(concurring):
I would say that while I concur generally in the conclusions reached by the majority of the Court, and also in the line of reasoning and in the language generally, nevertheless there is one consideration essential to the determination of this case which, for want of time properly to incorporate it in the opinion of the majority of the Court, I will now endeavor to present as explicitly and concisely as possible.
*204Whilst it is apparent from the act of 1898, that the Legislature intended that taxation upon investments should continue, yet it is equally apparent therefrom that the Legislature also unquestionably intended that it should not continue for the purposes as expressed in section 12 of the act of 1897. For the repealing clause of section 7 of the amending act expressly, and the substitutionary clause impliedly shows, beyond all doubt, that the total taxes to be be collected from investments should no longer be distributed exclusively for State and county purposes alone.
Therefore, although the Legislature intended to amend the act of 1897 and to continue taxation of investments, yet it clearly did not intend to amend it by continuing the distribution provisions of section 12 thereof, unaltered.
In view of the express declaration of said repealing clause, and of the necessary implication of the substitutionary clause of said section 7, it is reasonable to presume that, in the judgment of the Legislature of 1898, the distribution provisions of section 12 of the act of 1897, were.unequal, unjust, or otherwise objectionable in their operation, and therefore should not longer continue in force. Accordingly they determined and provided, as the act of 1898 discloses, first for their repeal and discontinuance, and second for the continuance of taxation of investments for a radically different purpose.
Hence to contend that because they intended to amend the original act and continue the taxation of investments, but for a distinctly different purpose—as the said municipal purpose was— therefore the Legislature intended, in case such purpose failed, to continue the very provisions in question of section 12 of the original act, when by the provisions of section 7 of the amending act they both expressly and impliedly show, the contrary, is both an erroneous inference and an unwarranted assumption. From these actual circumstances it is manifestly more reasonable to presume that the Legislature of 1898 would have altered the title of their amending act so as to include taxation for municipal purposes, *205if they had foreseen that otherwise the said distribution clause would be unconstitutional and void.
In the absolute repeal clause of said section 7 of the act of 1898, the Legislature expressly repealed and actually annulled said provisions of section 12 of the original act. This part of the legislative purpose was unquestionably and unconditionally accomplished. The substitutionary clause providing for the intended remedy of the faults of the old section 12 failed, but by no intent or expectation of the Legislature. But because this one of their two purposes may have failed through the decision of this Court, that does not warrant us in holding that what the Legislature clearly intended should not continue, shall nevertheless be declared to continue. It is simply the failure of the Legislature' to effect one, but not the other of their manifest purposes, in the opinion of the majority of this Court.
Whilst we have no evidence of what the Legislature would have done if it had known that its intended substitutionary clause was unconstitutional and void, yet we have the inherent testimony of the amending act itself that the said provisions of section 12 of the original act were, in the judgment of the Legislature, presumably, so unequal, unjust or otherwise objectionable that they intended and declared that they should be discontinued, and no longer be operative or in force.
Under these circumstances it is not within the proper sphere or duty of the Court, either to conjecture or declare that which is exclusively a matter of legislative power and discretion. Hence if the General Assembly, having, as we consider, intentionally, absolutely and unconditionally repealed section 12 of the act of 1897, have failed, for any reason, to enact a valid substitute therefor, the remedy must be sought in legislative, and not judicial action.