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The Richmond Indiana palladium. (Richmond, Ind.) 1854-1855, December 13, 1855, Image 1

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TCtlMS-92.00, IN ADVANCE.
Be jaM and fen r not : " Let all the ends thou aims't at he thy Country' thy God's and Truth's.
tD P. HOLLOW AY A CO.. Publishers.
'?ToIume.XXV.'
RICHMOND, WAYNE COU.N.TV, IND., DKCEMHER 13, 1855. - -
Number 52.
fcw ' . . ,. - .. , . . . ; - ; . i. " " ' 1 " ' "'. ' ' " ' " ' '' " " " ' ' ' '' " ' ."''' '
" EDITED AND "1CBUSHED BT
, f. HOUOWAT, B. W. DATIS 1 1. S. DRiSE
Terms f Arfvrnlnlayt
.rcrft m'.one m..SO Kara arfil.lional in.. 5
.. l.2 Two month.. J.5i
""HtJllr. WJ Half" do. 4I).
y -. .num 1 l:u .1.
rLelt4 nfi anUvcd dveriiiemPiiU w.U be
.4 4 pric nd-a-halt", and large cuU two pcicej
TSlwv Mte of adrftLsing. Other caes, not pro-
Sdal for, chargable in eonJnnity with the above ratea.
OVR JOI1 DEPARTMENT, ,
rT hao fittel on with tho laUt stTle
,(trp,anI ara now prcret to do all k-ncU f Job
Wart,
m Ituoks, ia.pfalt, tirotttora, tlU, Cr. i
9Mtm.k. Printing done in fancy -c,lore4 Ink, wim ,
rw( . ,,',..,. ,,i
Mtni-i and dwit:h.. Or ltri thankf ully roteived and
vadtljaU'-ndvd tu. Addfu, Holuow jt 4 Co.
- PaPtB Plasi. The Miueral Point, (Min.
Jtr.) Tribune, j.ubliishes an account of a
MTy discovered plant, from a Mrs. Beau
Boat, of Arena, as follows:
. ' I discovered two yeara ajo a plant that
tielda both cotton and flax from the same
loot, and I believe I am .the first person that
tm-eultivated, spun; y.ni knit from it. I
am TerttdsJ"lthat anv.airtiole that will make
. , - , - T it , l
WiliBialte goo.1 paper; V-nco I call it the pa-
4lIt'ie la:'tetl VI w"e "". -
till cut in the, fall or' winter. It bleaches it-
gooa eietq as can ormaae iin mis piaut
.... -
a l.T m . J I . . I .
lielf white as it atarwls, and will ield at least
"three or four tons to the acre.
,. From ft fcingle root that I transplanted last
wring, there grew Twenty large, talks with
ftree hundred and 'twenty ' puds, (containing
tbe cotton, with at least sixty seeds in each.
Troni this roo't'l obtttiid several ounces of
Bnre cotton, and over half a pound of flax, it
a ayery. heavy plant, and growa from aix
to
aerea leet ui'n.
. ... i
The Tribune adds that it has seen several
Muoples of the cotton and flax, prepared from
4 plant, by Mrs. Beaumont, and thinks that
ht the manufacture' of paper it Vill prove
better and cheaper than any other known
article. " .
, 1 11 " - - -
Girls! Riad this. Men who are worth
kaving, want real, substantial women for their
Trivet. A bundle of gewgaws, bound with a
triiiUof Data and quavers, sprinkled with
cologne and set in a carmine saucer this is
ggo help (ora man who expects to raise a fam
ily of boy and girls on vegetables, bread and
meat. " if he piano and lace frame are good in
Ibeif places; and ribbands, frills and tinsel
may ie allowed under proper circumstances,
btft they are not digestible as a diet, nor will
they answer as a covering in the place of bed
blankets.1 Awful as the idea may seem to
Too, both dinuer and hyd blankets are ueces-
fair tA lnnBti.l ImnrtnAtia T.ifji ira
realities as well as fancies; but you make it I llfe- PPrty,- reputation, and morals.
Ml matter of 'feratiou rememberiug the ! ? 2; It is urged that certain portions of the
luaeltand euVtSms, but Jorgetting the bed- j ct m question folate the p3d section of the
itetd. S.fW6li youbg man of good sense, f first article of the , constituuon, which pro
awl of .course good prospects, to be looking ' TlJos that "Th. General Assembly shall not
i .i. i. to h -ho-i grant . to anv citizen, or class of xnizens. onyt
mtJ "TT wiii fBn..ji- jwni io DC cno V immnnin. WiMih. unon the same
m: i ou may cap rum or trap turn or eaten "
him; but how much better to make it an ob-'
iat f' . litn t alk w t TAnrlAr vmiruAlf
........ v.... J.-v.
woruiy ot catcniug. ana you will need no
ihrtwd mother or managing brothers to help
you hud a market.
' Sharpekino Edok Tools. The following ply- But by that means we learn that the onjec
Mfrom a German Scientific journal tor the tioa is supposed to he against the 4 .h and 5th
benefit of our mechanics and agricultural la- sections of the act.
borers: "It has long been known that the: The 4th section provides for licenses to
linplest method of sharpening a razor is to manufacture spirituous and other intoxicatinff
put it for half an hour in waier to which has liquors. It provides that persons licensed
been aided one twentieth of its weight of shall manufacture and sell only at a designated
muriatic or sulphuric acid, then lightly wipe place, and to designated agents. It requires
it off, and afer a few hours set it on a hone, a bond from the person licensed. It provides
The acid here supplies the place of a whet- that persons engaged in such manuiaciure at
tone, by corroding tho whole surface uni- the time of the passage of the act, or any
formly, so that nothing further than a smooth other act touching the sale of intoxicating liq
polish is necessary, the process never iu- uors. Certainly, it is difficult to see how
juret good blades, while badly hardened ones' these provisions "grant to any citizen, or
are frequently Improved by it. although the class of citizens, privileges or immunities
causa of auch improvement remains unexplain- which, upon the same terms," do "no' equal
ed. Of late, this process has been applied to ly belong to all citizens." The terms are
many other cutting implements. The work-; these: The applicaut must ot have violated
man, at the beginning of his noon-tpell. or the liquor laws he must give bond he must
wlieii he leaves off in the evening, moistens not violate the bond: these are terms alike to
Ike blades of his tools with water acidified as i all men. But it is said preference is given to
above, tho cost of which is almost nothing. ' those who were manufacturers when the act
ttnng the consumption of time and labor m passed. We answer that, too, is one of the
whetting, which, moreover, speedily - wears . term. If the act gave to some snch ni.anu
mt the blades. The mode of sharpening here facturers the preference and denied the privi
indieated would be found especially advanta- hsge to oihers.there would be something iu the
geous for sickles and scythes. .objection when applied to a proper case. But
i , J under this sectiou all who were nunufaclurers
A Printer "Oct of Sorts." The editor ; at the time when the act was passed, share
of the Bingham p ton (X. Y.) Standard, thus alike. It will not do to sy that it isimpossi
sppeahta "the charitable feelings of his pjlt. ; ble for ail citizens to enjoy the privilege, be
... , , . a ! cause thev were not all manufacturers when
fs. ve doubt not but many other editors - . T!, at ;mt,,K;i;,c 5c 0,..i
.ot I - l.. .1. 1 !
