The State v. Pottmeyer. If water in a pool upon one's land be part of the realty, because fixed and stationary, why is it not, when congealed over the bed of the stream, to the thread of which his title extends? True, nature will in time, if it be not removed, again change the ice to fluid, and it will pass away from possession; but not more certainly than the changing winds and the rising tide will sweep away the shifting sands. But the Supreme Court of Massachusetts has discussed. this subject, in a case where it was held, that the owner of a mill-pond on a water course cannot maintain a bill in equity to restrain a riparian proprietor above, from cutting ice on the same stream, until the rights of the parties have been determined at law. SHAW, C. J., says, "In a case between the owners of a mill with the privilege of a mill stream, and the riparian owner of land, on a large pond, supplying such mill stream, the nearest analogy perhaps, and that is apparently a strong one, is to that of riparian proprietors, on a running stream," which is the exact case now in judgment. He proceeds, "As between these, we think it is now well settled that the upper proprietor has a right to make any use of the stream which is beneficial to his estate and himself, which is reasonable, and does not either wholly take away the right of the lower proprietor, or does not practically and in a perceptible and substantial degree diminish and impair the equal and common right of the lower proprietor." The court then questioned the right of the mill owners to claim any participation in this right to cut ice enjoyed by the riparian proprietors. "But," the Chief Justice continues, "there are other considerations. It is quite doubtful, considering the complainants' claim as a claim for actual and substantial damage to their mills, whether the cutting and carrying away of the ice mentioned, or of any quantity of ice, would diminish the volume of water which would come to the complainants' mills, and of which they could avail themselves for driving their mills. Ice must be cut in winter. It usually melts in the The State v. Pottmeyer. . latter part of winter or early part of spring, together with the ice and snows of the surrounding country; and these, together with the rains which cause and promote them, constitute what is usually called the spring floods, which commonly cause a great surplus of water in similar mill streams, not only not available to any useful purpose to mills, but often injurious. And it may well be doubted after any quantity of ice cut from such a pond, whether after the spring floods have subsided, and the useless surplus of water passed away, and long before the approach of any 'dry season,' the water in the pond would not be as full and copious for all mill purposes as if no ice had been cut." Cummings v. Barrett, 10 Cush. 186. Here the right of the riparian proprietor to cut the ice formed over his land is conceded, provided it does not deprive some one entitled to the use of the water, to a substantial degree, of his rights to such use. In the case before use, no such limitation is involved. If Baldwin has not the right himself to cut the ice (which right it seems to us he possesses), still he has a right to prevent its severance from his land. And this right in him, of removal can only be controlled by proof that such act would work a substantial injury to some right possessed by the riparian proprietor opposite, or to some proprietor below on the stream. in neither case could it deprive him of his property in the ice, but simply control him in its disposition. Indeed, this right in the owner of the fee to remove ice from the stream, subject to a proper enjoyment of the water by others entitled to its use, was decided to exist in Edgerton v. Huff, 26 Ind. 35. And In Mill River Manufacturing Co. v. Smith, 34 Conn. 462, where the company owned an artificial mill pond, it was held, that it also owned the ice formed upon the pond, and that it was entitled to have the ice remain where it was; and an action of trespass quare clausum fregit was maintained against the riparian proprietors, who owned the bed of the original stream, but did not in that case own the artificial The State v. Clottu. mill pond, for removing the ice. Clearly, such an action could be maintained by Baldwin, who owned not only the bed of the stream, but the ice itself; and it follows, of course, that the instructions given by the court were erroneous. Judgment for costs against appellee. D. P. Baldwin, D. H. Chase, and D. E. Williamson, Attorney General, for the State. THE STATE v. CLOTTU. PARENT AND CHILD.-Legislative Control.-How far the interference of the legislature in its control of the relation of parent and child should extend, is a question, not of constitutional power for the courts, but of expediency and propriety, which it is the sole province of the legislature to determine. SAME.-Liquor Law.—Minor.—It is not a good defense to an indictment for selling intoxicating liquor to a person under the age of twenty-one years, that the father of the infant authorized the defendant to make the sale to the minor. APPEAL from the Cass Circuit Court. FRAZER, J.-This was an indictment against the 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 the trial, that if the father of the infant authorized the appellee to make the sale to his son, such fact would be a good defense, and there was accordingly an acquittal upon that ground. The State reserved the question of law for the opinion of this court, and now presents it. The statute (1 G. & H. 614), in language too distinct to leave any question as to its meaning, prohibits the sale of such 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 the age of 33 4091 157 330 The State v. Clottu. twenty-one years," nor to one who is intoxicated, nor on Sunday, nor on the day of an election. It seems very clear to us that the legislature intended to protect the young from the temptations which tippling-houses were supposed to present, tending to lead them into habits generally conceded to be dangerous to health and character and to their usefulness and good order as citizens of the State. The question, then, seems to involve an inquiry concerning the constitutional authority of the legislature to do this thing. 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 supreme 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 State v. Clottu. must be rare indeed; and whenever they do occur, the interposition of the judicial veto will rest upon such foundations of necessity that there can be little or no room for hesitation. If the matter be reasonably the subject of debate, it is an admonition that the court should stay its hand. The constitution limits the power of the judiciary as plainly as it does that of the legislature, and any disregard of this limitation is a plain subversion of the constitution, quite as mischievous in its tendencies and less easy of eure than legislative infractions of the same instrument. This limit upon the authority of the judiciary is plainly marked, and forbids the exercise of legislative power by the courts. If laws are merely unwise and mischievous, however clear this may be, the courts have no constitutional power to repeal them; that power is vested in the legislature exclusively. The legislature of this State, within its legitimate sphere, does not lie fettered at the feet of this court, but is a department of government co-ordinate and equal, and upon matters of legislation within its power it is superior, instead of inferior. This is so plain that it is scarcely necessary to express it. The remedy for merely unwise laws, then, is not by application to the courts, destitute of power to grant relief; but it is found in the ballot, in the election of a legislature to repeal or amend. Whether an act is expedient or not, whether wise or not, whether right or not, are questions proper for discussion there, and wholly inadmissible in the courts, whose duty is, not to make or disregard law, but to administer it as it is written. 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 when the child |