
    Metz v. Hagerty, Auditor, et al.
    
      Constitutional law — Cigarette tax — Time of operation.
    
    1. The act entitled “'An act to tax the business of trafficking in cigarettes or cigarette wrappers,” passed April 24, and took effect August 1,1893 (90 Ohio Laws, 235), is not in conflict with the constitution of Ohio, nor with the constitution of the United States.
    
      2. Said act does not authorize the assessment or collection of such tax for the year 1893.
    (Decided June 22, 1894.)
    Error to the Circuit Court of Hamilton county.
    The plaintiff in error also plaintiff below, filed the following petition in the court of common pleas of Hamilton county, on the 23d day of September, 1893.
    “The plaintiff, Edward Metz, represents and avers that he is a resident of the city of Cincinnati, Ohio, and there engaged at the northwest corner of Fourth and Main streets, in the wholesale and retail business of trafficking in cigarettes and cigarette wrappers, and has been so engaged for some years; and that he conducts said business in connection with the business of trafficking' in cigars and tobacco.
    “The plaintiff further avers, that the cigarettes and cigarette wrappers used in the traffic in which he is and has been engaged as aforesaid, are made only of pure and wholesome tobacco and harmless paper; that there are no deleterious or noxious ingredients of any kind used in the manufacture of such cigarettes or cigarette wrappers; and that he intends to traffic only in cigarettes and cigarette wrappers of the kind described, there being no other kind to his knowledge.
    “The said plaintiff further avers, that he has at all times heretofore made returns of all his personal property, including’ cigarettes and cigarette wrappers employed in his business of trafficking therein as aforesaid, and has at the times fixed by law therefor, paid into the county treasury all taxes due and owing on account of such cigarettes and cigarette wrappers, but that he has never heretofore been called upon or required to pay any taxes or assessments upon his business of trafficking in such articles.
    “Nevertheless, John Hagerty, who is auditor of said county of Hamilton, defendant herein, has given official notice to all persons intending’ to engage in the business of trafficking in cigarettes or cigarette wrappers, either at wholesale or. retail, to apply at his office at once, and make statements —as mentioned in said notice — ‘as required by law,’ upon blanks to be furnished for that purpose and to be verified by such persons; and that said defendant auditor, as well as Leo Schott, who is treasurer of said county, also defendant herein, claims that under the recent act of the general assembly, entitled ‘An'act to tax the business of trafficking in cigarettes and cigarette wrappers,’ passed April 24, 1893, to take effect and be in force on and after the 1st day of August, 1893, all persons engaged or intending to engage in the wholesale and retail business of trafficking in cigarettes or cigarette wrappers are chargeable with an assessment of ninety-two dollars and fifty-eight cents, on account of such wholesale business, and twenty-nine dollars and thirty-two cents on account of such retail business, payable August 1, 1893, as the proportionate part of the annual assessment claimed to be due under said act for the portion of the year between August 1, and December 20, 1893. That plaintiff commenced the said business of trafficking in cigarettes and cigarette wrappers prior to the fourth Monday of May, 1893, and has ever since continued and intends hereafter unless said tax or assessment is enforced, to continue his said business; but that the said defendants in addition to enforcing all the ordinary remedies for collecting such taxes or assessments, threaten and intend to and will, unless restrained by the order of this court, resort to the institution of proceedings according to the provisions of section 6 of the act of the general assembly aforesaid, to prosecute this plaintiff, who declines to pay said assessment, all of which if permitted, will cause this plaintiff great and irreparable injury.
    “The plaintiff further says, that the business of trafficking in cigarettes and cigarette wrappers, especially the retail business, is actually and of necessity small, being always carried on in connection with and as an incident of the business of trafficking in cigars and tobacco or other articles; and that the enforcement of the taxes or assessments provided for by said act, will, if permitted, operate to destroy and prohibit the traffic itself. Plaintiff further states that said business is such, and is so conducted, and the cigarettes and cigarette wrappers used are composed of such materials, as not to be harmful to the public; that there are a large number of persons, to wit, more than fifty engaged in said county in said business who have different and varying amounts of trade in cigarettes and cigarette wrappers; that their outlays, receipts and profits in money arising therefrom, differ and vary materially according to the amounts of business they severalty conduct; that if the act aforesaid is operative to tax the business of trafficking’ in cigarettes and cigarette wrappers, then that the same is unconstitutional and void, not only for that such law results in double taxation upon plaintiff respecting said articles, but that said law fails and omits to provide for the taxing of other business or property which is equally subject to the taxing power, to wit, the business of trafficking in candies, sweetmeats, cigars and tobacco, as well as the acknowledged staples; that the business and property thus excluded from taxation is of great value, amounting in said county of Hamilton alone to vast sums of money; and that by reason of the differences in quantity of business done by the various dealers as aforesaid, and by reason of the omission from taxation of the business of trafficking in the other articles above mentioned by which the rate of taxation upon other property will be unlawfully and unduly increased, this plaintiff will, if said act is enforced, be taxed, not by a uniform rule nor according to the true value of his property in money, and will also be denied the equal protection of the law; whereby said act passed as aforesaid, April 24, 1893, is repugnant to section 2, article XII, of the constitution of Ohio, and to section 1, of amendment XIV to the constitution of the United States. He also avers that the failure of said act to state distinctly the object of the tax imposed and its failure to discriminate between commerce in cigarettes and cigarette wrappers within this state, and that among the several states, including Ohio, and with foreign nations, renders said act also repugnant to section 5, article XII, of the former, and to section 8 of the latter constitution, plaintiff being an importer and seller of cigarettes and cigarette wrappers in original packages.
    “Wherefore, said plaintiff prays for the issuance of an order restraining ■ the said John Hagerty, county auditor, from further issuing official notice requiring this plaintiff to apply at his office and make statements as to his intention to engage in the business of trafficking in cigarettes and cigarette wrappers, from making said assessments of $92.58 and $29.32, respectively, or any assessment against this plaintiff, respecting such traffic, especially from doubling the amount specified in section 4 of said statute passed as aforesaid, April 24, 1893, to take effect August 1, 1893, and from doing anything else under or in pursuance of the provisions of said statute, restraining said Leo Schott, treasurer of said county, from taking any steps or doing any act towards collecting any assessment of any sum in pursuance of the statute last aforesaid, especially the sums of $92.58 and $29.32, sought to be exacted as aforesaid of this plaintiff; that upon final hearing hereof, said restraining order be made perpetual; and that such other and further relief may be granted in the premises as equity may require.”
    To this petition the defendants filed a general demurrer, which was sustained by the court, and judgment rendered in favor of defendants below. This judgment was affirmed bj^ the circuit court, and thereupon a petition in error was filed in this court to reverse the judgment of both courts below.
    
