Adler v. Whitbeck
| Decision Date | 04 January 1887 |
| Parties | ADLER and others v. WHITBECK, Treasurer. |
| Court | Ohio Supreme Court |
Error to circuit court, Cuyahoga county.
It is competent for the general assembly of the state to impose a tax upon the business of trafficking in intoxicating liquors as a means of providing against evils resulting therefrom.
Neither the tax so imposed, nor a provision that the same shall attach as a lien on the property in which it is conducted, constitutes a license within the meaning of section 9 of article 15 of the constitution.
The statute imposing the tax may provide for its collection by the treasurer of the county, as other taxes are collected; may impose penalties for its non-payment, and for the refusal of a person engaged in the business, on demand of the assessor, to sign and verify the statement of the return. And, for an injury done him in his property, such provisions do not deprive the citizen of the due course of law secured to him by section 16 of the bill of rights, nor are they inhibited by the fourteenth amendment to the constitution of the United States.
The legislature may, in providing against the evils resulting from the traffic in intoxicating liquors, levy a tax upon such forms of the traffic as in its wisdom may seem best, without infringing the constitutional requirement (section 26, art. 2) that all laws of a general nature shall be uniform in their operation throughout the state.
The act of the general assembly passed May 14, 1886, providing against the evils resulting from traffic in intoxicating liquors, (83 Ohio L. 157,) is not, in any of these respects, in conflict with the constitution of the state, nor of the United States, and is a valid law.
George Hoadley, E. W. Kittredge, W. W. Boynton , and Foran & Dawley , for plaintiffs in error.
Hadden, Dissette & Collister , for defendant in error.
The plaintiffs are persons engaged in the traffic in intoxicating liquors, and brought an action in the common pleas of Cuyahoga county, on behalf of themselves and others engaged in the same business, to restrain the treasurer of the county from collecting the assessments, etc., made upon the business of each of them, as traffickers in intoxicating liquors under the act of the general assembly passed May 14, 1886, entitled ‘ An act providing against the evils resulting from the traffic in intoxicating liquors.’ 83 Ohio L. 157. A temporary injunction having been allowed, an answer was filed, and motion made to dissolve the injunction. The motion was sustained, on the ground that the petition did not entitle the plaintiffs to the relief asked, and the same was dismissed by the court. On a proceeding in error, the judgment was affirmed in the circuit court, and the object of this proceeding is to obtain a reversal of the judgment of the latter as well as of the former court.
All the questions raised and argued arise upon the validity of the act above referred to, known as the ‘ Dow Law.’
No question is made as to the right of the plaintiffs, separately engaged in the traffic in intoxicating liquors, to unite in maintaining this action. Each and all of them have a common and general interest in the question as to the validity of the law, so far as it imposes, or seeks to impose, a tax on the business in which each is engaged. But as to how this can be true when, as to some of the plaintiffs, it is averred that they are exclusively engaged in the traffic in vinous liquors, and have been returned by the assessors as trafficking in spirituous liquors, is not apparent. If it is intended by the averment to claim that such persons are not concluded by the return of the assessor as to their business, a question is made that is not common to the other plaintiffs. If the law be valid, relief in this regard should be sought in separate actions. It cannot be had in this action, for a further reason that their suit is accompanied with no offer to pay that which would be due from each as a person trafficking in vinous liquors. Nor does it appear from the averments of the petition, or otherwise, which, if any, of the plaintiffs trafficking exclusively in vinous liquors have been wrongfully returned by the assessors as trafficking in spirituous liquors.
The general grounds upon which the invalidity of this law is asserted are (1) that it grants a license to traffic in intoxicating liquors; (2) that it is, in substance, a tax on property, not levied by uniform rule according to its true value in money; (3) that the summary method which it prescribes for the assessment and collection of the tax is not due process of law; and (4) that it is a law of a general nature, not uniform in its operation throughout the state. These grounds, with their respective subsidiary questions, will be considered in the order stated.
