Upon the question of procedure, the majority of the court, consisting of Chief Justice Gardner and Justices Thomas and Bouldin concur in the opinion of Mr. Justice Foster. But Justices Brown and Livingston do not agree, and are of the opinion the petition should have been dismissed on the State's motion.
Upon the merits of the cause, a majority of the court, consisting of Chief Justice Gardner and Justices Bouldin, Brown and Livingston entertain the view that under the express provisions of section VI, page 20, Act of 1939, supra, neither the Department of Revenue nor the court on appeal has authority to extend the time for making such return when application for such extension was made some time after the expiration of the time for making such return. The view is that this provision of the Act is explicit, and there can be no foundation for an extension when the time has already expired, and there remains nothing to extend and the penalty has already attached.
The result of the holding of the majority of the court is that the decree is reversed *Page 636 and one is here rendered sustaining the demurrer interposed with the usual right to amend, and the cause is remanded.
Reversed, rendered and remanded.
GARDNER, C. J., and BOULDIN, BROWN and LIVINGSTON, JJ., concur.
THOMAS and FOSTER, JJ., dissent.
LAWSON, J., not sitting