count of the statutory lien, the owner who has executed a lease after the passage of the statute has himself invited lien.

The able and learned opinion pronounced by MINSHALL, J., in Adler v. Whitbeck, ante, 672, decided at the present term, renders it unnecessary to consider at any length the direct bearing of section 2, art. 12, of the constitution, on the assessment upon the business of trafficking in intoxicating liquors, which is made to operate as a lien upon the real property. It is well understood that this section is not a grant of power, but a regulation or limitation, rather, of the taxing power comprised in the general legislative power of the state vested in the general assembly. While, however, it furnishes the governing principle for taxes for general revenue, by providing that laws shall be passed taxing, by a uniform rule, all moneys, credits, investments in bonds, stocks, jointstock companies, or otherwise, and also all real and personal property, according to its true value in money, it does not cover the whole domain of taxation. In the taxation of property for general revenue, equality and uniformity must constitute the guiding rule; but it was not intended to so impair the ability of the legislature to promote the public good as to preclude it from all modes of raising money, by taxation or assessment, not in strict conformity with the second section of the twelfth article. In raising general revenue to meet the necessities of government, certain designated kinds of property are required to be taxed by a certain rule, but, subject to the limitations contained in the constitution, the power to impose taxes reaches to every trade or occupation, to every subject of industry, use, or enjoyment, and to any of the modes known and practiced prior to the constitution of 1851. Cooley, Const. Lim. 479; W. U. Tel. Co. v. Mayer, 28 Ohio St. 521.

Accordingly, the general assembly, while observing the required rule of uniformity in taxing the kinds of property designated, has frequently, by virtue of the general legislative power granted it by the constitution, exercised a supervisory power over various branches of business, and imposed upon them assessments for exceptional and special purposes. Among other examples of this which might be adduced, is the assessment upon the business of gas companies and manufactures of mineral or petroleum oil. In Cincinnati Gas Co. v. State, 18 Ohio St. 237, it was held that a pro rata assessment, according to valuation, on the property of the gas companies of the state, to pay the salary of the state inspector and other expenses of his office, was not in violation of the constitutional provision for taxing property according to a uniform rule. Acting upon this principle, the legislature has authorized the state inspector of oils to demand and receive, from the owner or party for whom he performs the inspection, a certain sum for every package or cask, and all fees so accruing are made a lien on the oil inspected. Indeed, a denial to the general assembly of the right to impose an assessment, as prescribed in the Dow law, would be inconsistent with the raising of moneys from licenses of any kind, inspection charges, or other kindred methods.

But not only had the general assembly authority to make this assessment upon the liquor traffic, because invested with all the legislative powers of the state, but, by the schedule to the constitution, it is permitted, and in duty bound, we think, to use any or all of these powers, not expressly or by necessary implication prohibited, in providing against the evils resulting from such traffic. And if, in the exercise of its judgment and discretion, the legislature sees fit to impose a burden on the traffic, in the shape of a tax, for the purpose of diminishing those evils, it does not come within the province of this court to review its action in selecting such means.

There is another branch of this case which seems so free from doubt that there would be no call for its consideration were it not that it finds a place among the issues set forth in the record. We refer to the contention that the lien is illegal, because the assessment on the business of the liquor traffic is in

violation of section 18 of the schedule to the constitution, which provides that "no license to traffic in intoxicating liquors shall hereafter be granted in this state." The act of April 5, 1882, known as the "Pond Law," was declared by a majority of the court in State v. Hipp, 38 Ohio St. 199, to be, in its operation and effect, a license within the inhibition of the constitution, so far as it required every person engaged in the traffic in intoxicating liquors to pay a specified sum of money annually, and execute a bond, with the further requirement that the person who engaged in such traffic without having executed the bond, or after his bond was adjudged forfeited, should be deemed guilty of a misdemeanor. And the act of April 17, 1883, commonly called the "Scott Law," was also held by a majority of the court in Butzman v. Whitbeck, 42 Ohio St. 223, to be, in effect, a license law, so far as it enacted that whoever shall engage or continue in such traffic upon land or premises not owned by him, without the written consent of the owner thereof, should be held guilty of a misdemeanor, and liable to be punished by fine or imprisonment, or both, at the discretion of the court. Neither of these characteristic features of the two preceding statutes is embodied in the Dow law, and, so far as yet discovered, it went from the legislature with none of the objectionable features of a license.

