[Cite as Ohio Grocers Assn. v. Levin, 123 Ohio St.3d 303, 2009-Ohio-4872.]




           OHIO GROCERS ASSOCIATION ET AL., APPELLEES, v. LEVIN,
                              TAX COMMR., APPELLANT.
  [Cite as Ohio Grocers Assn. v. Levin, 123 Ohio St.3d 303, 2009-Ohio-4872.]
Taxation — Commercial activity tax — R.C. 5751.02 et seq. — Commercial
        activity tax is not tax on sale or purchase of food and therefore does not
        violate Section 3(C) or 13, Article XII, Ohio Constitution — Commercial
        activity tax is tax on privilege of doing business — Fact that tax is
        measured by gross receipts that include proceeds from sale of food does
        not affect constitutionality of tax.
            (No. 2008-2018 — Submitted September 1, 2009 — Decided
                                  September 17, 2009.)
     APPEAL from the Court of Appeals for Franklin County, No. 07AP-813,
                       178 Ohio App.3d 145, 2008-Ohio-4420.
                                 __________________
        O’CONNOR, J.
        {¶ 1} The Ohio Grocers Association and four individual businesses
(collectively, “the Grocers”) argue that the Commercial Activity Tax (“CAT”)
violates the constitutional prohibition against excise taxes levied upon the sale or
purchase of food, whether at retail or wholesale. See Sections 3(C) and 13,
Article XII, Ohio Constitution. The General Assembly imposed the CAT “on
each person with taxable gross receipts for the privilege of doing business in this
state,” R.C. 5751.02(A), and it measured the value of that privilege using gross
receipts, see R.C. 5751.03(A). The Grocers allege that to the degree that gross
receipts include proceeds from the sale of food, the CAT is a prohibited tax upon
the sale of food. The Tenth District Court of Appeals agreed.
                                 SUPREME COURT OF OHIO




        {¶ 2} For the following reasons, we hold that the CAT is not an excise
tax “upon the sale or purchase of food” and does not violate the Ohio
Constitution. Therefore, we reverse the judgment of the court of appeals.
                                   Relevant Background
        {¶ 3} The Ohio Constitution permits laws providing for“[e]xcise and
franchise taxes * * * except that no excise tax shall be levied or collected upon the
sale or purchase of food for human consumption off the premises where sold.”
Section 3(C), Article XII, Ohio Constitution.1
        {¶ 4} A similar provision, Section 13, Article XII, prohibits the taxation
of food (or food-related) sales at other points on the distribution chain:
        {¶ 5} “No sales or other excise taxes shall be levied or collected (1) upon
any wholesale sale or wholesale purchase of food for human consumption, its
ingredients or its packaging; (2) upon any sale or purchase of such items sold to
or purchased by a manufacturer, processor, packager, distributor or reseller of
food for human consumption, or its ingredients, for use in its trade or business; or
(3) in any retail transaction, on any packaging that contains food for human
consumption on or off the premises where sold.”
        {¶ 6} The CAT was phased in beginning in 2005. Am.Sub.H.B. No. 66,
126th General Assembly. The Grocers acknowledge that the tax is “one of the
key components” of “a series of tax revisions generally designed to lessen the
burden of taxation on Ohio’s businesses.”                For many businesses, the CAT
replaces the tax on personal property located and used in business in Ohio, see
R.C. Chapter 5719, and it replaces the tax on the privilege of exercising the
corporate franchise in this state. See R.C. 5733.01(G)(1) and (2) (phasing out the




1. For brevity’s sake, any unqualified reference to “the sale or purchase of food” in this opinion
means only such sales “for human consumption off the premises where sold.”




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                                  January Term, 2009




corporate franchise tax); R.C. 5711.22(E) through (G) (phasing out the personal
property tax); R.C. 5751.031 (phasing in the CAT).
       {¶ 7} The CAT is levied “on each person with taxable gross receipts for
the privilege of doing business in this state.” R.C. 5751.02(A). Businesses
grossing less than $150,000 in a calendar year need not register for or pay the tax.
R.C. 5751.01(E)(1). Persons receiving between $150,000 and $1 million in gross
receipts pay a flat $150 tax. R.C. 5751.03(B). For gross receipts over $1 million,
the tax is “the product of two and six-tenths mills [0.0026] per dollar times the
remainder of the taxpayer’s taxable gross receipts.” R.C. 5751.03(A). Gross
receipts includes amounts received from sales, R.C. 5751.01(F)(1)(a), and there is
no exclusion for sales of food.
       {¶ 8} On February 17, 2006, the Grocers filed a complaint against the
tax commissioner in the Franklin County Court of Common Pleas seeking a
declaration that the CAT “violates the Ohio Constitution * * * when applied to
receipts from the sale of food for human consumption off the premises where
sold.” On cross-motions for summary judgment, the common pleas court upheld
the CAT. See Ohio Grocers Assn. v. Wilkins (Aug. 24, 2007), Franklin C.P. No.
O6CVH02-2278.
       {¶ 9} The court of appeals reversed and remanded. In so doing, it held
that “a franchise tax is a form of an excise tax” and that “excise taxes on certain
food sales are precisely what the Constitution prohibits.” Ohio Grocers Assn. v.
Wilkins, 178 Ohio App.3d 145, 2008-Ohio-4420, 897 N.E.2d 188, ¶ 20.
“[S]etting nomenclature aside,” the appellate court ruled that “when applied to
gross receipts derived from the sales of food,” the CAT is “a transactional tax.”
Id. at ¶ 21. “[T]hough not based on individual sales at the time they are made,”
the court reasoned, “the CAT is merely based on the aggregate of all sales within
a specified time frame.” Id. The court concluded that the CAT, “when applied to
gross receipts from the * * * sale of food * * *, operates as, and is, an excise tax



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levied or collected upon the sale or purchase of food, which is prohibited by
Sections 3 and 13 of Article XII of the Ohio Constitution.” Id. at ¶ 27.
       {¶ 10} The tax commissioner appealed to this court, and we accepted
jurisdiction to resolve whether the CAT violates Sections 3(C) and 13 when
applied to persons whose gross receipts include proceeds from the sale of food.
We hold that it does not.
                                     Analysis
       {¶ 11} Before analyzing the merits of this case, we note that parties,
including the Grocers, who challenge the constitutionality of an Ohio statute, bear
a heavy burden of persuasion. “Laws are entitled to a ‘strong presumption of
constitutionality,’ and the party challenging the constitutionality of a law ‘bears
the burden of proving that the law is unconstitutional beyond a reasonable
doubt.’ ” Columbia Gas Transm. Corp. v. Levin, 117 Ohio St.3d 122, 2008-Ohio-
511, 882 N.E.2d 400, ¶ 41, quoting Yajnik v. Akron Dept. of Health, Hous. Div.,
101 Ohio St.3d 106, 2004-Ohio-357, 802 N.E.2d 632, ¶ 16. Moreover, the
constitutional provisions that the Grocers rely on to invalidate the CAT are tax
exemptions and therefore must be strictly construed.        See Welfare Fedn. of
Cleveland v. Glander (1945), 146 Ohio St. 146, 177, 32 O.O. 65, 64 N.E.2d 813
(“strict construction is to be applied” to “constitutional and statutory provisions
for exemption from taxation”). These precepts require us to uphold the CAT if it
may plausibly be interpreted as permissible under Sections 3(C) and 13.
    The Constitution Permits Privilege-of-Doing-Business Taxes Measured by
           Gross Receipts that Include Proceeds from the Sale of Food
       {¶ 12} Section 3(C), Article XII prohibits any excise tax “levied or
collected upon the sale or purchase of food.” Similarly, Section 13 prohibits
“sales or other excise taxes” upon food sales at other points in the distribution
chain, such as wholesale sales. It is well accepted that taken together, these




