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

" which TO determine whether an act is |
u 10 not. q license law, OF whether the |
iCt OF 1852 was or was not constitution
II. The act OF 1881, which, was the Ii
'ense law 10 force when the constitution
vas framed, permitted all persons to sell
liquors OF any SORT in anv' quantity not
less than ono quart, swhere the liquor
was TO be taken from the place where |
purchased, leaving to the tavern keepeHi
who was licensed as his only exclusipe'l
right to sell by the drink.
The act wss d license Law, but IT would !
have been piainly absurd to call that act
q prohibitofy liqaer law; nor has it sever|
been supposed that in order to constis
tdte al Aes : liauor license law, II was
Qecessaf ltat q should be d prohi0itos'
fY iiqgu 1ae idsany sense or under any
condition. Foftnnstetv the ground upss
on which The State y. Hips, was decided
Is expressed too clearly in the syllabus
or head note to admit Of donbt or ques-
ton and the syllabus or heal note is
with us the test as to- the point decided.
1t was there held, that the constitution:
ality Of o statute depends UPON Its ope.
ration aud effect, and not on the form
it may he made to assume and that the
act of 1852, which required. every per-
son engaged or engaging in such traffic
to pay a,specified sum Of money annual
.ly and execute bond as therein requir.
ed, and also provided that "every per-
son who shall engage or continue 10
such traffic. without having executed the
bond or after his bond shall
have been adjudged forfeited, =
shall be deemed guilty of misdemean.
or" was, in its operation and effect, as
to the traffic not heretofore prohibited,
license, and hence unconstitutional
Besides, an examination Of the opinion
will show that the absence of clause
providing for granting and issuing II
censes, and the absence or presence or q
clause which rendered the act, under any
circumstances, a prohihitory liquor Law,
were regarded as matters wholly imtna.
terial to the question whether the statute
was or was nota license law or con-
s:itutional law. 90 za'ids 91gs5 9gs
As the act of 1883 provides, In effect,
that the persons who submit to q tax oil
two hundred dollars. q year, and give
real estate security for its payment,
either as owners or by written consent
Of the owners, shall have the exclusive
right OF selling alcoholic liquors to be
drunk as beverage at the place where
sold-which was the only privilege Sc
cured by liqnor license under license
aws-such act is plainly and necessarily
license law, ami as such. unconstitu.
tional, and the infrmity destroys the
whole act. But I may we'll place my
dissent on narrower ground. One who
is the owner OF real estate may pursue
the traffic thereon without the consent
of an, boiy. By pursuing the traffic he
inyokes the tax, which becomes a lien
ON such property, But this not true OF
a tenant' Ii he carries on the traffic
without the consent, in writing of the o own.
ers of the real estate in which the bust.
ness is done, he becomes criminal, and
is punishable as such. This, it is held,
does not apply to persons holding leas-
es at the time the act was passed; and
agree to that upon the ground stated by
the majority, and upon other grounds,
but for reasons which will now be stat
ed, l need not speak further OF such ex-
istiug leases. The requirement that a
tenant must procure such written con
sent of the owner, applies to all persons
who obtain leases after as we'll as those
who obtained leases before the passage
of the act, and there can be no lien for
an assessment on premises occupied by
a tenant without the written consent Of
the owner Besides, unless such writ
ten consent be in terms given by the
owner in the lease, or be in terms given
by the owner by separate writing, the
holder OF q lease, whether as leasee, as.
signee or sub lessee, though the lease be
executed since the passage of the act,
and whatever it's terms, commits Grim.
iual offense be carrying on such traffic
in the leased premises. Act OF 1883,
Sec. 9; The State VS. Hart, 4 fred T..
246; Bishop on Written laws, Sec 237 !:
and see jenkins vs. Clarkson, Heading
ton VS.. Nefs, Z Ohio, pit. -, 229. The
State says, in substance, to. the tenant,
procure the written consent of the own.
err, SO that his property will become Sc.
curity for your assessment, and you NAV
sell alcoholic liquors by the drink, and
thus secure all the privilege there ever
was In liquor license; but Il you car.
ry on the traffic without such written
consent, whereby the State will be de-
prived Of real estate security for your
assessment, you shall be punished as q
criminal That, in my opinion, clearly
constitutes this act d license law, and
tor so saving 7he State d. Hfpp is direct
and conclusive authority. TO be sure,
an attempt is made, 10 the opinion Of
the majority. to answer this view OF the
case, but with great Difference / submit
the attempt has l1eeu entirely upsuccess.
ful. First. il Is said the provision re-
curing such written consent no more
renders the act 4 license law than the
act Of 1854 was rendered such law by
the clause prohibiting sales to minors
except rpon the written order Of their
Guardians. or family physician.
Rut the difference ia yerysmarked. The
requirement that a sale, could only be
made to a minor on such order was