McCowan v. Davidson

Warner, Judge. This was a bill filed by the complainants to restrain the defendant as the Tax Collector of Chatham county from collecting a tax on spirituous liquors for the year 1868, alleging there was no tax due thereon by law for that year, and also to restrain the defendant from collecting the penalty of $1,000 00 for not making their returns for liquors sold by them during the first of the year, 1869, prior to the 18th March, 1869, the date of the Act of that year. By the eighth section of the Act of 1868, providing for a specific tax on liquors sold, it is expressly provided, that that section of the Act is to go into effect from and after the first of October next. The Act is dated 5th October, 1868, but the eighth section thereof was not to go into effect until the 1st October next thereafter, which would be the 1st October, 1869. The Act of 1866 in relation to this tax on spirituous liquors, in view of the provisions of the Constitution which was adopted in 1868, cannot fairly be said to be of force in relation to this tax after the adoption of the new Constitution, and the passage of the subsequent Acts of 1868 and 1869. Our con 483 elusion then, is, that there was no law of force in 1868, subsequent to the adoption of the Constitution of 1868, which will authorize the tax collector now to collect the tax on spirituous liquors for that year, subsequent to that time, and that as the Act of 1869 was not passed until the 18th March, 1869, it would be a harsh construction of it, to say the least, that the complainants should be required to pay the assessment of $1,000 00 for not making their returns for that portion of the year 1869, prior to the date of the Act. It is true the Act is retroactive, inasmuch as it declares that the eighth section of it shall go into effect from and after the first day of January, 1869, but the defendants could not have known its provisions and requirements prior to its passage on the 18th March, 1869, so as to have regulated their conduct by it prior to that time. And now to assess them $1,000 00 for not doing what they were not required to do until the passage of the Act, would be contrary to the fundamental principles of justice and right. We therefore affirm the judgment of the Court below, refusing to dissolve the injunction. Judgment affirmed.