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sections prohibit a sales tax on food, and indeed, sales of food remain exempt
from the sales tax. R.C. 5739.02(B)(2).
       {¶ 13} The Grocers, however, assert that Sections 3(C) and 13 do more—
namely, prohibit a tax on the privilege of doing business to the degree that the
privilege is measured by gross receipts derived from food sales. The court of
appeals agreed with this interpretation of these sections.
       {¶ 14} That interpretation is not, however, the best reading of the sections.
The actual wording of Sections 3(C) and 13 does not prohibit the state from using
gross receipts to compute the amount of a privilege-of-doing-business tax, even if
those gross receipts include proceeds from the sale of food. And as will be
discussed, interpreting Sections 3(C) and 13 to allow such a tax is not only
faithful to the text, it is (1) consonant with long-settled legal principles governing
the taxation of the privilege of doing business, (2) implied by the structure of
Sections 3(C) and 13, and (3) confirmed by the history both preceding and
succeeding the enactment of those provisions. And when the CAT’s practical
operation is considered, it becomes evident that it is what it purports to be: a
permissible tax on the privilege of doing business, not a proscribed tax upon the
sale or purchase of food. For these reasons, we reverse the judgment of the court
of appeals.
                               Applicable Principles
       {¶ 15} Our decisions establish three fundamental principles that govern
our analysis.
       {¶ 16} First, it is permissible to tax the privilege of doing business, and to
do so, the privilege must be valued. The privilege of doing business, often called
a franchise, is valuable and subject to taxation by the state. S. Gum Co. v. Laylin
(1902), 66 Ohio St. 578, 595, 64 N.E. 564. It follows that to impose a tax on a
privilege, the privilege must be valued.       Thus, in a case arising under the
corporate franchise tax, we acknowledged that the General Assembly may



                                          5
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“determine by uniform rules and as nearly as may be the value of the use of the
corporate franchise in this state.” (Emphasis deleted.) Aluminum Co. of Am. v.
Evatt (1942), 140 Ohio St. 385, 394, 24 O.O. 405, 45 N.E.2d 118. The value of
the privilege may be determined using gross receipts, among other measures.
Indeed, where the General Assembly, in levying a tax on the privilege of
conducting a public-utility business, chose to use “gross earnings” to measure the
value of the privilege as opposed to net earnings, we characterized that choice as
wise. Cincinnati, Milford & Loveland Traction Co. v. State (1916), 94 Ohio St.
24, 31, 113 N.E. 654; see also, e.g., State ex rel. Cleveland v. Kosydar (1973), 36
Ohio St.2d 183, 184, 65 O.O.2d 401, 305 N.E.2d 803; W. Union Tel. Co. v. Mayer
(1876), 28 Ohio St. 521, 1876 WL 27; see also In re State Tax on Ry. Gross
Receipts (1872), 82 U.S. 284, 15 Wall. 284, 296, 21 L.Ed. 164 (“nor is it deniable
that gross receipts may be a measure of proximate value” of a business privilege).
       {¶ 17} Second, in this context, we have long recognized a distinction
between a tax upon a certain factor and a tax upon a privilege measured by that
factor. E.g., Aluminum Co. of Am. As might be expected, the use of a factor to
measure a tax on a privilege has raised the issue of whether a tax upon a privilege
measured by a factor is the same as a tax upon that factor. But as we explained in
Aluminum Co. of Am., “it must be kept crystal clear that the only purpose of the
[franchise-tax] formula * * * is to determine by uniform rules * * * the value of
the use of the corporate franchise in this state.” (Emphasis deleted.) 140 Ohio St.
at 394, 24 O.O. 405, 45 N.E.2d 118. “The employment of various factors * * * is
no indication that the subjects of such factors are being taxed. Instead, they are
being used merely to compose a measuring stick.” (Emphasis added.) Id.
       {¶ 18} Early on, for example, this “measuring stick” principle was applied
to uphold the corporate franchise tax against a constitutional challenge. In S.
Gum, 66 Ohio St. at 596, 64 N.E. 564, the taxpayer argued that measuring the
value of the franchise as a percentage of its capital stock is a second tax, the first




                                          6
                                  January Term, 2009




being the property tax, on the same property or capital, and that “thereby double
taxation results.” But this is not true, we held, because the tax was “not a
property tax on property owned by the corporation, but is an excise tax, the
amount of which is fixed and measured by the amount of subscribed or issued and
outstanding capital stock.” Id.
       {¶ 19} This principle remains good law. See, e.g., Mut. Holding Co. v.
Limbach (1994), 71 Ohio St.3d 59, 60, 641 N.E.2d 1080 (“R.C. 5725.18 is a
franchise tax measured by net worth, not a tax on net worth”); Bank One Dayton,
N.A. v. Limbach (1990), 50 Ohio St.3d 163, 167, 553 N.E.2d 624; E. Ohio Gas
Co. v. Limbach (1986), 26 Ohio St.3d 63, 67, 26 OBR 54, 498 N.E.2d 453;
Wheeling Steel Corp. v. Porterfield (1970), 21 Ohio St.2d 57, 60-61, 50 O.O.2d
135, 255 N.E.2d 257; Fifth Third Union Trust Co. v. Peck (1954), 161 Ohio St.
169, 172, 53 O.O. 75, 118 N.E.2d 398.
       {¶ 20} Third, as implied by the foregoing, the measuring stick of a
privilege-of-doing-business tax may include tax-exempt factors. Thus, we have
upheld the corporate franchise tax against allegations that it was a tax on tax-
exempt factors in disguise. Bank One, 50 Ohio St.3d at 164, 553 N.E.2d 624. In
Bank One, it was argued that the franchise tax, measured in part by tax-exempt
federal stocks and obligations, violated federal statutory law and thus the
Supremacy Clause of the United States Constitution. We rejected the argument,
noting that “a franchise tax may be measured by tax-exempt income or property
and still be a valid tax on the franchise and not on the property.” (Emphasis sic.)
Id. at 167, 553 N.E.2d 624.
       {¶ 21} Likewise, in Fifth Third Union Trust, we held that the franchise-
tax base could include federal securities that were exempt by federal law from
taxation by the states. 161 Ohio St. at 172, 53 O.O. 75, 118 N.E.2d 398. This
was because the tax levied “is a franchise tax based on the value of the capital




