The Stark County Democrat. [volume] (Canton, Ohio) 1833-1912, 1883-05-23
THAT TEST CASE
Raised About the Constitutional
ity of the Scott Law.
The Points InVolVed-Why II Is Brought
Judge Barber's Deoision-The Impair
ment of Existing Contracts.

i O6on ThlS6u III COuu6CLlOn Will Luh
monument to Republican folly. Tit
case here is in the hands of FOTan
| DaWly, and was made up as q result o.
! the recent conference Of the brewers
here, to be held in reserve in case the
| case made up in Athens county fails II
hold good. The action Is brought in this
way:
Samuel Brenner keeps q saloon OF
Michigan street and the saloon is lOcat
| ed in premises not belonging to him but
leased by him in 1867 for the term OF
fifty years at 800 year rent, together
with taxes, fines and assessments levied
against the land. If he should fail to dc
this the owners of the land have a right
to cancel the lease. He Is putting up a
building now upon the land in which
to carry on his business. His contract
with the owners of the land guarantees
him possession of it for thirty-six yeaI s
to come If he complies with the cOndi-
tiOns therein.
Now comes the Scott law threatening
to destroy the validity of his contract.
Under the provisions of that law an as
SCISSOR has visited him, and returned to
the auditor the nature of his business.
and the fact that it Is conducted upon a
lease hold. The auditor is preparing
to compel him to pay an assessment of
PSOO, anu IL Ito Iblub6b llld wv VI bLlb
land may cancel the lease. The lessees
are County Auditor Levi f. Bauder,
County Treasurer II. N. Whitbeck, the
city of Cleveland, County Commissioners
Schlatterbeck, Phinney and Smith and
George Wiley, George ii. Russell and
Samuel Il. Williamson, as trustees OF the
estate of the late Thomas Bolton. OF
these George Wiley, George II. Russell
and Samuel Williamson have refused
their consent to allow him to carry on a
saloon business and threaten to cancel
the lease. He says his lease is worth
$4,000, but If his business is broken up
it is worth nothing. He AYERS that the
Scott law creates an unlawful license to
traffic in Intoxicating liquors, imposes
an unlawful tax upon said plaintiffs
said property and business, and upon
himself personally, and imposes penal
ty on the said plaintiff for selling with
out the consent of the owner of said
land; that the same impairs the Obliga-
ton and effect of contracts existing at
the time the same was made, is unequal,
grievOus and unjust in its effects and
operations, creates unWarranted and
illegal penalties, imprisonment and
fines, and said property Is wholly illegal
and contrary to the Constitution and
the bill of rights of the United States
anu bll0 fOlBIO VI OillOs OhAu RlalhJAh
says he is without an adequate remedy
at law and that unless said defendants
are restrained as prayed for in the petit
tiOn he will suffer great and irreparable
injury. Wherefore said plaintiff prays
that said defendant, Levi +. Bauder, as
County Auditor, may be perpetually en-
Joined from placing the plaintiffs name
upon the duplicate, that the County
Treasurer may be perpetually enjOined
from collecting any taxes, assessment or
fine assessed against said plaintiff and
that all of the defendants may be en-
joined from taking any steps, civil or
criminal, as against the plaintiff by Vir-
tue of the act of April IL, 1888.
Stone made demurrer, that the
petition did not set forth suf
ficient cause for action. Judge
Barber this morning OVerruled the de-
murreT, decided the second section of the
law unconstitutional, and reserved the
case for decision to the District Court.
The District Court will act upon the
case tomorrow, and will reserve its de-
cision to the Supreme Court, to which
tribunal the case will go up to be heard
upon its merits and decided at the same
time the Athens case is decided.
The Athens case is in the form Of a
w bhO hblOuD
officials to receive the tax. The case
made here is in the form of an applica-
tiOn for an injunction to restrain the
CuyahOga county officials from proceed
ing to collect the tax.
Mr.. FOran stated to q Plain Dealer re-
porter this morning, that the case would
raise all the points against the cOnstitu-
tiOnality of the law that the Athens case
raises, but some in addition, that it COW
ers the ground better than that case
does. The action was taken by the ad-
vice of Judge HOadly, who had some ap-
prehensiOn the Athens case was not as
strong case as might be made.
Does the case made up here hinge on
the alleged impairment of the validity
of contracts by the Scott law2
mo-" said FOran. ut is intended to
cover the whole ground. The point you
mention is strong one though, and we
will make the most of it. Judge Barber
this morning decided that the section of
the law requiring the lessor to have the
consent of the lessee was uncOnStitu-
tiOnal, but he reserved his decision in
the case as whole to the District court"
In this connection it may be stated
that from conversation the reporter had
with other legal gentlemen on the sub
ject, the point as to the impairment of
tant one.
al don't see how the Court can helu
deciding the law unconstitutional" said
one of the ablest members of the Cleve-
land bar. "Take this very case. This
man has a contract whereby he is given
the right to carry on the saloon busi-
ness upon the land he occupies for the
next thirty-six years. As long as he
complies with the conditions of that con-
tract there is no authority that can stop
him. But here comes this Scott law i'm
| posing new conditions, and putting ii
into the power of the lessees to annul
the contract. Is that not an impairment
of the validity of contracts by legisla.
tion, a thing the constitution says shall
not be done2"
The Athens case is expected to come
up for hearing in the Supreme Court
May 28th, and then this case will come
up at the same time.