
    Holst v. Roe.
    1. A per ca/pita tax on dogs is not inhibited by tbe constitution.
    
      2. Where tbe purpose of a statute imposing such tax, is tbe protection of wool-growers, it is an exercise of tbe police power, and not tbe taxing power, vested in tbe general assembly.
    Error to the Court of Common Pleas of Washington county. . Reserved in District Court.
    The original action was brought by plaintiff in error, as treasurer of Washington county, against defendant in error, before a justice of the peace, to recover four dollars and forty cents, per capita taxes and penalty, assessed on four dogs, in the year 1881, under sections 2754, 2833, and 2855 of Revised Statutes.
    The action having come into the court of common pleas by appeal, it was there held and decided, on demurrer to petition, that the statute authorizing a per capita tax on dogs was unconstitutional, and the action was thereupon dismissed by the court.
    The plaintiff, thereupon, filed this petition in error, in the district court, to reverse the judgment of the court of common pleas, and the district court being of opinion that important and difficult questions were involved in the case, reserved the same for decision in this court.
    
      2Tye ds Oldham,, for plaintiff in error :
    It may be doubted whether dogs are property within the meaning of the constitution. They were not absolute property at common law Blair v. Forehand, 100 Mass. 140; Bac. Abr. Replevin, F; 2 Blacks. Comm. 393; State v. Lymus, 26 Ohio St. 400. The dog has not been considered by the legislature of Ohio as property for taxation purposes. The constitution provides “ laws shall be passed taxing by a uniform rule all real and personal property.” Const, art. 12, § 2. “In listing personal property for taxation it shall be valued at the usual selling price thereof.” 1 Rev. Stats. § 2739. As to dogs, “ the owner may, if he so desire, affix any value thereto he wishes, without swearing to the valuation.” 1 Rev. Stats. § 5724. The legislature having adopted the “ usual selling price ” as the “ uniform rule ” required by the constitution, and the dog having no selling price, but his value “ depending only on the caprice of the owner ” (2 Blacks. Comm. 393), it follows either that the dog must escape taxation, or that he must be specially taxed by some other rule. Nor do we see how the legislature could have adopted any uniform rule taxing dogs as other property, since there is no standard by which the value of an ordinary dog can be ascertained. We maintain that the word “ property,” as used in the constitution should be construed to include only such property as can be taxed by a uniform rule, and not a species of property the largest portion of which has neither market nor actual value. If the dog is not “ property ” within the meaning of the constitution he may be specially taxed, although he may have value. Baker v. Cincinnati, 11 Ohio St. 534; West. Un. Tel. Co. v. Mayer 28 Ohio St. 521. The exact question has been decided in Texas under a similar provision of the constitution, where it is held that the dog is not “ property,” and so may be specially taxed. Exp. Cooper, 3 Tex. App. 489; s. c., 30 Am. R. 152.
    II. "We claim,however, that the statutes are constitutional as a proper exercise of the police power of the state. 100 Mass. 140; 13 Johns. 312; 26 Vt. 638; 31 Conn. 121; Dillon on Mu. Corp. §§ 150, 358; 26 Ohio St. 400; 42 N. H. 375 ; Rev. Stats. §§ 4215, 7008; 18 Ohio St. 243; 74 Ohio Laws, 117; 16 Wis. 317, 591; 7 Bush 486; 27 Ind. 62; 82 N. C. 175; 46 Mich. 183.
    
      W. B. Loomis, for defendant in error:
    The section of the statutes under consideration (Rev. Stats. § 2833) is in conflict with sections 2 and 5 of article 12 of the constitution.
    If, in contemplation of the constitution and laws, digs are personal property and the per capita levy of one dollar1, required by section 2833, is a tax, then section 2833 plainly disregards the constitutional requirements, in neither taxing by “ a uniform rule,” nor according to “ true value in money,” nor stating any object for the taxation. This per capita tax is not laid by a rule uniform with that by which other personal property is- taxed (see tax laws as to personal property in general), nor is the rule uniform as to the taxation of all dogs; for the section itself provides for a per capita or specific tax upon all dogs, and an ad valorem tax upon some dogs, viz.: such as may be listed with values by their owners. In providing for the one dollar tax, no regard whatever is had to the “true value in money” of the dog on which it is imposed. And, while the general assembly provided in the section for the imposition of the specific tax to raise a special fund, they not only failed to state the object, but seem to have discovered no object, and to have reserved both the discovery and promulgation of the object for future legislation. We are brought then, to the questions — are dogs property in Ohio, and is this one dollar imposition a tax ? See 26 Ohio St. 400; Rev. Stats. §§ 2754, 4214, 2833, 4213, 4214, 4215, 2730. If this one dollar per capita levy, provided for by section 2833, is in the purview of the law a tax, then it is clearly unconstitutional. Rut it is said it is not a tax but a police measure. It might well be conceded, for the purpose of argument, that dogs are legitimate subjects for the exercise of police power, but that concession would not relieve this law of its infirmity, for the question is not what may the general assembly do, but what has it done in this law now under consideration ? This provision has all the characteristics of taxation. It is found embodied, with the other provisions for taxation; in “ Title xiii. Taxation,” of the Rev. Stats. It uses the terms appropriate to taxation. It calls itself taxation. It deals with a proper subject of taxation. See Rev. Stats. § 2731. Its only avowed purpose is to create a special fund, and it leaves that fund for future appropriation to such objects as the legislative mind may discover. “ The word tax means burden, charge, or imposition, put or set upon persons or property for public,uses.” 11 Johns. 77; Cooley's Const. Lim. 586 ; Dillon on Mu. Corp. §§ 291-4. The attention of the court is invited to the following cases as reflecting strongly upon the questions here involved. Mayor of Washington City v. Meigs, 1 McArthur, 53 ; s. c., 49 Am. R. 578; Harrington v. Miles, 11 Kan. 480 s. c., 15 Am. R. 355, and notes.
   MoIlvaine, J.