                                          7
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stock and is not a tax on the securities as such.”2 Id.; see also, e.g., Werner Mach.
Co. v. Dir., New Jersey Div. of Taxation (1956), 350 U.S. 492, 494, 76 S.Ct. 534,
100 L.Ed. 634 (“This Court has consistently upheld franchise taxes measured by a
yardstick which includes tax-exempt income or property, even though a part of
the economic impact of the tax may be said to bear indirectly upon such income
or property * * *”).
               Applying these Principles, Sections 3(C) and 13 Permit a
         Privilege-of-Doing-Business Tax Measured by Gross Receipts that
                          Include Proceeds from the Sale of Food
         {¶ 22} With these governing principles in mind, at a minimum it is
plausible to read Sections 3(C) and 13 as permitting the imposition of a privilege-
of-doing-business tax on a food seller and measuring that tax by gross receipts
including proceeds from the sale of food. In essence, both sections prohibit taxes
levied or collected upon the sale or purchase of food. These provisions plainly
prohibit a tax (such as the sales tax) that is triggered by and imposed upon each
“sale” of food—whatever the tax is called.                 But given that we must strictly
construe these clauses, Welfare Fedn. of Cleveland, 146 Ohio St. at 177, 32 O.O.
65, 64 N.E.2d 813, we note that they do not prohibit a tax upon sellers of food.
Nor do they prohibit the consideration of receipts from food sales in measuring
the value of the privilege of doing business.
         {¶ 23} As we have explained, our decisions have made clear that a tax
“measured by” some factor is not the same as a tax “upon” that factor. Those
decisions further undermine the Grocers’ expansive reading. In short, Sections
3(C) and 13 do not prohibit a privilege-of-doing-business tax on food sellers, even

2. Bearing out the strength of this principle, our 1952 decision to the contrary survived little more
than two years. See Wren Paper Co. v. Glander (1952), 156 Ohio St. 583, 46 O.O. 479, 103
N.E.2d 756, paragraph two of the syllabus (it is illegal to include tax-exempt federal securities in
the franchise-tax base), overruled by Fifth Third Union Trust Co. v. Peck (1954), 161 Ohio St.
169, 53 O.O. 75, 118 N.E.2d 398, paragraph three of the syllabus.




                                                 8
                                 January Term, 2009




if that privilege is measured by gross receipts that include proceeds from the sale
of food.
       {¶ 24} The Grocers, at best, urge a competing plausible reading. But
plausibility is insufficient to prevail, because the Grocers must prove the CAT’s
unconstitutionality beyond a reasonable doubt. Thus, it is not enough to show
that one plausible reading requires the statute to be stricken as unconstitutional,
when another plausible reading permits it to survive. Similarly, the Grocers have
not succeeded in showing that considering receipts from food sales in measuring
the value of the privilege of doing business is prohibited. Thus, the statute must
be upheld.
       {¶ 25} But we need not rest on the standard of review. The structure and
the history of these constitutional provisions clearly show that our interpretation is
not only plausible, but that it is the correct reading of the provisions.
                       The Language of Sections 3(C) and 13
       {¶ 26} The wording of Sections 3(C) and 13, in different ways, suggests
that they were not intended to limit taxes upon the privilege of doing business.
We consider each provision in order.
       {¶ 27} Section 3, Article XII authorizes the General Assembly to pass
laws providing for certain taxes. Among those taxes are “[e]xcise and franchise
taxes and * * * taxes upon the production of coal, oil, gas, and other minerals;
except that no excise tax shall be levied or collected upon the sale or purchase of
food for human consumption off the premises where sold.” (Emphasis added.)
Section 3(C).
       {¶ 28} As pertinent here, Section 3(C) grants two kinds of taxing power
but takes away from only one. The first part of the section authorizes “excise and
franchise taxes.” An exception follows, but pertains only to excise taxes. This
suggests that franchise taxes are not limited by Section 3(C). Although for many
years the franchise tax per se was charged only to corporations, a “franchise tax”



                                           9
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has been understood for more than a hundred years to be a tax on the privilege of
doing business. See, e.g., S. Gum, 66 Ohio St. 578, 64 N.E. 564, paragraph five
of the syllabus (“[a] franchise tax may be imposed by the general assembly upon
corporations, both domestic and foreign, doing business in this state”); cf. Black’s
Law Dictionary (9th Ed.2009) (defining “franchise tax” as “[a] tax imposed on
the privilege of carrying on a business”). Thus, by permitting franchise and
excise taxes but limiting only excise taxes, Section 3(C) implies that taxes on the
privilege of doing business are not subject to its food-sales limitations.
       {¶ 29} Likewise, the wording of Section 13 implies that it does not
address or limit privilege-of-doing-business taxes. It is structured to prohibit
“sales or other excise taxes” on food. A specific tax is listed first (sales tax),
followed by a broader term (“or other excise taxes”). Under the rule of ejusdem
generis, the latter term will be read as “ ‘embracing only things of a similar
character as those comprehended by the preceding limited and confined terms.’ ”
Moulton Gas Serv., Inc. v. Zaino, 97 Ohio St.3d 48, 2002-Ohio-5309, 776 N.E.2d
72, ¶ 14, quoting State v. Aspell (1967), 10 Ohio St.2d 1, 39 O.O.2d 1, 225 N.E.2d
226, paragraph two of the syllabus. Thus, Section 13’s wording suggests that
only those excise taxes that resemble sales taxes fall under its prohibition—and a
privilege-of-doing-business tax is not like a sales tax. If the drafters had desired
to outlaw excise taxes of every stripe, they simply could have prohibited “excise
taxes.” This choice of language further suggests that Section 13 is not concerned
with taxes upon the privilege of doing business.
       {¶ 30} The Grocers’ counterarguments on this point are unavailing. For
example, it is true that a franchise tax is a kind of excise tax. But although
Sections 3(C) and 13 use the term “excise,” it does not follow that they are
concerned with privilege-of-doing-business taxes. An excise tax cannot operate
unless made to fall upon a specified subject. See, e.g., Calerdine v. Freiberg
(1935), 129 Ohio St. 453, 457, 2 O.O. 437, 195 N.E. 854, quoting 26 Ruling Case




