McPherson v. State

Hadley, C. J.

On January 26, 1909, an election was held in Hamilton county, under the act of September 26, 1908 (Acts 1908 [s. s.] p. 4), commonly called the county option law, at which election a majority of the votes cast was in favor of prohibiting the sale of intoxicating liquors as a beverage in said county, as contemplated by said act.

Before said election, to wit, on December 8, 1908, the board of commissioners of said county, acting under existing state laws, granted appellant a license to sell such liquors at retail for the term of one year from said date.

Subsequent to ninety days after said., election, to wit, in April, 1909, and within the year of said license, appellant sold one gill of whisky to John Carey, claiming the right to make the sale under his said license, notwithstanding the result of said election. He was convicted for making an unlawful sale, and fined $20 and costs, from which judgment he appeals.

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

Appellant first insists that said act contravenes article 4, §19, of the state Constitution, which provides: ‘ ‘ Every act shall embrace but one subject and matters properly connected therewith, -which subject shall be expressed in the title.” The point urged by appellant is that the subject of the act is prohibition, which is not expressed in' the title.

1. In considering whether a legislative enactment is in conflict with the Constitution, some fundamental principles must be kept in view. Due regard for other departments of the state government must be maintained. The principle that forbids one branch of the state government from encroaching upon the duties and powers of another gives rise to the salutary legal rule which requires us to presume that any act of the legislative or the executive departments is performed in the proper exercise of authority conferred by the Constitution. Confronted by this presumption, he who would strike down an act of the legislature as unauthorized by the fundamental law must make its invalidity appear with such clearness and certainty as to remove all reasonable doubt. Concerning this subject, it was said in the case of State v. Gerhardt (1896), 145 Ind. 439, 451, 33 L. R. A. 313: “An act of the legislature comes to us as the will of the sovereign power. In the first instance the members of that body must be deemed to be the judges of their own constitutional authority. The State’s executive and each member of its General Assembly take an oath to support the Constitution, both federal and state, and as these can only be supported by obeying and enforcing their provisions, we must presume that these duties were discharged by our lawmakers in the passage of the particular act in question, and by the Governor when he officially gave to it his sanction and approval. For these reasons, and others, all presumptions as to its validity must be indulged in its favor, and it is only when made to appear clearly, palpably, and plainly, and in such a manner as to leave no reasonable doubt or hesitation in our minds, that a statute violates some provision of the Constitution that we can consistently declare it void.”

Justice Waite said, in Sinking Fund Cases (1878), 99 U. S. 700, 718, 25 L. Ed. 496: “Every possible presumption is in favor of the validity of the statute, and this continues until the contrary is shown beyond a rational doubt. One branch of the government cannot encroach on the domain of another without danger. The safety of our institutions depends in no small degree on a strict observance of this salutary rule.” See State, ex rel., v. Fox (1902), 158 Ind. 126, 56 L. R. A. 893; Isenhour v. State (1901), 157 Ind. 517, 87 Am. St. 228; Gustavel v. State (1899), 153 Ind. 613. The title of the act in question is as follows:

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

It is agreed that the purpose expressed in the title is better to regulate, restrict and control the liquor traffic. The contention is over the subject contained in the body of the act, which is affirmed by appellant to be unqualified prohibition, and by the Attorney-General to be that which is clearly and accurately expressed in the title, namely, better to regulate, restrict and control the sale of such liquors.

2. It is readily seen that there is a marked difference in the two contentions. To regulate, restrict and control the sale implies that the sale shall go on within the bounds of certain prescribed rules, restrictions and limitations. Sweet v. City of Wabash (1872), 41 Ind. 7; Duckwall v. City of New Albany (1865), 25 Ind. 283; Loeb v. City of Attica (1882), 82 Ind. 175, 42 Am. Rep, 494. Prohibition, as applied to the liquor traffic, implies putting a stop to its sale as a beverage; to end it fully, completely and indefinitely.

3. So, if the purpose of the act in question is to authorize the exercise of unqualified prohibitory power, as usually understood by the term, the act is void because its subject is not expressed in the title. Is the object and purpose of the statute — in other words, its subject — the better and further regulation of the traffic, or the prohibition thereof? Because the enactment contains the words “prohibit,” “prohibited” and “prohibiting” fifteen times, as averred, it is not conclusive that it is a prohibitory statute. In no instance is the word employed to define or qualify the object and purpose of the law, nor does it go further than to qualify some act or procedure. A statute often speaks as plainly by inference and by means of the purpose which .underlies it as in any other manner.

