
    Conwell et al. v. Sears, as Treasurer of Harrison County, Ohio. Lyle v. Sears, as Treasurer of Harrison County, Ohio, et al.
    
      Tax on liquor business — Section Jf364-9, ,Revised Statutes — Dow law — Law valid as against a municipal ordinance.
    
    The assessment upon the traffic in intoxicating liquors required by section 4364-9 of the Revised Statutes is legally and properly made upon that traffic, though it be carried on in violation of a municipal ordinance.
    (Decided June 25, 1901.)
    Error to the Circuit Court of Harrison county.
    The first of these actions ivas brought for the reversal of the judgment rendered by the circuit court enforcing a lien in favor of the county treasurer upon premises owned by Conwell for the amount of the tax assessed by the terms of the statute, commonly known as the Dow law, upon the traffic in intoxicating liquors carried on upon said premises by one Grimes, said premises being in the incorporated village of Cadiz where at the time of the sales there was an ordinance duly passed and published forbidding-such sales.
    The second action is for the reversal of a judgment of the circuit court denying to the plaintiff in error an injunction to restrain the'treasurer from making a levy upon his chattels to satisfy a like assessment on account of the traffic in intoxicating liquors carried on by him in the village of Scio where there was at the time a similar ordinance.
    
      James Moore; Albert O. Barnes, and John O. Dickerson, for plaintiff in error.
    Proposition: The Dow tax was intended by the legislature to be assessed upon the lawful traffic in intoxicating liquors and the place where the business was carried on and was not intended to be assessed for sales inhibited by the statutes or by municipal regulation. Prohibition of traffic by village.
    The incorporated village of Cadiz, Harrison county, Ohio, by ordinance duly passed prohibited the traffic in intoxicating liquors within its limits under the provisions of Sec. 11 of the Dow law.
    The latter part of Sec. 11 and the ordinance of the incorporated village of Cadiz, Harrison county, Ohio, both prohibit the traffic in intoxicating liquors under the meaning of the Dow law within its corporate limits. Legislature did not intend assessment on unlawful traffic.
    The plaintiffs in error claim that the legislature did not intend to assess the traffic in intoxicating liquors that is made penal by either statutes or ordinances and that the legislature did not intend to assess violations of the Dow law statutes or ordinances in pursuance of said Dow lawr, or if it did so the distribution of the proceeds would be under Sec. 9 o£ the Dow law act and five-tenths of the proceeds would go into the treasury of the village that does not allow the same to be sold legally therein. Sections 2781, 2782, Ex. by U. S. circuit court, N. D. of Ohio.
    The assessment by the auditor and the same was put on the liquor tax duplicate against the plaintiffs in error for the tax years other than the current year, under Secs. 2781 and 2782, of the Rev. Stat. of Ohio, without any notice to plaintiffs, and in fact the whole assessment was taking the plaintiff’s property without due process of law. 14th amendment to the constitution of the United States: Brinkerhoff v. Brumfield, Treas., 12 O. F. D. 000; 42 B. 150; Myers v. Shields, Treas., 8 O. F. D. 239; 61 Fed. Rep., 713; Gager v. Prouts, 48 Ohio St., 89, 110; State v. 
      Crites, Ib. 460; Sec. 1071, Rev. Stat., Dana, In re, 6 Fed. Cas., 1140, No. 3554 (7 Ben. 1).
    On notice to taxpayers. San Mateo Co. v. Railroad Co., 13 Fed. Rep., 722.
    Auditor decided the legal question this court is now called upon to decide without any notice to plaintiffs in error.
    The auditor was disqualified by reason of the pecuniary interest in the matters decided by him. Dennis v. Grand Junction Canal, 3 H. L. Cases, 759; Queen v. Justices of Herfordshire, Q. B., 753; Railroad Co. v. Howard, 20 Mich., 18; Gregory v. Railroad, 4 Ohio St., 675; Cooley on Const. Limitations, 410, 411.
    The treasurer gave no notice to the taxpayer as required by Sec. 1087, Rev. Stat.
    Prohibitory ordinance construed the same as other laws. Lowden v. Cincinnati, 2 Disn., 203; Black on the Interpretation of Laws, page 8.
    Exclusive jurisdiction and power to legislate upon a given subject having been conferred by law upon municipal corporations, every intendment and presumption will be made in support of the act. 17 Am. & Eng. Enc. Law, 265.
    