.vu.u uoul iQis Hireai as siriKino- v aroiiea-
hie to their own individual case:
t i I O . II
. .1. - I
nere is the monev to rorao from to n.iv
kt paper for our next issue? e cannot iret
- t ..j
squin. without the cash in advance. We be a valid law. But i: would not be possible for
liTt borrowed until our credit is gone. We ail men so to do; for every man coul not raise
have worked two vear for nothing and board- the bonds either because he would be too
d ourselves or rather our wife lias boarded .poor, or because there would not be bonds
u '"free gratis for nothing.'. Our composi-1 enough in the world to supply so many men.
want their waes. Our landlord wants "l every man would be euthied to ih same
1H rent. Our chifdren want shoes, and our 'privilege "upon the same terms."
ifo wants a new calico dress. We are out ' 5t section of the act provides for tie
of xd, out of potatoes, out of flour, out of i appointment of agents to sell liquors for cer
?. out of butter, out of sugar, our of pa-1 uin specific purposes.. It forbids tho ap
neuce in short out of nearly ery thing ex- j pointment to such agency of the keepers of
cept a clesr conscience. We dodged the '' irius Public eating houses, boarding houses,
sheriff nntl we could dodge no longer, aud groceries, oyster shops, fruit stores bar rooms,
have dodged our creditors "until we "-an find J confectionaries, museums, theatres, and all
o new pLeC to hide. We have not a shilling placesf publie entertaiumeut or public re
ts our pocket, and our patrons owe us two sort; nor does ii permit such agency to any of
Jhouiand d llarl We ate tryiug to live at ficcr or servant of any water craft. The de-t-jiristia;,
Ulj j,otHJ u j tt to liwaven. It of this provision is too obvious to need
cds us no satisfaction to think we shall not remark, and too good for any reasonable ob
jt oar delinquent pa- rons in that region of jection. Yet the exclusion of the persons
o.ias. Washould grea'ly prefer to hav Utem j above enumerated is said to be a grant of a
ii two rvat duties required of all chris- j peculiar privileges to others, and therefore
, "do justly and love mercy," thereby j unconstitutional! The terms of qualificaaon
moving very" great obstacle to our dwel- j (oT ths agency are that the applicant shall
"Dg together in a place of rest. j not follow any of the above named occupa-
! tions. By these terms every citizen in the
BJTwo things hould be especially kept, i State is bound. And on compliance with
Tl'!,'tI your word and your temper J "the same terms." the privilege "equally be-
whn dealing with a printer the J longs to all cidxena,"
JrT '"putinjj with a woman. This j 3. It is objected that a portion of this stat
ba kt d'cu oul my" done by commit-1 ute is in violation of the 25 Ji section of the
?tne Golden Rule to memory, and irettin?' constitution, which declares that "No law
i. r v. two ironi tue Dooit ot Joo by i
ln-
Vg advertised that i rt -,..t j
, - I":w!TPrin wievetand. U.l
M.. - "vu.u rcuu
a
tj w ineir paper graus for one year, to the !
eJirLTf ' nd there of ten.
rd ,V1 , T 3TUl,g, ja Xhe wnntfj a j
Har-rwl! r "f . ."d d,'mnd,d h'
rmtT according to th ,tir, ,..v..t,i -
! IN THE SUPREME COURT,
MAY TEB3I, 1833.
liOPBKICC BlUI,
Appeal from tbe Ma-
J0HK E. ForDBAT.SnEEirF.4o. )
riuo tomaoa l teas.
APPELLEE'S BRIEF.
coscLceios.
As one among the many important insfan-
C).90f that contemporaneou exposition, in ad
,. . f , ftv-)Ve referred to. we refer the
- -
Tah,! tA tKa act. of 18.-2. entitled "An aotfor
the Incorporation of cities." 1 Ii. Cs. 1852.
p. 203. That act contains 88 sections. Its
provisions are very numerous; yet we think
they all pertain to the incorporation of cities,
or are properly connected therewith. iSome
of the most prominent provisions are upon the
following subjects:
Taking ll.e census of a city ' and ''dividing
itinto wards. The election; and duiies of of
ficers. A full and comple'e set of. rule" and
I regulations for conducting the elections peeu-
I lioiiS oi- voters, hiq,.- me p
M m
ceiirtof record:,? officers
LnnT,,tJ,j finfi ju.J(.
, Tl and:duue
is estabtisT.ed as a
of the court are
enumerated, and their duties pointed out.
His juriedk'ti&ntis defined; and the processes
which he may Isaus; the 1 iik-.s of pjeadiiig and
practice, and the .means "or enforcing judg
ments in 1. is court, , are prescribed. A sys
tem for th3 assessment ofp-bfefty, and the
levying of tales, peculiar U cities, and for
the sale of property tor, delinquent taxes, is
also provided. A common council is crea
ted, with legislative and administrative author
ity, and with extensive powers, dearly defined.
Thirty-five tsubjects are enumerated which
they mayregulate by "ordinance s, to be en
forced by peitaltries under proceedings in 'the
Mayor courT. Thb same statute" also pro
vides for the care and improvement of streets,
bridges and other public improvements, and
for taking privat'-.property lor public use, and
making compensation therefor. Numerous
other topics 'are also contained in the act.
