Opinion
No. 36144.
May 27, 1946. Suggestion of Error Sustained April 14, 1947.
1. STATES.
A right of action does not exist against the State except as expressly allowed by statute.
2. STATES.
An action against State officer to recover money which, except for the action, would belong to the State, is an "action against the State" which may be maintained only if expressly allowed by statute.
3. STATUTES.
Repeal of statute creating right of action or remedy not existing at common law has same effect as if statute never existed, and if statute is modified or amended effect is same as if statute previously existed in same language as the amending act unless there is a saving clause.
4. APPEAL AND ERROR. Statutes.
The rule that when right of action or remedy is created solely by statute, its repeal has same effect as if statute never existed, and modification or amendment has effect as if statute previously existed in language of amending act, applies not only to actions already instituted but also to any judgment rendered by trial court under old statute, but which judgment is covered by appeal pending at time of repealing or amendatory enactment; it being duty of appellate court to decide case according to law at time when matter is acted on by that court rather than on law theretofore existing.
5. STATES.
A state's consent to be sued is not a contract and may be repealed or modified at any time notwithstanding suits are thereby defeated.
6. APPEAL AND ERROR.
Where judgment awarding plumbing company refund of sales tax was correct at time of its rendition, but, pending appeal from judgment, sales tax statute was amended abating actions as to payment made more than three years before action is filed and as to those not barred requiring plaintiffs to allege and prove that they alone bore burden of taxes sued for, State Tax Commissioner was entitled to reversal of judgment, since rights were governed by law existing at time of determination of appeal (Code 1942, sec. 10122, and as amended March 19, 1946).
ON SUGGESTION OF ERROR. (In Banc. April 14, 1947.) [30 So.2d 91. No. 36144.]1. LIMITATION OF ACTIONS.
The limitations prescribed by sales tax statute amendment abating actions as to payment made more than three years before action is filed and as to those not barred requiring plaintiffs to allege and prove that they alone bore burden of taxes sued for are retroactive (Laws 1946, chap. 262, sec. 10).
2. LIMITATION OF ACTIONS.
A sales tax statute amendment is not unconstitutional because of provision reducing time from six to three years within which suit may be brought to recover tax paid (Laws 1946, chap. 262, sec. 10).
3. CONSTITUTIONAL LAW.
A judgment, which was correct at time of its rendition, awarding plumbing company refund of sales tax, conferred upon the company a vested right, in determining whether judgment was not enforceable because of amendment of sales tax statute pending appeal from the judgment (Laws 1946, chap. 262, sec. 10).
4. APPEAL AND ERROR.
Where judgment awarding plumbing company refund of sales tax was correct at time of its rendition, judgment was required to be affirmed notwithstanding that, pending appeal from judgment, sales tax statute was amended abating actions as to payment made more than three years before action is filed and as to those not barred requiring plaintiffs to allege and prove that they alone bore burden of taxes sued for, since the judgment conferred a vested right which could not be taken away without due process of law (Laws 1946, chap. 262, sec. 10; U.S.C.A. Const. Amends. 5, 14, sec. 1; Const. sec. 14).
5. APPEAL AND ERROR.
If appeal is with supersedeas, execution on judgment is suspended, and if appeal is without supersedeas, successful litigant may proceed immediately to execute on the judgment, and mere fact of appeal does not affect validity of judgment in lower court which remains valid until the Supreme Court holds otherwise (Code 1942, sec. 1147).
6. APPEAL AND ERROR.
Where judgment awarding plumbing company refund of sales tax was correct at time of its rendition, tax commissioner was not entitled to reversal of judgment on theory that sales tax statute amendment enacted pending the appeal from judgment in effect precluding recovery of the tax merely changed the rule of procedure and that legislature having theretofore conferred the right to sue the State could withdraw such right, where the amendment undertook to divest company of a vested right (Laws 1946, chap. 262, sec. 10; U.S.C.A. Const. Amends. 5, 14, sec. 1; Const. sec. 14).
GRIFFITH, J., SYDNEY SMITH, C.J., and L.A. SMITH, SR., J., dissenting.
APPEAL from the circuit court of Hinds county, HON. H.B. GILLESPIE, Judge.
J.H. Sumrall, of Jackson, for appellant.
The facts in this case are entirely different from the facts in the case of Singing River Tire Shop v. A.H. Stone, and therefore said case is authority for the contention of the appellant.
Singing River Tire Shop v. Stone (Miss.), 21 So.2d 580; Warburton-Beacham Supply Co. v. City of Jackson, 151 Miss. 503, 118 So. 606; Laws of 1935, Ex. Sess., Ch. 20, Sec. 169; Laws of 1940, Ch. 120, Sec. 167; Laws of 1942, Ch. 118, Sec. 167.
The enactment of Chapter 262 of the Laws of 1946, which became effective March 19, 1946, is controlling on this Court.
Laws of 1946, Ch. 262, Sec. 6.
The present suit cannot be maintained under the provisions of Chapter 262, Laws of 1946.
Hall v. State, 79 Miss. 38, 29 So. 994; Railroad Company v. Alabama, 101 U.S. 832; Railroad Company v. Tennessee, 101 U.S. 337; Code of 1942, Sec. 4387 (Code of 1892, Sec. 4248); 49 Am. Jur. 316, Sec. 99.
Suits against an officer of the state where the monetary judgment is to be paid from the state treasury is in reality a suit against the state.
State v. Woodruff, 83 Miss. 111, 36 So. 79, 170 Miss. 744, 150 So. 760; State Mineral Lease Commission v. Lawrence et al., 171 Miss. 442, 157 So. 897; Johnson v. Reeves Co., 112 Miss. 227, 72 So. 925; Mississippi Live Stock Sanitary Board v. Williams, 133 Miss. 98, 97 So. 523; Mississippi Centennial Exposition Co. v. Luderbach, 123 Miss. 828, 86 So. 517; Ayers v. Board of Trustees of Leake County Agricultural High School, 134 Miss. 363, 98 So. 847; State Highway Commission v. Gulley, 167 Miss. 631, 145 So. 351; Laws of 1946, Ch. 262, Sec. 6.
The province of the court in construing an amendment to a previous statute, when the amendment is intended to clarify the meaning of a previous enactment.
See Tiger v. Western Investment Co., 211 U.S. 286; Cope v. Cope, 137 U.S. 682; Stockdale v. Insurance Companies, 20 Wall 323; United States v. Freeman, 3 How. 556; Great Northern R. Co. v. United States, 315 U.S. 262; Hubbel v. Commissioner of Internal Revenue, 150 F.2d 516; Alexander v. Mayor of Alexander, 5 Cranch. 1, 3 L.Ed. 1; 50 Am. Jur. 328.
Legislative interpretation prevails over construction by the courts.
Plumber v. United States, 224 U.S. 137.
The mere permission of a sovereign state to be sued would not constitute a contract, and a withdrawal of a consent by the state to be sued would not violate the constitutional inhibition against the impairment of contracts.
Beers et al. v. Arkansas, 20 How. (61 U.S.) 527; Hans v. Louisiana, 134 U.S. 1; Ball v. Halsell, 161 U.S. 72; Smith v. Reeves, 178 U.S. 436; South Dakota v. North Carolina, 192 U.S. 286; Railroad Co. v. Tennessee, supra; Railroad Co. v. Alabama, supra; In re Ayres, 123 U.S. 443, 505; United States v. Jefferson Electric Manufacturing Co., 291 U.S. 386; Laws of 1946, Ch. 262; Revenue Act of 1928, Ch. 852, Sec. 424, 45 Stat. 791, 866; 26 U.S.C.A., Sec. 2424.
