CHAPTER XIII

NO LEGISLATURE CAN BARGAIN AWAY THE PUBLIC HEALTH AND THE PUBLIC MORALS

In State vs. Mississippi, 101 U. S. 814, the United States Supreme Court says: "No legislature can bargain away the public health or the public morals. The people themselves can not do it, much less their servants." If this can not be done, there must be a reason for it. The court gives the reason, when it says: "Government is organized with a view to their preservation, and can not divest itself of the power to provide for them."

They are among the inalienable rights, to secure which governments are instituted among men. Their security being the purpose of government, it necessarily follows that the state can not so divert the exercise of its functions as to expressly authorize their destruction. To do so, would most assuredly be a violation of the first section of Article fourteen of the United States Constitution. "No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States. Nor shall any state deprive any person of life, liberty or property without due process of law nor deny to any person within its jurisdiction the equal protection of the laws."

The pursuit of happiness has been held to be one of the privileges of a citizen, and happiness has been held to include health, peace, good order, safety and morality. Liberty, the courts say, means not only freedom from imprisonment and physical restraint

but freedom to follow any of the lawful callings of life.

If the saloon were a lawful calling, it would be one of the privileges of a citizen, but the courts say that it is not, therefore, it is surely an unlawful calling. The courts further say that to directly authorize, by legislative enactment, the pursuit of an unlawful calling is an abridgement of the privileges of citizens, a denial of the equal protection of the laws, or rather a denial of the protection of equal laws. Lastly, they assert that the saloon keeper sells because the government has delegated to him the right to sell, and, in view of the other propositions, it would seem to follow as an inevitable sequence that the delegation of the right is unlawful. The conclusion is absolutely unavoidable, unless the intrinsic character of the saloon may overthrow it, and we have discussed this question in almost every preceding chapter. So that the question may be fully foreclosed, we cite a few judicial estimates of the saloon:

Mugler vs. Kansas, 123 U. S. 205:

"It is not necessary, for the sake of justifying the state legislation, now under consideration, to array the appalling statistics of misery, pauperism, and crime which have their origin in the use or abuse of ardent spirits.

"For we cannot shut out of view the facts, within the knowledge of all, that the public health, the public morals, and the public safety, may be endangered by the general use of intoxicating drinks; nor the fact established by statistics accessible to everyone, that the idleness, disorder, pauperism, and

crime existing in the country, are, in some degree at least, traceable to this evil."

Thurlow vs. Commonwealth, 5 Howard, 504:

"The train of evils which marks the progress of intemperance is too obvious to require comment. It brings with it degradation of character, impairs the moral and physical energies, wastes the health, increases the number of paupers, and criminals, undermines the morals and sinks its victims to the lowest depths of vice and profligacy."

In Goddard vs. President, 15 Ill. 589, the Supreme Court of Illinois says:

"It is not sufficient to say that liquors are property, and their sale is as much secured as that of any other property. Their sale for use as a common beverage and tippling is hurtful and injurious to the public morals, good order, and well-being of society. Playing cards and other gaming instruments, and obscene books, prints and pictures are likewise property; and the same right of sale might as justly be claimed; yet no complaint is made that even the importation as well as the sale is forbidden. When we defend the sale of liquors for the purpose of tippling we surely draw our arguments from our appetites, and not our reason, observation and experience. We may carefully protect the public morals, and the profligate from the evils of gaming, horse-racing, cock-fighting; from the obscenity of prints and pictures; from horses and exhibitions of mountebanks and rope-dancers; from the offensive smell of useful trades and hog-pens; from the manufacture and exhibition of fire-works and squibs; from rogues, idlers, vagabonds, and vagrants, and

from dangers of pestilence, contagion and gunpowder, yet according to the doctrine contended for, this right to vend a slow and sure poison as a common beverage must remain intact and not amenable to police regulations for its suppression, although all the other evils together will not destroy a tithe of the number of human lives, nor produce more moral degradation, or suffering, wretchedness, and misery in the social relations of society; or pauperism, vagrancy and crime in the political community, or pecuniary destitution of individuals and families, than will the constitutionally protected right of destroying our neighbors and fellows for the selfish end of our own individual private gain. I am utterly incapable of so regarding it as above all the claims and interests of society, the peace and welfare of families, and especially above the police powers of government; and shall never be brought to acknowledge the sacredness and inviolability of its rights, until I shall be able to forget all that I have seen, observed, known and experienced of its destructiveness of all that is estimable upon earth. Viewing the great and irreparable mischief growing out of this practice, I am not prepared to say that another nuisance may not be added to the list; and that under the police powers society may find protection from its blighting curse."

Transposing this statement slightly, it declares that intoxicating liquor is a slow and sure poison, whose sale for beverage purposes can only be defended by men's appetites, and not by reason, observation or experience; that gambling, horseracing, cock-fighting, obscenity, rope-dancers,