author: McIlvaine, J. Okey, J.

text:
    The State ex rel. v. Frame, Auditor, and Samuel Benner v. Levi F. Bauder et al.

    1. The statute of April 17,1883, entitled, “ an act further to provide against evils resulting from the traffic m intoxicating liquors,” authorizing annual assessments upon the business of trafficking in intoxicating liquors, is a valid and constitutional enactment.
    2. The provisions of the second section of the statute do not operate where the real property, on and in which the business is conducted by a tenant, is held by such tenant under a lease for a term executed before the passage of the(statute.
    In mandamus.
    Error to the Court of Common Pleas of Cuyahoga county. Reserved in the District Court.
    On April 17, 1883, the general assembly passed an act, commonly known as the Scott law, of which the following is a copy :
    “ An act further providing against the evils resulting from the traffic in intoxicating liquors.
    “ Section 1. Be it enacted by the General Assembly of the State of Ohio, That upon the business of trafficking in intoxicating liquors there shall be assessed, yearly, and shall be paid into the county treasury, by every person engaged therein as hereinafter provided, and for each place where such business is carried on, by or for such person, the sum of two hundred dollars.
    “ Provided, if such business continues' through the year, to wit: from the second Monday of April, exclusively in the trafficking in malt or vinous liquors, or both, such assessment shall be but one-half the foregoing sum.
    ' “ Sec. 2. That said assessments, together with any increase thereof, as penalty thereon, shall attach and operate as a lien upon the real property on and in which such business is conducted, as of the fourth Monday of April, each year, and shall be paid on or before June 20, following: Provided, where any such business .shall be commenced in any year after said Monday, said assessment shall be proportionate in amount to the remainder of* the assessment year, except that it shall in no case be less than twenty-five dollars, and the same shall attach and operate as a lien, as aforesaid, at the date of, and be paid within ten days after such commencement; and that whoever shall engage or continue in the business aforesaid of selling intoxicating liquors in or upon land or premises, not owned by him and without the written consent of the owner thereof, shall be held guilty of a misdemeanor and liable to be indicted and punished by a fine not exceeding one hundred dollars nor less than twenty-five dollars, or by imprisonment in the county jail not exceeding ten days, or both, at the discretion of the court; and each day’s continuance upon such premises shall be an additioiral offense.
    “ Sec. 3. That every assessor shall return to the county auditor, with his other returns, a statement upon a blank to be furnished by such auditor for that purpose, as to every place within his jurisdiction where such business is conducted, showing the name of the person engaged therein, a brief and accurate description of the premises-where the same is conducted, and by -whom owned, and whether such business is confined exclusively to • traffic in malt or vinous liquors, or both; said statement shall be signed and verified before such assessor by such person. And if such person shall, on demand, refuse or fail to furnish the requisite information for such statement, or to sign or verify the same, such fact shall be returned by the assessor and thereupon such assessment upon his said business shall be three hundred and seventy-five dollars. And if any person having made return that his business is confined exclusively to malt or vinous liquors, or both, shall thereafter, during the assessment year, sell any other intoxicating liquors, the assessment upon his business shall thereby be increased by the sum of two hundred and fifty dollars. And if any assessment aforesaid shall not be paid when due, there shall be added a penalty thereto of twenty per centum, which shall be collected therewith.
    “Sec. 4. That the county auditor shall make and preserve duplicates of such assessments, alphabetically arranged, which shall show the amount and time of each assessment, by whom to be paid, and the premises whereon the same is a lien. And upon receiving satisfactory information of any such business liable to assessment, or increased assessment, as aforesaid, not returned by the' assessor, he shall forthwith enter the same upon such duplicate, and upon the county treasurer’s copy thereof. By the first Monday of June of each year, he shall make and deliver to the county treasurer a copy of such duplicate, charging him with the full amount of such assessments to be collected, and also with any additional assessments, or increased assessments and penalties.
    “Sec. 5. That the county treasurer shall collect and receipt for all assessments so returned to him. And if any assessment shall not be paid when due, he shall forthwith proceed as provided by section one thousand one hundred and four (1104) of the Revised Statutes, to enforce the lien for the same and penalty; and the provisions of said section and any other provisions of the law of this state relative to the collection of taxes or assessments, are hereby made applicable to the enforcement of such liens and the collection of such assessments and penalties. Said treasurer shall charge himself with all such assessments placed in his hands for collection, and shall account to said auditor for all penalties collected by him hereunder.
    “ Sec. G. The phrase ‘traffickingin intoxicating liquors,’ as used in this act, moans the buying or procuring, and selling of intoxicating liquors otherwise than upon prescriptions issued in good faith by reputable physicians in active practice or for exclusively known mechanical, pharmaceutical or sacramental purposes, but such phrase does not include the manufacturing of intoxicating liquors from the raw material, and the-sale thereof by the manufacturer of the same in quantities of one gallon or more at a.ny one time.
    “Sec. 7. That the revenues and fines resulting under the provisions of this act shall be distributed as follows, to wit: In every county three-fourths of the money paid as herein provided into the county treasury, on account of any business aforesaid carried on in any city or village therein, shall, upon the warrant of the county auditor, be paid into the treasury of such corporation, one-half to the credit of the police fund, and one-half to the credit of the general revenue fund thereof; provided, in corporations having no police fund, the entire three-fourths shall be passed to the credit of the general revenue fund thereof. The other fourth, together with all other revenues resulting hereunder in said county, shall be passed to the credit of the poor fund of such county.
    “ Sec. 8. Within ten days after the passage of this act each county auditor in this state is hereby directed to publish, by one insertion in some newspaper of general circulation in his county, a notice informing all persons engaged in the traffic in intoxicating liquors, that the first assessments imposed by this act will be due and payable on or before the twentieth day of June, a. d. 1883. The attorney general is charged with the duty of seeing that the requirements of this section are observed, and may enforce the same if necessary by proceedings in mandamus. The county commissioners of the respective counties may allow their county auditor a reasonable compensation for the discharge of the duties imposed upon him by this act.
    “ Sec. 9. That the sale of intoxicating liquors, whether distilled, malt, or vinous, upon the first day of the week, commonly called Sunday, except by a regular druggist, on thewritten prescription of a regular practicing physician for medical purposes only, is hereby declared to be unlawful, and all places where such intoxicating liquors are on other days sold or exposed for sale, except regular drug stores, shall on that day be closed, and whoever makes any such sale, or allows any such place to be open or remain open on that day shall be fined in any sum not exceeding one hundred dollars, and be imprisoned in the county jail or city prison not exceeding thirty days. In regular hotels and eating houses, the word ‘place’ herein used, shall be held to mean the room or part of room where such liquors are usually sold, or exposed for sale, and the keeping of such room or part of room securely closed shall be held, as to such hotels and eating houses, as a closing of the place within the meaning of this act; provided, that nothing in this section shall prevent the council of any municipal corporation in the state from regulating and controlling on such first day of the week, the sale of beer and native wine in such manner as may by ordinance be provided. That the ‘ act to amend section 6944 of the Revised Statutes of Ohio, as amended April 3, 1881,’ passed April 15, 1882, be and the same is hereby repealed. And any municipal corporation shall have full power to regulate, restrain, and prohibit ale, beer, and porter houses, and places of habitual resort for tippling and intemperance. But if any municipal corporation shall prohibit ale, beer, and porter houses within the limits of such corporation, a ratable proportion of the tax paid by the proprietors thereof for the unexpired portion of the year shall be returned to such proprietors.
    “ Sec. 10. Whoever sells intoxicating liquors to a minor, except on the written order of his parent, guardian, or family physician, or to a person intoxicated or in the habit of getting intoxicated, shall be fined not more than one hundred nor less than twenty-five dollars, and imprisoned not more than thirty or less than five days.
    “Sec. 11. Section 6941 of the Revised Statutes of Ohio is hereby repealed.
    “ Sec. 12. This act shall take effect on its passage, but no assessments thereunder shall occur previous to the fourth Monday of April, one thousand eight hundred and eighty-three.”
    “ Passed April 17, 1883.”
    On April 27, 1883, on the relation of the attorney general of the state, an alternative writ of mandamus was issued to A. J. Frame, auditor of Athens county, commanding him to publish a notice, as required by the 8th section of the statute, or show cause. The defendant answered, in substance, that the statute requiring the performance of the alleged duty, stated in the writ, is unconstitutional and void; wherefore he declines to perform it. The sufficiency of this answer is the main subject of inquiry in this ease.
    With the above is also submitted the case of Benner v. Bander et al., an action originally commenced in the court of common pleas of Cuyahoga county, by Benner against the auditor, treasurer, and commissioners of said county to restrain the assessment of the tax authorized by this statute; and against the trustees of the estate of Thomas Bolton, lessor of the plaintiff, to enjoin them from taking any steps, civil or criminal against the plaintiff, under the statute.
    Benner alleged in his petition, in substance, that he is engaged in the business of trafficking in intoxicating liquors, in said county, on real estate held by him under a lease executed by one Thomas Bolton, in his life time, for a term of fifty years, commencing on April 1, 1867. That by covenants in said lease he is bound to pay an annual rent and all taxes and assessments levied upon the premises during the term, and that a failure on his part to make such payments is a cause of forfeiture of the lease. That said Bolton is now dead, and by his last will vested the fee simple of said premises in said trustees, who are now the owners thereof, and who refuse to consent in writing to the continuance of said business on the premises, and threaten to prosecute him criminally if he continues in the business on the leased premises, and declare the lease forfeited, if he neglects to pay any assessment levied under the statute. That the defendants, the auditor and treasurer of the county, threaten to proceed, under the 4th and 5th sections of the statute, to levy and collect the taxes or assessments authorized by the statute. That the statute is unconstitutional and void, and that irreparable injury will result to him unless the defendants be restrained, &e.
    A general demurrer was filed to this petition which was sustained by the court of common pleas, and the petition dismissed. To reverse this judgment this petition in error was filed in the district court, which has been reserved for decision in this court.
    Against the validity of this statute, it is alleged that it is not within the scope of legislative power granted to the general assembly, and violates inhibitions imposed by the constitution upon the power of the general assembly.

