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The Saloon 
 Before the 
 Courts 
 
 By LEMUEL D. LILLY 
 
 n 
 OF THE 
 
 COLUMBUS BAR. 
 
 SECOND EDITION. 
 
 Published by 
 
 Ohio Anti-Saloon League, 
 Columbus, Ohio. 
 
THE SALOON BEFORE THE COURTS. 
 
 THE enemies of the saloon are constantly met by the 
 assertion that anti-saloon laws, whether general prohi- 
 bitory laws or local option laws, are unjust to the saloon 
 and deprive the liquor men of rights which they have in com- 
 mon with other lines of business. The enemies of the saloon, 
 being generally conscientious people, are predisposed to hear 
 and heed every claim of right and justice from whatever source 
 it may come, and, because of their high character and moral 
 convictions, are sometimes thrown into confusion in the face 
 of the enemy. The saloon men necessarily have no concern 
 about the moral effects of their own or any other business upon 
 the character of their patrons or upon the public welfare. On 
 these points they have no convictions to which an appeal can 
 be made. Their own selfish love of gain is their only law. 
 The cry of the widow, and of the more unfortunate wife who 
 is yoked to a drunken husband, falls upon deaf ears, when 
 they plead with the saloon keeper that his business is unfair 
 and unjust to them. When the minister of the Gospel and the 
 reformer hold up to public view the social and political evils 
 of the organized saloon power, the answer is, not that the 
 saloon is a great moral and patriotic institution, fully justified 
 by its fruits, but that it has certain rights of which it should 
 not be deprived. It offers no proof of those rights, however, 
 except its power to maintain them at the ballot box. The only 
 right which the organized saloon has is its might. The pur- 
 pose of this book is to put the anti-saloon workers of the State 
 in possession of facts and sound arguments on the alleged 
 rights of the saloon. 
 
 Religious assemblies, political conventions and reformers' 
 societies have, by oft-repeated resolutions, made the whole 
 world acquainted with their beliefs and convictions in regard 
 to the liquor traffic. But these representative bodies express- 
 ing only beliefs and convictions, neither make nor declare laws 
 
 272306 
 
THE SALOON BEFORE THE COURTS. 
 
 nor establish rights, and serve only to agitate, not to settle tht 
 questions raised. But we have in this land a tribunal, neither 
 religious, political, nor reformatory, which is not occupied in 
 raising and agitating new questions, but whose business is to 
 settle such questions as are properly brought to it by contend- 
 ing parties. This tribunal is the United States Supreme 
 Court. In dignity, in learning, in official tenure, in constitu- 
 tional authority, this tribunal is surpassed by no other. The 
 force of its decrees nullifies the acts of Congress and governs 
 the will of Presidents. Its testimony is conclusive, and its 
 judicial declarations form the supreme law of the land in re- 
 gard to all rights, public or private. It is the anchor that 
 holds the Ship of State safe at her moorings when the storms 
 gather and the waves beat. 
 
 There is no authority higher than this Court, except the 
 Bible itself. The average man looks upon the opinions of this 
 Court as dry and uninteresting. They are certainly not frivo- 
 lous, and cannot be classed in literature as story or novel. Yet 
 these judicial opinions are profoundly eloquent. Pew people 
 know what these opinions contain, and what moral principles 
 are established by them as part of the common law of the land. 
 
 An acquaintance with these principles will give confi- 
 dence to the temperance reformer, will add intelligence to his 
 efforts, and will give him an authoritative answer to all the ar- 
 guments of the saloon men. They have urged upon the Court 
 every argument which the ablest lawyers could invent, but the 
 Court has brushed all these arguments aside and has held that 
 the moral welfare of the home and of society is supreme. The 
 temperance warrior need never be routed in battle if he carries 
 with him this shield of judicial authority. Only the man who 
 knows his rights is prepared to maintain them. Uuless we 
 know the true ground of our own rights, we will not be able to 
 refute the false claims of the liquor men. Let us know our 
 own rights and manifest in the face of the enemy a proper self- 
 respect in the future. 
 
 The Courts have established the following fundamental 
 propositions, viz: 
 
 I. On account of the character of the saloon and th 
 liquor business, there is no inherent right in a citizen to Mil 
 intoxicating liquors by retail. 
 
THE SALOON BBFORB TUB COURTS. 
 
 II. The safety of the people is the supreme law. Under 
 its police powers, each State has an undoubted right to regulate, 
 restrain or prohibit the manufacture and sale of intoxicating 
 liquors for beverage purposes. 
 
 III. Laws regulating, restraining or prohibiting the man- 
 ufacture and sale of intoxicating liquors for beverage purposes 
 do not impair any man's constitutional rights of personal 
 liberty. 
 
 IV. Laws regulating, restraining or prohibiting the use 
 of property for the manufacture and sale of intoxicating liquors 
 for beverage purposes do not interfere with any man's consti- 
 tutional rights of property. 
 
 V. The payment of revenue or special taxes to the gov- 
 ernment by way of license or tax does not entitle those engaged 
 in the traffic to any vested rights or special privileges. 
 
 VI. Independent of any statute law, the saloon has been 
 enjoined as a common nuisance when set up and run in a pure- 
 ly residence community. 
 
 1. The first great legal battle over the regulation and con- 
 trol of the liquor traffic was fought in the United States Supreme 
 Court in 1847. The contest is fully reported in a series of 
 cases heard together and called the "License Cases*." Certain 
 license laws had been passed by the Legislatures of Massachu- 
 setts, Rhode Island and New Hampshire. Certain parties from 
 each state had been convicted under the State law of selling 
 liquor without a license. In Massachusetts the license law 
 contained a provision under which the officials of the towns 
 could refuse to grant licenses at all, and in many places such 
 refusal had been made, and it was thus made impossible to pro- 
 cure a license. In each of these cases the accused saloon 
 keeper had imported liquor from other States and had sold it 
 in violation of law. 
 
 The United States constitution provides that Congress 
 shall have the power to regulate commerce with foreign nations 
 and among the several States. The claim was made that since 
 a law of Congress permitted the importation, the law of the 
 State could not prohibit the sale after the importation had 
 been made, nor place restrictions upon it. 
 
 * License Cases, 6 Howard, 504. 
 
THE SALOON BEFORE THE COURTS. 
 
 Daniel Webster made the final argument for the liquor 
 men in the case coming up from Massachusetts. He and Rufus 
 Choate argued the case first in 1845, and Webster again in 
 1847. These great lawyers left nothing unsaid which the 
 human intellect could devise on the points at issue. Their 
 argument was that the license laws were unconstitutional, be- 
 cause they contravene the power of Congress to regulate 
 foreign commerce, to collect revenue on imports in the several 
 states, to make equal apportionment of taxes and duties in all 
 the states and to make treaties with foreign powers. Congress 
 has power to pass laws on all of these subjects, and if the states 
 can stop commerce in any one commodity, such as liquor, they 
 to that extent override the constitutional power of Congress. 
 
 Counsel for the temperance people argued that the several 
 states had the right to legislate in good faith for the protection 
 of the health and good morals of the people, and that the 
 United States are as much interested in the preservation of 
 life, health and morals as the states can be. On these points 
 the policies of the Federal and State governments cannot be 
 arrayed against each other. Congress cannot, for the sake of 
 a little revenue, or for the sake of protecting foreign commerce, 
 prevent a state from protecting the morals of its people and 
 discouraging pauperism, profligacy and crime. Such a result 
 would be contrary to the intent of all parties in the formation 
 of the State and Federal governments. The greatest aim of 
 government, as Gladstone puts it, is to make it as easy as pos- 
 sible to do right, and as hard as possible to do wrong. The 
 states have the right to protect the morals of the people, and 
 this right is inalienable. This right was never surrendered 
 by the people to the national government. The state has a 
 right to prevent an evil, no matter what revenue it produces. 
 It is not the policy of government to debauch public morals, to 
 encourage a lavish waste of property and to multiply crimes 
 for the mercenary consideration of deriving revenue from the 
 process of degradation. Such a course does not pay. 
 
 A diminution in the consumption of intoxicating liquor 
 does not raise any presumption that the general revenue is im- 
 paired by the process. On the contrary, if the facts were put 
 to the severest scrutiny and the closest tests, the result would 
 be quite otherwise. Who claims that an excessive, or even a 
 free, use of intoxicating liquor promotes public prosperity? 
 
THE SALOON BEFORE THE COURTS. 
 
 A drunken man is not as good a citizen as a sober man. A 
 moderate drinker could make better use of his money. Where 
 abstinence and temperance prevail, accumulation is increased 
 and the means of subsistence enlarged. 
 
 An increase in accumulation and an increase in the means 
 of subsistence create a greater expenditure in the necessaries 
 and comforts of life, and contribute in other forms to the 
 revenue, giving a gain instead of a loss. 
 
 When the arguments were finished the court opened its 
 mouth and immense streams of moral truth poured forth. 
 Webster was caught in -the flood and swept from his feet. Chief 
 Justice Taney said: 
 
 "Although the state is bound to receive and to permit the 
 sale by the importer of any article of merchandise which Con- 
 gress authorizes to be imported, it is not bound to furnish a 
 market for it, nor to abstain from the passage of any law 
 which it may deem necessary or advisable to guard the health 
 or morals of its citizens, although such law may discourage 
 importation, or diminish the profits of the importer, or lessen 
 the revenue of the general government. And if any state 
 deems the retail and internal traffic in ardent spirits injurious 
 to its citizens, and calculated to produce idleness, vice, or de- 
 bauchery, I see nothing in the Constitution of the United States 
 to prevent it from regulating and restraining the traffic, or 
 from prohibiting it altogether, if it thinks proper." 
 