Consent to sue the United States on a contract is not a part of the obligation of the contract which may not be impaired, it is a privilege accorded, not the grant of a property right protected by the 5th Amendment, and may be withdrawn at any time.
Lynch v. United States, 292 U.S. 559.
A state's consent to be sued is not a contract, and it can be repealed or modified at any time at the discretion of the state, even though pending suits are thereby defeated; and when consent is withdrawn, the jurisdiction of the court in which the case is pending is at an end and the suit falls to the ground.
Railroad Co. v. Alabama, supra; Beer v. Arkansas, supra; Ex parte State, 52 Ala. 231; McDowell v. Fuller, 169 Mich. 332, 135 N.W. 265; Williamson v. Richards, 158 S.C. 534; State v. Murray et al., 79 S.C. 316; Murray v. S.C. et al., 213 U.S. 174; Pacific Gas Electric Co. v. State (Cal.), 6 P.2d 78; Owens v. State Highway Department (S.C.), 163 S.E. 473; State ex rel. Attorney General v. Murray et al. (S.C.), 60 S.E. 928; 59 C.J. 306, Sec. 462.
W.E. Gore, of Jackson, R.L. Genin, of Bay St. Louis, J.M. Talbot, of Clarksdale, T.N. Gore, of Marks, and Tally D. Riddell, of Meridian, for appellee.
The appellees here filed their declarations, under the provisions of Section 10122 of the Code of 1942, for the recovery of taxes unlawfully collected by the Chairman of the Tax Commission from them under the claim that they were taxable at the rate of 2 percent of the gross revenues derived by them from doing a general plumbing business, the claim of liability being based on the provisions of Section 10111(2) of the Code of 1942.
Under the act of 1932, gross receipts formed the tax base, without regard to whether they were received as the result of labor done by the taxpayer himself, as distinguished from that of others, or the use of machinery, or whether the sale of tangible property was involved. In 1934, it was provided that an exclusion should be made of that part of the income earned in person, by a natural person, as distinguished from income earned by employees, or from the production of tangible property or from its sale. Receipts from these sources constituted the tax base. Thus, the sale of tangible property was taxed. For the first time the act was construed to relieve professional men who did not employ others and who did not produce or sell tangible property of tax liability under it, and it was so administered by the Chairman. The difficulty in segregating the several kinds of income led to the amendment of 1936, whereby no person was taxed where the sale of tangible property was not involved. While gross income included the proceeds of sales of tangible property, its application was limited to Section 2c of the act, for that section alone taxed the sale of tangible property. Section 2f(2) positively limited the scope so as to relieve those who did not sell, and where the taxpayer derived income in part from sales and in part from business where selling was not involved, as is the case of the appellees, that derived from sales was taxable and the other was not. The appellees here paid both, they admit liability for that on sales, they have given the Chairman credit and they here seek to recover taxes paid on income which should never have been included in the tax base. The Act of 1936 taxed, for the first time, persons engaged in certain activities, specially naming them, without regard to whether the use of machinery was involved or whether the income was derived from personal efforts on the part of natural persons or from the activities of employees or whether any sale of tangible property was involved. It is submitted that if there had been any purpose to tax plumbers, they would have been included, as custom creosoters and operators of tourist camps were included in 1938, renters and leasers of personal property were in 1942, and plumbers, themselves, were in 1944.
See Laws of 1932, Sec. 1, Laws of 1934, Ch. 119, Sec. 1, Laws of 1936, Ch. 158, Sec. 1, Laws of 1938, Ch. 113, Sec. 1; Laws of 1932, Ch. 90, Sec. 2f, p. 182, as amended in Laws of 1934, Ch. 119, p. 172, in Laws of 1936, Ch. 158, p. 172, in Laws of 1938, Ch. 113, p. 90, and in Laws of 1942, Ch. 122, p. 138; Laws of 1944, Ch. 129, Sec. 10111, 1944 Supp., Vol. 7, Code of 1942; Independent Linen Service Co. v. Stone, 192 Miss. 832, 6 So.2d 110.
The transaction of the plumbing business does not involve the sale of tangible property, except as to that part of the income derived from over-the-counter sales of merchandise, by manual delivery of the articles, without the application of labor in the preparation for use in the plumbing system and without the exercise of supervision, skill, transportation, labor costs, overhead expenses and installation, the use of tools and machines, putting sewer connections and ditches and the like activities necessary to complete a system adapted to use by a customer.
State v. Austin (Miss.), 23 So. 34; Trenholm v. Miles, 102 Miss. 835, 59 So. 530; Jones v. State, 108 Miss. 530, 60 So. 987; Cook v. Stone, 192 Miss. 219, 5 So.2d 223; Warburton-Beacham Supply Co. v. City of Jackson, 151 Miss. 503, 118 So. 606; Singing River Tire Shop v. Stone (Miss.), 21 So.2d 580; Boyer-Campbell Co. v. Fry, Treasurer (Mich.), 260 N.W. 165, 98 A.L.R. 827, 829; Franklin County Coal Co. v. Ames, 359 Ill. 178, 194 N.E. 268; Bradley Supply Co. v. Ames, 359 Ill. 162, 194 N.E. 272; Blome v. Ames, 365 Ill. 456, 6 N.E.2d 841, III A.L.R. 940; Herlihy v. Nudelman, 376 Ill. 600, 12 N.E.2d 638, 115 A.L.R. 455; Atlas Supply Co. v. Maxwell, 212 N.C. 625, 194 S.E. 117; York Heating Ventilating Co. v. Flannery, 87 Pa. Sup. Ct. 19; Farr v. Zeno, 81 Pa. Sup. Ct. 509; Acorn Iron Works v. Tax Board, 295 Mich. 143, 294 N.W. 126, 139 A.L.R. 368; Sidney Stevens Implement Co. v. Hintze, 92 Utah 264, 67 P.2d 632, 111 A.L.R. 331; Code of 1942, Secs. 10104, 10108; Smith's Personal Property, Sec. 96, p. 142; 1 Parsons on Contracts 540; note in 139 A.L.R. 379; 49 Am. Jur. 569, 570, 571, Sec. 251.
We have made a comprehensive investigation of the law as laid down in every authority which bears on these questions, so far as we can find it. We have found none that specifically refers to plumbers by name. But we invite the attention of the Court to the allegation in the declarations that the appellees derived the income in question in part from installing plumbing systems and in part from installing heating plants. We can see no difference between the two that would involve the sale of tangible property in the one and not in the other.
York Heating Ventilating Co. v. Flannery, supra.
What is and what is not a sale can be determined by the law and the application of the Statute of Frauds to the transaction of the plumbing business. If contracts for installing plumbing systems are not within the statute, the business does not involve any sale of tangible property, and the income derived therefrom should never have been made a part of the base on which to calculate the tax.
