Error to circuit court, Cuyahoga county. George Hoadley, E. W. Kittredge, W. W. Boynton, and Foran & Dawley, for plaintiffs in error. Hadden, Dissette & Collister, for defendant in error.

MINSHALL, J. The plaintiffs are persons engaged in the traffic in intoxicating liquors, and brought an action in the common pleas of Cuyahoga county, on behalf of themselves and others engaged in the same business, to restrain the treasurer of the county from collecting the assessments, etc., made upon the business of each of them, as traffickers in intoxicating liquors, under the act of the general assembly passed May 14, 1886. entitled "An act providing against the evils resulting from the traffic in intoxicating liquors." 83 Ohio L. 157. A temporary injunction having been allowed, an answer was filed, and motion made to dissolve the injunction. The motion was sustained, on the ground that the petition did not entitle the plaintiffs to the relief asked, and the same was dismissed by the court. On a proceeding in error, the judgment was affirmed in the circuit court, and the object of this proceeding is to obtain a reversal of the judgment of the latter as well as of the former court.

All the questions raised and argued arise upon the validity of the act above referred to, known as the "Dow Law."

No question is made as to the right of the plaintiffs, separately engaged in the traffic in intoxicating liquors, to unite in maintaining this action. Each and all of them have a common and general interest in the question as to the validity of the law, so far as it imposes, or seeks to impose, a tax on the business in which each is engaged. But as to how this can be true when, as to some of the plaintiffs, it is averred that they are exclusively engaged in the traffic in vinous liquors, and have been returned by the assessors as trafficking in spirituous liquors, is not apparent. If it is intended by the averment to claim that such persons are not concluded by the return of the assessor as to their business, a question is made that is not common to the other plaintiffs. If the law be valid, relief in this regard should be sought in separate actions. It cannot be had in this action, for a further reason that their suit is accompanied with no offer to pay that which would be due from each as a person trafficking in vinous liquors. Nor does it appear from the averments of the petition, or otherwise, which, if any, of the plaintiffs trafficking exclusively in vinous liquors have been wrongfully returned by the assessors as trafficking in spirituous liquors.

The general grounds upon which the invalidity of this law is asserted are (1) that it grants a license to traffic in intoxicating liquors; (2) that it is, in substance, a tax on property, not levied by uniform rule according to its true value in money; (3) that the summary method which it prescribes for the assessment and collection of the tax is not due process of law; and (4) that it is a law of a general nature, not uniform in its operation throughout the state. These grounds, with their respective subsidiary questions, will be considered in the order stated.

1. The competence of the general assembly to provide against the evils resulting from the traffic in intoxicating liquors by a tax levied upon the business, without infringing the provision of the constitution that no license to traffic therein shall be granted, was recognized in State v. Hipp, 38 Ohio St. 199; was directly affirmed in State v. Frame, 39 Ohio St. 399; and was not denied in the subsequent cases of Butzman v. Whitbeck, 42 Ohio St. 223, King v. Cappellar, Id. 218, and State v. Sinks, Id. 345; and therefore the question in its simple form, as to whether a tax upon the business constitutes a license to traffic in intoxicating liquors, might be regarded as settled by the previous decisions of the court without further consideration.

But, as it is still insisted in argument that such a tax is in the nature of a license, and cannot be imposed without infringing the provision of the con

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stitution against licensing the traffic, we do not hesitate to re-examine the ground upon which the opposite view has been rested; for, if it be clear that a tax upon the traffic in intoxicating liquors is a license, then it would be our duty to declare the law unconstitutional. The objection, however, to the tax upon this ground comes with an ill favor from those engaged in the traffic, as it has the appearance of a reproof of measures designed as a restraint upon the abuses of the traffic in which they are engaged, unless it be assumed that this provision in the constitition was inserted as a protection to the liquor interests of the state, rather then to promote the temperance and sobriety of its citizens. Such a claim has not, we believe, as yet been made, and, if made, would not be borne out by the history of its adoption; having, when before the people, been zealously urged by the friends of temperance, and as zealously opposed by those engaged in the liquor traffic of the day.

