#### LaFollette, Treasurer, *v.*Murray.

*Tax on liquor business*— Section *4364-9, Revised Statutes*— Applies *to malt liquors non-intoxicating.*

Section 4364-9, Revised Statutes, (98 O. L., 100), in effect April 10, 1906, applies to the business of trafficking in malt liquors, whether intoxicating or non-intoxicating.

(No. 11855

Decided February 23, 1910.)

Error to the Circuit Court of Guernsey county.

The case is stated in the opinion.

*Mr. Charles S-. Sheppard,*prosecuting attorney, for plaintiff in error.

The agreed statement of facts simply states that “Friedon Beer” does not intoxicate, containing 47-100 alcohol, but does not state or intend to state that this malt beer is not an “intoxicating liquor,” within the meaning of that phrase. Even if the court should hold that the malt liquor must be “intoxicating liquor,” still we confidently assert and claim that the legislature and courts have construed the phrase “intoxicating liquors” to include a malt liquor, whether intoxicating or not.

Chapter Seven, Revised Statutes is entitled, “Intoxicating Liquors and Cigarettes,” and at least in three different places in that chapter the phrase “intoxicating liquors” is defined and declared that it shall be construed to mean any distilled, malt, vinous, or any intoxicating liquors, and this exact language was construed by the supreme court in case of *State*v. *Kauffman,*68 Ohio St., 635, and *475distinctly held the language to include a malt liquor whether intoxicating or not. *Weisbrodt*v. *State,*50 Ohio St., 192.

The same has been held by numerous circuit courts in the state. *Dominick*v. *State,*27 C. C., 305; *Otte*v. *State,*29 C. C., 203; *State*v. *Intoxicating Liquors,*41 N. W. Rep., 6.

In construing the phrase “any vinous, malt or fermented liquors, or any other intoxicating drinks,” the court of appeals say: “So in this case we think that the statute is subject to the construction that congress intended to say that vinous, malt and fermented liquors were intoxicating, and then, because a large class of intoxicants had not been named in the statute, the words ‘all other intoxicating liquors’ were intended to cover them.” *United States*v. *Cohn,*52 S. W. Rep., 44.

This is a malt liquor, and so conceded. All malt liquors are alcoholic, and come within the definition of intoxicating liquors.

We therefore confidently assert that the different or similar phrases used in the different laws relating to intoxicating liquors as above set forth, each and all mean and were intended to mean one and the same thing. That the use of the word “other” adds nothing whatever to the meaning already included in- the Section 4364-9 before the amendment, as will appear by the meaning given by the legislature itself in Section 4364-9/ and 4364-9/i, Revised Statutes, prior to the amendment, and the other references herein set forth.

The statute under consideration was construed by the supreme court in the case of *State*v. *Auditor,*68 Ohio St., 635, and in which case the *476question arose as to whether “Bishop’s Beer” was liable for the payment of the Dow tax, it being a malt liquor but not intoxicating. The court held that the statute included a malt liquor whether intoxicating or not, and as there has been no real change in the meaning of the section, the same construction placed upon said section by the supreme court must still prevail. *Stevenson*v. *State,*70 Ohio St., 11; *State, ex rel.,*v. *Commissioners,*36 Ohio St., 326; *State*v. *Vanderbilt,*37 Ohio St., 640; *State, ex rel.,*v. *Stockley,*45 Ohio St., 308; *Williams*v. *State,*35 Ohio St., 175.

It is a familiar rule of construction that the validity of an act is determined by its practicable operation, and not by its title or declared purpose. *Miller*v. *Crawford,*70 Ohio St., 207.

Again, it is a universal rule of construction that in the construction of a statute meaning must, if possible, be given every part and every word. *State*v. *Durflinger,*73 Ohio St., 154.

Applying *this*rule in the construction of Section 4364-9, Revised Statutes, under consideration, what meaning could the legislature have intended by the use of the words “spirituous,” “vinous” or “malt,” if intoxicating liquors only were intended?

*Mr. John F. Stockdale,*for defendant in error.

Courts have laid down many rules governing the construction of statutes. The cases are too numerous for us to include them all in this brief, but we call attention to a few which we think may aid the court in arriving at the true intent of the legislature in this act. In *Harris*v. *State,*
      *47757 Ohio St., 92, the court uses this language, “The title under which a statute is classified is a part of it, and to be considered in arriving at the intent.”

The title of the chapter under which the Aikin law is found, (Chapter 7, Title 5, Revised Statutes) is, “Intoxicating Liquors and Cigarettes,” If the title is part of the statute and to be considered in arriving at the intent, then in looking at this statute we would expect to find legislation in regard to intoxicating liquors and cigarettes and nothing else.

The constitution of Ohio, (Section 16, Art. 2) provides as follows: — “No bill shall contain more than one subject, which shall be clearly expressed in its title.” And in examining the Aikin law, we find it entitled, “An act providing against the evils resulting from the trafficking in intoxicating liquors.” It is not a law having for its purpose the raising of revenue, or anything else, but to provide against evils resulting from trafficking in intoxicating liquors.

