1:
THE PALLADIUM.
! HJBUSHZD EVERY SATURDAT BY -
B. W. DAVIS, ;
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One aqnan en , 1 no ,
For each ubMqoent insertion W-r
k - quare.,
60
- 1 One qare three tnontU... ... W
i One wiaHe u montti.
9 00
, 4 One sqakre one yeiur....
.,16 00
HOLLOW AT 4k EAYM, Praarletara.
"BE JUST AND FEAR NOT! LET ALL THE ENDS THOU ADTST AT, BE THY GOD S, THY COUNTRY'S AND TRUTH'S!
-. - '
I One-fourth of column one year. 33 00 ,
k Ti One-hlf of column one vmmr 62 m
mree-rouruis of m eolamn one yr. 70) '
One oolumn, on year, diaatenble ;
I qurterly , too 00
TEIU.
One year. In 4vance
HI month. " .
eieo1
40
YOIifXTmi
KICHM(MP WAYNE COUNTS
.WlMlO
O.' 28.
Three moittha tM
WoUeeo ! ema mv ltee. -
Hi. H
r t n - A m
THE ABSORBING TOPIC.
PBOOBESA OF THE LUtrOR CASKS.
CewUaaeel IMmvmiIob.
THI kSSVHXST OF . TB2 BOX. ALBEBT O.
POBTEB XBW k UNEXPECTED POINTS
W FAYOB OF TIIE OOKSIITUno-JAUTY
OF'THE LAW THE CASE TAKEN UNDEB
ADYISEXXNT BY THE COUBT.
The Hon. Albert G. Porter in be
half of the State presented the.,
closing argument yesterday, and it'
is presented herewith in full:
May it please the. Court; To
maintain public . order , is .declared .
inJthe first clause of the premable
to the Ccmstitntion to be one of the
three great ends for which it was
ordained. The first section of that
instrument declares that all free
gorernments are .instituted for the
peace, safety and well being of the
people r To maintain public orde ;
and to conserve the peace, safety,
and- well-being of the people is,
therefore, a high duty with which
each department of the State gov
ernment, within the sphere of its
appropriate functions, stands
charged That the intemperate use
of intoxicating liquors is the great
est of the obstacles to the mainten
ance of public order; that more
than anything else it interferes with
the peace, safety and well-being of
society, all candid men confess.
That it chiefly peoples our prisons;
that a largo part of the burdens
' imposed upon society in maintain
ing efficient police reglations in the
State,, the counties, the townships
andoities, are directly owing jsS
it i that it is the chief foe of the
household, upon the virtue and in
telligence of which alone can a free
State repose -that it makes home
the abode of poverty and ignorance
and brutality, and often a seed plot
of crime these things are as well
known as that the sun rises in the "
morning and sets in , the evening.
Whatever; enactment, . therefore,
cornea ffrom the legislative depart
ment before the judiciary meant to
strengthen the foundation of pub
lic order and to promote the peace,
safety and well being of the people,
by restraining or suppressing this '
overshadowing evil, ought to. be
met by the judiciary charged with
the upholding of public order, with
earnest welcome, and - not over
thrown nnless liable to constitution
al objections that can not be over
come. From the beginning of the
State, statutes meant to suppress
this source of public disorder have
been on our statute books. The
business of retailing spiritous li
quors has been from the first one,
of State regulation, and efforts by
legislation have been repeatedly ex-.
erted to suppress or restrain it
This Court has held that a law
which might prohibit retailing al
together, is not liable to objection
as being repugnant to the constitu
tion. The constitution of 1816,
containing a provision precisely
like that in the present one, con
cerning the vesting of the" legisla-f
tive power in the General Assem
bly. Its language was, 4(4The legis
lative power of this State shall be
vested in a General Assembly,
which shall consist of a Senate and
a House of Representatives."
Const 1816, art 3, sec. 1. :
So early as 1818 the legislature
enacted a law that no person should
sell liquors in a less quantity than
a quart at a time, without a license
from the County Board, which
could not be granted until he had.
produced a certificate of twelve re
spectable householders that he was
of good moral chiracter, and that
it would be for the convenience of
travelers for him to be licensed.
He was forbidden to sell liquors in
any quantity on Sunday, or to anj .
minor, apprentice or servant, with
out ..the consent of his parent or
master; or to any person in a state
of intoxication. . He was likewise
required to give a bond that he
would not permit any gambling or
disorderly conduct about his house,
or other breach of the law. Laws
of 1818, p. 296. In 1821 the
LAW WAS CHANGED
as to require that the certificate on
which the license might be obtained
to be signed by twelve respectable
freeholders.
In 1832 the law was again chang
ed, by allowing the county boards
to issue licenses, on the applicant
producing the certificate of twenty
four freeholders of his town or
township to his good moral charoc
ter: but if the town or township
did no. contain twenty four free-"
holders who were inhabitants (as
perhaps many did not at that early
day) the number might be compu
ted from freeholders in the imme
diate vicinity; but license should
not be granted to any person resi
ding within any town or township
where a majority of the freeholders
remonstrated. Rec. R. S., 1838, p..
