
    State of Ohio v. James W. Gazlay.
    A tax assessed upon, the members of a profession upon account of tbeir practice is constitutional, being not a poll but a faculty tax, and may be legally-assessed by the judicial tribunals.
    This was an action of debt on the act of assembly assessing a tax upon lawyers.
    The cause was tried by jury at the May term of Hamilton county, on a written agreement as to evidence and the questions to be made under it. It was admitted that the court assessed a tax of five dollars on each member of the profession and on the defendant, as stated in the declaration, defendant to make any and every constitutional objection to the action. It was admitted that defendant was duly licensed to practice law in this state in the year 1813.
    The jury, under the direction of the court, found a verdict for the state, the consideration of the legal and constitutional questions being reserved for the court in bank, which questions were :-
    1. That the general assembly can not authorize the court of common pleas to lay or assess the tax. .
    2. The law impairs the validity of a contract within the terms of article 8, section 16, constitution.
    3. The tax is not a property, but a personal or poll tax, and as such violates section 23, same -article.
    4. The law is in opposition to the spirit and nature of our government and institutions.
    Mr. Gazlay argued in support of these propositions:
    *A preliminary proposition may be raised involving the power and duty of the court on questions of constitutional law. To debate this proposition is, it would- s.eem, to dispute a leading article of our political faith, viz: That a frequent recurrence to its fundamental principles is necessary to the existence of free government. How are we to recur effectually to these principles without the aid of the judiciary? Take from courts this power, relieve them from the obligation of it, and the constitution becomes a dead language without an interpreter. The life of the instrument depends on the judicial exposition of it. Principle» are so intimately allied to language, so connected with it, that doubt as to the import of the latter will sometimes endanger the-former; our own history is full of illustration as to this fact: we can defend and preserve our political rights only in proportion as we understand them. The judicial proceedings of the day on this subject are pretty conclusive evidence of the public opinion as to* the best manner of obtaining information in relation to it.
    1. It is the constitution, and not the general assembly, which creates and defines the power of the judicial functionary — these powers and the duties they include are purely and exclusively of a judicial character. It is not seen that the general assembly has more authority to change them than is possessed by the judicial to change those of the general assembly. Both are equally created by the constitution, and both equally dependent on it. If safety alone were to be our counselor, there are few of us who would not-prefer the latter to the former change. What is the proposition ? The constitution says that the court shall have and exercise certain judicial powers, and in thus declaring excludes all others. The general assembly, which is also the creation of the same constitution, says that they shall have and exercise other powers; that they shall lay and assess a tax upon lawyers. Who for one moment can maintain such a proposition ?
    Admitting that the general assembly can not enlarge the powers-given by the constitution, it was contended below that the court could volunteer the service performed in this instance, and that in such a case the constitutional question need not be raised.
    I apprehend that such a statement of the case serves rather to-increase than diminish its difficulties; the question is not one of motive, but of power. The act when performed is authorized, or' it is not; whether done under restraint or voluntarily can not, therefore, affect the right to perform it. Again, if the court can volunteer this service, they could do so as well without as with the law of the general assembly; if they can perform this service* without law, they can equally perform any other service without law. Are the general assembly prepared to sanction such a power ?' The proposition that a court may, as volunteers, exorcise high powers not given them by the constitution, may claim the merit of novelty, but nothing more. Again, to assess and lay taxes is a - highly responsible and important duty; a duty which belongs to - an appropriate office, the incumbent of which must be elected and, ■ sworn into office; will it be pretended that a court can, under any view of the subject, take upon itself such an office?
    2. As to impairing the validity of a contract.
    The effect to be given to section 16 of article 8 of the constitution does not depend upon the argument of the present ease, but ■on decisions of high and respectable tribunals of justice. The ■cases of Dartmouth Colleger. Woodward, 4 Wheat.; Green v. Biddle, 8 Wheat. 84; and New Jersey v. Wilson, 7 Craneh, are relied on as .authority. In these cases, the court are understood as saying, that the prohibition of the constitution, in relation to the impairing of contracts, extends to those made between a state and an ■individual, equally as much as those made between individuals, .and that legislative gifts, grants, and privileges are to be considered as contracts within the constitutional designation;' and that a law, which alters, lessens, or in any degree restrains or changes the rights secured by such gift or grant, or by any contract, infracts or violates, the constitution. If this be constitutional law, ■it remains only to be considered whether the act of the general assembly produces any interference or impediment to the practice of the defendant secured by the license of 1813.
    *The license confers'the right to practice, or is rather the ■ evidence that the holder has complied with the conditions of the law under which the license is granted, which law secures him the .right on the conditions evidenced by the license, and without which he could not practice his profession. The law of 1825, •under which this action is brought, professes to regulate this same practice, and in express terms includes all who are 'in practice at the time it takes effect, as it does those who should thereafter be .admitted to practice, and requires the court to assess a sum of money on both classes, provided the person to be assessed or taxed-has been at the time two years in practice, and provides also for ¡legal compulsion, if the sum assessed on each be not paid. The assessment was made upon the defendant while he was in practice under his license, and the present suit is brought to enforce pay.rnent of the sum so assessed. The defendant has, therefore, no right to practice which was not secured to him by his license and ¡the law under which it was granted. The law under which the present suit is brought, if it affects anything, affects the rights of ¡the defendant existing at the time of its passage and going into 'Operation. This law requires something of the defendant; for this something the present suit is brought. Is this something in-addition to what was required of the defendant by the former law ? Does it, or can it bear upon, or interfere with his right of practice under that former law ? This, it would seem, is the question, and the only one now to be settled.
    The tax is assessed ; it is demanded, and suit is brought to enforce its payment. For what, but for and on the right of practice, which the defendant legally enjoyed at the time the assessment was made? This right of practice is a personal one as much as-any right to which a citizen has claim. Can it be for one moment contended that suit, prosecution, execution, and imprisonment do-not interfere with the right of practice; nay, that they are not the most unequivocal interference, amounting to total prohibition of the right and power to practice, if the taxed be unable or unwilling to pay; if so, no other question need be made on this branch of the ease.