Rondeau v. Wyatt, 2 H. Bl. 20; Towers v. Sir John Osborne, 1 Stra. 506; Hight v. Ripley, 19 Me. 137; Lee v. Griffin, 1 Best Smith 270, 101 English Common Law Reports 272; Moore v. Camden Marble Granite Works, 80 Ark. 274, 10 Ann. Cas. 308, 309; Wolfenden v. Wilson, 33 U.C.L.Q.B. 442; Mead v. Case, 33 Barb. (N.Y.) 202; Mechanical Boiler Cleaner Co. v. Kellner, 62 N.J.L. 544, 43 A. 599; Passaic Mfg. Co. v. Hoffman, 3 Daly (N.Y.) 495; Heintz v. Burkhard, 29 Or. 55, 43 P. 866, 31 L.R.A. 508, 54 Am. St. Rep. 777; Finney v. Apgar, 31 N.J.L. 266; Millar v. Fitzgibbons, 9 Daly (N.Y.), 505; Atwater v. Hough, 29 Conn. 508, 79 Am. Dec. 229; Pawelski v. Hargreaves, 47 N.J.L. 334, 54 Am. Rep. 162; Campbell v. Mion, 6 Ga. App. 134, 64 S.E. 571; Courtright v. Stewart, 19 Barb. (N.Y.) 455; Blewitt v. Olin, 2 N YS. 402; Flynn v. Dougherty, 91 Cal. 669, 27 P. 1080, 14 L.R.A. 230; Abbott v. Gilchrist, 28 Me. 260; O'Neil v. New York, etc., Min. Co., 3 Nev. 141; Mixer v. Howarth, 21 Pick (Mass.) 205, 32 Am. Dec. 256; Courtney v. Bridal Veil Box Factory (Ore.), 105 P. 896; Bond v. Rourk, 54 Colo. 51, 129 P. 223, Ann. Cas. 1914C, 581; Code of 1942, Sec. 268; Statute of Fraud and Perjuries, 29 Chas. II, Sec. 17; 9 Geo., IV, Ch. 14, Lord Tenterden's Act of 1829.
Counsel relies on two provisions of Section 6, Chapter 262, Laws of 1946; (1) that it is necessary to allege and prove that the taxpayer did not charge the tax to his customers, but paid it himself, and (2), that the statute of three years limitation applies to a considerable part of these claims. He relies on the point in his demurrer that the declarations state no cause of action. His further contention is that, although final judgments had been rendered in these cases and appeals to this Court had been perfected before the legislature convened, these new provisions should be applied to them now. To these contentions we answer that: (1) The statute contains no provision that it shall have any retrospective effect, in view of which it will not be so construed by this Court. (2) The right to recover, based on the duty to repay, is founded on contract, implied in law, and cannot be taken away nor will any burden be suffered to be put upon it. To do either impairs the obligation of a contract, contrary to Section 10 of the Federal Constitution and Section 16 of the Constitution of 1890. (3) It also would amount to taking the property of the appellees without due process of law, in violation of Section 14 of the Constitution of 1890 and of the Fourteenth Amendment to the Federal Constitution. (4) The appellees have a vested right to recover, which is beyond the reach of a legislative power.
Chapter 262, Laws of 1946, cannot apply to pending suits.
Miller v. Hay, 143 Miss. 471, 109 So. 16; Lawson v. Jeffries, 47 Miss. 686; Isom v. Mississippi Cent. R. Co., 36 Miss. 300; Miller v. Johnston, 144 Miss. 201, 109 So. 715; Miller v. Davis (Miss.), 109 So. 721; Constitution of 1890, Art. I, Sec. 1; 11 Am. Jur., Constitutional Law, Sec. 211.
These cases must be considered solely on the record made in the circuit court.
See De Laval Separator Co. v. Cutts, 142 Miss. 379, 107 So. 522; Schaff v. Kahn Bernstein, 121 Miss. 412, 83 So. 622; Gilliam v. McLemore, 141 Miss. 253, 106 So. 99, 43 A.L.R. 79; Weaver v. Turner, 125 Miss. 250, 87 So. 641; Washington v. State, 93 Miss. 270, 46 So. 539; National Surety Co. v. Board of Sup'rs of Holmes County, 120 Miss. 706, 83 So. 8; Bowman v. State, 141 Miss. 115, 106 So. 264; Vicksburg Manufacturing Supply Co. v. J.H. Jaffray Construction Co., 94 Miss. 282, 49 So. 116; Atlantic Horse Ins. Co. v. Nero, 108 Miss. 321, 66 So. 780; Hemphill v. Smith, 128 Miss. 586, 91 So. 337, 24 A.L.R. 1456; Code of 1942, Sec. 1945; Constitution of 1890, Sec. 146.
Chapter 262, Laws of 1946, has no retrospective effect.
Eastin v. Vandorn, Walker (1 Miss.) 214; Davis v. Minor, 1 How. (2 Miss.) 183; Stewart v. Davidson, 10 Smedes M. (18 Miss.) 351; Hooker v. Hooker, 10 Smedes M. (18 Miss.) 599; Garrett v. Beaumont, 24 Miss. 377; Carson v. Carson, 40 Miss. 349; Power v. Calvert Mortgage Co., 112 Miss. 319, 73 So. 51; Pan-American Petroleum Corporation v. Miller, 154 Miss. 565, 122 So. 393; Laws of 1944, Sec. 7, amending Sec. 10119, Code of 1942; Sutherland, Statutory Construction (2 Ed.), Secs. 641, 642.
The common law action of assumpsit, for money had and received, is maintainable for the recovery of taxes unlawfully collected.
McGehee v. Fitts, 65 Miss. 357, 4 So. 93; Pevey v. Jones, 71 Miss. 647, 16 So. 252, 42 Am. St. Rep. 486; Pascagoula Hardwood Co. v. Chisholm, 164 Miss. 242, 144 So. 710; Tuttle v. Everett, 51 Miss. 27; City of Vicksburg v. Butler, 56 Miss. 72; Musgrove v. City of Jackson, 59 Miss. 390; Buntyn v. National Mutual Building Loan Association, 86 Miss. 454, 38 So. 345; Stone v. Kerr, 194 Miss. 646, 10 So.2d 845; Viator v. State Tax Commission, 193 Miss. 266, 5 So.2d 487; Rigby v. Stone, 194 Miss. 775, 11 So.2d 823, 13 So.2d 230; City of Jackon v. Newman, 59 Miss. 385, 42 Am. Rep. 367; Heywood v. Northern Assurance Co., 133 Minn. 360, 158 N.W. 632, Ann. Cas. 1918D, 241; Bosworth v. Wolfe, 146 Wn. 615, 264 P. 413, 56 A.L.R. 1117; Stone et al. v. White, 301 U.S. 532, 57 S.Ct. 851; Ford Motor Co. v. State, 231 N.W. 883; Atchison, Topeka Santa Fe R. Co. v. O'Connor, 223 U.S. 280, 32 S.Ct. 216, Ann. Cas. 1913C, 1050, note p. 1052, 1053; Bailey v. Town of Goshen (Conn.), 87 Am. Dec. 191; Code of 1942, Secs. 10120, 10122; 4 Am. Jur., Assumpsit, Sec. 20, p. 509, note 16; 51 Am. Jur., Taxation, Sec. 1183.
The statute is unconstitutional, as applied to accrued causes of action.
Richards v. City Lumber Co., 101 Miss. 678, 57 So. 977; Tucker Printing Co. v. Board of Sup'rs of Attala County, 171 Miss. 608, 158 So. 336; Wisconsin Lumber Co. v. State, 97 Miss. 571, 54 So. 247; Constitution of 1890, Sec. 16; United States Constitution, Sec. 10.
No statute of limitations can be made retroactive without providing a reasonable time within which suits may be brought on causes of action which has accrued.
Priestly v. Watkins, supra; Briscoe v. Anketell, 28 Miss. 361, 61 Am. Dec. 553; Richards v. City Lumber Co., supra; Bell v. Union Planters' Bank Trust Co., 158 Miss. 486, 130 So. 486; Mississippi Cent. R. Co. v. City of Hattiesburg, 163 Miss. 311, 141 So. 897; Old Men's Home v. Lee's Estate, 191 Miss. 669, 2 So.2d 791; Coombes v. Getz, 285 U.S. 434, 52 S.Ct. 435; Duke Power Co. v. South Carolina Tax Commission, 81 F.2d 513; 12 Am. Jur., Contracts, Sec. 6.
The rule of strict construction applies equally to ad valorem and privilege taxes.