The aot j list cited does not present an iso
lated instance. The whole system of legisla
tion in the entire revised code is the same.
The Legislature which enacted that code have
given us an exposition of that provision of the
Constitution, founded in strong sense, calcu
lated to remedy the abuse at which that pro
vision is aimed, without embarrassing or de
feating fair legislation; and we cannot believe
that this Court will repudiate this sound con
struction, and thus sweep away almost the en
tire code of laws made for the protection of
- s , - , :
'rrai': 8Dali n0 e4u"y "
to all citi-
ZenS.
We see nothing wha'everin this objection.
And if we had not heard it urged in oral argu
ment, we would find it difficult to guess to
what part of the s'atute it was intended to ap-
" . . . '
u.. !...; ..vn.i.-.
L VUCH l.VU IVIIUU..
, . ,
If a law nrovided.
that whoever would deposit state bonds with
the state auditor to tt.e amount ot lUu.uuu
uoi.ars.
mav establish a "fiee bank." it would
snan do passea. ine rasing encct ot wtich
1 jil be made to depend upon any authoritv
i except aa provtaea in tnis eonsunirion. "
Thi objecuon is brought to bear on one
tcord. as it occurs twice in tne statute. I nat
word is "may." The County Commission
ers "may give to any pcrW a licen-e 'o
maautacture. 'The "Ceintv Commis.svoi-rs,
any meeting of tlieir Board, m y arpoint"
. . . . ..
agents to sell.
It is argued that the employment of this
word "may,' in the connection in which it
staads, makes the law to take effect on the I
authority of the County Board. We Lad j
supposed from the last section of the act, that j
it took effect on the 12th dav
of June last. '
It savs so. ' Mav be it is mistaken. Let us
see if this word may forbids its effect. The
authority triven to commissioners to erant li-1
conses, and
i appoint agents, ia either judicial j
ial. Whicii it may be is not mater-
or ministerial
ial to our argument. lor the sate of argu-;
menr, let us .-appose, however, that it is judi-
i cial,-' as tb commissioners are a court of rec-
ora tiw estate v. "jonner, o Diaexiora, )
and as tliey can only grant the license and j
appoint the agents while silting as such Court,
If the doing of these things is a judicial act,
i we have no objection to construing the term '
1"may" as giving to the Court a dicretionary '
j power of appointing manufacturers and ;
agents; for ic cannot be doubted that the Leg-.
' islature may give to pourts . a discretionary
"power- Our .Supreme Court Las always re-
cognized the existence fcf such a power, in
relation to continuing ean'-es, examining wif
i nesses, granting hew trials, and many other
j things; i:i the inferior courts. - JS'o, one ever
, supposed that the new constitution could be
r viated by the exercise of such judicial dis
fcretton. And surely t he grant ot such dis
icretionarv power cannot make the taking ef
i fct vf the law depend on the will of the
: Court; for the grant itscif is the law, and the
'"Court could not exercise the discretion unless
! the faw tool- tfect lefore it ii exercised.
On the other hand, if this power is not ju
j dicial, but ministerial, then a well known rule
jof construction requires that the word may
thai! be deemed equivalent to the term inust,
! or, in other words, is imperative. This rule
j has even been applied to the statute concern-
ling pleading. The" statute of 8 and 9 W. 3, '
j "c. 1 1 , s. 8, provided that suits on penal bonds,
"the plaintiff may assign" breaches, and i
' "may suggest" breaches; and it has always ;
beeu held that uuder these provisions the j
plaintiff must assign or suggest breaches. 1 j
i Saund. R. 58,' n. 1; 1 Black f. 76, n. 1. We j
j understand the rule of construction,- as to
statutes imposing ministerial duties, to be this: f
I in all cases where power is given to do a min-
; isterial act is given by the word may, it shall j
be construed must, if the rights of individual j
i or the public good require the thing to be done.
; There are many authorities in support of this
: rule. The following are some of them: 5
Johns. Ch. R., 101; fi Cowen, 188; 14 SergJ
land Kawle, 423; 1 R'C.'L. H , 46; 1 Pet!,
46;2Salk:. 6093 Aik. R., 146; Smith's Com.,
1 724 to 730.
i But we go further. We insist that upon a '
' fair construction tf the who! statute, the duty
j of appointing agents is imperayve, "whether it
! be regarded as a ministerial or -judicial duty,
The dih section of "the. act authorizes the
; agent to sell, for lawful purposes,' 'to any
person of the aof twenty jone.years, being
iof good ch,aragterfoc'wpriety. and an inhnhr
- ta'u of Ihe couiily in which such liquor i
sold, or of a township or city adjoining said
: county." By this language the Legislature
evidently intended that agents should be ap
pointed in every Ciunty otherwise there
could be no sale, even for medical, mechani
cal, or sacramental uses, to most of the citi
zens of the county where no agency happens
to be established. Again: the 34th section
provides that, in case of seizure of intoxica
ting liquors under the law, and "an appeal
being taken on the part of the State, he the
officer shall deposit the liquor seized with
the county agent for safe keeping, and make
his return accordingly." Hence, i: appears
to be necessary, and to have been contempla
ted by the Legislature, that the agents must
he appointed in every county. Moreover, if
the privilege of buviug intoxicating liquors
be:1, natural inalienable right, and a privilege
of so much iranortanee, as our opponent af-
feet to consider it, it becomes an
imperative
duty on ti e county ooaras to steuro t
Jl-.pm
that rig;., by appointing agencies every wl.re; j
ria l for "i a very rea-on - 'may" ought to b;-'
t o-:s;rued must ia its connection above refer
red i
Besides all tins, if the construction of t:-'
4ih and 5th sections of the act as to this word
"may," be doubtful, and if to construe i:j
riviiii
dis
creiioiiary povve
i' merfly, would
ito-j'i;t to be
make tsse act unconstitutional.
rnn-Orned ' on a w H-kr.own ni'.t ttru-
. . . 1 . i 1 ti r . 1
rule
wiierr uieis re vr orus capaote ot two mean
ings, they ought to be construed as to give
. effect to the statute, and not so as to make it
;a nullity. Smith's Com. 632,633.
' 4. It is objected that this statute is void as
being in conflict with the constitutional right
of trial by jury.