582, sec. 5. This continued to be
the law until 1843. . And this law ,
was sustained by this Court m '
Woods vs. Pratt, 5 Blackf., 377, in
an opinion delivered by Judge Sul
livan. The statement of the case;
by that honored Judge shows that
a majority of the freeholders of a
towWiip had filed with the Board
of iJSinniigsioners a general remon
strc.o against the licensing of any .
persm to retail liquors in the town
ship. . Ia relation to the case and
the' effect of this particular remon-"
strance the Court said: '- --.",
"The law is that no license to
retail spirituous or strong liquors
shall be granted to any person re
siding within any township where
a majority of the freeholders in
such town or township shall remon-"
strate against the same.'; The- ob-.
ject of the law is to protect the
public morals, and preserve the
peace and quiet of society. Being
designed for the public good, it
should be so construed as to pro
mote it . T " ? " i ' 1
i "U the construction contended
for by the defendant should pre
vail, it would impose upon the ma
jority the? necessity of watching,
and opposing by a separate remon
strance, each individual application.
That would be burdensome. The
statute does not require such a con
struction to effect the design of the
legislature.' The evil which the
statute puts in . , the , power of the
majority of the freeholders to re
move, can as well be suppressed by
a general remonstrance against all
applications as by a remonstrance
in' each particular case. It
clear) v expressed to the Board of
Commissioners the wisn of -a ma
jority of the freeholders of Brook
rule that shops for the retail of u
qnor should not be licensed among
them." ' i i " i , , ;
It will be observed that the law
of 1832 gave to the county boards
(first) authority to license the re
tailing of : spiritous ; liquors ; but
( secondly) not at their discretion,
but on the certificates of a fixed
number of freeholders, '; which
(thirdly) might exceed in the whole
number of freeholders in the town
ship; and ( fourthly ) if a " majority
of the freeholders of the township
remonstrated, no license should be
issued. There was, in that event,
total prohibition, v The law now in
question before this court -bears a
close resemblance to that of 1832,
though it is not so severe in its pro
visions. It forbids the selling of
liquors to be drank upon the prem
ises until a permit shall first have
been obtained. ' To obtain this per
mit the applicant must obtain a
number of signers to bis applica
tion, being voters of the township
or ward, equal to a majority of the
voters who "cast" their ballots for
Congressman at . the -. preceding
Concrressional election. '-' The board
is required to examine the apphca
tion, and if it is satisfied that it is
in the required foim and- signed as
prescribed by the law, to issue the
permit The -, r "i
i VALIDITY OF THIS LAW J
What does the Constitution mean
course of legislative practice and of
judicial .decisions. The rule is a by
familiar one that where a constitu-
tij-inol TMrtviairm io HnfrnurfkA from
a sister State, reference will be had ' Doe & mean the application of the
to the indicia!' decisions of such
THE TAKING EFFECT OF A LAW?
State, made before it was borrow
ed, for i its interpretation. How
much more ought respect to the
course of judicial decision and leg
islative practice, under a provision
of an older constitution, to be re
spected when it i3 tiansfer red into
a new, after the construction given
to it has become established, and,
I almost say, woven into ' the tex-;
ture of the popular mind. How
fixed that construction becomes, is
shown by the fact that the practice
which had grown np under it has
been repeated in almost numberless
legislative enactments under the
present constitution. Thus, to give
a few among many instances under
general laws passed by the legisla
ture, persons desiring the incorpor
ation of towns, after having caused
a census to be taken of the inhabi
tants within the proposed limits of
such towns, shall present an appli
cation to the Board of Commission
ers signed by themselves and not
less than a third of the qualified
voter a !lf at a vote - taken, a ma
jority of the voters vote 'ye8," then
the Board is required to make an
order that the town has been incor
porated. I. G. & H., 619-621.
And this law lias been recognized as
valid by this court 38 Ind., 41.
So under a general law for con
solidating incorporated towns with
cities, the common council of a city
and" r" ,...t . ;,
THE PRESIDENT AND TECSTEEJ
is called in question as being in con
flict with three clauses in the Con-
afif.rit-.irtn
1. That which ordains that the
eislative authority of the State
shall be vested in the "General 'As
sembly. Const, art 4, sec. 1.
2. That which provides . that no
law shall be passed the taking effect
of which shall be made to. depend
upon any authority except as pro
vided in the Constitution. Art 1.
sec. 25.
3. That which provides that in
all cases enumerated in the section
preceding it and in all other cases
whore a general law can be made
applicable, all laws shall be general
and of uniform operation through
out the State. Art 4, sec. 23.
