author: Oket, C. J. Johnson, J.,

text:
    The State v. Hipp.
    1. The constitutionality of a statute depends upon its operation and effect and not upon the form it may he made to assume.
    2. A license is permission granted by some competent authority to do an act which, without such permission, would be illegal.
    3. The act of April 5, 1883, entitled “ An act more effectually to provide against the evils resulting from the traffic in intoxicating liquors ” (79 Ohio Laws, G6), which requires every person engaged or engaging in such traffic to pay a specified sum of money annually and execute a bond as therein required, and also provides 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,” is in its operation and effect, as to the traffic not already prohibited, a license, within the inhibition of the section of the constitution which provides that “no license to traffic in intoxicating liquors shall hereafter be granted in this state,” and is, therefore, void.
    Mandamus.
    Daniel Rotli filed in this court a petition setting forth that he is engaged in the traffic in intoxicating liquors in Galion, Crawford county, Ohio; Galion being a city with a. population of less than ten thousand inhabitants; and that for the purpose of complying with the act of April 5, 1882, “ more effectually to provide against the evils resulting from the traffic in intoxicating liquors” (79 Ohio L. 66), he presented for acceptance to Hon. Frederick Hipp, Probate Judge of Crawford county, his, said Roth’s bond as a dealer in intoxicating liquors,_ the same being in all respects such a bond as is contemplated in said act; but that said Hipp, as such probate judge, refused to accept or approve such bond, on the sole ground that the statute is unconstitutional. Roth also filed a petition setting forth that, having procured from the auditor of Crawford county the certificate specified in the act, he tendered to William Riblot, Esq., treasurer of that county, the sum of $200, as required by the act; but that said Riblet, treasurer as aforesaid, refused to receive the same on the sole ground that the act is unconstitutional. In each case a writ of mandamus is prayed to compel the officer to perform the duty required of him. The facts are admitted, and if the act is valid, a peremptory writ of mandamus should issue; but if the act is void, the writ should be refused.
    The act is as follows :

      “ Section 1. That every person engaged in the traffic in intoxicating liquors shall, within thirty days after the taking effect of this act, and in the first week of May in each succeeding year thereafter, and every person hereafter engaging in such traffic shall, before engaging therein, and in the first week of May in each succeeding year thereafter, during his continuance in such traffic, pay into the treasury of the proper county, upon the certificate of the county auditor, as follows, to wit: When his place of business is located not within any village or city, nor within one mile thereof, $100; when within a village having a population of less than two thousand by the next preceding federal census, or within one mile thereof, $150; when within any other village or city having a population of less than ten thousand inhabitants, or within one mile thereof, $200; when within any city of the second class having a population of ten thousand inhabitants, or more, or within two miles thereof, $250; and when within any city of the first class, or within two miles thereof, $300.
    “ Sec. 2. Every person engaged in such traffic, and every person hereafter engaging therein, shall, at the time fixed by the preceding section for making said first payment into the county treasury, execute-to the State of Ohio his penal bond in the sum of $1000, with at least two sureties, resident of the county, and each owning therein freehold estate, not exempt from execution, worth at least double the amount of the bond above incumbrances, which bond shall have indorsed thereon a pertinent description of the lot or premises wherein said traffic is or shall be carried on, together with the name of its owner ; and the sureties thereon shall be to the acceptance of the probate judge of the county, who shall keep and record the same, together with the indorsement thereon, in a book to. be by him kept for that purpose, which bond shall be conditioned for the faithful performance of all and singular the requirements of this act, and the probate judge shall receive in each case for his services under this act, to be paid by the person giving such bond, the sum of $2.
    “ Sec. 3. Every person who shall engage or continue in the traffic of intoxicating liquors after default made in any payment in the first section of this act required, shall be deemed to have broken the condition of his bond, and an action shall lie thereon against him and his sureties in the court of common pleas for double the amount of such default, with costs.
    “ Sec. 4. Every person who shall engage or continue in such traffic without having executed the bond in the second section of this act required, or after his bond shall have been adjudged to be forfeited, as in the preceding section provided, shall be deemed guilty of a misdemeanor, upon conviction of which, he shall be fined in any sum not exceeding $1,000 nor less than $500, or be imprisoned in the county jail not exceeding one year nor less than thirty days, or both, in the discretion of the court.
    “ Sec. 5. Every person who shall sell or furnish intoxicating liquors, by wholesale or otherwise, to one engaged, or who shall hereafter engage, in such traffic in violation of this act, shall be deemed guilty of a misdemeanor cognizable in the proper court of the county in which said illegal traffic is carried on, and, upon conviction thereof, shall be fined in any sum not exceeding $2,000 nor less than $200, or imprisoned in the county jail not exceeding one year nor less than thirty days, and all indebtedness, and evidénees thereof, founded upon the consideration of such sale, or furnishing in whole or in part, shall be absolutely void.

      “Sec. 6. Any person, company, or corporation, who, as agent, or otherwise, shall sell, or receive orders for, in this state, any intoxicating liquors, owned by any person, company, or corporation out of this state, shall be considered as engaged in the traffic in intoxicating liquors, within the meaning of this act.
    “ Sec. 7. Every assessor of personal property in this state shall, when he lists said property for taxation, carefully inquire and ascertain what persons, if any, are at the time of his so listing said property, or for the year preceding that time, have been engaged in the traffic in intoxicating liquors in his district, and report the same to the auditor of his county, indicating clearly the locality where such traffic is or has been so carried on, and the auditor of state, in preparing his forms for such assessors, shall include therein such forms as will enable such assessor to make such return with accuracy.
    “ Sec. 8. The auditor of each county shall, as soon as the report of the several assessors (mentioned in the preceding section) in his county in each .year shall have been returned to him, make an accurate list of all the persons in his county engaged in the traffic in intoxicating liquors within his knowledge thereof, be derived from the report of said assessors, or from information from any other source satisfactory to him, record said list in a book, to be by the commissioners of his county provided for that purpose, and deliver a certified copy of said list to the treasurer, and one to the prosecuting attorney of his county; and the county auditor shall receive for his services, under this section, twenty-five cents for each name contained in said list.
    “ Sec. 9. All prosecutions for offenses under this act, in all counties in this state, wherein the probate court has, by law, jurisdiction of misdemeanors concurrent with the court of common pleas, shall be conducted in all respects in said probate court, as provided in chapter nine of title two of part three of the Revised Statutes of Ohio.
    “ Sec. 10. In no prosecutions for crimes and offenses, under this act in the court of common pleas, in any county in this state, shall an indictment by the grand jury be required; but in all such cases brought before said court, the prosecuting attorney shall immediately file with said court of common pleas an information setting forth, briefly and distinctly, in plain and ordinary language, the charges against the accused person, and on such charges such persons shall be tried in the same manner as provided by law for the trial of persons charged with other crimes and offenses on indictment in said court of common pleas ; but such informations may be amended at any time before or during trial, on such terms as to continuance and otherwise, as said court may direct.
    “ Sec. 11. The prosecuting attorney of any county shall file his information originally in said court of common pleas, without a preliminary hearing before an examining court, upon the proper affidavits being filed therein, and in like manner shall file his information upon the transcript of a criminal cause brought for any offense under the provisions of this act of any justice of the peace or mayor of any village or city, which .shall be filed in said court of common pleas within ten days after the filing thereof, by such justice or mayor.
    “Sec. 12. The prosecuting attorney shall institute civil actions on all such bonds given under this act as shall have become forfeited, for which, as well as for all fines and costs, he shall be entitled to receive as fees ten per cent, of all sums by him collected thereon after process commenced.

      “ Seo. 13. All funds paid into the county treasury under the provisions of this act shall be credited two-thirds thereof to the townships, villages, and cities from which said funds were received, and shall be paid to such townships, villages, and cities by said treasurer for general expenses of such corporations and townships, and the remaining one-third to the general county fund, except the assessment placed upon the business of persons who have no fixed place of business in the state, which sum shall be paid into the state treasury, upon the certificate of the auditor of state, to the credit of the general revenue fund.
    “ Sec. 14. For the purpose of paying the assessment fixed and giving the bond required by this act, and for no other purpose thereunder, a firm or corporation may be treated and considered as one person, and the use and sale of intoxicating liquors, in good faith, for purely medicinal purposes, by lawfully authorized physicians in their regular practices, or of pure alcohol for mechanical purposes, or of other intoxicating liquors by druggists, upon a written order or prescription of such physician for such purposes, shall not be deemed traffic within the meaning of this act.
    “ Sec. 15. Nothing in this act shall operate to repeal, supersede, or impair any existing statute or any provision thereof; nor shall anything in this act be construed or lieid to authorize or license in any way the sale of intoxicating liquors.
    “Sec. 16. This act shall take effect and be in force from and after the first day of May, 1882.”

