everything. With public sentiment, nothing can fail; without it, nothing can succeed.

"Consequently, he who moulds public sentiment goes deeper than he who enacts statutes or pronounces decisions. He makes statutes and decisions possible or impossible to be executed." Public sentiment does even more than this, because it makes statutes possible of enactment and decisions possible of rendition, and this means that the application of constitutional and common law standards depends upon the state of the public mind.

CHAPTER VII

THE SALOON JUDICIALLY DECLARED TO BE A PUBLIC MENACE

In the preceding chapters, we have attempted to make it very clear that, while some courts have declared that the saloon has the same legal basis as the ordinary and useful avocations of life, others have denied the soundness of such a position. And even the courts that have said that the saloon and ordinary and useful mercantile pursuits have the same legal basis, have announced unquestioned legal principles, which, when applied to their own estimate of the saloon, unequivocally establish the proposition that the saloon and the ordinary and useful occupations of life stand upon entirely different legal bases. For instance, the Supreme Court of Indiana has said that the saloon is dangerous, dangerous to both public and private morals and dangerous to the public peace and good order of society, and then says that the saloon has the same legal basis as the business of the dry goods merchant, the groceryman, the hardware merchant, or any other legitimate traffic.

Then, in the same 'opinion, the court says: "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."

If a logical application of this legal maxim be made to the saloon, upon the court's own estimate,

the inevitable conclusion must be that no person has a right to conduct a saloon, for his own gain or amusement, upon his own premises or elsewhere, because the court correctly declares that the saloon endangers both the public morals and the public peace.

Then, to put the saloon and the drygoods store upon the same legal basis, we must be able to say that no man has a right to conduct a drygoods store, for his own gain, upon his own premises or elsewhere, which we can not do, for the element of danger to the public morals and the public peace is wholly absent.

The ban upon the saloon is founded upon its inherent dangers. In George vs. Aiken, 26 L. R. A 345, the Supreme Court of South Carolina makes this distinction in the following language: "We can not 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 of the other avocations in life."

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

The element of danger to the public is the ground

of distinction between the saloon and the usual and harmless avocations of life. The saloon may be wholly prohibited because it is inherently dangerous to the public, but the drygoods business, the grocery business and the hardware business can not be wholly prohibited, for the reason that the element of inherent danger to the public is totally wanting.

Government is a protective institution and the self-preservation of society is its paramount purpose. This principle of self-preservation necessarily makes a distinction between that which is inherently dangerous and that which is not, and this discrimination can be enforced only by placing that which is thus dangerous upon a different legal plane from that which is innocent.

When the courts assert that the saloon may be entirely prohibited, and this assertion has been made judicially so often that it would be useless to appropriate the required space to cite the cases, they thereby declare that the saloon comes within the limits of the principle of law that must be invoked in order to justify the complete and absolute prohibition of any pursuit.

In a general way, we have already indicated that the element of danger to the public lies at the very source of the rule of law that will justify the total prohibition of any occupation, but in this connection, we wish to call attention to some of the judicial and other anouncements of the rule. In State vs. Scougal, 51 N. W. 858, the Supreme Court of South. Dakota says: "Under the police power vested in the

state, the legislature may regulate, but it can not prohibit or destroy a business, calling or occupation, not necessarily offensive to the senses, injurious to the health, or otherwise detrimental to the public interest; it is only trades, occupations, and pursuits that are, at all times and under all circumstances, necessarily offensive to the community, or injurious to society, that can be absolutely prohibited by legislative action."

The Court of Appeals of New York says: "In order that a trade may be prohibited entirely, the evil must inhere in the trade, so that the trade, whenever, wherever, however and by whomever conducted, will necessarily inflict injury upon the public."

Cooley's Constitutional Limitations say: "Under the police power it is not competent for the state to prohibit the citizen from carrying on any trade, occupation or business that is not offensive to the community, or injurious to society."

Tiedeman in his "Limitations of the Police Power" says: "In order to prohibit the prosecution of the trade altogether the injury to the public which alone furnishes the justification for such a law must proceed from the inherent character of the business."

So that, when the courts say that the saloon may be entirely prohibited, they thereby affirm that, by reason of its inherent character, the saloon always and everywhere is dangerous and injurious to the public-that, under all conditions, it is a public menace, a public wrong.