
    The Cincinnati Gas-Light and Coke Company v. The State of Ohio.
    Section three of the act of April 6, 1866, "for the inspection of gas-meters, the protection of gas-consumers, and the protection and regulation of gaslight companies,” is not in conflict with the second section of the twelfth article of the constitution of this state.
    Error to the court of common pleas of Franklin county.
    The “ act for the inspection of gas-meters,” ote., passed April 6, I860 (S. & S. 158), provides for the appointment, by the governor, with the advice and consent of the senate, of “ an inspector of gas-meters and illuminating gas.”
    Section 2 of the act as amended March 9, 1867 (S. & S. 160), provides that the inspector shall hold his office for the term of two years and until the appointment of his successor, but may be removed by the governor and senate at their pleasure; and that he shall receive an annual salary of three thousand dollars, which shall include his office-rent- and expenses, to be paid out of the treasury on the warrant of the auditor of state; . . . provided, how-
    ever, that no warrant shall be drawn for the whole or any part of the salary of said commissioner for any larger amount than may have been actually paid into the treasury of the state.
    Section 3 of the original act provides as follows: “ Said inspector ■shall, within throe months after his appointment, furnish to the treasurer and auditor, a list of all the gas-light companies in opera-238] tion in the state, and his salary for the *yoar then commenced, .and annually thereafter, shall be assessed and paid into the treasury of the state, by the several gas-light companies in this state, in amounts proportionate to their appraised valuation, as declared in the returns required in the general statutes of this state; and in case such gas-light companies, or any or either of them, shall refuse or neglect to pay into the treasury the amount or portion of said salary which shall be by said treasurer required of them respectively, for the space of thirty days after written notice given by said treasurer to them respectively, to make such payment, then the said treasurer shall institute an action in the name of, and for the use of the state, against any such delinquent gas-light company for their eaid portion or amount of such salary, with interest thereon at the "rate of six per centum per annum, from the time when said notice to make such payment was given, and costs of the action.”
    Section 4, as amended March 9, 1867, provides for the appointment, by the inspector, of deputies for any city or town of any ■county, to be paid specified fees for examining, comparing, and testing gas-motors, etc.
    Section 7 enacts -that there shall be provided, at the expense of the gas companies of this state, at the office of the inspector, a -standard measure of the cubic foot, and such other apparatus as, in. his judgment, shall be necessary for the faithful performance of the ■duties of his office.
    In April, 1867, Theodore G-. Wormley was duly appointed and -confirmed inspector of gas-meters and of illuminating gas, under ■the-statute; and in pursuance of said third section of the act of April 6, 1866, there was, on September 19, 1867, duly assessed, by -the auditor and treasurer of state, against the Cincinnati Gas-Light and Coke Company for the payment of said inspector’s salary, the ■.sum of $1,885.60, and for the purchase of test-meters, apparatus, and foes, the further sum of $1,223.25. The treasurer of state their and there gave the company written notice that these sums were required of it, and demanded payment thereof according to law. But the company having neglected and refused for thirty days or more, to pay said sums, or any part thereof, the attorney-general, at the instance of the treasurer of state, in the name *of the [239 state, on November 13, 1867, filed in the court of common pleas of Franklin county, a petition against said company, stating the foregoing facts, in substance, and asking judgment for said sums and interest.
    The company demurred to the petition, and for cause assigned that the facts stated therein do not constitute a cause of action ■•against the company.
    This demurrer was overruled, and judgment entered against the -company for the amounts claimed and interest.
    To reverse this judgment the company filed a petition in error in this court.
    