                                          10
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Law 257 (“ ‘[i]t is for the legislature to determine the subjects of excise’ ”). The
only excise tax prohibited by either section is upon sales of food or certain food-
related items—not upon the privilege of doing business. And as just discussed,
the wording of each provision rules out a broad reading of “excise” to encompass
taxes that are like franchise taxes.
       {¶ 31} The Grocers also point out that Section 3(C) once had a different
structure: the clause prohibiting excise taxation of food sales was adopted in 1936
as Section 12, Article XII, whereas Section 10 contained the clause authorizing
“excise and franchise taxes.” In 1976, Sections 10 and 12 were combined to form
Section 3(C).    According to the Grocers, then, “there is simply no basis to
conclude that the use of the term ‘excise taxes’ in the prohibiting clause of
Section 3(C) was intended to exclude ‘franchise taxes’ from its scope.”         We
disagree. The Grocers seem to assume that these provisions were merged by
accident, but, of course, they were not. The fact that Ohioans chose to merge
these sections and leave intact the distinction between “excise and franchise
taxes,” if anything, strengthens the inference that privilege-of-doing-business
taxes are not intended to be subject to Section 3(C)’s food-sale limitations. If the
drafters had wanted to eliminate the inference that excise taxes and franchise
taxes were distinct, they would have eliminated the words “and franchise” from
Section 3(C).
       {¶ 32} In sum, the structure of Sections 3(C) and 13 reinforces our
reading that these provisions do not apply to taxes upon the privilege of doing
business.
                        The History of Sections 3(C) and 13
       {¶ 33} The history surrounding Sections 3(C) and 13 shows that they have
never been understood to prevent a privilege-of-doing-business tax from
including in its measure proceeds from the sale of food.




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       {¶ 34} History reveals that Sections 3(C) and 13 were concerned with
sales taxes on food, not privilege-of-doing-business taxes on food sellers. The
Grocers concede that the prohibition now found in Section 3(C) was adopted in
response to the application of the sales tax to food sales in the midst of the Great
Depression. Parties for and against the adoption of that section considered it a
“repeal of the sales tax on food,” according to the certified ballot language
proposing Section 12, Article XII at the November 3, 1936 election. After that
section was adopted, the legislature amended the sales tax to make it inapplicable
to sales of food. H.B. No. 694, 116 Ohio Laws, Part II, 323, 326, effective Jan. 1,
1937, now codified at R.C. 5739.02(B)(2).
       {¶ 35} Likewise, Section 13 was adopted in response to a tax on the sale
of food at wholesale. See Cameron Coca-Cola Bottling Co. v. Tracy (July 28,
1993), Franklin C.P. No. 93CVH02-729. In 1993, an Ohio court held that the
imposition of a beverage tax on soft drinks at wholesale did not violate Section
3(C). See id. at 27. Soon after, Ohioans amended the Constitution to prohibit,
among other things, any tax “upon any wholesale sale or wholesale purchase of
food.” Section 13, Article XII, Ohio Constitution. After Section 13 was adopted,
the beverage tax was repealed by Am.Sub.H.B. No. 215, Section 6(A), 147 Ohio
Laws, Part I, 1918, which was effective January 1, 1999.
       {¶ 36} The history and application of these provisions confirm our
interpretation. Without challenge, food sellers have been subject to a tax (the
corporate franchise tax) upon the privilege of doing business that included
proceeds from the sale of food in its measure for almost 40 years.
       {¶ 37} The corporate franchise tax is, as the CAT purports to be, a tax on
the privilege of doing business. It was first imposed over 100 years ago, and in
1971, the net-income method for measuring it was introduced. Former R.C.
5733.05, Am.Sub.H.B. No. 475, 134 Ohio Laws, Part II, 1558; see Lakengren,
Inc. v. Kosydar (1975), 44 Ohio St.2d 199, 73 O.O.2d 502, 339 N.E.2d 814.




                                        12
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Since then, in theory, and usually in practice, food sales in Ohio have increased
the burden of the corporate franchise tax on food sellers because such sales (1)
determined the amount of income that formed part of the tax base and (2)
determined the amount of income apportionable to Ohio.3 Food sellers, then,
have long been subject to a privilege-of-doing-business tax measured in part by
food sales.
        {¶ 38} As just discussed, Ohioans energetically responded to food-related
taxes in the past, but the Constitution was never amended to prohibit the franchise
tax on food sellers, even though since 1971 its measuring stick has substantially
included food sales. And this is true though the constitutional provisions at issue
have been amended twice since the net-income method was introduced. The
franchise tax was not at issue or affected by either amendment. Significantly,
only five years after the net-income method was introduced, Ohioans merged
Section 10’s authorization of “excise and franchise taxes” with Section 12’s
prohibition of “excise” taxation on food sales, which resulted in the very structure
that strongly implies that privilege-of-doing-business taxes are not subject to any
food-sale limitation.
        {¶ 39} This history demonstrates that when a tax related to food crosses
the line, Ohioans amend the Constitution. But those amendments never have been
read to prohibit the inclusion of food-sale proceeds in the measurement of a
privilege-of-doing-business tax. The Grocers offer no compelling reason to begin
reading them this way now.
        {¶ 40} In sum, the constitutional text, structure, and history fully establish
that Sections 3(C) and 13 permit a tax upon the privilege of doing business that
includes in its measure proceeds from the sale of food. This leaves one issue: is

3. This principle has always been true, although we note that the precise statutory mechanism for
measuring and apportioning the components has been altered over the years. Compare
Am.Sub.H.B. No. 475, 134 Ohio Laws, Part II, 1558–1565, with Am.Sub.H.B. No. 95, 150 Ohio
Laws, Part II, 1931–1941; current versions codified at R.C. 5733.04(Q) and 5733.05(B)(2).




                                               13
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the CAT what it purports to be—a tax on the privilege of doing business? Or is it
what it purports not to be—a tax on sales?
        Substantively, the CAT Is a Tax on the Privilege of Doing Business
        {¶ 41} The Grocers concede that the CAT is nominally a tax upon the
privilege of doing business but assert that “substantively” it is “a tax on the sale or
purchase of food, and suffers from the very same evils as the sales taxes” that
prompted Sections 3(C) and 13. We disagree. When the operation of the CAT is
considered, one can only conclude that it is not a tax upon the sale or purchase of
food.
        {¶ 42} When confronted with a challenge to the true nature of a tax, we
look to how it operates. Bank One, 50 Ohio St.3d at 166, 553 N.E.2d 624; see
also Soc. for Sav. in Cleveland, Ohio v. Bowers (1955), 349 U.S. 143, 151, 75
S.Ct. 607, 99 L.Ed. 950 (“We must judge the true nature of this tax in terms of the
rights and liabilities which the statute, as construed, creates”).
        The CAT Operates Like a Tax upon the Privilege of Doing Business
        {¶ 43} The CAT operates like a privilege-of-doing-business tax, as shown
by the factors that follow.
        {¶ 44} First, it is described as such by the legislature. R.C. 5751.02(A)
(“there is hereby levied a commercial activity tax * * * for the privilege of doing
business in this state”).
        {¶ 45} Second, it is imposed on the person enjoying the privilege. R.C.
5751.02(A) (tax is levied “on each person with taxable gross receipts”).
        {¶ 46} Third, it expressly “shall not be billed or invoiced” to a person
other than the privilege holder, and no right of collection from any other person is
created. R.C. 5751.02(B). See also Soc. for Sav., 349 U.S. at 151, 75 S.Ct. 607,
99 L.Ed 950 (“A tax * * * which is recoverable only from the bank looks like a
tax against the bank”). Like other costs of doing business, however, a seller may




