Schmitt v. F. W. Cook Brewing Co.

TOWNSEND, J.

— Appellee brewing company obtained a permanent injunction against appellant superintendent of police of the city of Evansville preventing the enforcement of the Prohibition Law, Acts 1917 p. 15. *625 Appellant’s demurrer to the complaint was overruled. He refused to plead further and judgment was rendered.

No question is raised as to the jurisdiction of a court of equity and, owing to the alleged property rights and to avoid a multiplicity of actions, the cause will be considered.

The sole question presented is the constitutionality of the act. It is claimed that the legislature has no power under our Constitution to prohibit the manufacture and sale of intoxicating liquors. This contention is erroneous; for it is admitted that the legislature may refer this to the people in county, township, city, or ward units and, if the majority desire, they may impose prohibition upon the minority, and it is admitted that this would be constitutional. This amounts to admitting that the majority may inflict on the minority that which is forbidden by the Constitution. This is based on the erroneous assumption that a state Constitution is a grant of power and that when a legislature assembles something is taken from the people by it and something is left at home in the way of legislative function.

1. It is fundamental that a state Constitution is a limit of power. It simply divides sovereign power of the people in the state into the several departments of government and all power inheres in the peopie, and they possess all of it except that which is granted to the United States by the federal Constitution, and they may pass any law which is not in violation of the limitations in the state Constitution and not in violation of parts of the federal Constitution applicable to the states.

If.the present Constitution provided that all the people of the state should assemble once in two years, instead of the legislature, to enact laws, and all other pro *626 visions of the Constitution remained as they now are, it could not be that this body would have greater legislative power than the present legislative body. To admit this is to destroy the limitations in the Constitution and leave the minority unprotected. The very purpose of the limitations is to protect the people against themselves. The limitations are not' to protect the people against the legislature alone. That protection is afforded by elections every two years. If the limitations in the Constitution are not sufficient to protect the minority against the majority, that is for the convention. The legislature is just as súpreme in the legislative field as all the people would be. Both are bound by the limitations in the Constitution.

2. 3. This court is bound by the same Constitution and has no right to curtail legislative authority this side of the expressed limitations in it. Nor has this court power to revolutionize the fundamental law by reading limitations into it. This court has noth.ing to do with the wisdom or unwisdom of the legislative act. A law may be repugnant to general principles of justice, liberty and rights not expressed in the Constitution, and yet the courts have no power to strike it down. State v. Gerhardt (1896), 145 Ind. 439, 450, 44 N. E. 469, 33 L. R. A, 313; Praigg v. Western Paving, etc., Co. (1896), 143 Ind. 358, 363, 42 N. E. 750; Hirth-Krause Co. v. Cohen (1911), 177 Ind. 1, 12, 97 N. E. 1, Ann. Cas. 1914C 708. The remedy in such a case is with the people in the legislative department or in convention forming a new Constitution. Mr. Cooley says: “By the Constitution which they (the people of the state) establish, they not only tie up the hands of their official agencies, but their own hands as well.” Cooley, Constitutional Limitations (7th ed.) 56.

*627 4. *626 No provision of our Constitution has been pointed out which forbids the passage of laws to protect the *627 health, morals, or welfare of the people in connection with the traffic in intoxicating liquor, even though such laws destroy previously recognized property without paying for it. That the liquor traffic is within the police power of the state no one denies. When this is admitted, there must follow the power to take such steps as are reasonably suitable to carry out this purpose.

5. There is no difference in constitutional principle between the prohibition of the sale of intoxicating liquor as a beverage and the prohibition of the manufacture in order to stop the sale. The thing aimed at is the traffic in liquor as a beverage. If the people of the state, in order to stop the traffic in the beverage, deem it necessary to stop the manufacture,' they have a right to do this so far as any limitations in our Constitution are concerned. When it is admitted that by local option ninety-two counties in the state may forbid absolutely the sale of intoxicating liquor without violating the provisions of the Constitution, it then follows that, in order to accomplish the same purpose, the people of the state may prohibit the manufacture. He who has a charter from the state to manufacture is deprived of his property, in part at least, when he loses the opportunity to sell in ninety-two counties of the state. From the standpoint of the constitutional limitations, there can be no difference in principle between the destruction of one dollar’s worth of property and one million dollars’ worth. Charter rights, license rights, contract rights are all subject to the inherent power of government to protect the health, morals, or welfare of the public. Skelton v. State (1909), 173 Ind. 462, 468, 89 N. E. 860, 90 N. E. 897; Moore v. City of Indianapolis (1889), 120 Ind. 483, 491, 22 N. E. 424; Boyd v. Alabama (1876), 94 U. S. 645, 24 L. Ed. 302; Pittsburgh, *628 etc., R. Co. v. Chappell (1914), 183 Ind. 141, 147, 106 N. E. 403, Ann. Cas. 1918A 627.

