USA > Ohio > History of Ohio; the rise and progress of an American state, Volume Four > Part 35
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The Constitution requires proposed amendments to be submitted at an election for senators and repre- sentatives, and a majority of the electors voting at such election voting in favor of a proposition are nec- cessary to adopt it.
The total vote cast at the election in 1883 was 721,310 Vote necessary to adopt either proposition. . .. 360,656 The vote was:
Regulation and taxation, yes 99,238
Prohibition, yes 323, 129
So both propositions failed of adoption.
Numerous acts upon the general subject of intoxicat- ing liquors, aside from those which related to licensing the traffic, were passed, both during the territorial period as well as after the admission of the State into the Union; and occasionally they afford some insight into the character, life and customs of the people at the periods of their adoption.
Among the early acts adopted by the Governor and judges, was a statute, published at Marietta, September 6, 1788 (I Chase's Stat. 97), entitled "a law respecting crimes and punishments." It is distinguished as being the first law enacted west of the Allegheny mountains relating to intoxicating liquors, and it contained, as well, the first Sunday law.
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Section 20 of the act provided that any person con- victed of drunkenness should, for the first offense, be fined the sum of five dimes, and for each succeeding offense the sum of one dollar, and in either case, upon failure to pay the fine, the offender was to be set in the stocks for the space of an hour. The complaint, however, had to be laid within two days after the com- mission of the offense.
Experience had taught the pioneer that the savage nature and instincts of the Indian were so intensified and inflamed by intoxicants that safety demanded that the furnishing of liquor to the Indians be most rigorously prevented.
Naturally, the second liquor law adopted by the judges and acting Governor of the Territory was upon that subject. It was passed at Vincennes, July 19, 1790 (I Chase's Stat. 103). It recited the abuses and dangers to the lives, peace and property of the people of the territory which had arisen by reason of traders and other persons furnishing spiritu- ous and other intoxicating liquors to the Indians, and provided that whoever sold or furnished, either directly or indirectly, any rum, brandy, whiskey or other intoxicating liquor or drink to any Indian, or tribe of Indians, should forfeit and pay, for every quart of such liquor so furnished, the sum of five dollars, and for any quantity furnished at one time, less than a quart, the sum of four dollars, one-half thereof to go to the informer. The act was repealed, however, July 14, 1795 (I Chase's Stat. 191), for the reason, as stated, that the same was supplied by act of Congress.
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On July 20, 1790 (I Chase's Stat. 104), an act was passed making it an offense for any person, within ten miles of any encampment, post, fort or garrison, or hospital for the convalescents thereof, to give, sell, exchange or furnish to any non-commissioned officer or private soldier belonging to the regular troops in the service of the United States or of the Territory, any spirituous or other intoxicating liquor or drink, without an order previously obtained from a commis- sioned officer serving with the same troops, under a forfeiture of two dollars for every gill of liquor so fur- nished without such order. This act, also, was repealed in the same act which repealed the Indian law.
The first Territorial General Assembly convened at Cincinnati, September 16, 1799, and thereupon the legislative powers of the Governor and judges, under the Ordinance, terminated. On December 2, 1799 (I Chase's Stat. 227), the General Assembly passed "an act for the prevention of vice and immorality," which, among many other things, provided that who- ever, being of the age of sixteen years or upwards, was found in the public highway, or in any house of public entertainment, intoxicated by excessive drinking of spirituous, vinous, or other strong liquors, or making or exciting any noise, contention or disturbance, should, by any justice of the peace, on complaint or view, be committed to the county jail for a period not exceeding forty-eight hours, and if the offense was committed at a greater distance than five miles from the jail, the offender should be committed to the cus- tody of a constable to be by him confined in any proper and convenient place for the like term.
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Section 4 of an act for the prevention of immoral practices, passed February 14, 1805 (I Chase's Stat. 503), provided that if any person, being intoxicated, was found making any noise, contention or disturbance at any tavern, court, election or other meeting of citizens, he should be fined not exceeding two dollars, and, if necessary, imprisoned until such court, election or meeting was over.