                                          14
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“includ[e] in the price charged for a good or service an amount sufficient to
recover the tax.” R.C. 5751.02(B).
          {¶ 47} Fourth, it is imposed for the exercise of the privilege for any
portion of a calendar year. R.C. 5751.02(A) (“The tax imposed by this section is
an annual privilege tax * * *”); see also Bank One, 50 Ohio St.3d at 166, 553
N.E.2d 624, quoting E. Ohio Gas, 26 Ohio St.3d at 67, 26 OBR 54, 498 N.E.2d
453 (franchise tax was “ ‘based upon the results of an entire year of doing
business’ ”).
          {¶ 48} Fifth, it is calculated based on results over certain business periods
(either annually or quarterly), not transaction-by-transaction. R.C. 5751.02(A);
see also E. Ohio Gas, 26 Ohio St.3d at 66–67, 26 OBR 54, 498 N.E.2d 453
(noting that privilege-of-doing-business tax was “based upon the results of an
entire year of doing business” and was “not a tax on daily transactions”).
          {¶ 49} Sixth, it is computed using a broad measure of market access that
is rationally related to the enjoyment of the privilege of doing business. R.C.
5751.03(A) (tax is the product of “taxpayer’s taxable gross receipts [after
subtracting the exclusion amount in R.C. 5751.03(C)]” times .0026). See also
Cincinnati, Milford & Loveland Traction Co., 94 Ohio St. at 31, 113 N.E. 654
(approving use of gross earnings in measuring franchise tax); In re State Tax on
Ry. Gross Receipts, 82 U.S. at 296, 15 Wall. 284, 21 L.Ed. 164 (“nor is it deniable
that gross receipts may be a measure of proximate value” of “a franchise
granted”).
          {¶ 50} All of these features are consistent with a privilege-of-doing-
business tax. The Grocers nevertheless insist that the CAT is a tax on the sale or
purchase of food because it “has the effect of being a tax on food sales.” This is
not so.
    The CAT Does Not Operate Like a Tax upon the Sale or Purchase of Food




                                           15
                             SUPREME COURT OF OHIO




        {¶ 51} A tax that is neither triggered by a sale of food nor necessarily
reflected in the price of food does not look like a tax upon the sale or purchase of
food. This description fits the CAT in its practical operation.
        {¶ 52} When there is a sale of food, the customer pays the price marked
for the item. At the register, no tax is added to that price: sales tax cannot be
added, because of Section 3(C); the CAT cannot be added, because of R.C.
5751.02(B). Nor does the seller incur liability under the CAT at that time. If the
seller does not take in enough gross receipts in that year (over $150,000), there
will be no CAT liability, period. R.C. 5751.01(E)(1). In that case, the sale, as far
as the CAT is concerned, is tax free. A sale of food occurred; CAT liability did
not. A tax that is neither triggered by nor imposed on a sale of food does not look
like a tax upon the sale or purchase of food.
        {¶ 53} But what if the seller does take in more gross receipts than
$150,000, triggering CAT liability? Even then the CAT does not work like a tax
upon the sale or purchase of food. To begin with, the price of food might never
reflect a cent of the CAT. For up to $1 million in gross receipts, the CAT is a flat
$150.   R.C. 5751.03(B).      So, if a grocer earns $1 million, it owes fifteen
thousandths of a cent per dollar, evenly allocated. It is far from clear that such a
small tax would have any impact on prices.
        {¶ 54} And even with greater CAT liability, the cost of the tax might
never cause grocers to increase the price of food. As recognized by the Grocers’
own expert, the seller might respond to the cost of the CAT by cutting wages or
taking lower profits. Or, having considered relative levels of demand, the seller
could opt to build a disproportionate amount of the CAT’s cost into the price of
nonfood articles to keep food prices low (e.g., increase the price of paper towels
by .52 percent to avoid increasing the price of eggs by .26 percent).
        {¶ 55} Furthermore, even if some food prices reflect an increase related to
the CAT, the relationship between the amount of the tax and any particular “sale




                                         16
                                January Term, 2009




or purchase of food” would likely remain extremely attenuated. Many of the
Grocers are sophisticated business enterprises. It seems doubtful that they would
recoup the CAT by simply multiplying the price of every item for sale by 1.0026.
One would expect that if a seller did include a CAT component in its prices, the
component would reflect the seller’s projections of CAT liability—made at the
time prices were set (and thus before the sale), that would derive from both food
and nonfood receipts. The seller would also have to consider what price the
market would bear. If we consider the effect of the CAT’s various credits, see
R.C. 5751.50 through 5751.53, the relationship between the CAT and food sales
appears even more remote.
       {¶ 56} The point is that the relationship between a sale of food and CAT
obligations is so attenuated and unpredictable that it simply cannot be said that the
CAT operates as a tax upon the sale or purchase of food. It is clear that the tax
falls on food sellers, among others. It is far from clear, however, that it falls upon
the sale or purchase of food. It does not do so formally, nor must it do so
practically. The notion that the CAT “operates” as a sales tax—which is collected
from purchasers, imposed at the point of sale, and computed by multiplying the
sale price by the applicable rate—is factually incorrect.
                                    Conclusion
       {¶ 57} For the foregoing reasons, we reverse the judgment of the court of
appeals and remand this case for further proceedings consistent with this opinion.
                                                                 Judgment reversed.
       MOYER, C.J., and LUNDBERG STRATTON, O’DONNELL, LANZINGER, and
CUPP, JJ., concur.
       PFEIFER, J., dissents.
                                __________________
       PFEIFER, J., dissenting.




