Rensselaer Republican, Volume 22, Number 42, Rensselaer, Jasper County, 19 June 1890 — A LOCAL OPTION LAW. [ARTICLE]

A LOCAL OPTION LAW.

HON. OOHN M. BUTLER BELIEVES IT CONSTITUTIONAL. Hi* View* as Expressed In a Lengthy and Careful Opinion Concurring Endorsements by Several Other Lawyers. In response to an inquiry from Hon. John B. Conner, secretary of the Indiana Local Option Association, Hon. John M. Butler gives it as his opinion that a local option law in Indiana would be constitutional. Believing that a general interest attaches to the subject we give the opinion herewith. He says: “The ground upon which the opponents of a Local Option Law base, their objections is that such a law would conflict with the following provisions of the Constitution, namely: ’ Art. 4, Sec. 22. “The General Assembly shall not pass local or special laws in any of the following enumerated cases, that is to say. * * * “For the punishment of crimes and mis*, demeanors; * * * “Regulating county and township business; * * * “For the assessment and collection of taxes for State, county, township or road purposes; ‘•Providing for supporting common schools and for the preservation of school funds.”

Art. 4, Sec. 23. “In all the cases enumerated in the preceding section and in all other cases where a general law can be made applicable, all laws shall be general, and of uniform operation throughout the State.” Art. 1, Sec. 25. “No law shall be passed, the taking effect of which shall be made to depend upon any authority, except as provided in this Constitution.” Art. 1, Sec. 26. “The operation of the laws shall never be suspended, except by authority of the General Assembly. ’’ These provisions of the State Constitution have been repeatedly construed and passed upbn by the Supreme Court of Indiana, if the decisions of that

court were uniform, and without conflict, it would be easy to close this opinion at once by citing adjudicated cases and decisions covering the constitutional question involved. . But, unfortunately, the decisions of the Supreme Court on the points involved in an answer to your request, are not uniform, but are irreconcilably conflicting. This conflict of decisions renders it proper and, perhaps, necessary to review the leading decisions in which the above quoted provisions of the Constitution have been construed. By a law enacted by the* General Assembly of the State of Indiana, approved March 4, 1853, it was provided: ‘ ‘That no person shall retail spirituous liquors except for sacramental, mechanical, chemical, medical or culinary purposes, without the consent of a majority of the legal voters of the township who may cast their votes for license at tne April election,” —Acts 1853, p. 87.

This, it will be observed, was, in effect, a Local Option Law. In Maize vs. The State, 4 Ind. 342, decided November 29, 1853, the Supreme Court of Indiana held this provision above quoted unconstitutional, on the ground that it was in conflict with Sections 25 and 26 of Article 1, and also with Sections 22 and 23 of Article 4 of the Constitution—which are the sections above quoted. By Section 130 of the Free School Law enacted by the General Assembly of the State of Indiana, approved June 14, 1852, it was provided: “The voters of any township shall have power at any general or special meeting to vote a tax for the purpose of building or repairing school houses, and purchasing sites therefor, providing fuel, furniture, maps, apparatus, libraries or increase thereof, or to discharge debts incurred therefor, and for continuing their schools after the public funds shall have been expended, to any amount not exceeding in all fifty cents on each one hundred dollars of property, and fifty cents on each poll.”

Greencastle Township vs. Black, 5 Ind. 557 to 577, decided December 12, 1854, the Supreme Court of Indiana held this provision last quoted unconstitutional on the ground that it was in conflict with the sections of the Constitution above quoted—particularly with Sections 22 and 23 of Article 4. If these decisions correctly interpreted and construed the Constitution, it is very evident that a Local Option Law would not be valid and constitutional. Under these decisions, and the decisions of other cases following their lead, a good and wholesome law regulating and restricting the traffic in intoxicating liquors, and Embodying the principle of Local Option, was stricken down; and the Free School System of Indiana was crippled and partially paralyzed. These decisions, even if they were still held to be correct interpretations of the Constitution, would be of little or no value in behalf of that class of temperance advocates who believe State Prohibition of both manufacture and sale of intoxicating liquors to be the only proper method of dealing with the subject, and who profess to believe it a sin to regulate and restrict the traffic in intoxicating liquors by penal license statute.