      George K. Nash, attorney-general, for the relator:
    I claim that the authority of the general assembly to pass the act in question is found — 1st. In section 18 of the schedule of the constitution, which says the general assembly may by law provide against the evils resulting from the traffic in intoxicating liquors. 2d. In the police power of the state. 3d. In the power of taxation.
    I. The law in question provides against the evils of the traffic and tends, to lessen them. The general assembly has said so, and in so saying exercised the discretion and power clearly vested in it by the constitution of the state, and it is very doubtful if the court can review that discretion.
    It will tend to lessen the evils: 1. By lessening the number of places in which the traffic is carried on. 2. It will bring into the traffic men of more pecuniary responsibility than many of those now engaged in it. And having more responsibility they will be more careful of the manner in'which they conduct their business, especially as to violating the statutes providing against the evils of the traffic which have been on our statute books for years. 3. A large proportion of the revenues of the state have been expended in the prosecution of crimes, the direct result of the traffic. The revenues derived from the enforcement of this law will in effect lessen the draft upon the general revenues of the state and tend to lessen the burden of taxation.
    II. The authority for the law is found in the police power of the state. Cooley on Const. Lim. (3d ed.) 583.
    III. Authority for the law is found in the power of taxation.
    Section 2, article 12 of the constitution is a limit put upon the legislative power to tax property, but it does not limit the legislative authority as to the methods of providing public revenue; and one of those methods is by levying a tax or assessment upon business.
    The following authorities from states having similar constitutional provisions on this subject as that of this state are here cited: Sacramento v. Crocker, 16 Cal. 119; Bank v. Savannah, 42 Ga. 596; Bolder v. Schneider, 49 Ga. 195; Home Ins. Co. v. Augusta, 50 Ga. 530; Bright v. McCullough, 27 Ind. 223; Walcut v. People, 17 Mich. 68; Kitson v. Ann Arbor, 26 Mich. 325; Glasgow v. Rouse, 43 Mo. 479; Baker v. Cincinnati, 11 Ohio St. 541; Reeves v. Treasurer, &c., 8 Ohio St. 333; Telegraph Co. v. Mayor, 28 Ohio St. 538; Gas Co. v. State, 18 Ohio St. 237. And see Burroughs on Taxation, 67, §§ 54, 55, 56 ; Cooley on Taxation, 396 ; Id. 138, and cases cited.
    In the light of these authorities, I claim that it was competent for the general assembly to enact this law for the purposes of revenue alone; and that for these purposes it is not in conflict with sections 2 and 5 of article 12 of the constitution.
    IY. It will be claimed that this law is in conflict with that part 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, for the reason that this law is, in effect, a license.
    The constitution of the state of Michigan prohibits, in language as direct and strong, the granting of a license as does the constitution of this state. In May, 1875, the legislature of Michigan passed a law imposing a. tax upon those engaged in the traffic of intoxicating liquors, similar to the law now under consideration. The supreme court of that state held that the law was net in conflict with their constitution. Youngblood v. Sexton, 32 Mich. 406.

      William JEL. West, also for relator,
    argued the case orally and filed a brief, in which he claimed, among other things, that the enactment under consideration was authorized by the taxing power in the state and also by the police power, and on the subject of license said :
    Is the excise imposed by the statute the grant of license within the meaning of section 18 of the schedule ? Ordinarily the term license imports liberty or privilege. As employed in revenue parlance it generally imports a special tax arbitrarily imposed on some trade, profession, business or calling. The sense in which it was employed by the convention of 1851 can best be determined by ascertaining in what sense the previous legislation of the state had employed it, and what was sought to be accomplished or inhibited by its use in the constitution then under consideration.
    The earliest exercise of the power to license the traffic in intoxicating liquors antedates the first constitution, and was continued in the legislation under it until the adoption of the second. It was exercised in 1792. 1 Chase, 115, §§ 3-6 ; 1795, lb. 165, §§ 6, 7; 1800, lb. 293; 1803, lb. 369, § 2; 1805, lb. 467, §§ 1, 3, 8 ; 1810, lb. 669, §§ 1, 3, 8 ; 1819, 2 lb. 1046 ; 1820, lb. 1142, §§ 5, 6, 10, 17, 18; 1824, ■ lb. 1427, §§ 2-11; 1829, 3 lb. 1617; 1831, 3 lb. 1825. .
    The act of 1831 continued with successive modifications until 1847, when the principle of local option was asserted (2 Cur. 1338), and the granting of license within any township made dependent on the annual vote of its electors, which was repealed in 1848. Ib. 1388.
    Except as occasionally authorized by municipalities, licenses were usually granted by the common pleas court to none but keepers of taverns or public inns, after notice given of intended application, and generally on the petition of twelve reputable landholders of the. township, and upon the testimony of witnesses in open court that the applicant was worthy, of good reputation, had suitable accommodations, and that a pub-lie inn or tavern was necessary at the place proposed. The title to the act of 1831 was “an act-granting license and regulating taverns.” The maximum charge for the license was fifty dollars, which was equal to five times that sum at present. The only privilege conferred by the license was that of selling at retail, to be drank where sold. The prohibition of the sucsessive statutes uniformly was against selling without license, to be drank at the place where sold, or in quantities less than the statute prescribed ; the maximum penalty for which was one hundred dollars, collectible by indictment, or under previous laws by information without indictment. It was made the duty of the court to give the act in charge to the grand jury, and of the prosecuting attorney to bring to their notice all violations of its provisions. The provisions of section 15 of the act of 1831 present so clear and distinct an idea of the ancient license that I quote it: “ If any person shall keep a tavern, or retail spirituous liquor; or shall vend or sell any spirituous liquors of any kind whatever, to be drank in the place where sold; or shall vend or sell such spirituous liquors by less quantity than one quart, without being duly licensed as a keeper of such tavern; each and every person so offending, shall forfeit and pay for each offerile, any sum not exceeding one hundred dollars, nor less than five dollars, to and for the use of the county in which the offense shall have been committed; to be recovered, with costs, by indictment in the court of common pleas of the proper county.”
    A curious provision in the act of 1839, 1 Cur. 548, prohibited licensed tavern-keepers from selling “in any cellar, room or place, to be drank where sold other than the bar-room usually occupied as such for the reception of travelers.”
    The sense in which the convention 'must have understood “ license to traffic in intoxicating liquors ” is thus deduced from the previous legislation which had employed it in connection with the same subject and to prevent which was the purpose of section 18 of the schedule. It was a distinctive and special privilege granted to a select few, over whose acts were thrown the immunity of law, to sell intoxicating liquors to be drank at the place where' sold ; all others who did the same acts without the immunity of such special privilege, being denounced as criminals therefor, and punishable as such. It was a privilege not equally accessible to all; not purchasable at pleasure by every one who might desire as lie may what is called a government license under the revenue laws.
    The subsequent authorization of such special privilege by license legislation, the convention in section 18 of the schedule plainly intended to prohibit. License, in the sense in which it had been previously employed must be the sense in which it is employed in this section. In regard to what effect the prohibition might have upon the traffic, opinion as well as intention was divided. Extremists of both classes hoping that what they desired would result: by the one the extinction of the traffic, by the other its entire liberation. The result has disappointed both, and the irrepressible conflict, antedating in its origin the existence of the state, still goes on. But the indubitable and unchanging sense in which the convention employed the word license, remains. Within its meaning this statute accords no immunity, confers no special privilege, grants no license. It illegalizes no branch of the traffic, nor legalizes anypabrogates no statute, disturbs no adjudication.
    Carrying on the traffic in intoxicating liquors, constitutes a trafficlcer or dealer therein.
    The Pond law is restricted in its, operation to a single class of persons, namely, traffickers or dealers in intoxicating liquors. It contemplates this class of persons under two conditions : 1. Those who were engaged as dealers therein at the time the act took effect, and thereafter continued to be such; and, 2. Those who, after the taking effect of the act become dealers therein.. Let the term “ dealer ” be substituted in the act, it will then read tints :
    “ Sec. 1. Every dealer in intoxicating liquors at the time this act takes effect shall within thirty days and every person thereafter becoming a dealer in intoxicating liquors shall pay, &c.
    “ Sec. 2. Every person who is a dealer in intoxicating liquors at the time this act takes effect shall within thirty days and every person thereafter becoming a dealer therein shall before becoming such execute a bond, &c.

      “ Sec. 3. Every dealer in intoxicating liquors who shall have failed to make the payment required by and at the time mentioned in the first section of this act shall be deemed to have broken the condition of his bond, &c.
    “ Sec. 4. Every dealer in intoxicating liquors who shall have failed to execute the bond in the second section required or shall have suffered the same to have become defunct shall be deemed guilty of a misdemeanor, &c.”
    The foregoing is the clear sense, meaning and purport of the act. Is it license or regulation ?
    The statute of Michigan, under a similar constitutional provision, was in substance this:
    1. Every dealer in intoxicating liquors shall annually, on a day named pay a sum specified.
    2. Every dealer in intoxicating liquors who shall have failed to pay the sum and at the time required shall be deemed guilty of a misdemeanor, &c.
    3. Every dealer in intoxicating liquors shall execute a bond, &c.

