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النشر الإلكتروني

CHAPTER XVI

HOW TO DETERMINE THE CONSTITUTIONALITY

OF LEGISLATIVE ENACTMENTS The discussion of the legal status of the saloon, in the past few months, has brought forth, from newspaper editors, from lawyers and from some courts, the declaration that the authority of legislatures, in dealing with the saloon, except when controlled by a specific constitutional prohibition, must be held to be unlimited. This view of the matter makes of a state legislature a body with unlimited and unrestrained authority and power except in those specific instances in which there is an express, special limitation or prohibition imposed in some positive constitutional provision.

Taking this view of the matter, in Scmidt vs. the City of Indianapolis, 80 N. E. 632, the Supreme Court of Indiana said of the liquor traffic: “The evils which attend and inhere in the business of handling and selling intoxicating liquors are universally recognized, and the danger therefrom to the peace and good order of the community everywhere necessitates the exercise of the police power. This necessity for regulation and restriction in the interest of peace and good order and for the promotion of public morals, as already said, distinguishes the liquor business from useful and harmless occupations." And, in that connection the court said of the authority of the legislature: "It is well settled that the legislative power to deal with the subject, whether it be to license, regulate, restrain or prohibit the sale of such liquors, is unlimited.”

In other words, the court declares that the authority of the legislature to authorize, to license, that in which danger to the peace and good order of the community and the promotion of public morals inheres is unlimited, and also that the authority of the legislature to protect the community from such a danger by restraining or absolutely prohibiting the danger is equally unlimited.

So that the power of the legislature, in dealing with the saloon, whether it be to protect society from or to subject it to the evils thereof is without any limitation, in the opinion of this court. If the authority of the legislature, in dealing with the saloon, is without any limitation, merely because the constitution does not in so many words place a limitation upon its power in relation to the saloon or liquor traffic, then, the power of the legislature over every other matter, not thus mentioned, should be equally unlimited.

This method of constitutional construction would make it necessary for the constitution to contain a bill of particulars, mentioning in specific terms, each limitation of the power of the legislature. Either this, or we must admit that there is a special rule of construction for the salcon. This can not be true. Rules of construction must be general, and must apply alike to all things, coming within their limits. The doctrine that the power of the legislature to license the saloon is unlimited, merely because such authority is not denied in specific words in some constitutional provision, belongs to the rule of construction, applied by an Indiana Justice of the Peace to the criminal code. One of his neighbors claimed that his crow-bar had been stolen by another neighbor, so he went to the office of a Justice of the Peace to file an affidavit charging the other neighbor with the theft. The old Justice took the statutes and looked them through and through, again and again, for the word crow-bar, but he was unable to find it. He could find the language, “Whoever shall feloniously steal, take and carry, lead or drive away the personal goods of another is guilty of larceny," but that did not say "crow-bar," and so he informed his neighbor that it was not unlawful to steal crowbars.

Reasoning from the object of government, it absolutely can not be that a state legislature has the same power to subject the peace, the good order and the morals of a community to the dangers of the saloon, by licensing it, that it has to protect the community by preventing it. It is never legitimately within the power of any legislature to authorize, by a license, a danger to the peace, good order or morals of any community, even though there may be no express denial of such authority.

It is the sole purpose of government to protect rights, not wrongs.

When the wrongs imposed upon the American colonists, in the name of government, became intolerable, the forefathers, in the declaration of their independence, indicated very clearly the purpose and the extent of the authority of government, when they announced:

"We hold these truths to be self-evident—that all men are created equal; that they are endowed by

their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; that, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.”

In this, the purpose of government is unmistakably defined to be the security of the “inalienable rights" of life, liberty and the pursuit of happiness, and the extent to which just power was to be conferred upon the government was also limited to the scope of the "consent of the governed.” This consent was given for the security of these rights, not to authorize their infringement. The man who adverts to this declaration of fundamental rights, as a guide in the determination of constitutional questions, may be, by reason thereof, a crank, but, in so doing, he is merely following the precedent of courts of last resort.

In Gulf etc. Ry. Co. vs. Ellis, 165 U. S. 150, the Supreme Court of the United States said: “The first official action of this nation declared the foundation of government in these words: “We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain inalienable rights, that among these are life, liberty and the pursuit of happiness." While such declaration of principles may not have the force of organic law, or be made the basis of judicial decision as to the limits of right and duty, and while, in all cases, reference must be had to the organic law of the nation for such limits, yet the latter is but the body and the letter of which the former is the thought and the spirit, and it is always safe to read the letter of the Constitution in the spirit of the Declaration of Independence. No duty rests more imperatively upon the courts than the enforcement of those constitutional provisions intended to secure that equality of rights which is the foundation of free government.”

The spirit and thought of the constitution are found in the Declaration of Independence, according to this judicial declaration. The language just quoted has been cited and approved by the Supreme Court of Indiana. While it is true, beyond the adventure of a doubt, that the spirit and thought of the constitution of the United States and equally so of the constitution of each of the states, is proclaimed in a general way in the Declaration of Independence, yet it is also just as true that the governing spirit and thought of each of these constitutions is directly and specially announced therein.

In the preamble of the United States Constitution, the people declared their purpose, in the establishment of the government, as follows: “We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."

Likewise, in the preamble of the state constitution and in the first section of the Bill of Rights, the sovereign people of Indiana, proclaimed the end and purpose of the state government to be the establish

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