Anderson v. Brewster

• Decision Date: 04 January 1887
• Citation: 44 Ohio St. 576,9 N.E. 683
• Parties: ANDERSON v. BREWSTER and another.
• Court: Ohio Supreme Court

9 N.E. 683

44 Ohio St. 576

ANDERSON v. BREWSTER and another.

Supreme Court of Ohio.

January 4, 1887

Error to circuit court, Hamilton county.

The original action was brought on the seventh day of June, A. D 1886, by Mary F. Anderson, plaintiff in error, against Joseph W. Brewster, auditor of Hamilton county, and Frank Ratterman treasurer of said county, defendants in error. The petition sets forth that the plaintiff, Mary F. Anderson, is the owner of certain premises situated in the city of Cincinnati, Ohio which are occupied by one Thomas Tully, as a tenant from month to month, who is engaged in the business of trafficking in spirituous, vinous, malt, and other intoxicating liquors that said Tully has been engaged in said business in said premises for several months last past, and since January 1, 1886, and is now engaged therein, but has no lease of said premises, and occupies the same as a monthly tenant as aforesaid; that the said Joseph W. Brewster, as auditor of Hamilton county, has, according to the provisions of an act passed by the general assembly of the state of Ohio, May 14, 1886, (83 Ohio L. 157,) entitled ‘ An act providing against the evils resulting from the traffic in intoxicating liquors,’ caused the business of said Tully to be assessed in the sum of $200, as provided by section 1 of said act; and that said assessment so made is, by the provisions of section 2 of said act, made a lien upon the premises of the plaintiff, in which the business of said Tully is conducted, as of the fourth Monday of May, 1886, but that said assessment is not payable save and except as provided by said section 2,-one-half of the same on or before the twentieth day of June, and one-half on or before the twentieth day of December, 1886,-and no part of said assessment has been paid; that said auditor has caused to be made a duplicate containing such assessment, in pursuance of sections 5 and 6 of said act, and is about to deliver the same to the said Frank Ratterman, treasurer of said Hamilton county, for the purpose of collecting the same, in pursuance of the terms of said act; and that said Frank Ratterman, treasurer as aforesaid, is about to proceed to collect said assessment, and to enforce the payment of the same, as provided in said act; that said pretended lien is illegal and void; that said assessment is illegal and void in this, to-wit: that said act providing for said assessment, and making the same a lien upon the premises of the plaintiff, is unconstitutional, in that said act is a violation of article 12, § 2, and also of schedule 18, of the constitution of Ohio; that the acts of said defendant, Joseph W. Brewster, auditor as aforesaid, in making said duplicate, and of the said Frank Ratterman, treasurer as aforesaid, in collecting said assessment, are illegal, and to the damage of the plaintiff, and will produce great and irreparable injury to the plaintiff; and that said illegal assessment, operating as a lien on the premises of plaintiff, is a cloud on her title. The plaintiff asks in her petition that said auditor may be perpetually enjoined from placing said assessment on said duplicate against said premises; that said treasurer may be perpetually enjoined from collecting said assessment as a lien on said premises; that said act may be declared null and void; and that said cloud and pretended lien on the property of the plaintiff may be removed. To this petition a demurrer was filed by the defendants, which the court of common pleas sustained, and dismissed the petition, and rendered judgment in favor of the defendants. An appeal was taken by the plaintiff to the circuit court, which also sustained said demurrer of the defendants, dismissed said petition, and rendered final judgment for the defendants. To reverse said judgment of the circuit court this proceeding is instituted.

OWEN, C. J., and FOLLETT, J., dissenting.

The second section of the Dow Law, Act May 14, 1886, which creates a lien upon realty upon which a saloon is established for the amount of the assessment imposed by the statute, is not in conflict with section 2 of article 12 of the constitution, which declares that property must be taxed by a " uniform rule." In taxing property uniformity must be the guiding rule, but not so as to impair the legislative ability to promote the public good, or raise public moneys, by taxation or assessment not in strict conformity with the section cited.

Syllabus by the Court

Under the second section of the statute of May 14, 1886, known as the ‘ Dow Law,’ (83 Ohio L. 157,) a valid lien is created upon the real property when the tenant holds under a lease, written or parol, made after the passage of the statute.