    The Michigan law was held constitutional. In what does it differ in spirit, principle and operation from the Pond law.
    Suppose the legislature should enact as follows : 1. Every operator of a railroad within this state shall on or before - a day named, cause the same to be fenced. 2. Every operator of a railroad within this state after he shall have failed to fence the same, shall be deemed guilty of a misdemeanor, &c. Is this license or regulation ?
    Or the following: 1. Every operator of a steam furnace within any city shall apply and maintain thereon a smoke consumer on or before a day named. 2. Every person operating a steam furnace as aforesaid, without procuring and applying., a smoke consumer, or after the same shall become insufficient,,, shall be deemed guilty of a misdemeanor. Is this license, or.regulation?
    Or the following: 1. Every dealer in intoxicating liquors» shall sell and keep for sale only such as are pure and unadulterated. 2. Every dealer in intoxicating liquors shall procure-the same to be inspected by the county inspector*, and,if found, pure, to stamp or brand the cask containing it accordingly. 3. Every dealer in intoxicating liquors who shall sell from or keep the same in any cask without having thereon the required brand or stamp, shall be deemed guilty of a misdemeanor, &c. 4. Every dealer in intoxicating liquors shall, at the time he engages therein, give bond that he will comply with the conditions of this act. 5. Every dealer in intoxicating liquors who shall have failed to give such bond, shall be deemed guilty of a misdemeanor, &c. Is this license or regulation ?
    He certainly cannot sell from any such cask without incurring the liability. Is the police power of the state so hampered and restricted that its inspection laws and laws for the protection of the public health cannot be applied to the traffic in intoxicating liquors, without impliedly licensing it in the sense forbidden by the constitution ? Sales to minors, to inebriates, or to be drank at the place where sold, may be absolutely prohibited. Hoes it follow necessarily that sales in other modes are impliedly licensed ? They are suffered or permitted, but are not licensed, in the sense of the constitution. But such suffered or permitted sales or traffic may result in evils. Is the police power of the state so absolutely hampered and defective that it cannot restrain or compensate the evils of such permitted traffic otherwise than by absolutely prohibiting the traffic altogether without impliedly licensing its permission ? Can any method or measure be suggested whereby any branch or form of the traffic may be suffered to continue, and yet certain resulting evils or consequences of such continued traffic be restrained, mitigated or compensated, without impliedly recognizing the legality of its continuance ? I have been able to conceive of none. If such implied recognition of legality be license within the meaning of the constitution, then the only power which the state has to provide against the evils of the traffic is to prohibit and abolish absolutely every branch thereof from which evils result. This is not the case in Michigan, whose constitution is like ours, and certainly it is not the ■case in Ohio.
    Now the language of the fourth section of the act, is simply descriptive or intended to be descriptive of the persons who are within the operation of the second section of the act. “ Every person who shall engage or continue in such traffic ” —that is, every dealer in intoxicating liquors who shall have violated the second section of the act — -shall be deemed guilty, &c. The meaning would be the same if it read thus : Every person who shall have violated the provisions of the second section shall be deemed guilty, &c. But no person can violate it, except one who is a dealer; therefore, the fact that he is such dealer is the necessary predicate to bring him within the operation of said second section,- and the assertion of such fact in the fourth section is merely descriptive of the person subject to liabilities and obligations of the second section and of the conditions requisite to constitute a violation thereof. The being a dealer brings him within the second section and the requirements thereof. But the being a dealer does not constitute a violation of the second section nor of the first- section. The crime is the failure to give bond by the person required to give it. But no person is required to give it, but a dealer, to describe whom appropriate words in the fourth section are necessary. The author of the bill might have employed the word dealer in intoxicating liquors, but he chose to employ other equivalent words, namely, “ a person who shall engage in or continue in.” Now, a person who is not a dealer at the time the bond is required, that is, if he does not engage in or continue in during any part or portion of the time covered by the condition of the bond, he is not a dealer within the purview of the second section, and cannot violate it. He does not answer the condition or description necessary to bring him within the requirements of the second section.
    But the mandate of the second section is unconditional and therefore constitutional. Being a dealer within its mandate, and refusing to comply with it, he satisfies the condition necessary to constitute its violation. And the fact that he is such dealer is the evidence of that condition.
    Again, the clause of the statute which requires the bond to be given annexes no condition and is clearly not repugnant. Is there no power in the legislature to compel the doing of that which it has clearly the power to command ? It may be replied that it has, if exercised in such mode as not to affect the traffic. But in what mode can the power be exercised the effect of which will not be precisely the same as that of the fourth section of the Pond bill and liable to all the objections raised to it. Any restrictions in any form must of necessity operate upon and affect the traffic either directly or indirectly.
    In Michigan the non-payment of the excise was declared a misdemeanor. But the right to impose the excise grew out of and depended on the existence of the traffic. It could only be imposed on one actually engaged therein. The non-payment of the excise constituted the crime. But if there had been no traffic, no trafficker, there would have been no excise and hence no crime. The crime therefore grew out of the traffic, and necessarily had the effect to burden and discourage it. With equal plausibility, therefore, it might be said that the traffic was made criminal because the non-payment of the excise for carrying it on was made criminal. The principle and effect is precisely the same whether the excise be made payable and its non payment made criminal at the beginning or at the end of the year’s traffic. Apply the same reasoning to the giving of the bond under the Pond Law. The requirement of the bond depends on the existence or non-existence of a dealer, and therefore on the carrying on or not carrying on of the traffic which constitutes him a dealer. If there is no dealer, no bond is required, but the not giving a bond is declared criminal. The crime thus grows out of and depends on the existence of the traffic, and must necessarily have the effect to burden and discourage it, just as the criminality of non-payment in Michigan affected the traffic there. The principle is precisely the same, whether the giving of the bond be required and the non-giving it made criminal at the beginning or the middle or the end of the year’s traffic. Whether the non-payment of the excise or the non-giving of the bond be made criminal, it in neither case makes the traffic criminal, for it is the continued existence of the traffic which calls for the imposition of the excise or the giving of the bond, just as the possession of money on the Sunday preceding, the second day of April, calls for its listing on the tax-duplicate. Suppose the following be the law:

      1. Every person owning money on the first day of April, shall list the same for taxation.
    2. Every person owning money on the first day of April, who shall refuse to list the same for taxation, shall be deemed guilty of a misdemeanor, and the auditor shall in addition list the same, with one hundred per cent, penalty.
    If he have no money, he can commit no crime, but the acquiring or possessing money is not thereby made criminal, only the failure to list it is the crime, although the listing it and the tax burden imposed upon it thereby, might greatly affect and discourage the acquisition. The same would be true, if on the first day of April the law required him to give bond for the payment of his tax and make non-compliance a misdemeanor.
    The principle is the same when applied to the whisky traffic. The traffic is not made a crime or illegal, nor is the being a dealer or trafficker a crime. Only the non-giving of the bond for payment of the excise is made criminal.
    In neither case can the law be construed nor tortured into the semblance of license. In the former case, the right to acquire and have money is lawful. If he have it, he must list and pay tax on it or secure it. In the latter case the traffic, the being a dealer, is lawful. Only, if he be such lawful dealer, he must nevertheless secure the payment of the excise imposed upon the traffic. If he be not such dealer, he is not required to secure any excise. He is therefore at liberty to carry on the trade just as his neighbor is at liberty to acquire money, but each must contribute in such case as the law requires of him or suffer its penalties.

      Thomas MoDougall, also for the relator,
    argued the case orally, and filed a brief, insisting upon the points given from the argument of his co-counsel.

      F. B. Pond and Geo. M. Siegler, were also for the relator
    Uoadly, Johnson <& Golston ; Paeeton & Warrington / Stallo, Kithredge <& Shoemaker; Finley dh Eaton / Geo. B. Okey and J. G. Meuser, for respondent:

      The statute exacts, by imposing certain penalties and forfeitures, the payment of certain sums of money, as conditions precedent to engaging in or continuing to engage in, a trade heretofore lawfully conducted without the performance of such or any conditions. By thus forbidding without, as certainly as by permitting upon, such payment, it necessarily and clearly establishes a license system, in violation of section 18 of the schedule.
    In view of the first clause of the 15th section, it is important to note here just how far free trade or traffic, in intoxicating liquors, has been by other laws abridged in Ohio. The legislature has prohibited the sale of intoxicating liquors, to be drank upon the premises; from this, however, an express exception is made which allows such sale of “ wine manufactured of the pure juice of the grape cultivated in this state, or beer, ale or cider also has forbidden sales to minors, except upon written order, &e.; to persons intoxicated or in the habit of' getting intoxicated ; sales on Sunday ; sales near religious assemblies or camp-meetings, subject to certain specified exceptions; sales near the Ohio Soldiers’ and Sailors’ Orphans’ Home, or near the Ohio Reform Farm in Fairfield county, or in a jail; and sales on election days.
    "Without considering the validity of all these acts, it is clear that prior to the adoption of the act in question there was a vast field and opportunity for free liquor traffic, and that this was a lawful traffic in this state, so.far as state legislation was concerned; that the great wholesale business was practically untrammeled; that the retail trade in native wine and beer and ale was lawful, subject to a few immaterial exceptions ; and that the retail of all sorts of intoxicating liquors to adults, to be used off the premises where sold, was also lawful. And it is not saying anything of which the court cannot take judicial cognizance to state, what is universally known, viz.: That under these laws and by the course and policy of the lawmaking power and the authorities of this state, an enormous business was established and lawfully conducted.
    Now, suddenly, the wheels of this great traffic are stopped, and those engaged in it are to be fined and imprisoned, and the entire traffic made illegal, unless they pay taxes in varied sums, and also give bonds with approved sureties, to secure such payment. But this traffic may nevertheless proceed, and is recognized as lawful, if those engaged in it pay and secure the precedent exactions in the manner prescribed. What more is needed to create a license system ?
    Wherever a right exists, and may be exercised without a license, certainly the forbidding its further exercise except upon the performance of some prescribed act, is equivalent to giving a right that does not exist without a license. There can be no difference in principle between the case of withholding a natural right, and allowing it to be exercised upon prescribed conditions, and that of creating, by grant, upon certain conditions, a right that would not otherwise exist. The evidence of permission to exercise the right, might differ in the cases supposed, but what would that signify 3 The privilege would be and remain the same in each case. The evidence of having paid the money and given the bond, would afford protection equal to that of a license. And obviously it can make no difference whether the privilege be revocable or irrevocable, for in either case it would be a license, and within the express inhibition of the constitution. What then remains in order to fulfill the definition and purposes of a license 3
    As to what is a license, see Cooley on Taxation, 406, 407; Bouvier Law Dic.; Chilvers v. People, 11 Mich. 43; Youngblood v. Sexton, 32 Mich. 406; Insurance Co. v. Augusta, 50 Geo. 530; Mayor v. Charlton, 36 Geo. 460; Wood v. Leadbitter, 13 M. & W. 838.
    It is unnecessary to seek further definitions or cite more cases. There are none to the contrary. It will be observed, in all of them, that the cardinal idea as to the effect of a license law is, that it declares an act illegal, unless a prescribed condition is performed. It is not of the essence' of a license law to create a new right. The denial of further exercise of a pre-existing or natural right, except upon prescribed conditions, is as much the work of a license law as where a new right is created, and its exercise permitted upon conditions. Otherwise it would be impossible in any ease to license a preexisting lawful business. Note in this connection the general similarity in plan and ideas, between the old license laws of this state (present in the minds of the members of the constitutional convention), and the law in question. ' For example, in 3 Chase, page 825, will be found the license act of March 3, 1831. It was an act to license and regulate taverns, and it will be observed that by an amendment (1 Curwen, 121), it was declared to be the intention to require liquors to be sold at all taverns, and thus, we suppose, to increase the license revenues.
    The 1st section of this license act prohibited the keeping of a tavern without having first obtained a license. The court of common pleas granted the license and also fixed the amount thereof at a sum not exceeding fifty or less than five dollars per annum. By the 15th section of the act, a penalty, not exceeding one hundred dollars nor less than five dollars, was imposed upon any person keeping a tavern or retailing spirituous liquors without having obtained such license. Now, comparing these with the present act, we find that every person engaged in the traffic was, by these acts, as by the present, prohibited from continuing therein, and every person was prevented from commencing such traffic, except upon paying a specified sum of money and giving a certain bond. Under all these laws, the evidence of having paid the money and given the bond, in whatever form such evidence exists, is a legal permission or recognition of the right to continue or to commence the traffic. Every such person who fails to pay such money and give such bond is now liable to a fine of not exceeding one thousand dollars and not less than five hundred dollars, or to imprisonment not exceeding one year or less than thirty days, or both, at the discretion of the court.
    What difference, in substance and principle, can fairly be shown between these statutes ? Suppose the present constitution permitted a license system, as the only means of regulating the traffic in intoxicating liquors, and such a statute as the present were enacted, and its constitutionality drawn in question. Could any one successfully show that it was not a license law ? And is not this a full and fair test of the case at bar ? It was therefore vain for the legislature to say that the act should not be construed or held to authoi^ze the sale of intoxicating liquors. "What magic is there in names ? Merely declaring it to be or not to be a license does not make it so, or avoid the force of the constitutional restriction. It is the substance and effect of the act which must govern. And when a declaration is made like the one at the close of this statute, it is strongly suggestive of a deliberate intent to evade, by a mere mask of words, some constitutional inhibition, which would surely be condemned if attempted by any open or direct method. Certainly, where an act cannot be done directly, no just or sound construction of the constitution will permit the legislature to accomplish precisely the same thing under another name and in a different form.
    In addition to all this, and in further consideration of the effect, upon the person engaged in the traffic, of failing to make the payment and give the bond required by the act of April 5th, 1882, we direct the attention of the court to the Revised Statutes, § 6942.
    It is true that this section was taken by the revisers from the 4th, 8th, and 9th sections of the act of 1854, .52 Ohio L. 153; 2 Swan and Critchfield, 1431; but a comparison of the statute, as it now stands, with the original, will show that it has been purposely altered in the revision, so as not to be confined, as was the case originally, to th.e keepers of “ places where in toxicating liquors were sold in violation of this act,” but has been enlarged to include the “ keeper of a place where intoxicating liquors are sold in violation of law.” It is quite clear, therefore, that this section provides a punishment for the keeper of the place where the traffic is carried on in violation of section 6944 to 6950, and cannot be restricted to the keeper of a place where intoxicating liquors are sold to be drank upon the premises, or sold to minors, or are sold to persons intoxicated, or in the habit of becoming intoxicated, as was the case under the original act of 1854'; on the contrary, the keeper of such place is punished, under section 6942, and his place is required to be abated, as a common nuisance, if, without selling to be drank upon the premises, or to minors, or to persons intoxicated, or in the habit of becoming intoxicated, he shall sell on Sunday, or within four miles of a religious society assembling for worship, or within twelve hundred yards of the Ohio Soldiers’ and Sailors’ and Orphans’ Home, or within two miles of the Ohio Reform Farm, or any agricultural fair, or shall convey spirituous or malt liquor or wine into any jail, or sell or give the same away on any election day, &c., &c. It also thus becomes perfectly clear, that if the act of April 5th, 1882, is constitutional, the traffic in intoxicating liquors carried on without making the payment and giving the bond required by this act, is properly described in the 5th section of the act itself as “ an illegal traffic ; ” and that intoxicating liquors will be sold, if such payment be not made and bond given, “ in violation of law,” and that the keeper of the place where such traffic is carried on, will be punishable under section 6942, not for the traffic, but for the offense of being the keeper of the place, by fine or imprisonment, and, upon conviction, the place must be deemed to be a common nuisance, and shut up and abated. This constitutes a specific forfeiture of the right to conduct the traffic, which, by closing the place where it is conducted, destroys the opportunity to carry it on, if the condition be not complied with, and therefore furnishes another reason for treating the statute as a license law within the description, which Judge Cooley concedes as correct, and which he claims the Michigan act avoided, because, as he assumes, it did not forfeit or render illegal the right to continue the traffic.
    (Other constitutional objections to the law were made and elaborately argued, but as the opinion is confined to the question of license, further notice of the argument of counsel is not made. — Rep.)
    (The briefs and arguments of counsel in the case of Catoir v. Watterson, a case on error, reserved from the district court of Oayuhoga county, and determined by the decision of this case, were considered and heard herein. The counsel in that case made, among others, the same point’s fro and con as those given above.) They were :

      C. H. Scribner y Foran <& Da/wley y L. A. Russell and Asher Cools, for plaintiff in error.

      Carlos M. Stone and Alex. Hadden, for defendant in error.
   Oket, C. J.

The question in this case is whether the act of April 5, 1882 (79 Ohio Laws, 66), “ more effectually to provide against the evils resulting from the traffic in intoxicating liquors,” is in conflict or in harmony with art. 15, § 9, of the constitution (Schedule, § 18), which is as follows: “ 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.” In the decision of tíauses in this court, the most important and delicate duty of a judge is the determination of such a question. While it is now universally conceded that this court is clothed with power, and imperatively required to determine that an act is void, if it is in conflict with the constitution, it is equally well settled that the presumption is in favor of the validity of every act, and that no judge is warranted in holding a statute to be in conflict with the constitution, until he has given to the question of its validity most careful consideration, and is able to show in what respect there is such conflict, and that it is irreconcilable. To hold a legislative enactment to be void, where it is not plainly in conflict with the organic law, is as clearly unwarranted as to circumvent or nullify a plain constitutional inhibition by holding that the identical thing inhibited may be done under another name. Guided by these principles, we have bestowed upon the question before us that care which its acknowledged importance .demanded.

