectors of provisions, measurers of wood, weighers of hay and coal, &c. It is quite evident that aE men can not hold these offices or employments, and if they can not, whatever else the 23d section of the biE of rights may mean, it can have no appEcation to the privEeges or immunities there mentioned.
Another objection taken to the act is, that it takes away the right of trial by jury. That question does not arise in this record. This is an attack upon the judgment of the mayor coEateraEy. The question suggested could be raised only in a case in which a jury, when demanded, had been refused. But there is no doubt that, if the statute does take away that right, it is, to that extent, void. There is, however, no Court authorized to take cognizance of any offence arising under the law, that is not provided with a jury; and such being the case, the constitutional right of the accused to be tried by jury necessarily foEows. It would require an express provision denying that right to take it away. Nothing of the kind appears in the act; on the contrary, the trial by jury is in express terms recognized in most if not aE the eases which can arise under it. There are but few of our acts which provide in express terms for trial by jury. In those which relate to the punishment of crimes and misdemeanors, no mention is made of trial by jury, and if this objection is well taken, there has never been a valid conviction under them. The consequence would be that aE judges, and other officers concerned in the administration of justice, in every conviction of and execution for murder, and the enforcing of fines and imprisonments, were trespassers. This wiE scarcely be insisted upon.
Another objection taken to the act is, that it confficts with the 19th section of the 4th article of the constitution, which is as foEows:
“Every act shaE embrace but one subject and matters properly connected therewith; which subject shaE be ex*552pressed in the title. But if any subject shall be embraced in an act, which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title.”
The objections more specifically stated are, that the act embraces more than one subject, and matters properly connected therewith; and that those parts of the act which are upon subjects improperly embodied in it, and not mentioned in the title, are to be rejected.
If this objection prevails, the entire act is nugatory. Nothing is said in the title about penalties, and a law of this kind without a penalty is of no force; none could have been assessed against Beebe, and he should have been discharged. Other portions of the act provide for the appointment of agents to manufacture and sell, which do not necessarily require consideration in this case; but the argument has been pressed upon us, and while on the subject, it may be proper to notice them.
The general subject of the act has already been stated to be the suppression of intemperance; the prohibition of the manufacture and sale of liquors, except in certain cases deemed beneficial, being the means proposed for attaining that end. If it had no title, the context would show this to be the subject. The constitution does not require that the “matters properly connected with” the subject shall be mentioned in the title. Partial prohibition being the principal means, that, of course, properly appertained to the subject. Exceptions to the prohibition having been determined upon as a part of the enactment, the means of carrying them into effect were not only proper but indispensable. This includes the appointment of agents, the prescribing of their duties, &c. We have already seen that penalties were necessary to give the act any force. These, then, are all matters properly connected with the subject of the act.
It is said that we have a general law providing for the punishment of misdemeanors, and that the penalties provided for in this act should have been incorporated into that act by way of amendment, and that if placed else*553where they are void. The fact that the provisions might have been placed there is no reason why they may not be incorporated into a different statute, if applicable to its provisions. Subjects are almost infinitely divisible, and it might with equal propriety be insisted that each separate offence mentioned in the criminal code is a separate subject, as the subject of murder, of larceny, &c., as that the punishment of an offence does not appropriately range under a title whose generic terms, to-wit, the suppression of intemperance, are sufficiently broad to cover it.
A glance at our legislative history will relieve us of any difficulty upon this question. The constitution of 1816 contained no restrictions of this kind. Under it bills were sometimes passed containing matters foreign to each other, by securing a combination of interests, when neither of the measures could have been adopted upon its own merits. Such bills were frequently passed without ever being read in either house except by their titles, which often contained, besides the general subject, the words “and for other purposes,” which were vague enough for any imaginable subject to be classified under them. In this way frauds and impositions were sometimes practised, and there is a notable case shown by the journals, in which a large appropriation of money for the construction of a turnpike was incorporated into a bill for establishing a highway of no public concern, which was not discovered until the bill had passed both houses. To remedy these evils several provisions were inserted in the constitution of 1851, one of which, as we have seen, declares that an act shall contain but one subject and matters properly connected therewith, but provides that, if a foreign subject be introduced, the act, as to that only, shall be void; another is, that every bill shall be read through by sections on its final passage, and that the yeas and nays shall be entered upon the journal.
