The opinion
*476 Upon a petition +0 rebear,
Freeman, J.,
said:
A respectful petition for rehearing is presented in. this case, presenting several questions not urged in the former argument of the case, which we proceed to ■dispose of.
First, a slight error of fact is pointed out, the ■opinion saying the agreed case showed that Hartsville had not accepted the benefits provided by the taxing ■district system. We correct that by saying the agreed ■case does not show that Hartsville has accepted the benefits of such an organization.
It is now urged that we must assume the fact to be that Hartsville is a taxing district by virtue of sec. 1, ch. 11 of the bill to establish taxing districts. That section is, “that the several communities embraced in the territorial limits of all such municipal corporations in this State as have had or may have their charters abolished, or may surrender the same under the provisions of this act, are hereby created taxing districts, in order to provide for local government,” etc.
Several difficulties are in the way of this view. First, it is expressly provided by the act repealing the charter that the inhabitants shall be entitled to the benefits of a “taxing district, should the citizens thereof see proper to avail themselves of such benefit.” It is assumed by the Legislature to be optional with the town to do so, and in fact is so enacted. We cannot presume that choice has been made in favor ■ of a taxing district system. It fis a question of fact, *477 and would have to be shown. The repealing act settles this.
Another question, however, is now for the first time presented, but which is fairly raised by the. facts of the agreed case. It is, that the act repealing the-charter of the town of Hartsville did not take effect until forty days after its passage, under art. 2, sec. 20 of the Constitution of 1870. The act was passed March 28, 1879, and approved by the Governor on the 31st. The whisky in this case is charged to-have been sold on the first day of May, 1879, consequently in less than forty days after the passage of the law. The concluding clause of the statute is, "that this act shall take effect from and after its passage.” The clause of the Constitution referred to is, “No law of a general nature shall take effect until forty days after its passage, unless the same or the caption shall state that the public welfare requires it should take effect sooner.”
Now if this was a general law, in the sense of the Constitution, it would be clear the law could not take effect till forty days after its passage. But then a law repealing the charter of a village is not a general law, one equally operative in every part of the State, or upon all individuals who may bring themselves within its provisions. No town in the State could be effected by this repeal except the town of Hartsville, nor was intended to be. It is as special as a law can be, operating upon only one single village of the State. It, therefore, is not included in this provision of the Constitution — and the objection *478 fails. As to tbe objection that it does not appear that the institution of learning was organized under the law, etc., we need but say that the fact of its •existence is found by the jury, and is assumed by the whole facts of the case. We do not think this question is now properly presented, nor the objection sustainable if it could be done.
As to whether the presentment- was found on information of a member of the grand jury we need not determine, as the question should have been raised by a plea in abatement. On the whole case we see nothing in the objections now presented, and dismiss the petition.