On February 17, 1809 (I Chase's Stat. 636), an act was passed to prevent the sale of liquors to Indians. It made it an offense to sell or barter to an Indian within the State, or convey with intent to dispose of the same out of the State, any spirituous or other liquid of intoxicating quality, unless authorized by proper authority. The penalty was a fine not exceeding one hundred dollars or less than five dollars and the restora- tion of any article received from an Indian in exchange for liquor.
An act passed January 25, 1810 (I Chase's Stat. 652), prohibited the exposition, sale or offer of sale, at any place where any religious society of people were collecting or collected together for the purpose of religious worship, or within one mile thereof, of any spirituous liquor, cider or beer, the offender being sub- ject to a fine not exceeding ten dollars.
A general revision of the laws relating to crimes and punishments, passed February 10, 1824 (2 Chase's Stat. 1342), contained, section 19, a provision that whoever sold or bartered any spirituous or other liquors of an intoxicating quality to an Indian should be fined not exceeding one hundred dollars or imprisoned in the cell or dungeon of the jail and be fed on bread and
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water only not exceeding ten days, or both, but a tavern keeper was permitted to sell to traveling Indians not exceeding one gill to each Indian.
An act passed March 26, 1841 (I Curwen's Stat. 785), prohibited the sale of spirituous or other liquors within a distance of two miles from the place where any religious society or people were collecting or col- lected together for religious worship in any field or woodland, but the act did not apply to tavern keepers and distillers at their usual places of business within the proscribed limit. The penalty was not less than five or more than fifty dollars.
so.
The next distinctive legislative policy of the State was the prohibition of the sale of intoxicating liquors to be drank at the place where sold, and to minors and intoxicated persons or those in the habit of becoming It began in 1851 and, in varying form, remained upon the statute books until 1883, when, the policy of taxing the traffic in liquors having been inaugurated, the prohibition of sales of liquors to be drank at the place where sold was abandoned and that feature of the law repealed. The statutes on the subject, for many years after their first enactment, were rigorously en- forced, but gradually, and long before their repeal, they had, especially in the cities, fallen into complete disregard and failure of enforcement.
On March 12, 1851 (2 Curwen's Stat. 1649), an act was passed making it an offense, punishable by a fine not exceeding twenty dollars, to sell spirituous liquors to be drank at the place where sold, or in less quantity
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than one quart, or to a minor under sixteen years of age; but sales for medicinal and pharmaceutical pur- poses were permitted.
The Supreme Court, in the case of Hirn vs. State (I Ohio State Rep. 15), held that the act did not apply to persons previously licensed to sell liquors during the remaining period of their licenses.
This act, which foreshadowed the legislative policy so long to continue, was passed after the Constitutional Convention of 1851 had completed its labors and while the instrument was before the people for ratification.
Three years after the adoption of the Constitution, in the exercise of the authority conferred by the added section inhibiting the granting of licenses, to provide against evils resulting from the traffic in intoxicating liquors, the General Assembly passed the act of May I, 1854 (4 Curwen's Stat. 2669), whereby it was made unlawful for any person to sell, in any quantity, intoxi- cating liquors to be drank in, upon or about the build- ing or premises where sold.
It was made unlawful to sell intoxicating liquors to minors, unless upon the written order of their parents, guardians or family physician, or to sell to persons intoxicated or in the habit of getting intoxicated. Every person found in a state of intoxication was to be fined five dollars and imprisoned not less than one or more than three days.
Every person who, by the sale of liquors contrary to the provisions of the act, caused the intoxication of another person, was rendered liable to pay a rea- sonable compensation to any person who took charge of and provided for such intoxicated person, and in
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addition one dollar for every day he was kept in consequence of the intoxication, to be recovered in a civil action. In addition, every wife, child, parent, guardian, employer or other person injured, in person or property or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, had a right of action against the person who, by selling liquor contrary to the act, caused the intoxication, for all damages actually sustained, as well as exemplary damages.
