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CHAPTER XII

THE SALOON IS NOT A PRIVILEGE OF A CITIZEN OF THE STATE OR OF THE UNITED STATES

The Supreme Court of the United States, the Supreme Court of Indiana and the Supreme Courts of other states have said: "To keep a saloon is not a privilege of a citizen of the state or of the United States."

The only responsibility that the writer has had in connection with this announcement has been to make an honest effort to ascertain its meaning, and then to attempt to enforce it. Why is the keeping of a saloon not a privilege of a citizen of the state or of the United States? If it is not, there must be some good reason for it.

The Declaration of Independence affirms the equality of man, that is, the equality of rights, and also that the rights of life, liberty and happiness belong to all men alike, on account of this equality, not by virtue of any governmental grant, but by the endowment of God. The first Section of the fourteenth Article of the United States Constitution provides: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the law." The "liberty" and "pursuit of happiness" clauses of the Declaration of Independence, and the "liberty" and "property" clauses of the foregoing

provision of the Constitution have been construed by the Supreme Court of the United States and by the Supreme Courts of many states to include the right to follow any lawful pursuit or trade.

The courts have said that liberty does not alone mean exemption from physical restraint or imprisonment, but that it also embraces the privilege of pursuing any lawful occupation; that the pursuit of happiness involves the privilege of conducting the ordinary vocations of life, so that man may support himself and family; and that property is not limited to physical property but extends to and includes the privilege of following a lawful, chosen calling.

In the Butcher's Union, etc., Co. vs. Crescent City, etc., Co., 111 U. S. 746, the court declared that a monopoly of one of the ordinary callings of life is unlawful, and, therefore, an abridgement of the privileges and immunities of citizens of the United States within the meaning of the Constitution.

Justice Bradley said: "I hold that the liberty of pursuit, the right to follow any of the ordinary callings of life, is one of the privileges of a citizen of the United States.

"I hold it to be an incontrovertible proposition, of both English and American law, that all mere monopolies are odious and against common right.

"Monopolies are the bane of our body politic at the present day. In the eager pursuit of gain they are sought in every direction. They exhibit themselves in corners in the stock market and produce market and in other ways. If, by legislative enactment, they can be carried into the common avoca

tions and callings of life, so as to cut off the right of the citizen to choose his avocation, the right to earn his bread by the trade which he has learned; and if there is no constitutional means of putting a check to such enormity, I can only say that it is time the Constitution was still further amended.

"I hold that a legislative grant, such as that given to the appellees in this case, is an infringement of each of these prohibitions. It abridges the privileges of citizens of the United States; it deprives them of a portion of their liberty and property without due process of law and it denies to them the equal protection of the laws.

"In my opinion, therefore, the law which created the monopoly in question did abridge the privileges of all other citizens, when it gave to the appellees the sole power to have and maintain stock landings and slaughter-houses within the territory named, because these are among those ordinary pursuits and callings which every citizen has a right to follow if he will, subject of course, to regulations equally open to all.

"2. But, if it does not abridge the privileges and immunities of a citizen of the United States to prohibit him from pursuing his chosen calling, and giving to others the exclusive right of pursuing it, it certainly does deprive him, to a certain extent, of his liberty; for it takes from him the freedom of adopting and following the pursuit which he prefers; which, as already intimated, is a material part of the liberty of the citizen. And if a man's right to his calling is property, as many maintain, then those who had already adopted the prohibited pursuits in

New Orleans, were deprived, by the law in question, of their property, as well as their liberty, without due process of law.

"3. But still more apparent is the violation, by this monopoly law, of the last clause of the section 'No state shall deny to any person the equal protection of the laws.' If it is not a denial of the equal protection of the laws to grant to one man or set of men, the privilege of following an ordinary calling in a large community, and to deny it to all others, it is difficult to understand what would come within the constitutional prohibition."

When the courts say that the saloon is not one of the privileges of citizens they, in effect, assert that it is not one of the ordinary callings; that it is not a lawful pursuit. And they also commit themselves to the proposition that, to authorize any unlawful pursuit, is an abridgment of the privileges of citizens of the United States and of the several states. They are equally firm in holding to the proposition that, to deny to any man the right to pursue any lawful calling is an abridgment of such privileges and immunities, and also a denial of the equal protection of the law.

Courts deny that the saloon is one of the privileges or immunities of citizens, guaranteed by the 14th amendment, and this denial, taken in connection with their construction of this amendment, means that to keep a saloon is not liberty; that it is not the pursuit of happiness; that a saloon is not property within the meaning of the constitution; and that it is an unlawful business.

Dealing with and denying the contention that the

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