DOES A LICENSE PROHIBIT ALL BUT THE MAN WHO HOLDS IT?

Suppose we illustrate by the township to which we have heretofore called attention. Since August, 1906, no one in that township has held a license, then, on the basis that a license is a prohibition, there has been no prohibition during that time, but the truth and sense of it is, that, during that time, there has been complete statutory prohibition against every inhabitant of the township. During that time, it has been a criminal offense for any one to sell intoxicating liquor in that township, for a beverage, just as it has been a criminal offense, for any person to commit larceny. This is statutory prohibition. If now, the Board of County Commissioners were to grant a license to some man in this township, they would not thereby impose a prohibition upon all the inhabitants of the township, except the man to whom the license is granted, but they would suspend the prohibition, previously existing against all of the inhabitants of the township, in favor of the man to whom they grant the license. So, then, a saloon license is a suspension of prohibition.

In the Welsh case, the Supreme Court of Indiana, held that the Indiana license statute did not authorize a license to sell liquor on the Ohio River south of low-water mark, but, yet, it held that it was a violation of the criminal statutes of the state to sell at

said point. Prohibition at this point was not imposed by the license provision of the statute, but by the criminal, and, in truth, it is the criminal

statutes that impose the only statutory prohibition that here is against the traffic.

Another illustration : Prior to March 12, 1907, it was a violation of the criminal statutes of the state of Indiana for an employee of any railroad company to sell intoxicating liquor on railway trains within

the state.

The General Assembly of 1907, passed an act, which became effective March 12, 1907, authorizing the Auditor of State to license, at one thousand dollars per company, salcons in dining cars. This statute did not impose a prohibition upon the companies that would not buy the license, but it did suspend the prohibition, previously existing against all companies, in favor of the ones that buy the license. There is no criminal provision in this act of 1907. Its only purpose and effect is to authorize an exemption and immunity, by means of the license, from the penalties of the criminal statutes of the state.

A LICENSE NEITHER A RESTRICTION NOR A RE

STRAINT.

But we meet with a milder proposition in the contention that a license is a restriction and restraint of the liquor traffic,-a limitation upon the free exercise of a common right.

In the absence of a license, it is a criminal offense for any person to sell liquor as a beverage at any time or place. This is complete prohibition and absolute restriction and restraint, all of which is brought about by the criminal provisions of the statute. During eighteen hours of six days in the week, a man, by means of a license, may buy the

privilege of selling liquor, as a beverage, but this privilege is neither prohibition, restriction nor restraint. It is a criminal offense to sell between 11 o'clock p. m. and 5 o'clock a. m. and on Sundays. Between 5 o'clock a. m. and 11 o'clock p. m., on week days, a man may, through a license, secure the right to sell, but this right is not a restriction, nor a restraint, but a permission.

The criminal provisions of the liquor statute restrain, restrict and prohibit, but the license provisions permit and suspend many of the restraints, restrictions and prohibitions of the criminal statutes. Prohibition and permission are antagonistic propositions. Prohibition and delegated rights are antagonistic propositions. In 1873, in the case of Schwuchow vs. Chicago, 68 Ill. 444, it was claimed that a saloon license was a suppression of the business. The court answered this contention by saying: "To suppress must mean to prevent, and not to license or sanction the act to be suppressed. It would be a confusion of terms to say that a thing is suppressed, when it is protected, licensed and encouraged." So, in Indiana, it is a confusion of terms to say that a business is prohibited, when it owes its existence to permits issued by the Board of County Commissioners. Restraint and permission are antagonistic, and likewise are restriction and permission.

INDIANAPOLIS NEWS ON BOTH SIDES

On April 15, 1907, the Indianapolis News accused the writer of entertaining the misapprehension that, to strike down the license provision of the liquor statute, would result in prohibition. It editorially

said: "No express permission is needed for it to exist any more than for any other business. It is sufficient that it be not forbidden. What our Legislature has done is to recognize its existence, and to limit, regulate and restrain it, as far as possible, on the ground that its unregulated and unrestrained existence would be dangerous to the safety and morals of the community."

"The theory, of course, is that, if the license law were repealed prohibition would prevail in the State. It would be difficult to imagine a more foolish proposition. The saloon exists, not because the license law permits it to exist, but because the business of retailing liquor is legal. The license law recognizes an existing institution, one that antedated the law. The Legislature did not 'permit' the saloon, and its withdrawal of the supposed 'permission' would not destroy it."

On the 30th of September, 1907, the News editorially advocated the revocation of their licenses. as a punishment of saloon keepers, who sell on Sunday in violation of the criminal statutes. If, as the News said in its previous editorials: "No express permission is needed for it to exist any more than any other business. The Legislature did not permit the saloon, and its withdrawal of the supposed permission would not destroy it. The license is a restriction and restraint of it, a prohibition within certain limits," how can it be possible to punish a saloon keeper by withdrawing and removing a restriction, a restraint and a prohibition against the business? The proposition is a non-sequitur.

The legislature has provided for the revocation of

saloon licenses as a part of the punishment for the violation of certain criminal statutes. The revocation of the license can be a punishment only upon the theory that the license, in the first instance, is a permission, a grant of immunity from the penalties of the criminal statute. It is really amusing to think of a saloon license as a restriction, a restraint and a prohibition of the saloon, and, yet, at the same time, recognize the fact that a saloon keeper, who conducts his business without the restriction, restraint and prohibition of the license, is a criminal. On this theory, when a proposed saloon keeper makes application to the County Board for a license, he does not seek any grant of permission, but he invites the Board to impose a restriction, a restraint and a prohibition upon rights that he already possesses. And, on this theory, he is a criminal, if he exercises his rights, before he secures their restriction, restraint and prohibition in the limitation of a license. These propositions hardly appeal to one's sense of reason as logical. But, when we view the license as a granted privilege, then it is easy to understand why the saloon keeper is a criminal, if he sell without a license, and also to treat the revocation of a license as a punishment.

The saloon keepers themselves are entitled to some consideration as an authority upon the purpose and effect of their license. If they believed that they have a common law right to engage in the traffic and that their license is a limitation upon that right, they would surely be desirous of having the license statute overthrown so that they might avail themselves of their common law right without