In arriving at the true purpose of the act, it may be useful to glance at the history of such legislation in this State. Prom the organization of the state government to the present, except for a brief period, the sale of intoxicating liquors, under license and some kind of restriction, has been recognized as lawful. The first act under the new Constitution (Acts 1853 p. 87) was entitled: “An act to regulate the retailing of spirituous liquors, and for the suppression of evils arising' therefrom.” It was a township local option law, providing that no license should issue, except upon the consent of a majority of the legal voters expressed upon the ballots at the April election. This act, while the principle pertaining to the effect of a vote was radically different from the statute before us, and while it continued for an indefinite period to prohibit the sale in all counties not voting in favor of license, and regulated and restricted sales under license, so far as appears, was never assailed or claimed to be a prohibitory law.

A licensed seller was fined for sales on Sunday and for keeping a disorderly house; he was required to care for any one made drunk, until he was able to return to his family, and, in default, was liable to aiiother who should do so. It also made the seller liable, on his bond, to the wife, parent or child for all damage from sales of liquor.

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

In 1858 (Acts 1858 p. 40) the prohibitory law of 1855, supra, was unconditionally repealed, and in 1859 (Acts 1859 p. 202) a return was made to the policy of regulation, and an act “to regulate and license” was enacted. The regulation provided in this latter act consisted of penalties for sales on Sunday, on election days, to persons intoxicated, to minors, and for keeping a disorderly house.

Unimportant acts were passed in 1859 and in 1865, and in 1873 (Acts 1873 p. 151) another act, known as the Baxter law, “to regulate the sale of intoxicating liquors,” and repealing all former conflicting laws, was enacted. This provided for ward and township local option, to the effect that a license could be granted only upon a petition signed by the applicant and a majority of the legal voters of the ward or township. It also provided penalties for sales generally denounced in the former statutes, and, in addition thereto, for sales to persons in the habit of getting intoxicated, for sales made on any day between 9 o ’clock p. m. and 6 o ’clock a. m., for sales on any public holiday or election day, for becoming intoxicated, and contained many other radical provisions. The severity and sweep of the Baxter law went beyond what the people were prepared to approve, and having found prohibition inexpedient in 1855, the legislature at its next ensuing session, to wit, in 1875 (Acts 1875 [s. s.] p. 55), repealed the Baxter law, and substituted therefor another act to “regulate and license,” and thus it may be said to have returned a second time to a system of conservative regulation as the most successful in suppressing the evils of intemperance.

The law of 1875, in its amended form, is still in force, and had been the embodiment of our legislative policy with respect to the liquor traffic for thirty years when the act in question was up for consideration. By adopting the title, “To better regulate, restrict and control”—in substance the same as all preceding titles, except that of 1855—it will be presumed that the legislative body intended that the law in question should be administered along the same lines, and with the same object in view, as the laws under similar titles had been previously administered.

This presumption is strengthened by the act of 1895 (Acts 1895 p. 248), known as the Nicholson law, it being an act “to better regulate and restrict the sale,” etc., which, Vihile an original act, is clearly supplemental to and in aid of the act of 1875, and its amendments. The new and additional means of regulation provided by the Nicholson law consist clearly in requiring more publicity and exposure of the selling place, forbidding the loitering about or going into saloons during hours when sales are unlawful, and providing for a denial of a license to any applicant for two years upon the remonstrance of a majority of the legal voters of the ward or township.

In 1905 (Acts 1905 p. 7, §8332 Burns 1908), by the Moore amendment, the remonstrance feature of the Nicholson law was changed so as to allow a general, or blanket, remonstrance against all applicants, to be effective for the space of two years.

The act before us, like the Nicholson law, is plainly supplemental to and in support of the regulative and restrictive spirit of the act of 1875, supra, the only substantial difference in the acts being that the latter supplies a new and additional limitation upon the power of the county commissioners to grant a license. At most, the difference is only a matter of degree. The latter enlarges the acting district, and changes the mode of taking an expression of the voters, and beyond this we are unable to perceive anything of substance different from the Nicholson law, or that tends to support the contention that the subject of the act is prohibition. The title of the Nicholson law, in all material respects like that of the act of 1908, being to “better regulate and restrict,” has been upheld by this court as sanctioned by the constitutional provisions here invoked. State v. Gerhardt, supra; Shea v. City of Muncie (1897), 148 Ind. 14; Cain v. Allen (1907), 168 Ind. 8.