      L). A. Hollingsworth, attorney general, West, Walker da West and Little d) Shearer, for the relator:
    As to the constitutionality of the act considered as a revenue measure. Baker v. City of Cincinnati, 11 Ohio St. 534; Lehman v. McBride, 15 Ohio St. 573;. Cincinnati Gas Light & Coke Co. v. State, 18 Ohio St. 237; State ex rel. Garnes v. McCann, 21 Ohio St. 198; Western Union Tel. Co. v. Mayer, 28 Ohio St. 521; Board of Education v. McLandsborough, 36 Ohio St. 227; 1 Ohio St. 77; 2 Ohio St. 607; 29 Ohio St. 102; 5 Ohio St. 250; 34 N. Y. 668; 16 How. 428; 7 Wall. 77; 15 Wall. 319; 41 N. Y. 140. The levying of an assessment or tax upon the business of trafficking in intoxicating liquors is not in conflict with any provision of art. 12. See authorities above cited, and Hill v. Higdon, 5 Ohio St. 243; Reeves v. Treasurer of Wood County, 8 Ohio St. 333 ; Thompson v. Same, 11 Ohio St. 678; Bank of Toledo v. Bond, 1 Ohio St. 622; Zanesville v. Richards, 5 Ohio St. 589; Exchange Bank v. Hines, 3 Ohio St. 1; State v. The Judges, 21 Ohio St. 678; Cooley on Taxation, 390-6; 16 Cal. 119; 43 Mo. 479; Burroughs on Taxation, 67; 42 Ga. 596; 26 Mich 325; 4 Texas 137; 28 Pa. St. 249; 36 Ill. 306; 32 N. Y. 426; 14 Grat. 422; 69 Pa. St. 81; Dillon Mu. Corp. 695; 4 N. Y. 419; 4 Peters, 563; 16 How. 428; Bohler v. Schnider, 49 Ga. 195. See State v. Hogden, 41 Vt. 139; State v. Volkman, 20 La. 585; Mifflintown v. Jacobs, 69 Pa. St. 151; Goepp v. Bethlehem, 28 Pa. St. 249 ; State v. Campbell, 38 Pa. St. 380; Louisville v. Hemmy, 1 Bush, 381; Covington v. Powell, 2 Met. (Ky.) 226; State v. Stephens, 4 Texas, 137; State v. Bock, 9 Texas, 369; Kitson v. Ann Arbor, 26 Mich. 325; State v. Welton, 55 Mo. 288; Block v. Jacksonville, 36 Ill. 306; Stroub v. Gordon, 27 Ark. 625; Wilcox v. Middlesex, 103 Mass. 544; Bennett v. Keith, 44 Penn. 291; Cooley on Taxation, 164; Hilliard’s Laws of Taxation, 161; Savannah v. Charlton, 36 Geo. 460; Sacramento v. Crocker, 16 Cal. 119; Coulson v. Harris, 43 Miss. 728; Burch v. Savannah, 42 Geo. 596.
    As to license, see State v. Hipp, 38 Ohio St. 199, and cases there cited.
    As to the lien of the tax, see Cooley on Taxation, 305; Slack v. Ray, 1 Cin. Law Jonr. No. 37; Helpburn v. Griswold, 8 Wall. 603; 68 Pa. St. 204; 23 Miss. 459; 9 Cush. 52; 4 Peters, 514; 13 Wallace, 70; Scoville v. Cleveland, 1 Ohio St. 127; Bowers v. Pomeroy, 21 Ohio St. 184; Sibila v. Bahney, 34 Ohio St. 399. See also 16 Wall. 314; 2 N.Y. 473; 18 La. 725; 41 Ind. 410; 5 Mich. 251; 5 Pick. 323; 18 Ark. 423. The general assembly has power to provide against the evils resulting from the traffic in intoxicating liquors. Miller v. State, 3 Ohio St. 486; Cooley on Taxation, 11, 396, 414; 70 Ill. 194; 5 Sawyer, 505; 16 Wall. 62; 34 N. Y. 666; 16 Pick. 514.