It is also insisted on behalf of appellee herein that it has been decided by this court that there is no power to prohibit the manufacture of intoxicating liquor under our Constitution, and that the case of Beebe v. State (1855), 6 Ind. 501, 63 Am. Dec. 391, and a few cases following, settle that question. It cannot be determined by those cases on what principle the court was acting. The question stood undecided for three years and then the law was pronounced void without assigning any reasons as to whether it was considered void under the state Constitution or federal Constitution. That law in some of its particulars would have been void at that time under the federal Constitution, but since then there have been passed by federal Congress the Wilson Act and the Webb-Kenyon Act, both of which have been upheld by the Supreme Court of the United States. Wilkerson v. Rahrer (1891), 140 U. S. 545, 11 Sup. Ct. 865, 35 L. Ed. 572; Clark Distilling Co. v. Western, etc., R. Co. (1916), 242 U. S. 311, 37 Sup. Ct. 180, 61 L. Ed. 326, L. R. A. 1917B 1218, Ann. Cas. 1917B 845. That law also provided for official agencies to dispense liquor, thus creating a monopoly on the part of the state in the traffic, and it may have been considered void for that reason. But since that time public monopolies have been justified in the control of intoxicating liquor upon the ground that the nature of the traffic warrants its entire prohibition. 15 R. C. L. 267, 268, and authorities there cited. .

6. The principle of stare decisis, if it existed, has no application to the police power, because there can be no property rights which are not subject to this power. In Pittsburgh, etc., R. Co. v. Chappell, supra, 146, this court said: “A long and firmly settled principle of law which has grown out of a well *629 ordered civil society is that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it may be so regulated that it shall neither encroach injuriously on the equal enjoyment of their property by others who have an equal right to the enjoyment of their property, nor be injurious to the community. The law is also so fixedly settled as to be beyond controversy that rights and privileges arising from contracts with a state are subject to regulations for the protection of the public health, the public morals and the general safety of persons and property, in the same sense as are all contracts and all property whether owned by private persons or by corporations. Laws carrying these principles into effect in particular instances are but a proper exercise of the police power by the legislature and are not to be hindered or overthrown by the constitutional limitations named as is claimed by counsel. Indeed the legislature cannot contract away its police power — the power to legislate for the protection of the lives, health, and property of the citizens of the State.” And in the case of King v. Inland Steel Co. (1911), 177 Ind. 201, 212, 96 N. E. 337, 97 N. E. 529, this court said: “The rule of stare decisis, which counsel invoke to induce us to adhere to those decisions, cannot chain us to error. That may be so when decisions have become a rule of property, but not in decisions involving a subject-matter such as here affected.” If this were not so, mistaken decisions would destroy that very power of society to protect itself and a new Constitution would be created by the courts. Courts cannot decide away' that which the state cannot contract away. Courts cannot make a new-fundamental law by erroneously reading limitations into the Constitution not therein expressed. The principle of stare decisis is a rule of property the use of which does not affect the public welfare. It cannot be *630 invoked to shut off police power. State, ex rel. v. Aiken (1894), 42 S. C. 222, 20 S. E. 221, 26 L. R. A. 345.

2. There is no spirit pervading the Constitution outside of the expressed limitations in it which enables this court to declare a law void. In the case of City of Logansport v. Seybold (1877), 59 Ind. 225, Judge Perkins, speaking for the court, at page 227, quotes from Churchman v. Martin (1876), 54 Ind. 380, as follows: “ ‘By the constitution of the State the legislative authority is vested in the general assembly. Const., art. 4, sec. 1, 1 R. S. 1876, p. 27. When, therefore, an act of the general assembly is passed, which violates no provision of the federal or state Constitution, the judicial department cannot hold it to be void on the ground that it is wrong, or unjust, or violates the spirit of our. institutions.” Welling v. Merrill (1876), 52 Ind. 350; Horning v. Wendell (1877), 57 Ind. 171; Townsend v. State (1896), 147 Ind. 624, 634, 47 N. E. 19, 37 L. R. A. 294, 62 Am. St. 477; Forsythe v. City of Hammond (1895), 68 Fed. 774, 777.