It was said in the case of State v. Gerhardt, supra, p. 459: “The subject is clearly expressed in the title. The latter fully indicates the purpose of the legislation, and informs all persons as to the provisions of the act. The matters embraced in the body .of this statute are details of the method by which the sale of intoxicating liquors is to be ‘better regulated and restricted.’ All of them, it appears to us, are germane to the subject, and appropriately and properly connected therewith. ’ ’

The act before us is one of either regulation or prohibition. It cannot be both, and avoid being double, which no one claims. It is a bundle of provisions, in the enforcement of which every county in the State may retain its saloons and continue the sale of intoxicating liquors as a beverage; and some counties that are now “wet” may become “dry,” and some that are now “dry” may become “wet,” according to the sentiment of the electors, at the end of any period of two years. Shall we call this regulation or prohibition ? Will any one dare to say that if the title had been “An act to prohibit the sale of intoxicating liquors,” it would have been sufficient to make a valid law? A concession that it would not is equivalent to an admission that the controverted title is good.

4. Furthermore, the word “prohibition” is akin to “regulate, restrict and control.” Its use in the body of the act is of little significance. To forbid the sale of liquor by those who have no license, to deny the licensee the right to sell on certain days, between certain hours, in certain places, in certain'quantities, is, to some extent at least, qualified prohibition. It is prevention, interdiction. Such laws, however, are unquestionably regulations and restrictions of the liquor traffic. They operate as a cheek, or restraint, upon the sale, not as an absolute inhibition, and are in the strictest sense regulations. They regulate by prohibiting the sale at certain times, to certain persons, and in certain places. Besides, to say the law “prohibits” the citizen from selling without a license, or that the law “prohibits” the licensed seller from selling on Sunday, is etymologically correct. In fact, the word was employed in this sense by the legislature in framing section four of the Nicholson law (§8327 Burns 1908, Acts 1895 p. 248), which provides that obstructions to the street view shall not be set up in the selling room “during such days and hours when the sales of such liquors are prohibited by law.” So it is not so much the primary meaning of the word as the sense in which it is popularly understood, as applied to the manufacture and sale of spirituous liquors, that must control.

Following are a few definitions of “prohibition” as specifically applied: "Interdiction of the liberty of making and of selling, or giving away, intoxicating liquors for other than medicinal, scientific and religious purposes.” Anderson’s Law Dict. And see Bouvier’s Law Dict. (Rawle’s ed.). “The forbidding by law of the manufacture and sale of alcoholic liquors.” English’s Law Dict. “The forbidding by law of the sale of alcoholic liquors as beverages.” Webster’s Int. Dict. “The forbidding by legislative enactment of the manufacture and sale of alcoholic liquors for use as beverages.” Standard Diet. The term has even a wider sweep than this. A prohibitory law to be classed as such must, at the same instant, in the same way, become effective to interdict the sale of liquors throughout all parts of the jurisdiction of the lawmaking power. Welsh v. State (1890), 126 Ind. 71, 77, 9 L. R. A. 664; Shea v. City of Muncie, supra; State, ex rel., v. Judge, etc. (1888), 50 N. J. L. 585, 15 Atl. 272, 1 L. R. A. 86.

3. It seems absurd, because rationally inconceivable, that under the operation of a general prohibitory statute enacted by the General Assembly sales as a beverage may indefinitely contóme to be lawfully made in many counties of the State. It is also equally incomprehensible how a law may be absolutely prohibitory, and in itself provide the means and terms under which sales may be con-tinned or resumed in any or all counties of the State. We are unable to perceive any distinction between the prohibition which results from remonstrance under former laws, which has uniformly been held to be regulation, and the prohibition arising under the act in question, with the sole exception as to the duration of the term of restriction, depending upon petition and election at the expiration of each biennial period.

We, therefore, conclude that the object and purpose of the act before us is the regulation, and not the prohibition, of the liquor traffic, and that the subject is fairly deducible from the title and not in conflict with article 4, §19, of the Constitution. Isenhour v. State (1901), 157 Ind. 517, 87 Am. St. 228; Gustavel v. State (1899), 153 Ind. 613; Burget v. Merritt (1900), 155 Ind. 143; Clarke v. Darr (1901), 156 Ind. 692; Republic Iron, etc., Co. v. State (1903), 160 Ind. 379, 62 L. R. A. 136; Maule Coal Co. v. Partenheimer (1900), 155 Ind. 100.

The second contention is that the act is in derogation of article 4, §1, of the state Constitution, which provides: ‘ ‘ The legislative authority of the State shall be vested in the General Assembly, which shall consist of a senate and house of representatives,” the point made being that the act, as relating to the vote of the county, is an attempt to confer legislative power on the people.

