McCay, J.
Section 27, Article I., of the Constitution of 1868, is as follows: “The power of taxation over the whole State shall be exercised by the General Assembly only to raise revenue for the support of the government, to pay the public debt, to provide a general school fund, for the common defense, and for public improvement. And taxation on property [419]*419shall be ad valorem only and uniform upon all species of property taxed.” Article III., section 5, paragraph 1, is as follows: “ The General Assembly shall have power to make all laws and ordinances, consistent with this Constitution and not repugnant to the Constitution of the United States, which they shall deem necessary and proper for the welfare of the State.” Article VI., section 2d, after devoting to the purposes of common schools, the poll tax and certain other funds, proceeds to devote to that purpose “a special tax on shows and exhibitions, and on the sale of spirituous and malt liquors, which the General Assembly is hereby authorized to assess.”
The Legislature of 1869, in its General Tax Act, after taxing property generally, undertook to assess the tax provided for in Article VI., section 2d, by laying, for purposes of education, a tax of twenty cents per gallon upon the sale of whisky, brandy, etc., in quantities less than thirty gallons. It is contended that this tax is a tax upon property, and that, as it taxes the sale of these liquors twenty cents upon each gallon sold, without regal’d to its value, it is not ad-valorem and uniform, as required by Section 27, Article I., of the Constitution.
Is this a tax upon property ? This Court, in the case of The City of Albany, at the last term, held that a tax laid by the City of Albany, of fifty cents upon every mule sold in the city by drovers, was a void tax, because it was a tax upon property, and not ad valorem; and, though upon reflection, I greatly doubt whether that decision was right, upon the ground on which it was put, I am not disposed to disturb it. If the tax in that case was a tax upon property, it was, in my judgment, void, not only because it was not ad valorem, but because it was not uniform upon all species of property taxed. It selected a certain kind of property, and taxed that differently from other property, and hence the tax, whether specific or ad valorem, was not a uniform tax on all species of property taxed. The opinion expressed in that case, that the [420]*420city might tax the sale of mules ad valorem,, was not a point in the case before the Court, nor properly involved in the decision of it.
That a tax upon the sale of an article is a tax upon the article, as property, is, however, decided by that case, and whether rightly or wrongly, this Court is, under section 204 of the Code, required to adhere to it, until it is overruled in the manner there prescribed. I do not, therefore, put my judgment in this case on the ground that this is not a tax upon property.
For the purposes of the argument, it may be admitted that this is a tax upon property, and that it is neither ad valorem, nor uniform — that is, it is not laid according to the value of the thing taxed, aud that the tax is a tax not laid upon other property. It is, in my judgment, nevertheless, strictly a constitutional tax. The power to lay it is derived from Article VI., section 2d, of the Constitution. It is an express power, and the Act conforms to the very terms of the grant. That section devotes to the common school fund “a special tax on shows, exhibitions, etc., and the sale of spirituous and malt liquors — which the General Assembly is hereby authorized to assess.”
In my judgment, it was the particular intent of this clause of the Constitution, to authorize a tax which should not conform to the requirements of Section 27 of Article I — that is, to authorize a tax upon these particular things which should not be ad valorem, and should not be uniform with the tax the Legislature might lay upon other property.
I can see no other motive for this special grant to the Legislature of a power to lay a tax on the sale of spirituous liquors. I cannot escape the thought, that this authority was here given because it was supposed that if such a grant was not inserted, some other portion of the Constitution would make the tax here devoted to education illegal.
It must be remembered that the taxing power in the General Assembly is no where expressly granted, except in this [421]*421clause. The taxing power, the Legislature has, under its general power, to do all things consistent with the Constitution. Why was it supposed necessary to insert in Article VI., section 2, an authority to lay a special tax upon the sale of spiritous liquors? In my judgment it was but for one reason : Such a tax would not be ad valorem, and would be a violation of the principle asserted in Article I, section 27th, as to uniformity. It authorized a tax upon a particular kind of property, and authorized that tax to be a special one. It was, therefore, thought necessary to give the General Assembly in terms, the power to assess it.