      Hoadly, Johnson & Colston, Paxton <& Warrington, Stallo v. Kittredge and G. EL. Bargar, for respondent:
    1. The act in question is unconstitutional, because it provides a license for the traffic in intoxicating liquors. Schedule 18 of the Constitution; State v. Hipp, 38 Ohio St. 199; County of San Mateo v. Railroad Co., 13 Peb. Rep. 722; Young-blood v. Sexton, 32 Mich. 406; Cooley on Taxation, 406-7; People v. Thurber, 13 Ill. 554; Walker v. Springfield, 94 Ill. 364; Walker v. New Orleans, 31 La. Ann. 828; Orton v. Brown, 35 Miss. 426; Roby v. West, 4 N. H. 285; Bracket v. Hoyt, 9 Fost. 264; Dillon v. Allen, 46 Iowa, 299; Burgin v. Dyer, 68 Maine, 143-4; Gregory v. Wilson, 7 N. J. Law, 315; Wald’s Pollock’s Contr. 260-262 ; Alexander v. O'Donnell, 12 Kans. 611; Dolson v. Hope, 7 Kans. 161; Bancroft v. Dumas, 21 Vt. 457; Elkins v. Parkhurst, 17 Vt. 105.
    2. The tax in question is not a provision against evils resulting from the traffic in intoxicating liquors. To restrain does not include the power to tax. Mays v. Cincinnati, 1 Ohio St. 272; Mayor of Columbia v. Beasely, 1 Humphreys, 240; Freeholders of Essex v. Barber, 2 Halstead, 67; State of Louisiana v. Chase, 33 La. Ann. 267; May v. Railroad Co., 32 N. Y. 261.
    3. The act is unconstitutional because it attempts to provide general revenue otherwise than by a tax upon property. Const. § 2, art. 12; Exchange Bank v. Hines, 3 Ohio St. 10; Zanesville v. Richards, 5 Id. 589; Hill v. Higdon, Id. 243; Reeves v. Treasurer of Wood County, 8 Id. 336; Baker v. Cincinnati, 11 Ohio St. 543; 18 Ohio St. 237; 38 Ohio St. 225.

      ' 4. The act'is unconstitutional because the tax provided by it is levied upon property, but not according to its true value in money. Sect. 2, art. 12, Const.; 28 Ohio St. 552; 12 Wheat. 444; 91 U. S. 275; 23 Ga. 597; 41 Ga. 21; Burroughs on Taxation, 69, 70.
    5. The act is a law of a general nature, but is not of uniform operation throughout the state, and is therefore unconstitutional. Const. § 26, art. 2; Kelley v. State, 6 Ohio St. 269; State v. Powers, 38 Ohio St. 54; 34 Ohio St. 228; 17 Cal. 554; 24 Cal. 544.
    6. It impairs the obligation of contracts, and is therefore unconstitutional. Sect. 28, art. 2; sec. 19. art. 1, State Const.; Sect. 10, art. 1, and sect. 1, art. 14 of U. S. Const.; Bank v. Sharp, 6 How. U. S. 327; 2 How. U. S. 608; 16 Wall. 314; 4 Wall. 535; 96 U. S. 595.
   McIlvaine, J.

The cases before us involve grave and important questions of constitutional law — of legislative power as conferred upon the general assembly of the state, by the constitution. Was this enactment within the scope of that power ?

The exact scope of that power is the difference between powers granted, both generally and specifically, by the constitution, and the limitations thereon, found in other provisions of the constitution, in the constitution of the United States and in the laws of Congress passed in pursuance thereof.

The general grant is found in section 1, article 2, of the constitution. It reads thus: “ The legislative power of this state shall be vested in a general assembly, which shall consist of a Senate and House of Representatives.”

When considered independently of other parts of the constitution, there can be no doubt as to the meaning of this section. It is a fundamental principle in our. system of state government, that the people, who, in an organized, representative body, framed the constitution, and as individual citizens ratified and adopted it, are the source of all political power, and in fact, constitute the state. This section, therefore, is a declaration that all the power, legislative in character, of the people within the limits of the territory of Ohio and organized into a government under this constitution, is vested in the general assembly.

That the passage of this enactment by the general assembly Avas the exercise of a power legislative in character, is an indisputable proposition, and if section 1, article 2, Avere the only provision of the constitution to bo considered, the validity of the statute would never be questioned. And further, Avithout stopping to inquire into the inherent nature of legislative power, it is certainly safe to say, that in the absence of conventional limitations, the power would bo ample for the making of laAArs absolutely prohibiting all traffic in intoxicating liquors. To maintain this doctrine it is not necessary to hold that the right to traffic generally, in all subjects of trade, is subject to legislative control. It is enough to hold that a traffic which tends to evil, and that continually, is qnder the absolute control of the general assembly. Surely it' Avas Avithin the power of the people avIio made the constitution, and who gave to the general assembly all the power over the traffic which they possessed, unless we can find in some other part of the constitution a limitation upon the terms of this grant of power.

There is such a limitation, however, in the 18th section of the schedule (adopted as a part of the constitution by a separate vote of the people), to wit: “No license to traffic in intoxicating liquors shall hereafter be granted in this state; but the general assembly may, by law, provide against evils resulting therefrom.” The first clause is an express and positive restriction upon the poAver of legislation ; and by the last clause, the power is restricted, by implication, to making provisions against evils resulting from the traffic.

It has been claimed, because'this last clause is, in form, a grant of power, that it confers the only power possessed by the general assembly over the subject of intoxicating liquors, on the theory, that where -specific power over a particular subject is given, it will be presumed to be exclusive, and withdraw the subject from a more general grant of power. We are inclined, however, to think that this clause was inserted for the purpose, in addition to that above named, to repel an inference (from the facts that no restraint was imposed upon the traffic by the constitution, and legislative restraint by license was inhibited), that the intention was to withdraw the traffic from legislative control, as license laws, before the adoption of the constitution, were the only means used for the restraint or regulation of the traffic.

It would make no difference in the solution of «the question now under consideration whether the authority of the' general assembly to pass tiffs statute be traced to the general grant of legislative power, or to section 18th of the schedule. In either case, if it be not a license law, or in eontrovention .of some other provision of the constitution, the validity of the statute must be maintained.

