
    Hanson v. Luce, Treas. Monaghan v. Luce, Treas.
    
      Dow law taxes—Section 8092-8, Revised Statutes, construed.
    
    One who traffics in spirituous, vinous, malt, or intoxicating liquors, at á regular place of business, and pays the assessment of $250.00 therefor, as required by section 8092-8, Revised Statutes, known as the Dow law, has the right to store all, or a part, of his liquors in a cooler or building separate and apart from his regular place of business, without paying a second assessment, on account of such cooler or building; provided no purchases or sales of such liquors be made at such building or cooler.
    (Decided June 13, 1893.)
    Error to the Circuit Court of Ashtabula county.
    Plaintiff in each of these cases filed a petition in the court, of common pleas to enjoin the treasurer from collecting an assessment of what is known as the Dow tax 'on traffic in spirituous liquors under section 8092-8, Revised Statutes. Plaintiff was successful in each case in the common pleas court, and each case was appealed to the circuit court, and tried in that court, and a finding of facts made in each case. Defendant was successful in the circuit court, and the cases, are brought here by plaintiffs on petition in error to reverse the judgments of the circuit court.
    In the Hanson case the findings of fact and law are as follows:
    First—That the plaintiff, John Hanson, is the owner of a building situated on a lot of land owned by him on Pacific street, in the village of Ashtabula Harbor; that said building fronts towards Pacific street; that said plaintiff lives, in the upper part of said building, and for nine or ten years has kept saloon in the lower part thereof, in which saloon he has during all of said time sold beer and other liquors at retail, and that he was so selling there during the entire time, and during the whole of the year 1889; and was also doing business during said time as a wholesale dealer in beer.
    Second—That said John Hanson also owned a small building on the opposite side of Pacific street from his saloon, and one hundred and fifty-five feet distant from said saloon, in a line drawn diagonally across from one to the other. This building-was built two years ago; and the back part of it is used only for the storage of beer, and ice is taken in and placed on the heads of the kegs of beer to keep the beer cool. The front room, a room twelve by fourteen feet, is used as a shoe shop.
    Third—That since the building of said cooler said plaintiff has, in addition to retailing at his saloon, carried on the business of wholesaling beer. That upon the receipt of beer it is unloaded by plaintiff from the cars, and taken directly to said cooler, where (except what plaintiff takes therefrom to his saloon to retail therein), it remains in said cooler until disposed of to the various customers who buy it. That said plaintiff, during said two years, and during the year-1889, kept a hired man, whose business it was to drive a delivery wagon, and each morning load onto said wagon direct from said cooler the beer to be delivered to plaintiff’s customers, and to deliver the same, and at the same time to sell to all who wished to buy and pay for all such quantities of beer as such purchasers might desire to purchase at wholesale. But no beer was sold at said cooler.
    Fourth—That said John Hanson was in due time regularly assessed upon the business of trafficking in spirituous, malt and vinous liquors at his said premises at Ashtabula Harbor, in said county of Ashtabula, and as being carried on at one place only. That subsequently the deputy county treasurer called upon said plaintiff and informed him he was liable to an additional assessment on account of said wholesale business carried on at and in connection with said "cooler, and assessed the plaintiff upon the business of trafficking in spirituous, vinous and malt liquors, as being carried on at and from said cooler, in addition to said former assessment. If said plaintiff was, by reason of the facts aforesaid, under the statutes of Ohio, liable to assessment as carrying on the business of trafficking in spirituous, vinous and malt liquors for each of said two places, then said second assessment was duly and regularly made, and if, under the statutes of Ohio, he should be assessed by reason of said facts upon the business of trafficking in spirituous, vinous and malt liquors, as carried on by or for him at one place only, then the plaintiff is by said second assessment wrongfully assessed.
    Fifth—That afterwards, and in due time said plaintiff paid into the county treasury the sum of $125.00 as the semiannual payment of his tax for the business carried on at the saloon, and also $125.00 for the semi-annual tax on his business carried on in connection with said cooler, which last payment was made under written protest.
    And as conclusions of law the court find, that said plaintiff was, at the time designated in his petition, carrying on his said buisness of trafficking in spirituous, vinous and malt liquors at two different places, to-wit: At his said saloon, as one place, and at his said cooler as the other place, and that each of said assessments made against him was legal and made in accordance with law and should be paid, and that said petition should be and the same is hereby dismissed at the costs of said'plaintiff.
    In the Monaghan case, the first and second findings of fact, are as follows:
    “First—That the plaintiff, Patrick Monoghan, is the owner of a building situated on a lot of land owned by him at the corner of High and Market streets, in the village of Ashtabula Harbor; that said building faces and'fronts, towards High street; that said plaintiff lives in the upper part of said building, and for nine or moré years has kept saloon in the lower part thereof, in which saloon he has, during all of said time, sold beer and other liquors at retail, and that he was so selling there during the entire year of 1889.
    “ Second—That four years ago, plaintiff erected in the rear of said saloon building, a new building called a refrigerator, or cooler; which cooler is situated four feet six indies distant from said saloon, but is connected therewith by a covered way four and one-half feet wide, and plaintiffs kitchen also is connected with it on the south. That said cooler is sixteen by twenty feet in extent, and six feet high between floors where beer is stored; that but one window opens into this room, and but one door; that the space above said room is occupied by large quantities of ice, stored there for the purpose of keeping the beer cool.
    The third, fourth and fifth findings of fact, and the conclusions of law in the Moiiaghan case, are the same as in the Hanson case.
    
    Exceptions were duly taken to the conclusions of law in each case.
    
      Edward H. Fitch, R. W. Calvin, and Theodore Hall, for plaintiffs in error.
    
      Northway & Williams, and Charles Lawyer, Jr., for defendant in error.
   By thb Court:

From the facts found by the circuit court it appears that upon the receipt of beer by plaintiff, it was put from the cars into the cooler, where it remained until delivered by the driver of the beer wagon to customers, but no beer was sold at said cooler. It thus appears, that beer was neither bought nor sold at the cooler, but that all the business of buying and selling wTas done at the saloon, and that the cooler was a mere place of storage, and not a place of business, and that no traffic whatever was carried on at the cooler. No buying; no selling.

From these facts so found, the court finds as a conclusion of law, that the plaintiff was carrying on his business at “two different places, to-wit:—at his said saloon as one place, and at his said cooler as the other place.”

It is difficult of comprehension how the business of trafficking in an article can be said to be carried on at a place where such article is neither bought, sold nor bartered.

The traffic contemplated by the statute consists in the purchase and sale or barter of the liquors named therein, and thz place of the traffic is the place where such purchase sale or barter is had, and not the place where the liquors are stored for cooling or safe-keeping.

The sales of beer made by the driver of the beer wagon, must be referred to the place where his employer carried on the traffic, and not to the place of storage.

The conclusion of law is not warranted by the facts found, and in such case the facts must control. It is, therefore, clear that the circuit court erred in its conclusions of law, and that its judgments should be reversed, and judgment should be rendered for plaintiff in each case, as prayed for, with costs.

Judgment accordingly.  