Under a previous constitution, as
I have shown containing a ' similar
provision respecting .the repository
of legislative powers, laws had for
more than a generation been up
held, which confided to the people
a power similar to, and indeed,
greater than has been confided
to them in the act under discussion.
in i respect' to preventing persons
from selling intoxicating liquors
without a license. It seems never
to have occurred to the judicial
mind in those earlier days that to
make,' not' the '. enactment but the
application of a law dependent up
on the event of the approval of ihe
maiority,v6r a less number, of the
persons to be affected by it, clothed
that part of the people with a leg
islative power. Laws were passed
upon many subjects, the applica
tion of which to particular cases
were made to depend upon an an
tecedent petition or "expression of
a part or a majority of the persons
to be affected bv them. To cite a
few among many instances, the
Board of Commissioners were em
powered and required to direct the
laying out of highways, but only
on the petition of a specified num
ber of freeholders. The trustees
of a congressional township migh
lease the school lands for three, but
by a vote of a majority of the vo
ters of the township, but not other
wise, they might lease them for ten
years. They might sell the schoo.
land in the township, but only when
a majority exceeding fifteen of tbe
voters had, by sa J vote," instructed
them to make the sale. R. S. 1843,
p. 261. The inhabitants of a school
district might, at a meeting, direct
the building, hiring or purchase of
a school house, fix tbe sum to be
expended for it determine the
amount of work to be done by each
able bodied ,man toward building
the school house; and the amount
at whieh any such person might
commute his tax. R. S. 1843, p.
316. This class of laws was uni
versally esteemed valid and upheld
by the courts. Powers, also, wliich
were essentially legislative, the tax
ing power (which this court has
held to be so) among others, were
delegated to counties and townships
and cities, and the constitutionality
of this delegation of powers remain
unquestioned. - When the provision
. t A? 11 l . M A -
tnat toe legislative auinomy oi me
State was imported from the old
into the new institution, it was
imported into it with a full know!
edge of the construction which that
provision had received in a long
Of a town may agree upon- terms of
union, and on a day for an election
to obtain an expression of the vo
ters, and if a majority of the qual
ified voters of both town and city
shall vote for the consolidation, it
shall then take place. I. G. & H.,
241. So under a general law, an
incorporated town may become a
city, if a majority of the qualified
vpters express themselves in favor
of it by a ballot, 1 G. & H., 217,
s. 6. So - under a general law, a
county seat may be changed when
two-third of the legal voters of the
county have petitioned the Board
of Commissioners for such change.
And the mode prescribed for de
termining the whole number of vot
ers in the county by adding twenty
per cent of the number of persons
.who , voted at the next preceding
general election. 1 G. & H. 196.
And this law has been sustained by.
thiB Court ' So a hew county mav
be organized, or the boundaries of
two or more counties maybe chang
ed on a petition of a majority of
the legal voters within the limits
to be affected. And the mode pro
scribed for ascertaining such ma
jority is (as under. the present tem
perance law) by reference to the
vote a.he next preceding Con:'
gressional election. I. ; G. : & ' II.
191-193. s .
So the Boards of County Com
missioners may purchase grounds
for agricultural and horticultural
fairs, but only on the petition of a
majority of the voters of the county.
(Acts loTd, p. 118.) bo, in respect
to the sale of Congressional town
ship lands, the same provision is
made by law that existed under the
former Constitution that they can
only be sold by the trustee under
the direction of a majority of (he
voters of the township. X. G. &
H. 548.
So grounds for Agricultural and
Horticultural Fairs may be bought
-how! ..' County -Commissioners
may buy on petition of a majority
of voters of the county. So as to
sale of county and township lands
there is the Bame provision now as
under the old Constitution that
they can only be sold by the trus
tee under the direction of a Vote of
a majority of the electors of town
ship. "j.'-v'':";".:
-i To be allowed to do these several
things are matters of frequent and
pressing importance. The Legis
lature withholds the power thus
forbidding the thing to be done
forbidding towns to be incorporat
ed or to be consolidated with cities,
or to become cities; forbidding the
changing of county seats, or. the
organization of new counties, or
the changing of the boundaries of
counties, or the purchasing of
grounds for agricultural and horti
cultural fairs, or the sale of Con
gressional township lands, unless a
majority of the people to be imme
diately affected vote or petition for
these several things. Now this
kind of legislation ran along, side
by side, under the former Constitu:
tion, with the legislation which pro
hibited the licensing of retailers of
liquors, except by approval' of a
specific number or a majority of
the people, and the latter legisla
tion was upheld by this Court as
being evidently of the same charac
ter. And the new Constitution was
adopted with the knowledge of all
this class of legislation. hy no v.
should that legislation which re
lates to the restraining of the traf
fic in f-piritous liquors be over
thrown and the rest be upheld?
Surely not upon tbe ground that
"the Legislative power of the State
is vested in the General Assembly.1
is the temperance law then re
pugnant to that provision of the
Constitution that now law shall be
passed, the taking effect of which
shall be . made to depend upon any
authority, except as provided for in
this Constitution?