 Justice McLean said: 
 
 "The acknowledged police power of a state extends often 
 to the destruction of property. A nuisance may be abated. 
 Everything prejudicial to the health or morals of a city may be 
 removed. Merchandise from a port where a contagious disease 
 prevails, being liable to communicate the disease, may be 
 excluded; and, in extreme cases, may be thrown into the sea. 
 This comes in direct conflict with the regulation of commerce, 
 and yet no one doubts the local power. It is a power essential 
 to self-preservation, and exists, necessarily, in every organized 
 community. It is, indeed, the law of nature, and is possessed 
 by man in his individual capacity. He may resist that which 
 does him harm, whether he be assailed by an assassin or ai> 
 
THE SALOON BEFORE THE COURTS. 
 
 proached by poison. And it is the settled construction of every 
 regulation of commerce, that, under the sanction of its general 
 laws, no person can introduce into a community malignant 
 diseases, or anything which contaminates its morals, or en- 
 dangers its safety. And this is an acknowledged principle ap- 
 plicable to all general regulations. Individuals in the enjoy- 
 ment of their own rights must be careful not to injure the 
 rights of others." 
 
 In the town of Cumberland, Rhode Island, the town coun- 
 cil refused to grant any license for retailing liquors. In com- 
 menting upon this fact the same justice said: 
 
 "The effect of this proceeding was to prohibit the sale of 
 spirituous liquors in the town of Cumberland in less quantities 
 than ten gallons. There is no constitutional objection to the 
 exercise of this discretion under the authority of the state law. 
 In the first place, no system of licenses to retail spirits has 
 authorized the grant, except upon certain conditions. No one, 
 it is presumed, can claim a license to retail spirits as a matter 
 of right. Under the law of the state a discretion is to be exer- 
 cised, not only as regards the individuals who apply, but also 
 as to the number that shall be licensed in each town. And, if 
 it shall be determined that a certain town is not entitled to a 
 license, it is not perceived how such a decision can be con- 
 trolled." 
 
 Justice Woodbury said: 
 
 "It is further argued, however, that the license laws ac- 
 complish indirectly what is hostile to the policy of Congress, 
 and thus conflict with the spirit of its acts, as much as if they 
 prohibited absolutely both importations and sales. But if affect- 
 ing this at all, it must be because they tend to lessen, and are 
 designed to lessen, the consumption of foreign spirits, and thus 
 help to reduce the imports and sales of them." 
 
 Again: "From the first settlement of this country, and 
 in most other nations, ancient or modern, civilized or savage, 
 it has been found useful to discountenance excesses in the use 
 of intoxicating liquor. And without entering here into the 
 question whether legislation may not, on this as other matters, 
 become at times intemperate, and re-act injuriously to the salu- 
 tary objects sought to be promoted, it is enough to say, under 
 
THE SALOON BEFORE THE COURTS. 
 
 the general aspect of it, that the legislation here is neither 
 novel nor extraordinary, nor apparently designed to promote 
 other objects than physical, social and moral improvement. 
 On the contrary, its tendency clearly is to reduce family ex- 
 penditures, secure health, lessen pauperism and crime, and co- 
 operate with, rather than counteract, the apparent policy of the 
 general government itself in respect to the disuse of ardent 
 spirits. 
 
 "They aim, then, at a right object. They are calculated 
 to promote it. They are adapted to no other. And no other, 
 or sinister or improper view can, therefore, either with delicacy 
 or truth, be imputed to them." 
 
 "It is conceded that the States may exclude pestilence, 
 either in body or mind, shut out the plague or cholera, and, 
 no less, obscene paintings, lottery tickets and convicts. (Holmes 
 v. Jennison et al, 14 Peters, 568; 9 Wheat., 203; 11 Peters, 
 133.) How can they be sovereign within their respective 
 spheres, without power to regulate all their internal commerce, 
 as well as police, and direct how, when and where it shall be 
 conducted in articles intimately connected either with public 
 morals or public safety, or the public prosperity?" 
 
 Justice Grier said: 
 
 "The true question presented by these cases, and one 
 which I am not disposed to evade, is, whether the States have 
 a right to prohibit the sale and consumption of an article of 
 commerce which they believe to be pernicious in its effects, 
 and the cause of disease, pauperism and crime." 
 
 2. The saloon men took refuge under the fourteenth 
 amendment to the constitution after that amendment was adopt- 
 ed. This amendment provides that no State shall pass any law 
 which shall abridge the privileges and immunities of citizens 
 of the United States. They argued that the right to sell intox- 
 icating liquor at retail was one of the privileges and immunities 
 of the citizen, and that the State could not, therefore, pass any 
 prohibitory law. 
 
 This point was passed upon by the Court in 1873. An 
 Iowa saloon keeper named Bartemeyer was convicted of selling 
 
THE SALOON BEFORE THE COURTS. 
 
 liquor contrary to an Iowa statute. Justice Miller, speaking 
 for the Court, held that up to the time of the adoption of the 
 fourteenth amendment the question of regulating or prohibit- 
 ing the liquor traffic had been considered as falling within the 
 police regulations of the States, was left to their judgment and 
 subject to no other limitations than such as were imposed by 
 the State constitution, or by the general principles supposed to 
 limit all legislative power. This was the law before the adop- 
 tion of the fourteeenth amendment, and the Court held that 
 the law was not changed by the adoption of that amendment, 
 Justice Miller said: 
 
 "The weight of authority is overwhelming that no such 
 immunity has heretofore existed as would prevent State legisla- 
 tures from regulating and even prohibiting the traffic in intoxi- 
 cating drinks, with a solitary exception. That exception is the 
 case of a law operating so rigidly on property in existence at 
 the time of its passage, absolutely prohibiting its sale, as to 
 amount to depriving the owner of his property. * * * But 
 no case has held that such a law was void as violating the 
 privileges or immunities of citizens of a State or of the United 
 States. If, however, such a proposition is seriously urged, we 
 think that the right to sell intoxicating liquors, so far as such 
 a right exists, is not one of the rights growing out of citizen- 
 ship of the United States."* 
 
 The reason assigned by the Court for this decision was that 
 the police power of the State extended to and embraced the 
 protection of lives, limbs, health, comfort and quiet of all per- 
 sons, and the protection of all property within the State. Per- 
 sons and property can be subjected to all kinds of restraints 
 and burdens in order to secure the general comfort, health 
 and prosperity of the State. The Court had just decided the 
 Slaughter House cases from New Orleans, in which they held 
 that the butchers could be compelled to keep their cattle pen* 
 and slaughter houses outside of the city, and that such a rule 
 infringed upon none of their privileges and immunities. The 
 protection of the public morals from the effects of the liquor 
 traffic was put upon the same basis as the protection of the 
 public health from the slaughter house. 
 
 * Bartemeyer v. lovea, 18 Wallace, 129. 
 
THE SALOON BEFORE THE COURTS. 
 
 The foregoing decisions leave no doubt as to what the 
 standing of the saloon is before the highest earthly Court. 
 The saloon keepers, however, pressed the Court for relief 
 under other phases of the fourteenth amendment, and in 1890, 
 in the case of Crowley v. Christensen,* from California, the 
 Court, as if disgusted with their persistency, delivered an 
 opinion which reads like the language of one of the greater 
 prophets. 
 
 A city ordinance of San Francisco prohibited the sale of 
 liquor without a license, and gave the Board of Police Com- 
 missioners discretionary power to grant or refuse license. 
 They had refused Christensen a license. He continued to sell 
 and was arrested. He defended himself under still another 
 phase of the fourteenth amendment, which provides that no 
 citizen shall be deprived of the equal protection of the laws. 
 
 He made the old plea that his personal liberty was inter- 
 fered with, that the liquor business was legitimate, and that 
 the legislature had no right to say what a man shall drink, 
 and that in refusing him a license while granting it to others 
 the officials denied him the equal protection of the laws. 
 
 Justice Field delivered the opinion of the Court. The 
 great moral vigor, and the Christian principles of this opinion, 
 make it profoundly eloquent. It cannot be condensed. That 
 part of it which answers the argument of the saloon men re- 
 ferred to above reads as follows: 
 
 "It is undoubtedly true that it is the right of every citizen 
 of the United States to pursue any lawful trade or business, 
 under such restrictions as are imposed upon all persons of the 
 same age, sex and condition. The possession and enjoyment 
 of all rights are subject to such reasonable conditions as may 
 be deemed by the governing authority of the country essential 
 to the safety, health, peace, good order and morals of the com- 
 munity. Even liberty itself, the greatest of all rights, is not 
 unrestricted license to act according to one's own will. It is 
 only freedom from restraint under conditions essential to the 
 equal enjoyment of the same right by others. It is, then, 
 liberty regulated by law. The right to acquire, enjoy and 
 dispose of property is declared in the constitutions of the sev- 
 
 t Crowley v, Christensen, 137 U. 8., 86; 11 Sup. Ct., 13. 
 