A "license," in law, may be simply and well defined as a permission; but it is a permission given, of some competent authority, to do an act which without the permission would not be legal. Bouv. Law Dict.; Youngblood v. Sexton, 32 Mich. 406. The Dow law does not hold out permission to engage in the traffic in intoxicating liquors, nor stamp it with illegality, nor prescribe a condition precedent upon which one may have the right to carry on such business. It repeals that portion of section 6941 of the Revised Statutes which forbids the sale of intoxicating liquors to be drank in or upon the building or premises where sold, and, if one chooses to engage in the traffic, he must do so subject to the burden which is afterwards imposed upon his business. If he fails to pay the assessment thereon, his business does not thereby become illegal; and although his goods and chattels may, by his default, become liable to be levied on and sold, the property of dealers in other commodities is also liable to be seized and sold for non-payment of personal taxes. He enters upon the traffic in intoxicating liquors without a license, and, when found in the business, the law suffers it to continue, but charged with the burden of a tax.

The distinction is clearly recognized between a license granted or required as a condition precedent before a certain thing can be done, and a tax assessed on a business which one is authorized to engage in. Home Ins. Co. v. Augusta, 50 Ga. 530. A license being of the nature of a privilege, it would be a strange incongruity to grant to one the privilege of bearing the burden of a tax. A tax which may be resorted to for the purpose of restraining what is opposed to the public interests would hardly be called a license to do that which is sought to be restrained. The two things are entirely distinct in their characteristics. The license may exist without the imposition of a tax, and the tax may be imposed without the granting of a license.

In the constitution of Michigan it is provided by section 47, art. 4, almost identically as in our own, that "the legislature shall not pass any act authorizing the grant of license for the sale of ardent spirits or other intoxicating liquors." How far a tax on the business might be regarded as a license, and so an infringement of this provision of the constitution, came under the examination of that eminent jurist, Mr. Justice COOLEY, in Youngblood v. Sexton, supra. The whole field of legal thought and investigation on the subject was covered by that leading case, and its reasonings and conclusions commend themselves to the enlightened judgment of every court. The language approvingly cited in State v. Hipp, supra, we here adopt. "The object of a license," says Mr. Justice MANNING, "is to confer a right that does v.9N.E.no.8-44

not exist without a license. Chilvers v. People, 11 Mich. 43, 49. Within this definition, a mere tax upon the traffic cannot be a license of the traffic, unless the tax confers some right to carry on the traffic which otherwise would not have existed. We do not understand that such is the case here. The very act which imposed this tax repealed the previous law which forbade the traffic, and declared it illegal. The trade then became lawful, whether taxed or not; and this law, in imposing the tax, did not declare the trade illegal in case the tax was not paid. So far as we can perceive, a failure to pay the tax no more renders the trade illegal than would a like failure of a farmer to pay the tax on his farm render its cultivation illegal. The state has imposed the tax in each case, and made such provision as has been deemed needful to insure its payment; but it has not seen fit to make the failure to pay a forfeiture of the right to pursue the calling. If the tax is paid, the traffic is lawful; but if not paid, the traffic is equally lawful. There is consequently nothing in the case that appears to be in the nature of a license. The state has provided for the taxation of a business which was found in existence, and the carrying on of which it no longer prohibits; and that is all." We can add nothing to these words, and we deem it unnecessary to offer any further considerations upon this branch of the case before us. The judgment of the circuit court, we are of opinion, should be affirmed. Judgment accordingly.

OWEN, C. J., and FOLLETT, J., dissenting.

(109 Ind. 26)

DUNCAN v. SHENK.

