
    Village of Van Wert v. Brown.
    
      Constitutional law — Local option — Construction of the Dow Law — Practice.
    On March 6, 1889, the council of the village of Van Wert passed a prohibitory ordinance by virtue of the 11th section of the act of May 14, 1886, entitled “ an act providing against the evils resulting from the traffic in intoxicating liquors,” (83 Ohio Laws, 157,) which ordinance went into effect March 22,1889. June 6th, following, a complaint was made before the mayor, against one B., charging a violation of the ordinance by keeping a place within the village where intoxicating liquors were unlawfully sold from May 1st to June 11th. B. filed a motion to be discharged, and, afterwards, a motion in arrest of judgment, on the ground, among others, that so much of said 11th section as purports to vest in municipal corporations power to pass prohibitory ordinances was unconstitutional, the same not providing a way by which, and a fund from which, a dealer who should be compelled to discontinue the business could first have returned to him the ratable proportion for the unexpired portion of the year of the tax paid. The motions were overruled, and, on a plea of guilty, sentence of fifty dollars fine was imposed. On error to the court of common pleas the judgment was affirmed. On error to the circuit court the judgment of both courts was reversed, and the defendant ordered discharged.
    
      Held: 1. That under section 7356 Revised Statutes, as amended February 7, 1885, (2 S. & B. Revised Statutes, 2123,) this court has jurisdiction to review the judgment of the circuit court. 2. That it was not error to overrule said motions, for the reasons: (a). It not appearing that the deféndant had been assessed or paid the tax provided for by thé first section of said act, as amended March 26, 1888, he was not affected by the provisions for refunding to those who had paid, and, as to him, it was immaterial whether or not, as to those who had paid, said provisions are or not incapable of execution, and whether the prohibitory feature of the law, as to the latter class, is unconstitutional or not. (6). Section eleven, being construed with section three of the act, the two, taken together, afford a way by which a dealer in intoxicating liquors, who has discontinued the business, either voluntarily or by compulsion, may receive a refunding order for the proportion of the tax to which he may be entitled. 3. Said section eleven is not impossible of execution merely because it does not provide out of what fund such return of a ratable proportion of the tax paid shall be made.
    (Decided June 27, 1890.)
   Error to the Circuit Court of Van Wert county.  