169 Ga. 251 | Ga. | 1929
Lead Opinion
In November, 1923, J. C. Bussey filed with the Industrial Commission of Georgia a claim against the Empire Glass and Decoration Company, for compensation for the loss of an eye. An award in his favor was made by the commission. An appeal was taken by the defendant. The superior court affirmed the award of the commission; and in February 1925, the judgment of that court was affirmed by the Court of Appeals. Bishop v. Bussey, 33 Ga. App. 464. It was then discovered that the charter of the Empire Glass and Decoration Company had expired in 1914. At the time of Bussey’s employment, and at the time of the award, F. A. Bishop was the sole owner of the business conducted under the name of Empire Glass and Decoration Company. Bussey applied to the Industrial Commission to amend its award so as to be one against Bishop individually, doing business under the trade-name of Empire Glass and Decoration Company. This application was denied. On September 2, 1925, Bussey filed an equitable petition seeking to Have the award of the commission so amended or reformed as to make it an award against F. A. Bishop, doing business under said trade-name. A decree was entered, amending the award as prayed. Bishop brought the case to this court, which reversed the judgment of the lower court. Bishop v. Bussey, 164 Ga. 642 (139 S. E. 212). After this judgment was made the judgment of the lower court, Bussey, in September, 1927, applied to the industrial Commission for compensation for the loss of his eye, under section 25 of the Georgia workmen’s compensation act, approved August 17, 1920, as amended by the act of August 27, 1925. In his answer Bishop alleged that this application was barred, because Bussey was seeking compensation for an accident which happened more than one year before the filing of his claim with the commission. The answer further set up that so much of section 25 of the act of August 17, 1920, as amended by the act oE August 27, 1925, as provides “that if a claimant proceeds in good faith against a corporation, the charter of which had expired, but which was still doing business, he shall have the right to then proceed against the person or persons operating under the corporate name, and the one-year limit shall not apply,” is retrospective and violative of paragraph 2 of section 3 of article 1 of the constitution of this ¡átate, which provides that no retroactive law shall be passed. Pending said application Bishop died, and by agreement his wife and
The first question for decision is whether section 2 of the act of August 27, 1925, should be applied to a claim for compensation which became barred under the act of August 17, 1920, and before the passage of the act of 1925. Retrospective statutes are forbidden by the first principles of justice. Mayor &c. of Savannah v. Hartridge, 8 Ga. 23 (9). Laws prescribe only for the future, and generally have no retrospective operation. Civil Code (1910), § 6; Redd v. Hargroves, 40 Ga. 18, 24. The settled rule for the construction of statutes is not to give them a retrospective operation, unless their language imperatively requires such construction. Moore v. Gill, 43 Ga. 388, 391. A statute of limitation will not be so construed as to affect a cause of action already barred, if such construction can be reasonably avoided. People v. Supervisors, 10 Wend. (N. Y.) 363; Durritt v. Trammell, 11 Ark. 183; Pridgeon v. Greathouse, 1 Idaho, 359; Wright v. Oakley, 5 Met. (46 Mass.)
If this construction of the act of 1925 is incorrect, then for other reasons the applicant for compensation can not succeed. In the first place, the legislature can not revive a right of action that was barred by the statute of limitations in existence prior to the passage of the reviving act. In Calhoun v. Kellogg, 41 Ga. 231, this court held that the acts passed by the legislature during the war, suspending the statute of limitations, which were confirmed by the ordinance of 1865 and the constitution of 1868, were “valid in all cases where the legal statutes in existence at the commencement of the struggle had not fully run in favor of the defendant before the passage of the ordinance of 1865; but they do not revive a right of action that was barred by the legal acts in existence
Besides, the constitution of this State expressly prohibits the passage of retroactive acts. Civil Code (1910), § 6389. In passing upon our own decisions and the decisions of other States, we should ascertain whether there was any constitutional inhibition against retroactive legislation. The constitution of this State adopted in 1798 prohibited the passage of ex post facto laws. This provision applied to criminal laws alone. Wilder v. Lumpkin, 4 Ga. 208; Boston v. Cummins, 16 Ga. 102 (60 Am. D. 714); Well-born v. Akin, 44 Ga. 425. The constitutional inhibition against the passage of retroactive legislation first appeared in the constitution of 1861. McElreath on Constitution, 281, 283. The same provision was embraced in the constitution of 1865. Id. 298, 299. This provision was not embraced in the constitution of 1868. It was again adopted in the constitution of 1877. Civil Code (1910), § 6389. So this constitutional provision is now in force, and was in force when the act of 1925 was passed. Under the constitution of this State, and the decisions of this court, and the courts in most jurisdictions, an act of the legislature which undertakes to revive a cause of action which was barred at the time of its passage violates the provision of our State constitution which inhibits the passage of retroactive legislation. As we have seen, there are decisions to the contrary, and we cite some of them. Campbell v. Holt, 115 U. S. 620 (6 Sup. Ct. 209, 29 L. ed. 483); McEldowney v. Wyatt, 44 W. Va. 711 (30 S. E. 239, 45 L. R. A. 609); Robinson v. Robbins Dry Dock &c. Co., 238 N. Y. 271 (144 N. E. 579, 36 A. L. R. 1310); Danforth v. Groton Water Co., 178 Mass. 472 (59 N. E. 1033, 86 Am. St. R. 495); Dunbar v. B. &c. R. Corp., 181 Mass. 383 (63 N. E. 916).