      William T. Perry and D. A. Hollingsworth, for defendants in error.
    Counsel for plaintiff in error, in their brief, argue that the Dow tax is not intended to be assessed against the traffic in intoxicating liquors, when carried on in a city or village where the business is prohibited by a local option ordinance. But this contention, we submit, is not supported by any authority.
    No such exception is made in the statute. See. 4364-9. And such exception, if it be as claimed by counsel, would amount to a practical defeat of the law, especially in those cities and villages where pub-lie sentiment is not strong enough to enforce a prohibitory ordinance. All that would be necessary in such case would be to adopt the ordinance and then elect a mayor who would ignore it. In .this way both the Dow tax and the ordinance would be defeated. The legislature certainly did not intend such an anomaly. Stevenson v. Hunter, 5 Dec. 27; 2 N. P. 300; Youngblood v. Sexton, 32 Mich., 406; License Tax Cases, 5 Wal., 462.
    The Dow law is not a license law. Anderson v. Brewster, 44 Ohio St., 576. It does not make legal the sale of intoxicating liquors in any form not already authorized by law. The laws of the state forbid the sale to certain classes, such as minors, person's intoxicated or in the habit of getting intoxicated, and also on Sundays, election days, etc. Section 6942, Rev. Stat., makes it illegal, under penalty of fine and imprisonment, to keep a place where intoxicating liquors are so sold in violation of law.
    Now it will hardly be contended by counsel that a dealer, confining himself strictly to such illegal traffic, would be exempt from the Dow tax if he conducted his business as specified in Sec. 4364-16, Rev. Stat., defining the meaning of traffic in intoxicating liquors. Lax officers might not impose the penalties provided for such illegal sales, or he might pay his fines and yet do an extensive business. It would be a premium upon wrongdoing. We assume therefore that no one will contend that a dealer under such circumstances is exempt from the Dow tax, and yet the reason for such exemption is much stronger than in case of a local option ordinance. In one case the state itself prohibits the traffic absolutely, but in the other permission only is given to the municipal corporation to pass the ordinance.
   Shauck, J.

The findings of fact made by the court below are not to be reviewed here. The cases are thought to be entitled to report only upon the question arising out of the fact, established in both cases, that the traffic was carried on in violation of ordinances -passed by the municipal authorities forbidding the traffic. The provision of the statute for the assessment in question is found in section 4364-9 of the Revised Statutes. Without exception or limitation it provides for the assessment “upon the business of trafficking.” The only limitations upon the terms of the statute are found in the eleventh subdivision of the same section which provides for the remission of a portion of the assessment when the person against whom it is made voluntarily discontinues the business, and in the twentieth sub-division which provides for such' remission when there is a compulsory discontinuance of the business resulting from the exercise by municipal corporations of the power of prohibiting the traffic, which power is therein conferred. The reliance of counsel for the plaintiff in error is iipon this provision which is: “If any municipal corporation shall prohibit * * * places where intoxicating liquors are sold within the limits of such corporation, a ratable portion of the tax paid by the proprietors thereof for the unexpired portion of the year shall be returned to such proprietors.”

The question presented has not been determined by the lexicographers. Although these municipalities have by ordinance forbidden the traffic, they have not prevented it. But the historical development of our legislative policy upon the subject and the terms employed in the present statute indicate the sense in which the word “prohibit” is used in this section. For nearly half a century prior to the enactment of the present statute, a statute had forbidden throughout the state the sale of intoxicating liquors to be drank upon the premises where sold. During this time the forbidden, traffic grew much beyond the general growth of the state. It was, therefore, most obvious when the present statute was enacted that to make the traffic unlawful does not necessarily prevent it. A leading object of the present statute was to secure to the state the benefit of its experience. Accordingly by the first section the traffic is assessed in terms which admit of no exception. Full effect will be given to all the provisions of the statute if the word “prohibit” in the provision relied upon by counsel for plaintiffs in error is regarded as having its appropriate meaning of preventing. The object of the particular provision was to provide for an equitable remission of a portion of the assessment if the municipal authorities should exercise the power of passing an ordinance forbidding the places and also the power of enforcing the ordinance. The natural force of the language employed in this section is not inconsistent with that of the section which requires the traffic to be assessed wherever it may be carried on. We should not assume that the legislature intended to offer,a reward for the violation of local inhibitions in those numerous portions of the state where sentiment against the traffic is strong enough to secure their adoption, but conviction is not strong enough to secure their enforcement.

Judgments affirmed.

Minshall, C. J., Burket, Speak and Davis, JJ., concur.  