*1 363 450, (330 254 706) Ga. (1985), quoting Jones, 452 Calder v. 465 “ 804) 1482, (1984). U. S. 783 SC 79 LE2d ‘There is no objective test which to judge particular the facts of a case to determine if personam assertion of in jurisdiction exceeds the limits of consti ” process.’ tutional due Convoy, Inc., Freeman v. Motor FSupp. 409 1100, (N.D. 1976), 1106 Ga. quoting Benjamin v. Western Boat Building 723, (5th Corp., Cir.), 472 denied, F2d 725 414 cert. U. S. 60, 830 SC cases, 38 LE2d long-arm the court “[I]n must decide if the question activities in scope fall within the Marival, Planes, state . . .” Inc., 201, statute. Inc. v. FSupp. 302 (N.D. 1969). short, by rejecting a rigid application of stare decisis in cases
involving jurisdictional questions, has, effect, the Court invited litigation. more A party, therefore, penalized should not be bring- for ing a suit that upon touches an area of law that even the Court con- cedes has parameters. no fixed There is a fine line attempt- between ing to establish theory a new of law and filing a frivolous action. court must be careful in deciding line, when party a has crossed that especially where the $85,000. decision party nearly costs the July
Ordered July 26, Reconsiderations denied Lord, Brook, Bissell Strueber, & Thomas Athans, J. Michael J. for appellant.
Powell, Goldstein, Frazer & Murphy, Mitchell, Richard C. E. A. Simpson, Jr., appellee.
46642, 46681. B. JAMES BEAM DISTILLING COMPANY v. al.;
STATE OF GEORGIA et and vice versa. Marshall, Chief Justice.
James B. (Beam) Beam Distilling Co. brought seeking this action $2,400,000 refund for paid excise taxes it 1983 and 1984. The taxes paid were pursuant 3-4-60, imposed to OCGA higher tax on alcoholic beverages imported into the state than on those in Georgia. manufactured The statute was amended shortly after the United States Court a similar statute found Dias, be Imports unconstitutional. Bacchus U. S. See 200) (1984).1 proceedings below, the In the LE2d pre-1985 statute was court determined that the trial because it Constitution. of the U. S. violated the Commerce Clause only applied prospec- ruling would The court further held that tively affirm. to a refund. We so that Beam is not entitled pre-1985 appeals that the the trial court’s decision
1. The State
*2
find no error. The
§
was
We
OCGA 3-4-60
unconstitutional.
version of
solely
products
imposed higher
because
taxes on out-of-state
statute
purpose
origin.
and effect
that the
their
The record demonstrates
of
of the statute
virtually
simple
protectionism, which is
was
economic
per
of the U. S. Constitution.
se invalid under the Commerce Clause
M.
applying the
erred in
decision
2. Beam asserts that the trial court
prospectively only.
disagree.
Co., 250
v. Atlanta Cas.
In Flewellen
We
(300
673)
three-pronged
(1983),
adopted the
Ga. 709
SE2d
this Court
(92
Huson,
roactively principle law, either over- established a new of by past precedent litigants ruling ing relied, decid- on which or impression was not an issue of first whose resolution clearly foreshadowed.
(2) by Balance of the merits and demerits each looking pose prior history question, pur- rule in its of the operation retrospective effect, would and whether operation. further or retard its
(3)
applica-
Weigh
inequity imposed
the
retroactive
inequitable
produce
tion, for, if a decision could
substantial
retroactively,
ample
applied
if
for avoid-
results
there is
basis
nonretroactivity.
ing
injustice
hardship by holding
judicial
application
Flewellen,
deci-
Applying test, the first prong of the we note that decision does However, not now if establish “new rule.” the decision had been rendered during year the last that the tax was as sessed, it certainly would past precedent. have overruled The tax structure embodied in OCGA 3-4-6Ó had been in effect in Georgia since 1939 the statute was on challenged grounds that it violated the Commerce Clause up of the U. S. Constitution and was State, held. Scott v. (1939), overruled on Resources, Blackston v. Ga. Dept. Natural grounds, other After the Scott decision, import tax Heublein, supra. was not challenged again until 1985. See During the time that the collected, taxes at issue here were the State had no rea son to import believe that the Moreover, taxes were unconstitutional. when it became clear might that there problems Bacchus, with the see supra, legislature promptly moved amend rectify Thus, the defects. appears Chevron prong first test prospective application favors rule.