10 THE SALOON BEFORE THE COURTS. 
 
 eral States to be one of the inalienable rights of man; but 
 this declaration is not held to preclude the legislature of any 
 State from passing laws respecting the acquisition, enjoyment 
 and disposition of property. What contracts respecting its 
 acquisition and disposition shall be valid, and what void and 
 voidable, when they shall be in writing, and when they may 
 be made orally, and by what instruments it may be conveyed 
 or mortgaged, are subjects of constant legislation. And, as 
 to the enjoyment of property, the rule is general that it must 
 be accompanied with such limitations as will not impair the 
 equal enjoyment of others of their property. Sic utere tuo \A 
 alienum non laedas is a maxim of universal application For 
 the pursuit of any lawful trade or business the law imposes 
 similar conditions. Regulations respecting them are almost 
 infinite, varying with the nature of the business. Some occu- 
 pations by the noise made in their pursuit, some by the odors 
 they engender, and some by the dangers accompanying them, 
 require regulations as to the locality in which they shall be 
 conducted. Some by the dangerous character of the articles 
 used, manufactured or sold, require also special qualifications 
 in the parties permitted to use, manufacture or sell them. All 
 this is but common knowledge, and would hardly be mentioned 
 were it not for the position often taken, and vehemently 
 pressed, that there is something wrong in principle and objec- 
 tionable in similar restrictions when applied to the business 
 of selling by retail, in small quantities, spirituous and intoxi- 
 cating liquors. It is urged that as liquors are used as a bev- 
 erage, and the injury following them if taken in excess, is 
 voluntarily inflicted and is confined to the party offending, 
 their sale should be without restrictions, the contention being 
 that what a man shall drink, equally with what he shall eat, 
 is not properly matter for legislation. There is in this posi- 
 tion an assumption of fact which does not exist that, when 
 the liquors are taken in excess the injuries are confined to the 
 party offending. The injury, it is true, first falls upon him 
 in his health, which the habit undermines; in his morals, 
 which it weakens, and in the self-abasement which it creates. 
 But, as it leads to neglect of business and waste of property 
 and general demoralization, it affects those who are imme- 
 diately connected with and dependent upon him. By the 
 general concurrence of opinion of every civilized and Christian 
 
THE SALOON BEFORE THE COURTS. 11 
 
 community, there are few sources of crime and misery to 
 society equal to the dram shop, where intoxicating liquors, in 
 small quantities, to be drunk at the time, are sold indiscrim- 
 inately to all parties applying. The statistics of every State 
 show a greater amount of crime and misery attributable to 
 the use of ardent spirits obtained at these retail liquor saloons 
 than to any other source. The sale of such liquors in this 
 way has therefore been, at all times, by the Courts of every 
 State, considered as the proper subject of legislative regula- 
 tion. Not only may a license be exacted from the keeper of 
 the saloon before a glass of his liquors can be thus disposed 
 of, but restrictions may be imposed as to the class of persons 
 to whom they may be sold, and the hours of the day, and the 
 days of the week on which the saloons may be opened. Their 
 sale in that form may be absolutely prohibited. It is a 
 question of public expediency and public morality, and not of 
 federal law. The police power of the State is fully competent 
 to regulate the business, to mitigate its evils, or to suppress 
 it entirely. There is no inherent right in a citizen to sell 
 intoxicating liquors by retail. It is not a privilege of a citizen 
 of the State or of a citizen of the United States. As it is a 
 business attended with danger to the community, it may, as 
 already said, be entirely prohibited, or be permitted under 
 such conditions as will limit to the untmost its evils. The 
 manner and extent of regulation rest in the discretion of the 
 governing authority. That authority may vest in such officers 
 as it may deem proper, the power of passing upon applications 
 for permission to carry it on, and to issue license for that 
 purpose. It is a matter of legislative will only. As in many 
 other cases, the officers may not always exercise the power 
 conferred upon them with wisdom or justice to the parties 
 affected. But that is a matter which does not affect the author- 
 ity of the State, or one which can be brought under the cog- 
 nizance of the Courts of the United States." 
 
 II. Under its police powers each State has an undoubted 
 right to regulate, restrain or prohibit the sale of and traffic in 
 intoxicating liquors for beverage purposes. 
 
 The police power is the inalienable right inherent in the 
 people to promote and protect the public health and the public 
 morals. "No legislature can bargain away the public health 
 
12 THE SALOON BEFORE THE COURTS. 
 
 or the public morals. The people themselves cannot do it, 
 much less their servants."* 
 
 As the father has an inalienable and inherent right to 
 protect his boy from immoral associations, so the State has an 
 inalienable and inherent right to protect all the people from 
 immoral influences. Every man has a right to be decent and 
 to protect himself and his children from the indecency of 
 others. The father may, by eliminating evil influences from 
 the home, protect the morals of his boy. So may the State, 
 by eliminating evil institutions from society, protect the 
 morals of the youth of the State and the people in general. 
 
 The wholesale liquor dealers recently issued from Louis- 
 ville an appeal to the trade in which they made the argument 
 that the temperance people have no better right to insist that 
 all saloons shall be abolished and liquor sales prohibited, than 
 the liquor men have to insist that all men shall be drinkers. 
 The proposition would be sound if the liquor business was 
 harmless to public morals and to the public welfare. 
 
 The fallacy in their proposition is the assumption that 
 the liquor men have any right at all to engage in a business 
 which demoralizes public morals. If the moral element of 
 the community have no right to insist that the immoralities 
 of other men shall cease, then Christ had no right to cast out 
 the devil. The devils who tore the maniac of the tombs should 
 have been let alone when they asked it. This plan would also 
 have saved the hogs on the hillside. But Christ bade the 
 legion of devils to go. If the moral people of the community 
 have no right to demand that immorality shall be stopped, 
 then Christ had no authority to commission his disciples to go 
 into all the earth and preach the gospel to every creature, 
 because the Gospel, when it shall have done its perfect work, 
 will put down the saloon. The devil is an usurper. He has 
 no rights here except such as he has acquired by usurpation 
 and holds by sufferance. On any other principle the preach- 
 ing of the Gospel is a farce, and missionary work among the 
 heathen is unwarranted. 
 
 No Court has ever been able to define precisely and com- 
 prehensively the term "police powers," but Chief Justice Waite 
 said in 1880 that the police power "extends to all matters 
 
 *9tone v. Mississippi, 101 U. S. SiJ. 
 
THE SALOON BEFORE THE COURTS. 13 
 
 affecting the public health or the public morals."* The Court 
 has uniformly held that laws restraining and prohibiting the 
 beverage traffic in intoxicating liquors come within the police 
 powers of the State, and are upheld on the ground that the 
 liquor traffic is injurious to public morals. 
 
 The exercise of the police powers of the States was dis- 
 cussed by the United States Supreme Court in the License 
 Cases, cited above, but as the question of the police power of 
 the State was again discussed in the Kansas cases (MugUr v. 
 Kansas, 123 U. S., 623; 8 Sup. Ct. Rep., 273), a quotation from 
 the opinion in the latter cases by Justice Harlan will be suffi- 
 cient. The learned Judge says: 
 
 "In the License Cases (5 How., 504), the question was, 
 whether certain statutes of Massachusetts, Rhode Island and 
 New Hampshire, relating to the sale of spirituous liquors, were 
 repugnant to the Constitution of the United States. In deter- 
 mining that question it became necessary to inquire whether 
 there was any conflict between the exercise by Congress of its 
 power to regulate commerce with foreign countries, or among 
 the several States, and the exercise by a State of what are 
 called police powers. Although the members of the Court 
 did not fully agree as to the grounds upon which the decision 
 should be placed, they were unanimous in holding that the 
 statutes then under consideration were not inconsistent with 
 the Constitution of the United States, or with any act of Con- 
 gress. Chief Justice Taney said: 'If any State deems the 
 retail and internal traffic in ardent spirits injurious to its citi- 
 zens, and calculated to produce idleness, vice or debauchery, 
 I see nothing in the Constitution of the United States to pre- 
 vent it from regulating and restraining the traffic, or from 
 prohibiting it altogether, if it thinks proper.' Mr. Justice 
 McLean, among other things, said: 'A State regulates its 
 domestic commerce, contracts, the transmission of estates, real 
 and personal, and acts upon internal matters which relate to 
 its moral and political welfare. Over these subjects the fed- 
 eral government has no power. The acknowledged police 
 power of a State extends often to the destruction of property. 
 A nuisance may be abated. Everything prejudicial to the 
 health or morals of a city may be removed.' Mr. Justic* 
 
 *8tone v. Mimiirippi, 101 U. S., 814. 
 
14 THE SALOON BEFORE THE COURTS. 
 
 Woodbury observed: 'How can they (the States) be sover- 
 eign within their respective spheres, without power to regu- 
 late all their internal commerce, as well as police, and how, 
 when and where it shall be conducted in articles intimately 
 connected either with public morals, or public safety, or public 
 prosperity?'" 
 
 And again: "In Bartemeyer v. Imoa, 18 Wall., 129, it 
 was said that, prior to the adoption of the fourteenth amend- 
 ment, State enactments, regulating or prohibiting the traffic 
 in intoxicating liquors, raised no question under the Constitu- 
 tion of the United States; and that such legislation was left 
 to the discretion of the respective States, subject to no other 
 limitations than those imposed by their own constitutions, or 
 by the general principles supposed to limit all legislative 
 power." 
 
 Referring to the contention that since the adoption of the 
 fourteenth amendment the right to sell intoxicating liquors 
 was secured by that amendment, the Court said that, "so far 
 as such a right exists, it is not one of the rights growing out 
 of citizenship of the United States." In Beer Co. v. Massachu- 
 setts, 97 U S., 33, it was said that, "as a measure of police 
 regulation, looking to the preservation of public morals, a 
 State law prohibiting the manufacture and sale of intoxicating 
 liquors is not repugnant to any clause of the Constitution of 
 the United States." Finally, in Foster v. Kansas, 112 U. S., 
 206, 5 Sup. Ct. Rep., 97, the Court said that the question as 
 to the constitutional power of a State to prohibit the manufac- 
 ture and sale of intoxicating liquors was no longer an open 
 one in this Court. These cases rest upon the acknowledged 
 right of the States of the Union to control their purely internal 
 affairs, and in so doing to protect the health, morals and safety 
 of their people, by regulations that do not interfere with the 
 execution of the powers of the general government, or violate 
 rights secured by the Constitution of the United States. The 
 power to establish such regulations, as was said in Gibbons v. 
 Odgen, 9 Wheat., 203, reaches everything within the territory 
 of a State not surrendered to the national government." 
 
 And still again: "As it was said in Munnv. Illinois 94 
 U. S., 124, while power does not exist with the whole people 
 to control rights that are purely and exclusively private, gov- 
 ernment may require 'each citizen to so conduct himself, and 
 
THE SALOON BEFORE THE COURTS. lg 
 
 BO use his own property, as not unnecessarily to injure another.' 
 But by whom, or by what authority, is it to be determined 
 whether the manufacturer of particular articles of drink, either 
 for general use or for the personal use of the maker, will in- 
 juriously affect the public? Power to determine such ques- 
 tions so as to bind all must exist somewhere; else society will 
 be at the mercy of the few, who, regarding their own appetites 
 or passions, may be willing to imperil the peace and security 
 of the many, provided only they are permitted to do as they 
 please. Under our system that power is lodged with the legis- 
 lative branch of the government. It belongs to that depart- 
 ment to exert what are known as the police powers of the 
 State, and to determine, primarily, what measures are appro- 
 priate or needful for the protection of public morals, the public 
 health or the public safety." 
 