At common law the traffic in intoxicating liquors was a lawful business. See remarks of Botnton, J., in Baker v. Beckwith, 29 Ohio St. 314, 319; Yaple, J., in Granger v. Knipper, 2 Superior Court Rep. 480. And there is nothing in the federal or state constitution which changes the rule. But the right to provide against the evils resulting from the traffic in intoxicating liquors is asserted in our constitution in the words already quoted. The origin of statutes licensing the sale of liquors is found, it is said, in 5 & 6 Edward VI. c. 25, which statute was enacted more than three centuries ago. 5 Reeves’ His. Eng. L. 36. The history of the legislation, English and American, upon this subject, is very instructive, but I have not time or space to enter fully upon it here. It is sufficient for the present purpose to show the condition of the law upon this subject at the time the constitution of 1851 was adopted by the convention which framed it. The act of 1831 (2 Swan & Cr. 1426), “ granting licenses and regulating taverns,” was then in force, and the license therein provided for was a license to retail intoxicating liquors as well as to keep a tavern. Hirn v. The State, 1 Ohio St. 15. That act provided how application should be made to the court of common pleas for such license, what notice of the application should be given, and what evidence might be offered on the hearing of the application. When satisfied that the proper notice had been given, that the applicant was a person of good moral character, that he was provided with suitable accommodations, that such tavern was needed, and that the applicant was a suitable person to keep the same, the court was authorized to grant such license for one year. In 1847, it was provided that the word authorized ” should be construed to mean required, and that act was subsequently repealed. 2 Ourwen, 1341, § 10. The act of 1831 further provided, “ That the court granting the license shall fix the price thereof, which shall not be more than $50, nor less than $5 per annum, having proper regard to the applicant’s situation for business.” On payment into the treasury of the sum fixed, and payment of a fee of fifty cents to the clerk of the court granting the license, he issued to the applicant a paper, under the seal of the court, called a license. The act further provided, “ That if any person shall keep a tavern or retail spirituous liquor, 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 keeper of such tavern,” he shall be fined not exceeding $100, nor less than $5, on conviction upon indictment. But it will be seen that under that act any person could, without license, lawfully sell liquors of any sort, in any quantity not less than one quart, if the liquor was not to be drank where sold. And it was further provided (2 S. & C. 1430), that if such tavern-keeper permitted any kind of rioting, reveling, intoxication or drunkenness on his premises, he should be indicted and fined, and his license should be revoked. The act of 1831 was repealed, so far as it authorized a license to" traffic in liquors, by the act of March 12, 1851 (Hirn v. The State, supra), and in the absence of such repeal it would have been, in that particular, abrogated by the constitutional provision under consideration.

From the fact that the framers of the constitution must have had in their minds the license law then in force, it is argued that the constitutional inhibition under consideration is directed against licenses so granted and issued, and none other. But we think such a construction of the organic law wholly inadmissible. “Particular cases or instances,” said Gholson, J., in Goshorn v. Purcell, 11 Ohio St. 641, 649, “ lead to the adoption of general rules of principles. Many of the general rules of law are thus deduced from the decision of particular cases. But when particular instances lead to the adoption of a general rule in the shape of a legislative or constitutional provision, the authority for the rule has no such limit. The rule is to be interpreted from the language employed in its enunciation, and that language, when clear and comprehensive, is not to be limited in view of the particular instances which may be supposed to have led to the adoption of the rule.” Clearly this inhibition of the constitution applies to all departments of the government, and restrains the legislature from granting licenses for such purpose, whatever form of legislation may be adopted. If more direct authority for such construction could be thought necessary, it may be found in The People v. Thurber, 13 Ill. 554. It was said in that case, “ the law itself is the license.” Moreover, if there had been any force in such objection, it would have been suggested in Youngblood v. Sexton, 32 Mich. 406; s. c., 12 Albany L. Jour. 265; 2 Central L. Jour. 700 ; 20 Am. Reps. 654, where the whole subject was elaborately considered.

We come, then, to consider as to the condition of the law on April 5,1882, when the act under consideration was passed. At that time it was an offense, punishable by fine or imprisonment, to sell to any person alcoholic liquors to be drunk at the place where sold, or to sell intoxicating liquors of any kind to a person intoxicated or in the habit of getting intoxicated, or to a minor without the written order of his parent, guardian or family physician (77 Ohio Laws, 58), or to sell spirituous liquors on Sunday, except upon the written prescription of a practicing physician (78 Ohio Laws, 126); and there were some other restraints upon sales at particular places (Rev. Stats. § 6945) or at particular times (Rev. Stats. § 6948). But, except as restrained by the statutes above referred to, and valid ordinances of municipal corporations, the traffic was, as we have seen, entirely lawful. Hence, at the time the act in question was passed, it was clearly lawful to sell to an adult who was sober, and not in the habit of becoming intoxicated, wine manufactured from the pure juice of the grape cultivated in this state, or beer, ale or cider, to be drunk at the place where sold or elsewhere; it was lawful to sell to such person any sort of intoxicating liquor, in any quantity, where such liquor was not to be drunk at the place where sold ; and it was lawful to sell liquor of any. sort, in any quantity, even to a minor, if he produced the written order of his parent, guardian or family physician. Undoubtedly, one who conducted such business in a lawful manner was entitled, under the law as it then existed, to the same protection which was accorded to dealers in other articles of personal property; the state law required that he should be taxed, in addition to the sum exacted by the general government, in the same way as a grocer or like dealer, and not otherwise; and he was not required to give bond or pay money under the state law, as a condition upon which he might deal in liquors. Whether this condition"of the law was just or unjust, wise or the reverse, is not a matter submitted for our consideration nor is any such question submitted to us in determining as to the validity of the statute under consideration. I am simply stating what was the condition of the law of this state on April 5, 1882, and in what condition it would have remained, if the statute enacted on that day, being the act under consideration, had not been passed.

The act of April 5, 1882, which took effect from and after May 1, 1882, provides, among other things, that each person engaged in the traffic in intoxicating liquors shall, within thirty days after the act takes effect, and each person engaging in such traffic after May 1, 1882, shall, before engaging in such traffic, execute a bond to the state, to be approved by the probate judge, in the sum of $1,000, “ with at least two sureties, resident of the county, and each owning therein freehold estate, not exempt from execution, worth at least double the amount of the bond above incumbrances,” which bond shall be conditioned for the faithful performance of all and singular the requirements of this act.” And at the time the bond is given, and annually thereafter in the first week in May, such dealer shall, “ during his continuance in such traffic, pajr into the treasury of the proper county, upon the certificate of the county auditor,” not less than $100, nor more than $300, the amount being determined, according to the provisions of the act, by the place of business of the dealer. If the dealer giving such bond fail to make any such payment, he shall be deemed to have broken the condition of his bond, in an action to be brought thereon in the court of common pleas. If a person engage or continue in such traffic after his bond shall have been thus adjudged to be forfeited, or without having executed such bond, he “ shall be deemed guilty of a misdemeanor, upon conviction of which, he shall be fined in any sum not exceeding $1000, nor less than $500, or be imprisoned in the county jail not exceeding one year nor less than thirty days, or both, at the discretion of the court.” Moreover, in such case of failure to comply with the act, the traffic is in terms referred to as an “illegal traffic.” A sale of liquors to one illegally engaged in the traffic, is made punishable by fine not exceeding $2,000, nor less than $200, or imprisonment not exceeding one year nor less than thirty days. Besides, a person giving such bond, who engages or continues in such traffic after default in making any such payment into the county treasury, is, with his sureties, made liable on such bond for double the amount of such default.

The act under consideration provides, that “the use and sale of intoxicating liquors, in good faith, for purely medicinal purposes, by lawfully authorized physicians in their regular practice, or of pure alcohol for mechanical purposes, or of other intoxicating liquors by druggists, upon a written order or prescription of such physician for such purposes, shall not be deemed traffic within the meaning of this act.” But with this exception, the act is as 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. If such person fail to give bond, as required by the act,-he becomes a criminal by continuing in the traffic. So if, having given the bond, he continue in the traffic without paying money into the treasury as required by the act, his bond is declared forfeited and he becomes equally a criminal. It is, in other words, whei’e the person engaged or engaging in the traffic fails to comply with the statute in the way stated, impossible for him to carry on such traffic, or sell intoxicating liquors of any sort, without committing a crime. But dealers in liquors who execute bonds and pay into the treasury, in advance, annual sums of money, as stipulated in the act, acquire a privilege of freely trafficking in intoxicating liquors, with the restrictions and exceptions mentioned, to the exclusion of all other dealers.

It is conceded that the privilege granted by the act under consideration is not in the ordinary form of a license. It is also true, that the provisions of the statute are so arranged, and of such peculiar form, that their real meaning is not readily perceived. But it is our duty to look through the collocation of words, whatever the form, to the operation and effect of the statute, and determine from that whether it is within the constitutional inhibition. Remarks' bearing upon this subject will be found in cases already referred to, but the observations of White, C. J., in the District Court Case, 34 Ohio St. 431, 440, are more pertinent. “ The constitution,” said he, “ must be interpreted and effect given to it as the paramount law of the land, equally obligatory upon the legislature as upon other departments of the government and individual citizens, aceordto the spirit and intent of its framers, as indicated by its terms. An act violating the true intent and meaning of the instrument, although it may not be within the letter, is as much within the purview and effect of a prohibition as if within the strict letter; and an act in evasion of the terms of the constitution, as properly interpreted and understood, and frustrating its general and clearly expressed or necessarily implied purpose, is as clearly void as if in terms forbidden.” And see Monroe v. Collins, 17 Ohio St. 665; Walker v. Cincinnati, 21 Ohio St. 14, 53; Eichenlaub v. The State, 36 Ohio St. 140. The doctrine so enunciated we take this occasion to re-affirm, in applying it to the statute under consideration.