I Tais objection is a mere iufc-renee from
the fact that the act does not formally and ex
' l.- ..:.i. f ;.. ,.:..i t . j .i .
y i . . , ...i i.-i a jui v tti-ll. IU ICilul
objection of any Wei j-'ir. the statu mit-irh- S
. er forbid a jury trial, or provide a mode ofj 1 1 Ull lvyr 01 lut 4 "s now pro
j trial without a jury. It does neither. In- j ced ta 1 whether then is anything in
: deed it plainly recognizes and supposes the t!ie !a''' for' suppression or intemperance
, riirht of trialbvjury; for it provides, in the I coumenanciug an -unreasocUe soarch snd
' 21:h section. for tl.e quaHiIcations of juror., seizure." r directing the siting of a war
and the 331 sclioa expressly provides for a! nint without being "supported by an oath of
jury trial in cae of appeals. Bat we have I affirmation." or without -pattcul.trly descri
general laws for jury tiials in all the Courts, i hmS lh P5ace to searcner, and the person
I o these the statute iinihinhtf rllv rfcr tlia i
fute tind..iih!irll-r rfcr. th i
party accused oft' breach of 'it. .When a
sta'ute creates a new offence, it need not
Vide tor a liirv trial. If this Statute had nr.i-1
ko.1 r.-,-.. i
vided so, such provision would have been ob- J thin2- Eat ver" remattable that the op
jected to by our opponents as not beiur ger- P5i--o counsel, finding thi the statute re-,
main to the subject of the statute. If the i luires a affidavit m all cas where warrants
objection made is a good one. we have no . are directed to be issued, .ctaally object to
: valid law by which a man could h trUi fcsPtr.e statute oecaose k ioroics ine warrant no-
any crime; for neither our act concerning!
felonies, nor the statute reiatic r to miH..2"'t moral cisaracter, rcsilnts of th
meanors. rrovides for a iurv trial Oar viawttT
; is sustained by the decision in the case of Jones T
the People, 14 III. R. 19G. That wat
' Trosecution under an Illinois liauorlaw which.
it seems, did not provide for a iurv trial. P.ut
tlte Court
irf 'said "there is no force in the obiee-iof
non. in atsv nomi oi view, as tne law miiMvvu'i-j' -'- 'j iu cumauk-i
' o r ir..- ; .,.
au,vi,,Y..vu.oiu.4 - J"'J
, rendintr before a iastice of tha r,,r "
'Sours'Sutes TL S '
' .- I f
- .... ..... ,
. : . . . .J.?mrt"m" K"'
ns of this are in violation U the 22ad and i
23i sectKvasof the 4 th article of the constitu-,
tiou. which, in certain enumeiated cases, for- :
. bid the passage of "local ot special law," and i
require that wherever "a general. law caa beu
macte applicable, ail laws shall be general,
-7C!! -.
,m vt um.orm cperauoa inrougnoui tne i
Sue." .. .. .
We auppo w a Untl Uw is nr. the r.prra-1
:o?, of wiison is eor.r'.nel t -A r..r:i,wrnT of
ie A special kw is a private usuu. j
Blaekstone uses the terms "special" an pri-,
vate as synonomous. lie says "special and
private acts tr rather exceptions than rules,
being those which operate upon particular
persons and private concerns." :. 1 Blacks. 86.
It is true that, in our State, the phrases "local
Maws' and
convertabl
in ' in the
these definitions is right, is immaterial to our
argument. Either of tLeui suits our purpose.
And since the objection that ti.a statute unaer
investigauon is. in some of its parts, local and
special, is mere assertion, we -might content
ourselves wnn me t-vuu.e owiwu ti uj
part of the act is, iu auy constitutional sense,
either local or special
But the counsel for the apps i-ii.t say tnat,
under this act, there may, i:i some counties,
bn agents to sell ir.loxieating. liquors, end
none in other eouniies; thatin some counties,
consequently, a man may be au'.e to buy these
liquors, but not in those othet coun'K-s; and
that therefore the law is no v asnorui ojer
ation thro'forhout the Stale. C'-i? the st'i'.ufe
contemplates no such want f wnifoymify.
Xosuoh thing should be presumed. .Kathcr,
it should be presumed tiiat all the County
B ards will do their duty;ail we have seen
that the appointment of ag'sits is imperative,
or at lea-t a judicial duty. Tin' suppose some
of-these County Boards fail fTdo their duy;
can that render the law void? li' so, ever
breach of a law' would annul the law. Our
law provides for the election ef divers officers;
but the people may fail to elet some of tf;o.-e
otiicers; would that destroy ne law ; upon
the reasoning of the appellant's counsel, if in
some county. nobody shouii-ever commit a
crime, our criminal laws never could operate
there; consequently the Criminal Code would
not be of uniform operation throughout the
State; and so the ret concerning felonies and
misdemeanors would be urfooiistiiurional.
According to their reasoning, citizens (and
especially officers) might render almost any
law unconstitutional by refusing to obey and
enforce it in particular localities. But the
constitutionality of a law can never depend
on the obedience of the people. Indeed, with-
out disobedience there would be no use in law;
for "the law was not made for a righteous
man, but for the lawless and disobedient."
It is worthy of remark in this place, that
most of the hardships which the counsel for
appellant imagine must arise from the act for
the suppression of intemperance, can only be
the result of the misinterpretation of the law.
For example, they t-ay that under this act
t'.iere might be no agent near from whom, liq
. uor could be bought iu a pressing case of sick-
ness; that the sale of it, in such case, by any
other person, would violate the statute; and
that a man might be dying of cholera in tav-
era, or other public housvj, and the owner
thereof could neither sell nor give him spirit-
uous liquor without liability to . tho penalties
of the law. The statu 'e justifies no such coa-
(TSuns. - It ourrhtio beonatrned in. view
ot us lutent to suppress n. temperance. Tlie
acts of 1843, p. 979, i'orbale the retail of spi-
rits witnoui licence, ana annexe! no exec p.
lion. 1 et the bapreme Court i.eid ti.at. the
sale of a pint of spirits for medical use was
not in the intent and spirit of the law, and
therefore not forbidden by it. Donnell v.
The State, 2 lud. R. 658.