      E. A. Ferguson, for plaintiff in error:
    1. The third section of the act of the general assembly in question authorizes the levy of a special tax on the property of gas companies, and is in contravention of the second section of article-twelve of the constitution.
    It has been decided by this court that the grant of legislative-power in the constitution includes the power of taxation, and that we must look to the provisions of that instrument for the limitations on this power. Reeves v. The Treasurer of Wood County, 8 Ohio St. 333; Baker v. The City of Cincinnati, 11 Ib. 534. But the tax must be equal and uniform upon all property of every possible description, according to its true value in money. Cases-above, and Hill v. Higdon, 5 Ohio St. 246.
    In these cases taxes are defined to be impositions for purposes of general revenue, and assessments as special and local impositions upon property in the immediate vicinity of an improvement for the public welfare, and which are necessary to pay for the improvement, and laid with reference to the special benefit which such property derives from the expenditure. See 8 Ohio St. 338. And in Baker v. Cincinnati, 11 Ohio St. 543, it is said “ an assessment stands on a principle of benefit to property; a charge for a license-may be made in view of the special inconvenience and expense to-government for the benefit of the individual who asks for the license.” Now, the title and provisions of this act show that it was made for the benefit of the consumer as well as the companies, and, in 240] *this respect it is like a law fixing the standard of weights and measures. These laws are police regulations for the benefit of all; the buyer as well as 'the seller. They are not laws prohibiting the exercise of certain trades or professions without license. And even as to the latter, it is said they “ could not be employed as a. mode of taxation of property without reference to the uniformity and equality required in section 2 of article 12 of the constitution. The general assembly could not do indirectly that which it is prohibited from doing directly.” Baker v. Cincinnati, 11 Ohio St. 544.
    .License taxes are usually laid with reference to the amount of business that will probably bo done, not-with reference to the value-of the property used in it. In this case the amount of the tax depends on the amount of property held by the company, and not upon its capacity to do business; and the tax is levied on the value-of its property as other taxes for general purposes.
    It is, therefore, a property tax, and within the constitutional provision. Bank Tax Case, 2 Wallace, 200, 203, etc.; Providence Institution v. Massachusetts, 6 Wallace, 630-632; Hamilton Company v. Massachusetts, 6 Ib. 632-641; Mays v. Cincinnati, 1 Ohio St. 273, 274; Creps v. Baird, 3 Ib. 277.
    2. As to that portion of the judgment which embraces the expense of providing a standard measure of the cubic foot and other apparatus, the section (7) authorizing them to be provided at the-expense of the gas companies of the state does not say in what proportion they shall pay; nor does it authorize an assessment and recovery, as in the'sixth section. No tax of any kind can be levied except in pursuance of law. The tax, therefore, to this extent was not warranted. Const., art. 12, sec. 5.
    
      W. H. West, attorney-general, for the state :
    1. A special discriminating tax in aid of the general revenue of the state, or any local jurisdiction, can not be imposed or authorized. A general revenue in its nature is a revenue, the disbursement of which is necessarily beneficial to all the people within the jurisdiction in which it is raised.
    2. Assessments and burdens not in aid of the general revenue-*of the state, or any local jurisdiction, may be imposed or [241 authorized. A revenue, the disbursement of which does not necessarily inure to the benefit of all people within a particular jurisdiction, is, in its nature, not general, but special.
    3. The burden imposed in the present case is not in aid of the-general revenue of the state or any local jurisdiction, and hence is not in violation of the constitution.
    (1.) The fund required of the gas company is rather in the nature of fees for services, than an assessment or imposition in the nature of a tax,, like the fees paid to the inspector of oils, liquors, cooperage, etc., who, though a public officer, is compensated by the persons or parties for whom he performs the official acts. S. & C. 732. The public inspector of meters and gas performs an official duty, in inspecting and testing meters and gas for the gas company, as the city guager and inspector guages and inspects the vessels and commodities of the dealer. There is no. more reason why the compensation of the one should be paid by the merchant or manufacturer, than the compensation of the other should be paid by the-gas company.
    (2.) It is not in the nature of a general revenue, for its disbursement does not necessarily inure to the benefit of all the people within any locality or jurisdiction. The relation of the gas cornpany to the people of Cincinnati is that of a private contractor. All may be, but are not necessarily benefited by the manufacture of gas.
    (3.) The mode of collecting the burden can not change its nature or character, nor affect the power of the legislature over it. That body might have provided for payment directly to the inspector, and authorized him in case of default to sue, as in Hill v. Higdon. The burden imposed on the gas company is not disbursed for any general purpose necessarily inuring to the benefit of all the people within any tax jurisdiction. Wherefore, not being-general in its nature, it is not subject to section 2, article 12, of the constitution (Hill v. Higdon, 5 Ohio St. 246), but falls within the general powers of legislation. Reeves v. Treasurer of Wood Co., 8 Ohio St. 333 ; Baker v. City of Cincinnati, 11 Ohio St. 542, 543; Lehman v. McBride, 15 Ohio St. 573.
    242] *The assessments against the gas companies are of the same nature as assessments for street improvements, and recoverable by action in the same manner.
   Brinkerhoff, J.

