33 Ind. 409 | Ind. | 1870
This was an indictment against tbe appellee for selling intoxicating liquor (less than a quart) to a- person under twenty-one years of age. It was determined by the court below as a matter of law upon tbe trial, that if tbe father of tbe infant authorized tbe appellee to make tbe sale to bis son, sucb fact would be a good defense, and there was accordingly an acquittal upon that ground. Tbe State reserved tbe question of law for tbe opinion of tbis court, and now presents it..
The statute (1 G. & H. 614), in language too distinct to leave any question as to its meaning, prohibits tbe sale of sucb liquors in quantity less than a quart at a time, except by persons who may have obtained license to do so; and then in language equally clear provides that such, license shall not authorize a sale “to any person under tbe age of
We know of nothing in the State constitution prohibiting the legislature from passing such an act. We are without any argument in support of the ruling below, and cannot examine the particular grounds upon which the learned judge upon the circuit based his judgment, or upon which it may be supposed that it can be maintained, for the reason that we are not advised of them.
Sometimes courts have gone beyond the letter and fair implications from the letter of the written constitution of government, to find, in what is called the spirit of the instrument, inhibitions upon the exercise of legislative power; and where the act in question is obviously unwise, or to the judicial mind appears likely to result in consequences very mischievous or dangerous, the temptation to do so is certainly strong. But this search, outside of a constitution, for constitutional objections to an act of the legislature, though it has been, on rare occasions, indulged by courts of high character, is itself of doubtful propriety. It is the written constitution which is the supi’eme law to which legislation must conform, and not the views of even the wisest and purest judges of what should have been written in it, but was not; nor the theories of government which may be supposed to underlie it, without any .expression to warrant the assumption. It may be possible to conceive of legislation so plainly beyond the scope of governmental power, or so flagrantly in conflict with natural right, that the courts may set it aside as unwarranted, though no clause of the constitution can be found prohibiting it. But the cases
The duties and authority pertaining to the relation of parent and child have their foundations in nature, it'is true. Nevertheless, all civilized governments have regarded this relation as falling within the legitimate scope of legislative control. Except in countries which lie in barbarism, the authority of the parent over the child is nowhere left absolutely without municipal definition and regulation. The period of minority is fixed by positive law, when parental control shall cease. Within this, the age wlien the child
"We think the court below erred upon the question of law reserved.
Judgment for costs against the appellee.