 The case of Beer Company v. Massachusetts referred to 
 above is so forceful that it deserves a more extended notice. 
 
 The Courts had held that charters of incorporation, 
 granted for the private benefit or purposes of the corporators, 
 were contracts between the legislature and the corporators. 
 The liquor men contended that while the legislature might 
 prohibit a private individual from engaging in the manufac- 
 ture and sale of intoxicating liquors, a corporation could not 
 be so prohibited without impairing a contract. Consequently 
 the Boston Beer Company, a Massachusetts corporation, rely- 
 ing upon that proposition, brought a suit to contest the validity 
 of the Massachusetts prohibitory law of 1869. In that case, 
 certain liquors manufactured since the passage of the law and 
 kept for sale in violation thereof, were seized by the officers 
 and forfeited to the State. The State Courts sustained their 
 action, and the case was brought to the Supreme Court at 
 Washington. 
 
 Justice Bradley, who delivered the opinion of the United 
 States Supreme Court, said that the Boston Beer Company was 
 incorporated "for the purpose of manufacturing malt liquors 
 in all their varieties," and that "the right to manufacture, un- 
 doubtedly, as the plaintiff's counsel contends, included the 
 incidental right to dispose of the liquors manufactured. But 
 although this right or capacity was thus granted in the most 
 unqualified form, it cannot be construed as conferring any 
 
16 THE SALOON BEFORE THE COURTS. 
 
 greater or more sacred right than any citizen had to manufac- 
 ture malt liquor; nor as exempting the corporation from any 
 control therein to which a citizen would be subject, if the 
 interests of the community should require it. 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."* 
 
 "The plaintiff in error (the Boston Beer Company) boldly 
 takes the ground that, being a corporation, it has a right, by 
 contract, to manufacture and sell beer forever, notwithstand- 
 ing and in spite of any exigencies which may occur in the 
 morals or the health of the community requiring such manu- 
 facture to cease. We do not so understand the rights of the 
 plaintiff. The legislature had no power to confer any such 
 rights." 
 
 "Whatever differences of opinion may exist as to the ex- 
 tent 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 preserva- 
 tion of good order and the public morals. The legislature 
 cannot, by any contract, divest itself of the power to provide 
 for these objects. They belong emphatically to that class of 
 objects which demand the application of the maxim, Salus 
 populi suprema lex; and they are to be attained and provided 
 for by such appropriate means as the legislative discretion 
 may devise. That discretion can be no more bargained away 
 than the power itself." 
 
 No corporation or individual can acquire any rights, by 
 contract or otherwise, which the government may not annul 
 and take away, if the exercise of such rights becomes detri- 
 mental to the public health or the public morals. Power to 
 protect the general welfare is not limited. The preservation 
 of the public health and the public morals is so necessary to 
 the best interests of social organization that a wise policy for- 
 bids the legislative body to divest itself of the power to enact 
 laws for the preservation of health and the repression of crime. 
 N. O. Gas lAglit Go. v. La. Light Co., 6 Sup. Ct. Rep., 
 
 * Beer Co. v. Massachusetts, 97 U. 8., 33. 
 
THE SALOON BEFORE THE COURTS. 17 
 
 III. Laws regulating, restraining or prohibiting the 
 manufacture and sale of intoxicating liquors for beverages d 
 not impair any man's constitutional rights of personal liberty. 
 
 The liquor men have claimed that all men had the per- 
 sonal right to drink if they wanted to and that every citizen 
 had a personal right to manufacture for his own use. 
 
 On the contention that a man has the personal right to 
 drink if he wants to, and therefore the dealer has the right to 
 sell to the man who has the right to drink, the Court expressed 
 itself in the case of Crowley against Christensen. The Court 
 held that even liberty itself is not unrestricted license to act 
 according to one's own will. It is only freedom from con- 
 straint under conditions essential to the equal enjoyment of 
 the same right by others. The law has a right to regulate 
 even the personal liberty of the citizen. 
 
 While liberty is sacred, personal liberty is no more sacred 
 than private property. Private property may not be so used 
 as to injure another. The personal right to one's liberty is 
 no greater than the personal right to one's property. Personal 
 liberty when used for gambling purposes, for example, is no 
 more sacred than personal property when used for gambling 
 purposes. No man has any personal right to be immoral or 
 conduct an immoral business, when his immoral conduct or 
 business injures others. When a man begins to do things 
 which injure others, his personal liberty ends. Personal lib- 
 erty of the individual can not prevail against the public wel- 
 fare. 
 
 The saloon keeper cannot wash his hands of the blood of 
 his patrons by saying that they are free to do as they please, 
 and if they drink to excess no one is to blame but themselves 
 and therefore the sales should be without restriction. This 
 might be true if a man's use of intoxicants affected only him- 
 self. But besides injuring him in his health, in his morals 
 and in his general standing, it leads to a neglect of business, 
 habits of idleness, and waste of property. It also affects those 
 who are immediately connected with and dependent upon him. 
 No man liveth to himself. No man has any personal right to 
 disgrace and debase those who are dependent upon him. A 
 parent has an inherent right to bring up his own children, but 
 he may so neglect his own children that the law will take them 
 
18 THE SALOON BEFORE THE COURTS. 
 
 from him and give them to another or place them in some 
 home. This is done for the reason that the State has the 
 right to protect itself and the youth of the land against the 
 neglect and immorality of worthless parents. 
 
 No man has the right to live with so much filth around 
 him as to injure the health of his neighbor. The health offi- 
 cers can make a man clean up his own home, and surely, if a 
 man has liberty anywhere it is in his own home. Morals are 
 certainly as essential in a republic as health. Moral filth may 
 be cleaned up as well as any other kind of garbage. 
 
 In the Kansas Prohibition cases in 1887, the brewers' at- 
 torneys argued that, having erected a plant suitable only for 
 the making of beer, the owner had the personal right to manu- 
 facture and sell for beverage purposes. The Court met the 
 argument fairly in this language: "And so, if in the judgment 
 of the legislature, the manufacture of intoxicating liquors for 
 the maker's own use as a beverage, would tend to cripple if it 
 did not defeat, the efforts to guard the community against tht 
 evils attending the excessive use of such liquors, it is not for 
 the courts, upon their views as to what is best and safest for 
 the community, to disregard the legislative determination of 
 that question. So far from such a regulation having no rela- 
 tion to the general end sought to be accomplished, the entire 
 scheme of prohibition, as embodied in the constitution and 
 laws of Kansas, might fail, if the right of each citizen to man- 
 ufacture intoxicating liquors for his own use as a beverage 
 were recognized. Such a right does not inhere in citizenship. 
 Nor can it be said that government interferes with or impairs 
 any one's constitutional rights of liberty or of property, when 
 it determines that the manufacture and sale of intoxicating 
 drinks, for general or individual use, as a beverage, are, or 
 may become, hurtful to society, and constitute, therefore, a 
 business in which no one may lawfully engage. Those rights 
 are best secured, in our government, by the observance, upom 
 the part of all, of such regulations as are established by com- 
 petent authority to promote the common good. No one may 
 rightfully do that which the law-making power, upon reasona- 
 ble grounds, declares to be prejudicial to the general welfare."* 
 
 * Mugler v. Kansas, 124 CJ. 8., 625; 6 Sup. Ct. Rep., 273. 
 
THE SALOON BEFORE THE COURTS. 19 
 
 Some of the advocates of personal liberty possess more 
 frankness than discretion. Not long ago the National Advo- 
 cate, published at Cleveland, and being the official organ of 
 one of the saloon organizations known as the Royal Arch, 
 printed the following declarations of personal liberty: "The 
 saloon merely demands rights to defy any man who should im- 
 pose upon him a law which is against him, fighting against his 
 bread and butter. And such laws should be defied. They 
 should be trampled in the dust, and if they cannot be revised, 
 then I say it is time to become anarchists." 
 
 The right of winning one's bread and butter is certainly 
 one of the most sacred personal rights of man. If a man has 
 personal liberty to do anything, it is to earn his bread and 
 butter. Yet the manner in which he may get his bread and 
 butter is not without its restrictions. The saloon keeper 
 argues that he has no other way of getting bread and butter 
 for himself and his children, and that he has the personal 
 liberty to pursue the way which he has chosen. 
 
 The first answer is that he might have chosen a better 
 way if he had sought it.. There is still truth in the declaration 
 of the Psalmist: "I have been young, and now I am old; yet I 
 have not seen the righteous forsaken, nor his seed begging 
 bread." An honorable life brings its own rewards. The 
 righteous man is seldom compelled to beg. If the average 
 saloon keeper will retire from the saloon business and live a 
 righteous life it is not likely that he will want for bread and 
 butter and if he does so want the hand of charity will be open. 
 The vast majority of beggars, men and women, are such be- 
 cause of sin, not because of righteousness. The saloon keeper 
 could do other things; he need not be a beggar if he goes out 
 of the saloon business. 
 
 The second answer to this argument of the saloon keeper 
 that he has a right to get his bread and butter by keeping a 
 saloon is, that he has no right to win bread and butter for him- 
 self and his children in a way that takes bread and butter out 
 of the mouths of others. We have a right to object to th 
 manner in which a man gets even his bread and butter. The 
 pickpocket, burglar, and the horse-thief may argue that they 
 have chosen these methods of getting their bread and butter, 
 
20 THE SALOON BEFORE THE COURTS. 
 
 and have no other way of making their living, but we make 
 short work of their argument. We promptly tell them that 
 their way of getting their living is contrary to the public safety 
 and rights of property. When the saloon keeper defends his 
 way of making a living, the sufficient answer is that his way is 
 Injurious to the public morals, and may, therefore, be stopped. 
 
