
    The Marion Foundry Co. v. Landes, Auditor, et al. Clawson v. Landes, Auditor, et al.
    
      Constitutional lam — Municipal occupational tax — Not denial of due process — Section 1, Article XIV, Amendments to ü. S. Constitution — Not usurpation of State legislative power —Sections 1 and 8, Article II, Ohio Constitution — Occupations and component parts not doubly taxed, when — Unit of measurement for determining tax not justiciable question, when — Poll tax not levied, when — Section I, Article XII, Ohio Constitution.
    
    (Nos. 18696 and 18697 —
    Decided March 10, 1926.)
    Error to the Court of Appeals of Marion county.
    The plaintiff in error in each of these cases sought in the court of common pleas to enjoin the collection of an occupational tax imposed by the city of Marion, by virtue of an ordinance enacted by the city council on the 10th day of March, 1924, being an ordinance entitled:
    “To levy an occupational tax upon persons, associations of persons, firms and corporations, carrying on certain trades, professions, occupations, businesses and employments in the city of Marion, Ohio, in the year 1924.”
    Section 1 of the ordinance provides:
    “That there be and there is hereby levied for the purpose of providing revenue required by the city for the year 19'24, an occupation tax upon all persons, associations of persons, firms and corporations carrying on in the city of Marion, Ohio, any of the trades and occupations, and transacting in said city any of the businesses hereinafter specified for carrying on and conducting said trades and occupations for the transacting of such businesses in said city and upon each and every person carrying on in said city upon his own account and not exclusively as an employee, any of the professions hereinafter specified for the carrying on of such professions in said city, and upon each and every person in the employ of such person or persons, associations of persons, firms or corporations, carrying on in the city of Marion, Ohio, any of such trades or occupations, or transacting in said city any of such businesses or professions, for the engaging in of such employment in the amounts set opposite said respective trades, professions, occupations, businesses and employments, as follows [setting forth schedules].”
    In the various schedules contained in the ordidance, the attempt is made to classify and tax all persons, associations of persons, firms, and corporations, professions, occupations, businesses and employments operating within the city. Schedule 1 provides:
    “Except as otherwise herein specifically provided, tanneries, abattoirs, packing houses, slaughter houses, bakeries, proprietary medicine manufactories, lithographing, and book binding estab-. lishments, publishers of newspapers, magazines and other periodicals, published for profits, manufacturers of models and patterns, mills of all kinds, and manufactories of every kind, character and description:
    “A tax of $100.00 with an additional tax of $2.00 for each person employed by and working therefor in the city of Marion, Ohio.”
    
      'Schedule 2 taxes wholesalers and retailers. Schedule 3 taxes T01 different occupations and professions, and schedule 4 undertakes to tax all occupations not covered by schedules 1, 2, and 3, and provides:
    “Except as otherwise herein specifically provided, each and eveiy person in the employ of any person or persons, association of persons, firm or corporation, carrying on in the city of Marion, Ohio, any of the trades or occupations, or transacting in said city any of the businesses or professions for which a tax is levied by this ordinance, each and every officer and person regularly employed by and working for the city of Marion, Ohio, and each and every person in the employ of any privately owned public utility company not mentioned therein, but doing business in the city, and which said employee or employees are employed exclusively within said city in said business or occupation, as follows:
    “'Class 1 — General managers, executive and administrative officers, a tax of $25.00 each.
    “Class '2 — Departmental heads (not including foremen) a tax of $10.00 each.
    “Class 3 — Employees in all other capacities other than those mentioned in Classes 1 and 2 hereof, a tax of $2.00 each.
    “All persons taxed under this schedule shall separately pay said tax through his or her then employer, and the said employer shall be responsible for the collection of such tax according to said schedule, and shall furnish upon forms to be supplied by the city, a certified list of all persons employed by him on the first day of April, May or June, 1924, according to the classification of the trade, occupation, business or profession, which certified list shall contain the name, residence address, nature of the employment and the amount of tax charged, which tax shall be collected by said employer and by. him remitted • to the Tax Collector within the period provided for such payment of the taxes designated in Section 5 of this ordinance. The city’s separate receipts for the tax of each such employee will be promptly prepared and delivered to such employee through the employer.”
    Section 14 provides:
    “The word ‘person,’ as used in this ordinance, shall include all persons, associations of persons, firms, or corporations acting in any trust capacity, including receivers, trustees, guardians, administrators, executors, agents, attorneys, in fact or other representatives, as well as those acting in their personal, associate, firm or corporate capacity.
    “The word ‘employee,’ as used in this ordinance, except as otherwise provided, shall be held to include all natural persons, including minors employed for pecuniary or other reward in the carrying on of any such trade, occupation, business or profession, whether the reward, salary or wages for such employment be paid upon the basis of the time employed or upon the basis of piece work.
    “The taxes herein levied under schedules 1, 2, and 3 of this ordinance do not impose any tax against any employee or employees of any of the persons, associations, firms or corporations therein taxed, but'the number of employees is used solely as a unit of measurement to determine the amount of the tax so levied against any such person, association, or persons, firm or corporation for the carrying on of their respective trades, occupations or professions or the transacting of the businesses therein mentioned, and when two or more persons mentioned in schedule 3 hereof are separately taxed for carrying on any profession or business therein mentioned, but the employee or employees are employed by such persons jointly, then the additional tax so levied by reason of such employee or employees shall be borne by said employers in equal parts.”
    An injunction was denied by the trial court, error was prosecuted to the court of appeals, where the judgment of the court of common pleas was affirmed, and error is now prosecuted here.
    