The real significance of this provision in the constitution has been a source of no little doubt and controversy. Many, if not a majority, of the people of the state, supposed that, if no license were granted to traffic in intoxicating liquors, the traffic would be illegal, and perish for the want of protection, and by the infliction of such penalties as might be imposed under laws made to regulate the evils resulting from the traffic. And it may be observed that the practice that had prevailed under laws enacted at an early day, and continued in force to the adoption of the constitution of 1851, of licensing the traffic in liquors as a beverage, had educated the people to suppose that, without a license, such traffic could not be carried on in the forms it had been usual to license it. See the history of the legislation on the subject in the state by Judge WEST in his argument in State v. Hipp, 38 Ohio St. 206, and also the able dissenting opinion of JOHNSON, J., Id. 234. If this is a correct interpretation of the provision, it has proved a great delusion; for its practical working has been to make the traffic, in a measure, free. Laws enacted for the regulation of the traffic have not been enforced, have become in a measure obsolete, and the traffic and its abuses have grown to such proportions as to justly alarm all who reflect upon the interests of the state and society.

There seems, however, little difference of opinion as to the definition of a license. It is defined, in its general sense, by OKEY, J., in State v. Hipp, as "permission granted by some competent authority to do an act which, without such permission, would be illegal." This agrees, in substance, with the definition as given in a number of other cases. Home Ins. Co. v. Augusta, 50 Ga. 530; Pleuler v. State, 11 Neb. 547; S. C. 10 N. W. Rep. 481. In Chilvers v. People, 11 Mich. 43, it is said: "The object of a license is to confer a right that does not exist without a license." "The popular understanding of the word license' undoubtedly is," says COOLEY, J., in Youngblood v. Sexton, 32 Mich, 406, "a permission to do something which without the license would not be allowed;" and he adds: "This is also the legal meaning." In State v. Frame, 39 Ohio St. 399, the language employed by MCILVAINE, J., is somewhat different, but the definition is, in substance, the same. He says: "A license is essentially the granting of a special privilege to one or more persons not enjoyed by citizens generally, or, at least, not enjoyed by a class of citizens to which the licensee belongs. A common right is not the creation of a license."

The result of the definitions that have been given of a license as implied in its etymology, is in conformity with the sense in which the word is ordinarily used, and may be regarded as strictly accurate in all respects. That is permitted that cannot be done without permission; and to say a person is permitted-licensed-to do what he may lawfully do without permission, is a misuse of words. Hence, unless it can be shown that a simple tax on the traffic enlarges the privileges of those engaged in it, or confers a right that did not previously exist, there is no ground for saying that the tax is a license of the business. It would not be claimed that a tax upon the property employed in

the business, as the fixtures and stock in trade, is a license to carry it on. And yet a tax upon the business itself is no more the granting of a permission to engage in it than is the levying of a tax upon the property employed in the business. In either case, if the tax is not paid, the property of the owner liable to the tax may be distrained by the state, and sold to satisfy it. The distinction between the tax upon a business, and what might be termed a license, is that the former is enacted by reason of the fact that the business is carried on, and the latter is exacted as a condition precedent to the right to carry it on. In the one case the individual may rightfully engage in and carry on the business without paying the tax; in the other he cannot. This seems to be the distinction upon which the case of State v. Hipp was decided. See opinion by OKEY, C. J., 38 Ohio St. 226-229; also of MCILVAINE, J., in State v. Frame, 39 Ohio St. 412.

A simple tax upon the traffic does no violence to the principle upon which the clause inhibiting a license was inserted in the constitution. This inhibition certainly arose from a sentiment in the minds of the people that the traffic was wrong, and should not be encouraged,-not from the persuasion that it was right, and of such utility that it would be impolitic to impede it by any restrictions upon the liberty of pursuing it. By the imposition of a tax there is no sanction given of the propriety or the utility of the business taxed; in the case of a license there is. The legislature finds a business productive of evils to the state and society, in which many persons are engaged, and imposes a tax upon it. In so doing it neither directly approves nor disapproves of the business itself. It may, however, imply a good deal. The imposition of a tax upon the owner of a dog implies, if it implies anything beyond the purpose to protect the husbandry of sheep, a disapproval of the business of keeping a dog. It is not intended to dignify the business. And the same is true of a tax imposed upon the liquor traffic.

