maintained. In Burson's case the note was never completed or delivered, and was void, and it was held that the indorsement could not give it validity. In this case the validity of the certificate is not questioned. If the defendants were innocent bona fide purchasers for value they should be protected, because Sanford could have in such case negotiated this paper to the defendants freed from the equities between him and Birch, the real owner. He had been intrusted with it as a pledge by the owner, and so held it at the time he sold it to the defendants. It was negotiable paper. The owner had placed it in a situation that it might be taken and disposed of by Sanford to an innocent party, and, as we think the record shows, without observing the ordinary caution of business men; and if he has been defrauded by Sanford he cannot be heard to complain, unless it shall be found that the defendant's purchase was not bona fide and in good faith.

Plaintiff's counsel claim that the certificate was due when issued, and that so long a time had elapsed since its issue that when Fisher and Preston acquired it, it was presumably dishonored paper, and they did not acquire the right of bona fide holders. Tripp v. Curtenius, 36 Mich. 496, sustains the first of these propositions. If, however, the question were an open one, we should urge that such a certificate does not become due until payment is demanded, as held in Bellows Falls Bank v. Rutland Co., 40 Vt. 377 and Howell v. Adams, 68 N. Y. 314; but whether this be so or not, it is unnecessary to determine in this case. However, all the authorities agree that such paper is properly payable only upon return and presentation of the certificate, and an innocent purchase for value, and without notice of equities, within a reasonably short time, is entitled to the rights of a bona fide holder.

In view of the purposes of this kind of paper, and the commercial usages in respect to it, the situation of the parties, and the facts appearing upon the record, we do not think the lapse of thirty-one days sufficient to raise the presumption that the paper had been dishonored; and, had the testimony left the case here we should not feel disposed to disturb the judgment at the circuit.

Counsel for plaintiff, however, insist that the testimony in this case raised the question of good faith on the part of the defendants in making their purchase of the certificate, and it should have been submitted to the jury. In considering this point it must be remembered the case is not one of equities asserted in favor of the maker of negotiable paper, but whether Birch lost title to his certificate. That he never parted with the

title is certain, if his own evidence is to be believed. The defendants get it, if at all because he, by his carelessness, has put another in possession of his indorsement, with legal power to dispose of the paper, and the defendants may have title if they took the paper in good faith, in reliance upon the indorsement, and without negligence. Have they done so? Does Preston's evidence show it? On the contrary, does it not appear affirmatively from his evidence that plaintff's indorsement was not verified to him, and he did not take in reliance upon it; apparently he knew nothing of the plaintiff, and he made no inquiry concerning him. A stranger presented him the certificate, with the plaintiff's name upon it; and instead of having the signature verified, and taking the paper in reliance upon it, he requested the stranger to give him an indorser he knew, and then bought it in reliance, evidently upon that indorsement. "Prima facie," at least, that was the case. This, in connection with some other testimony appearing in the record, which it is unnecessary herein to state, made it quite proper to submit the case to the jury.

The judgment must be reversed with costs, and a new trial granted.

RECORD OF NEW CASES FILED IN THE OFFICE OF THE CLERK OF THE SUPREME COURT.

No. 1314. William H. Wallace et al. ex'rs, &c., v. Oscar Townsend, receiver &c. Error to the District Court of Jefferson County. Daniel Pick, Wm. P. Hayes for plaintiffs; Alexander & McDonald for defendant.

1315. Home Building and Loan Association et al. v. Charles T. Clark et al. Error to the District Court of Franklin County. Gilbert H. Stewart for plaintiffs; S. Hamilton for defendants.

1316. The Cincinnati and Clifton Incline Plain R. R. Co. v. Alexauder Starbuck and Jacob Pfaw `assignees. Error to the District Court of Hamilton County. Stalle & Kitridge, Paxton & Warrington for plaintiff; J. W. Jordon for defendants.

1317. Salmon D. Ashley v. Caroline M. Rockwell et al. Error reserved in the District Court of Ashtabula County. Northway & Fitch for plaintiff; N. P. Howland for defendants.