Wilby v. State, 93 Miss. 767, 47 So. 465, 23 L.R.A. (N.S.) 677; Middleton v. Lincoln County, 122 Miss. 673, 84 So. 907; Scott v. Hossley, 142 Miss. 611, 107 So. 760; Miller v. Illinois Cent. R. Co., 146 Miss. 422, 111 So. 558; Board of Levee Com'rs for Yazoo Mississippi Delta v. Howze Mercantile Co., 149 Miss. 843, 116 So. 92; State ex rel. Knox v. Union Tank Car Co., 151 Miss. 797, 119 So. 310; Pan-American Petroleum Corp. v. Miller, 154 Miss. 565, 122 So. 393; L.H. Conard Furniture Co. v. Mississippi State Tax Commission, 160 Miss. 185, 133 So. 652; Gully v. Jackson International Co., 165 Miss. 103, 145 So. 905; Town of Utica v. State ex rel. Rice, 166 Miss. 565, 148 So. 635; Frazier v. Stone, 171 Miss. 56, 156 So. 596; State ex rel. Rice v. Louisiana Oil Corporation, 174 Miss. 585, 165 So. 423; Texas Co. v. Wheeless, 185 Miss. 799, 187 So. 880; Craig v. Walker, 191 Miss. 424, 2 So.2d 806; Gulf S.I.R. Co. v. Harrison County, 192 Miss. 114, 4 So.2d 717; Independent Linen Service Co. v. Stone, 192 Miss. 832, 6 So.2d 110; Stone v. Allis-Chalmers Mfg. Co., 193 Miss. 294, 8 So.2d 228; Chickasaw County v. Gulf, M. O.R. Co., 195 Miss. 754, 15 So.2d 348; Vanzandt v. Town of Braxton, 194 Miss. 863, 14 So.2d 222.
W.E. Gore, of Jackson, for appellees, on suggestion of error.
No retrospective effect should be given to the statute.
Hester v. Copiah County, 186 Miss. 716, 191 So. 496; United States Fidelity Guaranty Co. v. Maryland Casualty Co., 191 Miss. 103, 199 So. 278; City of Lumberton v. Schrader, 176 Miss. 272, 168 So. 77; Richards v. City Lumber Co., 101 Miss. 678, 57 So. 977; Power v. Calvert Mortgage Co., 112 Miss. 319, 73 So. 51; State, for use of Robertson, v. Miller, 144 Miss. 614, 109 So. 900, 276 U.S. 174, 48 S.Ct. 266, 72 L.Ed. 517; Jefferson Standard Life Ins. Co. v. Dorsey, 178 Miss. 852, 173 So. 669; Garrett v. Beaumont, 24 Miss. 377; Pan-American Petroleum Corporation v. Miller, 154 Miss. 565, 122 So. 393; Hooker v. Hooker, 10 Smedes M. (18 Miss.) 599; State ex rel. Knox v. Union Tank Car Co., 151 Miss. 797, 119 So. 310; Bell v. Union Planters' Bank Trust Co., 158 Miss. 486, 130 So. 486, 161 Miss. 275, 131 So. 257; Mississippi Cent. R. Co. v. City of Hattiesburg, 163 Miss. 311, 141 So. 897; Carson v. Carson, 40 Miss. 349; California Co. v. State Oil Gas Board, 200 Miss. 824, 849, 27 So.2d 542, 548, 28 So.2d 120; Barrington v. Barrington, 200 Ala. 315, 76 So. 81; Bouchillion v. Jordan, 40 F. Supp. 354; 25 Southern Digest, "Statutes", Key Nos. 261-277.
The judgments gave vested rights which cannot be taken away from the appellees by legislative action.
Singing River Tire Shop v. Stone (Miss.), 21 So.2d 580; Cook v. Stone, 192 Miss. 219, 5 So.2d 223; Hooker v. Hooker, supra; Garrett v. Beaumont, supra; Adams v. Tonella, 70 Miss. 701, 14 So. 17, 20; Pendleton v. Prestridge, 12 Smedes M. (20 Miss.) 302; Stewart v. Davidson, 10 Smedes M. (18 Miss.) 351; Bank of Mississippi v. Duncan Marshall, 56 Miss. 166, 172, 173; Mississippi Cent. R. Co. v. City of Hattiesburg, supra; Town of Macon v. Patty, 57 Miss. 378; Coulson v. Harris, 43 Miss. 728; Stone v. Kerr, 194 Miss. 646, 10 So.2d 845; Rigby v. Stone, 194 Miss. 775, 11 So.2d 823; National Surety Co. v. Miller, 155 Miss. 115, 124 So. 251; Commercial Bank of Natchez v. Chambers, 8 Smedes M. (15 Miss.) 9; Musgrove v. Vicksburg Nashville R. Co., 50 Miss. 677, 782; Deposit Guaranty Bank Trust Co. v. Williams, 193 Miss. 432, 9 So.2d 638; Crowe v. Cartledge, 99 Miss. 281, 54 So. 947, Ann. Cas. 1913E, 470; Johnson v. Reeves Co., 112 Miss. 227, 72 So. 925; Bradstreet Co. v. Jackson, 81 Miss. 233, 32 So. 999; Independent Linen Service Co. v. Stone, 192 Miss. 832, 6 So.2d 110; McCullough v. Commonwealth of Virginia, 172 U.S. 102, 19 S.Ct. 134, 43 L.Ed. 382; Forbes Pioneer Boat Line v. Board of Com'rs of Everglades Drainage Dist., 77 Fla. 742, 82 So. 346, 80 Fla. 252, 86 So. 199, 258 U.S. 338, 42 S.Ct. 325, 66 L.Ed. 647; Re Ayers, 123 U.S. 443, 31 L.Ed. 216; Hodges v. Snyder, 261 U.S. 600, 43 S.Ct. 435, 67 L.Ed. 819; Hoyt Metal Co. v. Atwood, 289 F. 453; United States v. Jefferson Electric Manufacturing Co., 291 U.S. 401; Colby v. Dennis, 36 Me. 9; Atkinson et al. v. Dunlap, 50 Me. 111; Code of 1880, Sec. 1831; Code of 1930, Sec. 430; Code of 1942, Secs. 1340, 10122; Constitution of 1890, Secs. 24, 159(a), subsec. (f); Constitution of United States 11th Amendment; Constitution of the United States, Revised and Annotated, 1938, Senate Document 232; Laws of 1877, Chs. 7, 9; 3 Am. Jur., Appeal Error, Sec. 1157; 49 Am. Jur. 316, Sec. 99; 5 U.S. Sup Ct. Digest, Constitutional Law, Key No. 111, Vested Rights, Key No. 92, Due Process of Law, Key No. 251.
Applying the three year limitation makes House Bill No. 311 unconstitutional.