The second prong of the Chevron application test has no here because the statute at repealed issue was in 1985. We move therefore test, to the prong third balancing equities. involves the Beam seeks 2.4 million paid 1982, dollars that it 1983 and 1984. There are at least two other currently lawsuits pending which other producers alcohol seek over 28 million dollars in tax refunds on the grounds. same Economic inescapable realities lead to the conclusion that the cost of this tax already has or could have been absorbed companies passed Indeed, on to consumers. retroac- application tive of ruling might well to result a windfall producers. alcohol hand,
On the other
if
retroactively,
applied
decision is
Geor-
gia faces liability for over 30 million
dollars
refunds
taxes
in good
collected
faith under
unchallenged
presumptively
an
valid statute. Georgia
money
large
would have to refund
sums of
already
it has
spent. Prospective application
imposing would avoid
severe financial burden on
In
the State and its citizens.
such situa-
tions, this Court
frequently
and the courts
other
de-
of
states have
clined
application,
retroactive
though
ruling
even
allows an un-
statute to
period
remain
effect for a limited
of time.
Federated Mut. Ins. Co. v.
See
(341
County,
DeKalb
State, on other overruled supra, Ga. Now, Resources, fifty Ga. Natural supra. some Dept. of later, it violates the years its successor because striking we are down Commerce Clause. out, strongly of cases there are a number points
As the dissent
was unconstitu-
supporting
argument
that because
Wright,
Co. v.
Mfg.
Dennison
tional,
See,
e.g.,
it was void ab initio.
Shivers,
(1869).
(1923); Battle v.
“The rule an general is that wholly it was void and of no force and effect from the date however, subject exceptions, enacted. rule This harsh where, previous because of the nature of the statute and its application, justifia- who unjust results would accrue to those bly relied on it. . . .” incep-
While their we have declared statutes to be void from time they contrary tion when were the Constitution at the enactment, applicable . . . those decisions are not present . . when controversy, original as the . adopted, court was not violative the Constitution under interpretations period. of that Adams, 518) (1982) (cita
Adams v. 249 Ga. 478-79 County, omitted) Strickland v. Newton tions (quoting 132) (1979) (citations omitted)). cases have held Other *4 Allan v. County, Strickland v. Newton Ga., similarly. supra; E.g., Allan, In all of these 207-08 cases, than ret applied prospectively the Court has rather its decision roactively. Here, state has apply exception
We the rule. the general to the a half cen- predecessors collected taxes under this statute or its over tury in circumstances reliance on a decision of this court. Under these it would and the we hold balancing supra, factors discussed Div. unjust to declare the statute void ab initio. prospective application sum, In we conclude that the decision appropriate. is spects. The decision of trial court is affirmed all re- Judgment except concur, All the Justices Smith and affirmed. Weltner, JJ., who dissent as to Divisions 2 and 3. concurring part part. dissenting Justice, and
Smith, problem simple. The with this is that All case it is too that is unconstitutional, involved is a statute which has declared a been con- provision requires stitutional which this Court to declare the uncon- says erroneously stitutional statute and a statute which taxes illegally gal must be collected refunded. This case involves the state’s ille- readily-identifiable single, party collection of taxes from a on the majority successfully basis of an unconstitutional The has statute. Georgia Georgia Constitution, avoided the clear mandate of the Georgia “complicated exceptions” law, and the refund statute. The pointed majority only simplicity which the out make the of this case pronounced. majority opinion more ple short, is an excellent exam- judiciary attacking of the solid the case rock of established trying constitutional and law law with a and hoe to con- everyone vince that it’s a bulldozer. Rights
Taxpayer’s By emphasis placing on issue of whether the decision in Imports Dias, Bacchus v. S. 468 U. 82 LE2d (1984)3 given application, majority should be a retroactive dis- guises important Georgia the real issue: Which is more state’s —the right protect ill-gotten gains treasury taxpayer’s or the right rights? taxpayer’s to relief a after clear violation of the Right Unconstitutionally Tatarowicz, a
