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In all governmental affairs, the people occupy the position of sovereign; they are the principal, and those, who are entrusted with the functions of administration, whether in a judicial, legislative or executive capacity, are merely their agents, with certain limited powers. The agent can never become superior to the principal.
Upon judicial, legislative and executive matters, involving questions of principle, the people themselves constitute the supreme and ultimate tribunal, to whom such matters must be finally submitted, and by whom, at last, they shall be determined.
It is not the province of courts to determine principles, but cases. A trial court, in a matter from which there is no appeal, always determines a case, while, in appealable cases, it determines cases, subject to review by a higher court. In other words, a court of last resort always determines cases, but not questions or principles. In determining cases, courts must apply principles, and, hence, in order to rightly decide the case, the court should have a correct understanding of the principles.
The people have placed the determination of cases beyond their control; they have confided this matter absolutely to the courts; but not so as to principles, for, as to them, they have reserved unto themselves the power of final settlement.
Some years ago, in a county seat town, in Indiana, there was a saloon on the main street, leading from the railroad station to the business part of the town, and, about one hundred and fifty feet from the railroad station. In front of the saloon and across the sidewalk was suspended a wide board, upon either side of which was painted the representation of a goblet of foaming beer. On the side next to the railroad station were painted, immediately above this representation, the words, "First Chance," while, on the opposite side, in the same relative position, were the words, "Last Chance." By this saloon sign, we may illustrate the province of trial and supreme courts, and the prerogative of the people.
In 'the decision of cases the trial court is the first chance, and the supreme court is the last chance, but, in the decision of questions, the people are always the last chance; they are the rightful masters of judges, executives and legislators. Whenever either refuses to apply a principle in consonance with the will of the sovereign, the people have the unqualified right to supply his place with a representative that will administer in harmony with their wishes, and thus the question is determined by them.
When the courts say that the saloon results in much evil; that it is detrimental to society; that it is dangerous to public and private morals; that it is dangerous to public safety and good order; that it propagates crime and dispenses misery and suffering, they decide a question of fact in harmony with the universal knowledge of the people, and the people are pleased with this just finding of fact. And when the courts say that no person has a right to carry on, upon his own premises or elsewhere, for his own gain or amusement, any public business, clearly calculated to injure and destroy public morals, or to disturb the public peace, they announce a principle of law that springs from the very purpose of government, and a principle, which, even the unlettered laity must recognize as sound.
But, when a court, in the same opinion in which it places this just estimate upon the saloon and announces this universally recognized principle of law, also declares the saloon to be inherently lawful and to stand upon the same legal basis as the innocent and useful pursuits of the drygoods-man, the grocery-man and the hardware-man, the people must surely realize that the principle has not been correctly applied to the fact. If the principle be applied to the fact announced, the conclusion must be that the saloon is inherently unlawful. This principle of law can not correctly place upon the same legal basis that which is beneficial to society and that which is detrimental to it. When measured by this standard, the one is surely lawful, and the other just as certainly an outlaw.
With a view to submitting the reasonableness of this contention, to the Supreme people, the question is feebly argued in the following pages, without any pretense of superior wisdom or information, but with an abiding faith in the correctness of the conclusion. There is no claim to any new discovery; but merely a plea for the same application of a principle of law, as old as the government, to the saloon, as is made to other acts and pursuits, of like inherent, injurious character. The reader is invited to read with an open and unprejudiced mind, and then to draw the natural conclusion, which reason and logic inay prompt.