G. The counsel for the appellant argue that,
those portions of the act ia question which
provide for the search, seizure, and destruc
tion of intoxicating liquors, are in violation of
the 11 ih section of the ilrstarticie of our con
stitution. That s..otio:i is as fallows: "The
right of the people to be secure i.i their per
sons, houses, pnp?rs, and effects, a -!ast un
reasonable search and seizure, shall not' ha
violated; and no warrant shall issue, bat upon
probable case, supported by o-uh cr affirma
tion, and particularly de-cr.bing the place to
bo searched, and the person or thinf to be
seized." .
Upon this section, we tl serve tL.it "un.-ea-tnnaMe
search and f.e'zure" are prihil-ivd;
and that in all c it-s w' er? WKrr..;.'s i. -uj
commanding search or seizw, they mcl be
on oath or affirinauou. and must particu!arly
describe the place to b3 earched, ai-i the
person or thing to he K-ijed. Ti.e section
l as no reference a', all to tlie case of seizure
by an officer
on view." This lias h!wvs
been allowed t rac
officers without anv
warrant or au.uavik.
For tliirty-nine years.
the law of ludiana lias evfr required
peace
whan
officers, who happened to e present
there was a breach of the pn-T-, to seize the
! otlender without afii l ivit cr wai rant. Xo
: body ha c-v-r complained of tha: law. And
yet the je non of a nitu is, ii the eye of the
law, as sacred as any pn-f-ry even intoxica
ting liquor can be. It is only, therefore,
where a warrant issues, tlia tiie person, place,
or thing must be particulary described, and
a fad
a vi
is req
sired
. . . . , .
or thing to be seized.
special laws have been used , seizure, confisetion, and destruction, which i numerous other instances of forfeiture ia civ-
y. And this may b their mean- are provided for in sections 15, 16, 17, end 18. ; il cases, but we will simply specify the case f
constituuon. But whichever of This is for the avowed rurrose of ab&tincr the ' a tenant for live who forfeits his estate bv corn-
&5 far as the issuing of tbt warrant without
nro-ioata or affirmation is concerted, it is notpre-
tended tnat ine statu e auuorues any such
teaueu voai me s-.i'.u c """'uwa any sucn
less "P00 tht afliiavit - tf '-three ' persons .'
- " This -pro-nsion, malt to avoid th
unreasonable and flimsy objc'lons t.
they torture? into a design c the pa
Legs.-atnre to authorize coipirac:es against.
innocent liquor sellers! A if "three persons
'S00'1 moral character, residents of t
the
would be more Akely
Drriarr Ikan one iiersoi waiJ b! Thi nh- !
. " ., ... .
lection we suppose tne teanra counsel JOT toe 1
appellant would call reasons. , .
."Tf AnWVt W.t t K. ircT-.i w .:- - -
IJ i .L-i , j . r- . r-r .
ni uutiinT
nnEi insi wirrn xtih se z-H( i i n -r : . . . r. .
ianaT is tinder all rirenmrr 'm?-
! V' S . . " l IVt '.mCOn
...V " '"-'-" . 3 ,? , . , J
w lual Ka. TV- L 1TJ ln
1 tne 1
powet i
cised, both in the Federal ad State
'' i
ft-. - i
on this subiect contained inhe act in mM;
. - "
(ou.
See 1 1 "f the -act"potide, lhaf aTl
. OT 'ae r.rTia? Tnsr 'U and e-trav. mav be taken p and ifrpoaaded.
1 int-.x:ea:ing u,iors. intended by wi.hout proeeWt'an-! mav be soli for iLe pav
r keeper to b mi ia rwiauoa of meat of costs and daautiea.
apinaoa3d
or
jlaw, and the vessels containing the same, shall
be deeraed to be a nuisance, and shall be for-
felted and disposed tf as the act directs. Tha j a
'subsequent part of the-net provide, that theja
i liquor declared to be a nuisance shall be des- j s
jlroyed
This lays the foundation for search,
owed purpose
! nuisance declared in the 14th. section, and of'
i giving more complete effect to th? prohibition
(against nianuiacfunng and selling. The right
.of the government to enforce -erch, seizure,
and confiscation, in just such caes as this,
ieeu wmiMin cnceuea hi uii t'oumry,
and in Great Britain: nnd wo submit this
i proposition lor rne conMaemtTonot tt-e court:
it is a general rule to svlject the inUrd-fted
1 arifle to search, seizure uid emti s'aHnn , tehen-
t'.i- an illegal sole of such article is tit'emted.
, e t unlets v. IliO Ocean In. Co., t Uw.
104.
As the Constitution
of the United S a es,
relative to search., and seizure, i tLe same as'p
I the Constitution of onr S
: brief! v refer to castas arisin
"ate, we wn nrst
under the U sited '
j States laws.
j Tor a violation of the acts of Congress
! against the slave-trade, the vessels engaged
' in tin. -M,.if ti-uil.j orj li-it.i r. "T fi.j'!iTi' SI.
I j. hid t o:i ennttzed countries, n-here tko State ot hatse weights and met.Aure. and the aie wf 1 pie via will not be allowed, to take the th'm-j
.as itUe: dicleJ rotumtrre in any otticU, cn vc-, wholesome roviiou, Lave constantly work- i charged and seized as a nuiMnoe, out of the
: court of its supposed injurious effects , or -jed forfeitures. Kinds of food usually sold ! custody ot the law, until the proceed :us
til "a ti.r or hirii? shall hav If en ; oil thereon, ' without restriction, have in times of contagion Shave terminated. Such a course would de-
The Emily and the Caroline. 9 Wheat. 381; ' fPPf oramrmauon. anaparttcu-
i (5 Cond.'U. 623 ) 'And it is necessary 'hat Jf '-v desenbing ti e place to be searched, and
Uhe vessel should be comrletelv titte.l and I the person or thiutf lo be seized. Jhis sec
trendy ibrKea; but the forfeiture " is incurred, i "( e co.istimuon applies to the search
and the right of seizure accrues so soon for. and euure of rm, and th-.nys, and
the preparations have proceeded so far as . nt. .opiates that the exercise of tue power
Clearly to manifest the intention to engage in : as 10 trvnl d nee8S-
; that trade. Id. See ref -rence to other cases rJ f1"5" -Th du!J' f he b;a; r
u .. i e;ers
i- .:,t, t.j
So, for a viola1 ion of the
nori-iatereourse
act of March 1, 18o9, there was a torieimre
of the goods upon the comuiision of the of
fence; and such forfeiture was held even to
avoid a sale toinnocent purchasers before any
seizure was made; and all this took place, :
though there might have been a regular per- j
mit for landing the goods, and though the.
duties had been paid. The U. S. v. 1960
Bags of Coffee, 8 Cranch 393. See refer
ence to other cases in Pet. Dig., title "Forfeit-1
ure." i
So for aiola"ion of the Fishery laws. If,
; a vessel licensed for the cod fishery engaged ;
in the nuckerel fishery, the vessel was there-:
fore forfeited. The Nymph Ware 27. See, ;
also. The Sloop Active. Paine' C. O. R. 247. i
So far for a violation of the Revenue Laws, j
i U. S. v. 350 Ciiests of Tea, 12 Wheat. 486, j
: (6 Cond, R. 593.) See, also, title "Revenue!