1318. Sarah E. Bonte, Exrs. &c., v. Benjamin P. Hinman et al. Error to the Superior Court of Cincinnati. Boyce & Boyd, S. T. Crawford for plaintiffs; B. F. Ehrman, Stricland & Selmer, Hoadly, Johnston & Co. for defendants.

1319. Jacob Good v. Buckeye Mutual Fire Insurance Co. Error reserved to the District Court of Summit County. J. J. Hall for plaintiff.

The Ohio Law Journal.

Columbus, O., August 4, 1883.

THOSE young bloods who are in the habit of taking women to their sleeping rooms must go slow" in the future or they will have their landlords' fire insurance policies all vacated. The Supreme Court of Indiana recently held, in the case of The Indiana Ins. Co. v. Brehn, that "the conversion of an ordinary sleeping apartment into a house of assignation and prostitution, is a material change in the character of the occupation of the property, within the meaning of the policy," where one of its conditions was to notify the insurance company "of any change in the nature or character of the occupation of the property insured." This is a novel holding, and may be good law in Indiana, whether it is anywhere else or not. This case recalls one that was carried up to the Indiana Supreme Court by a backwoods attorney, in which it was originally sought to restrain the performance of a certain act. The answer in the court below showed that the act had already been performed, and the allegations of the answer were proven on trial. It is scarcely necessary to say that the supreme court did not restrain the act.

THE Supreme Court of Pennsylvania recently, in Chilcoat's Appeal, 4 Legal Intelligencer 295, distinguishing Peterman's Appeal, 26 P. F. Smith 116, where a man made an assignment for the benefit of his creditors, reserving generally his exemption in lieu of a homestead, but failed to make a demand for it until after sale of the property, held that he had lost his right thereto by his laches. When the exemption is a personal privilege which the debtor may waive by contract, it has been held that he may, by unequivocal acts, waive it at time of levy and sale, Butt v. Green, 29 Ohio St. 667; and where such right pends upon selection or demand, a failure to make such selection or demand at the proper time of in a reasonable manner is held to be a waiver, Frost v. Shaw, 3 Ohio St. 270; Butt v. Green, supra. Where a debtor is required to demand his homestead and it can only be set off to

him by admeasurement in kind, he must make such demand before sale, Kuntz v. Bahr, 28 La. Ann. 90; Williston v. Schmidt, Ib., 416; Herschfeldt v. George, 6 Mich 468; Melton v. Andrews, 45 Ala. 454; and it is not necessary that the demand be made at the time of the levy, Beecher v. Baldy, 7 Mich. 510, but any time But where he can demand money in lieu of before sale, Sears v. Hanks, 14 Ohio St. 298. a homestead a demand for such allowance will be good if made before the proceeds of the sale are paid over to the sheriff, Ragland v. Moore, 51 Ga. 476, if not before order of distribution by the court. Unless it is specially required by the constitution or statute law of the state, the notice for claim of homestead exemption, ing, Beecher v. Baldy, supra. or money in lieu thereof, need not be in writ

Articles Original and Selected.

LICENSE TO TRAFFIC IN INTOXICATING LIQUORS. The question what is and what is not a constitutional enactment under a provision

of the constitution that "no license to traffic in intoxicating liquors shall be granted, but the legislature may, by law, provide against evils resulting therefrom," which exists, in Ohio, and substantially in some other states, has of late years, awakened more general interest than any other one proposition of law. In consequence of the scarcity of decisions directly upon the subject and the prolixity of those bearing thereon, it is necessary to give the reasoning of the courts for the decisions rendered.

In the last case, State v. Frame (Sup. Court Ohio,June 29, 1883), a law was passed repealing the law which made it a misdemeanor to sell intoxicating liquors to be drank where sold, and providing (1) that every person engaged in the traffic should pay a certain sum of money, to which was added a penalty of twenty per centum in case of failure, which should be a lien on the real estate on or in which the business is conducted; (2) that it is a misdemeanor to engage in the traffic on or in the premises owned by another without the written consent of such owner; (3) that the collection of this tax and the enforcement of this lien should be as provided for the col

