State v. Alden Mills

• Decision Date: 11 May 1942
• Docket Number: 17772.
• Citation: 8 So.2d 98
• Court: Court of Appeal of Louisiana — District of US
• Parties: STATE v. ALDEN MILLS.

8 So.2d 98

STATE v. ALDEN MILLS.

No. 17772.

Court of Appeal of Louisiana, Orleans.

May 11, 1942

Rehearing Denied June 8, 1942.

Writ of Certiorari Granted July 20, 1942.

Joseph F. Deynoodt and Stephen B. Rodi, both of New Orleans, for appellant.

Henriques & Mayo, of New Orleans, for appellee.

JANVIER Judge.

On December 8th, 1941, the State of Louisiana brought this summary proceeding against the Alden Mills for the purpose of collecting from that corporation additional franchise taxes claimed to be due for the years 1933, 1934, 1935, 1936 and 1937, together with penalties, attorney's fees and costs. The respondent corporation for answer to the rule specially pleaded the prescription of three years as fixed by the constitutional amendment to Section 19 of Article XIX of the Constitution of 1921, which amendment, as Act 35 of 1938, was approved by the people of the State on November 8th, 1938. The respondent in its return and in the alternative that the plea of prescription should be overruled, denied that any further amounts were due to the State as additional franchise taxes for the years set forth.

There was judgment maintaining the plea of prescription and dismissing the rule, and the State has appealed.

Section 19 of Article XIX of the Constitution, as amended in 1938, reads as follows:

"No mortgage or privilege on immovable property, or debt for which preference may be granted by law, shall affect third persons unless recorded or registered in the parish where the property is situated, in the manner and within the time prescribed by law, except privileges for expenses of last illness, privileges arising upon the death of the owner of the property affected, and privileges for taxes, State parish and municipal; provided such tax liens, mortgages and privileges shall lapse in three years from the 31st day of December in the year in which the taxes are due, and whether such liens are now or hereafter recorded; and provided, further, that all taxes and licenses, other than real property taxes, shall prescribe in three years from the 31st day of December in the year in which such taxes or licenses are due.

"Privileges on movable property shall exist without registration of same, except in such cases as may be prescribed by law." (The italicized portion represents the amendment.)

Prior to the adoption of that amendment there was, under the laws of Louisiana, no prescription applicable to the claim of the State for corporation franchise taxes.

It is the contention of the respondent corporation that the amendment should be given retrospective effect, and that as a result it should be held that all of the claims asserted by the state are barred by the three-year prescription established by the amendment, whereas the State maintains that the amendment should be given only prospective effect and that the collection of those taxes which became due long prior to the adoption of the amendment should not be barred until the expiration of three years from the effective date of the amendment.

There are certain fundamental principles which are involved but concerning which, in spite of lengthy oral argument and in spite of the voluminous briefs, are not in reality in dispute. In the first place, there is a general rule concerning the question of whether statutes in general should be given retrospective effect and, of course, the rule is that such effect should not be accorded them. Our Civil Code so provides in Article 8:

"A law can prescribe only for the future; it can have no retrospective operation, nor can it impair the obligation of contracts."

This principle is so well recognized that no citation of authority is necessary. It is also well recognized, however, that if there is not involved the impairment of the obligation of a contract or the divestiture of vested rights, a statute may operate retrospectively if it is so worded that it is clear that its framers so intended; but the presumption, in general, that laws are intended to operate only prospectively is so strong that clear and unambiguous language is required to overcome it. In City of New Orleans v. Julien Vergnole, 33 La. Ann. 35, our Supreme Court quoted with approval the following from the well known Mr. Wade, a writer on the subject, "Retroactive Laws":

" 'One of the cardinal rules by which courts are governed in interpreting statutes is, they must be construed as prospective in every instance, except where the legislative intent that they shall act retrospectively is expressed in clear and unambiguous terms, or such intent is necessarily implied.' 'Every reasonable doubt as to the intention of the law-maker is resolved against rather than in favor of the retroactive operation of the statute.' "

This rule or rather this exception to the effect that statutes or constitutional provisions may operate retrospectively where the language clearly indicates that such was intended is also so well established as to require no further citation.