It has been said that the power of the general assembly over the traffic in intoxicating liquors is to regulate and not to prohibit. Miller & Gibson v. The State, 3 Ohio State, 475. With this construction of the constitution we agree. “The general assembly may, by law, provide against evils resulting therefrom.” It seems to ns to be fairly implied from these terms that, in the judgment of the framers of the constitution, the traffic in intoxicating liquors might be carried on without resulting in evil, and to that extent it should not be prohibited. Such traffic would undoubtedly embrace sales for mechanical, medicinal, and sacramental purposes; and upon such traffic this statute has imposed no burden, whatever. Section 6 of the Act.

On the other hand, it is expressly recognized in this” clause of the constitution, that evils do or may result from the traffic in intoxicating liquors; and the general assembly may, by law, provide against them. The language of the 18th section does not limit the power to the making of provisions for the purpose of mitigating such evils, or diminishing them. The power is equal to the providing of means to prevent evils resulting. To so regulate the traffic that no evil will result therefrom. The provisions, which maybe made “by law,” are not prescribed. True, they must be directed against evils resulting from the traffic, and they may not be such as are inhibited by any provision of the constitution. Subject, however, to these limitations, the whole scope of legislative power is given to the general assembly to be exercised at its discretion. Hence its judgment in the selection of means, within such scope of authority, is not subject to be reviewed by this court.

Undoubtedly the evils contemplated by the constitution, as resulting from the traffic in intoxicating liquors, are those ■which result from the sale and use of such liquors as a beverage : and such were the evils against which, this statute was intended, in some degree, to provide.

If, in the judgment of the general assembly, it be necessary, in order to prevent evils resulting from the traffic, that the sale and use of intoxicating liquors as a beverage, be absolutely-prohibited, we can see no constitutional ground upon which such exercise of its judgment and discretion can be reviewed. The views entertained by the majority of the court, as above expressed, are strongly supported by the decision of this court in Burckholter v. McConnellsville, 20 Ohio St. 308, sustaining an ordinance prohibiting ale, beer, and porter houses within the corporate limits of the village of McConnellsville. The ordinance was passed by the village council under authority granted by the general assembly. It appears to me to be very plain, that power in the general assembly to authorize municipalities to prohibit ale, beer, and porter houses within their limits, involves the power to prohibit the sale of ale, beer, and porter as a beverage. True, the statute under consideration was not intended to operate as a prohibition of the sale or use of such liquors for drinking purposes; but only as a restraint upon the traffic, whereby the evils resulting therefrom might in some degree be diminished. The point intended to be made is, if the power to forbid the sale and use of such liquors as a beverage exists, the power to pass this statute cannot be doubted.

It is claimed, however, that the burdens imposed by this statute upon the business of trafficking in intoxicating liquors cannot, in any degree, operate as a provision against evils resulting from the traffic. Several answers may be made to this claim. 1. It is contrary to the declared opinion and judgment of the general assembly, to whom alone the constitution has given the right to select the means to be provided. 2. The statute cannot be held invalid on such grounds, unless the declared judgment and purpose of the general assembly be plainly and palpably fallacious and illusory. 3. "We think the direct tendency of these burdens is to reduce the number of places where such traffic is conducted, and the number of persons engaged in it, and per consequence, the quantity of liquors drunk. lienee it is impossible to say that the amount of evil will not be diminished.

Does the statute contravenecthe first clause of the 18th section of the schedule, “No license to traffic in intoxicating liquors shall hereafter be granted in this state ?”

This question arises on the last clause of section two of the statute. The whole section reads thus:

“ Sec. 2. That said assessments, together with any increase thereof, as penalty thereon, shall attach and operate as a lien upon the real property on and in which such business is conducted, as of the fourth Monday of April, each year, and shall be paid on or before June 20, following: Provided, where any such business shall be commenced in any year after said Monday, said assessment shall be proportionate in amount to the remainder of the assessment year, except that it shall in no case be less than $25, and the same shall attach and operate.as alien, as aforesaid, at the date of, and be paid within ten days after such commencement; and that whoever shall engage or continue in the business aforesaid of selling intoxicating liquoi'S in or upon land or premises, not owned by him, and without the written consent of the owner thereof, shall be held guilty of a misdemeanor, and liable to be indicted and punished by a fine not exceeding $100, nor less than $25, or by imprisonment in the county jail not exceeding ten days, or both, at the discretion of the court; and each day’s continuance upon such premises shall be an additional offense.”

It is very clear to a majority of the court .that the last clause of this section is so disconnected from the balance of the statute, that if stricken out, that which would remain, is complete in itself, and would be capable of being enforced in accordance with the legislative intent. The whole statute does not, on its face, afford any reason to presume that the balance of the statute would not have been passed if this clause had been omitted. Hence, both upon reason and authority, the balance of the statute must be held, as far as this question is concerned, to be valid, though this clause be in contravention of the no license ” clause of the Constitution. See Cooley’s Constitutional Limitations (5th ed.) pages 211 to 216, inclusive, and authorities therein cited.

Upon this view, further consideration of this question might be, with propriety, omitted from this opinion, as the cases before us do not depend upon the validity or invalidity of the second section of the statute. .

But inasmuch as the validity of this clause of the statute has been fully and ably discussed by Counsel, and a large number of the citizens of the state, are personally, interested in the question, I have concluded to state the views entertained by a majority of the court, after full consideration.

Counsel, who have argued against the validity of the statute, have relied with much confidence upon the recent decision of this court in the case of The State v. Hipp, 38 Ohio St. 199, in which a statute in many respects similar to the one now before us, was held to be unconstitutional and void.

While there is no disposition on the part of the court to overrule the decision in that case, or to depart from the definition of a license as therein laid down, we find that there are fundamental differences between the two statutes in relation to provisions upon which this question depends.

Of the statute under consideration in Hip p’s case, commonly called the Pond law, it was very' clearly and correctly stated By Okcy, C. J., in delivering the opinion of the court, that with the exception of physicians, vendors of pure alcohol for mechanical purposes, and druggists, the act is,' to all persons then engaged or thereafter engaging in the traffic in liquors, who fail to comply with its terms, a stringent prohibitory liquor law.” The terms required were the payment of certain sums of money and the execution of certain bonds. And again, on page 288 of the report, the Chief Justice said: “In substance, it (the statute) is as to all dealers, who fail to comply with its provisions, a stringent prohibitory liquor law, and as to all dealers who do so comply, it grants the privilege, in the future, to deal in such liquors to the extent not prohibited by previously existing laws. In legal effect, it is an act granting to those who comply with its provisions, licenses to traffic in intoxicating liquors, to the exclusion of all other dealers, and hence it is in conflict with the constitutional provision under consideration.” Such was a brief, but clear statement of the grounds upon which the decision was based.

