CHAPTER I

HOW THE WRITER WAS INDUCED TO PREPARE THIS VOLUME

At the January term, 1900, there was tried in the Circuit Court of Boone County, Indiana, the case of Tron vs. Lewis, 31 Indiana Appellate 178, in which the plaintiff sought to enjoin a licensed saloon keeper from selling and delivering intoxicating liquor to his patrons on grounds adjacent to the saloon building. The writer, then in the practice of the law, was employed in the prosecution of this case.

The preparation for the trial of this case required an examination of many court decisions involving the legal status of the liquor traffic.

In the examination of these opinions, the writer became convinced that many of them were antagonistic to each other, and that some of the opinions contained, within themselves, contradictory propositions. In reaching such a conclusion, of course, the writer became a member of the detestable and despicable order of cranks.

Holmes says: "A crank is a man who does his own thinking."

The converse of this is, that those men, who are not cranks, do not do their own thinking; they blindly follow precedents.

In Welsh vs. State, 126 Ind. 73, it was declared that, in selling, "a saloon keeper was merely exercising his common law right." And then, the same opinion says: "If it were not for the license statute,

every person would be as free to engage in the business of selling intoxicating liquor as he would to engage in the sale of any other property. Acting upon the just assumption that the unrestricted sale of intoxicating liquor results in much evil and that it is detrimental to society, the law-making power in each state has assumed to control, etc., the business."

Naturally, to a crank, there would come a suggestion as to whether that which results in much evil and is detrimental to society can have the same common law footing as that which results in no evil and which is beneficial to society, and the crank guesses not. They belong to different classes by reason of their effects upon society, and, thus belonging to different classes, does the law accord them the same position? Certainly not. The court did in this case, but no principle of law ever did.

In Haggart vs. Stehlin, 137 Ind. 43, the court said: "In the absence of the license statute, every man, woman and child, in the state, if they chose so to do, would have the absolute and unqualified right to engage in the saloon business.

"They could stand up and say, our business stands on the same legal basis as that of the dry goods merchant, the groceryman, the hardware merchant or any legitimate business. The license law treats the traffic as dangerous, as dangerous to public and private morals and as dangerous to the public peace and the good order of society."

The crank at once says to himself, the dry goods business, the grocery business and the hardware business are not dangerous, dangerous to public

and private morals, dangerous to the public peace and the good order of society, and, if not, how can common sense place them on the same legal basis as a pursuit that is? To do so, is to place safety on the same legal plane with danger, private morality on the same as private immorality, public decency with public indecency, public peace with public turmoil and public order with public disorder.

Certainly a man, who thinks, can not reason to the conclusion that the end of government, justice between man and man, can or does permit such things, of such different character, to occupy the same legal basis.

And, especially is this true, if he accept as correct the following statement of the court in this same opinion: "No person has a right to carry on, upon his own premises or elsewhere, for his own gain or amusement, any public business clearly calculated to injure and destroy public morals, or to disturb the public peace. No man is at liberty to use his own property without reference to the health, comfort or reasonable enjoyment of like public or private rights by others."

In view of the estimate, the court itself, placed upon the saloon, the inquiring mind readily concludes that the court, by the language last quoted, declares that no man has a right to conduct a saloon upon his own premises or elsewhere. How can the court or any reasonable man harmonize the statements in this opinion upon the theory that any man has an absolute and unqualified right to pursue the liquor traffic?

Speaking of the license the court, in this case, says: "It did not enlarge his rights, but restricted them within narrower limits than they were before. It is a mere permit given to sell." An active intellect can not believe that a license is, at the same time, both a restriction of absolute and unqualified rights and yet a mere permit given to sell.

To the man who swallows the statements of Supreme Courts, as a young robin swallows worms, these two statements may be logical and harmonious, but they can not be to the man who thinks.

In preparing for the trial of the Tron-Lewis case, the writer studied, among others, the cases of State vs. Gerhardt, 145 Ind. 439; Crowley vs. Christenson, 137 U. S. 86; Sherlock vs. Stuart, 96 Mich. 198; and George vs. Aiken, 26 L. R. A. 345, wherein it was said, in various forms of expression, that no man has a constitutional, an inalienable, an inherent, a natural or a common law right to keep a saloon, and that to do so is not the privilege of a citizen either of the state or of the United States.

The thinking man very naturally wonders how the saloon business can be an absolute and unqualified right, which every man, woman and child in the state may pursue, if they so desire, and yet, it can be, at the same time, logically held that no man has a constitutional, an inalienable, an inherent, a natural or a common law right to engage therein and that to do so is not the privilege of a citizen either of the state or of the United States.

In the George-Aiken case, the Supreme Court of South Carolina said: "The licensed saloon keeper

does not sell liquor by reason of an inalienable right inherent in citizenship, but because the government has delegated to him the exercise of such rights."

The analytic mind finds great difficulty in harmonizing the propositions, that the saloon business is an absolute, unqualified right, and, at the same time, a right that does not inhere in citizenship, and, how can it be possible for the saloon license to limit the pre-existing rights of the saloon keeper, and yet delegate to him the right to conduct the business? Of course, it is cranky to believe that a delegated right is not a pre-existing right.

In the George-Aiken case it was also said: "It is because liquor is not regarded as one of the ordinary commodities that the act of 1892, prohibiting its sale, was, as to that matter, construed to be constitutional. We cannot for a moment believe that the court would have declared an act constitutional that prohibited entirely the sale of corn, cotton, or other ordinary commodities. It is fallacious to argue, in the light of this distinction, so thoroughly sustained by the authorities, that, if the government can take the exclusive control of the liquor traffic, it can do so as to any other avocations in life."

The United States Supreme Court, in Crowley vs. Christenson, 137 U. S. 86, said: "As it is a business attended with danger to the community, it may, as already stated, be entirely prohibited."

A freak is, at once, inclined to inquire, if a business that may be entirely prohibited and one that can not be prohibited entirely can possibly