City of Cincinnati v. Bryson.

only mode in which shelter, and raiment, and food can be ob- IN BANK. tained. Good v. Zerche, 12 Ohio Rep. 368.

The constitution has declared, that the right to acquire property is a natural, inherent and unalienable right.

Labor is the exercise of the right of acquisition. Hence, the Legislature has no right to tax or interrupt such right. To talk of granting a license to a man for the privilege of pursuing honest labor, is an insult to the age, and belongs to a period of despotic barbarism, and is fit only to be addressed to vassals and slaves. Every person, by natural right and under our constitution, has the right to pursue honest labor without permission or license to do so from any source, except from that great and good God who gives him health and strength.

But the monstrous assumption has not only been asserted, claimed and exercised by the city to license the honest occupation of a drayman and cartman, and of the man who drives two and four wheeled vehicles, as a means of obtaining a subsistence, and to charge them a sum of money for the grant of such license, but the city is maintained in this constitutional outrage by the decision of this Court. It is not pretended that the man of wealth, who uses the streets for his pleasure, in his carriage, can be taxed for that privilege because he wears out the streets; but the man whose necessities, for the support of himself, force him to pursue the occupations of a drayman or cartman, must buy the privilege, and pay a sum of money to be permitted to pursue such employment.

But, it is said, that in Boston excise laws have been supported. If such be the case there, no such laws exist or can exist in Ohio. There is no power in the Legislature to tax any honest occupation, trade or industrial pursuit. If this were the case, any particular class of men could be utterly ruined by the majority imposing upon them the whole burdens of the State. Our constitutional mode of taxation is, to assess each man according to the property he owns. This is the only protection to each class. In this all find security, as a whole community will not be likely to ruin itself by taxation. But, if one class

Dec. Term, 1846.

Jackson v. The State.

Dec. Term,

1846.

IN BANK. of men may be taxed, it will be the interest of the majority to impose such tax, to escape themselves. If you may tax draymen and cartmen, you may blacksmiths and carpenters, and so on until property shall be relieved from taxation, and the whole burden fall upon industry. The lawyers were the first to fall victims to this violation of principle. Now draymen, cartmen, &c.; and who next, is to be seen. We are yet a young State, and unless these outrages upon the constitution and natural right be resisted and checked, they will grow into precedent, which, in the end, will sap the foundations of our liberties and overthrow our free institutions.

It will be endeavored to withdraw this case from a tax upon employment. It cannot be done. It is nothing else. It is a charge upon the occupations of draymen, not as fees, but as

revenue.

I hold, therefore, that the ordinance is a nullity, unconstitutional and void.

GEORGE W. JACKSON VS. THE STATE.

Under the law of March 2, 1846, providing "for taxing all property in this State according to its true value," capital invested in the business of purchasing hogs, and slaughtering and packing pork, for sale or transportation, is subject to taxation.

THIS case was reserved in the county of FRANKLIN,

It comes before the Court on appeal from the Auditor of State, under the 65th section of the act of March 2, 1846, entitled "An act for taxing all property in this State according to its true value." 44 Ohio Laws, 85.

The facts relative to this matter are, that in 1845, the appellant, who is a citizen of the State of Pennsylvania, engaged in the business of purchasing, slaughtering, and packing pork, for transportation and sale, at Columbus, in Franklin county, and

Jackson v. The State.

1846.

continued said business in 1846. One of the assessors of IN Bank, Dec. Term, Franklin county, charged in the list to John Jackson $5,000, as capital employed in manufacturing. In ascertaining this amount, not being able to find Jackson, he applied to what he considered the best sources of information, and ascertained, as near as he could, the amount employed the preceding year, and took the same to be the amount employed the current year; following, in this respect, the direction of the statute.

In pursuance of this assessment, the appellant was charged with a tax upon $2,500. He complained to the Auditor of State, who, under the advice of the Attorney General, decided in favor of the tax. From this decision an appeal was taken to this Court.

