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was properly submitted and approved by the electors of the state, and the other not properly submitted and therefore not approved, there can be no valid reason for denying the relator the relief to which he is clearly entitled as to the one that was properly submitted and approved by the electors, and for refusing the writ as to the other. Certainly no such technical objection ought to be permitted to obstruct the administration of justice or to defeat the will of the electors of this state.

THE STATE, EX REL. ZIELONKA, CITY SOLICITOR, v. CARREL, AUDITOR.

Taxation - Excise and occupational taxes. -State and municipalities may levy, when-Validity of Cincinnati ordinance-Section 10, Article XII, and Section 3, Article XVIII, Ohio Constitution.

1. The State of Ohio, under the provisions of Section 10, Article XII of the Constitution, has authority to levy excise taxes in the form of an occupational tax.

2. Under the grant of power of local self-government provided for in Section 3, Article XVIII of the State Constitution, the city of Cincinnati, as long as the State of Ohio through its genera! assembly does not lay an occupational tax on businesses, trades, vocations and professions followed in the state, may raise revenue for local purposes, through the instrumentality of occupational taxes.

3. The ordinance of the city of Cincinnati providing that an annual tax shall be laid upon all persons, associations of persons, firms and corporations pursuing any of the trades, professions, vocations, occupations and businesses therein named, is a valid exercise of the legislative power of such city.

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Opinion, per NICHOLS, C. J.

IN MANDAMUS.

The facts are stated in the opinion.

Mr. Saul Zielonka, city solicitor, and Mr. Charles E. Weber, assistant city solicitor, for plaintiff.

Messrs. Clore & Clayton; Mr. Michael G. Heints; Mr. William Thorndyke and Mr. R. S. Alcorn, for defendant.

Mr. George S. Hawke, amicus curiae.

NICHOLS, C. J. In May 1918 the city of Cincinnati acting through and by the council of that city passed a certain ordinance wherein it provided that an annual tax should be charged upon all persons, firms and corporations pursuing any of the trades, professions, occupations, vocations and businesses therein named.

The occupations named were manufacturers of bottles and glassware articles, and osteopathic physicians.

These particular occupations were chosen, it is to be supposed, simply for the purpose of constituting the vehicle by which a test might be made of the right of a municipality to impose such charge or tax upon occupations generally.

After the ordinance became effective, a certain osteopathic physician, resident of Cincinnati, tendered to the city auditor the amount of the tax provided for in the ordinance, which the auditor refused to accept. Thereupon action in mandamus was instituted in this court by the city solicitor against the city auditor.

Opinion, per NICHOLS, C. J.

This petition alleged that the city of Cincinnati acting under and in accordance with the provisions of Article XVIII of the Constitution has adopted a charter. By the terms of Section 1 of the charter it is provided that the city shall have all powers of local self-government and home rule, and all other powers possible for a city to have under the constitution of Ohio.

Certain fundamental or basic considerations are necessary in the determination of this case.

The right to impose taxes, by a long line of decisions, both state and federal, is within the conceded powers of sovereignty. In truth, experience teaches us that the exercise of this power is the highest and most necessary attribute of government. Without it government must cease to exist among men, and as a substitute we would return to the primeval method of levying tribute by brute force.

In both the federal and state governments of the United States the exercise of this authority has been confided by written constitutions to the legislative departments.

In our own state it has been decided in numerous cases that this grant of power is conferred on the legislative branch of the state government by Section 1, Article II of the Constitution.

It has been likewise held that this authority is full, adequate and complete, limited only, if at all, by other sections of the same instrument.

The principle may be safely said to be established that the legislative department may enter and occupy any field of taxation, unless the consti

Opinion, per NICHOLS, C. J.

tution has expressly or by necessary implication forbidden it.

We must look to Article XII, which has to do with the general subject of finance and taxation, for any such limitation of power.

Section 1 of this article prohibits the levy of any poll tax and the requirement of service of any kind or character which shall be the subject of commutation in money.

Section 2 of the same article provides for the method and manner of levying taxes, being the well-known uniform-rule section, and has application to taxes on property only.

Section 7 of this article is a new product, and is in no sense a limitation of power, being rather a special grant, and has to do with taxation on inheritances.

Its incorporation in the constitution may be said to have been induced by the decision of this court in the case of State, ex rel., v. Ferris, Judge, 53 Ohio St., 314, and to make perfectly clear not so much that the general assembly might provide for the levy of taxes on the right to receive inheritance, but that such tax might be of a graduated or progressive type, and, furthermore, that an exemption of the smaller inheritances might be authorized.

Section 8 of the same article, providing for the taxation of incomes, for the same reason cannot be said to be a limitation of power, nor can it be said to be equivalent to a conclusion that without such express grant incomes might not be the subject of taxation. It is much more likely that the incorpora

Opinion, per NICHOLS, C. J.

tion of this new section by the constitutional convention of 1912 was occasioned by a desire on the part of its members that the method of levying taxes on incomes should be precisely similar to taxation of inheritances, in so far as it might relate to graduation of rates and exemptions.

At this point it is proper to say that taxation of incomes or inheritances is not the imposition of direct taxes on property per se, but is rather in the nature of an excise tax.

This is now almost the universal conception of such method of taxation. The only departure from this view is to be found in the decision of the supreme court of the United States, Pollock v. Farmers' Loan & Trust Co., 158 U. S., 601, the celebrated case in which the income tax sections of the Wilson tariff bill were held unconstitutional by a vote of five to four, the majority opinion holding that the tax was laid on property directly, the minority contending that the tax was indirect and more in the nature of an excise tax.'

Section 10 of Article XII of the new Ohio Constitution declares that laws may be passed providing for excise and franchise taxes and for the imposition of taxes upon the production of coal, oil, gas and other minerals.

It is to be concluded that the incorporation of this new section in the constitution was to make certain the authority of the general assembly to levy tax on the specified minerals named, for certainly in view of the legislation and construction thereof by the supreme courts of both Ohio and the United States no express grant of power was

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