State ex rel. Crotty v. Zangerle
| Decision Date | 04 May 1938 |
| Docket Number | 26933. |
| Citation | 14 N.E.2d 932,133 Ohio St. 532 |
| Parties | STATE ex rel. CROTTY v. ZANGERLE, Auditor and Treasurer, et al. |
| Court | Ohio Supreme Court |
In the court of common pleas, the relator, a taxpayer, instituted this action seeking to enjoin the auditor and treasurer of Cuyahoga county from complying with Section 2590-1, General Code (117 Ohio Laws, ----), which provides for the remission and abrogation of 'any penalty, interest or other charge for nonpayment when due of any real estate tax and/or assessment' paid since the 20th day of June, 1930, and prior to January 1, 1937.
This case was tried upon the numerous pleadings and upon agreed statements of fact, one paragraph of which reads as follows:
'It is hereby agreed and stipulated by and between the parties that all penalties and interest paid to the County Treasurer for delinquent real estate taxes in past years have been distributed to the state of Ohio and to the separate political subdivisions throughout Cuyahoga county levying taxes.'
The trial court rendered a decree for the relator on the theory that the statute is violative of Section 28 of Article II and Section 2 of Article I of the Constitution of Ohio, and also repugnant to Section 1 of Article XIV of the Amendments to the Constitution of the United States.
Upon appeal on questions of law and fact a majority of the Court of Appeals held the statute constitutional and entered a decree for the respondents.
The case is in this court upon an appeal as a matter of right.
John J. Tetlow, John J. Sheehan, and John J Kennedy, all of Cleveland, Wesley L. Grills, of Lorain, and Ray T. Miller and Don C. Miller, both of Cleveland, for appellant.
Alfred Clum, Director of Law, Henry S. Brainard, and Charles W White, all of Cleveland, for defendant-appellee City of Cleveland.
Frank T. Cullitan, Pros. Atty., and Saul S. Danaceau, both of Cleveland, for appellees auditor and treasurer of Cuyahoga County.
Douglas F. Schofield, of Cleveland, for appellee Douglas F Schofield.
The single question here involved is the constitutionality of Section 2590-1, General Code, which reads as follows:
'Whenever any penalty, interest or other charge for nonpayment when due of real estate tax and/or assessment is paid by any person firm or corporation charged with or legally authorized to pay same, which said penalty, interest or other charge after such payment is or has been remitted or abrogated, conditionally or otherwise, by act of the legislature or otherwise, any such penalty, interest or other charge paid since the 20th day of June, 1930 and prior to January 1st, 1937, is hereby expressly remitted and abrogated, on application to the county auditor by such person, firm or corporation on or before the first day of January, 1940, such penalty, interest and charges so paid shall be refunded to such person, firm or corporation on the order of the county auditor directed to the county treasurer.'
The relator and the common pleas court place great reliance upon the decision of this court in the case of Commissioners v. Rosche Bros., 50 Ohio St. 103, 33 N.E. 408, 19 L.R.A. 584, 40 Am.St.Rep. 653; 98 A.L.R. 288 but no reference is made to it in the majority opinion of the Court of Appeals. The first paragraph of the syllabus in that case is as follows:
'The act entitled 'an act to provide for refunding of taxes erroneously paid under section 2742, Revised Statutes of Ohio, in counties containing a city of the first grade of the first class,' passed April 16, 1890 (87 Ohio Laws, 212), in so far as it imposes an obligation on the county of Hamilton on account of past transactions, is retroactive, and in conflict with section 28 of article 2, of the constitution of this state.'
On the question of the retroactive nature of the statute now under scrutiny, the rationale of Judge Bradbury is so cogent and pertinent that the following part of his opinion is here quoted:
'However steadily we may keep in mind the general rule that statutes should be construed to operate prospectively only, when susceptible of that construction, there still remains little, if any, doubt that the legislature intended the above-quoted statute to operate retrospectively; and it is only little less certain that the object was to vitalize the claims of the defendants in error, and of others in Hamilton county in like situation. At least the language of the statute is explicable upon no other hypothesis than that it was intended to operate upon past transactions. The only doubt in this respect is whether its operation should not be limited to past events, and its prospective operation denied altogether. The words of the statute uniformly refers [refer] to the past in prescribing the circumstances that are to set it in operation. The language is, 'If any * * * auditor 'has sent' a blank with instructions, which instructions 'have been' erroneous, and a return 'has been made' accordingly,' etc., then a recovery may be had. The statute, therefore, should be held to be retroactive, and apply to the state of facts that constitutes the cause of action of the defendants in error.