The public sentiment aroused by the decision in the case of Maize vs. The State, supra, resulted in the enactment of a prohibitory law by the Legislature of 1855. This prohibitory law was approved February 16, 1855, and took effect Juats 12, 1855. On October 30, 1855, in the habeas corpus proceedings of Herman vs. The Stab?, before a Judge of the Supreme Court, this prohibitory law was held unconstitutional. - 'J • Again, on December 20, 1855, in the case of Bfobee vs. The State, 6 Ind. 501, the full Bench of the Supreme Court of Indiana held this prohibitory law unconstitutional — fudge Gookins alone dissenting. These decisions holding the prohibitory law of 1855 unconstitutional are based upon such grounds as, if correct, would make it well-nigh im-

possible to so amend the Constitution as to make it support a prohibitory law. They hold, in effect, that the prohibitory law is in direct conflict with the foundation principles of civil government as embodied in the Bill of Rights. How it could be possible that the Supreme Court of Indiana could ever have so held seems now amazing and incomprehensible. A s comparison of these decisions of the Supreme Court of Indiana, rendered in 1853-4-5, with more recent decisions of that Court, will satisfy the most skeptical that the world moves, and moves rapidly. It would now be very difficult to find any lawyer, either in or out of Indiana, who would’ undertake to defend the decisions in Maize vs. The State and Greencastle Township vs. Black, supra, as just and correct interpretations of the State Constitution.

They have been, either in express terms or by direct implication, repeatedly overruled by the Supreme Court, while the Legislature has, in the face of these decisions, and utterly ignoring them as correct interpretations of the Constitution, enacted many important statutes, now in force and unquestioned, embodying precisely the same principles that were embodied in the laws stricken down by these decisions. The grounds upon which the Local Option Law of 1853 and Section 130 of the Free School Law of ’52 were held unconstitutional were:

L That they were local laws: _ 21 That they were not “of uniform operation throughout the State: 11 3. That the taking effect of these laws was made to depend upon a popular vote, and that, therefore, legislative authority was vested in the voters of the several localities or municipal sub-divisions of the State. Neither of these objections will stand the test of reason or authority. A local law is a law affecting only a de - finitely described and limited portion of the State, and that cannot have any force or effect in any other portion of the State. The ordinary and usual meaning of the word “local” is, “pertaining to a place, or to a fixed or limited portion of space;” “limited or confined to a spot, place or definite district-” The universal rule for the construction and interpretation of Constitutions is, that the words must be taken in their ordinary and usual sense and meaning. Hence it is easy to see that a law that grants precisely the same rights, privileges and immunities to every portion and sub-division of a State, and to every resident and citizen of the State, can not be a local law in the sense in which those words are used in the Constitution.

A Local Option Law applying to the entire State can not, therefore, be obnoxious to the Constitution on the ground that it would be a local law. The very words “Local Option Law” clearly indicate that the law covers the entire State, granting the same rights, privileges and immunities to all the people of the State, but that it gives to the people of the different localities and sub-divisions of the State the right to exercise an option regarding the manner in which they will use the rights, privileges and immunities granted by the law. The objection that Local Option Laws cannot be ‘ ‘of uniform operation throughout the State” is wholly untenable.

A law is of uniform operation throughout the State whenever it gives preoisely the same rights, privileges and immunities to all the people of the State and to every locality and subdivision of the State. The people of one locality may use the rights, privileges and immunities granted by the locality may use the same rights, privileges and immunities in another way, but that does not prevent the law granting these rights, privileges and immunities from being of uniform operation throughout the State. It operates with perfect uniformity because it grants the same rights, privileges and immunities to all the people of the State, wholly irrespective of locality. Neither is it true that the taking effect of Local Option Laws is made to depend upon a popular vote; nor that such laws vest legislative authority in the voters of separate localities or municipal sub-divisions ot the State, to enact, put into force, repeal or suspend the law. When a law containing Local Option provisions is possessed by the Legislature and approved by the Governor, and has been duly published—if it has no emergency clause—it goes into full force and takes effect, and continues in full effect and operation, just as any other law does. It rests equally upon every portion of the State, and gives to every voter of the State the same rights, privileges and immunities that it givos to any one voter of the State. The voters of the several localities have no legislative authority given to them. They, cannot modify, amend, repeal or suspend the law; it remains in full

force and unsuspended. All that the voters of the several localities can do is to determine by their votes how they will use the rights, privileges and immunities granted by the law. The fact that all of the separate localities,of the State may not determine to use the rights, privileges-and immunities granted by the law in the same way, does not change, suspend or repeal the law in any locality. It remains in force and operation in all of i the localities regardless of the differ- j ent use made by the different localities of the rights, privileges and immunities granted by it. The voters of a given locality may one year use the grants given by the law in one way, the next year the may use the grants given by the law in an entirely different way, but this change of the use of the rights, privileges and immunities granted by the law neither amends, repeals, suspends, enacts nor puts in force the law.

