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must, under the same conditions, likewise condemn the saloon. It can only fail to do so by the refusal of courts to make the same application of legal principles, and, at the oral argument of the Sopher case, the court clearly indicated that it would not measure the saloon by the same standard that it measures other injurious acts and pursuits.

The saloon was "railroading" itself to judicial approval without regard to undisputed facts or established principles of law. It was traveling upon the highway of the blind precedents of ages, without regard to truth, justice or sense.



CASE As disclosed in the last preceding chapter, the Sopher case was founded upon the single contention that the beverage retail liquor saloon is within itself a public nuisance. While there are many statements of fact and some propositions of law, announced in the opinion of the court, to which no just exception can be taken, there are also a number of propositions in this opinion, through which, in the language of Judge Roby, "the red line of reason may be run," in order to ascertain whether they are well founded, or otherwise.

There is a maxim of the law that declares that "where the reason fails, the rule fails.” The meaning of the statement is, that, unless there be a reason, there can be no rule. When we attempt to analyze a few of the statements in this opinion, we are doing no more than did Lincoln in his assault upon the Dred Scott decision. There is no statute in Indiana declaring, in so many words, that the beverage retail liquor saloon is a public nuisance. There is and has been for sixty-five years a statute in these words: "Every person who shall erect, or continue and maintain any public nuisance, to the injury of any part of the citizens of this state, shall, on conviction, be fined not exceeding one hundred dollars."

This statute merely declares it to be a criminal offense "to keep or continue and maintain a public nuisance, to the injury of any part of the citizens of the state.” It is, at once, apparent that this statute wholly fails to define, in any way, or specify what particular act or acts or things shall constitute a public nuisance. This statute provides for the penalty, nothing more, and nothing less. Under such a state of facts, where the legislature has failed to name the particular act or thing constituting the offense, it is the settled doctrine of the law, that we must look to the rules and principles of the common law to ascertain whether the act charged constitutes a public nuisance.

In State vs. Berdetta, 73 Ind. 185, the court declares the rule as follows: “Counsel for appellee argue with much force and ingenuity that the common law doctrine does not prevail in Indiana, for the reason that our statute prescribes an essentially different rule. It is indeed true, as counsel assert, that we have no common law offenses, and that criminal prosecutions can only be maintained, for such offenses, as are prescribed by statute. It does not, however, follow from this that there is no such thing as an indictable public nuisance under our statute. In Burk vs. The State, 27 Ind. 430, it is held that there is such an offense, although the statute does not specifically define a public nuisance. In that case it was held that “The phrase 'public nuisance' had a very definite meaning in the law long before the statute was enacted.” If the case cited should be followed to its logical consequences, it would require us to hold that what was at common law a public nuisance is such under our statute, and that permanently obstructing a highway is per se a public nuisance, because it was always such at common law. We hold this to be the correct ruling.”

So that, the contention in the Sopher case resolves itself into this : Is the beverage retail liquor saloon a public nuisance at common law ? If it is a public nuisance at common law, then, the keeper is subject to the penalty of the statute.

The statute is not required to make the act or acts unlawful, but merely to provide a penalty for an act or acts already unlawful at common law. No matter how gravely unlawful an act may be at common law, there can be no criminal punishment inflicted for it, unless there be a statute fixing the penalty. In the case of a public nuisance, the legislature has, by statute, determined the penalty, but the legislature has not assumed to say what specific acts, in any case, constitute a public nuisance.

Then, we are left to ascertain, if the beverage liquor traffic is a common law public nuisance. Nothing can be a public nuisance unless it be an invasion of the public rights of citizens. Such a nuisance necessarily arises from unlawful acts, for lawful acts are not and can not be an invasion of the fundamental rights of citizens. After having reasoned up to this point, the supreme court dismisses the proposition by asserting that the saloon, unless conducted in a disorderly manner, has always been regarded as lawful at common-law. No definition of a common law nuisance is given by the court. No principle or rule is stated by which we are to determine whether a given act or pursuit is

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