The penalties for selling liquor to be drank at the place where sold, selling to a person intoxicated or in the habit of becoming so and to minors, were a fine of not less than twenty dollars or more than fifty dollars and imprisonment for not less than ten or more than thirty days, and costs of prosecution. The court had power to declare the places where such sales were made to be public nuisances, in which case the fine was not less than fifty or more than one hundred dollars and imprisonment not less than twenty or more than fifty days and costs, and thereupon the place, upon the order of the court, was shut up and abated, unless the person keeping it gave bond, to the satisfaction of the court, not to sell liquors contrary to law and pay all fines, costs and damages that might be awarded against him. The inhibition against the sale of liquors to be drank at the place where sold did not extend to the sale of wine, manufactured of the pure juice of the grape cultivated in the State, or beer, ale or cider. Prosecutions for violations of the act were required to be by indictment.
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By an act passed April 5, 1859 (4 Curwen's Stat. 3303), the act of 1854 was so amended as to take away the imprisonment feature of the offense of becoming intoxicated or being found in a state of intoxication, and imprisonment for selling liquor to be drank where sold, selling to persons intoxicated or in the habit of becoming so, and to minors, was made discretionary with the court instead of imperative as in the original act.
On April 18, 1870 (3 Sayler's Stat. 2360), what was familiarly known as the "Adair Liquor Law" was passed. It amended sections 7 and 10 of the act of 1854.
Section 7 of the original act gave a right of action for damages, actual and exemplary, in favor of any person injured in person or property or means of sup- port, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, against the person who, by selling the liquor contrary to the act, caused the intoxication. By the amended section, the right of action did not depend upon any unlawful sale, but arose upon the selling or giving of intoxicating liquors causing the intoxication, in whole or in part. It made the owner or lessor of any building or premises, having knowledge that intoxicating liquors were to be sold in violation of law, or who knowingly permitted intoxicating liquors to be sold therein that caused the intoxication, in whole or in part, of a person, jointly and severally liable with the person selling or giving the liquor, for all damages sustained, as well as exem- plary damages.
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Amended section 10 took away a portion of the exemptions from execution accorded to judgment debtors in other cases, and rendered the real estate liable and authorized its subjection to pay all fines, costs and damages assessed against any person occupy- ing the same. Leases upon premises where intoxicat- ing liquors were sold were declared to be void. The enactment of the "Adair Law" was followed by a flood of litigation in every part of the State.
The "Adair Law" was so amended, February 18, 1875 (4 Sayler's Stat. 3395), as to require that any person liable to be injured by the sale of liquors to a person, and desiring to prevent such sales, should give notice either in writing, or verbally before a wit- ness, to the seller or giver of the liquors, or to the owner or lessor of the premises, or file with the township or corporation clerk wherein the liquors might be sold, notice to all liquor dealers not to sell intoxicating liquors to the person named from and after ten days from the filing of such notice; and such clerk was required to enter the same in a book to be kept for the purpose, which should be open for the inspection of all persons interested, but the notice might be with- drawn on the request of the person filing it, and the name was then obliterated from the record.
The notices provided for were conditions precedent to the right to recover real or exemplary damages for alleged injuries. It was made an offense, punishable by a fine of not less than ten or more than fifty dollars, to publish the fact that notice had been given, by posting such notice in any saloon, grocery or other place, or by printing or causing the same to be printed
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in any newspaper, circular or in any other way to give publicity to the fact that a notice had been given.
The adoption of the foregoing amendment operated to reduce to a large extent the volume of litigation that had arisen under the "Adair Law."
On April 17, 1883 (80 Ohio Laws, 167), the law making it an offense to sell intoxicating liquors to be drank at the place where sold, was repealed.
The authority conferred upon the councils of cities and villages to regulate, restrain and prohibit tippling places, which covered the period from 1852 to 1902, was widely exercised, and marks a distinctive legisla- tive policy during the forty years that it remained in force.
The Constitution of 1851 having enjoined that the organization of cities and villages should be provided for by general laws, the General Assembly, May 3, 1852 (3 Curwen's Stat. 1835), passed a comprehensive act providing for such organization. It provided that cities and villages should have power "to regulate or prohibit ale and porter shops and houses, and places for significant or habitual resort for tippling and intem- perance."