. Laws," Pet. Digest. j
j ' So, also, for piracy, under the act of March
3, 1819, the vessel is forfeited; and the in
uocence of tho owner does not withdraw the
lyessel from the penalty of confiscation under
il;t Hn. 'lire J . v. I'U Ullg M.liek. AUUel,
; 2 Howard 231.
Congiv-s, by act approved June 30, 1 3 ,
made it penal for any person to introduce, or
afemnt to introduce, any spirituous liouor. or
wine, into the Indian Country; or to sell.!
barter, or give away any such liquor to an
.Indian, ia the Indian Country. The act al-H
made it the duty of the Supeiintendeiit of In
dian affairs, Indian agent, sub agent, or com
niander of a military post, to cause tlie boats
stores, packages, and places of deposit, of any
' white person or Indian (upon information
. that such person had introduced any spiritu
ous liquor or wine) So be searched; and it any
smritii.ms hoO'
r or vin .'
. 1
I i
irooils, boa's, p.tcfeages, a'.i
ries of
sue h
pe.son should be .-eized ar.-i d "
prosier o;"l:vr, wi.tv -i shouli !
sgaiiisi. by libel 'in the pr.;...- e
red to th
prov!'-.euea
i v ana i- .r-
feitcd, or.e-half to i:;
half to th United S:i
lawful for atiy person
S::.tes. cr any inttint:
5 'ti s ur V.T.i fJilU
he
11 1
e srviet-
to de
1.1 A'
v a i
V
i ii.tii..ti Cv.natry,
-.. sect, HO. It
p-er-on sl-ra'.i 8et
limits oi the In
U
' also provided that if any
up. orcon'imie. within th
dian t oua ry, auy ais utery lor manuiaetnring
ardent, (-piiits. he should forfeit an 1 pay a
I penal' V, tVc
and
U wa-i madf
ine duty ot jvny i
jS-.ipennteud.-nt,
; jury, or tri-d, or
In.i
fcc, ( without
process of law.) fn-Uiwrh to-' deciueii to be a sufficient
k up the satno; and it should I crtbe the thing to be seis
loy'the military force of tUeU 'he statute, as spirit,
.uestrov ana orea
: be lawful to employ
Uuiied Slates to execute that duty. .M.?!
! li was also provided tnat it should be lawful! - H. 564. The entire opinion is fouod in
ifor the military force of the United States, to! Livingston's Monthly Law Magazine, Feb.
! be employed, under such i gulaiions as the -u- -?tiaj ? 13. .. ...
President might direct, to arrest any person j We may a id in this connection that the
j found in the Indian Country in violation of the i right of tlie State is not affected by any irregu
1 provisions f tlie aer, an 1 to remove him from , hiiity of the officerj ia rosking the seizure,
' the Indian Country, and deliver him up to! if the property was in. fact iiabie to forfeiture.
1 the r-ivil as'hori'v of tlie Territory or Judicial! The Government is not bound down by the
district, to be proceeded against
?t in due com se !
: of law. A similar iaw for the fame purpose, '
had been enacted bv Congress long befor , j
which wi still in. force when the law of 1834 United Sates, 16 Peters 342. If the Got
- was past k.J. . Under the former search and erument adopts the seizure, and the property
, seizure laws of Congress, there was a seizure j is Condemtied, the officer is justified. Gelston
jof seven kegs of whisi-jy, one keg of shrub, i
and sundry wares and merchandize made by
the L'nired fctate officers, in the Indian Coun-1
try lying on the West side of the Tippecanoe!
River, within the territorial limits of Indiana !
The case was tried in the District Court of In f
diana, by a Jury, and a verdiet found for the I
; United States. The lawfulness of the seizure !
of. the liquor was not questioned in the case;
i but the law was enforced, and the seizare was
; zure. of the liquor.
tpany v. The
i.. ... i,
coins and bids. OUrT UcketSCuiintrrfoiTt,,. ;
. i i . r
appaTauis and .implement, of gaming ; are
consiaerea uuiaacces, ana it i ine ttuty t t
rlufw rJ i
. . . .
tte court to order tim to be destroTed. wh&w.
. . . - - . ..
e,tt av ,c B1eu Bnu oroagm to UM notice'
,ot the courts, Fcrmerbr w had a statr orv
a statutory r
324,' p. 141.:
nrovisioa to that effect.
R. S.
U- .-
w here there js no statutory regnati.,n to des
Xroy sacli thiags, the court acts under the ;
connao'n-!aw rule, that nuisances must be aba-
,lej: t i ersonai property may also be seized
and sotd ior the non-payment of taxes. Ani-
mal running at large.- trespassing animals.
. t ,i - - -- .... t i.o rrt?i jrrBon wuom iaey see etl-a'eI m
- ,4 Court; and the iudment was there reversed. ; ar.v vi.4ation cf tn r.rr,;.i,! nf tJJt 't
cm 3 - . 1 J J 1 t i ' J r. - . .- .v.. v. v,. ,., mil
. . jj.-v. --"'iiu seiic nix nqaor aepc rn yoiation tnereof.
tT-alj o'V -"-'M lueuMis anujtuice qj w commission ot such
. e jmstrncaon to the Jury relative to the seizure . rftnee. and to store such liquor end vessels
i oi the of-eAcr r ropertv, in t?onnecuon "with the sei- ? .n'nimnr tt, i
rrt. a r-
1 ne American r tir t om- to be disposed of as other lia uor seized by I "Such, howerer. is not" thm twineinU r,ft
United States, 2 I eter. 353.- virtue of a warrant. The adverse counsel do ' which the Almighty rwrTv .f- wr.r!,! rir-
to the- following cses arising un-1 not c tject to the arrest of ti e offender upon 1 made man free marent. and tti im him m.or.