Franklin v. Neill Clark, 146 Miss. 157, 110 So. 368; Harrington v. Yazoo M.V.R. Co., 145 Miss. 887, 111 So. 444; Garrett v. Beaumont, 24 Miss. 377; Boyd v. Barrenger, 23 Miss. 269; West Feliciana R. Co. v. Stockett, 13 Smedes M. (21 Miss.) 395; Brown v. Wilcox, 14 Smedes M. (22 Miss.) 127; Nash v. Fletcher, 44 Miss. 609; Davis v. Minor, 1 How. (2 Miss.) 183; Wilkinson v. Barringer, 23 Miss. 319; Benson v. Stewart, 30 Miss. 49; Morgan v. Hazlehurst Lodge, 53 Miss. 665; Bell v. Union Planters' Bank Trust Co., supra; Briscoe v. Anketell, 28 Miss. 361; Cameron v. Louisville, New Orleans and Texas Railway Co., 69 Miss. 78, 10 So. 554; Bramlett v. Wetlin, 71 Miss. 902, 15 So. 934; Drane v. Newsom, 73 Miss. 422, 19 So. 200; Wilkinson v. Moore, 27 Miss. 365; Branch Bank of Alabama v. Windham, 31 Miss. 317; Carothers v. Hurley, 41 Miss. 71; Newman v. Foster, (Miss.) 1 So. 505; Moore v. Lobbin, 26 Miss. 304; Whitehead v. Kirk, 104 Miss. 776, 61 So. 737; Bank of Philadelphia v. Posey, 130 Miss. 530, 92 So. 840; Henry v. State, 87 Miss. 1, 88 Miss. 843, 39 So. 856; Re Opinion of the Justices, 148 Miss. 427, 114 So. 887; Power, Secretary of State, v. Robertson, 130 Miss. 188, 93 So. 769; Board of Sup'rs of Forrest County v. Melton, 123 Miss. 615, 86 So. 369; Cumberland Tel. Tel. Co. v. State, 135 Miss. 835, 100 So. 378; Mabray v. School Board of Carroll County, 162 Miss. 632, 137 So. 105; Dixie Greyhound Lines, Inc., v. Mississippi Railroad Commission, 174 Miss. 1, 163 So. 443; Mississippi Railroad Commission v. Mobile O.R. Co., 115 Miss. 101, 75 So. 778; Anderson v. Franklin County School Board, 164 Miss. 646, 146 So. 134; Board of Sup'rs of Marshall County v. Stephenson (Miss). 130 So. 684; Illinois Cent. R. Co. v. Mississippi Railroad Commission, 143 Miss. 805, 109 So. 868; State ex rel. Greaves v. Henry, 87 Miss. 125, 40 So. 152; Dixie Greyhound Lines, Inc., v. Mississippi Public Service Commission et al., 190 Miss. 704, 200 So. 579; City of Jackson v. McLeod, 199 Miss. 676, 24 So.2d 319; Lawson v. Jeffries, 47 Miss. 686, 12 Am. Rep. 342; Hester v. Copiah County, 186 Miss. 716, 191 So. 496; Terry v. Anderson, 95 U.S. 628, 24 L.Ed. 365; Atchafalaya Land Co. v. Williams Cypress Co., 258 U.S. 190, 42 S.Ct. 284, 66 L.Ed. 559; Hathaway v. Merchants Loan Trust Co., 218 Ill. 580, 4 Ann. Cas. 164; Thomas v. Higgs, 68 W. Va. 152, 69 S.E. 654, Ann. Cas. 1912A, 1030; Herrick v. Boquillas Land, etc. Co., 200 U.S. 102, 26 S.Ct. 192, 50 L.Ed. 388, affirming 8 Ariz. 258, 72 P. 924, 9 Ariz. 62, 76 P. 612; U.S. Fidelity, etc., Co. v. United States, 209 U.S. 306, 28 S.Ct. 537, 52 L.Ed. 804, 151 F. 534; United States v. U.S. Fidelity, etc., Co., 171 F. 247; U.S. Fidelity, etc., Co. v. United States, 178 F. 692, 102 C.C.A. 192, 172 F. 268; United States v. U.S. Fidelity, etc., Co. 178 F. 721; Tipton v. Smythe, 78 Ark. 392, 8 Ann. Cas. 521, note; Sohn v. Waterman, 17 Wall. (U.S.) 596; Koshkonong v. Burton, 104 U.S. 668; Vance v. Vance, 108 U.S. 514, 2 S.Ct. 854; Mitchell v. Clark, 110 U.S. 633, 4 S.Ct. 312; In re Brown, 135 U.S. 701, 10 S.Ct. 972; Wheeler v. Jackson, 137 U.S. 245, 11 S.Ct. 76; Sanarac Land, etc., Co. v. New York Comptroller, 177 U.S. 318, 20 S.Ct. 642; Chapman v. Douglas County, 107 U.S. 348, 2 S.Ct. 62, 27 L.Ed. 378; McGahey v. State of Virginia, 135 U.S. 662, 10 S.Ct. 972, 34 L.Ed. 304; Webster v. Cooper, 14 How. 488, 14 L.Ed. 510; Hawkins v. Barney, 30 U.S. (5 Pet.) 458; Charles River Bridge v. Warren Bridge, 36 U.S. (11 Pet.) 420; Satterlee v. Matthewson, 16 Serg. R. 169; Code of 1892, Sec. 2461; Code of 1942, Sec. 722, 1207; Laws of 1926, Ch. 153; Laws of 1944, Chs. 79, 123; Constitution of 1890, Secs. 75, 100.
T.N. Gore and Ney M. Gore, Jr., both of Marks, amici curiae on suggestion of error.
The judgment rendered below was a final judgment.
Singing River Tire Shop v. Stone (Miss.), 21 So.2d 580; Cook v. Stone, 192 Miss. 219, 5 So.2d 223; Cook's Heirs v. Bay, 4 How. (5 Miss.) 485; Cromwell v. Craft, 47 Miss. 44; Humphreys v. Stafford, 71 Miss. 135, 13 So. 865; Gulf S.I.R. Co. v. Williams, 109 Miss. 549, 68 So. 776, 69 So. 215; States ex rel. Brown v. Poplarville Sawmill Co., 119 Miss. 432, 81 So. 124; Blum v. Planters' Bank Trust Co. of Opelousas, La., 154 Miss. 800, 122 So. 784; Bowman v. Empson, 162 Miss. 13, 138 So. 341; Johnson v. Mississippi Power Co., 189 Miss. 67, 196 So. 642; Code of 1942, Sec. 10122; 31 Am. Jur., Judgments, Secs. 434, 435; 2 Am. Jur., Appeal and Error, Sec. 22.
The final judgment rendered below created a vested property right in the appellees.
Marshall v. King, 24 Miss. 85; Planters' Bank v. Calvit, 3 Smedes M. (11 Miss.) 143, 41 Am. Dec. 616; Michie v. Planters' Bank, 4 How. (5 Miss.) 130, 34 Am. Dec. 112; Williams Freeman v. Bosworth, 102 Miss. 160, 59 So. 6; Code of 1942, Secs. 1554, 1555; 30 Am. Jur., Judgments, Secs. 142, 144, 145; 31 Am. Jur., Judgments, Secs. 296, 300, 304, 333; Am. Eng. Encyclopaedia of Law (2 Ed.), Property, Sec. IV, Choses in Action.
The fact that an appeal was taken did not divest appellees of the property rights which accrued under the judgment below.
Planters' Bank v. Calvit, supra; Kilpatrick v. Dye's Heirs, 4 Smedes M. (12 Miss.) 289; Wade v. American Colonization Society, 4 Smedes M. (12 Miss.) 670; Grayson v. Harris, 102 Miss. 57, 58 So. 775, 59 So. 1, Ann. Cas. 1914C, 1219; Williams Freeman v. Bosworth, supra; Thalheim v. Camp Phosphate Co., 48 Fla. 190, 37 So. 523; Code of 1942, Sec. 1147, 1210; Laws of 1946, Ch. 262, amending Sec. 10122, Code of 1942; 3 Am. Jur., Appeal and Error, Secs. 521, 523, 536, 537, 543.
House Bill No. 311 should not be construed as retrospective.
