Rose And His Saloon

Judge Cheever Writes of the Tax Law

SUPREME COURT CASE

Are Cited Which Appear to Prove That "Doc" is in a Bad Fix

Doctor Rose and his saloon seem to be still before the public. The common council have endeavored to legislate his saloon out of existence, but our prosecuting attorney has given the opinion that in any event he cannot be ousted until the expiration of a year from the time he filed his bond and paid his tax, upon the ground that the tax law is in effect a license law. The people of our state have generally been laboring under the impression that there was no license law for the sale of intoxicating liquors in the state of Michigan. The earlier decisions of our supreme court virtually so decided. We quote a portion of the head note in the case of Youngblood vs. Sexton, Opinion by Judge Cooley, 32 Mich. 407: "The constitution (Art. IV. 47) prohibits the legislature from authorizing 'the grant of license for the sale of ardent spirits or other intoxicating liquors.' This does not preclude taxing the liquor traffic. a tax not being a license, in either the legal or common understanding of that term. and in the payment or non-payment of the tax not effecting the right to carry on the traffic, which. since the repeal of the prohibitory law, is lawful whether the tax is paid or not.' " Also in the case of People vs. Walling, 53 Mlch. 264, opinion by Judge Sherwood, part of the head note is as follows: "Taxation and regulation of the liquor traffic does not amount to licensing it, but is an exercise of the police power of the state." We find, however, a contrary opinion in the following cases: In the People vs. 'Sykes, 96 Mich.452, 454, opinion by Judge Long, the court uses the following language in regard to the liquor traffic: "The right to carry on the business is in the nature of a license to the party who complies with the statute." Also in the case of Sherlock vs. Stewart, 96 Mich. 193, opinion by Judge Grant, on page 197, the court used the following language, viz.: "The system, in this state, is not purely a tax system. The fee to be paid as a condition precedent to entering upon the business is called a 'Tax.' but there are other conditions precedent which are inconsistent with a purely tax system. These provisions partake of the character of a license."

The people of our state ought to wake up to the fact that they now have, practically, a full fledged license law.

There are a good many restrlctive statutes in our state, which were published by Washington Gardener, secretary of state in 1895, which may be of general interest. On page 30 we find statutes prohibiting the sale of liquors on boats. On page 31 is a statute that prohibits a saloon within a mile of the soldiers' home. On page 33 sale of liquors on election days is prohibited. On pages 34 and 35 there are statutes prohibiting the use of liquors of any kinds by prisoners in state prisons or jails except for medical purposes. This statute has been openly and grossly violated in the past in regard to our jail, if common report can be credited. On page 37 is an act providing that children shall not be apprenticed to saloon keepers. On page 37 there is also an act prohibiting the use of intoxicating drinks by railroad employees. The language of this act is as follows: "3307. S. L. 1873, Act 198, Articie IV. Sec. 5. No person shall be employed as an engineer, train dispatcher, fireman, baggagemaster, conductor, brakeman or other servant upon any railroad, in any of its operating departments, who uses intoxicating drinks as a beverage; and any company in whose service any such person shall knowingly be employed shall be liable to a penalty of five hundred dollars for every such offense, to be sued for in the name of the people of the state of Michigan.

"3368. Sec C. If any person shall be intoxicated while in charge of a locomotive engine, running upon the road of any such company, or while acting as the conductor of any train of cars on any such road, he shall be liable for all damages incurred or produced in consequence thereof, and shall be deemed guilty of a misdemeanor: Provided, That this shall not effect or release the railroad company from any such liability."

On page 38 is an act providing that minor children under sixteen years of age shall not be permitted to remain in any saloon. On page 39 is an act prohibiting the sale of liquors within two miles of a place where any religious society shall be actually assembled for religious worship. On page 40 is an act prohibiting the sale of liquor at parades and encampments of militia. On page 41 is an act prohibiting the saloons withing one-quarter of a mile of cemeteries.

Very respectfully, NOAH W. CHEEVER.

Prosecuting Attorney John L. Duffy, when seen with reference to the above letter, said: "The validity of the ordinance referred to can be finally determined only by the supreme court of this state. I am not in the habit of anticipating its decisions and certainly don't want to be so understood. Any proceedings now will be taken under this ordinance and with this of course I have nothing to do."