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gives to them a flat and unreasoning denial, which makes all further argument impossible, or he justifies the enactment of an otherwise useless law hy the claim that the enactment would arouse public attention to the evils of drunkenness, and by making persistent, though unsuccessful, attempts to enforce the law, public opinion will be educated up to the point of giving the proper support to the law. Educate public opinion up to the point of giving proper support to the law! If there is one principle that the history of law and legislation teaches with unerring precision, it is, not only the utter futility as a corrective measure of a law, whose enactment is not the necessary and unavoidable resultant of the social forces, then at play in organized society, but also the great injury inflicted upon law in general by the enactment of laws before their time. Nothing so weakens the reverence for law, and diminishes its effectiveness as a restraint upon wrong and crime, as the passage of stillborn laws, laws which are dead letters before they have been promulgated to the people. And why are laws for the prevention or punishment of vice ineffectual? Because such a law cannot enlist in its cause the strong motive power of self-interest. I do not mean that it cannot be demonstrated that each individual in the community will be benefited by the effective control of drunkenness. But I do mean that the people at large cannot be made to feel, sufficiently acutely, the necessity of enforcing these laws, in order to make them effective remedies for the suppression of the evil. A man sees a pick-pocket steal his neighbor's handkerchief, while on his way through the public streets. He will instantly, involuntarily, give the alarm, and probably would render what aid was necessary or possible, in securing the arrest of this offender against the laws of the country. The same man, a few steps further, sees another violating the law against the sale of intoxicating liquor ; and although he may be an active member of some temperance organization, he will be sure to pass on his way,
and say and do nothing to bring this offender to justice. Why this difference of action in the two cases? In the first case, the act was a trespass upon the right of property of another, and self-interest, through fear of a like trespass upon his own rights of property, prompted the man who saw the crime to aid in the arrest of the criminal. In the latter case, no man's rights were trampled upon; the unlawful act inflicted no direct damage upon the man who witnessed the violation of the law, and consequently self-interest did not impel him to activity in support of the law.
But these considerations constitute only philosophical objections to such laws, and can only be addressed to the legislative body, as reasons why they should not be passed. They do not enter into a consideration of the constitutionality of the laws after they have been enacted. If the constitution does not prohibit the enactment of these laws, the only obstacle in the way of their passage is the unwillingness of the legislators. The question to be answered is, therefore, are the laws for the regulation and probibition of the liquor trade constitutional? The preceding sections of the present chapter contain an enunciation of all the principles of constitutional law, which are necessary to the solution of the present problem. But a recapitulation is necessary, before applying them to the particular case in question. It bas been demonstrated, and satisfactorily explained in its application to a sufficient number of parallel and similar cases, in order to lay it down as an invariable rule, that no trade can be subjected to police regulation of any kind, unless its prosecution involves some harm or injury to the public or to third persons, and in any case the regulation cannot extend beyond the evil which is to be restrained. It has also been maintained and, I think satisfactorily established, that no trade can be prohibited altogether, unless the evil is inherent in the character of the trade, so that the trade, however conducted, and whatever may be the character of the person engaged in it, must necessarily produce
injury upon the public or upon individual third persons. It has likewise been shown that, while vice, as vice, can never be the subject of criminal law, yet a trade, which has for its object or necessary consequence, the provision of means for the gratification of a vice, may be prohibited, and its prosecution made a criminal offense. These principles, if sustainable at all, must have a universal application. They admit of no exceptional cases.
If the reader has given his assent to the truth of them, in their application to other cases of police regulation of employments, his inability to adhere to them, in their application to the police regulation of the liquor trade, indicates either a lack of courage to maintain his convictions in the face of popular clamor, or an obscurity of his judgment through his sympathetic emotions, which are aroused in considering the gigantic evil to be combated.