S. Brush, for Appellant.

H. Stanbery, (Attorney General,) for the State.

HITCHCOCK, J. By the before recited act, all property in the State is subjected to taxation, except such as is especially exempted by the provisions of the third section. Merchants' and manufacturers' stock is expressly made liable to taxation. One and perhaps the most material question arising in this case is, whether capital employed in the buying hogs, slaughtering, cutting up, and packing the same, to be sold or transported,. comes within the meaning of merchants' or manufacturers' stock. In other words, whether an individual engaged in this business is a manufacturer or merchant. Now, we are not prepared to say that a person pursuing this business is a manufacturer, within the meaning of the statute. The 17th section of the before named act provides, that "every person that shall

own, or have in his possession, or subject to his control, any personal property within this State, and which shall have been 'purchased either in or out of the State, with a view to being ' sold at an advanced price or profit, or which shall have been consigned to him from any place out of this State, for the

Jackson v. The State.

IN BANK. purpose of being sold at any place within this State, shall be ' held to be a merchant."

Dec. Term, 1846.

It seems to us that the appellant comes within this definition. He is a purchaser of hogs, which are slaughtered and packed, with a view to be sold as pork, for the purposes of gain. There can be no doubt that the grocer, who purchases his pork by the barrel, and retails it in small parcels, at an advanced price, and for gain, must be held to be a merchant. And it would be strange that the small retailer should be taxed, and the wholesale dealer in the same article should escape. It is true that Jackson is charged upon the duplicate as a manufacturer, when he should have been charged as a merchant; but he cannot, for this reason, escape from the payment of the tax. It is objected on the part of the appellant, that the property was improperly listed. The assessor seems to have pursued the law. Jackson could not be found, and the assessor took the only course he could take to ascertain the amount of capital employed in this business. He ascertained, as nearly as he could, the capital employed the previous year, and formed his opinion from the facts so ascertained, and fixed the amount for the succeeding year, supposing that, as the business was to be continued, the same amount of capital would be continued in that business for the current year. This is the mode prescribed by the law. It seems to be supposed, that as reference was had to the past year, it is that business or capital which is taxed. It is not so. The tax is for the current year; and the amount of capital employed, and which is taxed, is supposed to be the same as the previous year. Had the business not been continued, there could have been no tax.

Another objection is made, that the tax is in the name of John Jackson, and not in the name of George W. Jackson. If George W. Jackson is not taxed, why does he complain? He is not injured. But if he is really the person who ought to pay the tax, it can do him no injury that it is in the wrong name. If he pay it now, he cannot be compelled to pay it over again.

Appeal dismissed at Appellant's cost.

Davies and others v. Lowrey and others.

SAMUEL H. DAVIES and others vs. FIELDING LOWREY and others.

If a guardian convert land scrip, receivable at the land office in the purchase of public lands, into money, by investing it in land for himself and others, and accounting with his wards for the scrip, with interest from the time of its investment, he cannot, if he acted in good faith in the transaction, be charged as a trustee of the land purchased, or compelled to account for the profits growing out of the investment.

THIS is a BILL IN CHANCERY, reserved in the County of MONTGOMERY.

The bill is filed for the purpose of charging the defendants as trustees of certain lands, and compelling them to account for the profits growing out of an investment in lands, under the following circumstances:

Mary B., wife of Samuel H. Davies, Harriet S., wife of Lewis Henman, and Anne, wife of John Howard, were, in 1831, minors, and Fielding Lowrey, their father, was appointed their guardian. In 1832, land scrip, under the act of Congress of May 23, 1828, was issued from the land office at Cincinnati for the use of said wards, as heirs of John Smith, deceased, to the amount of $4,058. The expenses for procuring the scrip was $189, which, deducted from the scrip, left $3,869.

Thomas and Carey, two of the defendants, applied to Stoddard, another defendant, to borrow money to buy land on the Wapaukonnetta reserve, but not having the money to loan, and being informed that Lowrey held the land scrip, application was made to him for it. It was, thereupon, agreed, that this scrip should be employed by the defendants to purchase land, they becoming responsible to account for the amount thereof, in money, with interest, to the heirs, and to sell and dispose of, and hold the land bought in certain proportions fixed among themselves. The scrip was issued to Anne, Harriet and Mary, "as minors, for themselves and interest for the other heirs of John Smith, deceased," which, upon the face of the scrip, was

IN BANK.

Dec. Term, 1846.