lection of other taxes; (4) that municipal corporations have full power to regulate, restrain, or prohibit the traffic. The constitution provides that no license shall be granted, but the legislature has power to provide against the evils resulting therefrom. The court held that this act did not violate the constitution for the following reasons: (1) That unless restrained by the constitution the legislature has the power to prohibit, regulate, license or tax the traffic; but the legislature is restrained by the provision above quoted, hence, if the act is not a license law, it is valid. A license is granting a special privilege to one or more persons not enjoyed by citizens generally. This act does not grant a special privilege because before the act the right to traffic was the right of every citizen, and the same right exists under the act. The personal right to traffic is not taken away from any one except that no one can do it on the premises of another without the owner's consent, which is right inasmuch as the tax is a lien on the realty; hence, this act is not a license law nor a prohibitory law. It is a law regulating the evils resulting from the traffic in that it diminishes the number of those engaged in the traffic, by means of a tax, which means the legistature alone has power to select. The power to regulate the evils extends to mitigating, diminishing, or preventing the traffic; hence, as the legislature has power to prohibit in order to prevent, it has power to tax in order to diminish, inasmuch as it has the sole power to determine the means by which this regulation is made. Neither does the act violate the constitutional requirement that all taxes shall be equal and uniform, because revenue can be raised in the form of a license on business injurious to public welfare (which the sale of liquor is), but not purely for revenue, and the tax in this law is not a license fee nor for revenue only, but is to regulate the evils, the revenue being merely incidental. This court held that this act is not a license law because it does not take away or confer any right or privilege which existed at its passage. (2) It is a law to provide against the evils resulting from the traffic, because if the legislature determines that to provide against the evils, it

is necessary to prevent, it can do so, and as it can prohibit, it can diminish by means of a

It will be seen hereafter, that neither of these positions is satisfactory. The act is a license law because it confers rights or privileges which did not before exist, in this, that it makes it lawful to drink intoxicating liquors at the place where sold (section 11 of the act), and by imposing the tax it limits the traffic to those who ray and have means to pay, thus prohibiting the traffic to citizens generally; because if one traffics, he is taxed, and this tax is a lien, and if he does not traffic he is not taxed. It is not an act to regulate the evils resulting from the traffic, because the legislature can not prohibit. To regulate the evils resulting from the traffic means that the traffic is lawful, and that the legislature is limited to regulating the evils, not to regulating the traffic. This law does not regulate any evil because the imposition of a tax, and at the same time enlarging the field for the traffic, is not the regulation of evils. It is not an evil per se to traffic in intoxicating liquors, but evils do result from the traffic; hence, it is lawful to traffic in this business as in any other business, but the wrongs or evils resulting from the traffic may be provided against, such as regulating the quality, and the sale to proper persons, and at proper times and in proper places.

In State v. Hipp (38 Ohio St. 199), the statute assailed ute assailed as unconstitutional, provided that (1) all persons engaged in the traffic should pay a certain sum of money and furnish bond to secure the payment and compliance with other provisions of the act. (2) To traffic without furnishing the bond was a crime. (3) To traffic after the bond was forfeited was a crime. (4) It was a crime to furnish intoxicating liquors to any person but such as comply with the statute. The constitution prohibits license, but permits laws providing against the evils resulting from the traffic. The court held that this act was a license law, and therefore, unconstitutional for the following reasons: (1) That unless complied with, the act was a prohibitory law and made unlawful the sale of that which be.fore it, was lawful, namely: ale, beer, cider, and wine. (2) By giving the bond and pay

ing the tax, the right or privilege to traffic is obtained, and non-compliance makes the traffic unlawful. Hence the law is a license because a license is permission from competent authority to do an act which, without it, would be unlawful. A license is granted under the police power of the state, and a fee therefor may be exacted, but if the fee is for revenue, it is the exercise of the taxing power of the state and must be equal and uniform. The dissenting opinion by Justice Johnson holds the act constitutional on the ground (1) that the law is a tax law, not a license law, because the act confers no right or privilege; the traffic being under the same laws existing before the enactment of the statute, although the act makes it a misdemeanor to traffic without the bond, or after the bond is forfeited. (2) The act is not a license law, because the penalty (the misdemeanor) is for not giving security to pay the tax, the penalty being a mode selected to enforce payment. The law confers no authority or no right to engage in the traffic, and grants no permission; it simply taxes a business found in existence; although under the act no one can traffic without furnishing the bond.