To say that the tax to be assessed under Article VI., section 2d must conform to the provisions of Article I, section 27, is to make the grant of power in Article VI., section 2d wholly unnecessary, as the General Assembly would have the power without this special grant. The taxing power, so far as the mode of its exercise is concerned, is unlimited, except as it is limited in Article I., section 27th; and if the power granted in Article VI., section 2d is only to be exercised as limited in Article I., section 27th, then the grant in Article VI., section 2d is wholly useless. The words are surplussage — they grant a power which existed without them. I do not so understand the Constitution. Article VI., section 2d was intended to make the tax then devoted to education an exception to the general rule laid down in Article I., section 27th, and unless it means this it was a mere waste of words. A tax upon sales, so far as it is a tax upon the property sold, cannot, from the very nature of it, be a tax according to the value of the property. A gallon of liquor may be worth $1 00, and be sold in the course of a year half a dozen times. Another gallon may be worth $5 00, and not be sold at all. It is absurd to say such a tax is ad valorem on the property.
Suppose now, this tax, instead of being a tax of twenty cents per gallon, were a tax of twenty per cent, on the value of each gallon sold. Here is a man who has a barrel of brandy. He sells it; it is resold; it is then retailed. It [422]*422pays three taxes of twenty cents. It is absurd to speak of such a tax as an ad valorem tax upon the property, as a tax according to the value of the thing taxed. Two things of precisely the same value pay a different tax, and a thing worth $1 00 pays a greater tax than one worth $2 00. The truth is, a tax upon the sale of a thing cannot be a tax upon the value of the thing, or a tax of the thing according to its value. It is and must be a tax upon the thing, not acording to its value, but according to the number of times it is sold.
From the very nature, therefore, of this grant to tax the sale
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McCay, J.
Section 27, Article I., of the Constitution of 1868, is as follows: “The power of taxation over the whole State shall be exercised by the General Assembly only to raise revenue for the support of the government, to pay the public debt, to provide a general school fund, for the common defense, and for public improvement. And taxation on property [419]*419shall be ad valorem only and uniform upon all species of property taxed.” Article III., section 5, paragraph 1, is as follows: “ The General Assembly shall have power to make all laws and ordinances, consistent with this Constitution and not repugnant to the Constitution of the United States, which they shall deem necessary and proper for the welfare of the State.” Article VI., section 2d, after devoting to the purposes of common schools, the poll tax and certain other funds, proceeds to devote to that purpose “a special tax on shows and exhibitions, and on the sale of spirituous and malt liquors, which the General Assembly is hereby authorized to assess.”
The Legislature of 1869, in its General Tax Act, after taxing property generally, undertook to assess the tax provided for in Article VI., section 2d, by laying, for purposes of education, a tax of twenty cents per gallon upon the sale of whisky, brandy, etc., in quantities less than thirty gallons. It is contended that this tax is a tax upon property, and that, as it taxes the sale of these liquors twenty cents upon each gallon sold, without regal’d to its value, it is not ad-valorem and uniform, as required by Section 27, Article I., of the Constitution.
Is this a tax upon property ? This Court, in the case of The City of Albany, at the last term, held that a tax laid by the City of Albany, of fifty cents upon every mule sold in the city by drovers, was a void tax, because it was a tax upon property, and not ad valorem; and, though upon reflection, I greatly doubt whether that decision was right, upon the ground on which it was put, I am not disposed to disturb it. If the tax in that case was a tax upon property, it was, in my judgment, void, not only because it was not ad valorem, but because it was not uniform upon all species of property taxed. It selected a certain kind of property, and taxed that differently from other property, and hence the tax, whether specific or ad valorem, was not a uniform tax on all species of property taxed. The opinion expressed in that case, that the [420]*420city might tax the sale of mules ad valorem,, was not a point in the case before the Court, nor properly involved in the decision of it.
