22 S.E.2d 96 | Ga. | 1942
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.
"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,
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 *442
State can not be sued at all. In Roberts v. Barwick,
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,
Judgment affirmed. All the Justices concur.