law? If it confer an authority, has
the law not taken effect until au
thority has begun to be exercised
under it? If it be law prohibiting
an act has the law not taken effect
till some one has done the thing
prohibited and exposed himself to
its penalties? If it be a law for the
enforcement of a duty, has it not
taken effect until there has been a
refusal to perform such duty and
the coercive sanctions of the law,
have been invoked to enforce the
performance? Or rather, has it
not taken effect whenever, if it be a
law prohibiting an act, the penalty
might be enforced if the act were
done, though the act prohibited
might never be done? If it confer
an authority, has it not taken effect
so soon as an authority might Lave
been exercised under it although
none in fact ever should be? If it
is for the enforcement of a duty,
has it not taken effect whenever, if
the duty had been refused, its en
forcement might have been requir
ed, though no occasion should ever
arise for its enforcement? If a law
were to provide that upon getting
a majority of votes a man should
be elected to an office has the law
not taken effect until he has been
elected? Kow could he be elected
under a law which had not taken
effect? If a law were enacted that
a man might do a thing upon t3e
happening of a certain contingency
and it were said in the law that it
should take effect from its passage,
could it notwithstanding never take
effect until the contingency had
happened? And if the man should
die before the contingency hap
pened, would it never have taken
eTect as a law at all? Is the decla
ration in an act nugatory which
states that it shall take effect and
be in force from and after its pas
sage, and can it uot be in force un
til under it a force haB been exerted
Let us now recur to the law which
is in question before this court
What provision of it did not "take
effect from its passage? It prohib
ited the sale of liquor on any man's
premises until a permit was obtain
ed. This prohibition was absolute
so soon as the bill was passed, and
remained until the permit was ob
tained. It preBcriled the method
of "obtaining tne beiLlIu ind the
terms upon which it could be ob
tained. Were not the method and
tee terms complete so; soon as the
1-iw was passed? Because the ap
plicant might not be able to comply
with the. terms, by obtaining the
requisite number of signers upon
his petition, had the law not taken
effect? The evil sought to be rem
edied by the fra'mers of the consti
tation, by the adoption of the . .
PROVISION UNDER CONSIDERATION,
cumstance that there might be this '
diversity of practice among the several
cities of the State show the act to be
repugnant to the constitution?
lhere is uniformity of provision re
specting the powers and capacities of
cities in the act in question, but there
is an innnite diversity oi practice and
of results under it.
SO IN THE CASE OF COUNTY SEATS,
the law ia uniform respecting the wan
ner of changing them; hut a county
seat may be changed by a vote of five
hundred electors in one county, while
in another five thousand might be in
sufficient to effect a change, because
they do not compose a majority ot the
voters. Is the law for that reason un
constitutional? Illustrations of this
kind under our statutes might be
multiplied without number. Should
law .not be ot unitorm operation
which required the candidates for of-'
fice in the several counties of the State
to have a majority of the electors, be
cause in Brown county a thousand
might elect a Representative, while in
iuarion twenty thousand might tall
short of doing it? .
fco under the temperance law. li
censes may issue to applicants to sell
in townships or wards in which they
desire to carry on business, Upon their
obtaining a number of signers, not
less than a majority ot the voters in
such township or ward who voted for
Congressman at the preceding Con
gressional election. ; An applicant
uiicht in one township, it is true, be
required to obtain more signers than
an applicant in another, on account of
dinerence in population, but there is
perfect uniformity of provision, and
there is perfect uniformity in regard
to the number of signers to be obtain
ed as between' all 'the applicants in
any one of such townships or wards
respectively. Suppose that this law
had required that in a populous town
ship an applicant should obtain a hun
dred signers, and in a township sparse
ly settled, where there might not be
more than one hundred ; voters, an
other applicant for a like privilege
should be required to get a like num
ber, would there not be a like outcry
here against the hardships of such a
case and the want of uniformity?
UNIFORMITY OF PROVISION
is what the constitution contemplated,
not of uniformity of practice and re-
was a practice which had grown up of
submitting to the people, to be de
termined by their votes, whether bills
which had gone through all the forms
ot legislation should ta&e encct as
laws. The practice was as if the leg
islature had said to the people in re
spect to their temperance law: "We
propose to settle this question respect
me the licensing persons to retail in
toxicating liquors by a law prohibiting
such retailing until a license nas oeen
obtained upon an" application,"' ap
riroved bv a majority of the voters? Is
that the kind of law you want? If it is
you will vote aye, it it is not you will
vote no.
But in the case of the present law.
no question has been presented to the
people, or to any part of the peopkj
whether it should be a law or not.
The legislature fixed what the law
should be arbitrarily, without respect
to any petition or vote oi theirs
It provided, however, in the appli
cation of the law that a license should
or should not be granted to an appli
cant according, as a certain number
of persons might sitm or decline to
sign his application. What has this
circumstance to do with the taking
effect of the law It might as well be
argued that when a law is passed pro
viding for
A POPULAR ELECTION,
the law cannot take effect until one of
the candidates has been chosen by t
majority of the electors.
it is said, however, that the enact
nient in question is a local law, and
not of uniform operation throughout
the htate.
The uniformity demanded by the
objection would overthrow the most
important laws we have, snd involve
society almost into chaos. If it be
said that every law is unconstitutional
in the administration of which it
might happen that a practice of an act
might be forbidden at one p:ace and
be tolerated as innocent at another;
then the act, for example, for the or
ganization and government ot cities is
ilainly repugnant to the constitution,
he constitution is silent respecting
muuicipal corporations. There is no
clause in that instrument conferring
upon them legislative powers, or say
ing that the Legislature may eonter
any such powers upon them.' Yet the
courts have held that it was compe
tent for the Legislature to invest them
with the powers which they now exert.