The general assembly of the state has assumed .to enact laws creating the office of inspector of gas-meters and illuminating gas, and to provide for the payment of the salary of the officer, and of the expenses for the procurement of the apparatus necessary for the discharge of his duties, by an assessment upon the several gas companies in the state, in proportion to the amount of capital which said companies respectively have invested in the manufacture and sale of gas; and the plaintiff in error prosecutes its petition in error here to contest the validity of these enactments, claiming that they are in contravention of the second .section of the twelfth article of the constitution of the'state, which provides “ that 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,” etc.

It is settled by the repeated decisions of this court, in Hill v. Higdon, 5 Ohio St. 243; Reeves v. The Treasurer of Wood Co., 8 Ohio St. 333; and Baker v. the City of Cincinnati, 11 Ohio St. 534, that the section of the constitution just referred to is only applicable to, and furnishes the governing principle for, all laws levying taxes for general revenue, whether for state, county, township, or municipal corporation purposes.

Now, although the assessment or charge upon the gas companies of the state imposed by the statute in question may be a tax, in the widest import of the word, it certainly is not a tax for purposes of general revenue. It is the assessment of a charge for a special purpose growing out of the exercise of the supervisory power of the government over the business in which these companies are engaged. The above section of-the constitution is, in effect, a mandate upon the legislature that all property, of every nature, shall be taxed by a uniform rule ; but the charge or assessment here complained of is not a tax on property, but rather a charge upon individual corporations — artificial persons — and the-business in which they *are engaged; and it by no moans [243 follows, that because the state is compelled to tax all property by a uniform rule, that it is therefore cut off from all power to lay assessments and charges for exceptional and special purposes coming-clearly within the general legislative power conferred by the constitution upon the general assembly. As was said by Gholson, J., in the case last above cited, " an express direction to impose a tax on all property by a uniform rule, does not necessarily exclude-taxation upon that which is not property.” It is settled by authoritative decision that, under the present constitution of the state, local assessments may be made to pay for lands appropriated for streets within the limits of municipal corporations, and for their improvement and repair; for the making of ditches and drains, and free turnpike roads outside of such corporations; and that charges may be imposed for licenses to theaters. We have several other laws imposing and authorizing charges on particular branches of business, through the medium of licenses, which can be obtained only by paying for them ; which laws are supposed to be in full force, and the validity of which, so far as I know, have never been questioned. And the same may be said of the levying of duties-on auction sales.

Not identical with, but coming within the same category as the-laws just mentioned, imposing charges upon persons engaged in-particular branches of business, are inspection laws. Such laws, providing for the appointment of inspectors, and for the inspection of articles of manufacture and trade, we have had upon our statute books from the time of the formation of the state government until the present time. They have been enacted under both the old and the new constitution; their validity has remained unquestioned until now. The list of articles of manufacture and trade subject tc inspection has varied, at different times, but includes, altogether, -wheat and rye-flour, Indian and buckwheat-meal, biscuit, lard, pork, beef, pot and pearl ashes, fish, domestic spirits, oil, salt, and perhaps ■other articles which I have overlooked. They make the duty to procure the inspection of the articles named compulsory upon manufacturers and dealers in many cases, and they provide for the com-'244] pensation of ^inspectors by the imposition of fees upon the parties for whom the inspection is made.