The power to license certain classes of business, impose a charge therefor in the form ,of a tax, and enforce the payment of the tax as a condition precedent to the lawful prosecution of the business, is well settled. Mays v. Cincinnati, 1 Ohio St. 268; Baker v. Cincinnati, 11 Ohio St. 534; Cincinnati Gas Co. v. The State, 18 Ohio St. 237; Telegraph Co. v. Mayer, 28 Ohio St. 521. This relates only to employments which, in one form or another, impose burdens upon the public. Such tax cannot be imposed merely for general revenue, for the only mode of raising such revenue, whether for state, county, township, or municipal corporation purposes, is found in the twelfth article of the constitution (Ranney, C. J., in Hill v. Higdon, Zanesville v. Richards, 5 Ohio St. 243, 589; 18 Ohio St. 237; 31 Ohio St. 329); and as Gholson, J., remarked in Baker v. Cincinnati, supra, “ it could not be employed as a mode of taxing property, without reference to the uniformity and equality required in section two, of article twelve, of the constitution.” That eminent judge also made this remark with reference to the license under consideration in that case, indicating the nature of and limit to such taxation: “ The burden thus devolved on public officials, requiring, perhaps, an increase in their number and compensation, for the benefit of exhibitors of shows or performances, may justly authorize a charge beyond the mere expense of filling up a blank license.” With, respect to the traffic in liquors, however, the power to license is, as we have seen, in terms denied ; but in relation to such traffic, express power is granted to “ provide against evils resulting therefrom.” See remarks of Thurman, C. J., in relation thereto, in Miller v. The State, 3 Ohio St. 475.

What, then, is a license % In a general sense, a license is permission granted by some competent authority to do an act which, without such permission, would be illegal. In Home Ins. Co. v. Augusta, 50 Geo. 530, the judge delivering the opinion, in speaking of the distinction between a license and a tax, said: “ There is a clear distinction recognized between a license granted or required as a condition precedent before a certain thing can be done, and a tax assessed on the business which that license may authorize one to engage in. 42 Geo. 596. A license is a right granted by some competent authority to do an act which, without such license, would be illegal. A tax is a rate or sum of money assessed on the person, property, &c. of the citizen. Bouv. L. D.; 36 Geo. 460. A license is issued under the police power of the authority which grants it. If the fee required for the license is intended for revenue, its exaction is an exercise of the power of taxation. Cooley’s Const. Lim. 201.” In the decision of that case on error (93 U. S. 116, 123), Swayne, J., refers to the power to tax and to license, but he does not intimate, as has been supposed, that there is no distinction between a tax and a license, based on a difference in their effect on a business. It is quite sufficient to say of the case there under review and the case to which the judge refers, that the ordinance and legislation under consideration were different from the legislation involved here, and that the power of the legislative body and the court was not restrained in any of those cases by a constitutional provision like that which controls this case. And we find that the revenue acts of Congress and the decisions of the supreme court of United States, referred to by the counsel for the relator, shed no light on the question before us.

In Youngblood v. Sexton, supra, the question was whether a sum imposed by a statute of Michigan on a dealer in intoxicating liquors, was a tax on the business, or an exaction for a license, and hence within a constitutional provision prohibiting the granting of a license for such purpose. The court held it to be a tax and not a license, and in delivering the opinion, Cooley, J., said: The popular understanding of the word Ícense undoubtedly is a permission to do something which without the license would not be allowable. This we are to suppose was the sense in which it was made use of in the constitution ; but this is also the legal meaning. The object of a license, says Mr. Justice Manning, is to confer a right that does 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 than 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 taxaction of a business which was found in existence, and the carrying on of which it no longer prohibits, and that is all.” And in Pleuler v. The State, 11 Nebraska, 547, where a similar question arose, under a statute of Nebraska, and the exaction was held to be a license, Youngblood v. Sexton was cited, the definition of a license which it contains was stated, and the court added: “ Within this definition, a mere tax upon the traffic, unless its payment confers some right that otherwise would not have existed, can in no sense be properly called a license.” Hence, the distinction between the act under consideration in the case before us, and the Michigan statute, is very plain. Non-compliance with the Michigan statute did not render the traffic illegal, and compliance with it gave a dealer no privilege over another dealer who failed in such compliance; but one who carries on the traffic under the Ohio statute, without complying with its provisions, commits a criminal offense, while a dealer who complies with it obtains privileges denied to others.

An effort has been made to show that the penal provisions of the statute simply provide a mode of collecting a tax, and moreover, that giving the bond and paying the money is simply the performance of a condition upon which business may be done, the conditions, it is said, not being different in principle from regulations as to the days and times of closing the place of business, putting in or- removing screens, or the like. But we think the provisions of this statute are of a very different character. They impose, as we have seen, conditions precedent to the lawful prosecution of such business. Noncompliance with the statute renders its prosecution, to any extent wholly illegal; and hence, the act falls within the definition of a license law stated in the cases to which I have refered. No unrestricted license to traffic in intoxicating liquors has ever been granted in this state; and the restrictions and conditions imposed by this statute and the acts in connection with which it must be construed, in no way affect the character of the privilege granted, or render it anything else than a license. So, it is objected that there is no provision that a dealer shall be a person of good character ; but character is not a necessary element in a license. Whether it is in effect the grant of a license, and therefore inhibited, must be determined from the whole act. The constitutionality of a statute depends upon its operation and effect, and not upon the form it may be made to assume. This statute, in its title, is an act to provide against evils resulting from the traffic. In form, it requires the payment of money and the execution of a bond, and provides that certain consequences shall follow in case a dealer in liquors fails to comply with the act. In substance, it 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. Though not called a license law, it authorizes the granting of that which in effect is as clearly a license as the privilege granted under the act of 1831. The quality of a thing is not altered by changing its name; and the special privilege to traffic in liquors which is conferred under this act, is as plainly a license as if it had been in terms so called. What would constitute a license law within the constitutional inhibition, and in what respect would such a law differ, in its operation and effect, from the act under con-^ sideration, construed, as that act must be, in connection with the statutes in force relating to intoxicating liquors ? This pertinent inquiry was made during the ai’gument of the cause, but no satisfactory answer has been given to the question, for the obvious reason that it is impossible to frame a statute which, in its operation and effect, would be more clearly a license law than the act under consideration. And it is proper to say on the question of constitutional power, that the giving or not giving the bond is not an essential matter. The bond is to secure the payment of the specified sums of money. The question of the constitutionality of the act would have been the same had the legislature not required the bond to be given, but had required the payment of the same sums for the privilege of engaging or-continuing in the traffic.

Attention has been directed to the fact that the statute in question provides, that nothing in this act shall be construed or held to authorize or license in any way the sale of intoxicating liquors.” No doubt the construction placed upon a statute by the legislature wdll in many cases have controlling weight. Schooner Aurora Borealis v. Dobbie, 17 Ohio, 125. But finding that this statute in its operation and effect is simply and only a license law, in violation of the constitutional inhibition, the provision as to the manner in which the act shall be construed is wholly nugatory.

■ Finally, it is urged that even if the section providing punishment for non-compliance with the requirements of the statute, should be held to be unconstitutional, still that other parts of the act may stand. But as Blaekstone observes, “ the main strength and force of .a law consists in. the penalty annexed to it.” 1 Com. 57. It is not to be supposed that the legislature would have enacted this statute without such clause; and hence, the whole act fails. The State v. Perry Co., 5 Ohio St. 497.

Counsel for the defendants insist, furthermore, that the act is in conflict with various other provisions of the constitution. But the view adopted in this case renders it unnecessary to enter upon the examination of the questions so presented. On the other hand, counsel for the relator contend that, notwithstanding the inhibition against licensing such traffic, the business of a dealer in liquors may be taxed, and they rely on Youngblood v. Sexton, supra. But the question involved in that proposition is not before us for decision in this case. We have not considered that question with reference to any determination of it, and therefore we express no opinion upon it.

In reaching the conclusion that the act in question is a license law, and therefore void, the decision is not in conflict with any ease or authority to which our attention has been directed.

Writs refused.

Johnson, J.,

dissenting. After the most painstaking examination which I am able to bestow, I cannot assent to the legal proposition, that the act under consideration is a plain and palpable violation of the constitution.

I dissent from the 3d point of the syllabus, which announces, that inasmuch as the. act requires that every person engaging or continuing in the traffic in intoxicating liquor, without having given the bond provided for in the 2d section, or after such bond has been adjudged forfeited, shall be guilty of a misdemeanor, therefore the act is in conflict with section 18 of the schedule, which prohibits granting licenses for such traffic. To the canons of construction recited by the Chief Justice, the following may be added as equally pertinent. While it is the duty of the court to refuse to enforce a statute that is unconstitutional, yet the repugnance must be clear, necessary and irreconcilable. It ought not to be done, because of a difference of opinion between the judicial and the legislative department, as to questions of public policy or expediency, nor unless the statute, when properly construed, is a plain and palpable violation of the constitution.

It should be both against the letter and spirit of that instrument. So long as there is a doubt, the decision of the court should be in favor of the law. Whenever courts, in doubtful cases, undertake to declare laws unconstitutional, they weaken their just power and may with propriety be accused of usurpation. They lose sight of the scope and province of the judicial department of the government, and trench upon the rights of the people vested in the legislative department. It is the duty of the court in construing a statute to look at the reason of it, and to give it such a construction as will comport with the intention of the enacting power. When that intention is manifest, but is in part defeated by the use of some particular word or phrase, the court should look to the intention rather than the words. Per Hitchcock, J., in Alexander v. McCormick, 2 Ohio, 74, 75; C. W. & L. R. R. Co. v. Clinton Co., 1 Ohio St. 77-82.