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 creature of a license law. The removal of individual disabilities, as to all persons, is not the granting of a license. The right to traffic in intoxicating liquors for the purpose of drinking, before the passage of the Scott law, was the common right of each and every citizen of the state. It so remained after its passage. No citizen or class of citizens is required, by this statute, to perform any condition before the right to so traffic shall vest in him. The right was not takén away from him. How then can it be said that the right to so traffic is a special privilege to any one under this statute ?

It is argued that the statute deprives a class of persons, to wit, all those who do not own real estate, of the right to continue or engage in the traffic, and the right is granted back to those of the class only who obtain the written consent of the owner of real estate to conduct the traffic on his premises. These are not fair statements of either the terms or the legal effect of the statute. The personal right to engage in the traffic is not taken away from any person. True, it is made a misdemeanor for any one, for every person in the state, whether he be the owner of real estate or not, to engage in such traffic on the real property of another without the written consent of the latter.

This provision, however, does not apply (as will hereafter be shown) to lessees in possession under a lease executed before the passage of the act. The offense here created can bo committed only by trespassers and tenants holding under leases executed subsequent to the passage of the law. A mere restriction upon the exercise of an admitted right, and we think a very reasonable restriction, when considered in connection with the first clause of this section, which makes the real estate upon which the traffic is conducted subject to the payment of the assessments imposed by the statute. To my mind, it is a palpable misnomer to call such a statute a prohibitory liquor law_; and unless it be such, no license or special privilege can be obtained under it, as was shown in Hipp’scase, supra. -

We think this statute is no more a license law than was section 2 of the Liquor Law of 1854, which provided, “ That it shall be unlawful for any person or persons, by agent or otherwise, to sell intoxicating liquors to minors, unless upon the written order of their parents, guardians, or family physician.” Surely, it cannot be contended that that section granted a license to traffic in intoxicating liquors with minors.

Is the burden assessed by the first section of the statute in conflict with the 2d section of the 12th article of the constitution ? This provision of the constitution reads as follows : “ Laws shall be passed taxing, by a uniform rule, all moneys, credits, investments in bonds, stocks, joint stock companies or otherwise ; and all real and personal property according to its true value in money.”

We are not disposed to question the correctness of the repeated decisions of this court, that the above section of the Constitution furnishes the governing principle for all laws levying* taxes for general revenue, whether for state, county, township or municipal purposes. It by no means follows, however, that no moneys can constitutionally come into the public revenues except such as are raised by such taxation. And it is equally well settled that burdens, in the form of license taxes, may be imposed upon certain classes of business which in their nature are injurious to the public welfare, and moneys thus raised are properly placed in the public revenues, although it would be in violation of section 2, Art 12, to impose such burdens merely for the purpose of raising public revenue. (The authorities on these points are collected in State v. Hipp, supra, page 225.)

In our opinion it is not of the slightest materiality, under this section of the constitution, whether burdens imposed on business which in its nature is injurious to the public welfare, be imposed in the form of a license fee, or in some other form. If they be not imposed for the mere purpose of raising general revenue, § 2, art. 12 is not violated. It has not been claimed that the assessment imposed by section 1 of the statute, independent of other provisions of the statute could be regarded as a license fee. It cannot be affirmed that such impositions were for the mere purpose of raising general revenue. The declared object of the general assembly, as stated in the title of the, statute, was “ further to provide against evils resulting ” from the traffic in intoxicating liquors. The burden is imposed upon a business injurious to the public welfare. The raising of revenue is a mere incident to the main purpose of the statute. There is no conflict between the stalute and section 2, of article 12 of the constitution. Van Horn v. People, 46 Mich. 183; Youngblood v. Sexton, 32 Mich. 406.

It is also contended that section 2 of the statute, which makes the assessments imposed by section 1 on the business of trafficking in intoxicating liquors a lien on the real property on and in which the business is conducted, is in conflict with section 23 of article 2, and section 19, article 1 of the constitution. The first-named section inhibits the passage of laws impairing the obligation of contracts, and the latter provides “Private property shall ever be held inviolate, but subservient to the public welfare.”

The contention is that the obligation of contracts of lease entered into before the statute was passed and still subsisting is impaired by this section. We are not able to see wherein the obligation of such contracts is at all affected. The parties are still bound by all their covenants and agreements the same as if the statute had not been passed, and all remedies are preserved in tact. The rental values as well as the profits of the use of the property may, indeed, depreciate under the operation of this statute, but such result furnishes no ground for declaring the act unconstitutional under section 23, article 2.

We think, however, that to subject the freehold to the payment of these assessments when made against a tenant for carrying on the business upon premises leased prior to the passage of the statute, would be an unwarrantable interference with private property — in other words, in effect, it is subjecting one man’s property to the payment of another’s debts. If this infirmity, however, can be taken out of the statute by applying it only to cases • arising under leases executed after the passage of the statute, it is our duty to so construe it. Every presumption must be taken in favor of the validity of statutes. It will be presumed that the legislative intent was to apply the statute to subsequent leasós only, if necessary to preserve it from constitutional objection. It will never be presumed that the legislature intended to pass an unconstitutional law.

'According to the terms of the statute, land upon which a trespasser may enter and carry on the traffic without the knowledge of the owner, is made subject to the lien. Surely such was not the intent of the general assembly. And upon the same theory, we do not believe that the intention was to subject the freehold of a lessor for assessments against the business of the lessee, over which the lessor had no control during the term, granted under a pre-existing lease.

And further, the penal provision, in the same section of the act, which, evidently, was inserted mainly for the protection of the lessor whose real estate was made subject to the lien of the assessment, certainly was not intended to be enforced, iu cases where the lien did not attach under the statute, to wit, in cases of pre-existing leases. In such cases, not only had the property passed from the control of the owner, by virtue of the prior lease, during the term, but, during the term, the absolute right of dominion had vested in the lessee ; and we do not think, that as between such parities, it was intended that the statute should interfere to any extent. Of course, as to subsequent leases, as well as to cases of trespass, these considerations do not apply. As to them no property rights are violated by the statute.

It is also objected that the statute, being one of a general nature does not have a uniform operation throughout the state, in violation of section 26, article 2 of the constitution.

This objection cannot be maintained. The statute indeed is one of a general nature, but it has a uniform operation throughout the state.

There are some other objections made to the validity of the statute, but'we find none for which the statute should be adjudged unconstitutional.-

In State v. Frame, judgment for relator.

In Benner v. Bauder, judgment affirmed.

"W. "W. Johnson, C. J., who was absent during the oral argument, on account of sickness in his family, desires it to be noted that he was furnished with copies of the records and arguments as they were filed, and that after a full and careful consideration of the points involved, concurs in the decision.

Okey, J.