 The only defense left the liquor man is that his business 
 is not detrimental to public morals. But the proof of the im- 
 moral character of the saloon business is so clear and universal 
 that the highest judicial tribunal on earth has announced, as 
 a part of a solemn adjudication, that "By the general concur- 
 rence of opinion of every civilized and Christian community, 
 there are few sources of crime and misery to society, equal to 
 the dramshop, where intoxicating liquors, in small quantities, 
 to be drunk at the time, are sold indiscriminately to all parties 
 applying."* This is a conservative statement of the sentiment 
 and popular conviction in regard to the saloon in every civ- 
 \lized and Christian community. The only place where the 
 saloon keeper finds full concurrence with his views is in a 
 community neither civilized nor Christian. 
 
 This sentiment and these convictions are fully justified 
 by the character and results of the saloon business. The 
 saloons in furtherance of their design to make money regard- 
 less of the public welfare, maintain organizations for the two- 
 fold purpose of controlling politics and resisting the enforce- 
 ment of the law. The political influence of the organized 
 liquor traffic is never exercised on the side of good morals and 
 public decency. The organized saloon never knowingly sup- 
 ports an upright candidate for office if there are any moral 
 issues at stake in the campaign. Wherever moral questions 
 are at issue the saloon is found on the side of the immoral 
 candidate. 
 
 If a saloon keeper is arrested for a violation of the law, 
 the liquor association to which he may belong defends him in 
 court even though the proof of his guilt is as clear as the 
 noonday sun. There is perhaps no other organization in the 
 land which has for its purpose the organized defiance of the 
 law, by the defense of those who propose to violate it. Any 
 organization which defends the wilful and deliberate law- 
 
 * Or&wley v. Christensen, 187 U. 8 , 86; 11 Sup. Ot. Rep., 13. 
 
THE SALOON BEFORE THE COURTS. 21 
 
 breaker is a traitor to good government and ought to be treated 
 as such. 
 
 This law defying spirit of the saloon men is manifested 
 every week in their trade papers. In the Wine and Spirit 
 News of June 4th, 1902, Owen Kane, President of the Ohio 
 State Liquor League, the retailers' organization, published his 
 official report to the trade of the work done in the last legisla- 
 ture. Speaking of his efforts against the enactment of the 
 local option law Mr. Kane says, that in the local option law 
 was a dangeous sleeper in the shape of a provision which gave 
 a fanatical judge power to fine a saloon keeper an unlimited 
 amount for violation of the Sunday closing law. The bill was 
 amended so that a fine of from $25 to $100 can be imposed 
 for the first offense and "no more than $200 or from ten to 
 thirty days or both, so you see that the trial judge is not com- 
 pelled to send a man to prison and can fine him in any small 
 amount he pleases. If nothing else is gained, this alone is worth a 
 treat deal to the trade." A law abiding citizen does not see such 
 great worth in the amount of penalty imposed for violation of 
 law. A law abiding citizen will obey the law whether the 
 amount of penalty be light or heavy. This leader of the 
 saloon forces rejoices in the fact that the penalty for violation 
 of the law is lighter than was first proposed. The only possi- 
 ble conclusion is that he expects the members of his organiza- 
 tion to violate the law and he justifies his stewardship by show- 
 ing that saloon keepers may violate the law with less penalty 
 than might otherwise have been imposed. 
 
 In the same issue of the Wine and Spirit News was an 
 editorial on the results of local option. The point of it was 
 that the speakeasies start up in dry towns and dodge the pay- 
 ment of the special tax. The editor sorrowfully remarks that 
 through the instrumentality of the local option law this class" 
 of offenders will be largely increased, "for it is a known fact 
 that the only effect of a successful local option election is to 
 convert a tax-paying dealer into a non tax-paying dealer. We 
 venture the assertion that in two-thirds of the towns where 
 the 'drys' have been victorious, the saloons will continue but 
 under another name and with another alleged purpose." And 
 again: "It is not generally known, but it is a fact, neverthe- 
 less, that in various cities in Ohio, are whisky jobbers whose 
 
22 THE SALOON BEFORE THE COURTS. 
 
 trade is very largely in those districts under the operation of 
 local option * * * With the law in full force and effect, 
 instead of three or four saloons properly conducted and well 
 regulated, there will be a score of secret places besides clubs 
 whose chief business will be done on Saturday night and Sun- 
 day." 
 
 This is certainly a frank comment upon the law-abiding 
 character of the men engaged in the saloon business by those 
 who know whereof they speak. The official report of th 
 President and the leading editorial of the official organ of th 
 Ohio State Liquor League ought to be a true index of th 
 character of the League which they represent and whose con- 
 duct they largely control. 
 
 A still stronger illustration of the law defying purpose of 
 these liquor organizations is found in The Champion of Fair 
 Play, the organ of the retail liquor trade of Illinois and tht 
 West, in an issue of July, 1902, where the objects of the retail 
 liquor dealers' organization are set forth in this language: 
 
 "The laws of this State governing the liquor trade are * 
 severe that there is not a licensed saloon keeper in Illinois wh 
 does not lay himself liable to prosecution under the law a 
 dozen times each day. 
 
 "Had they been one of the unfortunates and been arrested 
 for selling to a minor or a drunkard, they would have beem 
 obliged to engage an attorney at an expense of $10, and in all 
 probability have been fined $20 and costs. 
 
 "As a member of the association they would have th* 
 services of the attorney free, and had a fine been imposed it 
 would have been appealed, and last year the association wo* 
 every appeal. 
 
 "Had they been sued for damages in the Superior Court, 
 the attorney's fee, usually amounting to $100, would be paid 
 by the association, and if a verdict was obtained against them 
 the State Association would then appeal it to the Appellate and 
 Supreme Court of the State, at an average expense of $500. 
 
 "To sum up, by the payment of 50 cents a month in a 
 local association the retail liquor dealer secuies protection in 
 all Courts, from the lowest to the highest, in case of prosecu- 
 
THE SALOON BEFORE THE COURTS. 23 
 
 tion under the dram shop act. His interests are closely 
 watched in preventing the passage of unjust measures by the 
 City Council or State Legislature." 
 
 Of like character and traitorous, law-defying spirit, is an 
 editorial in the Wine and Spirit News of July 2, 1902, ad- 
 dressed to the liquor trade of Ohio: 
 
 "This is a land where the majority should prevail, but 
 when a majority seeks to determine what the minority should 
 eat, drink or wear, the rule does not obtain. And it never will. 
 And no one is a law breaker who insists on asserting his rights 
 from the standpoint of taste in cases where an arbitrary sump- 
 tuary statute has been forced upon him by a fanatical majority." 
 
 These declarations of policy by the liquor organizations 
 establish at least five propositions, viz: 
 
 1. Every saloon keeper is expected to violate the law 
 for the purpose of making money. 
 
 2. The expenses of their defense in the Courts are not 
 borne by the offenders alone, but by the organization. 
 
 3. Those who band themselves together in advance to 
 defend the law breaker in crimes or misdemeanors which h 
 intends to commit thereby make themselves partners in tht 
 crime when it is committed. 
 
 4. Their shining loyalty to the institutions and govern- 
 ment of our country is totally eclipsed by their systematic de- 
 fiance of law. The consideration to which they are entitled 
 does not differ in kind or degree from that due to any other 
 law breaker. 
 
 5. The United States Supreme Court has decided mamy 
 times over that prohibitory laws are not sumptuary laws, yt 
 the saloon leaders, in disregard and defiance of this ruling of 
 the Court, and in wilful disloyalty to the law, continue to teack 
 that such laws are sumptuary and should be defied. All other 
 trades and classes of people accept such Court decisions as 
 final. Why should the saloon keeper alone be permitted to 
 teach that it is right to defy the law? 
 
24 THE SALOON BEFORE THE COURTS. 
 
 This sentiment against the saloon is further justified by 
 the finished product which the saloon turns out. The saloon 
 keeper often dishonestly claims that his business is as honora- 
 ble as any other business. Let us compare it with two com- 
 mon lines of business. Take a brick yard as an example. The 
 raw material used is ordinary mud. The finished product is 
 brick, which may be used for building houses, paving streets, 
 and various other purposes. The finished product is more 
 valuable than the raw material, and the business of brick- 
 making is, therefore, justified by its fruits. Take a flour mill 
 for a second example. The raw material is wheat. The fin- 
 ished product is flour. Flour is more valuable and serviceable 
 than wheat, and the flouring mill is justified by its fruits. 
 With these compare the saloon business. The raw material 
 Is the bright boy and the pure girl from the home. The 
 finished product is the drunkard in the gutter, and the scarlet 
 woman on the streets. How the finished products compare 
 with the raw material! By their fruits ye shall know them. 
 
 We are often met with the assertion that the saloon is 
 the poor man's club. The saloon men and the saloon sympa- 
 thizers who thus speak of the saloon seek by doing so to justify 
 to some extent the existence of the saloon, to excuse their own 
 indifference to the degrading results of the saloon, and to in- 
 crease the prejudice of the poor against the rich. The propo- 
 sition itself is false. The saloon is not the poor man's club; 
 *o far as it is a club at all, it is the immoral man's club. If 
 the members of that club are not immoral already when they 
 first join, they soon become immoral if they retain their mem- 
 bership and continue their attendance for any length of time. 
 The Supreme Court has said of this club: "The statistics of 
 every State show a greater amount of crime and misery attrib- 
 utable to ardent spirits obtained at these retail liquor saloons 
 than to any other source."* 
 
 The advocates of personal liberty also argue that the poor 
 man has the right to get his beer on Sunday. President Roose- 
 velt, while Police Commissioner of New York City, answered 
 this senseless clamor by saying that it was far more important 
 to the poor man that he got bread on week days than that he 
 should get drunk on Sundays. It is not only far better for 
 
 * Orowley v. Christensen, 137 U. S., 86; 11 Supt. Ct. Rep., 13. 
 