5. We do not so regard it. Beneath all our laws lies the principle of the greatest good to the greatest number, and the means to this end are generally ascertained by the majority voice, as expressed, through representatives in the General Assembly, in the form of laws. The benefit of laws thus adopted for the public welfare is bestowed upon all the people at the same time and in the same manner, but the right to appropriate and enjoy such benefits is sometimes made to depend on a condition or contingency. It is a matter of common knowledge that conditions are varying, and not always the same in all counties of the State, and particularly is this true as to sumptuary legislation. A law that is acceptable and salutary in some counties may be odious and impolitic in others; impolitic in that odious laws tend to develop in the people resistance of, and disrespect for, all legal restraint. It is safe to say that no law will be stricken down simply because it was passed in deference to public sentiment. We may go farther, and add that it has been abundantly demonstrated that a prohibitory or stringent temperance law cannot be successfully enforced in a community where it is opposed by a majority of the voters. These truths the lawmakers knew, and they had, within the limits of the Constitution, the undoubted right so to shape legislation as seemed to them best calculated to invoke the earnest support of the greatest number of electors.

6. It has always been conceded that the legislature has constitutional authority to pass laws to be exercised upon the happening of a future event or contingency. Statutes providing for the construction of highways, drains, public buildings, railroads, and the like, upon petition and vote of electors, belong to this class.

But everything essential to the completion of the law, and to its inherent, effective force as law among the people, must emanate from the General Assembly and other constitutional authorities. It is, however, unquestionably competent for the legislature to designate a part, or all, of the people of a political subdivision, or district, to make manifest, by signature or vote, a condition or contingency that may or. may not call a law into exercise. It may properly be a part of the legislative scheme. A law for the construction of ditches, and for opening, improving or vacating highways, etc., lies dormant until a specific number of inhabitants invoke its application or enforcement to some proposition for the construction or ábandonment of a ditch or highway.

7. The legislature in this act has not attempted to give the voters power or authority to assist in making the law. It has given them only the power to assist in its execution. In taking a vote, the electors of the county arc not giving effect to the law, or exercising legislative power; they are only participating in the execution or administration of the law. As the contingency for an exercise of authority to construct a court-house, a ditch or a highway may be a certain number of petitioners, so may a majority vote of a county be the contingency to call into activity and operation the prohibitory features of the county option statute. The people by voting for or against prohibition add nothing to the law and take nothing from it. It is the law that authorizes the vote, and the law that declares what the result of the election shall be. All the vote can accomplish is to disclose a local condition, namely, whether it is expedient to prohibit the sale of intoxicating liquors as a beverage in the voting district. The voters have nothing to do even with the expediency of the law. The legislature has rightfully determined that, by providing in the act that sales as a beverage shall not be peremptorily denied in counties wherein a majority of the electors express themselves as favorable to such sales, and that such sales shall be denied in counties where a majority express themselves as favorable to its exclusion. So it is seen that if a majority vote against the sale of liquor, it is the legislature, and not the voters, that declares it shall not be sold. The vote springs from the law, and not the law from the vote. The principle is in perfect accord with our institutions. It has behind it the popular sympathy and support of the people, and a sound public policy.

Many adjudications of this question have been had in the several states of the Union, and while there appears some divergence in the views expressed, the better reason and clear weight of authority are unquestionably in support of the views here expressed. We hold that the act is not repugnant to article 4, §1, of the Constitution. Groesch v. State (1873), 42 Ind. 547; State v. Gerhardt, supra; Boomershine v. Uline (1902), 159 Ind. 500. For instructive cases from other jurisdictions, see Stevens v. State (1900), 61 Ohio St. 957, 56 N. E. 478; Gordon v. State (1889), 46 Ohio St. 607, 23 N. E. 63, 6 L. R. A. 749; State v. Cooke (1877), 24 Minn. 247, 31 Am. Rep. 344; State, ex rel., v. Forkner (1895), 94 Iowa 1, 62 N. W. 772; Locke’s Appeal (1873), 72 Pa. St. 491, 13 Am. Rep. 716: Commonwealth v. Dean (1872), 110 Mass. 357; People v. McBride (1908), 234 Illl 146, 84 N. E. 865; State, ex rel., v. Judge, etc. (1888), 50 N. J. L. 585, 15 Atl. 272, 1 L. R. A. 86; Ex parte Handler (1903), 176 Mo. 383, 75 S. W. 920; Gloversville v. Howell (1877), 70 N. Y. 287; Fouts v. Hood River (1905), 46 Ore. 492, 81 Pac. 370, 1 L. R. A. (N. S.) 483; Thalheimer v. Board, etc. (1908), 11 Ariz. 430, 94 Pac. 1129

