¶1I concur with the conclusion of the opinion as above written, but, in my view, no penalty can rightfully attach for the non-payment of the November instalment of the tax.
¶2It is a familiar maxim of the law, in which we all concur, that penal statutes must be construed strictly; but in the application of this well-settled rule to the present case, I do not agree with the majority of the court. The penalty upon taxes, for their non-payment within a given time, is, at best, but a kind of “ smart money ” inflicted on the taxpayer for a mere failure to do an act, without any commission of wrong on his part, or any opprobious fault of omission, to be collected summarily, without trial or judgment. Such a penalty must be strictly construed.
¶3Section 172 was enacted in reference to the penalty incurred under section 155. At the time it was so enacted, there was no law declaring a penalty for the non-payment of tax due on or before the fifteenth day of November. It can not, therefore, have any reference to such delinquency. There is no section, clause or sentence in either of the two acts which imposes a penalty for the non-payment of tax,' except the delinquency occurs on the third Monday of April. No penalty is declared anywhere for the non-payment of the second instalment of tax, which need not be paid before the fifteenth day of November following. Section 4 cannot be so construed, for that refers to the action of the treasurer immediately after his settlement with the auditor, and can be applicable only to taxes where none, or less than one-half, was paid before the third Monday of *202April previous. Besides, a penalty cannot be imposed by implication or construction. It must rest upon express statute law. This is a firmly settled principle. It is very clear that the act of 1873 imposes no penalty for the nonpayment of the November instalment of taxes, and to hold that section 172 of the act of 1872 imposes such penalty, when none existed at the time, and none such has been created since, seems to me not only unwarranted by the acts themselves, but unsound in- reason, and unsafe to legal rights. In Smith v. The State of Maryland, a late case decided by the Court of Appeals of Maryland, but not yet reported, it was held, that “the repeal of a law imposing a penalty is of itself a remission of the penalty when there is no reservation.” In my judgment, this expresses the true principle upon which the case before us should be decided.