(Supreme Court of Indiana. January 4, 1887.) ELECTIONS-CHANGING VOTING PLACES-TOWNSHIP BOUNDARIES.

A change in the boundaries of a township, made by the board of commissioners under sections 4686 and 5987, Rev. St. Ind. 1881, does not disfranchise any of the voters, although it changes the voting places, and although the order changing the boundaries of the township was not made at the June session of the board of com

missioners.

Appeal from circuit court, Howard county.

C. N. Pollard and Bell & Purdum, for appellant. Blacklidge & Bro., B. C. H. Moore, and O'Brien & Shirley, for appellee.

NIBLACK, J. This was a proceeding before the board of commissioners of the county of Howard, to contest the validity of the election of a township trustee. John E. Duncan, the contestor, claiming to be a competent elector, and entitled to vote at an election for township trustee, complained that, at the June term, 1884, of the said board of commissioners of the county of Howard, said board established two precincts, known as No. 1 and No. 2, respectively, in the township of Taylor, in said county, giving the boundaries of each of such precincts; that on the sixteenth day of December, 1885, said board, by an order entered for that purpose, unlawfully assumed to change the boundaries of said precincts, specifically describing such boundaries as so changed, by which it was made to appear that the second precinct had been enlarged by the inclusion of territory not originally embraced in either one of such precincts; that on the fifth day of April, 1886, an election was held in said township of Taylor, for the purpose, among other things, of electing a trustee for that township; that he, the contestor, was a candidate for said office of township trustee, and was voted for as such at both precincts of said township, receiving in all 202 legal votes for that office; that Daniel Shenk, the contestee, was also a candidate at the same election and for the same office, and was likewise voted for at both precincts, receiving therefor only in the aggregate 183 votes, and that the whole number of votes cast at said election

was 460; that, by reason of the pretended and unlawful changes in the boundaries of the precincts in question, 75 illegal votes were cast and counted at said election for township trustee; that, of the number of illegal votes so cast and counted, he, the contestor, received 25, and the contestee received the remaining 50, thus giving him an apparent majority of the votes cast at such election; that, upon this apparent majority, the contestee was thereafter declared to have been elected trustee of said township of Taylor. The proceedings had upon this complaint before the board of commissioners resulted in a judgment in favor of the contestee.

Upon an appeal to the circuit court, and after a demurrer to the complaint had been overruled, the contestee answered that the only change made in the boundaries of the election precincts referred to in the complaint resulted from a change in the boundary line between the townships of Taylor and Union of said county of Howard; that, on said sixteenth day of December, 1885, the board of commissioners of said county of Howard, on the petition of divers persons interested, ordered the boundary line between said townships to be changed, by taking a strip of six sections of land from Union township, and attaching it to Taylor township; that said strip of land was at the same time, by a like order of said board, added to and made a part of precinct No. 2 of said latter township, of which notice was duly given by publication in a proper newspaper more than one month prior to said fifth day of April, 1886. This answer was held to be sufficient upon demurrer, and the contestor declining to plead further, final judgment was rendered against him for want of a reply. Errors and cross-errors are both assigned upon the proceedings below. The principal question intended to be presented by this appeal, and which we will assume is fairly presented, is, what effect, if any, did the change made in the boundaries and territory of precinct No. 2 have upon the legality of the election held in April, 1886, at which the contestor and contestee were voted for as candidates for township trustee? The contestor claims that the addition of the six sections of land to precinct No. 2, at the time it was made, was in contravention of the provisions of section 4687, Rev. St. 1881, and was, for that reason, null and void; that, in consequence, none of the persons residing upon any of the territory so unlawfully added to precinct No. 2 were entitled to vote in such precinct; that 75 of the votes given at the election in question were cast by persons residing upon such unlawfully added territory, and that hence such 75 votes were illegal votes.