It is further argued that the provisions of the second section, whereby the assessment is made to attach as a lien upon the real estate in which the business is carried on, has the effect of a license. The argument is that "none but the owners of real estate can carry on the traffic, unless the landless men can obtain the consent of the land-owner that his real estate shall be bound for the payment of the assessment provided for by the act." This is fallacious. The right to determine who shall have leases and who not, and the terms thereof, is not prescribed by the statute. Every person has the right, under the statute, to rent property, and engage in the business, if he desires It is true that, if one who is not the owner of real estate desires to engage in the business, he will have either to purchase or to rent it; but this would be so whether the law did or did not impose a tax upon the business. It is not the law that creates the impediment to the individual in this regard, but his own circumstances. The law does not create the necessity for a place in which to do business. This is a physical one. It does not require that it shall be carried on in leased premises. Whether carried on by the owner in fee or a lessee, the business is alike lawful; and all are as free to acquire real estate in any of the recognized modes as they were before the enactment of the law. The law, in any of these particulars, is silent. It, by section 1, simply imposes an annual assessment of $200 upon the business of every person trafficking in intoxicating liquors, and for each place where such business is carried on by him; and an assessment of $100 where the traffic continues through the year exclusively in malt or vinous liquors, or both; and, by section 2, provides that the assessment shall attach and operate as a lien upon the real property on and in which the business is conducted, as of the fourth Monday of May each year, and shall be paid at the times provided by law for the payment of taxes on real or personal property. If this law in any way impedes the purpose of any person to engage in the liquor traffic, it arises from extraneous circumstances, and not the law. But, if it was otherwise,

would that make it a license law? As shown, the nature of a license is to create a right that did not exist, and could not exist, without the license. An impediment is of the opposite effect. It confers no right that did not exist; it simply impedes or burdens an existing one. It is within the power of the legislature to provide against the evils resulting from the traffic in liquor. Impediments to the transaction of the business may be one of the most efficient modes of accomplishing this; and, where they arise from laws general in terms, they cannot be characterized as a license of the traffic, though some may be impeded more than others.

It is further argued that the law is a license itself. It is true that under this law liquor may be sold to be drank on the premises where sold. In this respect a part of the traffic has been legalized that was illegal before. This, however, was not accomplished by the levying of a tax on the traffic, but by the repeal of a law that made such sales illegal. It was competent to the legislature to have repealed this law without authorizing the levy of a tax. If this had been done, would it be claimed that the repeal was a license, within the meaning of section 18 of the schedule? If such construction were allowed, then any statute restraining the liquor traffic in any form, when once enacted, would, by force of the constitution, become as immutable as were the laws of the Medes and Persians. So absurd a position would not, we suppose, be taken by any one; for it must be conceded that, however unwise it would be to do so, it is competent to the legislature to repeal every statute that has been enacted regulating the traffic; and it would then be as free as the traffic in anything else. Now, if this were done, and the legislature should then impose a tax upon the business, what new privilege would thereby be conferred on the traffic? In what way would the payment of the tax be a license to do what the individual had an unbridled license to do before he paid it? It is, then, apparent that, to avoid the most palpable absurdities, a meaning must be attributed to the term "license" as used in the constitution that is other and different from what is imputed to it in the argument of counsel,-that the tax imposed upon the liquor traffic by this statute is a license to engage in

the business.

2. The next question that arises is as to the power of the general assembly to impose a tax upon the business of trafficking in intoxicating liquors. It matters not what propriety in the use of terms may require us to designate the power under which this tax has been imposed by the legislature upon this business, if it can reasonably be shown to exist, that should restrain any court from declaring the statute inconstitutional; nay, more, if it were doubtful, a court should refrain from so doing. The making of laws is committed to the general assembly. It is the judge of the wisdom and policy of all its enactments, and no court has the right to overrule its judgment, even as to the extent of its own powers, unless it has clearly and beyond doubt exceeded the legislative functions with which it is invested by the constitution. This is so generally recognized as true as to be regarded as axiomatic upon all questions as to the power of a legislature to enact a given law.

