ernment," which declares that "the tax on the estate of a decedent, prescribed by the thirty-ninth chapter of the Code of Virginia,shall be two per centum of such estate," (Sess. Acts, p. 7,) was repealed by implication by the act passed March 18, 1856, having the same title, (Sess. Acts, p. 11,) there being no such provision in the latter act. This question was noticed in the opinion of Judge Lee in Eyre v. Jacob, 14 Gratt., 422, and he inclined to think there was no such repeal, but thought it unnecessary to express an opinion upon it. Id. 440. It was not decided, and did not, in fact, arise in the case, but comes up now, for the first time, to be decided by this court. It was stated on the one side, and conceded, I believe, on the other, in the argument of this case, that it was the uniform and unvarying practice of the legislature, from the very organization of the government down to the time of the adoption of the present Code, (or, at least, the session of 1848-9, when the Code was under consideration,) to pass an annual tax law, embracing all the taxes imposed for the support of government during the current year; and no instance occurred during all that period of a permanent tax, or one which was created to endure longer than a year. The revisors proposed a change of this practice, and recommended a scheme of taxation which is substantially embodied in the Code. Their reasons for doing so are set forth in a note to chap. 40, page 230, of their report, in which they say: "It has been the usage to pass a law annually on this subject, each law being a copy, or nearly a copy, of that which preceded it; but it is a usage for which no very good reason is perceived. Formerly, when there were few subjects of taxation, the annual law was a short one. But now it occupies six pages of the Session Acts. The present chapter, though embracing every subject, curtails the length of 1860. July Term. Fox's adm'rs V. Common wealth. 1860. July Term. Fox's adm'rs V. Common wealth. the law, and will render it unnecessary to do more in any year than alter the rate of taxation when there is occasion for it. If not altered, the previous law will remain in force. Such a law as this will not only save legislation and printing, when there is no occasion to change the law, but will guard against the possible contingency of a failure on the part of the two houses of the assembly to agree upon a new revenue law.” The proposed scheme is embodied in chapters 35, 38, 39 and 40 of the Code. The first three of these chapters provide for the assessment of taxes; the 35th on property, the 38th on licenses, and the 39th on dividends, certain estates of decedents, process in suits, official seals and deeds, wills and administrations. The 40th chapter prescribes what is to be collected on each subject of taxation, and embraces four sections, declaring the yearly amount of taxes,to-wit: §1,on the persons and subjects mentioned in the 35th chapter; § 2, on the licenses mentioned in the 38th chapter; § 3, on the subjects mentioned in the 39th chapter, and § 4,on each officer of government receiving a salary out of the treasury other than the governor or a judge-the subject of this section. being mentioned in none of the preceding chapters, because the tax is directed to be deducted at the time the salary is audited and paid, and, therefore, neither the commissioner of the revenue nor the sheriff has anything to do with it. The first three of these four chapters depend on the last, and without it, or something else in its stead, are ineffectual. A repeal of the last, in whole or in part, if nothing else be adopted in the place of what is repealed, is a virtual repeal, or suspension to the same extent, of that which depends upon it. There can be no tax unless its amount, or the means of ascertaining its amount, be prescribed by law. The tax in question, called the tax on collateral inheritances, is imposed by the Code; the portions of it relat ernment," which declares that "the tax on the estate of a decedent, prescribed by the thirty-ninth chapter of the Code of Virginia,shall be two per centum of such estate," (Sess. Acts, p. 7,) was repealed by implication by the act passed March 18, 1856, having the same title, (Sess. Acts, p. 11,) there being no such provision in the latter act. This question was noticed in the opinion of Judge Lee in Eyre v. Jacob, 14 Gratt., 422, and he inclined to think there was no such repeal, but thought it unnecessary to express an opinion upon it. Id. 440. It was not decided, and did not, in fact, arise in the case, but comes up now, for the first time, to be decided by this court. It was stated on the one side, and conceded, I believe, on the other, in the argument of this case, that it was the uniform and unvarying practice of the legislature, from the very organization of