Davis v. Minor Wife, 1 How. (2 Miss.) 183; United States Fidelity Guaranty Co. v. Maryland Casualty Co., 191 Miss. 103, 199 So. 278; Planters' Bank of Mississippi v. Calvit, supra; Hooker v. Hooker, 10 Smedes M. (18 Miss.) 599; Garrett v. Beaumont, 24 Miss. 377; Richards v. City Lumber Co., 101 Miss. 678, 57 So. 977; Power v. Calvert Mortgage Co., 112 Miss. 319, 73 So. 51; State, for Use of Robertson, v. Miller, 144 Miss. 614, 109 So. 900, 276 U.S. 174, 48 S.Ct. 266, 72 L.Ed. 517; State ex rel. Knox v. Union Tank Car Co., 151 Miss. 797, 119 So. 310; Pan-American Petroleum Corporation v. Miller, 154 Miss. 565, 122 So. 393; Jefferson Standard Life Ins. Co. v. Dorsey, 178 Miss. 852, 173 So. 669; Bell v. Union Planters' Bank Trust Co., 158 Miss. 486, 130 So. 486; Mississippi Cent. R. Co. v. City of Hattiesburg, 163 Miss. 311, 141 So. 897; City of Lumberton v. Schrader, 176 Miss. 272, 168 So. 77; Hester v. Copiah County, 186 Miss. 716, 191 So. 496; Calder Wife v. Bull Wife, 3 Dallas' Reports 386, 1 L.Ed. 648; Code of 1942, Sec. 10122, as amended by Laws of 1946, Ch. 262, Sec. 6.
If the statute be applied retrospectively, it is a ursurpation of the judicial power by the legislature and therefore is unconstitutional.
Commercial Bank of Natchez v. Chambers, 8 Smedes M. (15 Miss.) 9; Stewart v. Davidson, 10 Smedes M. (18 Miss.) 351; Hooker v. Hooker, supra; Garrett v. Beaumont, supra; Isom v. Mississippi Cent. R. Co., 36 Miss. 300; Lawson v. Jeffries, 47 Miss. 686; Miller v. Hay, 143 Miss. 471, 109 So. 16; Hinton v. Board of Sup'rs of Perry County, 84 Miss. 536, 36 So. 565; State ex rel. Knox v. Board of Sup'rs of Grenada County, 141 Miss. 701, 105 So. 541; McCullough v. Commonwealth of Virginia, 172 U.S. 102, 19 S.Ct. 134, 43 L.Ed. 382; Langever v. Miller, 124 Tex. 80, 76 S.W.2d 1025, 96 A.L.R. 836; Calder v. Bull, supra; Trustees of Dartmouth College v. Woodward, 1 N.H. 111; Constitution of 1890, Art. 1, Secs. 1, 2, 5, 6, 24, 33, 144 172; 30 Am. Jur., Judgments, Sec. 146; 31 Am. Jur., Judgments, Sec. 883; Federalist Nos. 44, 47, 78, 81.
Argued orally by J.H. Sumrall, for appellant, and by W.E. Gore, for appellee.
During the period involved in this action appellees were engaged in the plumbing business, and in their activities in said business, according to the allegations of the declaration, appellees "supplied materials and labor, and installed said plumbing and said heating plants, and supplied the instrumentalities for doing said work, and the gross income received therefrom was based on a fixed, lump sum price, for said material, labor and workmanship, and no part of said gross income was derived from the sale of tangible property and no part of said material was sold by the (plaintiffs) appellees to their customers." The allegations are further that the State Tax Commissioner demanded of appellees the payment of a sales tax on the gross income from said activities on the claim that there was involved therein the sale of personal property, which tax was paid by appellees and the action was to recover the amounts so paid, as allowed by Section 10122, Code 1942, as that section read when the action was instituted.
The facts as above stated were admitted, and on the trial the circuit court awarded judgment to the plaintiffs, which was correct as the law existed at the time of the rendition of the judgment, the transaction in question involving a work of service not sales of personal property, as was ruled by us in Singing River Tire Shop v. Stone, 21 So.2d 580, and as foreshadowed in Cook v. Stone, 192 Miss. 219, 5 So.2d 223.
The judgment was rendered on December 4, 1945, and the Tax Commissioner took an immediate appeal therefrom. Pending the appeal the Legislature, at its recent session, amended the said Section 10122, Code 1942, the amended act having been approved on March 19, 1946, by which two limitations or provisos were annexed to the statute allowing suit against the State Tax Commissioner, these provisos being as follows:
"Provided, however, that in any such suit, the plaintiff must allege and prove that he alone bore the burden of the tax sued for, and did not directly or indirectly collect the tax from his customers. It being the declared purpose of this section to make certain that any taxes refunded will go to the one who has borne the burden of the illegal tax, and therefore is entitled in justice and good conscience to such relief, and is therefore the real party in interest. It shall not be necessary for the taxpayer to protest against the payment of the tax or to make any demand to have the same refunded in order to maintain such suit. In any suit to recover taxes paid or to collect taxes the court shall adjudge costs to such extent and in such manner as may be deemed equitable.
"Provided, further, that all suits to recover taxes under this section shall be filed within three years next after the payment of such taxes."
The real question before the Court is, therefore, what is the effect of the subsequent act of the legislature on the judgment herein rendered. Upon that inquiry two propositions are beyond the range of debate in this State, and the first is that no right of action exists against the State except as allowed and prescribed by statute, and this in express terms and not by implication; and the second is that an action against a state officer to recover money which except for the action would belong to the State, is an action against the State within the rule first stated. And it is further settled in our jurisprudence that when a right of action or remedy is created solely by statute and does not exist at common law, the repeal of the statute has the same effect as had the statute never existed; or, if the statute is modified or amended the effect is the same as had the statute previously existed all the while in the same language as the amending act, unless there is a saving clause, and there is none here. Deposit Guaranty Bank Tr. Co. v. Williams, 193 Miss. 432, 9 So.2d 638, and the cases therein cited.
Moreover, the effect of the rule is that it applies not only to actions already instituted, but also to any judgment rendered by the trial court under the old statute, but which judgment is covered by an appeal pending at the time of the repealing or amendatory enactment, it being the duty of the appellate court to decide the case according to the law at the time when the matter is acted on by that court rather than on the law theretofore existing. Musgrove v. Vicksburg N.R. Co., 50 Miss. 677, 682, and compare Crow v. Cartledge, 99 Miss. 281, 54 So. 947, Ann. Cas. 1913E, 470. This is the rule which prevails as well in other jurisdictions, as may be seen by the text and the note cases, 59 C.J. pp. 1189, 1190, and 3 Am. Jur. pp. 668, 669, Sec. 1157.
It is sufficiently well settled also that a state's consent to be sued is not a contract and may be repealed or modified at any time even though pending suits are thereby defeated. 59 C.J. p. 306, and cases there cited. The rule is more fully stated in 49 Am. Jur. p. 316, Sec. 99, as follows:
"After the legislature enacts a statute giving the consent of the state to the bringing of suits against it, it may at any time it thinks proper withdraw that consent and thus deny the right of a suitor to maintain an action against the state, or it may change the condition under which it will permit the state to be sued. It may withdraw the consent or change the conditions and requirements after a claim against the state arises, and make it effective as to that claim, and even after suit is instituted on a claim the state may withdraw its consent or impose different conditions, thus causing the abatement of the pending suit. A change in the conditions upon which the consent of the state to suits against it may be invoked, or the withdrawal of that consent, does not, although made effective as to existing claims, impair the obligation of contracts. . . ."
It follows from what has been said that the amended act abates the action as to all payments made more than three years before the suit was filed, and that as to those not barred the plaintiffs must allege and prove that they alone bore the burden of the taxes sued for, that is, that they themselves paid it, and did not collect it from their customers.
Reversed and remanded.
After mature consideration, Judges ALEXANDER, McGEHEE and the writer think the judgment in this case should be affirmed. The other three members of the Court are of the opinion that the judgment should be reversed because of the provisions of the act of the Legislature quoted in the original opinion herein. That situation results in an affirmance of the judgment below, and a sustaining of the suggestion of error.