See to Refund for Discriminatory State Taxes Other State Controversial Tax Is- (Fall 1987). Lawyer Clause, sues Under the Commerce 41 Tax majority opinion protect right concludes that the state’s treasury important; right its taxpayer however, is I more believe that of the important.4 agree, I found, more that Imports Dias, S., supra The Court in Bacchus 468 U. at declined to address the refund issue. It remanded the case to determine the Court of Hawaii refund essentially imposition issues ally remedy “which are issues of for the tax that unconstitution of a note, against discriminated interstate given . . .” 468 The Court did “It commerce U. S. at 277. be, may example, discrimination, full refund an is mandated by against unconstitutionally state law.” Here Note 14. the statute discriminated non-resi taxpayers by dent full and a refund is state law. mandated sparks July, As we celebrate Fourth of are reminded that one we ignited Revolutionary being War colonists were was the abusive manner in which the King. independence King fought taxed Our won who extracted forefathers from *5 protec- simple purpose the statute was economic “the and effect of virtually per tionism, Clause which is se invalid under the Commerce S. of the U. Constitution.” majority opinion part
Thus, affirms I in concur of the pre-amendment holding was uncon- statute the trial court’s that the statutory separate stitutional; however, and distinct there are several clearly distinguish in this case that and constitutional issues involved by majority.5 Therefore, I it from the cases that have been cited prospective ap- strongly disagree majority’s “that with the conclusion plication appropriate.” of the decision Majority Opinion
Discussion
judi-
application
adopted
for retroactive
1. This Court
the test
Huson,
The also states in Div. “Retroactive judicial compelled constitutionally where decision is not or otherwise prior unjust justifiably results would accrue to those who relied on question 3, infra, dissent, rule.” As set in Div. of this there is no out application judicial a statute is of “retroactive of a decision” when Georgia. declared Once a statute is declared un- duty judiciary constitutional constitutional becomes the declare the statute void. majority earlier unsuccessful The would have us believe an challenge State, Ga. 702
constitutional
in Scott v.
(1939),
requiring
negates
somehow
the constitutional mandate
nothing There is
Court to declare the unconstitutional statute void.
upon
Georgia
indicating
earlier deci-
that reliance
way
changes
sions of
mandate of the
this Court
or modifies the
void.
constitution to declare unconstitutional statutes
taxes,
protect
people from such abuses.
excessive
and the Constitution was drafted to
5 Only
supports
majority
allegedly
its
one
case was cited
in Div. which
period
[may]
a limited
of
3)
conclusion that “an unconstitutional
remain
effect for
case,
County,
time.” This
Federated Mut. Ins. Co. v. DeKalb
constitutionality
(1986),
repeal
by implication. The
dealt with a
of a statute or ordinance
foreign,
did not
statute was not involved. The other cases cited were
Georgia’s.
provisions
consti
Under our
show that those states have constitutional
similar to
void. The constitu
tution a statute is
either constitutional and valid
holding
“partial
tion does not mandate a
voidness.”
application
only
proper interpretation
of state
issue in Flewellen
involved the
insurance statutes.
Constitutional Mandate
requires
3. Our constitution
legisla-
us to declare unconstitutional
tive
I,
II,
acts void. Ga. Constitution
That
Art.
Sec.
Par. V.7
provision
does
specific
not allow this Court
to set a
upon
date
which an unconstitutional
It
inoperative.
statute becomes
does not allow this Court to determine that a statute is
a little bit
just
void. It does not allow this Court to ignore its clear mandate or the
long line of Georgia
upheld
cases that have
the constitutional man-
date.
rely
Nor can this Court
on United States
Court deci-
*6
sions that are
point
not on
and in
the Georgia
Constitution was
(See
never
5, infra,
discussed or considered.
Div.
discussion of Chicot
County Drainage
Bank,
(60
District v. Baxter State
An statute, form, though having the fea- tures, law, and name of in reality wholly no law. It is void. In legal contemplation it is inoperative as as if it had never passed. been It has been declared that it is a misnomer to call such statute a law. Such a authority statute confers no upon any one, protection and affords to no one. v. Norton Shelby (6 County, 1121, 118 U. S. Sup. 178); 425 Ct. L. 30 ed. Siebold, Ex 371, (25 Parte 717); 100 U. S. [Cits.]; 376 L. ed. Layfield, (99 McCants 877). v. S. E.
In
v.
States,
(6
Osborn
Bank of the United
be unconstitutional are void. Ga. County Crisp County, 139 Worth (52 673); E. v. 487 S. (84 Blakely, (76 Ga. 117 S. James (3) 747); v. 143 S. E. 117 431). supplied part.] [Emphasis E. (120 Wright, 789, Mfg.