I will endeavor to show that this reasoning is fallacious. The power to tax, either for revenue or under the police power of the state in the form of license is essential to the existence of the government, and may be exercised to the utmost extent to which the government may choose to carry it, unless restrained by the constitution. The only security against its abuse is found in the structure of the government. In imposing a tax the legislature acts upon its constituents. The people give to the government the right to tax themselves, and as the exigencies of the government can not be limited, they prescribe no limits to the exercise of the right, resting confidently on the interest of the legislator, and on the influence of the constituents over their representatives to guard against abuse. Hence, unless restrained by the constitution of the state, the constitution of the United States, and the laws made in pursuance of the latter, the power of the legislature to impose taxes is unlimited, inasmuch as such power is inherent in sovereignty and rests on necessity (Mc

Culloch v. Maryland, 4 Wheat. 428; Providence Bank v. Billings, 4 Pet. 561).

Taxes have been defined to be "burdens or charges imposed by the legislature upon persons or property, to raise money for public purposes, i. e. for the exercise of governmental functions (Cooley Const. Lim. 211); and by another writer (Montesquieu Sp. of Law, B. 12 Ch. 30) to be such portion that each citizen gives of his property in order to secure or to have the enjoyment of the remainder;" hence government is established for the protection U person and property, and taxes are imposed to consummate this protection. The power to tax is exercised (1) for the purpose of revenue, (2) for the purpose of regulating such business or employment as the public policy may require. When the purpose is for revenue, it is a tax, and imposed on persons or property, and is generally required to be equal and uniform; and when imposed for the purpose of regulation, it is a license (Cooley on Taxation, 409; Freeholders v. Barber, 7 N J. 64; Kip v. Patterson, 26 N. J. 298; State v. Hoboken, 33 N. J. 280; State v. Roberts, 11 Gill & J. 506; Boston v. Schaffer, 9 Pick. 415; Commonwealth v. Stodder, 2 Cush. 562; Mobile v. Miller, 3 Ala. 137; Bennett v. Birmingham, 31 Pa. St. 15; Cincin. v. Bryson, 15 Ohio 625 ; Mays v. Cincin., 1 Ohio St. 268; Baker v. Cincin 11 Ohio St. 534; Gas Co. v. State, 18 Ohio St. 243; Chivers v. People, 11 Mich. 43; Ash v. People, 11 Mich. 347; Collins v. Louisville, 2 B. Mon. 134; St. Louis v. Insurance Co., 47 Mo. 150; State v. Herod, 29 Iowa 123; Burlington v. Ins. Co., 31 Iowa 102; Ward v. Maryland, 12 Wall. 429; Dillon Mun. Corp., § 609; N.. Y. v. R. R. Co., 32 N. Y. 261; R. R. v. Louisville, 4 Bush. 478; 2 Withrow Corp. Ca. 350).

A license is a permit to do that which, without the license, would be unlawful, and a tax is a rate or sum of money assessed on persons or property (Cooley on Tax, 407; Cooley Const. Lim., 201; Chilvers v. People, 11 Mich. 43, 49; s. Co. v. Augusta, 50 Ga. 530; Bouv. L. D.; Mayor v. Charlton, 36 Ga. 460). A license is used under the system of regulation, and a tax is used under the system of obtaining revenue for the expenses of the government; hence, if the object of any law is to obtain revenue, it is a tax law, and if for regu

lation, it is a license law, to which a license fee may be attached to pay the expenses, and compensate the incidents that may be expected to flow therefrom, such as the expenses for inspecting and regulating the business; but if the license fee is for revenue, it is a tax (Johnson v. Phila., 60 Pa. St. 445; Ash v. People, 11 Mich. 347; Burlington v. Ins. Co., 31 Iowa 102), and must be equal and uniform, although one case (Baker v. Panola Ins. Co., 30 Tex. 86) stretched the rule to the extent of saying that a license fee of $250 for the traffic in intoxicating liquors was only a regulation of the traffic, and not a tax.