Under those powers they can (among
many other substantive things) "pre
vent and regulate the use offirearms
fireworks, or other practice tending to
endanger persons or property." hort
11' 1 i .1 . .1 . c 1.-1
a.viie migui unuer mis act loruiu,
under penalties, the use of any fire
works, while Indianapolis might tole
rate them. The act empowers the
councils to suppress gaminghouses or
houses ot ill tame, rort Wavne liiitrht
tolerate gamine bouses and houses of
ill fame, and Indianapolis might for
bid them under penalties. The act
also empowers the councils to regu
late tbe use ot coaches, hacks and
other vehicles tor the transportation
of passengers. Fort. Wayne might
prescribe one tariff of rates - for the
transportation ot passengers, and In
dianapolis another one. Does the cir
suit. The latter' is practically unat
i VI - ''Ti. .11.' '.-i
lainaDie. - us aiiainmcm, u practica
ble, would be the surest evidence of
the decline of the State. Differentia
tion, says the- political philosophers,
is the law of progress. It is what
distinguishes the civilization of Eu
rope and America from the effete civi
lization oi the Jiiast. -
Nor is the law under consideration
a "special" one in the sense of the
constitution. Its provisions apply
equally and uniformly to all parts of
the &t$te. iiat special result shall;
follow from it in one. place that does
not in another can not affect its char
acter in this respect, no more than if
it were a general license law provid-
r m ' 11 . 1 . V j 1
ng tor license to an wno imgni appiy
throughout the State, the circum
stance that it led to a great . deal of
drunkenness in one community and to
ittle or none, in another would ren
der it liable to the constitutional ob-'
jection of being a "special" law.
But it is argued that it is a local
law, and that in the" language of the
learned counsel for" the defendants,
quoting from the constitution, the
ueneral Assembly shall not pass
special or local laws in any of the fol
lowing enumerated cases; thit is to
say ' . H or the punish
ment of crimes and misdemeanors
, j au the eases
enumerated in the preceeding section.
and in all other cases, where a general
law can be made applicable, all laws
shall be general," etc.
It is sufficient to say that whether
a general law could be niade applica-
oie, is noi a question ior juaiciai ae-
termmation unless this law comes
within the classes required specifical
ly by enumeration in Sec. 22 of Art.
4 to be general, whether others can be
made ot general application is a politi
cal question to be determined by the -
legislature, as mis court nas solemn
ly decided. . ,
In reference to the objection that it
is a local law for the punishment of
misdemeanors, I answer that this does
not provide, nor can it happen that
the same act shall be punished at one
place in one way and in another place
in another.
never imagined that he is exercising a
judicial function. c,- ,
A discretion may and no doubt is
often exercised by administrative offi
cers. But it is not of the essence of
their office. Their imperative duty is
often simply to do and not to -consider.
' . '
CASES HATS BlfEN CITED , J
by the learned counsel for the defend
ants which are supposed to have an
application to the present controversy.
Of the seven cases cited by the
learned counsel tor the , defendant
four have no pertinency to the pres
ent case. j - -" ;'';' i:-
The question submitted to the peo
ple in the cases cited from New York
and Iowa, (liarto v. Ilitnrod, 4 Seld.
483; State v., Weier, 33 Iowa, 134,)
were, whether the enactments in ques
tion should become laws. They were
not to be laws unless the people voted
that thev should become so. .
. The questioaubmitted in the Michi
gan case llhe i .People v. Collins, 4
Mich. 343,) was, at what time the law
should take effect, and the judges
were equally divided as to whether
the law wa or was not constitutional.
The cases in Pennsylvania and Del
aware and Vermont (Appeal of Lock
et al., Chicago Legal News, vol. 5, p,
'il'.O P ;.. Pncts. A U.n. A7Q linn
itivv. i. a. fott , -x n ni 1 1 -xt .r, JLTU.U
croft v. Dumas, 31 Vermont, 456.) are
more nearly in point In those States
the question was submitted to the
electors to determine by vote whether
licenses should issue or not. and two
of the courts the Supreme Court of
i ennsylvania and the bupreme Court
j of Vermont held that the law was
liable to no constitutional objection.
Ihe decision in l'ennsylvania over
ruled a previous decision of that court,
on the ground that laws of a similar
nature, where-the sale of liquors was
not luvolved, had since been repeat
ediy upheld by that court, so that
their first decision could not be up
held unless a more favorable rule was
to be applied to the retailers of liauor
than to other suitors. . None of these
laws, however, are like the , laws now
in question before this Court. " It is
not a law the taking effect of Which is
submitted to the people. - It does not
submit the question whether a license
kehall issue to a vote of the people, but
requires, merely, that to obtain
license, the applicant shall abtain a
faxed number ot signers to his peti
tion, exceeding half of the voters who
cast their ballots at the next preced
ing Congressional election. And, as
I have shown before, such a law was
distinctly upheld by this court,-when
its judicial functions were exercised
by Blackford and Sullivan and Dewey.
and a class of laws has been upheld
by the present judges ot this court o:
a similar character, but when it has
chanced that the questions in contro
versy did not relate to the sale of in
toxicating liquors, .