Dennison
Co. v.
797
SE
156 Ga.
Co.,
204,
Hastings
v. H. G.
215
Highway Dept.
State
187 Ga.
See also
(51
Carr,
721,
(1938); Tarpley v.
(199
793)
SE2d
204 Ga.
SE2d
de
638) (1949)
created
officers of office
(City officers were not
facto
Harper,
Franklin v.
charter);
205 Ga.
under an unconstitutional
(68
(1949); Baggett
Linder,
(55
221)
SE2d
343)
Adams,
Milam v.
469) (1952);
440, 444
216 Ga.
SE2d
SE2d
Productions,
Murray
Floyd,
K. Gordon
Inc. v.
(1960);
217 Ga.
207) (1962) (“.
remedy
provided
. . the
the ordi
is sus
petitioner’s
nance is
if the
constitutional attack
not even law
(1969)
Brown,
Dobson v.
tained.”)
225 Ga.
(“
the law de
estoppel
legalize
‘Not even
can
or vitalize that which
Bank,
v. First Ga.
Mapp
”);
clares unlawful
void.’
765) (1980). (See
7, infra.)8
App. 380
note
Although Bacchus
may
have led this Court to conclude
statute,
unconstitutional,
present
it does not
case was
I,
II,
pro
affect Art.
Sec.
Par. V the
Constitution which
inception. Once
vides that an unconstitutional
statute is void from its
unconstitutional,
if
the statute was
it was as
no
declared
law,
*7
public policy
“The Constitution is
had ever been established.
can
null;
irrepealable,
any
rights
and
law violation of it is void—is
Shivers,
Battle v.
grow up
under such
39 Ga.
a law.”
(1869).
in
Once the statute was
it became
declared
Therefore,
operative,
having
if
passed.
as
it had never been
no court
proper
execute it.
obligations
responsibilities
sense of its own
will
Dennison,
authority to assess
supra,
There Are To Balance Equities No is mis- majority’s equities,” 4. The “balancing discussion of unconstitutional, no placed. there can be When a statute is declared to follow the balancing equities as none exist. are bound “[W]e even when Supreme laws of this state and the decisions of our Court Mapp First . . . ...” resulting hardship. decision effects a firmly cases discuss the few recent 8 Thelaw this area has been so established that issue. 765) (1980).9 App. Bank, 380, 382 Georgia “Exceptions” To The Court Created reading by majority A 5. careful of the three cases cited “exceptions” the weakness. The to the constitutional mandate reveals fundamental the constitutional mandate
first case to deviate from upon and the feeble foundation relied in the other two cited cases is Allan, Allan v. in Al- Court any Georgia long lan, without Constitution or the discussion of the Georgia line of cases that that an stat- have declared upon County by ute is Supreme relied instead dicta set forth the United States Drainage Court Chicot District v. Baxter State supra immediately preceding Bank, S., However, 308 U. at 374. upon, following appeared: Chicot dicta that the relied Congress, having [An] Act of been found to be unconstitu- inoperative, conferring tional, [is] law; [is] not a that it no rights Shelby County imposing Norton v. no duties. . . . Chicago, Ry. 425, 442; Hackett, 118 U. S. I. & L. Co. v. U. S.
Chicot at 374. astonishing discovery reading
An even more Chicot is that Shelby County, Chicot cited Norton v. the exact same case cited (see dissent), supra, proposition Dennison, Div. 3 of that for the any authority upon one, an unconstitutional statute “confers no protection Allan affords to no one.” dissent. The See Div. 3 of this opinion ignored language the above with its two citations quoted completely Court decisions and of a ci- dicta thát was devoid any tation to decision of court.10 26,1976 May appellant Mapp purchased On The car had an automobile from Ed Cook. purchased by Chevrolet, Inc., Hopkins purchased
been Cook from which in turn had Chevrolet, Inc., pursuant Georgia Abandoned automobile from Timmers a sale under the automobile, 26, 1976, repossessed Motor Vehicle Act. On October First Bank claiming perfected security had been created that held a interest in the automobile which Bank, alleging purchase against Mapp at the time of the initial J. suit C. Wilson. filed summary judg illegally granted that the Bank had converted the automobile. The trial court Bank, concluding Mapp’s a 1979 ment in favor of the on the basis of title was invalid Since the which held the Abandoned Motor Vehicle Act to be unconstitutional. *8 unconstitutional, in the sale sale was accordance with an act held to he which was later passed Appeals ruling no an unconstitu title. The Court of affirmed the trial court’s because inception rights tional statute is a accrue thereunder. void statute from its and no the Chicot unnecessary adjudicating language upon by totally Allan was in The relied ¡failed below; respondents in Chicot case. The in the courts to raise a constitutional issue judicata. . . .” therefore, res “appropriately question the case was ... confmefd] at 375.