I am unable to concur in the judgments rendered in-these cases. In my opinion judgment should be rendered in State v. Frame in favor of the defendant, and in Benner v. Bauder the judgment should be reversed and the relief demanded in the petition granted. The infirmity which, in State v. Hipp, 38 Ohio St. 199, we held to be fatal to the act of 1882, was transmitted to the act of 1883. Parent and child are like affected. Believing the act of 1883 to be unconstitutional, respect for the general assembly which enacted it, and for the majority of this court which has maintained its validity in an able opinion, demands that I should state my own views upon the subject.

In the majority opinion it is asserted that, under the constitution as it is, the general assembly has the power to pass a prohibitory liquor law. Considerable space is occupied upon the subject, and reliance is place:! on Burelcholter's ease, which sustained' legislation directed against tippling houses, but has always been supposed to be in harmony with Miller v. State, 3 Ohio St. 475, and what was said by Thurman, C. J\, on page 485 et seq. No question as to the power to pass prohibitory laws was presented in either of the cases now before us, and therefore I have not considered any such question. The act of 1883 is not a prohibitory liquor law. No statute ever passed in the State was so unlike such a law. Why, therefore, consider the constitutionality of a prohibitory law? An opinion that such a statute would be constitutional is a mere obiter dictum,. It goes forth without authority, settles nothing, and nobody is bound by it. If the legislature passes a prohibitory liquor law, and its constitutionality is assailed in this court, I will then be willing to consider its validity. In the cases now before us I will confine myself to an examination of the question whether the act of 1883 is a license law.

The act of 1831 (3 Curwen, 2424), was in force when the convention which framed the constitution finished its labors. That act was called and known as a license law, but no authority to buy or sell liquors was granted by it or under its authority. Iudeed, no such authority has ever been necessary. The common-law right possessed by every person to buy and sell liquors of every sort at pleasure, is not interfered with in any respect by our constitutions,1 federal or state. Restraints upon the traffic can only be imposed by constitutional provision or under legislative authority, and legislative authority may be general or restricted under organic law. The act of 1831 provided, “ That if any person shall keep a tavern or retail spirituous liquors, or shall vend or sell any spirituous liquors of any kind to be drank at the place where sold, or shall vend or sell such spirituous liquors by less quantity than one quart,” without being duly licensed as a tavern keeper, he should be fined not exceeding one hundred dollars nor less than five dollars, on conviction upon indictment. By the same act, power %vas conferred on the court of common pleas to grant (3 Cur-wen, 2424) or refuse (2 Curwen, 1076), to applicants, licenses to keep taverns, but such license could only be granted when the court was satisfied, among other things, that such tavern was necessary, and that the applicant was a man of good moral character and a suitable person to keep a tavern, and that he was provided with suitable accommodations for such purpose. The charge for such license was not more than fifty nor less than five dollars per annum, the court, in fixing the amount, “ having proper regard for the applicant’s place of business.” A paper called a license was issued to such tavern keeper by the clerk of the court, on payment of his foe of fifty cents . therefor.

Nothing is clearer than that the privilege secured to a tavern keeper, under the act of 1831, was neither exclusive, unrestricted, nor beyond legislative control. That there was an attempt, even indirectly, to grant any exclusive power to deal in liquors is not pretended-; for the right, existing in all persons, to sell to another liquors of any sort, in any quantity not less than one quart, where the liquor was not to be- drunk at the place where sold, was untouched by any statute then in force. That such privilege was not unrestricted is manifest; for if such tavern keeper permitted any kind of rioting, reveling, intoxication, or drunkenness on his premises, he was subject to criminal prosecution and his license was revoked. And that legislative control existed cannot be doubted, for the general assembly might not only deny the power to issue licenses in the future, but revoke all existing licenses. Hirn v. State, 1 Ohio St. 15; Cooley’s Con. L. (5th ed.) 343.

Such, in substance, was the condition of the statute law, in relation to the traffic in intoxicating liquors, at the time stated, that is, in March, 1851, when the convention which framed the constitution finished its labors. The result of this legislation was apparent. While the right to traffic in liquors was not in terms granted or authorized to be granted to anybody, yet the effect of the statute was to reserve to licensed tavern-keepers the exclusive right to sell spirituous liquors to be drunk at the place where sold, while the right of all persons to deal in liquors, in such other way as they might see proper, - was left practically undisturbed. The subject of such traffic was, however, agitated throughout the state during the winter of 1850-51, and a large number of the members of the constitutional convention, and a majority of the members of the general assembly, then in session, were opposed to such license system. The convention submitted to the people for their ratification the constitution which had been framed, and also submitted to a separate vote the following provision, which was to become part of the organic law if ratified: — “ No license to traffic in intoxicating liquors shall hereafter be granted in this state, but the general assembly may provide by law against evils resulting therefrom.” Schedule, § 18. The separate provision, as well as the constitution, having been ratified by the people, such separate provision became part of the organic law. Meanwhile, the general assembly had, on March 12,1851, repealed so much of the act of 1831 as operated as a license to sell liquors. Hirn v. State supra. This left in force the penal provisions of the act of 1831, without the exception in favor of tavern-keepers, so that thereafter it was a penal offense for any person to sell spirituous liquors to be drunk at the place where sold.

Por more than thirty years after the adoption of the constitution, no statute in principle like the act of 18S3 was passed. This, of course, is not conclusive against the existence of the power so to legislate; but it must be remembered that during all that time the subject was constantly agitated, and the absence of legislation of this character affords evidence that the general opinion was against the authority to pass such an act; and the constitutional provision means the same thing to-day that it meant when it was adopted. That the early opinion against the existence of- such power was correct, is a proposition to which I fully assent. In providing that licenses to traffic in intoxicating liquors should not be granted, the evil supposed to exist and sought to be remedied was not the granting of licenses as applied to every kind of business. Indeed, the express prohibition of liquor license recognizes power in the general assembly over the general subject. Accordingly, as stated in the opinion of the majority, “ burdens in the form of license taxes may be imposed on certain classes of business, which in their nature are injurious to the public welfare.” And see 38 Ohio St. 225; Commonwealth v. Bacon, 13 Bush, 210; 6 Southern L. Rev. N. S. 74. Nor was it supposed to be an evil, when the constitution was framed, that men obtaining licenses which exempted them from punishment for selling liquors by the drinlc, were required to produce evidence of good moral character; nor that the price of the license was regulated by the amount of business done; nor that licenses, being granted alone to tavern keepers, ■were confined to a small number or class of persons. But the evil supposed to exist, and against which the constitutional provision was directed, was the sale, by any person, of spirituous liquors by the drink, for that was the license, and all there was of it — that was the privilege, and the only privilege with respect to liquors, secured by such license. And this being true, it is too clear for argument that if it was sought by such constitutional provision to cut off such privilege to the few, much more was it intended to absolutely deny it to the many. The notion that the exclusive right to one man or a class of men to carry on a business is implied in a license, is utterly fallacious. A license may be confined by the lawmaking power to a class or limited number of persons, or it may extend to all who will comply with the conditions imposed. Take the case of a peddler, who desires to travel throughout the state and vend goods, wares and merchandise, lie is required to pay money, the amount being determined by his mode of travel, whether on foot, on horseback, or in a wagon, boat or railroad car; but anybody who tenders the required sum is entitled to a license, and may enforce the issuing of the same. Rev. Stats, sections 4397-4402. The same thing is true as to other licensed employments. See 80 Ohio L. 129. And if it was made by a statute mandatory upon the court of common pleas to grant and issue a license to each and every person who applied therefor, and paid a license fee of $200, authorizing him to sell spirituous liquors by the drink for one year, could any man be found bold enough to say that such a statute would not be in conflict with the constitutional inhibition on the subject? Such a law would be simply extending to many the authority which was thought to be an evil even when confined to a few ; and hence the claim that such a law is valid because tbe license was open to all, would be plainly absurd.