Again, a statute must not be construed- so as to nullify or reverse the evident policy of the law, or to render impossible that which it was the obvious intent to render possible; Beaver v. Trustees, 19 Ohio St. 97, 108. And whenever words and phrases have acquired, when used in a constitution, or a statute, a definite fixed legal signification, and are thus- used, the presumption is, that it was meant to use them in that sense. Lieber’s Hermeneutics, 3 ed. 115, 136; Turney v. Yeoman, 14 Ohio, 207. Thus the word “ jury,” in- the- constitution, had its fixed legal sense at common, law,, andi was so used in the constitution. Sovereign v. State, 4 Ohio St. 489; Sedgwick on Stat. & Const. Law, 221, 223, 224 and note.

Further, the mischief to be guarded against by a constitutional provision is to be considered in determining the extent of. the provision, Per Welch, J., in Cleveland v. Frick, 18 Ohio St. 301-3; and such a construction should be given to a constitutional provision, as will make it consistent with other provisions, and harmonize and give effect to all, as a whole. To do this, we have only to suppose the convention used language with reference to its received signification and as it had been practically applied for a long series of years. Hill v. Higdon, 5 Ohio St. 243-7.

Gfuided by the foregoing rules, it is the just province of the judiciary, to annul statutes in contravention of the constitution ; in all other cases, the exercise of this power is not warranted by our theory of government, and is dangerous to the liberty of the people.

With these principles in view, let us inquire : What is the legal signification of the word license, as used in the constitution ? What limitation was thereby placed upon the legislative power? Is the act in controversy, as fairly interpreted, so clearly and palpably a license, within the meaning of that word, as used in the constitution, as to make it the plain duty of the court to declare the act void, and thus nullify the expressed intention of the legistature?

The no-license clause of the constitution, is a limitation upon the general legislative power, to provide against the evils resulting from the traffic in intoxicating liquors. Under the •constitution of 1802, there was no such limitation, and under •that instrument, it was the settled policy of the state, as ■evinced by its enactments during a period of more than fifty years, to regulate, and within certain limits, to prohibit the traffic, except to licensed vendors.

The general features of these statutes are stated in the opinion of the Chief Justice. Under that system of legislation which ■was known as the “ license system,” of regulating the traffic, •the distinguishing features were, that it was a special privilege to a selected few to traffic in the article, while all others were prohibited. The traffic, which was prohibited as a general rule, was legalized by the license. It was a grant of authority and an immunity from the penalties of the traffic. It gave the sanction and protection of law to a privileged class. It was, in short, a dispensation granted to some to retail liquor, and a denial to all others. It legalized the traffic to the extent expressly authorized.

It was the purpose of this clause to abrogate this system, and to place all on a common level, to give no protection or sanction to any, not given alike to all, and to leave the law making power to provide against the evils of the traffic in any method it might see fit, provided always, the protection and sanction of law should not be granted to any one to commit what was a crime in others. The constitution recognizes the fact, that there are evils growing out of the traffic, and that the legislature has authority to provide against them. The only limitation on this power was, that no license to engage in the traffic should ever be granted. Under the no-license system, no man can protect himself from unlawful acts by the shield and panoply of a license, while under the license system he could.

The first exercise of the legislative power under the no-license system, was the act of 1854, to provide against the evils resulting from the traffic in intoxicating liquors ; the last, was the act of 1882, “ To more effectually provide,” &c., against these evils.

Under the act of 1854, certain forms of the traffic were prohibited, all other forms were permitted. Under the act of 1882, and by its 15th section, the act of 1854 is expressly recognized as part of the system. Under both acts, the privileges and immunities, as well as the penalties of the law, have a unif orm operation on all and in every part of the state. Neither act authorizes a violation of law. By comparing these two systems as defined in the statutes of the state, we can ascertain what is meant by this no-license clause in the schedule.

An examination of the series of statutes, beginning in 1792, when this state was under a territorial government, and extending down to the adoption of the present constitution, and a comparison of their provisions with those of the statutes since the adoption of the constitution of 1851, will give a clear and definite idea of the change intended by the adoption of this clause. The one was on the principle of regulating the traffic, by a restricted license to a few to do acts which were crimes in the many, while the other granted immunities to none not allowed to all, and punished all alike for the prohibited traffic. The one, sought to provide against the evils by a license regulation which placed the prohibited traffic in the hands of licensed vendors, who were exempted from the penalties of the law, while the other, so far as it goes, punished all alike for like acts.

This mode of regulating the traffic by the system of licenses, as known and understood by the members of the convention that framed the constitution, was abrogated by section 18 of the schedule. The object was, to change the former policy, and in this respect, to limit the' legislative power over the subject, so that thereafter the protection of positive and express law should never be granted to engage in the traffic. The moral sense of the friends of this clause was shocked at the idea of licensing crime, as they termed the old system. Whether this change of policy was wise or unwise, it is not the province of a court to discuss.

This brings us to the direct question, is the act of 1882, in practical and legal effect, a license within the meaning of that term as used in section 18 of the schedule. The evil to be remedied is an important element in ascertaining this meaning This supposed evil was the sanctioning by law of this traffic in any form.

The word- license, in its common, or as is said in the opinion, in its “ general sense,” is well defined in the second point of the syllabus to be, “ permission granted by some competent authority to do an act, which without such permission would be illegal.” It has other shades of meaning. In its popular sense it is a permission or authority to do an act, which would be otherwise unauthorized.

The problem is, not what the popular, common or general sense of this word is, but what is its legal meaning. In what sense is it used in the constitution? Placing ourselves where the framers of this clause, and the people who adopted it stood, I think it obvious that it meant, to authorize the legislature to provide against the evils of the traffic by any method within the province of the law-making power, except by confiding the authorized t/rajfic to pa/rticular persons. In a constitutional sense a license therefore means a permission or privilege granted to a person to traffic, that is, to buy and sell, intoxicating liquors, under the protection of the law, while others to whom the privilege is not granted, are punished for like acts. If this is the legal meaning of the word, and it will hardly be controverted, then it follows necessarily, that the act of 1882, is neither in form or legal effect a license. The person who complies with the act by giving bond and paying the tax, has no special privilege to traffic in liquors. The acts which are criminal if no such law existed, or if he had not complied with it, are equally so if he complies with the law. It grants no dispensation, special privilege, exemption or immunity. It confers no authority to sell except according to law. The traffic is legal or illegal as defined by the act of 1854 and other statutes independent of this act. In fact, the great objection to the law, urged by its opponents was that it was taxation without protection. A clear admission that the act did not license the traffic.

The act of 1854 makes certain kinds of the traffic illegal. The act of 1882 leaves that act in force, and exempts no one from its penalties, by giving the bond and paying the tax. The expressed intent of this act is, that it shall not be construed to be a license or to authorize the sale of intoxicating liquors.” See. 15.

While this legislative declaration of its meaning cannot control the judiciary, where there is no doubt, yet it should have great weight in determining its legal effect, for the rule is, from the words used we must ascertain the legislative intent, the pole-star of all judicial interpretation. The Borealis v. Dobbin, 17 Ohio, 125; Sedgwick on Stat. Const. Constr. 214; Pike v. McGoun, 44 Mo. 491.

The key-note of the opinion is, that the provisions of the 4th section, in its connection with the 1st and 2d' and 5th, make this in legal effect a license.

The 1st section requires every person engaged in the traffic or who shall hereafter engage therein, to pay the amount specified, during the first week in May annually. The 2d requires every such person to give a bond as therein conditioned. The 8d section gives an action on the bond, if payment of the tax is not mad§, and the 4th section makes it a misdemeanor to engage or continue in the traffic without giving the bond, or after it has been adjudged forfeited. Nothing is prohibited by the act except to engage, or continue in the traffic without gwing the bond, or after it has been forfeited.

The penalty imposed is for not giving security to pay the tax. It is only a mode of enforcing the payment of the tax. By complying with the law no emthority is granted to engage in the traffic. Section 15. It is only a condition precedent to engaging in the lawful traffic. This traffic is open to all on the same conditions.

But it is said the 5th section speaks of the traffic where no bond is given as “ illegal,” but as has been said, as to the 15th section, the legislative designation does not vary the legal effect. If the 4th section had read, referring to the 1st and 2d, “ Every such person,” instead of the words used, the meaning would have been the same. It is conceded, that if there had been a penalty merely for the non-payment of the tax, the act would not be a license in legal effect, but that, as the bond is required, it is a privilege granted to engage or continue in the business, otherwise illegal. It is competent for the legislature to say when the tax shall be paid, and what, if any security shall be given, or penalties imposed to insure its payment when due. Such security, or such penalties, are only modes of enforcing a payment of the tax. Such a law does not purport to grant authority to engage in the business. It merely says to all engaging in the business taxed, you must pay or secure your tax, or you will be punished. Such is the uniform construction of similar laws by the very highest authority.