Counterfeit money, both ' fiVtr, for this has Wen the i law and usage, ia. ,tunjty to exercise his will, to bo virtuous or
In gamirg contracts, and generally ia all
al contracts, the adventurer loses the
ille
amount iavolred. Until very recently, takinar
uurv, and even the contract to take usury,
subkcfexl the offender to the entire loes of
principal and interest. We mijjht, also, ' add
mining waste. Th
ran! for stolen rrood
le instance of a stare A tear-
goods is too common and
weii
t understood to require further reference.
j The rijht of seizure and forfeiture for vio-
j lations of municipal regulation under town
ani uy ctmrter. tstamiiiar to every one.
This power La been freely exercised in ref-
, erfiu-e to market reguimious. m which the use
' ben prohibited; and on a violation of such
j prohibit on they have been for eited and des-;
j trove as mii-sse. '-The arne rules are ev-
, es y where hi plied to hogs, do;j, and kine rnn-
i niiiir at laie in siietts contrary to city ordi-
na:
.is. tstc1n;, gunpowder in populous
-es has also of leu worked a forfeiture of it.
r,!-..
as
we have aii'L-aJy seen in
th Liceuae
t;li.
A reaoi2fyesearch and seizure, in all cases
whcie the seizure is not "on view" of some
peae. officer, is. by implication, defined to be
one made bv warrant upon the probable cause,
: resi ouenuers is on. in i , :u no inaucs, si.o i-
I lit H i rts trie Jinie. ii: naui.iuiini iu;y
and
... frA afM-v:f -j ,..
: . . .. . ...v. ..........
I and the onnsand allegations of each. The
seai eh for liquor kept for sale in violation of
law, is a search for the instrument of crime,
i Stiictly speaking, the instruments of crime
' are uot pnperty ; they are nuisances, and not
' under the protection of. Use law. Their des-
truction is an essential to the existence of the
government, as the power to arrest and pun
; ish offenders. With what plausability, then,
c in the counsel for the petitioner insist that
the search for the instruments of crime, en
dangers the peace of community, or violates
ihe rights of individuals, more than . the
searcn lor
a 'id seizure oi the
criminal? We
have the following provision id our statute
authorizing the arrest of persons upon a crim
inal charge. Of eoorsc it confemplae9 that
the officer should" !"j armed with the proper
warrant. "To make an arrest in criminal ac
tions, the officer may break open any Outer or
inner door, or window of a dwelling-house,-or
other building, or any other enclosure, if,
after notice of his office and purpoe, he be
teiused" admi ttjinctfT" rKT8. T"52", p.' 38.?.
We submit that i Ls competent for the LegiIa
'-ure to confer the like authority upon officers,
J when armed wih tlie proper warrant, to seize
i lhe instruments of crime.
But it is said by the adverse
counsel that
the search and seizure provision in thi- s'a'ufe,
is void, because i: does not provide that the
thing to be searched for and seizod, shall be
pan iituUu iv described in the affidavit and war-
' raf.t, a:;d that this part of-the statute violates
the Kecnou ot toe constitution in question.
We answer 'h it the statute does not violate
the constitution unless it requires something
inconsistent with the constitution, and the
adverse party doe.s n.-.t insist that any sneh
thint' is required by the -law, but only that it
! fails to re enact tills ""rovision of the eontitu-
fl-i. ...... -.!. r .1. t
.in. l r.e s'atute provides tor the auidavit
and warra:-.. tuid the constitution provides how
the a iiduvit shall describe the thing to be
seized. Both toutther make the hw complete.
Tlie question as to the sufficiency f the affi
it., car. only arise ri-pon a motion to quash;
ri'i j upon such motion the Court will examine
the affidavit to see if it complies witii this
pri.vi-ion of the constitution. IJ-ut we insist
at t'.e law requires a sufficient description.
of the tiling to fx? seized.
in
the
use of the
term "sptniuous or thmxicatnp iteruar. I bis
very point nas tn?en aajuatcateu in tne ouprcme
"-our1., A the b ate ot Maine; and there it was
seized, ia the language
nrituous liquor, or ,in-
t-utcatmo li'uor. Ihe Mate - v. KobinsonV 3
act of seizors, if tho seizure can be maintained
as four.
of the
ied on an actual forfeiture, at the time
seizure. Wood, Claimant, - The
et ah v. Hoyt, 3" Wheat, 246, (4 Cond. R.'
344.) When a seizure is made upon an in-
sufficient complaint, it may be amended after
the return of the seizure. The Harmony, 1
Gailis. lib; 2 R. S. 1852, p. 48, sees. 97, 99;
The Mary Ann, 8 Wheat. 380; Tbe - Divin
Pastora. 4 ib. 52; The Edward, 1 ib- 261 ; The
Adeline, 9 Cranch, 244. See, also, v. The
William Penn, 3 Wash. C. C. 484. v.-
Section 22 of the statute authorizes officers
ail tho State fttw TTnirmsiBf-e their earnest
3 , . Z
hisicn". and its proprty hasneverbeen o,u,-r
tio-ied- But th ju-i7iiri .,f the infttrutiienbi 1
none
lot crime. the bottle, the vm. or tlte barrel, and
. . - .
- . w . ,
s cvnieras. vjKin ' . i oousjuereu a great
outra- Indeed it is supposed to be o ouU
O ' . . S-"-"-.-
j raareous, a to nullify every part of the lawr 1 have easily enacted a physical prohibitory law
' li ia a hid Macular that the oncont-nta of tfcia'k. .-f.,-r ,t ft ,T. nnU..A nA
should decta a jug .of.wloskto bo.aoliremoTini; Ifc, '' He 'did not. " Hui nrpose wa
much more sacred than the.ldberty of a man,
that while they do not object to the: arrest of
the effender on view, they direct all fbeir op-
position to Ui seizure of the la? or barrel of
liquor, oa view, as the instrument of crime, -
ahhough declared by the law to be anuiance.
cases of asjavtlt aad of iaurder, it has al-
ways been customary, when arresting tfc
'offender, to seize and take from him the intru
iments by which fce was committing tha of-
' fence. -
Objections are also made to the Slst section
of the act that it compels those wfao claiai s i
j interest iu the liquor seized, to assert their
claim upon the trial, and forbids them to eon
; test the validity of the judgment in a cc'Ia-
teral prooecdin. or otherwise, except, by a
, acience or arp
appeal of the actio u ia which the
; forfeiture is declared. We confess that wo
'cannot see the force of this objection. Her
'ia proceeding in rem, that is,' eaaimst tha
intrtg. to aestroy it as a nuisance, ine tun-
cipe i well established, that in a proceed in
in rem, to abate a nuisance; the action of re-
'feat the proctjediug. and nullify the law.