We come now to consider tbe condition of tbe statutes, in relation to tbe traffic in liquors, in force in 1883, at tlie time the act here under consideration was passed-. As under the license system, there was then little restriction on the sale of liquors which were not to be drunk at the place where sold. Indeed, the only restriction upon such sales had relation to particular times, places and persons, as sales on Sundays and days of election, or in the vicinity of certain religious meetings, or the like, or to minors, except on permission, or to dissipated persons. Municipal corporations then had power to regulate, but none to prohibit beer, ale, porter and tippling houses, and a dealer in liquors was taxed, in addition to the license fee exacted by the general government, in the same way as a grocer or like dealer, and not otherwise. The leading and far most important statutory inhibition then in force was the provision which was directed against the sale of spirituous liquors by the drink. By force of that provision, which had retained substantially the same form during our entire existence as a state and a portion of our existence as a territory — a period, indeed, of more than ninety years — it was a crime, and punishable as such, for any one not licensed to sell spirituous liquors by the drink; and, of course, since 1851, the inhibition has been general, for no license could constitutionally exist. True, in portions of tlie state the provision against such sales, like that against profane swearing, and some others, was not strictly enforced, but in other parts of-the state it was enforced, and official reports will show that the convictions in the state, outside of the large cities, for such illegal sales have, for several years, greatly outnumbered the convictions for any other offense.

And this historical review brings me to the consideration of the act of 1883 (80 Ohio L. 164), and to the determination of the question as to its constitutionality. The act provides for an assessment upon the business of trafficking in intoxicating liquors. The amount of this assessment is $200 a year whore the person is engaged in the general traffic in liquors, and $100 a year where the traffic is confined to malt and vinous liquors. The persons so assessed are those who carry on such traffic in premises of which they are owners, and those who, not being owners, carry-'on such traffic on the premises of others with their consent in writing. All others carrying on such traffic are engaged in an unlawful business, and punishable criminally therefor. The statutes imposing restrictions upon the traffic remain, in their general features, the same as before the passage of the act of 1883, except in certain particulars. Municipal corporations have, under this act, power to prohibit, whereas before they only had power to regulate, beer, ale, porter and tippling houses; but it is provided that “ if any municipal corporation shall prohibit, ale, beer, and porter houses withiu the limits of such corporation, a ratable proportion of the tax paid by the proprietors thereof for the unexpired portion of the year, shall be returned to such proprietors.” § 9. This provision was doubtless suggested by the remarks of Bartley, J., in Hirn v. State, supra, in which he speaks of refunding in case of the revocation of a liquor license. Bower seems also to be granted to municipal corporations to suspend the operation of the statute prohibiting the sales of liquors on Sunday. But the great and important change made in the legislation on the subject is that the provision against the sale of spirituous liquors by the drink, which had remained in force so long that no man now living can remember when it was enacted, is in terms repealed by the act of 1883. If that act is valid, it will hereafter be as lawful for one taxed as a dealer in liquors to sell brandy to-be drunk as a beverage at the place where it is sold, as to sell wine for medicinal or even sacramental purposes ; and if it is true that there are five thousand such taxed persons, it follows that there are to-day five thousand places in Ohio where spirituous liquors are lawfully sold by the drink, whereas, for more than thirty years before the passage of this act, there had not been one such place in all the state. These remarks are made in no censorious spirit-phut solely for the purpose of showing that the act under consideration is, in its operation and'effect, a license law; for I agree that the legislature is the sole judge as to the form and even justice of its legislation, if no provision of the constitution is infringed.

In the discussion of State v. Hipp, and also in the consideration of these cases, it was ably and zealously argued that the framers of the constitution, who prepared the provision here under consideration, and the people who ratified it, must have had in their minds the licenses granted and issued under the act of 1831, and none other, and hence that a statute upon the subject which did not in terms provide for granting and issuing such license, in substantially the same way as under the act of 1831, cannot be in conflict with the constitutional provision against licenses. This view.was evidently adopted by the general assembly, as a fair interpretation of the constitution, in the passage of the act of 1883. But that this construction of the constitution would render the inhibition practically nugatory, and therefore is erroneous, was distinctly decided in State v. Hipp, and I understand the majority opinion, in form, to approve that decision, and to reject the view of the constitutional provision which seems to have met the approval of the legislature. True, the judge delivering the opinion refers to passages in State v. Hipp, in which the act of 1882 is said to be (with certain exceptions) a prohibitory liquor law as to all dealers failing to comply with its terms, and it is claimed that this was the ground upon which the act of 1882 was held tó be invalid. But with great respect for the opinion of the majority, I must be permitted to say that this is very misleading, as it places State v. Hipp on ground which the couit never intended 'to occupy. We never had in this State a prohibitory liquor law. The act of 1882 permitted the sale of liquors for medicinal and mechanical purposes, and that act was prohibitory, with these exceptions, as to all persons who failed to comply with its terms ; but every person had the right to comply with the conditions, and thereby obtain the privilege of freely trafficking in liquors, with the restrictions imposed by the statute The act of 1883 is, with similar exceptions, a prohibitory law as to all persons who fail to furnish real estate security for their assessments; but everybody has the right to furnish such security, and thereby obtain far greater privileges than could have been secured under the act of 1882. Any attempt, however labored, to distinguish between those acts in 'this respect, in any matter of principle, will necessarily fail. In the opinion as to the validity of the act of 18»2, I endeavored to state fully the effect of the various provisions of the act, and properly characterized the act as being prohibitory in the sense I have stated ; but this was not done as furnishing any test by which to determine whether an act is or is not a license law, or whether the act of 1882 was or was not constitutional. The act of 1831, which was the license law in force when the constitution was framed, permitted all persons to sell liquors of any sort, in any quantity not less than one quart, where the liquor was to be taken from the place where purchased, leaving to the tavern keeper, who was licensed, as his only exclusive privilege, the right to sell by the drink. The act was a license law, but it would have been plainly absurd to call that act a prohibitory liquor law; nor has it ever been supjwsed, that in order to constitute an act a liquor license law, it was necessary that it should be a prohibitory liquor law in any sense or under any condition. Fortunately the ground upon which State v. 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. It 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 engaged or engaging in snch traffic to pay a specified sum of money annually and execute a bond as therein required, and also provided that “ every person who shall engage or continue in such traffic, without having executed the bond ... or after his bond shall have been adjudged forfeited . . . shall be deemed guilty of a misdemeanor,” was, in its operation and effect, as to the traffic-not theretofore prohibited, a license, and hence unconstitutional. Besides, an examination of the opinion will show that the absence of a clause providing for granting and issuing licenses, and the absence or presence of a clause which rendered the act, under any circumstances, a prohibitory liquor law, were regarded as matters wholly immaterial to the question whether the statute was or was not a license law or a constitutional law.

