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CHAPTER XXI

RAILROADING THE SOPHER CASE

On April 13, 1907, in the circuit court of Hamilton County, Indiana, in the case of the State of Indiana vs. Edward Sopher, Judge Ira W. Christian, rendered an opinion holding that a retail liquor saloon is within itself a public nuisance, and that the statute, authorizing the licensing of the saloon, is unconstitutional, and, therefore, that the saloon license was no defense. This opinion was rendered upon a motion to quash the affidavit.

Following the rendition of the opinion, the defendant applied for and was granted a change of venue from Judge Christian. Reed Holloman, former Prosecuting Attorney, of the Boone Circuit Court, was appointed Special Judge to try the case. The trial was held on the 11th day of May, 1907, and, upon proof of the operation of the saloon, the judge found the defendant guilty of maintaining a public nuisance, saying in announcing the finding :

"The only question involved is whether or not the retailing of intoxicating liquors is so injurious to the public as to make the business a public nuisance. In view of the fact that nothing good comes from a saloon, except financial gain to the proprietor, it is in my mind purely a public nuisance. It is a nuisance because the results, both directly and indirectly, are bad. The saloon affects the man who goes in by robbing him of his character, his money, his reputation, and making of him, in many instances a criminal and a vagabond. Indirectly it affects his family, who must suffer by reason of his abuse and his failure to provide. The saloon affects the public generally in the increased expense necessary for maintaining jails, penitentiaries, asylums and poor houses. In my judgment, a business whose consequences lead to such results is within the definition of a public nuisance, and therefore, amenable to the statute under consideration."

This was the ruling that determined the liquor forces to rush a case through the state Supreme Court. Within less than ninety days four different circuit judges had held that, by reason of the universally known evil character of the saloon and its inherently injurious effects upon society, as set forth in opinions of the highest courts of the states and the nation, the saloon is within itself unlawful, and, being so, it is beyond the power of the legislature to legalize it by a license. Two boards of county commissioners had taken the same view of the question and had refused to grant any saloon licenses. The sentiment was becoming alarmingly contagious, and the liquor interests of Indiana demanded of their friends, the political bosses, relief. The liquor organ published a fervent appeal under the title, "What Can We do to Be Saved."

The newspapers of the state that were bribed and subsidized by saloon notices and liquor advertisements declared that the "craze” had gone far enough. The self constituted guardians of good government in the state, composing the machine, whose special mission is and has been to dictate party platforms and nominations, and to prevent, if possible, the nomination of any man, not safe to

their interests, proclaimed that their supremacy was menaced and would be overthrown, if saloon domination must go.

On May 15, 1907, only four days after the decision of the Sopher case, the transcript of that case was filed in the Supreme Court, and on that very day, contrary to the custom and practice of both the supreme and appellate courts of the state, an order was entered advancing the case and requiring all briefs to be filed within a period of eighteen days. A day or two later an order was made for an oral argument of the case on the 6th day of June, the date being only twenty-two days after the record was filed in the Supreme Court.

This rush of proceedings would not attract attention, if it were not so out of harmony with the usual course of proceedings in the higher courts of Indiana. A few examples will disclose the variance. In Gillespie vs. State, 80 N. E. 829, in which the defendant had been convicted of first degree murder, for killing his twin sister, it required more than two years for the Supreme Court, in the usual course of events, to reach a decision. And this case is all the more illustrative, because of the fact that the court had previously had before it for consideration, in Gillespie vs. Rump, 163 Ind. 457, the very point upon which the case was finally determined.

The French Lick and West Baden cases are also good examples. In these cases, the state sought to forfeit the charters of certain hotel corporations on the ground that they were devoting their property to the conduct of unlawful and criminal pursuits, in the open, notorious and defiant conduct of

gambling. The place had become so notorious that it was known as and was commonly spoken of in the public press of Indiana and elsewhere as the "monte carlo" of the United States, thereby recognizing it as the rival of the Mexican monte carlo.

The trial court held against the state and the state appealed. The Attorney-General, as the representative of all the people, asked to have the cases advanced, but the request was promptly denied by the court, and it required about eighteen months to secure a decision of these cases.

But, in the Sopher case, in which the decision had been against the saloon and in favor of the people, the case was advanced on the day it was filed. On June 25, 1907, only forty days after the case was filed in the Supreme Court a decision, which had apparently been made before the case was filed in that court, was announced, in the Sopher case, reversing the decision of the trial court.

The entire course of events, from the filing of the record in the Supreme Court until it entered its decision of record, was of such a character as to mark the whole proceeding as the sheerest perfunctory formality. The demeanor of the judges, at the oral argument, was very indicative that the case had already been decided, and that a time had been set apart for the argument to be made, but not heard, to complete the chain of events between the placing of the file mark on the papers and the writing of the minutes announcing the decision. The Judges, at the oral argument, indulged in a fusilade of questions, very clearly demonstrating that they were not in a judicial frame of mind. Some

Some of their interrogations were close competitors of Mark Antony's most accomplished irony. Judge Hadley inquired of counsel for the state: “Are you able to tell this court the difference between a man's inherent right to ride on horseback and his inherent right to sell whisky at retail ?” To those who know Judge Hadley personally, it is very apparent that this question was not asked in seriousness but in a vein of ridicule. If the question was, in earnest, the answer would be easy. The difference is merely the difference between right and wrong.

It is not harmful to society to ride on horseback, it may be very beneficial; but it is always detrimental to society to keep a saloon. The courts say that the saloon is an evil without a single redeeming feature, the propogator of crime and the dispenser of misery and suffering; but nobody ever dreamed of such things being the natural results of horseback riding.

The courts have declared that, because of its certain dangers to society, no man has the privilege or a constitutional, an inalienable, an inherent or a natural right to keep a saloon, but no such judicial denouncement has ever been made of horseback riding. No man has any of these rights to keep a saloon, because the saloon is harmful and unlawful. Every person has each of these rights to ride horseback, because horseback riding is harmless and lawful.

Judge Jordan asked: “Has it not been the policy of this court for more than fifty years to hold saloon license statutes to be constitutional and is not the court now bound by its many decisions to this effect ?

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