The decisions of other States
whether favorable or adverse to the
present law, can have little weight,
tor the reason alluded to before tha
before the present constitution ' was
ordained a law like the present one in
all the substantive features that have
t ha nroaa.;T ContrOVerSV.
had been held valid by this court, and
that the constitution was framed in
tho light of the construction which
had been given to that statute, and in-.
identally to the provision that all
legislative powers were vested in the
General Assembly. To give a differ
ent construction to that instrument
new, after the great body of . legisla
tion which has assumed that the old
practice and construction were cor
rect, would be scarcely distinguishable
from the exercise by the judiciary of
legislative powers.
politic, we may expect greater powers'
ot .local governments entrusted to tne
' tatkilMHOiM..
municipal corporations scattered over j Tha mends or Mrs. Bention, ar
the State. Such was the spirit in treated on the 10th instant at New
which the new Constitution was fram
ed and adopted. Henee the restraints
upon the legislative power in regard to
enacting special and local laws and
the provisions for extending local ad-'
ministration. . - -'
But this jealousy toward the legis-
ative department of the Government
has not prevailed in relation to Dow
ers legislative in their character aele-. -
gated by the Legislature to be exer-" '
cised subordmately by other bodies
near to the people. .This court has
held, in relation to city ordinances, .
that the provision that an act shall '
contain bit one Subject which shall.
be expressed in the title, and that the
yeas and nays shall be called on the
passage ot a bill does not apply to
them..
THE INTERPRETATION r - " '
Of the Constitution hy the courts has
been without nxing any dehnite lim
itations that legislative powers of a '
subordinate character may pe delegat
ed by the legislature, but always of ,
course, subject to resumption at pleas
ure, buch powers can not be perma
nently parted with. . , i
Mr. Union, in his work on corpora- .
tiofas, says: n Although, the proposi
tion that the Legislature of a State is .
alone competent to make laws, is true, -yet
it is also 'settled that it is compe-
tent tor the .Legislature to delegate to
municipal corporations the power to
make by-laws and ordinances which,
when authorized, have the force, as to
persons bound thereby, of laws passed
by the Legislature of the State." .
Dillon on Municipal Corporations,.
in the case ot the City ot Aurora
vs. west, y ind. it.. W. the court say;
"Beyond doubt general powers of gov--eminent,
for local interests, may be
exercised as equitably by a city1 as in &,
State administration. We
have thus far treated the power con
ferred upon cities to enact ordinances
levy and collect taxes, etc.. as a dele
gated legislative power." And again: '
iruouc corporations are. sucn as are
created by the Government for polit-.
ical purposes, as counties, cities, etc.;
they are invested with subordinate
legislative powers, to be exercised for
local purposes connected with the
public crood. and such powers are sub
ject to the control of the legislation of
the .state.
In Ee?be vs. The State, 6 Ind., p.
533, Stuart J., says: "To these pow-r
era before enumerated may be added
the power conferred by charter on
towns and cities to inhibit or license
I tfork, as an important witness in
t the Stokes case, allege that the evi
I dence she would give would be the '
! following: She had been visiting a
' friend in the Gand Central . Hotel, .
half an hour before the commission .
of the murder, and happening to
look out of the parlor window, saw,
on the opposite ; side of the way,' ;
Edward S. Stokes. She beckoned '
him, and he crossed Broadway 1
and entered the hotel,': then came ,
up to the parlor and conversed with
her over fifteen minutes. : She left ,
him in the parlor, descended the .
ladies' stairway, and was just going
out of the street door when Fisk
drove up. Fisk met her, and talk- J r
ed with her in front of the hotel for ; .,-...
a few moments. Fisk then entered -'
the hotel, and she had started away
when she heard the report of - a
pistol and saw a boy run out of the " '
hotel in evident fright. She went . '.
back to the ladies' entrance and had '
again entered the hoteL when, look
ing up the stairway, she saw two
men carrying Fisk up stair. As
she was going up stairs she found,
on one of the lower steps, a revol
ver, and from its position thought .
it must have belonged to Fisk. She
had concealed the revolver, and had
gone up stairs to her friend's room.
That friend had persuaded her not
to reveal the finding of the pistol.
Smce the murder she had said no
thing to the authorities concerning
Fisks revolver, fearing it might in
jure the chance of ; Stoke's acquit
tal, a; . v;S' ' , i.
Mrs. Benton's maiden name was ;
Minnie White. She was born in ,
Lexington, Kentucky, in 1836. -Soon
after reaching womanhood '
she went to' New Orleans, and in V
It A - 1 .mm m mt
T,nnr, pitv romftinon tvp avav ti ttnnn
years, being especially notorious , .
during the war. In 1863 she mar- ,.
ried General William P. Benton,
v i;V..A...a ti: iv.- j
ty that place. He died Tory sud-
denly a short time after the marri- "
age. Mrs. Benton, in. 1865, went
to Washington, remained there
fhrei veitrft- nnrl than vad! fn Naw
York- whfirn aha hua nttAA tpriI a1
In 1871, it is alleged, she became - '
MUCH HAS BEEN 8AID
AS IP THE LEGISLATURE
should provide that in a township
purely, agricultural, where LorF.es are
an absolute necessity for prosecuting
the occupation of the .inhabitant?, a
horse thief should be punished by
hanging, and in a city, where they are
chiefly used for pleasure,, h should
be punished by imprisonment for a
short term in the State's Prison.