As the act of 1883 provides, in effect, that the persons who submit to a tax of two hundred dollars a 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 alcoholic liquors to be drunk as a beverage at the place where sold — which was the only privilege secured by a liquor license under license laws — such act is plainly and necessarily a license law, and as such, unconstitutional, and the infirmity destroys the whole, act. But I 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 a lien on such property. But this is not true of a tenant. If he carries on the traffic without the consent, in writing, of the owner of the real estate in which the business is done, he becomes a criminal, and is punishable as such. This, it is held, does not apply to persons holding leases at the time the act was passed; and I agree to that, upon the ground stated by the majority, and upon other grounds; but for reasons -which will now be stated, I need 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 assessment on premises occupied by a tenant 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 a separate writing, the holder of a lease, whether as lessee, assignee or sub-lessee, though the lease be executed since the passage of the act, and whatever its terms, commits a criminal offense by carrying on such traffic in the leased premises. Act of 1883, § 2; State v. Hart, 4 Ired. L. 246; Bishop on W ritten Laws, § 237 ; and see Jenkins v. Clarkson, Headington v. Neff, 7 Ohio, 1 pt. 72, 229. The state says, in substance, to the tenant, procure the written consent of-the ow.ier, so that his property will become security for your assessment, and you may sell alcoholic liquors by the drink, and thus secure all the privilege there ever was in a liquor license; but if you carry on the traffic without such written consent, whereby the state will bo deprived of real estate security for your assessment, you shall be punished as a criminal. That, in my opinion, clearly constitutes this act a license law, and for so saying State v. Hipp is direct and conclusive authority, and the decision in that case is plainly in conflict with this case. To be sure, an attempt is made, in the opinion of the majority, to answer this view of the case, but with great deference, I submit the attempt has been entirely unsuccessful. First, it is said the provision requiring such written consent, no more renders the act a license law than the act of 1854 was rendered such law by the clause prohibiting sales to minors except upon the written order of their parents, guardians, or family physician.. But the difference is very marked. The requirement that a sale could only be made to a minor on such order was a mere regulation, which left in the dealer the right to traffic in liquors; but one who is not the owner of real estate is absolutely prohibited from dealing in liquors in any way, without the written consent of the owner of the property in which he proposes to carry on the business. There is no analogy between the cases. A similar argument was made and overruled in State v. Hipp, and what was then said (38 Ohio St. 228) is equally an answer to the claim nowmade. Secondly, it is said, that even if the provision requiring such written consent should be regarded as unconstitutional, the remaining portions of the act may stand. But I deny that any part of the act can stand, if the clause requiring such written consent constitutes the act a license law as to tenants. The policy of the act is that all assessments shall bo secured by a lien on real estate, and the necessity for such lien is far greater, ordinarily, where the dealer is a tenant than where he is the owner, of the property. It is not to be assumed, nor do I believe, that the general assembly would have granted to all persons dealing in liquors who were tenants, and all such dealers as might become tenants, who will always constitute the great majority of dealers, the right to sell alcoholic liquors by the drink, without requiring any security for their assessments, and at the samo time have provided that no owner of real property should traffic in liquors thereon without pledging such property as security for his assessments, While undoubtedly an act may be constitutional in part and in part void, this clearly is not such an act. The rule upon the subject is correctly stated by Mr. Bishop, as follows : “If the unconstitutional parts are essential to the constitutional, all must fail,” and “if the parts are so mutually related as to make it evident the legislature intended them to constitute orre whole, so that if all could not be carried into effect none would have received the legislative sanction, the case is within the same rule.” Written Laws, section 84. Shaw, C. J\, expresses the rule in the same way in the leading case of Warren v. Charlestown, 2 Gray, 84, which has been followed in the same court (Jones v. Robbins, 8 Gray, 329, 339; Sparhawk v. Sparhawk, 116 Mass. 315), and expressly approved by this court. State v. Perry County, 5 Ohio St. 497; 38 Ohio St. 230. The cases cited in Cooley’s Const. L. (5th ed.) 211, 216, are not in conflict with this rule.

If I entertained doubt as to the constitutionalit}'- of the act of 1883, I would xxnhesitatingly unite with the majority of the court in sustaining it. The rules on the sxxbject by which I am guided are stated in 38 Ohio St. 219. To hold an act to be invalid where its xxnconstitutionality does not clearly appear, would be almost as unwarranted and pernicious as to sustain an unconstitutional statute upon the ground that its enforcement would bring to the public treasury a large revenue. But I have no doubt on the subject. The statute is unconstitutional, and in my opinion plainly so. If the legislature had passed an act which was in terms a license law, how woxxld it have differed in principle, in practical operation, or in legal effect, from the act of 1883 ? I answer, there would have been no difference in either respect. I am best satisfied with the broad ground I have stated ; but the narrower ground, that the provision requiring of tenants written consent of owners is fatal to the acts is entirely tenable, and is fully supported by State v. Hipp, which is in effect overruled by this decision.

Counsel who maintain the validity of the act of 1883 insist that, notwithstanding the inhibition against licensing such traffic, the business of a dealer in liquors may be taxed under any act which will not be in effect a license law, and they rely on Youngblood v. Sexton, 32 Mich. 406; 46 Mich. 183. On the other hand, opposing counsel insist that the act is in conflict with other provisions of the constitution than the clause prohibiting licenses. But the view' I have taken of the cases relieves me from the consideration of any of those questions. Nor do I find it necessary, or even proper, to express any opinion as to the wisdom of the constitutional provision prohibiting liquor licenses, — as to the propriety of a change of the organic law in that respect, — as to the wisdom, propriety or justice of the act of 1883, apart from the constitutional objection to it. I place this opinion solely on the ground that the act of 1883 is, in its ’ operation and effect, a license law, and hence in conflict wdth the constitution, and being unconstitutional, such act is neces-' sarily wrong and oppressive.