THE SALOON BEFORE THE COURTS. 26 
 
 the poor man himself that the saloons be closed on Sunday, 
 but also for his family. The family is entitled to the hus- 
 band's presence and company on the Sabbath, but the saloom 
 too often not only gets his presence, but his earnings. The 
 man who has an appetite often has also a wife and half a dozen 
 children. Shall the government regard only the appetite of 
 the one and disregard the needs of the other seven? One 
 wants the saloon open on Sunday; the other seven members of 
 that same household know that the Sunday saloon means 
 hunger and misery to them. Shall the government of the 
 State pursue a policy which permits injury to the seven in 
 order that personal liberty can be given to the one? 
 
 This sentiment against the saloon business is further jus- 
 tified by the fundamental principles of patriotism. Intelli- 
 gence and morality are the two corner stones of the temple of 
 liberty, and the greater of these is morality. Mere intelligence 
 makes men acute and crafty, but morality alone fits them for 
 life's higher duties. The stability of this government rests 
 upon the morals of the people. The immoral man does not 
 help manage the government, but the government must help 
 manage him. The proof of this declaration is found in our 
 lockups, our jails, our penitentiary and our reformatory insti- 
 tutions. These institutions are not crowded with moral, Chris- 
 tian men. They are filled with immoral men, upon whose 
 shoulders the strong hand of the law has been laid in order 
 that the public might be protected from their immoral conduct. 
 Any business or any institution which tends to retard and de- 
 stroy either intelligence or morality is highly detrimental to 
 the public welfare. No man ever gave a year of his time to 
 the life of a dram shop and came out at the end of the year 
 with as high intellectual ambitions as when he began. N 
 man ever gave a year of his time to the best saloon in America 
 and came out at the end of that year with as high spiritual 
 aspirations as he had when he began. The saloon does not 
 run a night school to educate the heads of its patrons, nor does 
 it run a Bible class to develop their morals. No man ever re- 
 ceived either an intellectual or a moral uplift from even the 
 best saloon in the land, and any institution which destroys the 
 intelligence and morality of the citizen is a traitor to the State. 
 
26 THE SALOON BEFORE THE COURTS. 
 
 IV. Laws regulating, restraining or prohibiting the use 
 of property for the manufacture and sale of intoxicating liq- 
 uors for beverage purposes do not interfere with any man's 
 constitutional rights of property. 
 
 This question was raised in the Kansas Prohibition cases 
 and every phase of it was pressed hard upon the Court. 
 United States Senator Vest of Missouri, who represented some 
 of the brewers, argued that the Kansas prohibition law de- 
 prived the brewers directly and absolutely of their property, 
 without due process of law; that by the enactment of this 
 statute the property was reduced in value by the direct pro- 
 hibition of the real and primary use; that to destroy the right 
 to manufacture beer for a beverage is to deprive the owner of 
 his property, although he is left the right to manufacture it 
 for other purposes, since that is the ordinary, usual, and prin- 
 cipal use of beer, and that this is an attempt not merely to 
 legislate for the future but an attempt to destroy vested rights 
 by legislative enactment without compensation, and without 
 due process of law. 
 
 Joseph H. Choate, counsel for certain other brewers in- 
 volved in the same case, argued that the Kansas law deprived 
 his clients of their liberty and property, and abridged their 
 privileges and immunities as citizens of the United States; 
 that at the time of the passage of the act complained of, it 
 was one of the fundamental rights of his clients as citizens, 
 to manufacture beer, and to use their brewery for that purpose; 
 that the State could only restrain this right by virtue of the 
 police power, which could only be exercised to the extent 
 reasonable and necessary for the preservation and promotion 
 of the morals and health of the people; that this law goes fur- 
 ther than that and destroys their property without compensa- 
 tion. 
 
 The Court met these arguments in a full discussion of 
 all the principles involved. The argument of the Court ought 
 not to be abridged or condensed. The language of the Court 
 is as follows: 
 
 "Upon this ground, if we do not misapprehend the posi- 
 tion of defendants, it is contended that, as the primary and 
 principal use of beer is as a beverage; as their respective brew- 
 
THE SALOON BEFORE THE COURTS. 27 
 
 eries were erected when it was lawful to engage in the manu- 
 facture of beer for every purpose; as such establishments will 
 become of no value as property, or, at least, will be materially 
 diminished in value, if not employed in the manufacture of 
 Deer for every purpose, the prohibition upon their being so 
 employed is, in effect, a taking of property for public use 
 without compensation, and depriving the citizen of his property 
 without due process of law. In other words, although the 
 State, in the exercise of her police powers, may lawfully pro- 
 hibit the manufacture and sale, within her limits, of intoxi- 
 cating liquors to be used as a beverage, legislation having that 
 object in view cannot be enforced against those who, at the 
 time, happen to own property, the chief value of which con- 
 sists in its fitness for such manufacturing purposes, unless 
 compensation is first made for the diminution in the value of 
 their property, resultng from such prohibitory enactments. 
 
 "This interpretation of the fourteenth amendment is in- 
 admissable. It cannot be supposed that the States intended, 
 by adopting that amendment, to impose restraints upon the 
 exercise of their powers for the protection of the safety, health, 
 or morals of the community. In respect to contracts, the 
 obligations of which are protected against hostile State legis- 
 lation, this Court, in UnionCo.v. Landing Co., Ill U.S., 751, 4 
 Sup. Ct. Rep., 652., said that the State could not, by any con- 
 tract, limit the exercise of her power to the prejudice of the 
 public health and the public morals. So, in Stone v. Mississippi, 
 101 U. S., 816, where the constitution was invoked against 
 the repeal by the state of a charter, granted to a private corpor- 
 ation, to conduct a lottery, and for which that corporation paid 
 to the State a valuable consideration in money, the Court said: 
 'No legislature can bargain away the public health or the pub- 
 morals. The people themselves cannot do it, much less their 
 servants. * * * Government is organized with a view 
 to their preservation and cannot divest them of the power to 
 provide for them.' Again, in Gas Light Co. v. Light Co., 115 
 U. S., 650, 672, 6 Sup. Ct. Rp., 252: "The constitutional prohi- 
 bition upon State laws impairing the obligation of contracts 
 does not restrict the power of the State to protect the public 
 health, the public morals, or the public safety, as the one or 
 
28 THE SALOON BEFORE THE COURTS. 
 
 the other may be involved in the execution of such contract*. 
 Rights and privileges arising from contracts with a State are 
 subject to regulations for the protection of the public health, 
 the public morals, and the public safety, in the same sense, 
 and to the same extent, as are all contracts and all property, 
 whether owned by natural persons or corporations.' 
 
 'The principle that no person shall be deprived of life, 
 liberty, or property without due process of law was embodied, 
 in substance, in the constitutions of nearly all, if not all, of 
 of the States at the time of the adoption of the fourteenth 
 amendment; and it has never been regarded as incompatible 
 with the principle, equally vital, because essential to the peace 
 and safety of society, that all property in this country is held 
 under the implied obligation that the owner's use of it shall not 
 be injurious to the community. Beer Co. v. Mass., 97 U. S., 32." 
 
 And the Court, speaking directly of the breweries which 
 were, or might be rendered unprofitable by the enforcement of 
 the prohibition law, continued thus: "As already stated, the 
 present case must be governed by principles that do not 
 involve the power of eminent domain, in the exercise of 
 which property may not be taken for public use without com- 
 pensation. A prohibition simply upon the use of property for 
 purposes that are declared by valid legislation, to be injurious 
 to the health, morals, or safety of the community, cannot, in 
 any just sense, be deemed a taking or an appropriation of prop- 
 erty for the public benefit. Such legislation does not disturb 
 the owner in the control or use of his property for lawful pur- 
 poses, nor restrict his right to dispose of it, but is only a de- 
 claration by the State that its use by any one, for certain for- 
 bidden purposes, is prejudical to the public interests. Nor 
 can legislation of that character come within the fourteenth 
 amendment, in any case, unless it is apparent that its real ob- 
 ject is not to protect the community, or to promote the general 
 well-being, but, under the guise of police regulation, to de- 
 prive the owner of his liberty and property, without due pro- 
 cess of the law. The power which the States have of prohibit- 
 ing such use by individuals of their property, as will be pre- 
 judical to the health, the morals, or the safety of the public, in 
 not, and, consistently with the existence and safety of organ- 
 ized society, cannot be, burdened with the condition that the 
 
THIS SALOON BEFORE THE COURTS. 29 
 
 State must compensate such individual owners for pecuniary 
 losses they may sustain, by reason of their not being permitted, 
 by a noxious use of their property, to inflict injury upon the 
 community. The exercise of the police power by the destruc- 
 tion of the property which is itself a public nuisance, or the 
 prohibition of its use, in a particular way, whereby its value 
 becomes depreciated, is very different from taking property for 
 public use, or from depriving a person of his property with- 
 out due process of law. In the one case, a nuisance only is 
 abated; in the other, unoffending property is taken away from 
 an innocent owner. It is true, when the defendants in these 
 cases purchased or erected their breweries, the laws of the 
 State did not forbid the manufacture of intoxicating liquors. 
 But the State did not thereby give any assurance, or come un- 
 der obligation, that its legislation upon the subject would re- 
 main unchanged. Indeed, as was said in Stone v. Mississippi, 
 101 U. S., 814, the supervision of the public health and the 
 public morals is a governmental power, 'continuing in its 
 nature,' and 'to be dealt with as the special exigencies of the 
 moment may require;' and that, 'for this purpose the largest 
 legislative discretion is allowed and the discretion cannot be 
 parted with any more than the power itself.' So in Beer Co. 
 v. Massachusetts, 97 U. S., 32: '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 incon- 
 venience which individuals or corporations may suffer.' "* 
 
 There is no valid reason why compensation should be 
 made. God never gave the devil any compensation for cur- 
 tailing him in the exercise of any of his assumed privileges, 
 because the devil never had any right to claim the privileges 
 in the first place.. The law of God nowhere recognizes the 
 principle that a man committing, or about to commit an injury 
 to the public health, public peace or public morals, must be 
 compensated if he is prevented from committing the injury; 
 and if no such principle is acknowledged in the moral law, 
 why should it be recognized in the civil law? Do you pay the 
 thief for what you deprive him of when you drive him from 
 your house and thus thwart his criminal purpose? Have you 
 
 *Mugler v. Kansas, 123 U. S., 625; 6 Sup. Ut. Rep., 278. 
 