The act which, under this law, ex
poses the violator to punishment, is
retailing liquor, to be drank upon the
premises, without license, and there
is ixo difference in the character of the
punishment for this act in any county
or township or ward in the btate.
Objection is also made that the
Boards of County Commissioners are
left with no discretion by th?s law
whether to grant or refuse the license,
when the requisite number of petition
ers have signed an applicant's petition.
ine ODjection wcuia appiy. wun
equal force to the acta concerning the
purchase of lands for agricultural and
horticultural fairs; the change of
county seats; the change of county ?
boundaries; and many other acts that
mieht easily be enumerated. , ?
1 he .Board ot County Commission
ers is a body mentioned but once in
the constitution, and that is in the
clause which states that the Legisla
ture may confer upon them powers of
a local, administrative character. Thy .
can claim, therefore, to exercise no
powers which ' tbe Legislature does
not confer upon them. It can grant
to them what measure of power it
pleases, it can annex to .the grant what
conditions it pleases, it can withhold
from them any powers." It can, of
course, make the granting of a license
a mere administrative duty. That is
what the granting of license generally
is in practice.: When we; a few years
ago, applied to the United States As
sessor for license to practice our pro
fession, andftendercd him the license "
fee, we never suspected, I dare say,
that he was a judicial officer. , When
the County Treasurer, upon a tender
of a proper fee, gives to the showman
a license to exhibit his caravan, we
in the argument, with great felicity of
style, of the dangers always to bo ap
prehended from the people when thay
exercise a direct office in the making
of laws. If the well chosen words
and the sounding rhetorical periods
that have been uttered, had been de
livered by an English landlord, dep
recating the extension of popular
franchises, they would have had a fa
miliar and a harmonious sound, but
they jar strangely upon the ear when
they drop from an American tongue.
1 dare say that they were rather sen
timents put forth in the ardent spirit
of advocacy m support ot a Pide ot a
cause that needed that kind oi argu
ment, aud that they are cot supported
by the deliberate judgment of our dis
tinguished brother. - " ' . .
- Great strength of assertion is put
forth to show that the purpose of the
convention which framed our consti
tution was to enlarge representative,
and to diminish popular authority.
In the view we have taken of the ease,
the question is of little importance.
But I deny that the present constitu
tion was fouuded in a distrust of the
people acting in their primary capaci
ty. I assert, on the contrary, that it
was a constitution founded in a dis
trust of the legislative department of
the government. . ! . : ?
I invoke, in proof of what I assert,
the provisions that the sessions should
be held biennially: that no regular
sessiou extend beyond sixty days; that
no Senator or Representative, during
the term tor which he is elected, be
eligible to any office, the election of
which is vested in . the General As
sembly; that every act shall embrace
1 1
hut one supject, wmch shall be ex
pressed in the title; that no act shall
ever be revised or amended by. mere
reterence to its title; that local or
special laws should not be passed in
many enumerated cases; that the vote
ou the passage of every bill shall be
by yeas and nays; that the election of
Secretary Treasurer and Auditor .of
Mate and the J udges of the Circuit
Courts was taken from them. I assert
that the constitution was founded in
trust in the people. The Secretary,
treasurer and Auditor ot Btate.be
tore chosen by the Legislature we to
be elected by them. So also the whole
mdiciary. And the provision reouir
ing that when general laws could be
made applicable, local laws should not
be passed, necessarily much enlarged
their direct officers in the conduct of
government. ; ' - .- " - -
Happily this court has' interpreted
the constitution in respeet to this im
portant matter.
In the city of Lafayette vs. Cox, 5
lnd.T.lt. 38, where certain powers of
tnat city were in question, this conrt
said: : .'; - ;
' Under; representative governments,
where the political tendencies are cen
trifugal, tending to diffuse powers
among the members rather than con
centrate it in the head of the body
the sale of liquors at their pleasure
f thus clearly assuming the State had
i"t E Smokes.
; I think my eloquent co-laborer in
this cause, Major Gordon, has made it
clear, and I think I have myself suf- :
flcieutly shown, that the provision in
the; temperance law relating to the
person who may sign the petition, and
whose signing may evoke the exercise
by the Board of Commissioners of the
function of erantine a license', is in no
sense whatever can be regarded by
no torturing of construction--an ex
ercise of legislative power. But if it
were, would this court say that the
delegation of such a function-capable
at any time of resumptionto a
body of people, under a Constitution
which gives to the people a right to
instruct their representatives, and has
been held to allow subordinate legis
lation and police powers to be delegat
ed to )eeal bodies, was a palpable in
fringement of that instrumant?