Section 2754 of Revised Statutes, which is found in the. chapter relating to tijs listing of personal property for taxation, is as follows : “ Every dog, over three months of age, shall be listed by the owner or by the assessor in the name of the owner, without affixing any valuation thereto; but the owner may, if he so desire, affix any value thereto he wishes without swearing to the valuation,” &e. And section 2833, found in the chapter relating to the levying of taxes, provides: In the tax list and duplicate there shall be columns for the number of and per capita tax on dogs, and in addition to the proper tax on the valuation that may be fixed upon dogs by the owners, which shall be included with the personal property valuations and taxed therewith; the auditor shall levy one dollar on each dog, which per capita tax shall constitute a special fund to be disposed of as provided by law.”

By section 4215, this special fund is devoted to the payment of losses sustained by owners of sheep killed by dogs.

"Whether the per capita dog tax thus imposed is in conflict with seption 2, article 12 of the constitution, which provides, Laws shall be passed, taxing by a uniform rule, all moneys, credits, investments in bonds, stocks, joint stock companies or otherwise; and also all real and personal property, according to its true value in money,” is the sole question in this case. It is perfectly clear that the tax thus levied on dogs is not by a uniform rule according to the true value in money of the property taxed.

A question has been raised, whether dogs are property within the meaning of this constitutional provision ; but we think the solution of that question is not decisive of this ease.. If they be not property, and, therefore, are not subject to the-taxing power of the general assembly, or, if they.be property, and, therefore, must be taxed according, to'their true- value in. money, it does not follow, that the legislation in question is not a constitutional exercise of the police powers vested in the general assembly under the general grant of legislative powers, .which include the power to protect citizens in the enjoyment of property and afford redress for injuries done to it. The police and taxing powers of the general assembly, though co-existent, are distinct powers; hence the exercise of the former is not restrained by the existence of the latter, though it may result in producing revenue, as for instance, in imposing fines in punishment for offenses.

Recently we had occasion to recognize this principle, and applied it in support of a statute which imposed a burden or tax upon the traffic in intoxicating liquors, although intoxicating liquors were subject to taxation for public revenues as other personal property. See State ex rel. Attorney-General v. Auditor of Athens county, post.

"While the dog, as a species, possesses many valuable traits which by some are denominated virtues, it is nevertheless known of all men, that he possesses vicious traits which are especially inimical to the important industry of raising sheep and wool. If the government were powerless to protect this industry from the ravages of dogs, it would indeed be impotent to protect its citizens in the enjoyment of property, than which none other is' more essential to the public welfare. But such power is unquestionably vested in the general assembly as a police power, and, in the judgment of the general assembly a per capita tax on dogs has been deemed a means of securing the necessary protection to sheep owners ; and, as the choice of means was within the power and discretion of the general assembly, its judgment is not subject to judicial control. The original statute on this subject (which has been, in substance transferred to Revised Statutes above quoted) passed May 5, 1877 (74 Ohio L. 177) was entitled “ An Act for the protection of wool-growers and the confiscation of dogs,” a subject not only within the police powers of the general assembly, but one deserving ©f its consideration.

The conclusion which we have reached is, as we think, not only sustained by sound reasoning, but is supported by abundant authority.

In Vanhorn v. People, 46 Mich. 183, the identical question was considered. Graves, J., in delivering the opinion says: “ The fundamental proposition is that the exaction attempted by the statute is a tax within the meaning of article 14 of the constitution.....and not being laid according to any mode of uniformity nor assessed according to the cash value of the property, the imposition is unconstitutional. It is also suggested that dogs are included in the mass of property annually taxed under the general law, and that it is not competent to select one species of property and subject it to double taxation. It is unnecessary to point out the various inaccuracies of this reasoning. The foundation on which it rests is fallacious. The supposition that the statute is an emanation from the taxing power in the sense in which that power is regarded by article 14 is a mistake.....The act is an execution of the police power, and no reason is perceived for denying its validity.”

The same general doctrine has been maintained in Blair v. Forehand, 100 Mass. 136; Tenney v. Lenz, 16 Wis. 566; Mitchel v. Williams, 27 Ind. 62; Morry v. Brown, 42 N. H. 373; Woolf v. Chalker, 31 Conn. 121; Ex parte Cooper, 3 Texas C. App. 489; Cooley Const. Law, 741.

Judgment reversed.

Okey, J.

I concur in holding the legislation necessarily involved in this case to be within the police power vested in the general assembly. The statutory provisions on the subject amount to a license. Rev. Stats. §§ 1052, 2754, 4214, 4215, 7008; Tenney v. Lenz, and Blair v. Forehand, cited by Mc-Ilvaine, J. But there is no inhibition against legislation of this character as applied to such a subject. 38 Ohio St. 225.  