The assessment imposed by the first section of the statute is not in conflict with the second section of the twelfth article of the constitution.

The statute, so far as it provides for an assessment or tax upon the business of trafficking in intoxicating liquors, is not, in effect, a license law, and not within the inhibition of the eighteenth section of the schedule to the constitution.

Willis M. Kemper , for plaintiff in error.

Rufus B, Smith, Thomas McDougall , and C. B. Matthews , for defendants in error.

DICKMAN J.

The plaintiff in error is the owner of certain premises in the city of Cincinnati, which are occupied by a tenant engaged in the business of trafficking in intoxicating liquors. By virtue of section 1 of the act passed May 14, 1886, ‘ providing against the evils resulting from the traffic in intoxicating liquors,’ and known as the ‘ Dow Law,’ the tenant's business was assessed in the sum of $200; and such assessment, under section 2 of the act, is made a lien upon the owner's premises. The lien thus created, it is alleged, has caused a cloud upon the owner's title, to remove which the original action was instituted. The pleadings put in issue the validity of such lien, and give rise to the inquiry, as in State v. Frame , 39 Ohio St. 399, whether it contravenes section 19, art. 1, of the constitution, which provides that ‘ private property shall ever be held inviolate, but subservient to the public welfare; ’ and also whether the assessment that is made a lien is in conflict with section 2, art. 12, and schedule 18, of the constitution of Ohio.

It is provided by the first and second sections of the act of May 14th as follows:

‘ Section 1. That upon the business of trafficking in spirituous, vinous, malt, or any intoxicating liquors, there shall be assessed yearly, and shall be paid into the county treasury, as hereinafter provided, by every person, corporation, or copartnership engaged therein, and for each place where such business is carried on by or for such person, corporation, or copartnership, the sum of two hundred dollars; provided, if such business continues through the year, to-wit, from the fourth Monday of May, exclusively in the trafficking in malt or vinous liquors, or both, such assessment shall be but one hundred dollars.

‘ Sec. 2. That said assessment, together with any increase thereof, as penalty thereon, shall attach and operate as a lien upon the real property, on and in which such business is conducted, as of the fourth Monday of May each year, and shall be paid at the times provided for by law for the payment of taxes on real or personal property within this state, to-wit, one-half on or before the twentieth day of June, and one-half on or before the twentieth day of December, of each year.’

It is presumed that the legislature designed these sections to be prospective in their operation, so as not to impair existing rights. The settled rule is that whenever an act of the legislature can be so construed and applied as to avoid conflict with the constitution, and give it the force of law such construction will be adopted by the courts. Newland v. Marsh , 19 Ill. 384; Bigelow v. West Wisconsin R. R. Co. , 27 Wis. 478. In determining whether the assessment in question would operate as a valid lien upon the owner's premises, it is material to inquire as to the conditions under which the tenant is in possession. If the real property on or in which the business is conducted is held by the tenant under a lease for a term made prior to the passage of the statute, the provisions for a lien in the second section would not operate. It might well be considered an unauthorized interference with private property, and contrary to the legislative intent, to subject the freehold of a lessor for assessments against the business of a lessee, over which the lessor could exercise no control, during the term granted under a pre-existing lease. State v. Frame, supra . But, in the case at bar, the occupant had no written lease, and occupied the premises only as a monthly tenant. After the passage of the statute, and before the commencement of the original action, his term had expired, and he had become a tenant at sufferance. At common law, he had only a naked possession, and no estate which he could transfer or transmit, or which was capable of enlargement by release, nor was he entitled to notice to quit. He held by the laches of the landlord, who might enter and put an end to the tenancy when he pleased. 2 Bl. Comm. 150; Co. Litt. 270 b; Jackson v. Parkhurst , 5 Johns. 128; Jackson v. McLeod , 12 Johns. 182. Holding over, as the tenant did, after the month of May, the plaintiff in error could have resorted, at her option, to the statutory remedy of forcible entry and detainer. She was not, therefore, in the position of a lessor whose premises are placed beyond his control by a lease executed before the passage of the statute, but she had it in her power to terminate the tenancy, and thus prevent the assessment from becoming a charge upon her property. If she...