Reliance on Chicot in unsupported dicta Allan in other totally case is without foundation and substance. The cases that fol- low represent Chicot and Allan abberations that should be overruled they because conflict with the and cases. See also Strickland v. Newton County, 132) (1979) Adams, and Adams v.
(1982) which use Allan and Chicot authority. as their
The Extraordinary Facts The Three Cases Of 6. Assuming arguendo that the cases are not abberations but do represent fact “exceptions,” they then offer the strongest argu- ments for declaring this case is not such “exception.” an Each of the “exception cases” contained unusual extraordinary conditions that are present By this case. applying alleged “exceptions” rule, to the general has “exceptions” made the the rule. In the three represent cases that the “exceptions,” the Court in attempting to equity, do did not face the. mandate head-on. Allan, Strickland, Adams, may there have been other in- may
dividuals who have been past, harmed they were, but practical all purposes, unascertainable. The amount of damage suf- fered other individuals was also impossible almost to determine. In Allan and Adams there was also potential years of disrupting quiet titles and confusing property law. case, This on the hand, other clearly-identified involves one tax- payer paid who the state an money ascertainable amount of in illegal taxes specified over a period time; therefore, difficulty there is no in determining to whom the taxes should be refunded and for what amount. In addition, such a refund would not property disturb law. “exceptions” are built upon faulty foun- dation, they They should fall. court-made, are but not constitu- tionally allowed.
The Constitution Is The People Will Of 7. The supreme power of this state people and the writ- ten constitution is the will of people. The people have decided the judiciary must declare By statutes void. — looking to dicta of United States Supreme Court decisions — which our constitution was not at issue ignores Court the dic- tate of the people as set forth in the Georgia Constitution. *9 Policy Remedy Represents The The State The Statute Public Of By sweeping language remedy employing statute, OCGA any Assembly 48-2-35, and all taxes § the General made clear that erroneously illegally re- and collected shall be which are or assessed taxpayer has success- If the court denies a refund to a who funded.11 fully challenged constitutionality taxing then the of a remedy meaning. This is has no Court has assumed that the statute contrary state will not assume to established law. “The courts of this any provision Legislature to be without of a statute that the meaning.” intended App. Douglas County 270, Anneewakee, Inc., 179 368) (1986). 273 SE2d public policy remedy represents to refund
The the state’s statute any erroneously illegally collected under or assessed and and all taxes voluntarily paid law. includes taxes which are state involuntarily, The statute pro- required of is nor must thus no element duress directory, remedy mandatory rather than test be filed. immunity. Thompson sovereign v. Conti- and it acts as a waiver of 819) (1946). App. Co., nental Gin 73 Ga. Assembly refunds under
Since the General intended to allow many payer tionality incomprehensible circumstances, that the tax- different it is successfully present challenged the constitu- case who recovery. key taxing words
of the statute is barred from remedy erroneously illegally assessed and col- of the or statute are lected. The indicates that the state had “no reason to believe import unconstitutional”; however, were under the taxes language state broad no difference that the statute makes erroneously assessed and collected taxes under the unconstitutional Erroneously be returned. statute. assessed and collected taxes must taxing there Once the was declared legal taxes, been one. was no these nor had there ever collection of prop- taxpayer’s illegally possession Therefore, erty. the state is of the Repayment Require Other Constitutional Provisions Which require provisions the re- 9. There are also constitutional which unconstitutionally can- The state turn of and collected taxes. assessed (a) provides: OCGA 48-2-35 is entitled “Refunds.” Subsection taxpayer to are determined 11 A shall be and all taxes or fees which refunded erroneously laws illegally him under the have been and collected from or assessed state, voluntarily involuntarily, in paid be refunded and shall of this whether percent per annum from terest on the amount of the taxes or fees at the rate of sup [Emphasis payment . . . the date of plied.] tax or fee to the commissioner. of the deprive person property process without due of law. due-process I, I, Constitution Art. Sec. I. Par. The clause ex- every proceeding may deprivation liberty, “life, tends to be a property, process judicial whether the or administrative or exec- Huiet, [Cit.]” utive its nature. Zachos v. 195 Ga. 806) (1943). The assessment and collection of taxes in the absence of taxing deprivation a valid statute constitutes such an unconstitutional property. paramount government protect 10. One of the duties of is to property taxpayers. Georgia I, I, of its Art. Sec. duty government, through Par. II. “It is the mentality right of the State the instru protect property courts, of a citizen and his possess Willis, and control it.” Irwin v. protect taxpayers *10 This Court must who have had property erroneously illegally auspices taken under the of an un taxing by requiring constitutional il the state to refund such legally-collected taxes.12 provisions, The above constitutional Bill all found our Rights, place government protect were enacted to limits on the and to people governmental government’s authority the from abuses. The to powerful. tax fact, is in 1819 Chief Justice Marshall said: “That the power power destroy proposition to tax involves [is a] [] to ... (1819). Maryland, to be denied.” McCulloch v. 17 U. S.
