
    State of Ohio ex rel. Guilbert, Auditor of State, v. Kauffman, Auditor of Montgomery County.
    
      Doto law — Section Jf36Jf-0, Revised Statutes — Tax laid on liquor business — Law applies to malt liquor.
    
    Seetion 4364-9, Revised Statutes, applies to the business of selling a malt liquor or beverage which contains less than two per cent, of alcohol and is not intoxicating.
    (Decided June 25, 1903.)
    Mandamus.
    The petition is as follows: “The relator is the duly elected, qualified and acting auditor of state of the state of Ohio. The defendant, Thomas J. Kauffman, is the duly elected, qualified and acting auditor of Montgomery county, Ohio.
    “The relator represents that Clarence W. Brinkle and Leroy L. Reading are engaged as partners, under the firm name of Brinkle & Reading, in the sale of a malt liquor or beverage, commonly known as “Bishop’s Beer,” at No. 134 East Fourth street, in the city of Dayton, Montgomery county, Ohio, which malt liquor or beverage contains less than two per cent, of alcohol, and is not intoxicating.
    “That said relator gave to the said defendant as county auditor aforesaid, information that such business was liable to assessment under the provisions of the act of May 9, 1902 (95 O. L., 463, 464, 465), entitled: ‘An act to amend and supplement section 4364-14 and to amend section 4364-15, and to repeal an act passed April 16, 1900, relating to trafficking in spirituous, vinous, malt and any intoxicating liquors, entitled, an act to supplement section 4364-9 of the Revised Statutes of Ohio, as amended February 20, 1896 (O. L., Yol. 93, page 24), and being sections 4364-9a, 4364-9c (4364-9b, 4364-9c), 4364-9d, 4364-9e of the Revised Statutes of Ohio.’
    “That said business had not been returned by any assessor, as provided by said act, and the said relator ordered and directed the said defendant to forthwith enter the same upon his duplicate, and upon the county treasurer’s copy thereof, so as to subject said business to the tax provided in said act, and the act to which the same is amendatory and supplementary,known as the Dow Law, but which the said defendant failed and has hitherto refused to do.
    “Wherefore the relator prays that a writ of mandamus issue by this court, commanding the said defendant as auditor of Montgomery county, Ohio, to enter the same upon his duplicate, and upon the county treasurer’s copy thereof, as subject to such tax.”
    Defendant demurs t'o the petition for the reason that it does not state facts sufficient to warrant the relief prayed for.
    
      Mr. J. M. Sheets, attorney general, for plaintiff.
    The averments contained in the petition, that the beverage sold by the firm in question, is a malt liquor or beverage, and contains less than two per cent, of alcohol, and is not intoxicating, are admitted by the demurrer.
    We contend that the tax laid on the liquor business by the Dow law, comprehends just such a business as is here described. The admission that the beverage is not intoxicating, is assumed by the defendant to take it out from under the operation of the Dow law, and the defendant contends that section 8 of the law in question (83 O. L., 159), provides for the laying of a tax upon the business of “trafficking in intoxicating liquors,” alone, and cannot therefore be laid upon the business in question. This we deny.
    By reference to the original act (83 O. L., 157), it will be seen that the tax provided by the original act, was laid upon the business of trafficking in malt liquors, as well as those which were spirituous and vinous. The tax was laid by section 1 of that act.
    This section fixes the amount of the tax upon the different classes of business as follows:
    If the business was that of trafficking in spirituous, vinous and malt liquors, the amount of the tax was to be two hundred dollars annually. If the business was that of trafficking in malt or vinous liquors, or both, the tax would be but one hundred dollars.
    By thus providing for the greater tax to be paid when the person charged, was trafficking in spirituous liquors, and the lesser charge when such person was merely trafficking in malt or vinous liquors, it became apparent to the general assembly that keepers of such places were claiming to be selling malt and vinous liquors alone, and thus would pay but one hundred dollars annually, and escape the greater tax properly chargeable against the business surreptitiously conducted. In order to put an end to the fraud thus practiced, the law was so amended as to require the same tax from a person dealing in malt liquors as though he dealt in all the different classes of liquors named in the act. Section 4364-9, Revised Statutes.
    The relator contends that the imposition of three hundred and fifty dollars per annum, by the latter act, upon the business of trafficking in spirituous, vinous, malt or any intoxicating liquors, is upon the business of selling any or all of the character of liquors described -in the act, as a beverage; and that the terms, “spirituous, vinous, malt,” should not have read in connection therewith, the word “intoxicating,” as descriptive of the kind or character of liquors comprehended in those words; and that the phrase, “or any intoxicating liquors,” is a comprehensive phrase, to include a distinct class or kinds of liquors by themselves, and is not meant to limit or define the three separate classes which precede such phrase.
    The defendant claims that the terms should be read as if written, “spirituous intoxicating,” “vinous intoxicating,” “malt intoxicating” liquors.
    As a foundation for this contention, the relator claims the general assembly has full power to tax any business or occupation by any one of four methods: (1) On the privilege of doing business; (2) On the amount of business done; (3) On the gross profits; (4) On the net profits or dividends; and that this power so to tax is not confined to employments that may be prohibited nor to those that are harmful in and of themselves, nor those which impose any additional burden upon the public, but may be extended to any business or occupation. Cooley on Tax., Secs. 384, 385; Burroughs on Tax., Sec. 6.
    We now, as a state, derive the greater part of our income for general revenue, from a franchise tax imposed on domestic and foreign corporations, which tax is not predicated upon any harm suffered by the public from, the businesses carried on by such corporations.
    Relator contends that the sale of malt liquors, as a beverage, is unlawful, unless the terms of the Dow law are complied with. That this particular malt liquor contains alcohol, is admitted. If such business cannot be included by fair construction within the terms of the Dow law, we thereby sanction the selling of diluted alcohol under some innocent name, and such business would be perfectly legal and free from any tax, so long as the mixture would be kept ¡below the strength of an intoxicant.
    To avoid such results, which are now actually confronting the relator’s office, the construction should be adopted,, contended for, and the absurd consequences avoided. State v. Blake, 2 Ohio St., 147; Moore v. Given, 39 Ohio St., 661; Railway v. Jump, 50 Ohio St., 651.
    