In considering the question as to the validity of this tax, it is not necessary to affirm that the power exists to levy a tax upon any and every business that is carried on in the state by any of its citizens, without regard for the purpose for which it is laid. This is an assessment in the form and nature of a tax upon the business of trafficking in intoxicating liquors carried on by any person in the state; and is there power in the general assembly to levy a tax upon this business? is the question. We think, without doubt, there is. As observed, it is not material as to what the power should be called. But, as we think, it may properly be termed a police power, recognized by the constitution as within the legislative authority conferred by that instrument upon the general assembly over the business of trafficking in intoxicating liquors. Whatever limitations may exist upon the power of the general as

sembly to levy taxes upon vocations in general, the framers seem to have removed any as to this traffic. With the exception of lotteries, that are prohibited, it is the only business of the citizen that they thought proper or necessary to designate as a scource of evils; and, in so doing, they specifically empower the general assembly to regulate these evils. No method of accomplishing this is designated, and the power is therefore left to be exercised by the general assembly in its plenitude, as the legislature of the people, subject only to such express limitations as are imposed in that instrument. What are they? If any other than the clause in section 18 of the schedule, it must be that provision of the constitution (section 2, art. 12) requiring all taxation on property to be by a uniform rule, according to its true value in money. Other objections as to the existence of the power do not, as we shall presently show, arise out of the terms of the constitution. If this provision applies, it must be because this assessment is a tax upon property, and that no other form of taxation is permissible under the constitution. It may be that an exhaustive analysis would show that any tax, whether per capita, on occupations, or on the valuation of property, is in fact a tax upon property itself. But these distinctions existed when the constitution was adopted, and are well recognized. Cooley, Const. Lim. 496. They are in fact recognized in the constitution. As a possible mode of taxation, a poll-tax is prohibited. Section 1, art. 12. But if it is a tax upon property, why should it be expressly prohibited? If it is such a tax, it is included in the terms of section 2, art. 12, and could not be levied without violating its requirements. An assessment is also a tax on property, levied according to benefits conferred on the property, and has been recognized as a permissible mode of raising money for the construction of roads and ditches. The general assembly is empowered, by section 6, art. 13, to restrict the use of assessments by cities and villages so as to prevent the abuse of the power. But in Reeves v. Treasurer of Wood Co., 8 Ohio St. 333, it was held that assessments are not embraced in the word "taxing," as used in the second section of the twelfth article of the constitution, and that the power to authorize them is comprehended in the general grant of legislative power. They had been in use as a well-recognized mode of raising money for such purposes, before the present constitution was adopted, and were not abrogated by it. Labor upon the highways is a form of taxation. Buroughs, Tax'n, § 5. Tolls upon the persons or property making use of the works of public improvement owned and controlled by the state are also a species of tax. Cooley, Const. Lim. 496. Tolls have been constantly levied and collected upon such improvements in this state while under its control, and labor upon the highways has been required and performed, without question, since, as before, the present constitution was adopted. A tax on occupations was not unknown to the people of the state. They had been imposed and sustained by the supreme court in bank. State v. Gazlay, 5 Ohio, 15.

In an instrument framed with such care as the constitution of 1851, to limit and define the powers of government, especially that of taxation, would it not have been strange that its authors should have been careful to prohibit, in express terms, one of two well-known forms of its exercise if their intention had been to prohibit both? Such intention cannot be inferred from the language used in section 2, art. 12, as a poll-tax is as much a tax on property as it is a tax upon vocations. But neither is within the meaning of that section; and, if the purpose had been to abrogate the power to levy a tax on the business of the citizen, we see no reason why it would not have been done by the use of express language, as was done in the case of a poll-tax. It is not intended to decide that the power exists to levy a tax on a business or a vocation for any purpose of revenue, independent of other considerations. Such question is not presented in this case. In this country the adoption of a written constitution by the people of a state is rather to define and limit an