Belmont chronicle. [volume] (St. Clairsville, Ohio) 1855-1973, 1883-06-21

dealers in intoxicating liquors, and the
court held that it was tax on the buSi-
ness. and not license to carry on the
| business. "a mere tax on the traffic"
said Cooley, j.. "can not be license of
the traffic, unless the tax confers some
right to carry on the traffic which 9TH
erwise would not have existed" Con-
tinuing, he said:
$50 far as we can perceive, failure to pay
the tax no more renders the trade illegal than
woa.d like failure of a farmer to pay the
tar on his farm render its cultivation Illegal.
The state has imposed the tax in each case.
and made such provision as has been deemed
needful to insure its psymen'; but it has not
seen fit to make the failure to pay forfeiture
OF the right to pursue the calling. If the tax
is paid, the traffic is lawful; but if not paid
tnetraffic is equally lawful There is conse-
quently, nothing in the case that appears to
be IN the nature of a license. The state has
provided for the taxation of bufiness which
was found in existence, and the carrying on
of which it no longer prohibits, and that is
ALL
In speaking of this case in State V.
Hipp. the Chief JHstie said:
''The distinction between the act under
consideration (the Pond law in the case'be>
fore us, and the Michigan statute, is very
plain. Noncompliance with the Michigan
statute did not render the traffic illegal, and
compliance with it gave the dealer no privi>
lege over another dealer who failed in such
compliance; but one who carries on the traffic
under the Ohio statute, without complying
with its provisions, commits a criminal Of
Tense, while dealer who complies with il OBJ
tains privileges denied to others. Non>com-
plance with the statute renders its prOsecu-
tion, to any extent, wholly illegal; and hence;
the act falls within the definition of license
law
Accordingly the court held the act
unconstitutional as being within the in
hibition contained in Section Is of the
the Schedule. That statute, unlike the
one now under consideration, absolutely
prohibited the traffic in intoxicating Ii
quors, and made such traffic illegal, eX-
cept to those who should comply with
its provisions. The General Assembly
in effect said to the people: By first pay
ing so much money into the treasury,
and executing bond of specified char
acter, you shall be permitted-i. e., IL
cesed-to engage in a traffic, which was
Illegal and punishable as a miSdemean-
VI III tllONC W IO W pay lu6 lIlOucl
and give the required bond. The right
to engage in the traffic at all, was ex-
preSsly conditioned upon the payment of
the money and the execution of the
bond; without these, the business was
declared to be illegal. This, as l under
stand, was the fatal point in the Pond
law, and was the sole ground on which
the court based its decision.
In the present act, this defective con-
dition does not appear. 1t has been
carefully omitted by the General As
sembly.
The nOn-payment Of the tax does not
render the traffic illegal. No bond is re-
quired. No conditions precedent are
attached to the lawful prosecution of the
business. The failure to pay the tax, to
use the language of Justice Cody, no
more renders the trade illegal, than
would like failure of a farmer to pay
the tax on his farm render its cultiVa-
tion illegal. The decision in State v.
Hipp is therefore conclusive on the
question of whether the act falls within
the constitutional Inhibition against Ii
cense.
". TAX LIENS.
~ 10 opJCCGOOy hOW0tCIy GEdL du illegal
and unconstitutional method is provided |
for collecting the tax, in this, that un-
like other taxes of a personal nature, it |
is made lien upon the premises where
the traffic is carried on, notwithstanding |
the dealer may or may not be the actual |
owner thereof. The inviolability of |
private property is said to be thus in
fringed in so far as the act undertakes |
to create lien on the premises of the
lessor, for taxes assessed against the |
lessee. The clause making it misde-
meanOr to carry on the business on prem |
ises not owned by the person engaged |
therein, without first obtaining the writ
ten consent of the owner, is also object
ed to as being in conflict with Sec. 2S,
Art. 2 of the constitution, which forbids
the passage Of laws impairing the obi
CATION of contracts. Tbsse provisions,
however, are incidental to the main
feature of the statute. which consists in
levylng tax upon the business of traf-
fcing in intoxicating liquors. They
might be invalid, and yet the residue of
the act sustained. | am aware with
what jealous regard for private rights
our organic laws are distinguished, yet
nevertheless the power to impose u tax
must necessarily be held to include the
power to collect it, and if this latter
power exists, its exercise within cOnsti-
tutiOnal limits is discretionary with the
General Assembly. Cooley on Taxation,
sos; Slack VS.. Ray, l Cen. l.. j. No. 81;
Hepburn VS.. Griswold, Wall 6O3. 9th
erwise the sovereignty of the State
would be seriously impaired. The crea-
finn nf of u linna IN
pied by lessees for the purpose of traffic
ing in intoxicating liquors, is net new
feature in legislation.
Section 1857 of the revised statutes
makes both the lessor and lessee of
premises used for the troffic in intoxica-
ting liquors, in certain instances, liable
jointly and severally for damages caused
by sales made exclusively by the lessee.
BY section 1864 these damages, and also
al fines and costs assessed against
the lessee for violations of the laws reg
ulating such traffic, are declared to be a
len on the premises. Under section
1851 unlawful selling works forfeiture
OF the lease The principle involved in
these sections is much higher attribute
of sovereignty than that which is sought
to be exercised in the act under consid-
eration, and yet their conformity to the
is not seriously questioned,
having, in number of instances, with
s.ood the crucial test of the courts. The
that the owner of real estate
can, by leasing it to another, avoid re-
spOnsibility for the business carried on
by his lessee, is not, so far as l have
teen able to discover, sustained by
single adjudicated case. Neither the
taxing nor the police power of the state
can be defeated in this manner.
This feature of the law is, therefore,
in my judgment, res .j,sdicatd. There
would be as much reason in claiming (
that the General Assembly could not
n1w re-enact the law forbidding the sale
of Intoxicating liquors to be drank on
the premises. because forsooth, it might