revoking the same at any time, has an unwholesome effect upon the community and tends to make honest men revolt at the injustice of punishing others for engaging in like vices. We have, for instance, at this day, men confined in the state penitentiary for setting up and carrying on gambling shops whose tendencies are not much more demoralizing, if any, than the licensed lottery operator, who goes free under the protection of the law. The one wears a felon's garb, and the other is protected by license, which he claims as an irrevocable contract because he has paid for the privilege. The privilege ought never to be granted, and under the present constitution can never be. As said, to impress the privilege with the idea of contract because it was paid for, might fill the whole state, and especially the cities, with gambling shops and enterprises, protected by contract, and the few gamblers that might not be thus protected and who would be liable to be punished for gambling, would not be, because it would strike the honest man as unjust to punish the poor wretch for doing that which was made lawful for others to do by paying for the privilege."

To the same effect is the holding of the United States Supreme Court in the case of Stone vs. Mississippi, 101 U. S. 814, in which that court said: "The question is, therefore, directly presented, whether, in view of these facts, the legislature of a state can, by the charter of a lottery company, defeat the will of the people, authoritatively expressed, in relation to the further continuance of such business in their midst. We think it cannot. No legislature

can bargain away the public health or the public morals. The people themselves cannot do it, much less their servants. The supervision of both of these subjects of governmental power is continuing in its nature, and they are to be dealt with as the special exigencies of the moment may require. Government is organized with a view to their preservation, and cannot divest itself of the power to provide for them. For this purpose, the largest legislative discretion is allowed, and the discretion cannot be parted with any more than the power itself."

To the same effect in Ritter's Moral and Civil Law, Chap. X.

People ex rel etc. vs. Squire etc., 15 N. E. 820 and cases there cited.

In view of these holdings, based, as they certainly are, upon good reason and sound common sense, it must be held that the state can not under the guise of a license, delegate to the saloon business a legal existence, because to hold that it can is to hold that the state may sell and delegate the right to make widows and orphans, the right to break up homes, the right to create misery and crime, the right to make murderers, the right to produce idiots and lunatics, the right to fill orphanages, poor houses, insane asylums, jails and penitentiaries and the right to furnish subjects for the hangman's gallows.

HIGHEST COURTS HAVE PASSED MIDDLE OF STREAM

The Supreme Court of Indiana, the Supreme Courts of many other states and the Supreme Court of the United States have already so far passed the

middle of the stream upon the question involved in this case that return would now be more difficult

than to go over. "Go over" is merely to draw the natural, logical and inevitable conclusion from the declarations and judgments of the courts. To return would mean either to abandon the adjudication that the saloon business is unlawful at common law, or to hold that a business which has been adjudged, by the courts to be unlawful, at common law, because it naturally and inherently endangers the health, comfort, safety, morals and welfare of the people, may be legalized for money. Some court may so hold in this case, but it will not be done by this court. If it is done by any court, it must be'. done by the court that has already held the business to be unlawful, because of its inherently destructive effects upon society.

AMENDED REMONSTRANCE SUSTAINED

With due appreciation of the responsibility of the occasion, conscious of my obligations, under my oath to Almighty God and to my fellow man, I can not, by a judgment of this court, authorize the granting of a saloon license, and the demurrer to the amended remonstrance is, therefore, overruled, the amended remonstrance is sustained and the application is dismissed at the costs of the applicant."

Note: The case of Soltau vs. Young was never appealed, and the decision rendered in said case, by Judge Artman, is in full force and effect.

CHAPTER XXI

RAILROADING THE SOPHER CASE

On April 13, 1907, in the circuit court of Hamilton County, Indiana, in the case of the State of Indiana vs. Edward Sopher, Judge Ira W. Christian, rendered an opinion holding that a retail liquor saloon is within itself a public nuisance, and that the statute, authorizing the licensing of the saloon, is unconstitutional, and, therefore, that the saloon license was no defense. This opinion was rendered upon a motion to quash the affidavit.

Following the rendition of the opinion, the defendant applied for and was granted a change of venue from Judge Christian. Reed Holloman, former Prosecuting Attorney, of the Boone Circuit Court, was appointed Special Judge to try the case. The trial was held on the 11th day of May, 1907, and, upon proof of the operation of the saloon, the judge found the defendant guilty of maintaining a public nuisance, saying in announcing the finding:

"The only question involved is whether or not the retailing of intoxicating liquors is so injurious to the public as to make the business a public nuisance. In view of the fact that nothing good comes from a saloon, except financial gain to the proprietor, it is in my mind purely a public nuisance. It is a nuisance because the results, both directly and indirectly, are bad. The saloon affects the man who goes in by robbing him of his character, his money, his reputation, and making of him, in many instances a criminal and a vagabond. Indirectly it affects his

family, who must suffer by reason of his abuse and his failure to provide. The saloon affects the public generally in the increased expense necessary for maintaining jails, penitentiaries, asylums and poor houses. In my judgment, a business whose consequences lead to such results is within the definition of a public nuisance, and therefore, amenable to the statute under consideration.”

This was the ruling that determined the liquor forces to rush a case through the state Supreme Court. Within less than ninety days four different circuit judges had held that, by reason of the universally known evil character of the saloon and its inherently injurious effects upon society, as set forth in opinions of the highest courts of the states and the nation, the saloon is within itself unlawful, and, being so, it is beyond the power of the legislature to legalize it by a license. Two boards of county commissioners had taken the same view of the question and had refused to grant any saloon licenses. The sentiment was becoming alarmingly contagious, and the liquor interests of Indiana demanded of their friends, the political bosses, relief. The liquor organ published a fervent appeal under the title, "What Can We do to Be Saved.”

The newspapers of the state that were bribed and subsidized by saloon notices and liquor advertisements declared that the "craze" had gone far enough. The self constituted guardians of good government in the state, composing the machine, whose special mission is and has been to dictate. party platforms and nominations, and to prevent, if possible, the nomination of any man, not safe to