Robinson & Warren v. State of Arkansas. they shall be indicted, held guilty of the act, and sent to the penitentiary? If there be any right more inherent or inalienable than that of going free of a crime which one never committed, nor intended to commit, nor authorized any one to commit, nor knew of when committed, I cannot conceive it. A criminal conviction, even for a misdemeanor, endangers liberty and tarnishes reputation. The Constitution does not leave innocent citizens naked to that danger and that detriment, at the will of the Legislature. Their right to enjoy liberty and protect reputation, is absolute, inherent, and inalienable, until they do some unlawful act. It is not an unlawful act to be a partner in a licensed retail dram shop. Many of our good citizens wish it were; but the Legislature has thought differently. A man cannot be indicted for that. How, then, because of that, can he be made amenable for an unlawful act, done by another, without his knowledge or consent-even against all his efforts to guard against it? For, under this decision, it would be wholly futile for him to show that he had taken every precaution. Courts may consider the nature of an occupation to explain an act; but I fail to perceive the principle upon which they can, judicially say, that this, or that lawful business is so disreputable or dangerous, that those who engage in it may not have the same protection of liberty and reputation, as other citizens have. It seems to me, that if the sale of liquors needed more safeguards, they might be afforded by the imposition of additional civil liabilities, which affect neither liberty nor reputation. Several of the States have tried that, without constitutional impediment; and we have already some wholesome laws of the kind. For instance, the very law in question provides (sec. 10), that every applicant for a liquor license, before obtaining it, shall enter into a bond to the State, in the sum of two thousand dollars, condi Robinson & Warren v. State of Arkansas. tioned to pay damages that may be occasionad by reason of liquors sold at his house of business; and shall further pay, to any person, all such sums of money as may be lost at gaming in his said saloon or dram-shop, or any room or building attached thereto, under his control." Now, here is a legitimate police regulation, with the conditions. expressed, which were considered necessary to the public. safety. It will be observed that they are severe, and bind the applicant for all acts of the kind done at his place of business, whether he was present and consented or not, or whether he knew of them or not. The Legislature might, properly, have made these conditions broader and more severe. They are civil matters, involving no criminal imputation or punishment. One might, without constitu-tional objection, be made responsible, civilly, for the torts of a partner, or agent, or clerk, committed in the course of the business, and with reference to it. I have never read nor heard of a case, before the one in Mississippi, in which it was held, that crime could be imputed to him, without his participation or carelessness. To me, it is simply obliterating all distinction between criminal and civil responsibility; and if it can be done, I know not on what foundation to rest for the security of any time-honored liberties. The police power, then, may sweep them all from under our feet, like treacherous sand. "The equality of all persons before the law, is recognized" by the Constitution. By what right can persons engaged in one lawful business be subjected to criminal punishment by a "rule of evidence" estopping them from proving innocence, and not applicable to persons engaged in others? The police power, too, has its limits, to prohibit acts regulating conduct, and punish negligences. It is the point in a circle which may move at will, but must not pass on either side the pillars of the Constitution. Robinson & Warren v. State of Arkansas. It may punish for acts, whether the perpetrator knew them to be criminal or not, but it breaks its appointed bounds when it attaches to one man criminality for the act of another, in which the defendant had no participation. Admit this power and all will be at sea. This is simply what the law in question, as construed, proposes to do. What regulation did Warren violate? All that he has done was to put in his capital with Robinson, and to take out license to sell whisky, giving the bond required for the public safety. The Legislature has said he may do that and sell whisky to adults as freely as he might potatoes. The State and county, and through them every tax-payer, as the Legislature must suppose, derive a benefit from that. As it must appear from the legislative and judicial standpoints, it was rather a laudable thing to do. Courts do not sit to administer the moral sentiment of the community, but the law. If then, his partner determines to violate the law, and without Warren's consent or knowledge, perverts the common property for the purpose, how can Warren be criminal? After all, what warrant have we to say that Warren is interested, even, in this sale? Non constat, but that when advised of it, he may have been mortified and offended by his partner's misdeed, may have refused to receive any profit from the sale, and may have made his partner account for the conversion of the whisky to unlawful purposes. Nevertheless, I understand this court to mean that his guilt became absolute, and fixed by Warren's act, and that he has no escape from the inflexible rule of evidence. No citizen, nor class of citizens, says our Constitution, shall have granted to them privileges or immunities which, upon the same terms, shall not equally belong to all citiAll other citizens have the valuable privilege, if it be one, of escaping punishment for crime, by showing their zens." Robinson & Warren v. State of Arkansas. entire and complete personal innocence of the criminal act. But persons who, under the favor and encouragement of the State, and for a valuable consideration, paid to her, engage in selling whisky, must, according to this decision, be content to be ranked as a sort of outlaws from the eter-nal principles of right and justice, and be punished for the acts of others, whether personally innocent or not. reaching the range of the The case in judgment is There is no telling how far decision, just rendered, may be. very trifling. But the decision is not confined to dramshops and their owners. Its immediate effect will be to include every wholesale dealer in the State, who sells by clerk, or by agents in other towns, and those who have interests or shares in the business, whether widows or not, and make each or any, and all of them liable to be dragged before the criminal tribunals and punished, if the lowest sub-agent or employee anywhere, even the porter who sweeps the stores, should some day sell liquor to a minor. If the mere interest in the liquor sold, fixes the liability, where is the line to be drawn? Why may not a lady, retaining an interest in a deceased husband's drug store, find it necessary to follow her Sunday devotions, by an appearance next day in the criminal court, to be punished for a crime committed whilst she was at prayer, by a good-natured clerk who sold a drink to a boy companion? Will she be told she ought not to be in that business? The ulterior effects of the decision in unsettling old well-defined safeguards of liberty, cannot be calculated. Bad precedents are like arrows shot from a bow. They cannot be controlled after they have left the string. Their logical sequence often runs terribly away to consequences never dreamed of. Better stand on the old foundations, and walk in the old ways. I distrust the social advantages promoted by decisions of this nature. Timeo Danaos, et dona ferentes. They Robinson & Warren v. State of Arkansas. have the fair semblance of hand maidens of morality. They may be wooden horses, unwittingly drawn within the citadel of the Bill of Rights. I think they are. With genuine deference to the views of, my associates, which I know they have thoughtfully reached, I do not think that the authorities, quoted by them, except the case from Mississippi, have any just bearing upon this question. That case, till now, has stood alone, confessedly at variance with old well settled principles of justice, based solely upon a concession of power to the Legislature to do a shocking thing for a laudable purpose, and declining to entertain any question as to whether the Legislature meant any thing else than what the words literally import. It is for that reason, and because of the expressions in the Mississippi opinion, that I do not consider its tone judicial. We have been used to treat the legislative body with more consideration, and to approach it with the presumption that it did not intend an absurdity. We have, on several occasions, in that view, disregarded the plain import of its language. I think this court should do so now, and presume against an intention of the Legislature to violate natural right, and the spirit, if not the letter of the Constitution. I believe it intended, and this would be just, to punish criminally, every one who participated in, or knowingly allowed, for his own interest, or knowingly received to his own use, the profits of a sale of liquor to a minor. It is no objection to this view, that the previous law sufficed for that. It is not unusual to enact laws of a declaratory nature, for prospective operation, and greater certainty. In this view, the charge given by the court below was erroneous. If my associates mean, in their opinion, to say that an innocent person may, under peculiar circumstances, be allowed to show his innocence, where there has been a |