Most of the decisions which hold contrary to the rulmg that the legislature can not revive a cause of action barred by the statute of limitations are based upon the ruling made in Campbell v. Holt, supra, in which a distinction was made between a statutory bar operating to invest persons with title to property, and a bar which constitutes merely a defense to a personal demand. Mr. Justice Miller, who delivered the opinion of the majority in that ease, gave the following reason for such distinction: “We understand
We can see no valid reason why a claim which is barred by the statute of limitations can be revived and restored by an act of the legislature in the same jurisdiction. This is especially true, as we have shown, where the statute creating the claim distinctly provides that the claim shall be forever barred if not filed with a given tribunal within the period of limitation named in the statute. The requirement that the claim for compensation shall be filed with the Industrial Commission within one year after the accident is an essential ingredient, and the right ceases and terminates where no action is so commenced at the expiration of that time. Where a statute gives a new right of action not existing at common law, and prescribes the time within which it may be enforced, the time so prescribed is a condition to its enforcement, an element in the right itself, and the right fails with the failure to apply for relief within the allotted time. The rule as stated is one of general application, and is distinguished from the rule applied to statutes limiting the remedy and not the right. Negaubauer v. Great Northern Ry. Co., 92 Minn. 184 (99 N. W. 620, 104 Am. St. R. 674, 2 Ann. Cas. 150) ; 17 R. C. L. 952; Kannellos v. Great Northern Ry. Co., 151 Minn. 159 (186 N. W. 389); Parmelee v. S., F. & W. Ry. Co., Chamlee Lumber Co. v. Crichton, supra.
From what is said, the judgment of the superior court setting aside the award of the Industrial Commission should be affirmed.
Judgment affirmed.
Dissenting Opinion
Hill, J.,
dissenting. This case was here on a former occasion. 164 Ga. 642 (supra). It was there held: “By the act of August 27, 1925, it is provided that if a claimant proceeds in good faith against a corporation, the charter of which has expired, but which is still doing business, he shall have the right to then proceed against the person or persons operating under the corporate name, and the one-year limit provided in section 25 of the workmen’s compensation act, as it originally stood, shall not apply. Acts 1925, p. 282. Under this act the employee has an adequate remedy at
See in this connection, Campbell v. Holt, 115 U. S., 620, 628 (supra), where Mr. Justice Miller said: “It is much insisted that this right to defence is a vested right, and a right of property which is protected by the provisions of the fourteenth amendment. It is to be observed that the words Nested right’ are nowhere used in the constitution, neither in the original instrument nor in any of the amendments to it. We understand very well what is.meant by a vested right to real estate, to personal property, or to incorporeal hereditaments. But when we get beyond this, although vested rights may exist, they are better described by some more exact term, as the phrase itself is not one found in the language of the constitution. We certainly do not understand that a right to defeat a just debt by the statute of limitations is a vested right, so as to be beyond legislative power in a proper case. The statutes of limitation, as often asserted and especially by this court, are founded in public needs and public policy — are arbitrary enactments by the law-making power. Tioga Railroad v. Blossburg and Corning Railroad, 20 Wall. 137, 150 [22 L. ed. 331]. And other statutes, shortening the period or making it longer, which is necessary to its operation, have always been held to be within the legislative power until the bar is complete. The right does not enter into or become a part of the contract. No man promises to pay money with any view to being released from that obligation by lapse of time. It violates no right of his, therefore, when the legislature says time shall be no bar, though such was the law when the contract was made. The authorities we have cited, especially in this court, show that no right is destroyed when the law restores a remedy which had been lost. An instructive case on this subject is that of Foster et al. v. The Essex Bank, 16 Mass. 245. The charter of the bank being about to expire in 1819, the legislature of Massachusetts passed a law continuing the existence of all corporations for the space of three years after the expiration of their charters, for the
And see Mills v. Geer, 111 Ga. 275 (36 S. E. 673, 52 L. R. A. 934); DuBignon v. Brunswick, 106 Ga. 317 (32 S. E. 102); Robinson v. Robins, 238 N. Y. 271 (144 N. E. 579, 36 A. L. R. 1310). This present suit was pending at the time of the passage of the act of 1925. Tn Mills v. Geer, supra, it was ruled that the act in question was not unconstitutional. It was held: .“Under the act of December 21, 1897 (Acts of 1897, pp. 79-81), in a suit to recover land the defendant who has bona fide possession of such land under adverse claim of title may plead as a set-off the value of all permanent improvements bona fide placed thereon by himself, or
As before stated, the present suit was pending in 1923, before the passage of the act of 1925. It is true that the general rule for the construction of statutes is, not to give them retrospective operation, unless their language imperatively requires such construction.