If this Court does not treat the unconstitutional statute as void
inception,
nothing
enacting
from its
then
will deter the state from
reaping
other unconstitutional statutes and
the benefits therefrom.
constitutional mandate to declare the statute
Ga. Constitu-
taxpayer’s protection
tion, 1983,
I,
II,
V,
Art. Sec.
Par.
is the
from the
power
sovereign
destroy.”
McCulloch,
“to
id.
placed great
emphasis
This Court has
a
deal of
on the fact that
taxpayer
liquor company.
the
the
in this case
a is
It does not matter who
—
—
taxpayer
liquor company
illegally
is
or an
taxed individual
taxpayer
protection
is entitled to
under
of this
As
the laws
state.
Hugo
former
Court Justice
Black said: “Good men and bad
men are entitled to trial and
sentence
accordance with the law.”
question
An identical
is
involved Marcus Collins v.
and all Retired Fed
Waldron
Employees Similarly situated,
argued
employ
eral
No. 47018
June
Retired federal
1989.
challenged Georgia’s
ees
scheme of taxation which
income of federal
taxes the retirement
exempting
being
retirees while
the retirement
unconstitutional.
income of state retirees as
They argued,
authority
Treasury, _ U.
Michigan Department
under the
S.
of Davis v.
—,
(March 28, 1989),
and,
Conclusion requiring mandate Court to declare the expressed ignored. public policy void has been The state’s remedy just statute, 48-2-35, refund taxes is as the thwarted OCGA trampled reality, repealed by majority’s and, this Court. The in- upon declaring prospectively only,13 ig- sistence void the statute while noring grants victory appel- Constitution, a hollow proved taxing lant who statute was unconstitutional. It also remedy appellant’s taking property, denies disregards for the unlawful remedy mandatory nature of the and sends message Georgia taxpayers protect that this Court will not their rights tionally require nor the state to be for accountable taxes unconstitu- erroneously illegally and collected. assessed July Decided July
Reconsideration denied Chorey, Taylor Taylor, Vincent, Fell,& Jr., John L. Michael A. Siegel, Siegel, appellant. Cole, Schoenstadt, Moses & Morton Attorney Verley Spivey, Bowers, Michael J. General, J. Senior Attorney General, Baker, Assistant Amelia Waller Attor- Assistant ney appellees. General, for 46839. FIELDS v. RAINBOW CARPET INTERNATIONAL &
DYEING CLEANING COMPANY. *11 Justice. Weltner, agreement Fields an entered into with Rainbow International Carpet Dyeing Cleaning granted Co. in which he was a license operate County. a franchise con- of Rainbow’s business in Bibb provided: agreement compete, tract contained an (3) years hereof, . . [Fields] for three after the termination prior not, [Rainbow], will without ei- written consent directly indirectly, principal, agent, ther or or as servant oth- carry engage carpet up- erwise, on or business something applied prospectively How can of non be if statute, existed? The doctrine it never retroactivity may law, dealing law, change in be used or a law when with a valid case public policy. apply It does not and is not used in constitutional cases because law, law, must, public policy required by as constitution and case our as if it treated never existed.