صور الصفحة
PDF
النشر الإلكتروني

rogues, idlers, vagabonds, vagrants, pestilence, contagion and gunpowder will not destroy one-tenth of the lives that will the saloon, nor produce, socially, so much moral degradation, suffering, wretchedness and misery, or as much pauperism, vagrancy and crime as the saloon, nor as much pecuniary destitution as the saloon.

Hence, it seems very clear that the inherent character of the saloon and its natural effects surely bring it within the condemnation of the law. If the object of a saloon license be to confer a right that does not exist without the license, as declared by the Supreme Court of Michigan, then it would follow, as surely as the night follows the day, that to grant the license is to bargain away, for the license fee, life, liberty, property and the pursuit of happiness.

If then, there can be any escape from this conclusion, some other subterfuge must be invented and the dispensers of this slow and sure poison are equal to the emergencies of the case and come forward with two means of escape. First-They say that a saloon license is a prohibition, a restriction, a restraint and a regulation of the liquor traffic, imposed upon it by the legislature in the exercise of the police power of the state. Second-Because the saloon is not specifically condemned, that is, by name, in the constitution, it should be held to be constitutional and lawful.

CHAPTER XIV

THE SALOON A LEGALIZED INSTITUTION

"The licensed saloon keeper does not sell liquor by reason of an inalienable right, inherent in citizenship, but because the government has delegated to him the exercise of such rights."

If this expression were original with the writer, some brewery lawyer or subsidized newspaper editor would probably denounce it as the fancied dream of a freak, but it is the declaration of the Supreme Court of South Carolina in State vs. Aiken, 42 S. C. 231. If the statement be correct, it surely follows that the saloon is legalized. Legalize, of course, means to give legal sanction to that which was previously illegal or unlawful.

The Supreme Court of Indiana has five times said: "A saloon license is a mere permit." The Indiana Appellate Court has used the same expression. So has the Court of Appeals of New York, the Supreme Court of Massachusetts and the Supreme Courts of several other states. The Supreme Court of Indiana has also said: "The privilege of keeping a saloon is a derivative right, springing alone from the provisions of the license statute."

In three other cases, speaking of a saloon license, the Supreme Court of Indiana, has said: "It is the license itself, properly procured, that confers the right to retail under the statute, and, until it is issued, no such right is conferred." In two different saloon license cases, the Supreme Court of Ohio has said: "A license is a permission, granted by

some competent authority, to do an act, which, without such permission, would be illegal."

Surely, then, the act of selling liquor would be illegal without a license, and, if so, the license certainly legalizes it. In State vs. Frame, 39 Ohio St. 413, the Supreme Court of Ohio said: "A license is essentially the granting of a special privilege to one or more persons, not enjoyed by citizens generally, or, at least, not enjoyed by a class of citizens to which the licensee belongs." This is a saloon license case.

In another liquor license case, the Supreme Court of Ohio said: "The license is a condition precedent to the right to carry on the business."

In Plender vs. State, 10 N. W. 481, it was contended by a saloon keeper that the license established a system of double taxation, in violation of the constitution of the state of Nebraska, and the Supreme Court of that state held against him on the ground that the object of a license is to grant a permission to do an act, which, without the permission, would be illegal, adding: "So, we say, that the prohibition of the traffic is absolute, except upon certain specified conditions, and one of these conditions is the provision for its legalization by the procurement of a license."

In Youngblood vs. Sexton, 20 Am. Rep. 654, a liquor case, which involved the legal distinction between a tax and a license, the Supreme Court of Michigan, speaking by Judge Cooley, said: "The popular understanding of the word, license, undoubtedly is, a permission to do something, which without the license, would not be allowable. This

we are to suppose was the sense in which it was made use of in the Constitution. But this is also the legal meaning."

The quotations, heretofore given in this chapter, are from liquor cases. The man who is intent on following precedents is surely justified in concluding that a saloon license is a means of legalizing an unlawful pursuit, a means of granting a privilege -a permission, a means of conferring a new right. COURTS DO NOT FOLLOW THEIR OWN PRECEDENTS

For several months the Indianapolis News has persistently criticised the writer for refusing to follow the precedent involved in the judgment of the Indiana Supreme Court, that the saloon is not unlawful within itself, and it has charged that the writer has assumed to overrule the Supreme Court. Here, there is a disagreement. The writer contends that the Supreme Court itself does not follow its own precedents, and that the News follows the Supreme Court, when it meanders from its own path.

If the saloon license is a permit, a delegated right, a derivative right, a conferred right, a legal sanction of that, which, without it, would be illegal, a legalization of that which, is, without it, prohibited, as the courts say, it surely follows that the writer is adhering to precedents in contending that the saloon is not a common right, but a special privilege conferred by the license. A common right is not, and can not be the creation of a license. In State vs. Frame, 39 Ohio State 413, the Supreme Court of Ohio says: "A common right is not the creation

« السابقةمتابعة »