The municipal code, passed May 7, 1869 (3 Sayler's Stat. 1894), provided (section 199) that the councils of cities and villages might, by ordinance, "regulate, restrain and prohibit ale, beer and porter houses or shops; and houses and places of notorious or habitual resort for tippling or intemperance."
Under the authority of those provisions, the courts sustained and upheld ordinances which made it unlaw- ful to keep places where ale, porter or beer were habit-
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ually sold or furnished, to be drank at the place where sold or furnished, notwithstanding the general legisla- tion of the State did not extend to the prohibition of the sale of ale, porter or beer. Burckholter vs. Mc- Connellsville (20 Ohio State Rep. 308.)
Upon the adoption of the new Municipal Code, October 22, 1902 (96 Ohio Laws, 20), the foregoing provisions were so amended as to omit the word "pro- hibit," the authority there being given (paragraph 5) "to regulate ale, beer, porter houses and shops, and the sale of intoxicating liquors as a beverage."
The policy of taxing the traffic in intoxicating liquors was inaugurated by the passage of an act, familiarly known as the "Pond Law," April 5, 1882 (79 Ohio Laws, 66), which required every person engaged in such traffic annually to pay into the treasury or the county: When his place of business was not located in a city or village, or within one mile thereof, $100; when within a village having a population of less than two thousand, or within one mile thereof, $150; when within any other city or village having a population of less than ten thousand, or within one mile thereof, $200; when within a city of the second class having a population of ten thousand or more, or within two miles thereof, $250; and when within any city of the first class, or within two miles thereof, $300.
Every person engaged in the traffic, or thereafter engaging therein, was required to give a bond in the sum of $1,000, to the acceptance of the probate judge of the county, conditioned for the faithful performance of all the requirements of the act.
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Every person who engaged or continued in the busi- ness without having executed the bond, or who so con- tinued after default in the payment of the tax, was deemed to be guilty of a misdemeanor and subject to a fine of not less than $500 or more than $1,000, or imprisonment not less than thirty days or more than one year, or both.
Prosecutions were upon information and not by indictment. The funds arising from the tax were credited, two-thirds to the townships, villages and cities from which they were received, and the balance to the general county fund.
The Supreme Court, in the case of Hipp vs. The State (38 Ohio State Rep. 199), declared the "Pond Law" to be unconstitutional, holding it to be, in opera- tion and effect, a license law, within the inhibition of the Constitution, which provides that "no license to traffic in intoxicating liquors shall hereafter be granted in this State."
On April 17, 1883 (80 Ohio Laws, 164), another act, known as the "Scott Law," was passed, assessing the traffic in intoxicating liquors, similar to the "Pond Law," in which the annual sum required to be paid by all dealers was $200, and the requirement as to giving bond was omitted.
The "Scott Law" was at first sustained by the Su- preme Court in the case of State vs. Frame (39 Ohio State Rep. 399.) But afterwards, the act again coming before the court, in the case of Butzman vs. Whit- beck (42 Ohio State Rep. 223), the provisions thereof which assumed to attach a lien for the tax or assess- ment upon the premises wherein the traffic was carried
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on, and the right to carry on the same being made dependent upon the written consent of the owner of the building, were held to be in effect a license, and therefore unconstitutional.
On May 14, 1886 (83 Ohio Laws, 157), another act was passed, known as the "Dow Law," assessing the business of trafficking in spirituous, vinous, malt or any intoxicating liquors, yearly, to be paid into the country treasury, the sum of $200. It made the assess- ment a lien on the real property in which the business was conducted.
The constitutional validity of the "Dow Law" was sustained by the Supreme Court in the cases of Adlers vs. Whitbeck (44 Ohio State Rep. 539); Ander- son vs. Brewster (44 Ohio State Rep. 576); and Senior vs. Ratterman (44 Ohio State Rep. 661).
May 21, 1887 (84 Ohio Laws, 224), the "Dow Law" was so amended as to exclude from its provisions manu- factures of intoxicating liquors from the raw material and the sale thereof at the manufactory by the manu- facturer in quantities of one quart or more.