I have thus, perhaps too briefly for
the subiect. but feelintr that 1 ought
not longer to. occupy the attention of
the Court,- already too severely op
pressed with judicial labors, discussed
the questions presented in this cause.'
I was pained to near our learned
friend who opened this argument refer
with a temper almost acrimonious to
those whom he was pleased to call . A
"THE TEMPERANCE REFORMERS." :'
There are men, and not a few, who
eome within that designation, who,
moved by no impulse but love of their
fellow men, and without any hope of
any reward, in this world but the con
sciousness of duty well performed,
have given the best years and best la
bors ot tacit lives to put under great
er restraints perhaps wholly to sup
press the retailing ot spirituous
iouors. The path they have trodden
has been a rugged one, aud full of ob
stacles. They walk foot sore but are
undismayed. They work in the spirit
of Christian ekar-ity,; wishing harm to
evil, but not to its doers. 1 hey enter
ed into this strife knowing that the
way was Ion?.1 They bear the virtu
ous mind which ever walks attended
with a strong siding champion, con- ,
science. They have seemed more
than once nearly to reach the goal of
their disinterested seal' but just then
the Constitution has been successfully
invoked against them. Many seem
now ready to exclaim: Shall the Con
stitution forever furnish . the pitfall
into which all are to be precipitated
who seek to accomplish , the highest
purpose for which the Constitution,
was framed? After long years of
strife a law is before this court the
substance of which for a generation
was held valid, and they are now told
that it, too, is unconstitutional. They
believe it will be upheld. But let it
stand or fall, they will not give up
their work. ' Hope springs eternal in
the breast of the true lover of his
kind. In the order of the Great
Providence there is a perpetual strife
between Good and Evil, and under,
that Providence, it can never end un
til the evil yields and the good gains
sway. He who was foretold as the.
Prince of Peace, declared, when he
came, that he came not to bring peace,
but a sword the sword that was to
maintain a warfare against Evil until
the Good prevailed which was to bring
Peace. . . -
A Female 8vlr.
: A female savior and her apostles "
are creating a prodigious sensation
in the southern part of the Russian ,
Empire. ' , The Russian papers say ,
that: the 'leader of these women,.;
whose name is Anastasia Gabacre
wicz, claims to have performed a
number of miracles, having made
the blind see and lame walk. A
vision first revealed to her that she '
was the daughter of God, selected .
to suffer for the redemption of her
sex in the same way as Christ suf
fered for that of the other. Im
mediately after this revelation she
gave up eating meat and drinking
brandy, and prepared herself for
her mission. ; The Holy Ghost then
possessed : her ' and gave her the
power to work wonders with a mere
word.' ' She pretends to be able to
resurrect even the dead by simply
touching them, and so strong is the
faith of the ignorant masses in this
new prophetess, that the prision to-
which she has . been consigned by
the authorities has become a ' place
of pilgrimage for thousands. The
sick are brought from distant local
ities to receive the assistance of the
inspired woman, and the keepers
receive large bribes for permission
to see her. Every day new stories
of her extraordinary powers sre
circulated far and wide. 1 f
Corrnption In IMablie Trnsta.
Speaking of the wholesale denun
ciation of office holders the Ottirm
wa, Iowa, Courier, say: There is
danger of the popular feeling be
coming extravagant in charges of
wrong and corruption." It is bruit
ed about from tho hps of reformers
at this' day that corruption abounds
through the length and breadth of
the land, and generally that it in
vades all tho offices until in the
minds of many it comes to be con
sidered almost a disgrace to hold
office in this country. With a sneer,
it is said, this or that one is an of
fice holder, and that alone is deem
ed by many sufficient to condemn
him. The fact is, there never was
a time in the history of this - coun
try when in proportion to the num
ber of officers and the amount of
business done and funds handled
that there was a less percentage of
embezzlement or wrong doing of
any kind. " The officers of this
country will compare favorably with
those of any previous period in the
history of the country. ' - -:
. A woman's pride
guide the needle.
and a sailor's
The well-dressed dog wears a collar, -and
pants in the summer.
When does a man have to keep hi
word? When no one will take it-fnv?
The irrepressible , Sam Cary, the
"horny-handed" champion of hard
work, has espoused the cause of the
Democracy of Ohio; and entered upon
the canvass as a stumper for weir
State ticket.
A Mme 'In a Flaw Barrel.
r A Keoknk lady, while engaged in
the pursuit of her domestic duties,'
encountered a mouse io the Hour bar
rel. Now, most ladies under similar .
circumstances would have uttered a
few feminine shrieks, and then Bought
safety in the garret But this one ;
possessed more than the' ordinary de-
gree of female courage. She sum
moned the hired man, and told him to
get the shot gun, call the bull dog, and -station
himself - at a convenient dis
tance. : Then, she climbed half way
up stairs and commented to punch the
flour barrel vigorously with a pole.
Presently the moose made its appear
ance and started across the floor. The
bull dog went in pursuit ' The man
fired and the dog dropped dead. The
lady fainted ana dropped' down the
stain, and the hired man, thinking
that she was killed,' lit ouV-and has
not been seen sinoe. The mouse escaped.