Democratic Northwest. [volume] (Napoleon, Ohio) 1869-1894, 1883-08-09

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I only exclusive privilege. the right TO
| sell by the drink. The act was license
) law, but it would have been plainly alb
: surd to call that act prohibitory liq-
! uor law; nor has ii been supposed that
in order to constitute an act liquor
license law, it was necessary that il
should be prohibtory liquor law in
any sense or under any condition. For
tunately the ground upon which The
State, VS.. Hipp, was decided is expressed
too clearly in the syllabus or head note
to admit of doubt or question: and the
syllabus or head note is with us the test
as to the point decided. Ii was there
. held, that the constitutiOnality of a
statute depends upon its operation and
effect, and not on the form it may be
made to assume; and that the act of
1882, which required every person en-
gagged or engaging in such traffic to pay
a specified sum of money annually and
execute bond as therein required, and
also provided that "every person who
shall engage or continue in such traffic,
without having executed the bond
Is or after his bond shall
have been adjudged forfeited, =
shall be deemed guilty of a misde-
feet, as to the traffic not therefore pro-
hibited, a license, and hence unconsti-
tutiOnal. Besides, an examination of
the opinion will show that the absence
of a clause providing for granting and
ence of clause which rendered the act,
under any circumstances, a prOhibitory
liquor law, were regarded as matters
Nrh nj itNlFn for tnI tn fhn ion
whether the statute was or was not a Ii
cense law or a constitutional law.
AS the act of 1888 provides, in effect,
that the persons who submit to a tax OF
$500 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 alco-
holic liquors to be drunk as a beverage
at the place where sold-which was the
only privilege secured by liquor license
laws-such act is plainly and necessarily
license law, and as such constitu-
tional, and the intirmity destroys the
whole act. But l may well place my
dissent on narrower ground. One who
is the owner of real estate may pursue
the traffic thereon without the consent
of anybody. BY pursuing the traffic he
invOkes the tax, which becomes lien on
such property. But this is not true of
tenant. If he carries on the traffic with
out the consent, in writing, ,ofthe owner
ofthe real estate in which the business is
done he becomes criminal and is pun
ishable as such. This, it is held, does
not apply to persons holding leases at the
time the act was passed; and l agree to
that upon the ground stated by the ma
jority, and upon other grounds, but for
reasons which will now be stated, Ineed
not speak further of such existing
leases. The requirement that a tenant
must procure such written consent of
the owner, applies to all persons who
obtain leases after as well as those who |
obtained leases before the passage of the
act, and there can be no lien for an as
sessment on premises occupied by ten
ant without the written consent of the
owner. Besides, unless such written |
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 lease, whether as lessee, assignee, or
sub-lessee, though the lease, be executed
since the passage of the act, and what
ever its terms, commits criminal of
fense by carrying on such traffic in
leased promises. Act of 1888; Sec. 2;
The State VS.. Hart, Ired. l.. 246; Bish-
op on Written Laws, Sec. 237; and see
Jenkins VS.. Clarkson, Headington VS..
Nett, Ohio, pit. Y, 229. The state
says, in substance, to the tenant, pro-
cure the written consent of the owner,
so that his property will become securi-
ty for your assessment, and you may
sell alcoholic liquors by the drink, and
thus secure all the privilege there ever
was in liquor license; but if you carry
on the traffic without such written con-
sent, whereby the state will be deprived
of real estate security for your ASSESS
ment, you shall be punished as crimi-
nal. That in my opinion, clearly con-
stitutes this act license law, and for
saying The Statev VS.. Hipp is direct and
conclusive authority. TO be sure, an
attempt is made, in the opinion of the
case, but with great Difference I submit
the attempt has been entirely unsuccess-
full. First, it is said the provision re-
quiring such written consent no more
renders the act license law than the
act oflS54 was rendered such law by the
clause prohibiting sales to minors ex-
cept upon the written order of their par
ents, guardians, or family physician.
But the difference is very marked. The
requirement that a sale could only be
made to minor on such order was
mere regulation which left in the dealer
the right to traffic in liquors; but one
who Is not the owner Of real estate is alb ,
solutely prohibited from dealing in lia-
uors i'll any way, without the written
consent of the owner of the property in
which he proposes to carry on the busi-
ness. There is no apnogy between the
cases. Similar arguments were made
and over ruled in the State VS.. Hipp,
and what was then said (38 Ohio st. 22Bj
Is equally an answer to the claim now
made. Secondly, it is said that evenif
the provision required such written con-
sent should be. regarded as unconsti-.
the remaining portions of the
act may stand. But deny that any
part of the act can stand, if the clause
such written consent consti- n
tutes the act a license law as to tenants.
The policy of the act is that all assess
ments shall be secured by alien on real
estate, and the necessity of such lien is
far greater, ordinarily, where the
dealer is a tenant than where he is
The owner of the property. 1t is not to
be assumed, nor do | believe, that the
general assembly would have granted to \
Ill persons dealing in liquors who were
tenants, and all such dealers as might
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