' Neither can the validity of a proceeding or
f judgment in rem, be contested in any other
actKn than the proceeding in which the for
feiture is declared. Siocum y. Mayberry et al
2 Wheat. 1, (4 Cond. R. 1.); Oefston et. ah y.
Hovt, 3 Wheat. 246, 4 CoadL'R. 844.)
We have sovcrul iustancea where those who
claim an iuterest iu property which is taken
into custody are restricted to particular rem
edies. When land is taken for a riirht of .way
!by a Railroad, Plaukroad. or Canal Oomp:n
! the owner of the land is restricted u-l;
remedy provided by statute. So in the -n.
I of attachment of property in which .no
jollier person than the defendant claims au i:i
; tercsC. 2 li. S. 1852, p. 67, ec. 169. Au !
( in the case of property taken in execution, if
a person not a party to the proceeding claims
an interest therein, he must adopt the rem Jy
provided by the statute, 2 ii. S. 1852, p. 1JJ.
' ' It has been objected that tha statute pro-
Ividcs not only for seizing and confiscating tho
! proscribed liquor, but also require that the
I unofiending vessels in which it is contained
shall be seized and forfeited. This objection
may be answered by the authorities alrt-aly
i referred to, in which, as we have seen, the
unoffending ships designed as slave 'ships,
together witn their unoffending "tackle, furni
ture, apparel, and other appurtenances," were
forfeited to the United States. See 1 U. S.
Statutes at Large, 319. And we have seen
that a like forfeiture of unoffending properly
was provided for in relation to the suppression
of intemperance among the Indians; in which
case, the act of Congress prescribed "that if
any person whatever -shall, within the limiu
of the Indian couutry, set up or continue nny
distillery for manufacturing ardent spine-, he
shall forfait aud pay a penalty of 1,000 dollars;
and it shall be the duty of the Superintendent
of Indiau affairs,, forthwith, to destroy and
break ifp the same." 4 United States a'. Largo
733. - What a pity to destroy tho uuoITku tin
distillery! u Vet the net of Congress was hell
cons'.ituiionah " The same reason applies t all
these cases. The vcaseli containing the liquor,
the shrps and their appurtenances, and tho
distilleries, are intended for unlawful purposes;
and they are thoi-efore lawfully forfeited.
We have thus, as we conceive, sufficiently
i. .1. . , ,- - J
snown i.iai, w ue. ner, consiaerea in reierenee
to implied or to constitutional limitations unon
leiisia
slative power,, our statute for the auj-piu-s-of
intemperance is valid. In doiii ' so.
ion
we have examined all the objections which,
so far aj we have been able to learn, have
been made to it by opposing counsel. We
have not, indeed, had the opportunity of read
ing their briefs before preparing this argunua..
In those briefs, they may have started objec
tions which are not here noticed, and circd
authorities-to which we have-here no cur
tuiiiiy of replying. But wo regard this'a a
1 matter of little consequence. .1 or we arv in.-r-
,1... ,.,.. . ' . - I.
Buanea tnat no vand objection can b-s brought
against this law. Indeed, we are satisued
tliat much of what we have done in this ar
gument is a work of supererogation; partly,
because many of the positions assumed by u
are pdain enough without any argument, and,
partly, because we are confident lliattLfj Jul res
will not consider themselves called on in this
case to do more than determine whether so
much of the statute as prohibit the manufac-
ture and sale of intoxicating liquors, it valid.
iveaity, to ask tliem to do more is to ask a
most extraordinary thing. To demand a de
cision on the numerous provisions of this act,
is, under the circumstances of this cae, a
bold demand. A like dtmand, under like
circumstances, we believe, was never before
made upon this Court. Such a demand by
a voluntary martyr, surely is, to say the laa.-t,
not a very modest one. ----- ' -
But should the Court take a different view,
and regard the demand as reasonable, wa f. ar
not the consequences. For we verily believe
that this law is not only valid, but that i; "ij
holy, jnst, and good." And, even .if the
Court should doubt the utility oif the stat-fe,
.j we are sure the Judges cannot doubt its vali
dity; and that they will adhere to the rule pro
pounded by his honor Judge Stuart, in 10-p-ley
v. The State. 4 In 1. R., 265, in which he
deel ares that, "Wliether tlie law is poli'.i;;, or
expedient, or necessary, is not a question with
which the Court have any thing to do. That
' h between the - People and those to whom
they delegate the temporary power of miking
laws. If the act is not a reflection of public
sentiment, neither the responsibility nor tha
remedy lie with the Courts."
.jj avid Mcdonald, v
TX ARRtlTT A, PflHTPB 1 aaurneyt
NEWCOMB h HARVEY, f or "
" IT. B. TAYLOR, " J AjtptUts.
Perkins is immortal, and his worki sre
wonderfal. He is going to preach again "for
the social hilarity, and enjoyment" of his
hearers, from the steps of the brewery. No
doubt the novelty of the text will draw out a
crowd- , .
1 -rituv,m n. ) tKl.l 1. V rt
t ., """""- e..-r.j-, i.c y,m.
weU as gocj before him, lnifni the apple into
the garden of Eden, and left upon man the
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question and left it so. He enacted as to that
a moral, not a ohysical rrrohibaiion. , He could
i otherwise, and he has since declared that the
1 tares and wheat shall grow together tothe
of ti e w.
'law. be"
orid. 1 Man - cannot, by-'urohibttorr
robbed of his free -HPSY.---Se
1 Milton's Arcopagirics or speech tot liber'y of
lualiceesei Drintin-r work?. voL I. n. ICG."
j PitiM. -ladiaaa Journal.
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