I cannot agree to the opinion of my learned brother in this case. The Act of 1919, in effect, was a repeal of the Act of 1917, and the enactment of a new law. It clearly repealed the substantial parts of the Act of 1917, and enacted new sections. It repealed the section as to the rate of taxation, and other important sections.
That the Legislature could have repealed the Income Tax Law of 1917, without affecting the rights of plaintiff, there can be no question. In effect this is what was done. That it could have immediately thereafter passed a new income tax law there can be no question. This in effect is just what was done by the Act of 1919. To my mind the question of retrospective action of the Act of 1919 is not an element in the case further than determining the fact whether the Legislature can, in the middle of the year, pass a law providing for an income tax on the income of the whole year. Suppose the Legislature of 1919, in the early portion of the session, had passed an act repealing outright the Act of 1917. Suppose further, that before the close of the session the present amended act had been passed as a new income-tax law, where could plaintiff find room for complaint? His only complaint would be that the Legislature passed a law in May, effective in *Page 202 August, which levied an income tax upon the net income for the whole year of 1919. To my mind this is the only question in this case. I do not agree to the idea that half of one-per cent can be collected on income prior to August, and one and one-half per cent on income thereafter. This, because the basis of the tax, by very act itself, is the income for the year, and not a part of the year. There is no authority in either act (1917 or 1919) for fixing a tax upon income for portions of the year.
II. As suggested above, the only question is, whether or not by an act passed in May, and effective in August, an income tax can be levied upon the net income for the entire year of 1919? If so, the law is valid.
The usual basis for an income tax is the income for a year's time. This cannot be fixed and determined until the end of the year, the income of which is to be taken as the basis for the tax. So that a law passed in May and effective in August does not reach backward, or act retrospectively, because the thing upon which it acts does not come into existence until December 31st of the year in which the law became effective. The law operates upon the income of the year, as such income is determined on the last day of the year. The law imposes no new liability upon transactions already past but it only imposes a liability upon a transaction which closed on December 31, 1919. The law of 1919 was in force long before the transaction here involved was completed, or even came into existence. The individual income of 1919 might be made up of items, but the income for the year did not come into existence until December 31, 1919. In Black on Income and Other Federal Taxes, sec. 22, p. 28, it is said:
"On general principles and irrespective of explicit constitutional limitations, a statute imposing an income tax may subject to taxation the income of the citizens for the whole of the current year in which the statute is passed, that is, not only so much of the income as accrued from the date of the enactment of the law to the *Page 203 end of the year, but also that portion which accrued or was earned from the beginning of the year to the date of the law. For the year's income is treated and considered as one entire thing, not as made up of several portions or items. And hence, although the statute might be called retrospective in its operation upon a part of the first year's income, it is not retrospective in such a sense as to render it unconstitutional."
To similar effect is Endlich on Interpretation of Statutes, sec. 280, p. 377, thus: "But a statute is not retrospective in the sense under consideration, because a part of the requisites for its action is drawn from a time antecedent to its passing."
But to my mind the real answer to all contentions is that the income of the year does not and cannot come into, or have an existence, until the end of the year, and the law being in force prior to that time, is in no sense retrospective in action. For these reasons, hurriedly expressed, I dissent.