      J. W. Warrington, M. A. Norris, John A. McMahon, John H. Doyle, George K. Nash and Andrew Squire, for plaintiff in error.
    
      Spiegel, Bromwell & Foraker, and James B. Kennedy, for defendants in error.
   By the Court.

A majority of the court are of the opinion, that the act known as the cigarette law is constitutional; but, as the act has been repealed, it is not now important to give the reasons of the majority for so holding.

A majority of the court are, however, of opinion that the assessments provided for in said act, can not be assessed or collected, upon the traffic in cigarettes for the year 1893. The statute provides that the assessment shall be made annually, and the returns upon which the assessments are to be based, are required to be made by the assessors, with their other returns, on or before the third Monday of May, in each year, and payment is to be made, one-half on or before the 20th day of June, and the other half on or before the 20th day of December, in each year. The assessment is in contemplation of the statute to be an annual assessment, that is, for a whole year from January 1, to December 31. The statute did not take effect until the first day of August, 1893, when only five months of the year remained. The statute is in effect the same as if it had been passed on Aug'ust 1st, to be in force from and after its passage. As the time for making the returns by the assessors and the assessments by the auditors, and the June payment to the treasurer, was long past before the law took effect, it cannot be inferred, without a clear provision to that effect, that the legislature intended that an act so penal in its nature, should have the effect to impose an assessment for seven months of the year, before the law was in force. A majority of the court therefore hold, that the act in question did not authorize such assessment for the year 1893, and that the court of common pleas erred in sustaining the demurrer to the petition, and in rendering judgment in favor of the defendants below, and that the circuit court erred in affirming the judgment of the common pleas. Both judgments are therefore reversed, and cause remanded to the court of common pleas, with instructions to overrule the demurrer to° the petition, and for further proceedings, according to law.

Judgment reversed.  