8. It is further alleged that the act is in violation of article 1, §25 of the Constitution, which, in substance, declares that no law shall be passed to take effect upon any other authority than that provided in the Constitution, in that said statute is made to take effect in each or any county of the State upon the voluntary, favorable majority vote of the people of such county; and that the act is condemned by article 1, §26, of the Constitution, which provides: ‘ ‘ The operation of the laws shall never be suspended, except by authority of the General Assembly,” the point made on the latter proposition being that the effect of the statute is to empower the electors of a county to suspend the operation of the license act of 1875 (Acts 1875 [s. s.] p. 55) by a majority vote.

To begin with, we concede that the giving of effect to an act of the legislature, and also the suspension of the operation of a statute, involve the exercise of legislative power; hence, cannot be accomplished by any other body or person. But there is no ground for such contention here. The favorable majority vote of a county has nothing to do in giving effect, validity or power to the law. It is the passage of an act by both houses of the General Assembly by a constitutional majority, its verification by the signature of the presiding officer of each house, its approval by the Governor, its publication and delivery to each county of the State, and the Governor’s proclamation thereof, that give to it the force and effect of law. And when these constitutional processes have been observed, eo instante, with the performance of the last act, the legislative proposition becomes fully habilitated and endowed as a law of the State, and exists in full force and effect in every nook and corner of the State. For want of a subject to operate upon, it may rest quiescent for an indefinite period; but it is constantly present in every part of the State, ready to be invoked for the purposes of its enactment.

Hendricks county has never removed, nor attempted to remove its county seat. Does this prove there has been no complete law in the county for the removal of county seats for the seventy-five years of its existence ? Is any one brave enough to contend that a favorable majority vote of the county was all these years necessary to the finishing, by giving effect,- to a removal law ? Is it not more consistent and rational to say that the law was there all the time, complete and in full .force and vigor, but awaiting the favorable majority vote as the contingency, determined, fixed, and written in the law of the legislature, as constituting the basis and terms of removal authority?

So, as in the illustrative case, in the statute before us, the vote provided for in no way affects the inherent force and virtue of the law. It only exhibits a social condition or contingency, that, in the judgment of the General Assembly, makes it expedient to prohibit, or permit, sales at retail under restrictions, as the ease may be, in accordance with the wishes of the majority. The policy of the legislature is sound and-salutary, and it would be unfortunate if the law could not yield its support.

The same reasoning applies to the last point, that a. favorable majority vote of the county suspends the operation of the act of 1875, supra. It is the legislative decree, and not the vote, that suspends said act of 1875. See authorities last cited.

We cannot accept the case of Maize v. State (1853), 4 Ind. 342, and some other early cases following it, as authority in this case. Said ease was based on the act of March 4, 1853 (Acts 1853 p. 87), which provided in section one “that no person shall retail spirituous liquors * * * without the consent of a majority of the legal voters of the proper township who may east their votes for license at the April election,” and giving bond. A license thus voted should continue for one year, and then expire, if not renewed by another majority vote at the next April election. It prohibited the charging or collecting of any license fee. A favorable vote for license in any township made it the duty of‘the county auditor to issue a retail license “to any person” who should file a bond, without any reference to sex or character, or fitness of the applicant to be entrusted with a license. All other laws on the subject of retailing intoxicating liquors previously passed were repealed.

We think the act of 1908 is distinguishable from the ant of 1853, but this is unimportant, as the case of Maize v. State, supra, was clearly discredited, if not in effect overruled, by this court in the case of Groesch v. State, supra, in considering the constitutionality of the Baxter law.

It is said in the case last cited, at page 558: “It may be remarked, however, that there are several cases * * * where legislation similar to the statute of 1853, which was in question in the Maize case, has been held to be constitutional and valid.” But whether the case of Maize v. State, supra, is or is not distinguishable or overruled, we unhesitatingly adhere to the view announced in the case of Groesch v. State, supra, and reaffirmed in the case of State v. Gerhardt (1896), 145 Ind. 439, 33 L. R. A. 313.

We conclude that the act in question is not subject to any of the constitutional objections urged against it, and the judgment is affirmed.

Jordan and Montgomery, JJ., dissent.