the government down to the time of the adoption of the present Code, (or, at least, the session of 1848-9, when the Code was under consideration,) to pass an annual tax law, embracing all the taxes imposed for the support of government during the current year; and no instance occurred during all that period of a permanent tax, or one which was created to endure longer than a year. The revisors proposed a change of this practice, and recommended a scheme of taxation which is substantially embodied in the Code. Their reasons for doing so are set forth in a note to chap. 40, page 230, of their report, in which they say: "It has been the usage to pass a law annually on this subject, each law being a copy, or nearly a copy, of that which preceded it; but it is a usage for which no very good reason is perceived. Formerly, when there were few subjects of taxation, the annual law was a short one. But now it occupies The present chapter, six pages of the Session Acts. though embracing every subject, curtails the length of 1860. July Term. Fox's adm'rs V. Common wealth. 1860. July Term. Fox's adm'rs V. Common wealth. the law, and will render it unnecessary to do more in any year than alter the rate of taxation when there is occasion for it. If not altered, the previous law will remain in force. Such a law as this will not only save legislation and printing, when there is no occasion to change the law, but will guard against the possible contingency of a failure on the part of the two houses of the assembly to agree upon a new revenue law." The proposed scheme is embodied in chapters 35, 38, 39 and 40 of the Code. The first three of these chapters provide for the assessment of taxes; the 35th on property, the 38th on licenses, and the 39th on dividends, certain estates of decedents, process in suits, official seals and deeds, wills and administrations. The 40th chapter prescribes what is to be collected on each subject of taxation, and embraces four sections, declaring the yearly amount of taxes,to-wit: § 1,on the persons and subjects mentioned in the 35th chapter; § 2, on the licenses mentioned in the 38th chapter; § 3, on the subjects mentioned in the 39th chapter, and § 4,on each officer of government receiving a salary out of the treasury other than the governor or a judge-the subject of this section being mentioned in none of the preceding chapters, because the tax is directed to be deducted at the time the salary is audited and paid, and, therefore, neither the commissioner of the revenue nor the sheriff has anything to do with it. The first three of these four chapters depend on the last, and without it, or something else in its stead, are ineffectual. A repeal of the last, in whole or in part, if nothing else be adopted in the place of what is repealed, is a virtual repeal, or suspension to the same extent, of that which depends upon it. There can be no tax unless its amount, or the means of ascertaining its amount, be prescribed by law. The tax in question, called the tax on collateral inheritances, is imposed by the Code; the portions of it relat ing to this tax being ch. 35, § 42, p. 184, ch. 39, §§ 6-12, The Code was adopted in August, 1849, and took effect on the 1st of July, 1850. No tax law was passed at the session of the legislature of 1849-50; consequently the tax law contained in the Code, without al teration or addition, was the law of 1850. In 1850-51, (Sess. Acts, p. 3,) an act was passed imposing taxes, in addition to the taxes then imposed by law, on certain subjects. This act was an amendment of the tax law contained in the Code, which, as thus amended, was the law of 1851. In 1851 the present amended constitution was adopted, which made important changes on the subject of taxation and finance, (see Art. iv., §§ 22, 23, 24, and 25,) and went into operation at the close of that year. In 1852, at the first session of the legislature under the new constitution, it became necessary to conform the tax law to the provisions of that instrument, and several acts were passed for that purpose, as "An act concerning commissioners of the revenue," passed April 24, 1852, Sess. Acts, p. 3; an act amendatory thereof, passed May 24, 1852, Id. p. 6; “An act authorizing the issuing of licenses in certain cases," passed June 5, 1852, Id. p. 11; and "An act imposing taxes for the support of government for the fiscal year 1852–53," passed June 5,1852. Id. p. 14. The first section of the last act declares" that for a year there shall be levied and collected on the persons and subjects mentioned in the act of assembly passed on the 24th day of April, 1852, and any act amendatory thereof, the taxes following, to-wit: " and then proceeds in the subsequent sections to prescribe the amount of taxes. Though thus expressly referring 1860. July Term. Fox's adm'rs V. Common wealth. |