That a tax upon the sale of an article is a tax upon the article, as property, is, however, decided by that case, and whether rightly or wrongly, this Court is, under section 204 of the Code, required to adhere to it, until it is overruled in the manner there prescribed. I do not, therefore, put my judgment in this case on the ground that this is not a tax upon property.
For the purposes of the argument, it may be admitted that this is a tax upon property, and that it is neither ad valorem, nor uniform — that is, it is not laid according to the value of the thing taxed, aud that the tax is a tax not laid upon other property. It is, in my judgment, nevertheless, strictly a constitutional tax. The power to lay it is derived from Article VI., section 2d, of the Constitution. It is an express power, and the Act conforms to the very terms of the grant. That section devotes to the common school fund “a special tax on shows, exhibitions, etc., and the sale of spirituous and malt liquors — which the General Assembly is hereby authorized to assess.”
In my judgment, it was the particular intent of this clause of the Constitution, to authorize a tax which should not conform to the requirements of Section 27 of Article I — that is, to authorize a tax upon these particular things which should not be ad valorem, and should not be uniform with the tax the Legislature might lay upon other property.
I can see no other motive for this special grant to the Legislature of a power to lay a tax on the sale of spirituous liquors. I cannot escape the thought, that this authority was here given because it was supposed that if such a grant was not inserted, some other portion of the Constitution would make the tax here devoted to education illegal.
It must be remembered that the taxing power in the General Assembly is no where expressly granted, except in this [421]*421clause. The taxing power, the Legislature has, under its general power, to do all things consistent with the Constitution. Why was it supposed necessary to insert in Article VI., section 2, an authority to lay a special tax upon the sale of spiritous liquors? In my judgment it was but for one reason : Such a tax would not be ad valorem, and would be a violation of the principle asserted in Article I, section 27th, as to uniformity. It authorized a tax upon a particular kind of property, and authorized that tax to be a special one. It was, therefore, thought necessary to give the General Assembly in terms, the power to assess it.
To say that the tax to be assessed under Article VI., section 2d must conform to the provisions of Article I, section 27, is to make the grant of power in Article VI., section 2d wholly unnecessary, as the General Assembly would have the power without this special grant. The taxing power, so far as the mode of its exercise is concerned, is unlimited, except as it is limited in Article I., section 27th; and if the power granted in Article VI., section 2d is only to be exercised as limited in Article I., section 27th, then the grant in Article VI., section 2d is wholly useless. The words are surplussage — they grant a power which existed without them. I do not so understand the Constitution. Article VI., section 2d was intended to make the tax then devoted to education an exception to the general rule laid down in Article I., section 27th, and unless it means this it was a mere waste of words. A tax upon sales, so far as it is a tax upon the property sold, cannot, from the very nature of it, be a tax according to the value of the property. A gallon of liquor may be worth $1 00, and be sold in the course of a year half a dozen times. Another gallon may be worth $5 00, and not be sold at all. It is absurd to say such a tax is ad valorem on the property.
Suppose now, this tax, instead of being a tax of twenty cents per gallon, were a tax of twenty per cent, on the value of each gallon sold. Here is a man who has a barrel of brandy. He sells it; it is resold; it is then retailed. It [422]*422pays three taxes of twenty cents. It is absurd to speak of such a tax as an ad valorem tax upon the property, as a tax according to the value of the thing taxed. Two things of precisely the same value pay a different tax, and a thing worth $1 00 pays a greater tax than one worth $2 00. The truth is, a tax upon the sale of a thing cannot be a tax upon the value of the thing, or a tax of the thing according to its value. It is and must be a tax upon the thing, not acording to its value, but according to the number of times it is sold.
From the very nature, therefore, of this grant to tax the sale of spirituous liquors, from the very terms used, it follows that Article I, section 27th, is not to control it, since property cannot be taxed ad valorem by taxing the sale of it. You may tax the sale according to the value of the property sold, but it is impossible to tax property according to its value, by taxing the sale. It must happen that property of the same value will pay different taxes, and it will happen that property of a lower value will pay more tax than property of a higher value, simply because it may be oftener sold.
