T. H. Kirchner operated a grocery store in Delaware, Ohio. He was alleged to have carried in stock large quantities of jamaica ginger *149for the purpose of selling it as a beverage. It seems that State agents, under the guise of purchasers, bought from Kirchner some of the ginger, and by reason of his selling it to. them, he was assessed by a justice of the peace, under the Aiken Law, $1,000, claimed by Walter, Treasurer of Delaware County, as a tax.

In the Delaware Common Pleas, Kirchner instituted an action praying for an injunction to restrain Walter from collecting said' tax. The Court held that the Aiken Law here applied and Kirehner’s petition was dismissed. The Court of Appeals affirmed the judgment of the Common Pleas.

Walter endeavored to show that the sale of the Jamaica Ginger was trafficking in an intoxicating beverage. Since the Aiken Law requires a tax of $1,000 assessed on all persons selling intoxicating beverages, it is, alleges Walter, an authorized tax and not a penalty in form of a fine. Kirchner on the other hand, contends that Jamaica Ginger is not a beverage and is not an intoxicating liquor within the meaning of the Crabbe Act, 6212-14 GC and under 6064 GC. The Aiken Law is a penalty and not a tax and is therefore unconstitutional.

Walter contends that no claim is made by him that if Jamaica Ginger is not trafficked in as a beverage, the Aiken Tax should be assessed. Kirchner, in turn, says that every grocery and drug store then is liable for the tax because of their carrying Jamaica Ginger in stock.

The main question for the Supreme Court to decide upon is whether or not Jamaica Ginger is a beverage, and intoxicating.