Hedderich v. State.

D. Turpie, W. D. Bynum, A. T. Beck and J. N. Scott, for appellant.

F. T. Hord, attorney-general, and W. B. Hord, for State.

ELLIOTT, J. The indictment upon which rests the judgment of conviction from which this appeal is prosecuted charges the appellant with the offense of selling a gill of intoxicating liquor to be drunk as a beverage, between the hours of eleven o'clock, P. M., of the 21st day of January, 1885, and five o'clock, A. M., of the succeeding morning.

The validity of the statute prohibiting the sale of intoxicating liquor between the hours of eleven o'clock, P. M., and five o'clock, A. M., is assailed upon the ground that the legislature does not possess the power to enact such a law; but no provision of the Constitution has been pointed out which denies to the legislature the power exercised in the enactment of this statute. In an argument of signal ability, counsel contend that in the enactment of the statute the legislature transcended its constitutional powers, because the statute encroaches upon the natural rights of the citizen. The argument finds no support from authority and has none in principle. Whether a statute is or is not a reasonable one is a legislative and not a judicial question. Whether a statute does, or does not, unjustly deprive the citizen of natural rights is a question for the legislature, and not for the courts. There is no certain standard for determining what are, or are not, the natural rights of the citiThe legislature is just as capable of determining the question as the courts. Men's opinions as to what constitute natural rights greatly differ, and if courts should assume the function of revising the acts of the legislature on the ground that they invaded natural rights, a conflict would arise which could never end, for there is no standard by which the question could be finally determined. But there can be no such unseemly conflict, for there is only one standard for determining the validity of statutes, and that is supplied by the Constitution. In Pittsburgh, etc., Ry. Co. v. Brown, 67 Ind. 45; s. c., 33 Am. Rep. 73, WORDEN, C. J., said: "If the law is unconstitutional, the courts should hold it void, but upon no other ground can it be disregarded." This court quoted with approval, in Welling v. Merrill, 52 Ind. 350, from the able opinion in Sharpless V. Mayor, etc., 21 Penn. St. 147; 59 Am. Dec. 759, the followVOL. LI-97

zen.

Hedderich v. State.

ing: We are urged however to go further than this, and to hold that a law, though not prohibited, is void if it violates the spirit of our institutions, or impairs any of those rights which it is the object of a free government to protect, and to declare it unconstitutional if it be wrong and unjust. But we cannot do this." The court, in speaking of an argument of a similar character to that advanced in this case, said: "That however is not a subject for judicial cognizance; it is not for the court to say that a constitutional law shall not have effect, because it is in the judgment of the court unreasonable." Barton v. McWhinney, 85 Ind. 481. One of the ablest of our judges long since said: "The legislative authority of this State is the right to exercise supreme and sovereign power, subject to no restrictions except those imposed by our own Constitution, by the Federal Constitution, and by the laws and treaties made under it." Beauchamp v. State, 6 Blackf. 299. This doctrine has been approved time and again. Doe v. Douglass, 8 Blackf. 10; 44 Am. Dec. 732; Maize v. State, 4 Ind. 342; Lafayette, etc., R. Co. v. Geiger, 34 Ind. 185, vide pp. 198, 202; Fry v. State, 63 Ind. 552, vide p. 559; McComas v. Krug, 81 Ind. 327; s. c., 42 Am. Rep. 135; Campbell v. Dwiggins, 83 Ind. 473, vide p. 480; Mount v. State, 90 Ind. 29; s. c., 46 Am. Rep. 192.

The question here is not as to the power of the legislature to absolutely prohibit the sale of intoxicating liquors, but as to the power to regulate the traffic. Counsel have not cited us to any provision of the Constitution denying the power, nor have they brought to our attention a single authority construing the Constitution as they claim it should be construed.

It is clear to our minds, both upon reason and authority, that the statute is a valid exercise of the police power vested in the legislature. In Morris v. State, 47 Ind. 503, it was assumed, without question, that the statute restricting the sale of liquor between prescribed hours was valid, and that it was within the power of the legislature to prohibit the sale on Sunday, on election days, and on legal holidays. We have a great many cases scattered through our reports holding statutes prohibiting sales on such days valid, and the principle is the same in those cases as in this, for the undergirding principle of all these cases is, that the legislature may regulate the retail liquor traffic. The statutes and decisions upon this subject were reviewed in Harrison v. Lockhart, 25 Ind. 11%, and it was said: "It will be seen, from this rapid view, that it has not

Hedderich v. State.

