such limitation. They would be the warmest friends that the writer has just at this time, and they are, but they are warm in a different sense. They are warm in the sense that a bald hornet is warm. If they regarded the license as a restraint upon their business, they would surely be the most cordial friends of the writer. The story of Damon and Pythias would scarcely be adequate to illustrate the relations between them and the writer, but, alas! Such is not the situation.

In the last few months, the writer has received a large number of anonymous communications from saloons keepers, and not a single one of them has suggested that he desired to be relieved of any restraint imposed upon his business by the license statute. To illustrate their tone, we give the contents of one of them, which is as follows: "You have no more right to take from me the means of earning bread and butter for my wife and children by knocking out the saloon license than I have to burn your house. And, if you do it, a dose of lead pills will be the right thing for you." This is a very clear illustration of the natural lawless and anarchistic tendencies of the business, but it also demonstrates that the saloon keepers do not regard the license as a restraint upon the traffic.

SALOON LICENSE NOT A REGULATION

Regulation and legalization should not be confused, for they do not mean one and the same thing. Legalization means to render legal that which was previously unlawful. Legalization must deal with

prior wrongs, while regulation deals with existing rights. Rights are not subject to legalization, and wrongs are not subject to regulation. Wrongs only can be legalized, and rights only can be regulated. Regulation means to prescribe rules and conditions upon which existing rights may be exercised. To regulate is to methodize.

The statutes providing the place and arrangement of rooms in which licensed saloons may be conducted are regulations, but the statute which authorizes the licensing, the legalization of saloons, is not a regulation. Regulation implies legal existence. Neither are regulation and prohibition the same, because only those pursuits that are inherently unlawful can be wholly and arbitrarily prohibited.

Speaking of this distinction in the Hauck case 38 N. W. 269, the Supreme Court of Michigan said: "Regulate and prohibit have different and distinct meanings, whether understood in the ordinary and common signification, or as defined by the courts in construing statutes. To regulate the sale of liquor implies that the business may be engaged in or carried on, subject to established rules and methods. Prohibition is to prevent the business being engaged in or carried on entirely or partially. The two are incongruous. To be regulated, the trade must subsist."

If, as the courts say: "The privilege of keeping a saloon is a derivative right, springing alone from the provisions of the license statute," the licensing or legalizing statute is not and can not be a regulation.

In ex parte Garza, 28 Texas Appeals, 381, it was held that "to license" and "to regulate" do not mean

the same thing. To license the saloon is to authorize its operation, while to regulate it is to methodize its operation, after the operation has been authorized by the license.

In Pac. University vs. Johnson, 84 Pac. 706, the Supreme Court of Oregon said: "To license is one thing, and to regulate is another. To license means to permit, to give authority to conduct and carry on; while to regulate means to prescribe the manner in which a thing licensed may be conducted."

There can be no licensing or authorizing of inherently unlawful pursuits without invading and abridging the privileges of citizens.

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 con