Eibel v. Forrester
| Decision Date | 15 September 1942 |
| Docket Number | 14238. |
| Citation | 22 S.E.2d 96,194 Ga. 439 |
| Parties | EIBEL v. FORRESTER, Commissioner, et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
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.
Eibel brought suit against the State of Georgia and J. M. Forrester as State revenue commissioner, asking judgment for twenty-six hundred dollars paid by the plaintiff into the treasury of the State, which sum represents taxes paid by him in the years 1928 and 1929 into the treasury of the State, exacted from him under color of a certain section of the revenue act approved August 25, 1927 (Ga.Laws 1927, p. 56), which said section was and is unconstitutional and has been so declared by the courts. He alleges that he filed his claim for refund pursuant to section 34 of the act approved January 3, 1938 (Ga.L.Ex.Sess.1937-1938, pp. 77 et seq.), and that the same was denied. He relies on section 34 of the act last referred to, which declares, among other things that 'There is hereby appropriated from the proceeds of every tax and license imposed by law a sum sufficient to refund to taxpayers any and all such taxes which may be determined to have been erroneously or illegally assessed and collected from such taxpayers under the laws of Georgia whether paid voluntarily or involuntarily,' provides the procedure for granting the refund, and concludes with these words: 'Provided, further, that the taxpayer whose claim for refund is denied by the Commissioner under the terms of this Act, shall have the right to sue for refund in the Superior Court of the County in which said taxpayer would have a right to appeal from a judgment by the Board of Tax Appeals, as in this Act, provided.' In the petition is set forth a message from the Governor to the General Assembly on January 11, 1937 (1 House Journal 1937, 565) as follows:
'To the General Assembly of the State of Georgia;
'To the Senate:
'To the House of Representatives:
'As required by statute and the constitution of the State, I wish to present this, the Executive Report, to the General Assembly of the State.
'I 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.
Herman Talmadge, C. N. Davie, Alex McLennan, and R. E. Church, all of Atlanta, and Swift, Pease, Davidson, Swinson & Chapman, of Columbus, for plaintiff in error.
Hirsch, Smith, Kilpatrick, Clay & Cody, of Atlanta, for party at interest, not party to record.
Ellis G. Arnall, Atty. Gen., Andrew J. Tuten, Asst. Atty. Gen., and Claude Shaw, of Atlanta, for defendants in error.
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...
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