      Mr. Charles Kinney; Mr. Frank W. Howell and Mr. U. S. Marten, for the defendant.
    If the business upon which the auditor of state ordered the county auditor to levy the assessment is subject to the impost, the auditor of state had the authority to so order, and it was the duty of the county auditor to levy the assessment.
    The article known as “Bishop’s Beer” was placed before the public in 1885, by Chas. F. Ogren, of Chicago, Ill., the renowned brewing scientist, at the special request of Rt. Rev. Samuel Fallows, D. D., LL. D., Bishop of Chicago, one of the leaders of the temperance movement at that time, as well as a powerful advocate of its cause at present.
    At that time Bishop Fallows, established a number of temperance saloons to run in opposition to the saloons selling intoxicating liquors. “Bishop’s Beer” was the beverage which was selected as being* the only substitute for intoxicating liquors and was sold in these temperance saloons. In taste and color or general appearance it cannot be distinguished from the best lager beer on the market, yet it is absolutely nonintoxicating, and its medicinal properties for an exhausted constitution are not excelled by some of the best known tonics.
    It has been indorsed by leading temperance workers everywhere as a great agency in their work, and since it is recognized by the masses of society that men must have places to congregate, and something to drink, this beverage fills all the requirements necessary, and tends to defeat the argument so often advanced, that one class of people have no right to absolutely restrain another of his liberty.
    In “Bishop’s Beer” we have a beverage brewed from pure malt and hops, containing all the food elements found in these two great products of the vegetable kingdom, yet devoid of the evil parts Avhich makes the so-called lager beer so injurious to the'health and such a destroyer of homes. It has become recognized as the “20th Century Beverage.”
    The manufacturers or agents will not permit its use.as a blind for the sale of intoxicants, and offer large rewards for the arrest and conviction of any one imitating or substituting it.
    The ravages upon the physical, intellectual and spiritual condition of our race by the habitual use of intoxicating beverages, together with the labors for the last forty years of benevolent and philanthropic individuals to arrest the scourge by efforts to produce a revolution in the sentiments, practices and habits of the community in respect thereto, have brought about several legislative enactments, among the most, important of which in our state is the Dow law. Section 18 of the Schedule, or section 9, article 15, of the Ohio Constitution, provides‘that: “No license to traffic in intoxicating liquors shall hereafter bu granted in this state; but the general assembly mgy, by law, provide against evils resulting therefrom.”
    
      Therein is found the furthering authority for all legislation against intoxicating liquors since the Constitution of 1851. Therein.was the key-note to the legislature’s adopting such legislation, a considerable force to be reckoned with in arriving at what they intended to legislate against by such enactments. Pursuant thereto, besides earlier acts of similar purport and hitting at' the same evil, the original “Dow law” was enacted in 1886 (83 O. L., 157), and transformed by successive amendments (84 O. L., 224-; 85 O. L., 117, 260). into Section 4364-9, et seq., Revised Statutes, 92 O. L., 34, the present law, whereby a tax is imposed “upon the business of trafficking in spirituous, vinous, malt or any intoxicating liquors.”
    The act throughout its several amendments above noted has been entitled “An act providing against the evils resulting from the traffic in intoxicating liquors:” Also see 94 O. L., 60; 95 O. L., 564; and invariably has such legislation been included under Title 5, Chapter 1, of the Revised Statutes, entitled “Intoxicating liquors and cigarettes
    
    Now, to discover the true meaning of the law, we must consider its reason and spirit, the cause which induced the law makers to enact it, and the mischief it seeks to prevent or remedy. However general may be the terms in which it may be expressed it only extends to those things or persons the law-making' power intended it to reach. Richard v. Lazard, 108 La., 540. In order to ascertain what that intention was, the title of the act should be looked to. Bronson v. Oberlin, 41 Ohio St., 483.
    And respondent’s construction thereof, as hereinafter set out, is fully supported by the aforementioned title of the act. Burgunder v. Weil, 60 Ohio St., 242.
    
