Democratic Northwest. [volume] (Napoleon, Ohio) 1869-1894, 1883-08-09
THE NORTHWEST
AN O.. X. DISSENT.
A DEMOCRATIC OPINION OF THE
SCOTT LAW.
Judge Okey Takes IL Up One Side
and Down the Other, and De-
clares 1t Unconstitutional.

clares 1t Unconstitutional.
COLUMBUS, July 2S.-The opinion o
the majority of the supreme court, pre-.
prepared by Judge McIlvaine, sustain.
ing the constitutionality of the act com.
monty known as the Scott law, has al.
ready been published. The act was
passed April II, 1888, and is entitled
"An act further providing against the
evils resulting from the traffic in intox-
icating liquors." and appears in so Ohio
Laws, 164. The case involving the con-
stitutionality of the act were presented
to the supreme court and argued orally
and on briefs by eminent counsel. The
first case was The State, on relation of
the Attorney General, VS.. A. j. Frame,
Auditor of Athens County, being an ap-
plication for a peremptory writ of man
damus to compel the auditor to publish
a certain notice which, by the act, he
was required to publish. The defense
was that the act is unconstitutional.
The other case was Samuel Benner
against Levi Bauder and others, being
an action by Benner in the Court of
Common Pleas of Cuyahoga County to
enjOin the enforcement of the assess
ment under the act. He states in his
petition that he is engaged in the traf-
fic in liquors in premises held by him
under lease made in the year 1867,
which will not expire until the year 1917,
and that the owner refuses the consent,
in writing, required by the act. The
common pleas dismissed the petition,
and the district court, on error, reserved
the cause to the supreme court for de-
cision.
In the State, on relation, against
Frame, judgment was rendered against
Frame, and in Bonner VS.. Bauder
the judgment of the common pleas
court was affirmed, the court holding
that the Scott law is constitutional, but
that it does not, and constitutionally
can not, apply to leases existing at its
passage. Judge Okey, being of opinion
that the act is unconstitutional, has
prepared the following dissenting opin-
ion: .'..
OKEY, j. | am unable to concur in
the Judgments rendered in these cases.
In my opinion judgment should be rem
dered in The State VS.. Frame in favor
Of the defendant, and in Benner VS..
Bauder the Judgment should be reversed
and the relief demanded in the petition
granted. The infirmity which, in the
State vs., Hipp, 3S Ohio ST., '199, we
held to be fatal to the act of 1882, was
transmitted to the act Of 1883. Parent
and child are alike affected. Believing
the act of 1881 to be unconstitutional,
respect for the general assembly which
enacted it, and for the majority of this
court which has maintained its validity
in an able opinion, demands that I
should state my own views upon the
subject. ~
In the majority opinion it is asserted
that unden the constitution as it is, the
general assembly has the power to pass
liquor law, and consider
able space Is occupied upon the SUBJ
ject. No such question was presented
in either of the cases, and Il beg leave
respectfully to say that no such ques-
tion was considered or decided by the
court. The act of 1888 is not prohibit
tory law. Indeed, no statute has ever
been passed in the state which was
more unlike prohibitory law. Under
the rules of this court, such statement
in majority opinion is to be regarded
as merely an expression. of the views of
the Judge preparing such opinion. 1t |
goes forth without authority, settles
nothing, and nobody is bound by it.
II the legislature passes prohibitory
liquor law, and its constitutionality is
in this court, | will then be
willing to consider its validity. In the
cases now before us | will confine N.Y.
self to an examination of the question
the act of 1853 is license
law.
The act OF 1881 e Curwen, 2424) was
in force when the convention which |
framed the constitution finished it's la
bors. The act was called and known as
. license law, but no authority to buy
or sell liquors was granted by it or un-
der its authority. Indeed, no such auth
Gritty has ever been necessary. The
sommon law right possessed by every
person to buy and sell liquors of any
sort at pleasure is not interfered with by
BUR constitutions, federal or state. Re-
,traints upon the traffic can only be inl-
posed by constitutional provision or un-
der legislative authority, and legislative
may be general or restricted
under organic law. The law of 1881.
provided. "That if any person shall
Keep tavern or retail spirituous liquors
,r shall vend or sell spirituous liquors
IF any kind to be drank at the place
xhere sold, or shall vend or sell such
pirituous liquors by less quantity than
,ne quart" without being duly licensed
~ tavern keeper, he should be fined
not exceeding 500 nor less than SIS, on
conviction upon indictment" By the
'ame act power was conferred on the
court of common pleas to grant g Cur
Een 2424) or refuse q Curwen 1O76) to
applicants license to keep taverns, but
aich license could only be granted when
he court was satisfied, among other
,hings, that such tavern was necessary,
md that the applicant was man of
sOod moral character and suitable per-
on to keep tavern, and that he was
provided with suitable accommodations
or such purpose. The charge for such
icense was not more than $50 nor less