The enactment of laws for the inspection of commodities, is the ■exercise of a legislative power recognized and sanctioned by long .and unquestioned usage here and elsewhere, and is included in the .general grant of legislative power conferred by the constitution upon the general assembly; and among the general, and I believe •the invariable, incidents and characteristic features of this class of laws, is the imposition of a charge upon the owners or possessors ■of the commodities inspected for the services of the inspector, .although these services may have been rendered in invitum as to .such owner or possessor. It is the legitimate exercise of governmental supervision over the business of the manufacturers and ven•dors of certain commodities, in order to pi'otect the public at home and abroad against imposition and fraud, and incidentally to protect manufacturers and vendors themselves against unfounded and unjust claims of vendees and consumers, as well as against the consequences of their own short-sighted cupidity.

Illuminating gas is a discovery of modern times, its manufacture and sale is a business comparatively new, and legislation for its inspection and measurement must therefore be new in its details, and peculiar to the subject-matter. This is, of course and necessarily, true of the act here in question, yet it is, after all, but one of our .inspection laws, resting on the same principles, originated and governed by the same policy, characterized by the same features, and .authorized by the same grant of legislative power as preceding laws ■of the same class.

It is argued in behalf of the plaintiff in error, that because the .amount of assessment on individual companies is graduated by the .amount of capital invested by each in the manufacture and distribution of gas, therefore the assessment is to be held to be a tax upon the capital or property invested, and so within the purview of the ¡section of the constitution above referred to. We do not so regard It. We have already seen that it is a general if not an invariable characteristic of former inspection laws, that they provide for the ■compensation *of the inspector by a charge in the form of [245 fees upon the manufacturer, vendor, or possessor of the commodity inspected; but by the law now in question, the salary and cost of necessary apparatus of the inspector are assessed or charged on gas •companies respectively, according to the amount of capital by each of them invested in the business in which they are engaged. The •inspection of the quality of gas, and the testing of the instrumentalities for its measurement, are peculiar; and it may well be that no method of providing a fair compensation for the services of the inspector could be afforded by fees imposed for particular things ■done or acts performed. In respect to this matter, a large discretion must of necessity be left to the legislative power of the government. The presumption is that the legislature, in the exercise of its discretion, regarded the method of assessment which it has adopted as the nearest approximation to a just and equitable charge upon the •different companies, for the services rendered by the inspector, which the peculiar chai’acter of the duties to be performed by him would permit. In principle, there is no difference between the •charge of fees for the particular acts of service rendered, and the measurement of compensation here adopted; and we can not assume to control or supervise that which is a matter of mere legislative •discretion.

The seventh section of the act in question requires that there shall be provided, at the expense of the gas companies of this state, at the office of the inspector, a standard measure of the cubic foot, and such other apparatus as in his judgment shall be necessary for the faithful performance of the duties of his office.” It is by this section provided that the standard measure of the cubic foot, and other necessary apparatus, shall be furnished at the expense of the gas companies; but it does not expressly provide by what rule this expense shall be apportioned, nor in what mode it shall be enforced against the gas companies. We are of opinion, however, that by fair and reasonable implication and intendment, from the terms of the act as a whole, it may be well assumed that this expense is to be apportioned in accordance with the same rule, and enforced in the same manner, as is provided in respect to the salary proper of the inspector.

*We are of opinion that the act in question, as it stands [246 amended, is not in conflict with any provision of the constitution ;; that there is no error in the judgment and proceedings cf the court, below, and that the same ought to be affirmed.

Judgment accordingly.

Day, C. J., and Scott, Welch, and White, JJ., concurred.  