Opinion
14238.
SEPTEMBER 15, 1942.
Equitable petition. Before Judge Dorsey. Fulton superior court. April 30, 1942.
Herman Talmadge, Alex McLennan, C. N. Davie, R. E. Church, and Swift, Pease, Davidson, Swinson Chapman, for plaintiff.
Hirsch, Smith, Kilpatrick, Clay Cody, as amici curiae.
Ellis G. Arnall, attorney-general, Claude Shaw, and Andrew J. Tuten, contra.
Section 34 of the act approved January 3, 1938 (Ga. L. Ex. Sess. 1937-1938, pp. 77 et seq.), is not to be given a retroactive construction, and hence does not authorize a suit against the State for a refund of taxes paid under a void act declared unconstitutional some years before the passage of the 1938 act.
No. 14238. SEPTEMBER 15, 1942.
Eibel brought suit against the State of Georgia and J. M. Forrester as State revenue commissioner, asking judgment for twenty-six hundred dollars paid by the plaintiff into the treasury of the State, which sum represents taxes paid by him in the years 1928 and 1929 into the treasury of the State, exacted from him under color of a certain section of the revenue act approved August 25, 1927 (Ga. L. 1927, p. 56), which said section was and is unconstitutional and has been so declared by the courts. He alleges that he filed his claim for refund pursuant to section 34 of the act approved January 3, 1938 (Ga. L. Ex. Sess. 1937-38, pp. 77 et seq.), and that the same was denied. He relies on section 34 of the act last referred to, which declares, among other things that "There is hereby appropriated from the proceeds of every tax and license imposed by law a sum sufficient to refund to taxpayers any and all such taxes which may be determined to have been erroneously or illegally assessed and collected from such taxpayers under the laws of Georgia, whether paid voluntarily or involuntarily," provides the procedure for granting the refund, and concludes with these words: "Provided further, that the taxpayer whose claim for refund is denied by the commissioner under the terms of this act shall have the right to sue for refund in the superior court of the county in which said taxpayer would have a right to appeal from a judgment by the Board of Tax Appeals, as in this act provided." In the petition is set forth a message from the Governor to the General Assembly on January 11, 1937 (1 House Journal 1937, p. 565) as follows:
"To the General Assembly of the State of Georgia:
"To the Senate:
"To the House of Representatives:
"As required by statute and the constitution of the State, I wish to present this, the Executive Report, to the General Assembly of the State.
"I am attaching a file, marked Exhibit A, which is made a part of this report, showing certain taxes that have been paid into the State treasury under laws that have since been declared unconstitutional. There is no provision, without an act of the legislature, to pay these taxes to these debtors of the State who have paid these unconstitutional taxes. This is a moral obligation of the State.
"I hereby recommend legislative action to provide for the repayment of these accounts.
"Respectfully submitted, Eugene Talmadge, Governor of Georgia."
It is alleged that an exhibit A attached to the Governor's message was the evidence showing that petitioner had paid seventeen hundred dollars on April 30, 1928, and nine hundred dollars on April 30, 1929, to W. S. Richardson, tax-collector of Fulton County, who was acting as a tax-collector for the State of Georgia at said time, and who in turn paid the sum of twenty-six hundred dollars into the State treasury. On demurrer the action was dismissed. The plaintiff excepted.
In order to sustain the right of the plaintiff to sue for this refund, it is necessary to give a retrospective construction to subsection (a) of section 34 of the act approved January 3, 1938, supra; for the taxes here involved were paid some years before the passage of that act. "Laws prescribe only for the future; they can not impair the obligation of contracts, nor, usually, have a retrospective operation." Code, § 102-104. The settled rule for the construction of statutes is not to give them a retrospective operation, unless their language imperatively requires it. Bussey v. Bishop, 169 Ga. 251 ( 150 S.E. 78); Walker County Fertilizer Co. v. Napier, 184 Ga. 861, 869 ( 193 S.E. 770). Nothing in the language of the act requires such a construction. Indeed the words, "to refund to taxpayers any and all such taxes which may be determined to have been erroneously or illegally assessed and collected," etc., might well have been employed to express the idea that the legislature was looking to the future, not to the past. Unless the general rule be applied, it would be necessary to hold, not only that the lawmakers intended by the expression "which may be determined to have been erroneously" collected, to mean "which have been or may be determined," etc., but that the language imperatively requires such a construction. The fact that the Governor in his message recommended that legislation be enacted so as to include the plaintiff's claim can not read into the legislation any language which imperatively requires that it be given a retroactive construction.
There is a further consideration which leads to the view that the act was intended to operate only in the future, to wit, "appropriated from the proceeds of every tax and license imposed by law of a sum sufficient to refund to taxpayers," etc. Obviously the legislature would not have provided such guaranty without also providing funds for payment of the sums recovered, and it would be legally impossible to make such an appropriation from taxes that had been collected in the distant past and exhausted by meeting other appropriations for the expense of the government.
The lawmakers evidently intended for payment of such claims only out of funds which the act itself created, and the creation provided necessarily looks to the future.
What is perhaps even a stronger reason for the construction here adopted: This is a suit against the State. Without its consent the State can not be sued at all. In Roberts v. Barwick, 187 Ga. 691 ( 1 S.E.2d 714), the majority of this court held that the State can not be sued in any event without its express consent. One Justice concurred specially, being of the opinion that its consent could be given by clear implication. Measure the plaintiff's case by either yardstick, and it can not be said that, as to taxes paid under laws declared void before the passage of the act here relied on, the State consented to be sued. That in some cases the legislature intended to give consent is apparent; but this consent can not be enlarged by implication, as would have to be done in order to sustain the plaintiff's contention.
The demurrer attacks the act of 1938, supra, on two separate constitutional grounds which appear to be quite serious; but the ruling already made is controlling, and hence its constitutionality will not be passed upon. Sumter County v. Allen, 193 Ga. 171, 173 ( 17 S.E.2d 567), and cit.
Judgment affirmed. All the Justices concur.