30 THE SALOON BEFORE THE COURTS. 
 
 not a right to prevent an injury without compensation to the 
 one intending to do the injury? Must men be compensated 
 for the surrender of any evil practice? 
 
 No State is under any contract with its citizens, either 
 express or implied, to refrain from passing laws for the pur- 
 pose of securing the public health or of preserving public 
 morals, no matter how large a class the passage of such laws 
 may embarrass or bankrupt. And no State will refrain from 
 the passage of such proctective laws unless it is in the hands 
 of unprincipled men. "Rights and privileges arising from 
 contracts with the State are subject to regulations for the pro- 
 tection of the public health, the public morals and the public 
 safety."* 
 
 V. The payment of revenue or special taxes to the 
 government by way of license or tax, does not entitle those en- 
 gaged in tihe traffic to any vested rights or privileges. 
 
 1. The object of the tax or license is not to give the sa- 
 loon any rights it did not possess before, but in the State of 
 Ohio the purpose of the tax is expressed in the title to every 
 law which has been passed since the adoption of the Constitu- 
 tion. The title of all of these laws states that the laws are 
 passed in order "to provide against the evils resulting from the 
 traffic." Thus the legislature has for fully fifty years declared 
 over and over again that evils result from the traffic. The 
 legislature taxes other kinds of business, but never announces 
 in the title to the tax law that it is enacted for the purpose of 
 providing against the evils of the business. The saloon man 
 denounces everybody as fanatics who charge that evils result 
 from the saloon business, but the Legislature of the State of 
 Ohio for the past fifty years have repeatedly declared by legis- 
 lative enactment that evils result from the traffic, and these 
 legislatures can hardly be classed as fanatics. 
 
 The imposition of the license fee gives the saloon no more 
 rights than the imposition of a tax. The purpose of a license 
 is thus expressed by the Supreme Court of Indiana: 
 
 "Liquor sellers are subject to the payment of a special 
 tax, because the object of this class of legislation is to restrict 
 the business, and not because its object is to secure to the liq- 
 
 GtuCo.v. Light CO., 115 U. 8 , 650; 6 Sup. Ct. Rep., 262. 
 
THE SALOON BEFORE THE COURTS. 31 
 
 uor seller the benefit of protection of the municipal govern- 
 ment. The liquor seller is compelled to pay a special tax, in 
 the form of a license fee, in order that the business may be 
 restricted to fewer persons, and not to be open like other pur- 
 suits, to every one without the payment of a special tax. The 
 theory of the legislation upon the subject is tihat the business 
 is one 'that requires restraint, because it is harmful to society, 
 and a license fee is exacted for the purpose of restricting the 
 business, and not for the purpose of increasing the traffic." 
 
 Ertwricfi v. City of Indianapolis, 118 Ind., 279: 
 20 N. E. Rep., 795. 
 
 "If the right to sell liquor were one of the inherent rights 
 of personal liberty, such, for instance, as the right of the 
 farmer to sell his corn, wheat or potatoes, the legislature 
 could neither burden nor abridge it by imposing a special tax 
 or requiring a special license. The legislature can burden 
 those engaged in the liquor traffic, because the right to conduct 
 such a business is not an inherent attribute of personal liberty, 
 inasmuch as such a pursuit is harmful to the community, and 
 requires special legislation and restraint. If it were harmless, 
 and not inimical to the good of society, it could not be sub- 
 jected to special burdens, restrictions or regulations, but to 
 such burdens, restrictions and regulations it may be subjected, 
 for the reason that if it is not regulated and restricted society 
 may suffer." 
 
 Haygartv. Stehlin, 29 N. E. Rep. (nd.i, 1074 
 
 2. The saloon men often urge that the government can- 
 not afford to do without the revenue derived from the traffic, 
 and that it is bad policy to prohibit the traffic and thereby 
 diminish the revenue. They made this argument in the 
 License Cases before the Supreme Court of the United States 
 in 1847 claiming that to prdhibit the traffic in the States inter- 
 feres with the right of the National Government to collect its 
 revenue. The temperance forces then argued that a diminu- 
 tion in the consumption of liquor does not necessarily reduce 
 the amount of revenue, because a sober people ^ill accumulate 
 far more of this world's goods than will people who spend 
 their money for intoxicating drinks, and su< an accumula- 
 
32 THE SALOON BEFORE THE COURTS. 
 
 tion in the increase of property will add to the revenue in 
 other forms, so that there will be an increase rather than a 
 decrease. 
 
 The Court supported and confirmed this argument by a 
 comment, the wisdom of which cannot be questioned: "The 
 diminution of the revenue arising from this exercise of local 
 power (meaning police power) would be more than repaid by 
 the beneficial results. By preserving as far as possible the 
 kealth, the safety and the moral energies of society its pros- 
 perity is advanced."* 
 
 3. The great argument of the saloon men against the 
 adoption of prohibition is that out municipalities cannot 
 get along without the revenue derived >om the traffic. 
 
 The first and sufficient answer t. all their money argu- 
 ments is that by the general concurrence of opinion in every 
 civilized and Christian community, and by the solemn adjudi- 
 cation of the highest tribunal in Chnstendora, the saloon is in 
 a high degree detrimental to public morais. It necessarily 
 follows that any continuous injury to public morals cannot be 
 compensated in money.. 
 
 The saloon is, by the declar ..i?m of the United States Su- 
 preme Court, a source of cnm* and misery to society. So 
 long as we consent to take revenue from the traffic, we must 
 submit to the continuance of that source of crime and misery 
 to society. This source of crime and misery to society will de- 
 stroy the moral character of its patrons so long as the people 
 permit it to exist. Any institution which injures or destroys 
 the character of our citizens is essentially detrimental and dis- 
 loyal to the best interests of American life. 
 
 If each saloon paid a million a year, it would still be a 
 losing proposition for the government to run saloons for 
 revenue. To run a saloon destroys the moral character of the 
 citizen. The government cannot, by the expenditure of sa- 
 loon revenue, restore in the citizen the moral values that were 
 destroyed by the saloon out of which the revenue was derived. 
 The revenue may alleviate some of the suffering caused by 
 tie saloon, and may help subdue the disorder which the saloon 
 
 Justice McLean in 'License Cases," 5 How., 504, 593. 
 
THE SALOON BEFORE THE COURTS. 33 
 
 produces, but it can never be so used as to reproduce, in the 
 character of the community, the morals which the saloon has 
 destroyed. The source of crime and misery will not be trans- 
 formed by expending money to relieve against its evil results. 
 The source of crime and misery must itself be dried up. To 
 protect the public against smallpox or yellow fever, we must 
 do something more than bury the victims, and care for the 
 widows and orphans. We must quarantine the disease itself. 
 So, also, must we quarantine the saloon. 
 
 On general principles every saloon man knows that the tax 
 or license which he pays does not cover the mischief wrought 
 by the saloon business. Par more is spent in the saloon than 
 the saloon keeper pays in tax or license. All the money so 
 spent is worse than wasted. Those who spend it get no good 
 of any kind from it. Add to this waste of money the cost 
 of policing the saloons, prosecuting the saloon-made criminals, 
 caring for the wives and children of saloon patrons, and the 
 public income from the tax or license is insignificant. You 
 had as well try to lift yourself by your bootstraps as to make 
 the saloon pay for itself by imposing a tax or license. The 
 saloonkeeper would have us believe that if we tax him about 
 $1,000 per year and let him go on, we will establish a sort of 
 perpetual motion in the maintenance of our government. But 
 somehow the forces of friction and gravity have thus far, 
 sooner or later, overcome all the forms of perpetual motion 
 which have yet been discovered. The saloonkeeper cannot 
 be expected to discover and inaugurate systems of government 
 wiser than the noblest statesmen of the world have been able 
 to suggest. 
 
 4. The claim of the saloon men that a "dry" town is a 
 dead one is equally false. Their argument that dry towns are 
 dead ones necessarily includes the proposition that good morals 
 are incompatible with business success. The influence of the 
 saloon is injurious to public morals, but the liquor men argue 
 that a material amount of saloon influence is beneficial to the 
 town. Bad morals never improve legitimate business. No 
 honest man ever made such a claim. The saloon man knows it 
 is false when he makes it. 
 
34 THE SALOON BEFORE THE COURTS. 
 
 It is true that a change from a "wet" to a "dry" town 
 may make some slight changes temporarily in the management 
 of city affairs. The present situation is the result of genera- 
 tions of saloon domination. To change the character of poli- 
 tical affiairs in a day, may require some re-adjustment in the 
 administration of a city's finances. But the pittance of reven- 
 ue derived from the saloon will be easily supplied in other 
 ways. Where a saloon is put out some legitimate business will 
 come in. This business will pay the regular and ordinary tax 
 and thus make up a part of the revenue paid by the saloon. 
 The men who patronize the saloon will, after it is driven out, 
 spend less money for drink and more for food and clothing, 
 thus increasing legitimate trade in those lines. A non-drink- 
 ing community will lay up more money than a drinking com- 
 munity. In general a non-drinking man will save money and 
 be transformed from a penniless "bum" to a tax payer. The 
 ordinary city or village without saloons can discharge most of 
 its police force and save more in that way alone than the sa- 
 loons pay into the treasury. A like saving will be made in 
 charity rendered necessary by the saloon. The dropping of a 
 bad habit never hurt a man financially, and the dropping of the 
 saloon business will never injure a town. Any financial in- 
 convenience resulting from the banishment of the saloon can 
 be only temporary at the most. The "soak" says he will die 
 if deprived of his drinks; but this same "soak" lands in the 
 penitentiary for a term of years and is forced to go "dry" at 
 once and remain dry. The drought does not kill him. Nor is 
 his physical force abated. A town may be forced to go "dry" 
 without any danger of death or decay. 
 
