Belmont chronicle. [volume] (St. Clairsville, Ohio) 1855-1973, 1883-06-21
THE SCOTT LAW.
Argument of Hon. D. A. HOllings-
worth, Att0rney-General, Before
the Supreme Court.

| Court on the relation of the Attorne,
General to compel the Auditor of Athens
county to discharge the duty imposed by
the Sth section of the Scott law, to pub
lish certain notice to liquor dealers
which he refused to do, and justified him
self by questioning the cOnstitutionality
of the act. The issue before the court is
Does the Scott law contravene any posi-
tive provision of the Constitution? Fol
lowing is the argument of the Attorney
General:
ARGUMENT FOR RELAToR.
In opening the argument on behalf OF
the state, / shall not undertake to anti.
cipate or answer the objections which
may be urged by counsil for the respon.
dent. The Limited time allowed for pre-
paration has not been sufficient to per
nit the usual courtesy of exchanging
briefs. The duty of answering objec-
tions will, therefore, be better perform
ed hereafter, and shall content myself
for the present with u brief presenta-
ton of the points relied upon by the re.
lator.
RULE OF CONSTRUCTION.
All acts of the General Assembly are
presumed to be constitutional, until the
contrary is made to appear, and courts
are not warranted in declaring statute
invalid for repugnance to organic law,
unless such repugnance is clearly mani
fest, after careful consideration of all
its provisions. The conflict must be
positive and irreconcilable. Mere differ
ences of opinion, however radical, be-
tween the judiciary and the legislative
department, will not suffice.
Courts cannot oyerturn in doubt,
says Ranney. j., Hill VS.. Higdon, "what
legislatures have established in settled
conviction
A statute may, however, be void in
part and valid as to the residue. State
V. Hip, IS Ohio ST., 100, and autholi-
ties there cited.
I. POWER OF TAXATION.
In support of the constitutionality of
the act, considered as revenue meas
ure, desire to submit:
The power to levy taxes and raise rev.
enue for public purposes, which is an
indispensable incident to the sovereign
ty of the state, is conferred without lim-
it upon the General Assembly, by Sec
ton l, Art. of the constitution, as fol-
lows:
'The legislative power of this state shall
be vested in General Assembly, which shall
consist of senate, and house of representa-
tives'
This is general grant of power, and
any restrictions upon its exercise must
be found in other provisions Of the con-
stitution, or in the constitution of the
United States.
In Baker vs.. The City of Cincinnati; !;
IL Ohio ST., 542, GholsOn, j.. in speak
ing of this section of the constitution,
says:
.'It will be observed that the provision is
not that the Legislative power, as conferred in
tile constitution, shall be vested in the Gener-
al Assembly, but that the legislative power of
this state shall be vested. That includes all
legislative power, which the object and pur>
poses of the state government may require,
aud we must look to other provisions of the
constitution to see how far, and to what ey>
tent, legislative discretion is qualified or res
stricted. Hence, the difference between the
constitution of tine United States and state
constitution such as ours. In the former, we
look to see if power is expressly given; in
the latter, to see if it is denied or limited.
The power of taxation is included in the leg
islative power"
In Dehman VS.. Mcbride, Is Ohio St.,
sol, Scott j., in referring to the same
section, says:
'sThis grant of power is general in its terms,
not special; it embraces all such legislative
power ss the people of the state could, under
the felersl constitution, cenfer-the whole
legislative power of the state. The limita-
tions upon the exercise of the power thus
broadly conferred, are special, and are to be
found in other parts of the same instrument" 1"
In Western Union Telegraph Co. v:
Mayer, Treasurer, ETC., 2S Ohio St., 533,
Johnson, j., after quoting Sec. /, Art 2
of the constitution, says:
''The power to raise revenue for public
purposes, being legislative power, is thus
expressly committed to the general assembly
1t is grant of general power of taxation.
Limitations and restrictions on its exercise
are to be found in other provisions of that in>
strument, and in the federal constitution"
He then proceeds in a somewhat
lengthy opinion. with logical accuracy,
to brush away the sophistry of counsel,
and lay bare the true principle of taxa
tion underlying the organic law of the
state.
Need pursue the subject, or cite 9TH
er authorities | think not. This prop
osition is sustained by an uHbroken cur
rent of judicial decisions, and it would
be Improbable to again go over the rea-
soning, or the ground covered by the
learned judges who announced the opin-
ions. Suffice it, that every objection
that could be urged by eminent counsel,
has been answered with clearness and
force which are characteristic of the
great lawyers who have uniformly. been
called to adorn the highest judicial tri-
bunal in the state.
l insist, therefore, that the power of
the General Assembly to impose taxes,
direct or indirect, on the property or
the business avocations of the people, or
even upon the people themselves, is not
restricted except as the same may be
done by special limitations, to be found
in the constitution of the state, or of the
United States.
II. LIMITATIONS OF POWER TO TAX.
OF what, then, do these limitations
consist? In SO far as they apply to con-
troversies arising in this proceeding, l
apprehend they are confined to Art. IL,
and Section IS, of the Schedule, in the
State constitution. Section one of Ar
ticle twelve. forbids the levying of poll
tax; hence, the power of the General
Assembly is limited in this respect, so
that it can not legally assess capita
tion or poll-tax upon the people. The
language used is unequivocal, and ad-
mits of no construction. The tax sought
to be levied by the act in question falls
within no definition of the term poll
tax, which l have been able to find. A
poll-tax is "a tax assessed upon every
head, i. e., on every male of certain age,
etc, according to statute" Bouvier's
Dictionary. The tax under considera-
ton, as stated in Section one of the act,
is an assessment upon the business of