*631 4. *630 Counsel for the appellee neither in their briefs nor in oral argument quote language from any decision of this court showing what particular provision of the Constitution forbids the prohibition of the manufacture and sale of intoxicating liquor. The whole trend of the decisions in this state on the remonstrance laws, license laws and the local option laws shows that no such thing ever entered the mind of this court from the time of the Beebe case and the cases immediately following it to the present time. But on the contrary, this,court has repeatedly said the subject of the control of intoxicating liquor is entirely within the power of the people through the legislature to do anything that they deem necessary, not only to prohibit the sale but in order to effectuate that purpose to even prohibit the manufacture of intoxicating liquor within the state. In Welsh v. State *631 (1890), 126 Ind. 71, 77, 25 N. E. 883, 885, 9 L. R. A. 664, this court said: “All laws regulating and imposing burdens on the business are prohibitory in their character. There is no difference between an absolute prohibitory law, a law providing for local option, and license law, except in the extent to which they prohibit the manufacture and sale of intoxicating drinks. An absolute prohibitory law deprives all within its reach from engaging in the business; a local option law prohibits all within a given locality from selling within that locality; while a license law prohibits all within, the State, who have not obtained a license, from engaging in the business of retailing intoxicating liquors.. Each of these is a restriction upon the'common law right of the individual citizen.” In the case of State v. Gerhardt, supra, 469, this court used the following language: “‘Acting upon the just assumption that the unrestricted sale of intoxicating liquors results in much evil, and that it is detrimental to society, the law-making power of each State in the Union has, in the exercise of its police power, assumed to control, regulate or prohibit the business, as seemed to it best’.” And in the same case, at page 468, the court says: “All laws which regulate, or restrict, the sale of such liquors; by imposing burdens or conditions upon the business, are in their nature or character to an extent at least, prohibitory.” And in the case of Sopher v. State (1907), 169 Ind. 177, 194, 81 N. E. 913, 919, 14 L. R. A. (N. S.) 172, 14 Ann. Cas. 27, this court said: “The right to pursue such vocation was not of such an inherent or inalienable nature as to place the business beyond the control of the legislative department. The latter might, in the exercise of its discretion, under the police power, in the interest of society and the public in general, either suppress or prohibit the traffic entirely, or permit it to exist under such necessary restric *632 tions, regulations and burdens as might be deemed proper to impose in order to mitigate or minimize the evils resulting from the traffic, and as against the validity of such laws enacted by the legislature, the liquor dealer was not in a position to assert any inherent or inalienable right to the contrary.” See, also, to the same effect, Schmidt v. City of Indianapolis (1907), 168 Ind. 631, 638, 80 N. E. 632, 14 L. R. A. (N. S.) 787, 120 Am. St. 385; Jordan v. City of Evansville (1904), 163 Ind. 512, 517, 72 N. E. 544, 67 L. R. A. 613, 2 Ann. Cas. 96; City of Greencastle v. Thompson (1907), 168 Ind. 493, 501, 81 N. E. 497; City of Delphi v. Hamling (1909), 172 Ind. 645, 651, 89 N. E. 308.

7. It is also contended by the appellee that there must be a limitation in the Constitution against complete prohibition of the manufacture and sale of intoxieating liquor because it was proposed in the constitutional convention and rejected. This question has been brought to the attention of this court before and the history of that subject reviewed. The committee to which this question was referred in December, 1850, reported to the convention as follows: “The committee of the legislative department, to whom was referred some sundry petitions and resolutions on the subject of the sale of ardent spirits, have had that subject under consideration and have appeared here to report that your committee deem it inexpedient to make any constitutional provision on this subject as it more particularly belongs to the legislature. They therefore ask to be discharged.” And this court after reviewing this history, in the case of Sopher v. State, supra, 192, says: “By these deliberative acts of the convention which formed and moulded our present Constitution that body appears to have left the question in regard to •the traffic in intoxicating liquors in the hands of the leg *633 islative department, .where the convention found it at the time it convened.”