                                         17
                              SUPREME COURT OF OHIO




        {¶ 58} Section 3(C), Article XII of the Ohio Constitution states, that laws
may be passed providing for “[e]xcise and franchise taxes * * *; except that no
excise tax shall be levied or collected upon the sale or purchase of food for human
consumption off the premises where sold.”            It is uncontroverted that the
Commercial Activities Tax (“CAT”) at issue in this case is an excise tax. The
Attorney General conceded the point at oral argument and wrote, in the tax
commissioner’s brief, that “excise tax is an umbrella term that encompasses both
sales and franchise taxes.” Thus, the issue before us can be simply stated: is the
CAT “levied or collected upon the sale or purchase of food for human
consumption off the premises where sold”? If it is, the CAT is unconstitutional; if
it is not, the CAT is constitutional.
        {¶ 59} Once sales crest $1 million, assuming that all credits and other
allowances have been offset or otherwise adjusted, every additional dollar of sales
for “food for human consumption off the premises where sold” subjects the
retailer to an additional tax of .26 cents. R.C. 5751.03. It is an incontrovertible
fact that if a retailer has sales over $1 million and he sells an additional 40 gallons
of milk at $2.50 per gallon, for a total of $100, a tax of 26 cents is levied upon
him and the state collects 26 cents. Is this not a tax “levied or collected upon the
sale or purchase of food”?
        {¶ 60} The fact that 26 cents per $100 is a small sum does not mean that
this tax is de minimis, as the majority suggests as to the $150 flat fee. Though
there are more than 11 million Ohio residents, assume that only ten million people
actually live in Ohio. Further assume that they each consume exactly one gallon
of milk per month, that milk costs $2.50 per gallon, and that all of the milk is
purchased from a retailer with sales in excess of $1 million – that is, any milk
purchased from Kroger, UDF, Giant Eagle, Meijer, Target, Whole Foods, Sam’s
Club, Costco, and the like. The excise tax levied and collected by the state based




                                          18
                               January Term, 2009




on the sale of ten million gallons of milk would be $65,000. Would this not be a
tax “levied or collected upon the sale or purchase of food”?
       {¶ 61} The majority opinion concludes that sales are not being taxed, they
are “ ‘merely’ ” being used as a “ ‘measuring stick,’ ” majority opinion at ¶ 17,
quoting Aluminum Co. of Am. v. Evatt (1942), 140 Ohio St. 385, 394, 24 O.O.
405, 45 N.E.2d 118. But the quote in the majority opinion omits an important
distinction between this case and Aluminum Co. The passage quoted by the
majority goes on to state, “The employment of various factors in determining the
part of the business of a corporation (whether domestic or foreign) done in Ohio is
no indication that the subjects of such factors are being taxed. Instead, they are
being used merely to compose a measuring stick.”            Id. The full quote and
preceding text reveal that sales were used in Aluminum Co. as part of a
complicated formula, which included the value of stock, the value of property
owned in Ohio and outside Ohio, and sales in Ohio and outside Ohio.              In
Aluminum Co., sales were not used to directly determine the tax owed but were
truly a mere factor in determining the franchise tax. In this case, sales are the
only measure. Furthermore, Aluminum Co. did not involve a subject that was
constitutionally excluded from taxation by an excise tax.
       {¶ 62} The majority opinion, citing Bank One Dayton, N.A. v. Limbach
(1990), 50 Ohio St.3d 163, 167, 553 N.E.2d 624, quotes this court as stating that
“a franchise tax may be measured by tax-exempt income or property and still be a
valid tax on the franchise and not on the property.” (Emphasis sic.) In Bank One,
this court was quoting a United States Supreme Court case in which tax-exempt
bonds were used as part of the net-worth valuation for computing New Jersey
franchise tax. See Educational Films Corp. of Am. v. Ward (1931), 282 U.S. 379,
388, 51 S.Ct. 170, 75 L.Ed. 400. The relevance of that quote to this case is at best
uncertain, but more likely, nonexistent.




                                           19
                              SUPREME COURT OF OHIO




          {¶ 63} The majority opinion cites Fifth Third Union Trust Co. v. Peck
(1954), 161 Ohio St. 169, 172, 53 O.O. 75, 118 N.E.2d 398, as holding that “the
franchise-tax base could include federal securities that were exempt by federal
law from taxation by the states.” The quote is a fair characterization of the
holding in Fifth Third Union Trust, but it is not relevant to the issue before us.
The crux of Fifth Third Union Trust is that the franchise tax can be calculated
based on “ ‘the value of the issued and outstanding shares of stock’ * * * without
deduction therefrom of the value of any federal securities owned by such
corporation.” Id. at paragraph three of the syllabus, quoting G.C. 5498. As a
practical matter, tax-exempt bonds are exempt only from certain kinds of
taxation. For instance, the interest earned on tax-exempt bonds is exempt from
income tax, but capital gains on tax-exempt bonds are not exempt from taxation.
Furthermore, the value of the bonds is separate and distinct from their tax-exempt
status. And, of course, the Fifth Third Union Trust case did not involve an
express constitutional exclusion from taxation.       Fifth Third Union Trust is
irrelevant.
          {¶ 64} The majority opinion concludes from these three cases that “the
CAT is ‘measured by’ sales.” But only one of the cases it relies on uses sales as a
measure, and then as part of a complicated formula in which sales are only one
factor.     This court has again cobbled together incongruent cases with an
implausible rationale to conclude that a straightforward provision of the
Constitution is inapplicable to the situation before it. See Arbino v. Johnson &
Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, at ¶ 173 (Pfeifer,
J., dissenting). If only the Constitution of Ohio were entitled to a presumption of
applicability.
          {¶ 65} In its discussion of the structure of Sections 3(C) and 13, Article
XII, the majority opinion states that “by permitting franchise and excise taxes but
limiting only excise taxes, Section 3(C) implies that taxes on the privilege of




                                          20
                                January Term, 2009




doing business are not subject to its food-sales limitations.” (Emphasis sic.) To
the contrary, it is likely that no thought was given to this distinction. 1975
Am.H.J.R. No. 15 states, as to Section 3, that “[t]he remaining portion of section
7, Article XII and sections 8, 10, and 12 of that Article are repealed and reenacted
as a single new section 3.”
         {¶ 66} Violating the rule of construction against reading more words into
the text than are there, Bernardini v. Conneaut Area City School Dist. Bd. of Edn.
(1979), 58 Ohio St.2d 1, 4, 12 O.O.3d 1, 387 N.E.2d 1222,              the majority
concludes that “sales or other excise taxes,” in Section 13, Article XII includes
only those “excise taxes that resemble sales taxes.” (Emphasis sic.) Majority
opinion at ¶ 29. That conclusion is indefensible, despite the majority’s reference
to the venerable rule of ejusdem generis.
         {¶ 67} In distinguishing between excise and “privilege of doing business”
taxes, the majority opinion blithely ignores the fact that franchise taxes are excise
taxes, as conceded by the Attorney General. Excise taxes have long been known
to encompass franchise taxes. Cincinnati, Milford & Loveland Traction Co. v.
State (1916), 94 Ohio St. 24, 27, 113 N.E. 654, paragraph two of the syllabus
(“An excise tax is a tax assessed for some special privilege or immunity granted,
* * * and in the case of a corporation, it is sometimes spoken of as a franchise
tax”).   There is no credible reason for the majority opinion to differentiate
franchise taxes from excise taxes.
         {¶ 68} Although the majority opinion’s discussion on the history of
Sections 3(C) and 13 is interesting, it is also irrelevant.       We only look at
legislative history when a provision is ambiguous, see R.C. 149(C), which
Sections 3(C) and 13 are not.
         {¶ 69} This court in answering the question before us is burdened by a
questionable legal principle, which requires us to presume that any statute enacted
by the General Assembly is constitutional. This court has not seriously looked at