But the principles which we have so far discussed apply only to statutes or constitutional provisions affecting substantive rights and have no application where there is involved what is known as a remedial statute or provision which affects not the substantive rights of the parties but only the remedy or remedies which are to be availed of or resorted to in the enforcement of those rights. It is the general rule that where such remedial statutes or provisions are involved, unless a contrary intention is evidenced by the language employed, retrospective effect should be given. This, however, has not universally been held to apply to statutes changing periods of limitation--

"On the contrary, in most jurisdictions statutes of limitation are construed as prospective and not retrospective in their operation, in the absence of a clear legislative intent to the contrary, and the presumption is against any intent on the part of the legislature to make such a statute retroactive. * * *" American Jurisprudence, Vol. 34, Verbo Limitation of Actions, � 43.

However in some jurisdictions it is held that statutes involving limitations are purely remedial and that therefore they should be given retrospective effect unless their language clearly indicates the contrary intention. For instance, in the same volume and section from which we have just quoted appears the following:

"However, some courts take the view that since limitation laws apply only to the remedy, they are not within the principle that statutes should be given a prospective rather than a retrospective construction, and therefore that they should be construed as retrospective unless they contain language clearly limiting their application to causes of action arising in the future. * * *"

This view that remedial statutes are to be given retrospective effect unless the language used indicates that the lawmakers did not so intend and the further view that statutes fixing prescriptive periods are remedial seem to be well established in this state. In Paulsen v. Reinecke, 181 La. 917, 160 So. 629, 630, 97 A.L.R. 1184, our Supreme Court said:

"No citation of authority aside from Article 8 of the Civil Code need be given to support the general rule that laws, whether constitutional or statutory, should be construed to operate prospectively only, unless the words employed show a clear intention that they should have a retroactive effect. The language of Act No. 27, Second Ex. Sess. of 1934, does not indicate, much less show, a clear intention that it should act retrospectively.

"But counsel argue that this is a remedial statute, and it is true as they say that acts which are purely remedial in their nature are not subject to the above rule of interpretation unless their language plainly shows a contrary intention. Landry v. Grace, 167 La. 1042, 120 So. 770; Whittington v. Payne, 151 La. 595, 92 So. 128; Cassard v. Tracy, 52 La.Ann. 835, 27 So. 368, 49 L.R.A. 272; Dunning v. West, 51 La.Ann. 618, 25 So. 306."

See, also, Geddes & Moss Undertaking & Embalming Co., Ltd., v. First National Life Insurance Co., 189 La. 891, 901, 181 So. 436; Stallings v. Stallings, 177 La. 488, 148 So. 687; Landry v. Grace, 167 La. 1042, 120 So. 770; Dunning v. West, 51 La.Ann. 618, 25 So. 306; Whittington v. Payne, 151 La. 595, 92 So. 128, and Shreveport Long Leaf Lumber Co. v. Wilson, 195 La. 814, 197 So. 566.

In Sturges v. Crowninshield, 17 U.S. 122, 207, 4 Wheat. 122, 4 L.Ed. 529, the Supreme Court of the United States said:

"Statutes of limitations relate to the remedies which are furnished in the courts. * * *"

Mr. Sutherland, in his work on statutory construction, Vol. 2, second edition, Section 674, says:

"Where statutory relief is prescribed for a cause which is continuous in its nature, as a statute of limitations, or desertion for a certain time as ground for divorce, if the cause continues after the statute goes into effect, the future continuance of the cause may be supplemented by the time it was continuous immediately before the act was passed to constitute the statutory period. No person can claim a vested right in any particular mode of procedure for the enforcement or defense of his rights."

The principle that "prescription" affects the remedy seems to be well established here. See footnote 1932 Edition Dart's Louisiana Code of Practice-Art. 13, pages 7 and 8:

"Remedies are controlled by the laws of the state where the remedy is sought; prescription is a question affecting the remedy prescription, then, is governed by the lex fori, and not the lex loci contractus, Union Cotton Manufactory v. Lobdell, 7 Mart., N.S., 108; Erwin v. Lowry, 2 La. Ann. 314, 46 Am.Dec. 545; Newman v. Goza, 2 La.Ann. 642; Lacoste v. Benton, 3 La.Ann. 220; Brown v....