The Stark County Democrat. [volume] (Canton, Ohio) 1833-1912, 1883-08-15
SCOTT LAW.
Judge Okey's Able, Dissenting,
Legal Opinion.
Showing the UncOnstitutiOnality Of the
Scott LaW-An Interesting Document
Full of Strong Points.

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| interesting document too long for the
space we have at command, but ia so
full Of strong points that we have made
| several selections that we present to our
readers. After declaring his belief that
the Scott law. like the Pond bill, is un-
constitutional, he says, with reference
to Judge Mcllyatne's dictum concerning
prohibition:
In the majority opinion 1t is asserted
that, under the Constitution as it is, the
General Assembly has the power to pass
| pTOhibitOTy liquor law, and consider
| able space is occupied upon the subject.
No such question was presented in eth
er of the cases | beg leave respectfully
to say that no such question was con-
sidered or decided by the Court. The
act of 1883 is not prOhibitOry law. In
deed, no statute has ever been passed in
the State which was more unlike pro-
hibitOry law. Under the rules of this
Court, such a 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. If the LegiSla-
ture passes prOhibitOry liquor law, and
its uncOnstitutiOnality is assailed in
this Court, will then be willing to con-
side. its validity
A license may be confined by the law
making power to class or limited num-
Der of persons, or it may extend to all
who comply with the conditions i'm
posed. Take the case of peddler who
desires to travel throughout the State
and Vend goods, wares and merchandise.
He is required to pay money, the amount
being determined by his mode of travel,
whether on foot, on horseback, or in
wagon, boat, or railroad car, but any
| body who tenders the required sum Is en-
| titled to license, and may enforce the
| issuing of the same. Rev. Stats, sec
tions 43O6-4402. The same thing is true
as to other licensed emplOyments. And
if it was made by statute mandatory
| upon the Court of Common Pleas to grant
/ and issue license to each and every
person who applied therefor, and paid
a license fee of 5000, authorizing him to
sell spirituOus liquors by the drink for
| one year, could any man be found bold
enough to say that such statute would
not be in conflict with the constitutional
inhibition on the subject? Such law
/ would be simply extending to many the
| authority which was thought to be an
| evil even when confined to few; and
hence the claim that such a law Is valid
because the license is open to all, would
be plainly absurd.
As the act of 1888 provides, in effect,
/ that the persons who submit to 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 beverage
at the places where sOld-which was the
/ only privilege secured by a liquor Ii
i cense under license laws-such an act
i Is plainly and necessarily license law,
and as such, unconstitutional; and the
infrmity destroys the whole act. But L
may we'll place my dissent on narrow
| ground. One who is the owner of real
estate may pursue the traffic thereon
| without the consent of anybody. BY
pursuing the traffic he inYOkes the tax,
/ which becomes a lien on such property.
/ But this is not true of a tenant. If he
carries on the traffic without the con-
sent, in writing, of the owner of
i of the real estate in which the busi-
| ness Is done he becomes criminal
and is punishable as such. This, 1t 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 majority, and upon other
| grounds, but for reasons which will now
be stated, l need not speak further of
such existing leases:
The State says i'll substance, to the
| tenant, procure the written consent of
the owner, so that his property will be-
come security for your assessment, and
/ you may sell alcoholic liquors by the
drink, and thus secure all the privilege
i there ever was in liquor license; but
if you carry on the traffic without such
written consent, whereby the State will
1 be deprived of real estate security for
| your assessment, you shall be punished
as a criminal. That. in my opinion
clearly constitutes this act license
| law, and for saying the State vs.. Hipp is
II Afraof anthnrifu M ha
| sure, an attempt is made, in the opinion
of the majority, to answer this view of
the case, but with great difference |
submit the attempt has been entirely
unsuccessful.
To hold an act to be invalid where its
| cOnstitutiOnality does not clearly ap-
| pear, would be almost as unwarranted
and perniciOus as to sustain an uncOn-
stltutiOnal statute upon the ground that
1 it's enforcement would bring to the pub
i lie treasury large revenue. But L have
no doubt on the subject. The statute Is
unconstitutional, and in my opinion
plainly so. l am best satisfied with the
broad ground have stated; but the mar
rover ground, that the provision requir-
| ing of tenants written consent Of the
owners, is fatal to A. ct, is entirely
tenable, and is fully supported by The
State vs.. Hipp.
4
GIN the other hand, opposing counsel
insist that the act is in conflict with 9TH
er provisions of the Constitution than
the clause prohibiting license. But the
view have taken of the cases relieves
me from the consideration of any those
questions. Nor do [ find it necessary. or
even proper, to express an opinion as to
the wisdom of the constitutional prOvi-
sion prohibiting liquor lieense-as to
the prOpriety of change of the organic
law in that respect-as to the wisdom,
propriety, or justice of the act of 1888
| apart from the constitutional objection
ground that the act OF 1883 is, in its
| operation and effect, license law, and
+ hence in conflict with the Constitution,
/ n IA