    It is laid down as a mathematical truth (and why not *also a legal one?) that things which are equal to one and the same thing are equal to each other. A law, therefore, passed by the-general assembly, expressly imposing fine and imprisonment on all persons found in the practice of a particular licensed profession, would be precisely equal in effect to a tax law, which resulted in the same fine and imprisonment to such profession. If the general assembly could enforce the former, they could the latter.
    The laws regulating taverns, ferries, and auctions were referred to in the argument below, as giving the general assembly a sort of common law or proscriptive right over all professions, and as-being in point as to the power to tax licenses. If such a reference deserves a grave reply, it must be sought for.
    Certain offices are set to sale by public authority, and that with a view to revenue; they are open to every purchaser who will pay the price demanded. The quid precedes the pro quo — payment secures the right or license either for a single year, more or less. Can public authority demand additional payments before such license or right expires ? Certainly not, and why ? Because-it would impair the effect and validity of a contract. The state are entirely welcome to the full weight of this reference.
    3. That the tax is personal and a poll tax.
    The power to tax is an incident of sovereignty, without which ■the operations of government can not be sustained; but it is a -sustaining power only when exercised within given limits;' beyond these it becomes a destroyer. It was the opinion of our an■cestors that this power could be safely lodged with those only who were compelled to use. it, if at all, against themselves. This -opinion combines taxation and representation as inseparable, and forms unquestionably the strong bulwark of free government.
    But even this principle, as unexceptionable as it appears of •itself, does not afford sufficient security to all classes; a' principle ■ inherent to political justice, denominated equality, demands that ■those institutions, which are designed alike for the protection and -security of all, should be maintained by the equal contributions • of all; this equal contribution is sustained on the basis of property alone; it looks, therefore, *to property as its sole ■element. The idea of personal service as a return or compensation for being well governed, is perfectly feudal, and has long ■since been exploded; a tax, therefore, which does not proceed •upon the basis of property, but that of person, is, to its extent, a restoration of feudal principles. The framers of our constitution, feeling the force of these principles, provided against the imposition of any other than a property tax by denouncing a poll tax as grievous and not to be imposed. We are too familiar with the usages of our government not to know that they frequently explain the'terms by which they are created. “The polls” designate a place which, either for political importance or effect, gives room to no other; these words convoy a numerical and personal idea, excluding entirely that of property. To poll signifies barely ■ to number or count the heads of such or such a mass of citizens; there can, therefore, be no misapprehension as to the terms poll tax, which is riot to be imposed for. state or county purposes, leaving it clearly with the pure democracy, assembled in town meeting, to adopt the feudal policy in aid of their smaller matters, if ■ they choose so to do.
    A land tax is not a poll tax; and why ? .but for the reason that it is imposed in relation to land of property, and takes no account of the person, unless it be to afford to such person an opportunity .to raise the lien created against his land; if he do not do this, his poll or person is not considered of the least account.
    The same may be said of personal property — the government ■ takes no account of the head or poll of him who happens to be ttssociated, under the term “ owner,” with any given quantity of dead •matter; they-seize the substance, but let the head escape.
    The rapacity of the church has at different periods, racked human invention to find subjects and occasion for exactions and extortion ; but scarcely an instance can be found where it has placed any high estimate upon the poll, and none where it has been taken in satisfaction of a single tythe; and although our sturdy ancestors were sore pressed under the Henrys and Edwards, both in land .and silver, for various oppressive contributions, the poll on person was never demanded or taken in satisfaction.
    *There can not be found a respectable treatise on political economy, in which any and every tax, not holding property as its basis, is not condemned as unjust and oppressive. Can our own •constitution tolerate what is odious and oppressive, even under the administration of monarchical government?
    Will it be contended that this is an income or faculty tax? The first is a property tax in every sense of the word, the latter is a poll tax. If this were a tax on income, it must have been proportioned to such income, which it is not. Did the general assembly so intend it to be? If they did, the tax is imposed even without the forms of legal provision, inasmuch as it exacts an equal sum from each of those on whom it is assessed. Again, it can not be an income tax, because no provisions are made, no power given for an assessment on the amount of income, or even for ascertaining the amount. The maximum of fifty dollars is a bare limit to the discretion of the court, in the same words, and precisely for the same effect that they are inserted in criminal statutes.
    4. This tax is imposed either in commendation or derogation of the profession; if for either, it equally violates the spirit of our institutions. The law imposing it would be rendered no more personal and invidious, had it contained the names of the persons in the professions against whom it is directed. Who are they who fill the ranks of the legal profession ? Monopolists, speculators upon the rights of others ? Far from it; they are the opposing shield between oppression and its victims; they come forth to defend and protect those social rights, and to enforce those social duties which have so clearly distinguished and elevated the present above the barbarous ages; coming chiefly from the middle ranks of life, they venture upon an employment at once the most arduous and honorable, one in which distinction is the meed barely of severe toil and research; an employment which demands sacrifices of both mind and body; one which is not learned in the bowers of pleasure or the courts of ease; but which takes its assiduous lessons, not-from record and volume alone, but from the intricate and endless passages of the human heart. Distinction, even then, is more than precarious, unless to all be superadded a gift which no lesson can impart — a noble, generous, and fearless nature. ' Be the *final destiny of this employment whatever it may, its followers can not. be reproached; if they have appeared to defend crime, it was because they wished to defend the laws and the weakness of human nature; if they have appeared to advocate injustice, it is because-humanity has no perfect code; in the field of honor, at their country’s call; at the bar, even beneath a tyrant’s frown, the-cause of innocence and patriotism will award to them the meed of equal and untiring firmness. If there be blots upon their history as a class, it may be answered that the sun himself has his obscuring Spots, and that nature exhibits the beauty and grandeur of the unrivaled bow on the bosom alone of a dark cloud.
    I have sought, and sought in vain, for some redeeming cause or authority for the imposition of this tax; none can be found; the-authorities are against it; good sense is against it; justice and equality, our political boast, are against it — the spirit, therefore, of our institutions is against it; why, but from a conviction of all -this, has it been repealed ? In resisting it, I have discharged no more than a common duty'; to pay it, I should become a party to its injustice ; this I can not do, and remain a worthy descendant of those who resisted the tea and stamp tax.
   Opinion of the court, by