Appellee contends mainly that the limitations prescribed by Section 10, Chapter 262, Laws 1946, quoted in the original opinion herein, (1) are not retroactive, but, if so, the provisions violate the Constitution and are invalid because (2) one provision reduces the time from six to three years within which suit may be brought to recover the tax; and (3) the other undertakes to deprive appellee and any others like situated of a vested right under a final judgment. It is the opinion of a majority of the Court that the first two contentions should not be sustained, but the three judges above named think the third contention is well taken. This opinion presents their views on that question.
The judgment in the lower court adjudicated that appellant owed appellee a sum of money. On the appeal here, this Court stated [26 So.2d 350] ". . . and on the trial the circuit court awarded judgment to the plaintiffs, which was correct as the law existed at the time of the rendition of the judgment . . ." In other words, on the merits of this case, there was no ground for reversal and the judgment of the lower court was correct. If we reverse the lower court and set aside its judgment, it will be because of the passage by the Legislature of the act in question. That act, and that act alone, will divest the judgment creditor of all rights under the judgment, and as it appears from the briefs, will prevent that creditor from recovering any other judgment hereafter. This situation presents three questions: (1) Did the judgment of the court below confer upon appellees a vested right; (2) if so, can that right be taken away by legislative fiat; and (3) whether the fact that the State is a party to the suit changes the rule and the effect resulting from the legislative act.
On the first question, this Court in Lawson v. Jeffries, 47 Miss. 686, 12 Am. Rep. 342, quoting from Colby v. Dennis, 36 Me. 9, in referring to a final judgment in the lower court, said: ". . . in other words, by force of the constitution and the existing laws, that judgment had become a vested right, and incapable of annihilation except by payment and satisfaction."
In the famous case of McCullough v. Commonwealth of Virginia, 172 U.S. 102, 19 S.Ct. 134, 43 L.Ed. 382, the Supreme Court of the United States said: "A rightful judgment against the state gives a vested right . . ."
Specifically, appellee had a right to the money. The State of Mississippi owed it, and this Court, in its opinion, said the lower court was correct. It is impossible to escape the conclusion that this judgment conferred upon appellee a vested right. If other authority is needed to support that conclusion, it will be found in the quotations from other cases hereinafter discussed.
If that be true, can these rights be taken away merely by legislative fiat? Article V of the Constitution of the United States provides that one may not "be deprived of life, liberty, or property, without due process of law." Article XIV, Sec. 1, prohibits any order depriving "any person of life, liberty, or property, without due process of law." Section 14 of the Mississippi Constitution provides: "No person shall be deprived of life, liberty, or property except by due process of law."
The holdings of the Mississippi Court are in accord with our conclusion. In Stewart v. Davidson, 10 Smedes M. 351, this Court said: "The legislature cannot open or reverse a judgment rendered according to existing laws. This is judicial power. And if they could authorize this to be done by bill of review, they could prescribe any other mode, and thus strip judgments of their solemnity."
In Hooker v. Hooker, 10 Smedes M. 599, this Court observed: "Indeed, the power of the legislature to open a judgment, and unsettle rights previously ascertained and declared by a competent tribunal, would hardly be asserted."
In the case of Garrett v. Beaumont, 24 Miss. 377, this Court further observed: "If the legislature can give a party a defense which did not exist against a suit, at the time it was commenced, it is difficult to see why it could not in a more direct mode, and, equally as consistent with justice and equity, order the plaintiff to dismiss his suit."
In Adams v. Tonella, 70 Miss. 701, 14 So. 17, 20, this Court said: "It has long since been decided in this state that it is not within the legislative power to provide by retroactive legislation for the reopening of judgments final in their nature, and under which rights had become vested."
In Lawson v. Jeffries, supra, the Court remarked: "If a legislative body may grant a new trial, it may order a continuance, annul a judgment, suspend a trial, direct the judgment to be entered, and otherwise interfere with the discretion and independence of the judiciary. The evils that would flow from such an assertion of legislative power are too apparent to be enumerated, and need not be here undertaken."
Nor does Musgrove v. Vicksburg Nashville R.R. Co., 50 Miss. 677, cited in the original opinion herein, hold to the contrary. In that case, this Court, in part, said: ". . . if rights have accrued and become vested under a law, a subsequent repeal shall not operate to destroy or divest them. Whatever has matured into, and become vested as a right of property or a right to a chose in action, as a bond or other security or credit upon the faith of a law, a subsequent repeal does not annihilate the right, especially when held by third persons. We accept the doctrine of the law to be, that the repeal of a statute necessarily terminates all proceedings under it, unless rights have accrued which can not be divested."
Nor does Crow v. Cartledge, 99 Miss. 281, 54 So. 947, 948, Ann. Cas. 1913E, 470, in our opinion, hold otherwise. In referring to the effect of a repealing statute upon the statute repealed, the Court said the repealed statute "is considered as a law which never existed, except for suits which were commenced and concluded while the repealed law was in force."
49 Am. Jur. 316, Sec. 99, states the general rule to be that: "Where, however, a judgment against the state has given a vested right, such right cannot be taken away by the repeal of a statute which authorized the state to be sued."
That is the rule which is announced by the Supreme Court of the United States, which, of course, is the final authority on the question.
In McCullough v. Commonwealth of Virginia, supra [ 172 U.S. 102, 19 S.Ct. 142], that Court said: "But there are more substantial reasons than this for not entertaining this motion. At the time the judgment was rendered in the circuit court of the city of Norfolk the act of 1882 was in force, and the judgment was rightfully entered under the authority of that act. The writ of error to the court of appeals of the state brought the validity of that judgment into review, and the question presented to that court was whether, at the time it was rendered, it was rightful or not. If rightful, the plaintiff therein had a vested right, which no state legislation could disturb. It is not within the power of a legislature to take away rights which have been once vested by a judgment. Legislation may act on subsequent proceedings, may abate actions pending, but when those actions have passed into judgment the power of the legislature to disturb the rights created thereby ceases."
In Hodges v. Snyder, 261 U.S. 600, 43 S.Ct. 435, 436, 67 L.Ed. 819, that Court again said: "It is true that, as they contend, the private right of parties which have been vested by the judgment of a court cannot be taken away by subsequent legislation, . . ."
In Hoyt Metal Co. v. Atwood, 7 Cir., 289 F. 453, 455, the Circuit Court of Appeals quoted the following statement: "A judgment is such a vested right of property that the Legislature cannot by a retroactive law either destroy or diminish its value in any respect."
To the same effect is the holding in the case of Forbes Pioneer Boat Line v. Board of Com'rs of Everglades Drainage District, 258 U.S. 338, 42 S.Ct. 325, 66 L.Ed. 647.
We consider the case of Ettor v. City of Tacoma, 228 U.S. 148, 33 S.Ct. 428, 57 L.Ed. 773, directly in point. Ettor sued the City of Tacoma for damages to his abutting property in consequence of an original street grading done by the City of Tacoma. At the time the grading was done, there was in force an act of the Legislature of the State of Washington which required the city to make compensation for consequential damages due to an original street grading. Before passage of that act, it had been held that municipalities were agents of the State in making such street gradings and were not liable for damage resulting therefrom. In other words, without the existence of the legislative act, the municipality was not liable and Ettor could not have recovered, but under the act he did have a right of recovery. While the case was being tried, the Legislature amended the act "so as to provide that the act should not apply to the original grading of any street." In other words, the Legislature, by special act, attempted to take away from Ettor the right to recover damage he had previously sustained. "When the attention of the trial court was called to this repealing act, it directed a verdict for the city upon the theory that the right of action was statutory and fell within the statute, there being no saving clause. This judgment, upon the same ground, was affirmed by the supreme court of the state." The Court, in reversing both the trial court and the Supreme Court of the State of Washington, speaking through Mr. Justice Lurton, used this language:
"The necessary effect of the repealing act, as construed and applied by the court below, was to deprive the plaintiffs in error of any remedy to enforce the fixed liability of the city to make compensation. This was to deprive the plaintiffs in error of a right which had vested before the repealing act, — a right which was in every sense a property right. Nothing remained to be done to complete the plaintiffs' right to compensation except the ascertainment of the amount of damage to their property. The right of the plaintiffs in error was fixed by the law in force when their property was damaged for public purposes, and the right so vested cannot be defeated by subsequent legislation." That case goes beyond the facts of the case at bar. There, the act was passed before the judgment was obtained. Here, the judgment was obtained before the act was passed. We limit our holding to the facts of this case.