The power to regulate is confined to business or employment, and is unlimited unless restrained by the constitution (Durach's Appeal, 62 Pa. St. 491; Aulanier v. The Gov., 1 Tex. 653; Baker v. Panola Co., 30 Tex. 86; Kitson v. Ann Arbor, 26 Mich. 325; Black v. Jacksonville, 36 Ill. 301; East St. Louis V. Wehrung, 46 Ill. 392; State v. Campbell, 33 Pa. St. 380; Mt. Carmel v. Wabash Co., 50 Ill. 69; Hirn v. State, 1 Ohio St. 15; Page v. State, 11 Ala. 849; Comr. v. Jordan, 18 Pick. 228; State v. Chamblyses, 1 Cheves 220; Comr. v. Dennis, 1 Cheves 229; State v. Prettyman, 3 Harr. 570; Bonner v. Welborn, 7 Ga. 296; Hannibal v. Guyott, 18 Mo. 515; St. Louis v. Siegrist, 46 Mo. 593; Comr. v. Thayer, 5 Met. 246; Overseers v. Warner, 3 Hill 150); hence, when it is exercised, the business or employment operated upon becomes a privilege.

Usually this power to regalate or license is exercised and operates upon such business or employment when it is (1) specially profitable; (2) when it requires special regulation; (3) when it is in the nature of a franchise; so that the burdens of taxation will be generally distributed.

For the exercise of a privilege, a licensepermit is given, which may be given with or without a fee or a tax. It is a permit to carry on the busines which, if carried on without the permit, it would be unlawful. In connection with the permit a tax or fee may be exacted as a condition to transact the business. The privilege obtained, evidenced by the license or permit, may be taxed in proportion to the property value it possesses (License Tax Cases, 5 Wall. 472; Bancroft v.

Dumas, 21 Vt. 456; Alexander v. O'Donnell, 12 Kas. 608; Page v. State, 11 Ala. 849; Larned v. Andrews, 106 Mass. 435; Smith v. Mawhood, 14 M. & W. 452), unless the state has contracted to exempt it (Home Ins. Co. v. Augusta, 50 Ga. 530; Savannah v. Charlton, 36 Ga. 460; Burch v. Savannah, 42 Ga. 596; Robinson v. The Mayor, 1 Humph. 156; Ould v. Richmond, 23 Gratt. 464; Drexel v. Commonwealth, 46 Pa. St. 31; Read v. Beall, 42 Mass. 472; Coulson v. Harris, 43 Miss. 728; Drysdale v. Pradat, 45 Miss. 445; Durach's Appeal, 62 Pa. St. 491; Fletcher v. Oliver, 25 Ark. 289; State v. Parker, 32 N. J. 426; Napier v. Hodges, 31 Texas 287; Cuthbert v. Conly, 32 Ga. 211; Wendover v. Lexington, 15 B. Mon. 258).

The traffic in intoxicating liquors has been since 5 & 6 Edw. VI. Ch. 25, and now is a subject of legislative regulation under a license system, it being a business requiring special regulation, because the unrestrained use as a beverage, is dangerous to the public peace and morals, increasing crime and poverty, and is per se a vice; hence it is regulated or prohibited to be dealt in except by those licensed under such penalties as the law making power may prescribe, the license being a part of the regulation to prevent the indiscriminate traffic, and not to raise revenue by taxation (Cooley on Taxation, 410; Thompson v. State, 15 Ind. 449; Comr. v. Byrne, 20 Gratt. 165; Straub v. Gardon, 27 Ark. 625; Falmouth v. Watson, 5 Bush. 660).

License having its vitality from the power to regulate, and not from the power to tax, it does not infringe that provision of the constitution which requires all taxes to be equal and uniform, and need not be assessed upon the business done (Durach's Appeal, 62 Pa. St. 491; Keller v. State, 11 Md. 525; Perdue v. Ellis, 18 Ga. 586; Youngblood v. Sexton, 32 Mich. 406; License Cases, 5 How. 504; 5 Wall. 472).

It has been held that the constitutional requirement of uniformity and equality in taxation only extends to such objects of taxation (persons or property) as the legislature shall determine to be subject to it (State v. North, 27 Mo. 464; People v. Coleman, 3 Cala. 46; Durach's Appeal, 62 Pa. St. 494), and that the power to determine the persons and