 The retail dealer need not be afraid of the result of pro- 
 hibition on his business. Anything which decreases the sale 
 of liquor is helpful to other lines of business. The more cash 
 the saloon keeper gets, the less cash there is for the grocer. 
 The more cash the saloon keeper gets, the more credit the 
 meat dealer must give. The dealer who gets the cash gets the 
 best part of the trade. 
 
 VI. Independent of any statute law the saloon has been 
 enjoined as a common nuisance when set up and run in a pure- 
 ly residence district. 
 
THE SALOON BEFORE THE COURTS. 35 
 
 A case was decided in 1893 by the Supreme Court of 
 Indiana,* in which a man was enjoined from running a saloon 
 in a residence portion of the city of Indianapolis. This part of 
 the city was devoted to residences, churches, Sunday schools, 
 orphan asylums, female college, public schools and residences 
 of people distinguished for morality and habitual attendance 
 upon church services, and on account of these things property 
 in that vicinity bore a /high valuation for sale and rent. It 
 was away from the business part of the city, where no saloon 
 had ever been established before. In the midst of all these 
 ideal surroundings a saloon keeper sat down and began selling 
 liquor by the drink, in a building only ten feet from the resi- 
 dence of two women, with all the incidents usually attending 
 the operation of such a saloon, from which the renting and 
 selling value of their property had been reduced nearly one- 
 half, and their once pleasant home made odious and offensive 
 to them. They brought a suit to enjoin the operation of the 
 saloon, claiming that under the circumstances it was a nui- 
 sance, and that the payment of a license or tax did not make 
 its character any better or give it any right to continue. 
 
 A few of the principles of law relied on to support this 
 injunction are given below. 
 
 Wood on Nuisances (Sec 9) was relied on as an authority. 
 The Supreme Court quoted with approval the following state- 
 ment of the law: "The locality, the condition of property, 
 and the habits and taste of those residing there, divested of 
 any fanciful notions, or such as are dictated by the dainty 
 modes and habits of living, are the tests to apply in a given 
 case. In the very nature of things there can be no definite or 
 fixed standard to control every case in any locality. The ques- 
 tion is one of reasonableness or unreasonableness in the use of 
 property, and this is largely dependent upon the locality and 
 its surroundings." 
 
 And the Court quotes further from the same author: 
 "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. Every man gives up something of 
 his absolute right of dominion and the use of his own, to be reg- 
 
 *Haggart v. Slehlin, 35 N. E. Rep., 997. 
 
36 THE SALOON BEFORE THE COURTS. 
 
 ulated or restrained by law, so that others may not be hurt 
 or hindered unreasonably in the use or enjoyment of their 
 property. This is the fundamental principle of all regulated 
 civil communities, and without it society could hardly exist, 
 except by the law of the strongest. This illegal, unreasonable 
 and unjustifiable use to the injury of another or of the public, 
 the law denominates a nuisance." 
 
 When dealing with slaughter houses, soap factories, boiler 
 works and other forms of industry not detrimental to public 
 morals, but merely offensive to the senses of sight, smell or 
 hearing, the Courts have held that such things carried on in a 
 public place where people dwell or pass, or have a right to 
 pass, to their annoyance, are a nuisance at common law. 
 Wooden buildings are not nuisances themselves, but when 
 erected where they endanger the safety of surrounding prop- 
 erty they become a nuisance. 
 
 After reciting these fundamental principles of law, the 
 Court, coming to the particular facts of this case, disposed of 
 it as follows, viz.: 
 
 "It is no mere fanciful notion, dictated by dainty modes 
 and habits of living, that makes one who has located his home 
 in a quiet, peaceful part of the city, in the immediate neighbor- 
 hood of numerous churches, Sunday schools, common-scfioois, 
 female colleges, and among neighbors who are attendant upon 
 such places, and out of reach of the busier haunts of the busi- 
 ness part of the city, to protest and object to the maintenance 
 of a saloon on the adjoining lot, and within ten feet of such 
 residence, where drinking people are invited to and do assem- 
 ble to drink intoxicating liquors, with all the incidents usually 
 attendant upon such a place. There are very few people, in- 
 deed, who would not object and protest and be seriously annoy- 
 ed thereat. Even a man who frequents such a place to drink 
 would, as a general thing, object to the traffic obtruding itself 
 within ten feet of his threshold, especially where it is alleged 
 and admitted, as here, that it has so injured the appellant'! 
 property both for selling and rental purposes."* 
 
 * Haggart v. Slehlin, 35 N. E. Rep. (Ind.), 1000. 
 
TMB SALOON BEFORE] THE COURTS. 57 
 
 Tke saloon keeper in that case had procured a license 
 from the State, and relied on his license as a protection and 
 justification. But the Court held that his license did not en- 
 large his rights, but restricted them within narrower limits. 
 The license was only a certificate that the saloon keeper had 
 been put under bond to keep the peace, and had paid the license 
 fee, and was therefore permitted to sell. The license was no 
 contract, but a mere permit to sell, which came within the 
 police power of the state. This license gave him no right to 
 run a saloon in a place where it injured the property of others. 
 All the women had to do was to prove that the presence of the 
 saloon rendered their property less valuable to the purpose to 
 which it was devoted. 
 
 This is the first case of the kind found in the law books, 
 but it involves no new principle of law, but simply the appli- 
 cation of old principles to new conditions which come within 
 the principles stated. There is nothing unreasonable or illogi- 
 cal in this new application of old principles, and there is no 
 objection to a further extension of the application. Equity 
 will enjoin any business which is detrimental to the public 
 health or to private property. It is the duty and sphere of 
 government to protect not only public health and private prop- 
 erty, but public morals. The legislative branch of the govern- 
 ment cannot be restrained from prohibiting the saloon busi- 
 ness altogether, because the business is detrimental to public 
 morals. If the power of the legislature is unlimited, why 
 should courts of equity hestitate to protect public morals as 
 well as public health or private property? 
 
 The decision of the Indiana Court was based on the propo- 
 sition that the saloon was an injury to property. This fact 
 can be shown in all other cases where a saloon is set up in 
 near proximity to a residence, and many people thus injured in 
 their rights of property may find relief in the Courts regardless 
 of legislative enactment. 
 
 But public morals and the public welfare are as sacred in 
 the eyes of the law as private property. No legislature can 
 bargain away the public health or the public morals. The peo- 
 ple themselves cannot do it. This is the declaration of the Su- 
 
SS TUB SALOON BEFORE THE COURTS. 
 
 preme Court of the United States. The right to protect public 
 moral* is one of the inalienable rights of man, and one of the 
 duties of government from which there is no escape. 
 
 Some courts have held that they have nothing to do with 
 public policy; that public policy depends exclusively upon the 
 expressed will of the legislature and not upon the Courts or 
 their views as to what is best for public morals, and if the 
 legislature has failed or refused to adopt any public policy 
 with reference to the saloon business, the Courts should not 
 adopt any policy of their own in advance of legislation. Thus 
 some judicial tribunals have excused themselves from taking 
 a hand in humanity's warfare against wrong. 
 
 Christianity is a part of the common law in some of our 
 States by judicial adoption, but the Supreme Court of Ohio has 
 held that "neither Christianity, nor any other system of re- 
 ligion, is a part of the law of this State. * * * Of course, 
 it is no objection, but, on the contrary, is a high recommenda- 
 tion to a legislative enactment, based upon justice or public 
 policy, that it is found to coincide with the precepts of a pure 
 religion; but the fact is nevertheless true, that the power to 
 make the law rests in the legislative control over things tem- 
 poral and not over things spiritual."* 
 
 Courts of equity are quick to correct fraud in private deal- 
 ings between man and man where the remedy does not depend 
 upon any legislative enactment, but upon the principles of com- 
 mon honesty as men understand that term. The court in such 
 cases has no other principle for its guidance than the "precepts 
 of a pure religion." There is no reason why injuries result- 
 ing from the saloon business, whether they are injuries to pri- 
 vate property or public morals, should receive any extra con- 
 sideration before a court of equity. If equity will protect pri- 
 vate property without legislative authority, it ought to protect 
 public morals without legislative authority. Why have not 
 courts of equity an inherent right to enjoin any thing which 
 injures public morals? 
 
 "Let us hear the conclusion of the whole matter." 
 The inherent character of the saloon precludes it from 
 having any inherent rights. 
 
 Rlovm v. Rithard*, 2 O. S., 887, 
 
THE SALOON BEFORE THE COURTS. 39 
 
 The saloon has no rights which may not be lawfully 
 swept away by the legislative branch of the government. 
 
 The local option law puts the whole saloon question in th 
 hands of the qualified electors. We have both the moral and 
 legal right to conquer. The enemy is in our midst. The call 
 to defend our land against armed rebellion was never greater 
 than the present call to defend it against the organized corrupt- 
 ion of the saloon in politics. It is just as dishonorable and un- 
 ptriotic to neglect our duty to the public in time of peace as 
 in time of war. The weapons are in our hands. So also is 
 the future. The future depends upon the use which we make 
 of our weapons today. President Harrison once said: "God 
 has never endowed any statesman, or philosopher, or any body 
 of them, with wisdom enough to frame a system of government 
 which everybody can go off and leave." It was by the sacri- 
 fice of time, of talent, of treasure and of blood that our fore- 
 fathers caused this nation to assume, among the powers of the 
 earth that separate and equal station to which the laws of 
 nature and of nature's God entitled her. If we wish to see our 
 country speed on from glory to glory we must be as willing as 
 were they to sacrifice of our time, our talent, our treasure and 
 our blood, if need be, in order to protect, to purify and to *- 
 fend her sacred honor. 
 
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