thority from the government, may be valuable; and a right to either of these things may be asserted and maintained in a court of justice, yet neither of them possess the essential qualities which constitute property. Our right to the free use and enjoyment of things which are in common, such as air, light, water, etc., is valuable; and our right to the free use of the public highways, and to many of the privileges and advantages derived from the government, may be valuable, and may be maintained by legal process. Yet none of these things come within the denomination of property. Those things which constitute the subject-matter of private property are such as the owner may exercise exclusive dominion over in the use, enjoyment and disposal of them without any control or diminution, save only by the laws of the land. 1 Wend. Bla. 138. It is a fundamental principle, that "property, considered as an exclusive right to things, contains not only a right to use those things, but a right to dispose of them either by exchanging them for other things, or by giving them away to any other person, without any valuable consideration in return, or even of throwing them away, which is usually called relinquishing them. Rutherford's Institutes, 20 Puffendorf, Chap. 9, b. 7. It is said that capability of alienation or disposal, either by sale, devise, or abandonment, is an essential incident to property. 2 Kent. Com. 17. A corporate franchise, therefore, being a mere privilege, or grant of authority by the government, is not property of any description, and consequently not subject to taxation under the above provision of the constitution." This case was cited with approval in the case of Baker vs. Cincinnati, 11 O. S., 450, in holding that a license fee for theatrical exhibitions imposed by the municipality was not in violation of any provisions of the constitution restricting the power of taxation vested in the general assembly. The effect of the holding in this case was that a license of theatrical exhibitions was not property and that therefore the license fee exacted therefor was not a tax. No distinction is suggested as between a saloon license as granted at present under the statute of the state of Ohio and the class of licenses under consideration in this case granted by the city of Cincinnati to persons conducting theatrical exhibitions. In the case of Telegraph Co. v. Mayer, 28 O. S., 521, it is held in the third branch of the syllabus, that: "The privilege that a foreign corporation enjoys by legislative consent of exercising its corporate powers, and of carrying on its business within the state, is not property within the meaning of Article 12, section 2 of the state constitution." In 17 Cyc. 947, the rule is laid down as follows: "A franchise, being an incorporall hereditament, cannot, upon the settled principles of the common law, in the absence of statute, be seized and sold under a fieri facias.” If a saloon license is not "goods and chattels" within the meaning of these terms, as found in Section 11655 G. C., supra, then there is no specific statute in Ohio making such license subject to execution and under the rule stated in 17 Cyc. 947, supra, such license would not be at common law so subject to sale. The decisions of the state courts and those of the federal courts are apparently not in harmony as to whether a liquor license is property subject to sale on execution. In Porter v. Johnson, 96 Ga., 145, it is held: 3. "Where a licensed retailer of spirituous liquors dies pending the term for which the license was granted, such license is not assets of the estate of the deceased in the hands of his administrator nor on the latter legally continue the business under the license for the unexpired term covered by it." In the case of Blumenthall's Petition, 125 Pa. St., 412, it is held: "The right to sell liquors under a license granted by the state is personal to the licensee. is not assignable, does not pass to the personal representatives, and therefore cannot be transferred unless expressly authorized by an act of the assembly." In Grimm's Estate, 181 Pa. St., 233, it is said: "A liquor license is a personal privilege which ends with the life of the licensee; it is not assignable by him, does not go to his personal representatives, and is not an asset of his estate." A similar holding was made in the case of Breen's License, 2 Pa. Dist. Rep., 651, quoting from Randenbusch's case, 120 Pa., 328. In the case of Ulrich's License, 6 Pa. Dist. Rep., 408, U. agreed to transfer license to B. Public notice of transfer for ten days was required. During the interval a creditor of U. had execution levied upon U.'s interest in the license. The court overruled an objection made to the allowance of transfer after levy, saying: "A liquor license could not be levied upon and sold in the ordinary way, because the sheriff had no power to make title to the purchaser. The original licensee could not transfer unless the court approved and unless a petition and bond were presented by the proposed transferee in accordance with law. To hold that the sheriff might disregard these statutory requirements, and by virtue of a levy might convey to a purchaser an enforceable right, would be equivalent to a decision that the sheriff could sell what the debtor never had and by this means could override the court's discretion and force upon the quarter sessions a person who might be altogether unfit." In the case of Koehler v. Olsen, 22 N. Y. Sup., 677, the court held: "A liquor license, being assignable only with the consent of the board of excise (laws 1892, c. 401, Sec. 26) is not property which can be reached by a creditor's action." The statute under consideration in this case provided that * The court in the opinion said the license was a personal privilege which was not subject to transfer or assignment without the consent of the board and the interest of the licensee therein was not property which could be reached by a creditor's action as the court has no power to enforce a