'However, every statute that is designed to act retrospectively is not retroactive within the terms of section 28, of article 2, of the constitution of 1851, which forbids the general assembly of this state to pass 'retroactive' laws. Whether a statute falls within the prohibition of this provision of the constitution depends upon the character of the relief that it provides. If it creates a new right, rather than affords a new remedy to enforce an existing right, it is prohibited by this clause of the constitution of this state.
'Judge Story defines a retrospective or retroactive law as follows: 'Upon principle, every statute which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new liability in respect to transactions or considerations already past, must be deemed retrospective.' Society, etc., v. Wheeler [Fed.Cas.No.13,156], 2 Gall. 105-139. This definition was approved by this court in Rairden et al. v. Holden, 15 Ohio St. 207. It was also adopted by the supreme court of the United States in Sturges v. Carter, 114 U.S. 511, 5 S.Ct. 1014
'The statute under consideration, when tested by these principles, operates retroactively in its application to the claim of defendants in error. The last payment of the taxes that they sought to recover was made more than nine years before the law was passed. The property had been listed and the taxes thereon paid voluntarily. They interposed no objection or protest to the payment, nor was any threat or offer made by the county treasurer to compel payment by summary or other process provided by statute for that purpose. For money paid under these circumstances the well-settled law of this state, as it then stood, and remained up to the time of the passing of this statute, forbids a recovery. Mays v. Cincinnati, 1 Ohio St. 268; City of Marietta v. Slocomb, 6 Ohio St. 471; Wilson v. Pelton, 40 Ohio St. 306; Whitbeck, Treas., v. Minch, 48 Ohio St. 210, 31 N.E. 743. Nor did the circumstances under which it was listed constitute such an error as might be corrected, and a refunding order drawn by the county auditor by virtue of section 1038, Rev.St., for the excess that was thus paid. State v. Commissioners, 31 Ohio St. 271; State ex rel. v. Cappellar, 5 Cir. Law Bull. 833. Therefore, when the defendants in error voluntarily, though erroneously, listed their property, and voluntarily paid the taxes assessed upon it, neither by statute nor by any principle of the common law as administered in Ohio was an obligation imposed upon the county of Hamilton to refund the money received. If such an obligation had existed, the forms of procedure then provided by our system of practice were ample to afford complete relief. The obstacle in the way of the defendants in error was not inadequate methods of procedure, but the absence of a law vesting in them a right of recovery. This want the statute under consideration attempted to supply.
'This statute, it is contended, is remedial, and remedial statutes may be retroactive. It is remedial, no doubt, in that enlarged sense of that term where it is employed to designate laws made to supply defects in or pare away hardships of the common law, but not remedial in the sense of providing a more appropriate remedy than the law before afforded, to enforce an existing right or obligation. The statute under consideration provided no new method of procedure; it simply imposed upon Hamilton county an obligation towards these plaintiffs in error that did not attach to the transaction when it occurred. In attempting to accomplish this result the legislature transcended its constitutional powers.
'Counsel contend that the statute is in furtherance of natural justice, and that the clause of the constitution under consideration does not prohibit retroactive laws of that character. Lewis, Trustee, v. McElvain, 16 Ohio 347;
Trustees v. McCaughy, 2 Ohio St. 152; Acheson v. Miller, 2 Ohio St. 203 ; Burgett et al. v. Norris, 25 Ohio St. 308.
'To uphold a statute on this ground, where it seeks to create a liability upon a past transaction where none existed when it occurred, if it can be done at all, the natural justice of the object sought to be accomplished should be indisputable.'
It should be observed that the Rosche Case related to a statute providing for the refunding of taxes illegally assessed and erroneously paid. It is inescapable that if such legislation be constitutionally invalid, a fortiori the same defect is inherent in the present statute involving a refunding of revenues legally assessed and properly paid....
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