                                         21
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this presumption in decades. The presumption has taken on a life of its own apart
from whatever merits ever precipitated its institution.
       {¶ 70} The presumption of constitutionality is suspect because it
originates from a fallacy: that a conflict between a constitutional provision and a
statute is the same as a conflict between two statutes. In State ex rel. Evans v.
Dudley (1853), 1 Ohio St. 437, 441, 1853 WL 50, this court stated, “As repeals by
implication are not favored, the repugnancy between the provisions of two
statutes must be clear, and so contrary to each other that they cannot be
reconciled, in order to make the latter operate a repeal of the former. This rule is
the result of a long course of decisions, and we know of no reason why it does not
equally apply, when the repugnancy is alleged to exist, between a constitutional
provision and a legislative enactment.”        See also Cass v. Dillon (1853), 2 Ohio
St.607, 611, 1853 WL 129, quoting Dodge v. Gridley (1840), 10 Ohio 173, 178,
1840 WL 34 (“it was held, that ‘when two affirmative statutes exist, one is not to
be construed to repeal the other by implication, unless they can be reconciled by
no mode of interpretation.’ In the light of this rule, then, let us examine the
provisions of the constitution that are said to be repugnant to the continued
existence of the law in question” [emphasis sic]). Every case since 1853 that has
relied on the presumption of constitutionality relates back to these cases and
therefore relies on the faulty premise that a constitutional provision is the same as
a statute for purposes of determining which governs a particular issue.
       {¶ 71} Another basic problem with the presumption of constitutionality is
that the presumption itself rests on another presumption: “that the Legislature
acted with due respect to the Constitution and enacted the law in the belief that it
was within legislative power.” State ex rel. Weinberger v. Miller (1912), 87 Ohio
St. 12, 52, 99 N.E. 1078 (Davis, C.J., dissenting). See State ex rel. Atty. Gen. v.
Cincinnati (1870), 20 Ohio St. 18, 33-34, 1870 WL 2, in which this court
explained that the presumption of constitutionality is based on “the presumption




                                          22
                                January Term, 2009




that the legislative majority which enacted the statute in question, did so after full
and careful investigation, and in the full conviction that what they were doing was
within the constitutional grant of legislative power.” This court went on to say
that “this presumption may not be a very satisfactory one: and, perhaps,
sometimes members of the legislative department of the government, instead of
examining for themselves whether proposed enactments are warranted by the
constitution which they are sworn to support, ignore this duty, with a view to
throw it over upon the judiciary in the first instance.” (Emphasis sic.) Id. at 34,
1870 WL 2.
       {¶ 72} The doubts expressed by Chief Justice Davis in Weinberger and
Chief Justice Brinkerhoff in Atty. Gen. are well placed. Even the most casual
observer of the General Assembly is aware that members do not always carefully
consider the constitutionality of the legislation they vote for or against. They do
not thereby abuse their trust or duty, but most members are not lawyers, are not
steeped in constitutional law, and are not capable of discerning the often fine lines
that separate the unconstitutional from the constitutional. Frequently members
state that they don’t have to consider whether a given law to be enacted is
constitutional because this court will ultimately make that determination. It has
and it will; to do otherwise is an abdication of our duty. See Atty. Gen., 20 Ohio
St. at 33, 1870 WL 2.
       {¶ 73} “It is revolting to have no better reason for a rule of law than that
so it was laid down in the time of Henry IV. It is still more revolting if the
grounds upon which it was laid down have vanished long since, and the rule
simply persists from blind imitation of the past.” Holmes, The Path of the Law
(1897), 10 Harv.L.Rev. 457, 469. The presumption of constitutionality is based
on a fallacy and an unsound presumption, and I would abrogate it.
       {¶ 74} Constitutional provisions are not the kin of statutes; they are the
paramount law of Ohio. Constitutional provisions are superior to statutes because



                                         23
                               SUPREME COURT OF OHIO




they derive from the people, the fount of all political power, whereas statutes
derive from the General Assembly, which has only the authority delegated to it by
the people.     Cincinnati, Wilmington & Zanesville RR. Co. v. Clinton Cty.
Commrs. (1852), 1 Ohio St. 77, 85, 1852 WL 11 (“all political power resides with
the people”); Federalist No. 78. See Marbury v. Madison (1803), 5 U.S. (1
Cranch) 137, 177, 2 L.Ed. 60 (“Certainly all those who have framed written
constitutions contemplate them as forming the fundamental and paramount law of
the nation, and consequently the theory of every such government must be, that an
act of the legislature, repugnant to the constitution, is void”).
        {¶ 75} Given the obvious supremacy of the Constitution, a better rule of
construction would be to resolve all doubts in favor of the applicability of the
Constitution.
        {¶ 76} The historical presumption of constitutionality is backwards. The
bottom line is that courts are the ultimate arbiters of what is constitutional, and
have been since 1803, and we ought not to be saddled with a presumption that
restricts our ability to declare a suspect statute unconstitutional. Marbury, 5 U.S.
(1 Cranch) at 177, 2 L.Ed. 60 (“an act of the legislature, repugnant to the
constitution, is void”). See Cincinnati, Wilmington & Zanesville RR., 1 Ohio St.
at 81, 1852 WL 11 (“It seems now, however, to be generally, if not universally
conceded, that it is the right, and consequently the duty of the judicial tribunals, to
determine, whether a legislative act drawn in question in a suit pending before
them, is opposed to the constitution of the United States, or of this State, and if so
found, to treat it as a nullity”).
        {¶ 77} Furthermore, some laws are “presumptively invalid.” See, e.g.,
R.A.V. v. St. Paul (1992), 505 U.S. 377, 382, 112 S.Ct. 2538, 120 L.Ed.2d 305
(content-based regulation restricting free speech); Nixon v. Shrink Missouri Govt.
PAC (2000), 528 U.S. 377, 400, 120 S.Ct. 897, 145 L.Ed.2d 886 (Breyer, J.,
concurring) (laws subject to strict scrutiny bear a strong presumption against