It should be borne in mind that in this State an appeal does not ". . . vacate the judgment or decree." If the appeal is with supersedeas, execution on the judgment is suspended; if the appeal is without supersedeas, the successful litigant may proceed immediately to execute on the judgment. In no case does the mere fact of an appeal affect the validity of the judgment in the lower court. It remains valid and legal until and unless the Supreme Court holds otherwise. Section 1147, Code 1942.
As to the third question, it is contended that the act under consideration simply changes the rule of procedure, and that the Legislature, having theretofore conferred the right to sue the State, had the power to withdraw that right in this case. The act does more than change the procedure. It undertakes to compel the court to set aside the judgment and to divest appellee of its right to the money to which it is entitled under the judgment, and, as applied to the facts of this case, to prevent appellee from again obtaining a similar judgment.
In Hoyt Metal Co. v. Atwood, supra, the Court said: ". . . if statutes, professing only to affect procedure or remedy, do in fact thereby affect or impair the right, they are void or inapplicable as against the enforcement of the right thus impaired." To the same effect see Duke Power Co. v. South Carolina Tax Commission, 4 Cir., 81 F.2d 513, writ of certiorari denied 298 U.S. 669, 56 S.Ct. 834, 80 L.Ed. 1392.
The very question under consideration was presented and urged in McCullough v. Commonwealth of Virginia, supra. This quotation from the syllabi sums up the Court's response to that contention: "A rightful judgment against the state gives a vested right which cannot be taken away pending writ of error, by a repeal of the statute which authorized the state to be sued."
In addition to this, it will be noted that this statute does not undertake to deprive the taxpayer of the right to sue. He continues to have the right to sue. It simply changes the rules of the game after the game is over.
Practically all of the cases appearing to hold that the Legislature can, by retroactive statute, withdraw, or modify, the right to sue, or proceed against, the State will be found, upon examination, to involve torts, fines, forfeitures, penalties, or the withdrawal, modification or transfer of power of some board or commission as an agency of the State, or the statutes under consideration became effective before rendition of judgment between the parties, or they alter or change some remedial power, such as mandamus or injunction, which is incidental to the enforcement or preservation of the principal right sought to be established. They are not cases in which the courts have divested individuals of vested rights pursuant to mandates of retroactive statutes.
The crux of this situation — the point on which the case turns — is that the rights of the parties had been finally fixed and adjudicated by the judgment of the court, subject to review by this Court on the merits of the case as presented to the lower court. This Court said there was no error on the merits. The Legislature undertakes to wipe out the judgment by a legislative act.
Is the obligation of the State less sacred than that of an individual?
Finally, it is not irrelevant to the question under consideration to observe that a preeminent feature of our government is, or should be, the sacredness of obligations and private rights. Both the Federal and our State Constitutions abolished the power of the sovereign to arbitrarily take away private rights. That power unrestricted is a tyrant. History had taught our forefathers that fact. That is why they tried to strip the sovereign of that power.
Suggestion of error sustained and judgment affirmed.
Three of us adhere to the original opinion, and while we could add page after page in the citation of texts and cases in the further support of it, we will content ourselves by references to, and brief quotations from, two of the texts which have been universally recognized as classics of the law in this country, and to a mention of the case nearest in point as well as the most recent in time that has been found.
In 2 Cooley's Constitutional Limitations (8th Ed.), p. 790, it is said: "And if a case is appealed, and pending the appeal the law is changed, the appellate court must dispose of the case under the law in force when its decision is rendered." And it is to be noted that among the cases cited in the footnotes to support the text is Schooner Rachel v. United States, 6 Cranch 329, 10 U.S. 329, 3 L.Ed. 239, a case cited in Musgrove v. Vicksburg N.R. Co., 50 Miss. 677, 682, wherein this Court adhered to the rule as stated and which ought to be binding on all of us now.
The controlling opinion concludes to avoid the rule, however, by the assertion that the judgment of the trial court became on its rendition a vested right, and it will be observed that the foundation for that conclusion is laid upon a number of cases in this State where judgments and decrees, from which no appeal had been or then could be taken, have been held to confer vested rights — a proposition which none of us challenge. But that is not at all the case here. And if it is meant by the stated assertion, and it seems that the controlling opinion finally gets down to that meaning, that any judgment rendered in a trial court becomes then and there a vested right, regardless of the nature of the cause of action, and regardless of any appeal therefrom, then it is to deny the rule already established as the law of this State, and is against the great weight of authority throughout the country.
The right of action asserted here by appellee has no foundation in contract, such as was McCullough v. Commonwealth, 172 U.S. 102, 19 S.Ct. 134, 43 L.Ed. 382, and as were many of the other cases cited in the controlling opinion, nor is it based upon an interest in property, nor for damages done to property as was the case Ettor v. City of Tacoma, 228 U.S. 148, 33 S.Ct. 428, 57 L.Ed. 773, so confidently relied on in the controlling opinion. The right of action here is based solely on a statute, without which under the common law the payments made would be deemed voluntary, with no right whatever under that law to recover them. And being based on a statute and solely thereon, it must have the support of the statute even until final decision by the appellate court, — save of course as to vested rights.
On this subject, after dealing with the proposition that the repeal or change of a statute does not affect vested rights, Lewis Sutherland on Statutory Construction proceeds on p. 548, as follows: "This, is a principle of general jurisprudence but a right to be within its protection must be a vested right. It must be more than a mere expectation based upon an anticipated continuance of the existing law. It must have become a title, legal or equitable, to the present or future enjoyment of property, or to the present or future enforcement of a demand. . . . If before rights have become vested in particular individuals, the convenience of the State induces amendment or repeal of the law those individuals have no right to complain. . . . And if the statute be essential to that judgment, its repeal or expiration after the judgment will necessitate a reversal of the judgment."
The most cogent and scholarly opinion which we have found among all the cases is the recent case, People ex rel. Eitel v. Lindheimer, 371 Ill. 367, 21 N.E.2d 318, 124 A.L.R. 1472. A statute had been enacted by which a taxpayer could secure a refund for taxes erroneously paid, and the taxpayer had secured judgments in the trial court commanding the refund. There were appeals from the judgments, and pending the appeals the law was repealed. The contention of the taxpayers was that the appellate court should adjudicate the cases under the law as it existed at the time of the trial court judgments, and that not to do so would deprive the taxpayers of vested rights, — precisely the contentions made in the case now before us here. The Supreme Court rejected both contentions and reversed the judgments. The case was appealed to the Supreme Court of the United States where the appeal was dismissed "for want of a substantial federal question," People of State of Illinois ex rel. Eitel v. Toman, 308 U.S. 505, 60 S.Ct. 111, 84 L.Ed. 432. In short, the federal Supreme Court held that there had been no deprivation of a vested right, for if there had been, a federal question would have been thereby presented, under the due process clause.
The controlling opinion refers to the Supreme Court of the United States as the final authority on this question, with which we concur, and in the foregoing paragraph we bring forward the latest and last word of that Court on the precise point here before us, and that word is against the conclusion of the present controlling opinion herein.