1. The competence of the general assembly to provide against the evils resulting from the traffic in intoxicating liquors by a tax levied upon the business, without infringing the provision of the constitution that no license to traffic therein shall be granted, was recognized in State v. Hipp , 38 Ohio St. 199; was directly affirmed in State v. Frame , 39 Ohio St. 399; and was not denied in the subsequent cases of Butzman v. Whitbeck , 42 Ohio St. 223, King v. Cappellar , Id. 218, and State v. Sinks , Id. 345; and therefore the question in its simple form, as to whether a tax upon the business constitutes a license to traffic in intoxicating liquors, might be regarded as settled by the previous decisions of the court without further consideration.
But, as it is still insisted in argument that such a tax is in the nature of a license, and cannot be imposed without infringing the provision of the constitution against licensing the traffic, we do not hesitate to re-examine the ground upon which the opposite view has been rested; for, if it be clear that a tax upon the traffic in intoxicating liquors is a license, then it would be our duty to declare the law unconstitutional. The objection, however, to the tax upon this ground comes with an ill favor from those engaged in the traffic, as it has the appearance of a reproof of measures designed as a restraint upon the abuses of the traffic in which they are engaged, unless it be assumed that this provision in the constitution was inserted as a protection to the liquor interests of the state, rather then to promote the temperance and sobriety of its citizens. Such a claim has not, we believe, as yet been made, and, if made, would not be borne out by the history of its adoption; having, when before the people, been zealously urged by the friends of temperance, and as zealously opposed by those engaged in the liquor traffic of the day.
The real significance of this provision in the constitution has been a source of no little doubt and controversy. Many, if not a majority, of the people of the state, supposed that, if no license were granted to traffic in intoxicating liquors, the traffic would be illegal, and perish for the want of protection, and by the infliction of such penalties as might be imposed under laws made to regulate the evils resulting from the traffic. And it may be observed that the practice that had prevailed under laws enacted at an early day, and continued in force to the adoption of the constitution of 1851, of licensing the traffic in liquors as a beverage, had educated the people to suppose that, without a license, such traffic could not be carried on in the forms it had been usual to license it. See the history of the legislation on the subject in the state by Judge WEST in his argument in State v. Hipp , 38 Ohio St. 206, and also the able dissenting opinion of JOHNSON, J., Id. 234. If this is a correct interpretation of the provision, it has proved a great delusion; for its practical working has been to make the traffic, in a measure, free. Laws enacted for the regulation of the traffic have not been enforced, have become in a measure obsolete, and the traffic and its abuses have grown to such proportions as to justly alarm all who reflect upon the interests of the state and society.
There seems, however, little difference of opinion as to the definition of a license. It is defined, in its general sense, by OKEY, J., in State v. Hipp , as ‘ permission granted by some competent authority to do an act which, without such permission, would be illegal.’ This agrees, in substance, with the definition as given in a number of other cases. Home Ins. Co. v. Augusta , 50 Ga. 530; Pleuler v. State , 11 Neb. 547; S. C. 10 N.W. 481. In Chilvers v. People , 11 Mich. 43, it is said: ‘ The object of a license is to confer a right that does not exist without a license.’ ‘ The popular understanding of the word ‘ license’ undoubtedly is,' says COOLEY, J., in Youngblood v. Sexton , 32 Mich. 406, ‘ a permission to do something which without the license would not be allowed; ’ and he adds: ‘ This is also the legal meaning.’ In State v. Frame , 39 Ohio St. 399, the language employed by MCILVAINE, J., is somewhat different, but the definition is, in substance, the same. He says:
The result of the definitions that have been given of a license as implied in its etymology, is in conformity with the sense in which the word is ordinarily used, and may be regarded as strictly accurate in all respects. That is permitted that cannot be done without permission; and to say a person is permitted-licensed-to do what ...
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