      Mr. George B. Okey and Mr. Timothy S. Hogan, for plaintiffs in error.
    
      Mr. Grant E. Mouser, Jr., city solicitor, for defendants in error.
   By the Court.

The plaintiff in each case contends: First. That the tax violates Section 1 of the Fourteenth Amendment to the Constitution of the United States, which provides, “Nor shall any state deprive any person of life, liberty, or property, without due process of law.” We are content, as were the courts below, to dispose of this question upon the authority of Southwestern Oil Co. v. Texas, 217 U. S., 114, 30 S. Ct., 496, 54 L. Ed., 688, where it was held:

“Except as restrained by its own or the federal Constitution, a state may prescribe any system of taxation it deems best; and it may, without violating the Fourteenth Amendment, classify occupations, imposing a tax on some and not on.others, so long as it treats equally all in the same class.”

The second contention is that the tax contravenes Section 1 and Section 2 of Article II of the Constitution of Ohio:

“Section 1. The legislative power of the state shall be vested in a general assembly. * * *
“Section 2. Senators and representatives shall be elected biennially by the electors of the respective counties or districts.”

The question here made has been fully considered and determined by this court in the case of State ex rel. Zielonka v. Carrel, Auditor, 99 Ohio St., 220, 124 N. E., 134, wherein this court declared:

“1. The state of Ohio, under the provisions of Section 10, Article XII of the Constitution, has authority to levy excise taxes in the form of an occupational tax. , .
“2. Under the grant of power of local self-government provided for in Section 3, Article XVIII of the state Constitution, the city of Cincinnati, as long as the state of Ohio, through its General Assembly, does not lay an occupational tax on businesses, trades, vocations and professions followed in the state, may raise revenue for local purposes, through the instrumentality of occupational taxes.
“3. The ordinance of the city of Cincinnati providing that an annual tax shall be laid upon all persons, associations of persons, firms, and corporations pursuing any of the trades, professions, vocations, occupations and businesses therein named, is a valid exercise of the legislative power of such city.”

In that case the corporation taxed was a manufacturer of bottles and glassware articles and the person taxed was an osteopathic physician. That case was approved and followed by this court in the case of Globe Security & Loan Co. v. Carrel, Aud., 106 Ohio St., 43, 138 N. E., 364, and other cases reported therewith.

It is not contended here that there is any difference in principle between the taxing of the occupation of a manufacturer of bottles and glassware articles, and the taxing of the occupation of the Marion Foundry Company, the contention here being, however, that the taxing of the occupation of the Marion Foundry Company a specified sum plus a sum equal to $2 for each employee amounts to dividing its occupation into component parts and taxing the occupation as a whole, and again taxing the occupation by taxing its component parts; in this instance the taxing of its occupation of employing labor, which it had theretofore taxed as a part of the occupation of the foundry company. The contention, however, is not borne out by the provisions of the ordinance. The ordinance provides for a tax of $100 upon the Marion Foundry Company, “with an additional tax of $2 for each person employed by and working therefor,” the ordinance specifically declaring that the “number of employees is used solely as a unit of measurement to determine the amount of the tax so levied.”

The particular unit of measurement which shall he used in the levying of an excise tax is not a justiciable question beyond the question whether it has some reasonable relationship to the basis upon which the classifications are made. The unit of measurement might have been gross receipts, tonnage or any other unit which would have had some reasonable relation to the size and extent of the business transacted.

On behalf of the plaintiff in cause No. 38697, it is contended that the ordinance in effect levies a capital or poll tax, and violates Section 1, Article XII, of the Constitution: \

“No poll tax shall ever be levied in this state, or service required, which may be commuted in money or other thing of value.’’

The distinguishing feature between a poll tax and every other variety of tax is that a poll tax is a sum levied upon persons without regard to property, occupation or ability to pay, and is a level assessment against all persons; whereas, all other forms of taxation are based upon some process of computation, such as valuation, occupation or earnings.

It will be observed from the various provisions of this ordinance that the occupations of the persons, associations, etc., taxed by it are taxed in sums varying from $2 to thousands of dollars; that the various classifications made, with their subclassifications, run into the hundreds, and that the only approach to a level assessment per capita is in schedule 4, where a level assessment of $2 is assessed against all occupations not otherwise classified in the various provisions preceding it, and that this level tax is not assessed against all the inhabitants, as such, of the municipality, not otherwise taxed in the ordinance, but is assessed against “employees in all other capacities.” The tax is levied upon the occupation, and is paid by the person, association, etc., engaged in the occupation — is a tax, not upon the privilege of being, but upon the privilege of engaging in an occupation.

The question here is one of power rather than of policy, and we are unable to make any distinction in principle between the levying of an excise tax against an osteopathic physician, as was done in the case of State ex rel. Zielonka v. Carrel, supra, and the levying of an excise tax against any other occupation or profession, whether such occupation or profession be designated by name and classified, or the tax be levied against occupation generally.

The judgment of the 'Court of Appeals in each case is therefore affirmed.

Judgments affirmed.

Marshall, C. J., Matthias, Day, Allen, Kinkade and Robinson, JJ., concur.  