Metz v. Hagerty ( 1894 )

By the Court.

A majority of the court are of the opinion, that the act known as the cigarette law is constitutional; but, as the act has been repealed, it is not now important to give the reasons of the majority for so holding.

A majority of the court are, however, of opinion that the assessments provided for in said act, can not be assessed or collected, upon the traffic in cigarettes for the year 1893. The statute provides that the assessment shall be made annually, and the returns upon which the assessments are to be based, are required to be made by the assessors, with their other returns, on or before the third Monday of May, in each year, and payment is to be made, one-half on or before the 20th day of June, and the other half on or before the 20th day of December, in each year. The assessment is in contemplation of the statute to be an annual assessment, that is, for a whole year from January 1, to December 31. The statute did not take effect until the first day of August, 1893, when only five months of the year remained. The statute is in effect the same as if it had been passed on Aug'ust 1st, to be in force from and after its passage. As the time for making the returns by the assessors and the assessments by the auditors, and the June payment to the treasurer, was long past before the law took effect, it cannot be inferred, without a clear provision to that effect, that the legislature intended that an act so penal in its nature, should have the effect to impose an assessment for seven months of the year, before the law was in force. A majority of the court therefore hold, that the act in question did not authorize such assessment for the year 1893, and that the court of common pleas erred in sustaining the demurrer to the petition, and in rendering judgment in favor of the defendants below, and that the circuit court erred in affirming the judgment of the common pleas. Both judgments are therefore reversed, and cause remanded to the court of common pleas, with instructions to overrule the demurrer to° the petition, and for further proceedings, according to law.

Judgment reversed.