The spirit of democracy. [volume] (Woodsfield, Ohio) 1844-1994, 1883-08-07

= ~ - - - ~ ~ - Y ;--S7---r
OPINION OF 0KEY, ].
Why He Dissents From the Scott
Law Decision.
Clear, Consistent, Impregnable Rea-
SOning OF o Genuine Judge.
The opinion Of the majority Of the
Supreme Conrt, prepared by Judge Me.
Ilvaire, sustaining the constitutiona!it9
of the act commonly known as the Se1yt
Law, has already peen published. Tue
act was passed April II, 1883; sndi en-.
titled IAN act further providing against
the evils resulting from the sale Of int6x-
icating liquors." and appears in so Q}lIo
Laws. 1914. Two cases Involving 3tIe
constitu,ionality OF the act we're present.
ed to the Supreme Court, and argued
orally and on briefs by eminent counsel.
The irst case was the State, on relation
OF the Attorney General, against A. J.
Frame. Auditor of Athens County, be.
ing An application for peremptory writ
of mandamus to compel the Auditor, to
publish Q certsin notice which, by the
act, be was required to publish. The
defense was that the act is unconstitu.
tional. The other case Was Samuel Ben
ner against Levi Bauder and others, be
ing an action by Benner In the Court o.
Common Pleas OF Cuyahoga County te
enjoin the enforcement Of the assess
nent under the act. He states in his pc
tition that he is engaged in the traffic il
liquors. in premises held by him under :
lease made IN the year. 1867, which vii
not expire till the year 1917, and thu
the owner refuses the consent, In writing
required by the act. The Common Plea
dismissed the petition, and the Distric
Court, on error, reserved TIE cause tC
the SHpreme Court for decision.
In the State, on relation. agains
Frame, judgment was rendered agatns
Frame, and In Benner vs.. Bauder, th,
judgment OF the Common Pleas Cour
was affirmed, the Court holding that tbt
Scott law Is constitutional, but that i
does not, and constitutionally cannot
apply to leases existing at it's passage
Judge Okey, being Of opinion that The
act is unconstitutional, has prepared tht
following dissenting opinion:
Okey, j. / am unable to concur Ia
the judgments rendered 10 these cases
In my opinion judgment should be rem
dered In The State os. Frame in favor o
the defendant and iE Benncr Us Bawds'
the judgment should be reversed and th'
relief demanded ia the petition granted
The inArmity which in The State o.
Hipp, 80 Ohio St +, 1879, was held to b
fatal to the act OF 1882. was transmitted
to the act of 1883. Parent, and child
are alike affected. Believing the act o.
1883 to be unconstitutional, respect FOL
the General Assembly which enacted !,
and for the majority of this Court which
has maintained its validity In an able
opinion, demands that should state my
own views upon the subject.
In the msje rity opinion it is asserted
that, under the Constitution as it is, the
General Assembly has the power to pass
q prohibitory liquor law, and considera-
be space is occupied upon the subject
No such question was presented in either
OF the cases, and l beg leave respectful
ly to say that no such question was con-
sidered or decided by the Court. The
act of 1883 is not prohibitory law. 10
deed no statute has ever been passed 10
the State which was more unlike pro-
hibitory law Under the rules of this
Court, such statement in majority
opinion is to be regarded as merely. an
expression Of the views of Judge pre-
pairing such opinion. 1t goes forth with
out authority, settles nothing, and no.
body Is bound by it. If the Legislature
passes a prohibitory liquor law, and its
con .ti.utionality is assailed in this Court,
will then be willing to consider its ua.
lidity. 10 the cases now before as ] will
con6ne myself to an examination OF the
question whether the act OF 1883 is .
license law.
The act of 1881 Is Curwen, 2424) was
10 force when ihe Convention which
framed the Constitution finished it's la
bors. That act was called and known as
a license law, but no authority to buy
or sell liquors was granted by it or IN.
der It's authority Indeed, no such au
thority has ever been necessary. The
common law right possessed by every
person to buy and sell liquors OF every
sort at pleasure, is not interfered with
in any respect bv our Constitutions, Fed.
eral or State. Restraints upon the traf-
&c can only be imposed by constitu
tional provisions or under legislative
authority, and legislative authority may
be general or restricted under organic
law. The act OF 1881 provided, THAT
II any person shall keep tavern or re-.
tail spirituous liquors, or shall vend or
sell any spirituous liquors Of any kind
to be drank where sold, or shall. vend or
sell such spirituous liquors by less guam
tity than one quart" without being duty
licensed as tavern keeper, he should
be fined not exceeding one hundred dol.
lars nor less than Eve dollars, on con.
viction upon Indictment. By the ssme
act power was conferred on the court Of
common pleas to grant Is Cur wen, ,2424)
or refuse e Curwen, 1076) to applicants
licenses 10 keep taverns, but such licen.
ses could only be granite when the court
was satisfied, among other things, that
such tavern was necessary, and that the
applicant. was a man Of good moral
character and suitable person to keep
tavern, and that he was provided with
suitable accommodations for such pur
pose. The charge for such license was
not more than City nor less than Eve
dollars per anuum, the court, in fixing
the amount, shaving proper regard
for the applicants place Of business "
A paper called license was issued to
such tavern Keeper by the clerk Of the
court, on payment of his lee Of City
cents therefor.
Nothing is clearer than that the priv
ileges secured to the tavern keeper, un-
der the act of 1881 was neither exdu-
sive, unrestricted, nor beyond legislative
control. That there was an attempt,
even indirectly, to grant any exclusive