Judge Lane:

It is evident that the expenses of government should be borne by individuals in proportion to their respective abilities, or in other words, in proportion to the revenue which they enjoy under the protection of the state. In some countries, however, either from ignorance, from a want of financial skill, or from a disregard to any considerations, except the faculty of levying revenue, taxes have been imposed numerically upon citizens, without any reference to their capacity of sustaining the burden. These are poll or capitation taxes; and the convention deemed their operation so inequitable that they have forbidden the legislature to adopt, them for state or county purposes.

1. Does the tax imposed upon those who exercise the professions of law and medicine possess the character of a ^capitation tax? This question has been heretofore presented to this court. 2 Ohio, 63. But as no argument was presented, this court are invited to review the opinion they then expressed, that it does not possess that character. This, court, after reconsideration, see no reason to change their conclusion. The tax is not levied upon the person without relation to his abilities to pay, but it is designed to operate upon the profits of lucrative professions,- and the amount of the tax is fixed with reference to the amount of the-profits.

2. It is said a license to practice is a contract, and that a tax upon such as are licensed, is a violation of the contract. We can not consider the license in this light. Although the effect of the license gives to the members of these professions something of an-exclusive character, and incidentally confers valuable privileges, yet the design of the license is to protect the community from the-consequences of a want of professional qualifications, and to benefit' the public by enabling the profession to acquire professional merits; consequently the license can not be holden to confer any vested privileges, but is liable to be modified in any manner which the public welfare may demand.

.3. The manner of assessing the tax does not, in our opinion, render it illegal. If the common pleas had declined the assessment as a service beyond their judicial duties, as the judges of the judicial courts declined acting under the act conferring pensions, it would be a grave question whether the duty could have been executed. But the judges have assessed the tax, and a privilege-which they do not claim, can not avail the defendant.

It is said that the law is inconsistent with the nature of our government and constitution. The court can not very well understand the precise nature of the objection, but believe it is more properly addressed to the other departments of government. If the expediency of the law were properly before us, we should know no reason why the profits which arise in the exercise of lucrative professions, are not only legitimate objects of taxation, but objects peculiarly proper to sustain a due share of the ex-' penses of government.  