As the act under examination has a general design to which all its parts have an appropriate relation, it seems clear that it is not liable to this objection. This view is sustained by the uniform action of the legislature, since *554the adoption of the constitution, as will abundantly appear by reference to the various enactments of the present code, a few of which may be noticed.
In the title of the act organizing this Court, nothing is said about the time its terms shall be held, the occupancy of rooms assigned to the judges, the appointment of a chief justice, or the power of the judges to hold Circuit Courts, all of which are contained in the act, and each of which might be regarded either as an independent subject, or as appertaining to some other. The act for the appointment of the sheriff of this Court provides for his fees and compensation, although there is a general law on the subject of fees and salaries. The act organizing ■ Circuit Courts contains subjects quite as incongruous as any in this, among which are the appointment and compensation of judges pro tern., the appointment of elizors, their oath and bond, although we have a general law on the subject of official bonds. The following is the title of a very important act, to-wit: “An act to establish Courts of Common Pleas, and defining the jurisdiction and duties of, and providing compensation for the judges thereof.” Why was not the provision for compensation placed in the act in relation to fees and salaries, if this be a valid objection ? The bill which became that act was reported to the house of representatives by the chairman of the committee on the organization of Courts, who was also a member of the judiciary committee, and it was passed with great deliberation. This objection, if valid, applies to the act for selecting jurors and providing for their compensation, to numerous provisions of the practice act, to the common school law, to the justice’s act, which, besides prescribing their duties generally, provides for their election, duties of the board of election, the filling of vacancies, the giving of bond, jurisdiction and practice, on most or all of which subjects there are other general statutes; and there are various other instances in which jurisdiction is given to them, such as, of tenants holding over, bastardy, &c. The act in relation to marriages (1 R. S. 362, ss. 9,10,11 and 12,) contains the definition of and penalties for three dis*555tinct misdemeanors, besides providing an action in favor of the state to recover another penalty, and compensation for the attorney who prosecutes the suit. -In short, it is difficult to say what of the entire revision would be left, if this objection prevails. The provision of the constitution referred to was never designed to have any such effect. Its object has been stated. To give it the effect claimed for it, would make the instrument wholly impracticable, and the laws passed under it a tissue of absurdities.
But one other objection taken to the act will be noticed. It is said to conflict with the 23d section of the 4th article of the constitution, which declares that laws shall be of uniform operation throughout the state. This conflict is supposed to be found in the 4th, 5th, 6th, 7th and 8th sections of the act, which authorize the appointment of agents to manufacture and vend liquors for purposes declared lawful, specify their qualifications, and prescribe their duties. This part of the act, it is insisted, is invalid, because it gives a discretionary power to the board of commissioners to appoint agents, or not, as they may choose; and as some may and others may not exercise the power, the operation of the law, it is said, will not be uniform. This assumption not only requires uniformity in the operation of the law, but also uniformity in subjects upon which it operates. By the same rule the criminal code will operate unequally, if no crimes shall be committed in some part of the state.
There is another answer to the objection. The power of appointing agents is not discretionary, but the commissioners are bound to exercise it. The 5th section provides that the county commissioners, at any meeting of their board, may appoint, &c. The rule which governs the case is correctly stated in Smith’s Commentaries on Statutes, &c., sec. 599, as follows: “The words ‘shall’ or ‘may’ are to be construed as imperative in all cases where a public body or officers have been clothed by statute with power to do an act which concerns the public interest, or rights of third persons; and, in such cases, the execution of the power, or the doing of the thing required, may be insisted on as a duty, though the phraseology of the statute *556foe permissive merely, and not peremptory.” The language quoted by the commentator is that of Nelson, C. J., in 3 Hill 612, and the other authorities referred to fully sustain the position.
J. Morrison, W. T. Otto, J. W. Chapman, D. Wallace, E. Cobwn and J. S. Hester, for the appellant. H. McDonald, L. Barbour, A. C. Porter, H. C. Newcomb, J. Cobwn and N B. Taylor, for the state.The suggestion that no person may be found willing to accept these appointments, would apply with equal force to executors, administrators, and every other public office and employment in the state.
Those which have been noticed, are the principal objections taken to the law. There are various other provisions found in the details of the act of which the appellant complains, 'but they do not arise in this record. "Whenever they are properly presented, they will doubtless receive due consideration.
I am of the opinion that the judgment of the Court of Common Pleas ought to be affirmed.
Per Curiam.The judgment is reversed, and the prisoner discharged.