It has never been claimed that any one could be punished for drunkenness, unless he thrusts the fact upon the attention of the public, so that it offends the sensibilities of the community, and in consequence becomes a public offense. If a man displays his drunkenness on the public thoroughfares to the annoyance and inconvenience of the public, he can be punished therefor. But if he chooses to degrade himself by intoxication in the privacy of his own home or apartments, he commits no offense against the public, and is consequently not subject to police regulation. But the man who proposed to make a profit out of his proneness to drunkenness, would be guilty of a public wrong, and could be punished for it. It is perfectly reasonable for the law to prohibit the sale of liquor to minors, lunatics, persons under the influence of liquor and confirmed drunkards, and impose a penalty upon the dealer who knowingly does
In very many of the States there are statutes in which it is provided, that whoever is injured by the wrongful acts of a drunken person may maintain an action for damages against the dealer in liquor who sold or gave the liquor
which caused intoxication in whole or in part, where the intoxicated person was neither a confirmed drunkard, nor a minor, nor a lunatic, nor under the influence of liquor, when he purchased the liquor. This legislation has been frequently sustained by the courts in its broadest application, and it is believed, has in no case been declared unconstitutional, although often contested. So far as these statutes prohibit the sale of liquor to persons who, from their known weakness of character, may be expected to make an improper use of it to their own harm and the injury of others, and subject the dealer, who sells liquor to these classes of persons, to an action for the damages that third persons may have sustained from their drunken antics, it cannot be doubted that the statutes are constitutional. These persons, who are laboring under some mental or other infirmity which renders them unable to take care of themselves, can very properly be placed under the guardianship of the State, if not in all cases for their own benefit, at least for the protection of the public; and where a dealer in intoxicating liquors sells to such an one, in violation of the statute, he does a wrongful thing, an act prohibited by a constitutional law, and he may therefore be held responsible for every damage flowing from his wrongful act, which might reasonably have been anticipated. But when the statutes go farther and make the dealer responsible for every wrongful act committed by any and every person while in a state of intoxication, whose intoxication was caused by the liquor which the dealer had sold, whether the dealer knew of his aptitude to intoxication or not, they can only be justified on the principle that the prosecution of the liquor trade is unlawful in itself, and the constitutionality of such laws must depend upon the constitutionality of laws for the prohibition of the liquor trade in general. For no one can be held responsible for damage, flowing consequentially from an act of his, unless that act is unlawful in itself, or he has done it in an unlawful manner. If the sale of liquor is a lawful occupation he can not be held for a damage that is not the result of his failure to conduct the business in a lawful manner, and he cannot be said to have conducted a lawful business in an unlawful manner, when he sells liquor to one who may not reasonably be expected to become intoxicated.
1 Roth v. Eppy, 80 III. 283; Wilkerson v. Rust, 57 Ind. 172; Fountain v. Draper, 49 Ill. 441; Church v. Higham, 44 Iowa, 482; Goodenough v. McGrew, 44 Iowa, 670; Gaussby v. Perkins, 30 Mich. 492; Badore v. Newton, 54 N. H. 117; Baker v. Pope, 2 Hun, 556; Quain o. Russell, 12 Hun, 376; Berthoff v. O'Reilley, 74 N. Y. 515; Baker 0. Beckwith, 29 Ohio St. 314; State v. Ludington, 33 Wis. 107; Whitman v. Devere, 33 Wis. 70.
Is then the absolute prohibition of the liquor trade a constitutional exercise of legislative authority under the ordipary constitutional limitations? It may be stated that the decisions of the courts, in different parts of the country, have very generally sustained laws for the prohibition of the sale of intoxicating liquors, in any manner, form or bulk whatever, and on the ground that the trade works an injury to society, and may, therefore, be prohibited."
1 Metropolitan Board Excise v. Barrie, 34 N. Y. 657; Wynehame v. People, 3 Kern, 435; Warren v. Mayor, etc., Charleston, 2 Gray, 98; Fisher v. McGirr, 1 Gray, 26; Jones v. People, 14 Ill. 196; Goddard o. Jacksonville, 15 III. 588; People v. Hawley, 3 Gibbs, 330; Preston v. Drew, 33 Me. 559; State v. Noyes, 30 N. H. 279; State v. Snow, 3 R. I. 68; State 0. Peckham, Ib. 293; State v. Paul, 5 R. I. 185; State v. Wheeler, 25 Conn. 290; Lincoln v. Smith, 27 Vt. 328; Sante v. State, 2 Clarke (Iowa), 165; Prohibitory Am. Cases, 25 Kan. 751 (37 Am. Rep. 284); Bartemeyer o. Iowa, 18 Wall. 729; State v. Mugler, 29 Kan. 252 (44 Am. Rep. 634); Perdue v. Ellis, 18 Ga. 586; Austin v. State, 10 Mo. 591; State v. Searcy, 20 Mo. 489; Our House v. State, 4 Greene (Iowa), 172; Zumhoff v. State, Ib. 526; State v. Donehey, 8 Iowa, 396; State v. Carney, 20 Iowa, 82; State v. Baughman, Ib. 497; State v. Gurney, 37 Me. 156; State v. Burgoyne, 7 Lea, 173 (40 Am. Rep. 60); State v. Prescott, 27 Vt. 194; Lincoln v. Smith, 27 Vt. 328; State o. Brennan's Liquors, 25 Conn, 278; State o. Common Pleas, 36 N. J. 72 (13 Am. Rep. 422). "The measures best calculated to prevent those evils and preserve a healthy tone of morals in the community, are subjects proper for the consideration of the legislature. Courts of justice have nothing to do with them, other than to discharge