All,laws for the punishment of crime must necessarily lack uniformity of operation, in one sense of that term, both as to persons and localities. They operate in those localities where they are violated, and upon those persons who transgress them. Some localities have no criminals. Can it be reasonably contended-that the criminal statutes are suspended and not inf orcein THSose localities ? Laws granting civil remedies are of uniform operation, and remain in full force and effect throughout the State, whenever they grant the same rights; and remedies to all citizens, in all parts of the State, under like circumstances.

In some localities no attempt may be made for years to enforce any civil right or remedy. Does it follow that the laws granting civil remedies are suspended and not in force in • those localities during those years? It is evident that the only sense in which laws can be “of uniform operation throughout the State”ls that their operation shall be the same in all parts of the State, under the same circumstances and conditions. In this sense Local Option Laws are of uniform operation throughout the State equally with any other statutes. The current of decisions of the Supreme Court of Indiana, for the last twenty years, at least, has been steadily against the doctrines announced in Maize vs. The State and Greencastle Township vs. Black, supra. . In 1873 the act commonly known as the Baxter Law was duly passed and approved. This law was, in effect, a Local Option Law. The second section contained the following provision regarding the petition for license, .namely: “Which petition shall be signed by the applicant, and also by a majority of the legal voters resident in the ward, if it be in a city or town, if it be an incorporated town or township wherein the applicant proposes to sell intoxicating liquors,” If a majority of the voters of the ward, town or township refused to sign the petition no license could issue, and the traffic was absolutely prohibited in that locality.

In Grceseh vs. the State. The Supreme Court held this provision valid and constitutional In the opinion Judge Downey used the following so rcible language: “The material question here is, does the act in question confer upon the people or a portion of the people legislative authority? The ground taken is/that the law is not in force in any township, town or ward of a city, until the requisite number of voters have signed a petition, and that it is the act of such voters in signing the petition which makes the law. In our judgment this position is untenable. W e cannot regard the act as conferring upon the petitioners legislative authority in any sense of these terms. It might as well be said that the law which authorizes the laying out of a public highway by authority of the County Commissioners upon the petition of a designated number of persons, was unconstitutional because it conferred upon such petitioners legislative authority.” While this decision does not expressly overrule the decision in Maize vs. the State, supra, it does, by clear implication, overrule that decision. The decision in Greencastle Township vs. Black, supra, has been expressly overruled. Many important statutes now in force, governing the people of Indiana as to subjects of vital importance to their general welfare, are, in effect, local option laws, under which the people of localities and municipal subdivisions of the State, are permitted, either by popular vote or by petition, to determine how they will use the rights, privileges and immunities granted by the legislature, or whether they will use them at all.

In addition to the laws upon the subject Of drainage, roads and courts, mentioned in the opinion in Robinson, Treasurer, vs. Schenck, supra, it may be proper to mention two or three 'other very important statutes embodying the principle of local option. The statutes authorizing localities and municipal sub-divisions of the State to aid, by taxation, the construction of railroads, are local option laws. The voters of the township, or other municipal sub-division of the State,'determine by popular vote just how they will use the rights, privileges and immunities granted by the statute. They can grant or withhold aid at their pleasure. Yet these laws have repeatedly been held valid and constitutional. The statutes authorizing the formation of. new counties, and the relocation of county seats, are local option laws. No new county can be formed, nor can a county seat be re-located, except upon the action of the voters of the locality, expressed by popular vote or by petition. These laws have been held constitutional.

The statutes of September 19, 1881, and March 8, 1889, providing for the purchase of toll-roads, and making them free highways, are local option laws. The voters of the localities in which toll-roads are situated determine, by vote, whether they will or will not purchase the tolLroads and make them free highways. No one questions the validity and constitutionality of these laws. They do not go into force by virtue of the act of the voters. They are already in full force and effect. The voters simply determine how they will use the rights, privileges and immunities granted to them by these laws. One township may vote tct purchaso the toll roads within its boundaries; an adjoining township may by'its vote refuse to purchase the toll roads within its boundaries. Does any One suppose that this makes the law not of uniforp operation? Again, there are many townships in the State in which there are no toll roads. Does anyone sup* pose that on that account these statutes