been the policy, either in England or in this country, to encourage the traffic in intoxicating liquor; but that in this country, the whole action of the legislative power has been uniformly to limit, restrict, or absolutely prohibit the traffic. With us, from the time almost of our earliest territorial existence to the present moment, that policy has been pursued." The conclusion reached in the case cited was approved in McAllister v. Howell, 42 Ind. 15. It is not questioned in any of our cases that the legislature may regulate the traffic. The farthest that any of the decisions go is to deny the right to absolutely prohibit the manufacture and sale of intoxicating liquors. If we should now deny this power to regulate the retail traffic, we should depart from a long and well-established course, and enter upon one not marked out by any principles nor lighted by any decisions. The adjudged cases, so far as we have been able to ascertain, uniformly agree that the legislature has power to regulate the traffic by prohibiting sales on holidays and election days, and by prescribing the hours within which sales may be made. Judge Cooley cites many cases asserting the power to enact such regulations. Cooley Const. Lim. (5th ed.) 720, n. In the case of Bertholf v. O'Reilly, 74 N. Y. 509; s. c., 30 Am. Rep. 323, the court said: "The right of the State to regulate the traffic in intoxicating liquors, within its limits, has been exercised from the foundation of the government, and is not open to question. The State may prescribe the persons by whom, and the conditions under which the traffic may be carried on. It may impose upon those who act under its license such liabilities and penalties as in its judgment are proper to secure society against the dangers of the traffic and individuals against injuries committed by intoxicated persons under the influence of or resulting from their intoxication." In the cases of Crone v. State, 49 Ind. 538; Layton v. State, 49 Ind. 229, and Beardsley v. State, 49 Ind. 240, the constitutionality of the statute was not questioned, although there was much diversity of opinion upon other points, and separate opinions were filed by four of the members of the court.

[Omitting minor points.]

Judgment affirmed.

Where one falsely reports to third persons that a clerk in the employ of the government has spoken disrespectfully of his chief, and this coming to the knowledge of the latter, he discharges the clerk in consequence, held, that an action of slander will not lie.

A

CTION of slander. The head-note shows the point. The defendant had judgment on demurrer.

L. G. Hine, for plaintiff.

Cook & Cole, for defendant.

Cox, J. [Omitting the declaration.] This declaration was demurred to, and the demurrer was sustained on the following grounds: First, that the language alleged to have been used is not actionable; and secondly, that the damages claimed are too remote. From the decision on the demurrer the plaintiff appealed.

We understand that there are two classes of words that are slanderous; one class consisting of words which are actionable per se, and the other, those which are actionable if it be shown that their pub

Knight v. Blackford.

lication has occasioned special damage to the plaintiff. Words which impute a crime that is punishable criminally, or which assert that a party is unfit for his office or calling in life, or which impute to him some contagious disease that may cause him to be avoided, are all words actionable in themselves. But to say of a man, generally, that he is a rascal, or a scamp, or a dishonest man, is not actionable unless it be proved that some special damage resulted from the use of the language, as for example, that it caused him the loss of employment. If special damage results, then it is necessary for the plaintiff to aver and prove that fact. Actions of that sort are called per quod actions.

In this case, it is not claimed that the language was actionable per se, but that it was actionable by reason of the special damage alleged to have resulted from its use. In these per quod actions it is not only necessary to show that the language did produce actual damage, but it must appear to be defamatory and scandalous. This rule, which is laid down in the text-books, is also well stated in the case of Terwilliger v. Wands, 17 N. Y. 60, where the court says:

"There must be some limit to liability for words not actionable per se, both as to the words and the kind of damages; and a clear and wise one has been fixed by the law. The words must be defamatory in their nature; and must in fact disparage the character; and this disparagement must be evidenced by some positive loss arising therefrom directly and legitimately as a fair and natural result. In this view of the law, words which do not degrade the character do not injure it and cannot occasion loss. In Cook's Law of Defamation, page 24, it is said: 'In order to render the consequence of words spoken special damage, the words must be in themselves disparaging; for if they be innocent the consequence does not follow naturally from the cause.' In Kelly v. Partington, 5 Barn. & Ad. 645, which was an action for slander, the words in the declaration were: 'She secreted 1s. 6d. under the till, stating that these are not times to be robbed.' It was alleged as special damage, that by reason of the speaking of the words a third person refused to take the plaintiff into service. The plaintiff recovered one shilling damages, and the defendant obtained a rule nisi for arresting the judgment on the ground that the words, taken in their grammatical sense, were not disparaging to the plaintiff, and therefore that no special damage could result from them.