      The entitling of the chapter and title of the Revised Statutes, also aforementioned, under which said section 4364-9 is found, being a part of the statutes, is also to be considered in arriving at the intent of the legislature. Harris v. State, 57 Ohio St., 94.
    Section 16, article 2, of the Constitution, provides that the subject of a law shall be expressed in its title.
    As the presumption is that the legislature has followed the beheSts of the Constitution, the ancillary presumption follows that the subject and purpose of the law are clearly and truly expressed in the title. Newton v. Toledo, 8 Circ. Dec., 607; 18 C. C. R., 765, (affirmed without report, Toledo v. Newton, 52 Ohio St., 649); Nazro v. Insurance Co., 14 Wis., 299; Spiedel Grocery Co. v. Armstrong, 4 Circ. Dec., 498; 8 C. C. R., 489 (affirmed and approved, Armstrong v. Spiedel Grocery Co., 53 Ohio St., 657).
    We find questions of statutory construction where the titles of the acts as indicating the legislative intention have swayed the court completely in the construction given.
    The similarity of these cases to the case at bar makes their reasoning especially applicable. And further, see Field v. Gooding, 106 Mass., 313; Trinity Church v. United States, 143 U. S., 462; Coosaw Mining Co. v. South Carolina, 144 U. S., 563; Burgett v. Burgett, 1 Ohio, 480.
    Also Section 4364-6, Revised Statutes (Sec. 8 of tiie act itself), which says: “The phrase ‘trafficking in intoxicating liquors,’ as used in this act, means the buying or procuring and selling of intowicating liquors otherwise than upon prescription issued in good faith, by reputable physicians in active practice, or for exclusively known mechanical, pharmaceutical or sacramental purposes, but such phrase does not include the manufacture of intoxicating liquors from the raw material, and the sale thereof at the manufactory, by the manufacturer of the same in quantities of one gallon or more at any one time.”
    It is admitted that “Bishop’s Beer” is a malt liquor containing less than two per cent, of alcohol and is not intoxicating. The question is thus sqnarely raised, whether all malt beverages are taxable under the Dow law whether intoxicating or not.
    The defendant’s contention is that the business of Brinkle & Reading is not subject to the Dow tax, as the legislature did not contemplate the taxation of any business, the prosecution of which was not damaging to the public or to third persons; that the object and purpose of the legislature, in enacting the Dow law, was to do just what the title of the act indicates, “To provide against the evils resulting from the traffic in intoxicating liquors ” and that there was no intention by this act to impose a tax upon the business of trafficking in any beverage, except those out of which evil grows, and resulting burdens are thus imposed upon the state. In further support of this we cite Adler v. Whitbeck, 44 Ohio St., 539; State v. Rouch, 47 Ohio St., 478.
    The evils growing out of some occupations or businesses may be such that their suppression can only be -obtained to any appreciable degree by the imposition of a restraint upon such business in the way of a heavy license or tax. Tiedeman’s Limitations of Police Power, Sec. 101.
    The imposition of such taxes necessarily decreases the number of places where such business is carried on, and this was the sole purpose of the legislature in the enactment of the Dow law, as evidenced by its principal features and provisions.
    We do not deny the power of the general assembly to levy assessments in the form of taxes on business or vocations. In fact it has done so in many cases; but as. to this particular business, if the legislature has the power, it has not seen fit or thought it necessary to exercise it.
    The policy of the legislature has been, as will be seen by an examination of the statutes in force, to levy special assessments in the form of taxes or licenses,' upon those vocations only the prosecution of which is injurious or dangerous to the public, or imposes special burdens, or where special benefits are conferred by the public upon those who follow such occupations.
   By the Court:

Section 4364-9, Revised Statutes, imposes a tax on the business of trafficking in any intoxicating liquors, and also on the business of trafficking in spirituous, vinous or malt liquors. The generic term “malt liquors” includes both nonintoxicating and intoxicating malt liquors. The statute was declared to be constitutional in Adler v. Whitbeck, 44 Ohio St., 539, and in Anderson v. Brewster, 44 Ohio St., 576, 581. The petition therefore states facts sufficient to warrant the relief prayed for, and the demurrer is overruled and a peremptory writ of mandamus is awarded as prayed.

Peremptory mandamus awarded.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.  