Section 4687, Rev. St. 1881, referred to, provides that the county commissioners of any county may change the boundaries of any precinct within such county, or divide any precinct into two or more precincts, or consolidate two or more precincts into one, or change any place of holding elections, whenever public convenience or the public good may require it: provided, that no such change, division, or consolidation shall be made after the June term of said commissioners, next preceding any election; and provided, further, that no such change, division, or consolidation shall be valid without giving due notice, at least one month before any election, either by publication in the newspaper having the largest circulation in such county, or by posters put up in four of the most public places in each precinct. This section must be construed in connection with other sections of the statute bearing on the same subject to which it relates.

Section 5987, Rev. St. 1881, directs that the board of commissioners in each county in this state may lay off and divide the same into any number of townships that the convenience of citizens may require, accurately defining the boundaries thereof, and may, from time to time, make such alterations in the number, names, and boundaries of such townships as they may deem proper. Our election laws were enacted upon the evident theory that every qualified voter of the state is entitled to vote at some precinct or voting place at every election, except when restrained by some provision of our state consti

tution. This is well illustrated by the provisions of section 4686, Rev. St. 1881, which requires the commissioners of the several counties to designate suitable places for holding elections in each township, and to define precincts or voting districts by definite boundaries, and which further provides that, where only one place of voting in a township is designated, such township shall constitute a precinct or voting district, and provides other regulations for the convenience of voters.

The fair inference from all the provisions of the election laws having any relation to the subject is that primarily each township constitutes one election precinct, with the power resting in the proper board of commissioners to change the boundaries of such township at any time, and that, where a township is divided into two or more election precincts, the precincts are mere subdivisions of such township, intended to embrace, and presumably embracing, all the territory within its limits. It is also a well-recognized principle of statutory construction that election laws are to be liberally construed when necessary to reach a substantially correct result; and to that end their provisions will, to every reasonable extent, be treated as directory rather than mandatory.

McCrary on the American Law of Elections, at section 200, states some general principles, which ought to be observed in construing the election laws of the several states, and then concludes as follows: "If we keep in view these general principles, and bear in mind that irregularities are generally to be disregarded, unless the statute expressly declares that they shall be fatal to the election, or unless they are such in themselves as to change or render doubtful the result, we shall find no great difficulty in determining each case as it arises under the various statutes of the several states." See, also, City of Lafayette v. State, 69 Ind. 218; West v. Ross, 53 Mo. 350; Jones v. State, 1 Kan. 273; Gilleland v. Schuyler, 9 Kan. 569.

Having in view the right of every qualified voter of the state to cast his vote at some designated and appropriate voting place at every election held in the township or precinct in which he may reside, we feel it to be our duty to hold that the provisions of section 4687, above set out, do not apply to cases like the one before us, in which the readjustment of an election precinct becomes a necessity on account of a change in the boundary line between townships. Any other construction would enable the boards of commissioners of the several counties of the state to practically disfranchise large bodies of voters by, inadvertently or otherwise, changing the boundaries of townships at other times than at the June terms of such boards. The judgment is affirmed, with costs.

(Supreme Court of Indiana. January 4, 1887.)

1. ELECTIONS-LIEUTENANT GOVERNOR OF INDIANA-INJUNCTION.

Under the provisions of the constitution and statutes of Indiana, certified copies of the returns of the votes cast for lieutenant governor are required to be transmitted to the speaker of the house of representatives, in the care of the secretary of state, and the courts have no authority to stop, by injunction, these certified returns in the hands of the secretary of state, as he is the mere custodian thereof, and is bound by positive law to deliver them to the speaker of the house of representatives, whose duty it is to open them in the presence of both houses of the general assembly. 2. INJUNCTION-JURISDICTION-LEGISLATIVE DUTY.

Jurisdiction to issue an injunction to restrain the discharge of legislative duties cannot be conferred by consent of a public officer.

Appeal from circuit court, Marion county.

David E. Turpie, Jason Brown, and Gordon & Gordon, for appellants. Lieut. Gov. Manson's acceptance of the collectorship, by its own force, created a vacancy in the office of lieutenant governor. State v. McClinton,