8. The power of the states, under their constitutions and under the federal Constitution, to prohibit the manufacture and sale of intoxicating liquor and to provide such means for the enforcement of prohibition as seems expedient to the legislature, is now so well settled that it is no longer an open question. In re Crane (1915), 27 Idaho 671, 151 Pac. 1006, L. R. A. 1918A 942; Crane v. Campbell (1917), 245 U. S. 304, 38 Sup. Ct. 98, 62 L. Ed. 304 (see authorities there cited) ; State v. Fabbri (1917), 98 Wash. 207, 167 Pac. 133, L. R. A. 1918A 416; State v. Hemrich (1916), 93 Wash. 439, 161 Pac. 79, L. R. A. 1917B 962; State v. Davis (1915), 77 W. Va. 271, 87 S. E. 262, L. R. A. 1917C 639; Delaney v. Plunkett (1916), 146 Ga. 547, 91 S. E. 561, L. R. A. 1917D 926, Ann. Cas. 1917E 685; State, ex rel. v. Delaye (1915), 193 Ala. 500, 68 South. 993, L. R. A. 1915E 640; Cureton v. State (1910), 135 Ga. 660, 70 S. E. 332, 49 L. R. A. (N. S.) 182; State v. Fargo Bottling Works Co. (1910), 19 N. D. 396, 124 N. W. 387, 26 L. R. A. (N. S.) 872; Motlow v. State (1911), 125 Tenn. 547, 145 S. W. 177, L. R. A. 1916F 177; State v. Railroad (1915), 169 N. C. 295, 84 S. E. 283; Seaboard Air Line Ry. v. North Carolina (1917), 245 U. S. 298, 38 Sup. Ct. 96, 62 L. Ed. 299; State v. Lowell (1874), 47 Vt. 493; State v. Durein (1904), 70 Kan. 1, 78 Pac. 152, 15 L. R. A. (N. S.) 908, and note; Mugler v. Kansas (1887), 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205; Bartemeyer v. Iowa (1873), 18 Wall. 129, 21 L. Ed. 929; Crowley v. Christensen (1890), 137 U. S. 86, 11 Sup. Ct. 13, 34 L. Ed. 620; Giozza v. Tiernan (1892), 148 U. S. 657, 13 Sup. Ct. 721, 37 L. Ed. 599; Clark Distilling Co. v. Western, etc., R. Co., supra.

*634 5. *633 In the light of these authorities and the decisions of *634 this court which we have heretofore set out, we hold that this act violates no provision of the state or federal Constitutions by prohibiting the manufacture and sale of intoxicating liquor.

It is also contended that the title is insufficient and that the act is not consistent with the title. The title is as follows: “An act prohibiting the manufacture, sale, gift, advertisement or transportation of intoxicating liquor except for certain purposes and under certain conditions.”

9. The provision of our Constitution is that every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title. This provision is to prevent tricking the legislature into passing acts foreign to the one under consideration by it. Hingle v. State (1865), 24 Ind. 29. It will be seen by the authorities which we have heretofore set out that to prohibit the traffic the legislature may define as an intoxicant that which is far from intoxicating, in order to prevent the manufacture and sale of that which is intoxicating; that it may prevent the possession of liquor; that it may provide that the place where liquor is kept or manufactured may be declared a nuisance and closed; that it may designate those who are to handle and 'dispense liquor and upon what terms; that it may forbid advertisements of liquor; that it may provide what shall make a prima facie case of violation of the law. All of these provisions are "properly connected with the purpose of the legislature to prevent the traffic in intoxicating liquor as a beverage and are therefore within the title of the act.

It is next insisted that the act is void because it gives the right to registered pharmacists to deal in intoxicants under certain restrictions, and because those who have liquors manufactured in the state which are in bond *635 may have possession and pay tax and dispose of such liquors outside of the state, and all others must get rid of the intoxicants which they have on hand within ten days of the time that the law goes into effect.

10. The “privileges and immunities” section of our Constitution, the “class” section, and the “general law” section are not violated if an act is reasonably designed to protect the health, morals or welfare of the public. State v. Wiggam (1918), ante 159, 118 N. E. 684. The legislature must classify in nearly every act which it passes to protect society. To hold that it may not, would be to overthrow nearly all of the laws that are made for the public welfare. If the legislature thought that this law could be better enforced by compelling all persons to remove liquors from the state except those having' liquors manufactured in the state and in bond, it had a perfect right to do so. It is not for this court to try to excel legislative wisdom on the question of expediency.

The act is valid as to all its provisions brought in question. The court erred in overruling appellant’s demurrer to appellee’s complaint.

The judgment is reversed, with instructions to the trial court to sustain the demurrer to the complaint.

Myers, C. J., concurs in conclusion. Spencer, J., dissents.