are local laws, and, therefoae prohibited by the Constitution? Common sense answers both of these questions In the negative. Thestotuteg are “of uniform operation throughout the State” because they grant the same rights, privileges and immunities to all the townships in the State, namely: the right to purchase toll-roads if there are any within their boundaries. They are not local laws because they apply equallyto- all the townships ,of tba State that now have, or that may here, after have, toll roads within their boundaries. It is impossible to discover or define any difference in principle between these various local option statutes abpve mentioned and a local option law regulating the traffic in intoxicate ing liquors. The Supreme Court of Pennsylvania, in a carefully considered opinion overruling former decisions of that Court, well said: “The wit ol man can not draw a well-grounded distinction between the result of a vote upon license in a township and the result of a vote upon the existence of the township and the removal of a court house, or the subscription to stock, or the consolidation of an outlying district with a city.” In discussing the question of the constitutionality of Local Option Laws, that eminent jurist, Hon. Thomas M. Cooley, after citing and commenting on the decision in Maize vs. The State, supra, and other early decisions of like import, said: 4

“But the decision in Pennsylvania was afterwards overruled on full discussion and consideration, and that in Indiana must, we think, be deemed overruled also. In other States a like delegation of authority to the local electors has generally been sustained. Such laws are known, in common parlance, as Local Option They relate to subjects which, like the retailing of intoxicating drinks, or the running at large of cattle in the public highways, may be differently regarded in different localities, and they are sustained on what seems to us the impregnable ground, that the subject, though not embraced within the ordinary power of the municipalities to make by-laws and ordinances, is nevertheless within the class of police regulations, in respect to which it is proper that the local judgment should control:"

In Hockett vs. The State, 105 Ind. 255, Chief Justite Niblack defined this police power in the following terse and well chosen words: “It is a power inherent in every sovereignty, and is, in its broadest sense, nothing more than the power .of a State to govern men and things within the limits of its own dominion. • “It extends to the protection of the lives, limbs, health, comfort and convenience, as well as the property, of all persons within the State. It authorizes the Legislature to prescribe the mode and manner in which everyone may so use his own as not to injure others, and to do whatever is necessary to promote the public welfare, not inconsistent with its own organic' law. This statement clearly announces the foundation principle of civil gov ernment upon which the validity and constitutionality of all such laws must rest, namely: the police power inherent in all civil governments and municipalities. In State of Indiana ex rel. Snoke vs. Blue, Trustee, decided Jan. 13, 1890, Judge Elliott, in holding the School Book Law of 1889 constitutional, said: ‘ ‘The act assailed does not infringe in the slightest degree upon the right of local self-government. The right of local self-government is an inherent and not a derivative one. Individualized it is the right which a man possesses in virtue of his character as a free man. It is not bestowed by Legislatures, nor derived from statutes.” These definitions, taken together, clearly _ define the principles upon which, and the boundaries within which, Local Option Laws are valid and constitutional. That Local Option Laws touching traffic in intoxicating liquors fall directly under these definitions is too 1 clear for controversy. This is true regardless of the fact that Local Option Laws may, and often do, result in absolute prohibition of the traffic in ! intoxicating liquors to be used as beverages.

In rendering the decision of the Supreme Court of the United Utates in Beer Co. vs. Massachusetts, 97 U. S. 32, 33, Mr. Justice Bradley uses the following language: “If the, public safety or the public morals require the discontinuance of any manufacture or traffic, the hand of the Legislature cannot be stayed from providing for its discontinuance by any incidental inconvenience which individuals or corporations may suffer. All rights are held subject to the police power of the State. * * * Whatever differences of opinion may exist as to the extent and boundaries of the police power, and however difficult it may be to render a satisfactory definition of it, there seems to be no doubt that it does extend to the protection of the lives, health and property of the citizens, and to the preservation of good order and the public morals.”

In view of the reasons and authorities above given, I am of the opinion that a Local Option Law, regulating the traffic in intoxicating liquors, would be valid and Constitutional under the present Constitution of the State of Indiana. Most respectfully yours, John M. Butler. Indianapolis, Ind., March 25, 1890. This opinion is concurred in by the following prominent lawyers: S. N. Chambers, W. R. Harrison, D. P. Baldwin, R. T. St. John, P. S. Kennedy, D. P. Vinton, James H. Jordan, John H. Stotsenburg. John H. Baker, Calvin &>wgill, Edwin P. Hanimond, T. B. Redding, W illCumback and Levi Ritteii