transfer. This action was brought in the form of a creditor's bill, as stated in the opinion, for the reason and upon the ground that the license and other property sought to be reached was not then suject to levy and sale on execution. In the case of McNeely v. Wetz, 166 N. Y., 124, in which levy was made upon a liquor tax certificate under the New York statutes, the court said: "The judgment creditors and their representative, the sheriff, took nothing by virtue of the execution and the attempted levy thereunder, because a liquor tax certificate is not subject to levy and sale under execution, at least unless a warrant of attachment has been issued and a levy made by virtue thereof (Code of Civ. Proc., Sec. 648). It is a mere chose in action incapable of seizure and delivery by the sheriff *. It does not come within the description of 'personal property bound by execution,' as laid down in Section 1405 of the Code of Civil Procedure, which provides that 'the goods and chattels of the judgment debtor' * and his other personal property * ** are bound by execution? * While the certificate was personal property. it was not a chattel, but an intangible right." * In the case of Semple v. Flynn, 10 Atl., 177, it is held: "A saloonkeeper's license is personal to the holder, and cannot be delegated, assigned, nor committed to the care of any receiver by the court." Thus the decisions of the state courts of New York and Pennsylvania have apparently been uniform to the effect that a liquor license or a license to engage in the business of the sale of intoxicating liquors is not in any sense property subject to levy and sale on execution and are in harmony with the decision of the supreme court of this state in the case of Bank v. Hines, 33 O. S., 1, supra, holding that the corporate franchise of a banking company was not property. In the contrary, in the case of in re Broddine, 93 Fed., 643, the court held: "Under the laws and regulations in force in the city of Boston, the right to apply for the renewal of a license to sell liquor, held by a bankrupt, passes to his trustee as assets in bankruptcy and may be disposed of by the latter for the benefit of the estate." It is also held in the case of Becker, 98 Fed., 407: "Wher the laws of the state permit the transfer of a license for the sale of intoxicating liquors, subject to the approval of the buyer by the licensing authority, and such licenses have an actual money value for the purpose of sale and transfer, the right to sell a license of this kind will vest in the trustee in bankruptcy of the licensee, for the benefit of the estate, and the bankrupt will be required to execute the instruments necessary to effectuate the sale." The second syllabus in the case of Fisher v. Cushman, 103 Fed., 860, 51 L. R. A., 292, is as follows: "A liquor license which is by law transferable to any person who is satisfactory to a board of police commissioners, though it may be destroyed without compensation by subsequent legislation, is 'property' within the meaning of the bankrupt act, Sec. 70 (30 Stat. at L. 365, 556), which provides that a bankrupt must transfer 'property which, prior to the petition he could by any means have transferred.'" The legal conditions under which liquor licenses could be transferred in the city of Boston, under consideration in this case, were analogus to the provision of statute with reference to the transfer of liquor licenses in this state at the present time and the question at issue was whether or not the license or its proceeds were under the control of the district court for the purpose of the action which it took in reference thereto. That is to say, whether it was "property which, prior to the petition he (the bankrupt) could by any means have transferred or which might have been levied upon and sold under judicial process against him." The court in this case did not choose to put its decision upon the ground that a liquor license was property subject to levy and sale on execution, but rather that it was "property which, prior to the filing of the petition of the bankrupt, could by any means have been transferred." The court in the course of its consideration observed: 66 * * that there may be property which cannot be sold under judicial process, and that there may be property of that character which passes for the benefit of creditors." The court on this basis held that the licensee might be compelled by the trustee to execute such endorsement upon the license as was necessary under the statute to transfer the same and ordered the same sold for the benefit of the creditors of the bankrupt. The question here involved was considered in the case of Distilling Co. vs. Hornstein, unreported, decided by the common pleas court of Cuyahoga county, in which it was held that a saloon license was subject to levy and sale on execution. So far as I am aware, no other court in this state has passed upon the question. The court summarized its conclusion in the following statement: "I am of the opinion that under our law it is the policy of the state liquor license commission and the policy of our state to recognize that as property and to be transferred as property. That being so, if the sheriff could get this license in his possession, he could make a levy upon that as he could upon anything else." It seems that the court here perhaps overlooked a distinction. which might well be urged. The paper which may be seized by the officer is only the tangible evidence of an intangible right. The paper writing evidencing the right of a license to engage in the sale of intoxicating liquors is certainly not so clearly the evidence or representative of a property right as a certificate of corporate stock, yet the latter is subject to attachment only by virtue of special statutory provision in reference thereto (Sec. 8673-13 G. C., et seq.) and is subject to taxation solely by reason of special reference thereto rather than as coming within the general term "property" as found in Section 2 of Article XII of the con |