The framers of the Constitution did not intend by section 27th of Article I., of the Constitution simply to fix a mode of computation. The idea was that all kinds of property taxed should be burdened according to its value, and that this burdeu should be uniform on every species of property taxed, according to the value thereof.
A tax upon the-sale of property is a violation of this fundamental principle, so far as it is a tax upon property at all, since, in the very nature of the ease, it is sure to happen that one kind of property will be sold oftener during the year than another. Such a tax can be neither uniform nor according to value. The framers of the Constitution felt this, and when they devoted a special tax, upon the sale of liquor, to education, they felt that, as such a tax, it could not, in its very nature, be a tax upon the property, according to its value; and they granted, in express terms, power to the Legislature to lay such a tax, notwithstanding the limitation [423]*423they placed, as a general rule, on the taxing power by section 27th of the Bill of Rights, to-wit: Article I. The Constitution is to be construed altogether; one part of it is just as high in dignity as another. And where, in Article VI., it grants a power to tax the sale of liquor, by a special or specific tax, it intends to grant a power, exceptional in its character, and not controlled by the limitation upon the general taxing power contained in Article I., section 2d. This, as I understand it, was the sole purpose of the grant — this was a necessity; for a tax upon the sale of property, so far as it is a tax upon the property, cannot, in its very nature, be a tax, according to the value of the property.
It is clear, therefore, to ray mind, that the tax upon the sale of spirituous liquors of twenty cents per gallon on each gallon sold, is a tax which the General Assembly is specially authorized to assess, and that the very object and intent of the Constitution, by Article.VI., section 2d, was to grant a power, not controlled by the limitation upon the general taxing power, contained in Article I., section 27.
Article I., section 27, applies to taxes upon property generally. Such taxes must be ad valorem only; that is, they must be burdens upon the property in proportion to its value, and in addition, the taxes must be uniform upon all species of property taxed. That is, that, whilst certain property may be exempt entirely from taxation, the Legislature shall not tax one kind of property at one rate, and another kind at another rate. But the tax on liquors, or on the sale of liquors, was intended to be an exception to both these rules. The Tax Act of 1869, though its title, is: “An Act to levy and collect a tax for the support of the government for 1869, and for other purposes,” in the body of it, and, indeed, in this very clause, clearly provides that the specific tax laid shall be laid from year to year. Indeed, this is our mode of passing tax laws. The Code points out, in general, the subjects of taxation, and fixes the list of specific taxes. The tax is assessed upon this according to the appropriations. The [424]*424main body of the tax laws, including the list of specific taxes, remain, from year to year, the same, unless altered by legislation.
We see nothing in the provision for the continuance of this tax, or rather in the implication in section 8th, that it shall continue, that is different from the title, as all our tax laws continue until altered. Such has, for years, been our system, though there were variations from year to year being, in fact, alterations of the Code, and unless they are themselves altered, they will continue.
For myself, I do not see why these cases do not fall within section 3618 of the Revised Code. If this is not a call for judicial interference, in the collection of the revenues of the State, I am not able to imagine a case.
The case in 33d Georgia, 623, is exactly such an one as this. There it was claimed that the tax was illegal — such an one as the Legislature had no^ power to assess. Yet the Court unanimously held, that a Court of Equity could not interfere by injunction. It is attempted to say, that this section of the Code cannot apply if the bill insists that the Act laying the tax is unconstitutional. But there is no such exception in the Code.
It is claimed that the Constitution expressly provides that the judiciary shall declare unconstitutional laws invalid. True. But does it follow that it may do this by injunction against the officer who is collecting the tax? The Code expressly says that, notwithstanding the provision against judicial interference, the party may have the proper proceedings at law for redress. He may sue the collector. But he must pay the tax. The Government is not to be stopped, by its own Courts, in the collection of its revenues.
This has been the law of this State since 1804. It is the law of the United States, where the judiciary has the same power over unconstitutional laws as has the judiciary of this State, and it is a law founded on a sound public policy.
Judgment affirmed.