The Stark County Democrat. [volume] (Canton, Ohio) 1833-1912, 1883-05-12

A LEADING lawyer in Springfield, Ohio,
states to a point in the Scott law that
seems to be very strong one. He first
fails to find the law license because
nOn-payment of the tax does not make
the selling illegal, but merely subjects
property to lien to be enforced. But
he makes this point:
Accurate definition is very valuable to
the solution of legal questions. Ii VT
nave a judicial definition of the WORD
license" as used i'll our Constitution
and can apply 1t as gauge or test tO
the law IN question the way Is clear.
rne Supreme Court of this State, in til,
case of the State of OHIO on the relation
of Daniel Roth vs.. Frederick Hipp (de
Gliding the Pond law i'll June, 1852,
gives us the first essential, definition.
Chtef Justice Okey said: "A license l.
4 permission granted by some competent
authority to do an act, which, without
such permission would be illegal" The
Court here followed definition oil
Judge Cooley of Michigan VINO III Young
uluOd VS.. Sexton 33 Mich, 4l0 said the
popular as we'll as the legal understand.
Jug of license was: "A permission to do
something which without the license
would not be allowable" This detinl.
zion has received the Endorsement OF
the highest courts of judicature in sew
-ral states. Our Supreme Court speak
ing through the Cher Justice: (rhe State
etc., vs.. HIT supra) has however supple
mented this definition by asserting thai
they (speaking of the provisions of the
Pond laW) iIupOse conditions precedent
10 the lawful prosecution of such bust
uess, Noncompliance with the statutes
renders its prosecution to any extent
wholly illegal, and hence the act falls
within the definition of the license Law
stated in the case to which have re-
ferred."
There is a clause in the second section
Of the act which may bring it within
the constitutional inhibition. The latter
part of that section Is as follows:
whoever shall engage or continue
| in the business Aforesaid of selling hQ-
| uOTs in or upon land or premises mol
| owned by him and without the written
consent of the owner, they shall be hello
] guilty of a misdemeanOT and liable t.
Oe indicted and punished by fine not
exceeding one hundred dollars, nor less
Unan twenty-five dollars, or by lmprisOn-
ment ia the county jail not exceeding
| zen DAYS or both at the discretion of the
court, and each days continuance upon
4nch premises shall be an additional
offense." .....
Is Lnls simply penal provision of the
statute to provide a mode of collecting
| the JaxP Does it not impose conditions
precedent to the lawful prosecution of
| the business? And does not non COM
| pliance Herewith make the business
| unlawfulp Before any dealer can legally
engage in the traffic of intoxicating z
liquors he must first purchase the LAND
OF premises" upon or in which he does
Il hY,af ha m 10 Urif 70
consent of the owner thereof, otherwise
the business is illegal-when he per.
forms the conditions required the busi-
ness becomes legal. As Okey, c. j., in
| mis- reasoning in the Pond case, sagely
remarked: "The quality of thing Is
not altered by changing its name" So
it matters not whether the price paid
| for privilege or permission to do an
act otherwise illegal, is money OF the
| performance of certain stipulated con-
Il IlitiOns. Under the Scott law the traffic
| is unlawful as far as the payment of any
assessment or tax is concerned, but un-
lawful unless the conditions precedent
Irequired are complied with.
Therefore the legal effect of this sec
tiOn by this application of the rule re-
cited is to permit those who comply
with its. provisions Il. g. first become the
owner of the land or premises, or obtain
the written consent of the Owner) to
traffic in intoxicating liquors to the ex-
clusiOn of all other dealers who do not.
To quote again from the decision In
the Pond case, as applicable here:
This statute in its title Is an act to
provide against evils resulting from the
traffic. In form it requires the payment
of money and the execution of a bond,
and provides that certain consequences
shall follow in case dealer in liquors
fails to comply with the act. In sub
stance it is as to all dealers who fail to
comply with it's requirements, string
ent, prOhibitOry liquor law, and as to
all dealers who do so comply, 1t grants
the privilege in the future to deal in
such to the extent not prohibited by pre-
ViOusly existing laws"
This suggestion has force, because it
Is based upon the authoritative declara-
tions of the Supreme Court, in c0nstru
ing a similar law with reference to con
stitntiOnaI limitations. The weakness
OF the Pond law is repeated in the Scott
bill. The bond in the former is the lien
on real estate in the latter, both having
the same object in view, to secure the
payment Of the tax. There are other
defects in the law which will require
judicial construction, but which may
not affect its validity.
The above is in the shape Of commu-
nieatiOn to the Springfield Republic,
signed M$*N, whom the editor refers to
as a leading attorney. The writer is
probably Oscar 7. Martin, one of Spring.
fields good lawyers, and. by thsway, q
- hok RnnuhIfaon