By an amendment to the "Dow Law," passed March 26, 1888 (85 Ohio Laws, 116), the annual assess- ment was increased to $250. And the fund was so redistributed as that two-tenths thereof was required to be placed to the credit of the general revenue fund of the State; six-tenths to the treasury of the municipal corporation; and the remaining two-tenths to the poor fund of the county. This law was again so amended, February 20, 1896 (92 Ohio Laws, 34), as to increase the annual assessment to $350. In the distribution of the fund three-tenths was required to be paid into
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the State treasury; five-tenths to the treasury of the municipal corporation; and the remaining two-tenths to the poor fund of the county. On March 28, 1906 (98 Ohio Laws, 99), an act was passed increasing the annual assessment to the sum of $1,000.
The first local option law of the State, although of short duration, was passed February 8, 1847 (2 Cur- wen's Stat. 1338).
It provided that the right to grant licenses for the sale of intoxicating liquors, in the several townships, should be determined for the year ensuing, at the annual township elections, by the electors, who were authorized to vote for or against such right, by ballot, upon a separate ticket, in a separate ballot box, upon which was to be written or printed the words "license" or "no license." If a majority of the electors, so voting, voted for "no license," it became unlawful for any court or authority to grant to any person any license to sell intoxicating or spirituous liquors in such town- ship during the year next ensuing. Rigorous penalties were provided for the enforcement of its provisions, and it was, in addition, made an offense for a licensed person to sell liquor to a person intoxicated or to a person addicted to drunkenness.
The act, however, applied only to the counties of Cuyahoga, Delaware, Trumbull, Mahoning, Franklin, Geauga, Lake, Ashtabula, Preble, and Marion. It was repealed February 2, 1848 (2 Curwen's Stat. 1388), having been in force a little less than one year.
A period of more than forty years elapsed before the enactment of the next local option law. In 1888 the policy of submitting the question of the prohibition
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of the sale of intoxicating liquors to the electors of a locality, with the township as the unit, known as local option, was inaugurated.
On March 3, 1888 (85 Ohio Laws, 55), an act was passed which provided that whenever one-fourth of the voters of a township, outside of a municipal cor- poration, petitioned the township trustees for the privilege to determine by ballot whether the sale of intoxicating liquors as a beverage should be prohibited in the township, outside the limits of any municipal corporation, it became the duty of the trustees to order a special election for the purpose. If a majority of the votes cast at the election was against the sale, then, after the lapse of thrity days from the election, it became unlawful for any person thereafter, within the limits of the township, to sell, furnish or give away intoxicating liquors to be used as a beverage, or to keep a place where such liquors were sold, given away or furnished. The penalty for a violation of the act was a fine of not more than five hundred or less than fifty dollars and imprisonment not exceeding six months. Another election might be ordered, in the same way, after the expiration of two years from the date of a preceding election. The constitutional validity of the act was upheld by the Supreme Court in the case of Gordon vs. The State (46 Ohio State Rep. 607).
In 1902 the legislative policy of local option was extended to municipal corporations.
On April 3, 1902 (95 Ohio Laws, 87), an act was passed, familiarly known as the "Beal Law," which provided that whenever forty per cent of the electors of a municipal corporation petitioned the council
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thereof for the privilege to determine whether the sale of intoxicating liquors as a beverage should be pro- hibited within the limits of the corporation, it became the duty of the council to order a special election there- for. If a majority of the votes cast at such election were in favor of prohibition, then from and after thirty days from the date of holding the election, it became unlawful, within the corporate limits, to sell, furnish or give away any intoxicating liquors to be used as a beverage, or to keep a place where such liquors were kept for sale, given away or furnished. The penalty for a violation of the act was a fine of not more than $200 or less than $50 for the first offense. For the second offense the fine was not more than $500 or less than $100, and for every subsequent offense the fine was not less than $200 and imprisonment not more than sixty days or less than ten days. Another elec- tion might be petitioned for and ordered after the expiration of two years from a preceding election.
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