                                          24
                                January Term, 2009




constitutionality); Bantam Books, Inc. v. Sullivan (1963), 372 U.S. 58, 70, 83
S.Ct. 631, 9 L.Ed.2d 584 (“Any system of prior restraints of expression comes to
this Court bearing a heavy presumption against its constitutional validity”).
       {¶ 78} Abrogating the presumption of constitutionality would not lead to
chaos. This court would not presume that statutes are unconstitutional. This
court would not invalidate all challenged statutes if the presumption of
constitutionality were to disappear. See State ex rel. Bishop v. Mt. Orab Village
School Dist. Bd. of Edn. (1942), 139 Ohio St. 427, 22 O.O. 494, 40 N.E.2d 913
(statute was upheld as constitutional even though presumption of constitutionality
was not mentioned). But this court would be less likely to sanction suspect
statutes, like the one before us today, if the presumption were not in place. See
Cass, 2 Ohio St. at 618, 1853 WL 129 (“while we should be careful not to extend
the powers of government by far fetched implications, we should be equally
careful not to defeat the purpose of the constitution by a narrow and unreasonable
construction”).
       {¶ 79} Even assuming the validity of the presumption of constitutionality,
it is clear beyond a reasonable doubt that the CAT violates Section 3, Article XII
of the Ohio Constitution. See State ex rel. Dickman v. Defenbacher (1955), 164
Ohio St. 142, 57 O.O. 134, 128 N.E.2d 59, syllabus (“An enactment of the
General Assembly is presumed to be constitutional, and before a court may
declare it to be unconstitutional it must appear beyond a reasonable doubt that the
legislation and constitutional provisions are clearly incompatible”).
       {¶ 80} Referring to Dickman with approval, this court, in State ex rel.
Jackman v. Cuyahoga Cty. Court of Common Pleas (1967), 9 Ohio St.2d 159,
162, 38 O.O.2d 404, 224 N.E.2d 906, stated, “The power to legislate for all the
requirements of civil government is the rule, while a restriction upon the exercise
of that power in a particular case is the exception.” In this case, the restriction,
although it may be an exception, is clearly enunciated in Section 3, Article XII.



                                         25
                             SUPREME COURT OF OHIO




Today, a majority of this court has defeated the purpose of the constitution, which
clearly intends that food, a paramount necessity for over 11 million Ohioans, not
be subject to an excise tax. See Castleberry v. Evatt (1946), 147 Ohio St. 30, 33,
33 O.O. 197, 67 N.E.2d 861 (“food is the greatest necessity of life. A special tax
on food is the most unjust and obnoxious that could be levied”). The majority
accomplishes its end by narrowly and unreasonably construing numerous cases
and by ignoring the obvious purpose behind a constitutional provision that states
that “no excise tax shall be levied or collected upon the sale or purchase of food
for human consumption off the premises where sold.”               Instead of merely
presuming that the CAT is constitutional, this court has gone out of its way to
contort the mainly irrelevant case law it cites to support its conclusion.
       {¶ 81} In Cincinnati, Wilmington & Zanesville, 1 Ohio St. at 86, 1852 WL
11, we wrote that “it is always legitimate to insist that any legislative enactment,
drawn in question, is void, either, because it does not fall within the general grant
of power to that body, or because it is expressly prohibited by some provision of
the constitution.” In Fletcher v. Peck (1810), 10 U.S. (6 Cranch) 87, 128, 3 L.Ed.
162, Chief Justice Marshall wrote that “it is not on slight implication and vague
conjecture that the legislature is to be pronounced to have transcended its powers,
and its acts to be considered as void. The opposition between the constitution and
the law should be such that the judge feels a clear and strong conviction of their
incompatibility with each other.” Implication and conjecture are the building
blocks of the majority opinion. Clear and strong conviction that an excise tax
collected by the state based on the sale of food is prohibited by Section 3, Article
XII of the Ohio Constitution flows naturally from any fair reading of its
provisions. I dissent.
                               __________________
       Chester, Willcox & Saxbe, L.L.P., Gerhardt A. Gosnell II, Charles R.
Saxbe, and Donald C. Brey, for appellees.




                                          26
                               January Term, 2009




       Richard Cordray, Attorney General, Benjamin C. Mizer, Solicitor General,
Stephen P. Carney and Elisabeth A. Long, Deputy Solicitors, and Lawrence D.
Pratt and Julie Brigner, Assistant Attorneys General, for appellant.
       Maurice Thompson and Joseph Henchman, urging affirmance for amici
curiae Buckeye Institute for Public Policy Solutions and Tax Foundation.
       Hahn, Loeser & Parks, L.L.P., and Stephen Chappelear, urging affirmance
for amicus curiae Ohio Restaurant Association.
       Reed Smith, L.L.P., Sara Lima, and Kyle Sollie, urging affirmance for
amicus curiae Tyson Sales & Distribution, Inc.
       Buckley King, L.P.A., Robert J. Walter, and James E. Melle, urging
reversal for amici curiae Ohio AFL-CIO, American Federation of State, County &
Municipal Employees Ohio Council 8, Communications Workers of America
District 4, Fraternal Order of Police of Ohio, Inc., Ohio Association of
Professional Firefighters, Ohio Association of Public School Employees
(OAPSE)/AFSCME Local 4, Ohio Education Association, Ohio Federation of
Teachers, and Service Employees International Union District 1199.
       Bricker & Eckler, L.L.P., Kurtis A. Tunnell, Mark A. Engel, and Anne
Marie Sferra, urging reversal for amici curiae Ohio Manufacturers’ Association,
Ohio State Medical Association, Ohio Society of Certified Public Accountants,
Ohio Dental Association, and Ohio Chemistry Technology Council.
       Squire, Sanders & Dempsey, L.L.P., Pierre H. Bergeron, and Thomas D.
Amrine, urging reversal for amici curiae Ohio Legal Assistance Foundation,
Coalition on Homelessness & Housing in Ohio, Corporation for Ohio
Appalachian Development, Ohio Association of Free Clinics, and Ohio Council
of Behavioral Health & Family Services Providers.
       McDonald Hopkins, L.L.C., Richard C. Farrin, and Thomas M. Zaino; and
Porter, Wright, Morris & Arthur, L.L.P., and Kathleen M. Trafford, urging
reversal for amicus curiae Ohio Business Roundtable.



                                         27
                            SUPREME COURT OF OHIO




       Schottenstein, Zox & Dunn Co., L.P.A., Stephen L. Byron, Rebecca K.
Schaltenbrand, and Stephen J. Smith; and John Gotherman, urging reversal for
amici curiae Ohio Municipal League, County Commissioners Association of
Ohio, Ohio Township Association, and Buckeye State Sheriffs’ Association.
       Taft, Stettinius & Hollister, L.L.P., Fred J. Livingstone, J. Donald Mottley,
and Judson D. Stelter, urging reversal for amici curiae Ohio School Boards
Association, Buckeye Association of School Administrators, and Ohio
Association of School Business Officials.
       Shirley Sicilian and Sheldon H. Laskin, urging reversal for amicus curiae
Multistate Tax Commission.
                              __________________




                                        28