The License Tax Gases, 5 "Wall. 462, are directly in point. The defendants were indicted under section 73 of the act of 1864, to provide ways and means, &e. 13 U. S. Stat. at Large, 248. Section 71 provides, that no person, firm, or corporation, shall engage in or carry on certain specified business, including traffic in liquors, until they have paid the tax and obtained a license therefor.” Section 72 provides how the application shall be made, and section 73 makes it a misdemeanor, to engage in or carry on such business without such license. By section 78, the licensee is not exempted from the penalties of any state law for engaging in such business.

The parallel between this statute and the act of 1882 is perfect. Section 73 of this statute and section 4 of the act of 1882, are identical in legal effect. They each make it a misdemeanor to engage in and carry on the lawful business without performance of the conditions prescribed. In the one it is a misdemeanor to engage in the business without a license, so-called, which can only be had by payment of the tax in advance. in the other, it is a misdemeanor if the bond is not given in advance to secure the tax.

In the one, the license does not exempt the person from the penalties imposed on the business in any of the states, that is, it grants no immunity from these laws, — while in the other the giving of the bond does not exempt the person from the penalties of the act of 1854, or other penal statutes relating to the traffic. The United States statute calls this tax a “ license,” while the act of 1882 gives it no name, but declares it is not a license. Upon indictments of sundry persons under this act of Congress, the court unanimously held, that, “ The requirement of payment for such licenses, is only a mode of imposing taxes on the licensed business, and that the prohibition under penalties against ca/rrying on the business without license, is only a mode of enforcing the payment of such ta/xes.

In the opinion of that high tribunal, it is said, No claim was ever made that these licenses thus required gave authority to exercise any trade or business within a state. They are regarded merely as a convenient mode of imposing taxes.” Again : But as we have already said, these licenses give no authority. They are mere receipts for taxesT Hence, though they are called licenses, and though it is a misdemeanor to engage in or carry on the traffic in liquors, without first having obtained them, they are taxes, and though it is a license in form, it is a mere tax receipt.

It was such a misnomer, in the judgment of the supreme court, to call such a law “ a license law,” that Congress, in 1866, amended it in that respect by striking out the word “ license,” and inserting “ special tax.” Thus by the change of one word, the act became in name what it was declared to be in legal effect, a tax law, because the so-called license conferred no authority to engage in the traffic, and therefore was not a license law.

This court, in direct conflict with this high authority, holds, that although the act of 1882 confers no authority to traffic (section 15), yet it is in legal effect a license, because a bond is required to secure the tax.

These License Tax Cases, in another respect, are on all fours 'with the present case. It was there held to be the settled law, that Congress could grant no license to traffic in liquor, or to engage in a lottery in conflict with the laws of the states, regulating or prohibiting the business, because that would interfere with the police power of the states. This was equivalent to a no-license clause in the constitution of the United States, as much as if that instrument had declared, “ That Congress could grant no license to traffic in liquors or to sell lottery tickets.” Now the Revenue Act makes it a misdemeanor to engage in or carry on the business, without first paying the special tax and obtaining the license. This is precisely the scope and legal effect, and almost the identical words of the act before us, and it could not for want of constitutional power, have been'upheld, if that court had held, as this does, that it was a license. To sustain that law, it was necessary to hold, that that act was not a license. This the court did, saying that the fact that the paper issued on payment of the tax was in form a license, did not make it one, that that was only a tax receipt; and the further fact, that it was a misdemeanor, to engage in or carry on the business without the performance of the condition precedent, the payment of the tax, was only a mode of collecting the tax. We are not warranted in disregarding the unanswerable reasoning of this case, much less in saying that, “No question of license was involved.” . The most cursory examination will show to the contrary.

This decision in 5 Wallace, is affirmed in strong terms in Home Ins. Co. v. City Council, 93 U. S. 116. It was the case of an ordinance of the city of Augusta in Georgia, providing for an “ annual license tax on insurance companies.” Prior to the passage of this ordinance the Home Insurance Company had complied with the state law, and held, under a statute similar to our own on that subject, a certificate of authority to do business in the state. This ordinance was passed by the city imposing a “ license tax,” and the Home Insurance Company of New York sought to enjoin the collection of this license tax, on the ground, among others, that the city could not require a second license, as it would impair the obligation of the contract with the state evidenced by the certificate of authority from the state of Georgia. The supreme court of Georgia (50 Geo. 160), had held this so-called license, was not a license but a special tax, and conferred no authority to do business. It was only a tax as a condition precedent to doing business.

The case was carried to the supreme court of the United States, on this question, and that court again unanimously held that such a tax was not a license, but a valid tax imposed by the city, and after repeating what was said in 5 Wallace, adds : “ In the ordinance in question the tax is designated ‘ a license tax,’ but its payment is not made a condition precedent • to the right todo business. No special penalty is prescribed for its non-payment, and no second license is taken out. Had the ordinance been otherwise in these particulars, we have seen, viewing the subject in the light of the License Tax Cases, that the result wotild have been the sameL In view of the foregoing cases, it can hardly be said of them that they “ shed no light on the question before us.” I think they shed a flood of light directly on the question. Neither can it be said of them, “ that the ordinance and legislation under consideration (in those cases), was different from the legislation involved here.” The fact that there was no anti-license clause involved, if conceded, which it is not, is wholly immaterial, as the question there was, as it is here, what is the meaning of the word license, and does a prohibition under penalties against carrying on business until a tax is paid import a license ? Such preeminent authority as these cases are, ought not to be ignored by this court as they have been.

Again, the 3d point of the syllabus holds that this statute, is in its operation and legal effect a license, as to the traffic not already prohibited.” It follows, as to the traffic already prohibited, it is not a license law. Therefore, as to all forms of the traffic prohibited by pre-existing law, it is not a license but only an additional mode of preventing such traffic. As to such traffic, it is not a license, and therefore not unconstitutional. To that extent, and as an additional penalty for preventing the prohibited traffic, it should be allowed to stand, though void as to the traffic not already prohibited. The relator in this case does not show or aver that he expects to confine himself to the lawful traffic. Why should he not, even on the concession of the opinion, give a bond for the payment of the amount, in case he engaged in the prohibited business %

Numerous statutes might be cited, to show that regulations prescribed as conditions precedent or subsequent to engaging in a business, and enforcing them by penalties, are not licenses.

Thus section 2778 of Revised Statutes requires foreign express and telegraph companies to return and pay a percentage tax on receipts in addition to the tax on property. By section 2843, if these taxes are not paid, the companies in default were forbidden to do busines in the state.

No one would call this a license statute, but a mode of enforcing the payment of the' taxes due.

The case of Youngblood v. Sexton, 32 Mich. 406, is important, as coming from a state having a constitutional provision similar to ours. It is directly in point and cannot be explained away. The statute was a graduated specific tax on the traffic, with the usual provisions for its collection, and it was made a misdemeanor to neglect to pay the tax, and a penalty was imposed for each‘offense.

That statute was held, Cooley, J., announcing the opinion, to be a tax and not a license. It is sought to avoid the force of this case by drawing a distinction between the Michigan statute and our own by claiming, that under the Michigan statute, the business is not prohibited if the tax is not paid, while in ours it is. This is untenable. In the one, non-payment of the tax when due is a misdemeanor, and no bond is required, while in the other, failure to give the bond, which is merely security to pay the tax, is made the misdemeanor, and failure to pay the tax only subjects the person to an action on his bond.

In the one case, a person is punished for not paying the tax, while in the other he is punished for not giving the bond to pay the tax when due. Legal acumen would be exhausted in making a distinction. The power, by discriminating taxes, as well as by fines, penalties and forfeitures, to provide against vicious and criminal practices, including the evils resulting from the traffic in intoxicating liquor, such as the vice, pauperism and crime it causes, is, as I believe, a part of the legislative power of the state, that ought not to be frittered away or crippled. • The uniform course of legislation in this state establishes the fact, that free trade in intoxicating liquors has never been a part of the public policy of Ohio.

It is equally clear, that the power exists to provide against the evils resulting from this traffic, and nowhere is the right to do so more emphatically asserted than Miller & Gibson v. State, 3 Ohio St. 486, per Thurman, J.:

“ The idea apparently contended for, that the constitution recognizes an uncontrollable, illimitable right to sell intoxicating liquors, is manifestly erroneous. There is no such right in respect to any commodity, however harmless, for if there were, how could the various inspection laws, thg laws relating to markets, the license laws, the Sunday law, &*., be sustained? A power of regulation, a power to provide against evils incident to traffic, a power to protect community against the frauds or dangerous practices of trade, is, in a greater or less degree, vested in every government, and certainly the people of Ohio are not wholly without this protection. “ If to guard against these evils, some restraint upon the traffic itself is necessary, it may lawfull/y be imposed,” the fact being always borne in mind, and always acted upon, that the power is a power to regulate, and not to destroy. To this power, intoxicating liquors are expressly subjected by the contitutional provision I have quoted: but were that provision st/riclten out of the constitution, the power would yet subsist / and for the same reason that it might be declared unlawful to sell poison to a child, or a dagger to a madman, it might be made an offense to sell intoxicating drink to á minor or a drunkard; and for the same reason that any other common nuisance might, by law, be abated, the business of a common tippling house might be subjected to that fate.”