Taking the title under which the act is found together with the title of the act itself, how can it be said that' it refers to or has anything to do with other than intoxicating liquors or cigarettes. *Howard*v. *Lacroix,*1 McGloin, 16.

And again in *State*v. *Holmes*and *State*v. *Rowley,*25 Kans. (20 Am. Law Reg., 555).

If these rules are to be followed, how can it be said that a beverage that is non-intoxicating is subject to the payment of this tax? The principles above set forth were followed by this court in *Burgunder*v. *Weil,*60 Ohio St., 242; *Bronson*v. *478
      *Oberlin,*41 Ohio St., 483; *Harris*v. *State,*57 Ohio St., 92; *State*v. *Johnson,*64 Ohio St., 270; *Shultz*v. *Cambridge,*38 Ohio St., 659.

And again “Words *ejusdem generis,*as ‘any other’ or ‘other’ or ‘otherwise,’ are restricted to matter similar to those previously enumerated.” *Rutherford*v. *Railroad Co.,*35 Ohio St., 559; *Lane*v. *State,*39 Ohio St., 312; *Myers*v. *Seaberger,*45 Ohio St., 234; *Toedemeier*v. *Clackamas County,*54 Pac. Rep., 954; *Loan & Trust Co.*v. *Hamilton,*59 U. S. App., 403, 88 Fed. Rep., 588; *Fuellhart*v. *Blood,*21 Pa. Co. Ct., 601; *Conn*v. *Commissioners,*51 N. E. Rep., 1062.

*Mr. A. J. Freiberg,*argued orally for defendant in error.

By the Court.

Section 4364-9, Revised Statutes, reads as follows: “Upon the business of trafficking in spirituous, vinous, malt or other intoxicating liquors, there shall be assessed yearly, and shall be paid into the county treasury, as hereinafter provided, by every person, corporation, or co-partnership engaged therein, and for each place where such business is carried on by or for such persons, corporation, or co-partnership, the sum of one thousand dollars.”

This action was commenced by the plaintiff in error as treasurer of Guernsey county to collect an assessment on the duplicate against the defendant John Murray, and charged against the property in which he had conducted the business of trafficking in malt liquors, being the property of Bessie Murray, the other defendant. The defendants answered, averring that neither of them, nor anyone had engaged in trafficking in intoxicating *479liquors on said premises. The case.was submitted on an agreed statement of facts, in which it was admitted that the defendant John Murray had sold on the premises, from December 11, 1908, to February . . ., 1909,' what is known as “Friedon Beer,” a malt liquor containing forty-seven one hundredths of one per. cent, of alcohol, but not intoxicating, and that no liquor had been sold on the premises.

The court found for the plaintiff and entered judgment for $298.11, being $200 tax, $90.11 penalty, and $8.00 collection fee, and adjudged the same a lien on the premises. On error the circuit court reversed and dismissed the petition.

The section originally was Section 1 of the Dow law passed in 1886 (83 O. L., 157), and it read then as it does now, excepting that the word *any*was used in the place of the word *other*(malt, or any intoxicating liquors), and the amount of the tax was two' hundred dollars, and then followed this proviso: “Provided, if such business continues through the year, to-wit: from the fourth Monday in May exclusively, in the trafficking in malt or vinous liquors, or both, such assessment shall be but one hundred dollars.”

In 1888 (85 O. L., 117), the act was amended by increasing the tax to $250 and omitting the proviso. The section was again amended in 1896 (92 O. L., 34), by raising the tax to $350. The section as it then read was construed in 1903 in *State of Ohio, ex rel. Guilbert, Auditor of State,*v. *Kauffman, Auditor of Montgomery County,*68 Ohio St., 635, where it is said: “Section 4364-9, Revised Statutes, imposes a tax on the business of trafficking in *any intoxicating*liquors, and also *480on the business of trafficking in spirituous, vinous or malt liquors. The generic term 'malt liquors’ -includes both non-intoxicating and intoxicating malt liquors.”

The only change made by' the amendment of 1906 (98 O. L., 100), when the statute was passed in its present form, was to raise the tax to one thousand dollars and to substitute the word *other*for *any,*and it is contended that by this amendment the legislature intended to so change the law as to exempt from the tax vinous and malt liquors that are non-intoxicating.

It is evident from the proviso in the original act that the tax applied to malt liquors and was not limited to malt intoxicating liquors. The legislature dropped the proviso, probably because- it was used to evade the higher tax, and the court rightly interpreted- the statute, although it was then just as forcibly urged as it now is, that the word malt qualified the words intoxicating liquors and not the word liquors. The decision was not grounded upon the use of the word *any,*and if the legislature intended such an important change as the exemption of non-intoxicating vinous and malt liquors from the tax, it would have clearly expressed its intention, and we must conclude that the meaning of the section was not changed by the substitution of the word *other*for the word *any.*

Judgment of the circuit court is reversed and the judgment of the court of common pleas is affirmed.

*Judgment reversed.*

Summers, C. J., Crew, Spear and Price, JJ., concur.