State Ex Rel. Attorney General v. Anderson-Tully Co.

I do not agree with the majority in holding that act 281 of the Acts of 1931 is retroactive. The majority opinion holds that it was the intention to accomplish two things: first, to prevent the bringing of any new proceedings; second, to prevent the further prosecution of any proceedings which may have been pending at the effective date of the act, except under the terms of the act.

I think if the Legislature had intended that the act should be retroactive, it would have said so in so many words, and I think that the expression of the Legislature, "no proceedings shall hereafter be brought or maintained," etc., has reference to future suits and not to suits already brought. Of course, the question is the intention of the Legislature, but that intention must be ascertained from the language used by the Legislature.

"It is said that a law will not be given a retrospective operation unless that intention has been manifested by the most clear and unequivocal expression. * * * The rule is that statutes are prospective, and will not be construed to have retroactive operation unless the language *Page 176 employed in the enactment is so clear it will admit of no other construction." Lewis-Sutherland on Statutory Construction, Vol. 2, 1157 et seq.

"Even though the Legislature may have the power to enact retrospective laws, a construction which gives to a statute a retroactive operation is not favored, and such effect will not be given unless it is distinctly expressed, or clearly and necessarily implied, that the statute is to have a retroactive effect. There is always a presumption that statutes are intended to operate prospectively only, and words ought not to have a retrospective operation unless they are so clear, strong, or imperative that no other meaning can be annexed to them, or unless the intention of the Legislature cannot be otherwise satisfied. Every, reasonable doubt is resolved against a retroactive operation of the statute." 25 R.C.L. 787-788; 59 C.J. 1161; People v. Foreman, 296 Ill. 497,129 N.E. 788; Walton v. Woodward, 73 Kan. 238,84 P. 1028.

It is held by the majority, however, that the act is retroactive because it uses the expression "brought or maintained." I do not think "maintained" has any such meaning here, and it cannot be said that it was so clearly the intention of the Legislature to make the act retroactive that there can be no doubt about it. The Legislature could have said, and if it intended that it probably would have said that this act shall apply to pending suits. I think it was clearly the intention of the Legislature to provide that hereafter no suit should be brought and maintained except for acts of fraud, etc.

The act provides that it shall take effect, and be in force from and after its passage. That necessarily meant ninety days after the adjournment of the Legislature, and it was, in my judgment, not the intention of the Legislature that it should apply to pending suits.

A suit might have been pending at the time of the act, and might have been disposed of before ninety days elapsed. In that case, of course, it could not apply. *Page 177

The word "maintained," if it had been used alone, would have meant, "to begin and prosecute the action to final judgment."

In a Connecticut statute, the Legislature used the word "maintained," and it was contended that this made the statute retroactive. The Supreme Court of Connecticut, however, said: "We have therefore no question as to the constitutionality of a law which in direct and positive terms is made to act retrospectively; our duty is simply that of construction.

"One of the firmly established canons for the interpretation of statutes declares that all laws are to commence in the future and operate prospectively, and are to be considered as furnishing a rule for future cases only, unless they contain language unequivocally and certainly embracing past transactions. The rule is one of such obvious convenience and justice as to call for jealous care on the part of the court to preserve and protect it. Retroaction should never be allowed to a statute unless it is required by express command of the Legislature or by an unavoidable implication arising from the necessity of adopting such a construction in order to give full effect to all of its provisions." Smith v. Lyon,44 Conn. 175; Burbank v. Inhabitants of Auburn,31 Me. 590; Gunpper v. Waterbury Traction Co., 68 Conn. 424,36 A. 806.

The act of 1931 provides that no proceedings shall hereafter be brought or maintained for the reassessment of the value of property after the assessment and full payment of any general property privilege or excise tax.

Section 2 of the act provides that all suits which may be brought under the provisions of the act shall be conducted by the Attorney General as other suits brought in the name of the State.

When the whole act is read, it seems to me to be perfectly clear that the Legislature did not intend the act to be retroactive. If it had, it would have used words that made it clear beyond doubt. It did not do this. On *Page 178 the contrary, section 2, which has reference to the suits provided for by this act, does not use the word "maintained" at all.

I think that the complaint stated a cause of action under act 281 of the Acts of 1931.

The second amendment to the plaintiff's complaint not only alleged that the lands were worth $50 or more an acre, and that they were assessed for $4.17 an acre, but it also alleged that the assessment was far below other similar property, and was slightly more than one-fourth as much as other real estate generally in the county was assessed; that the assessments were so grossly inadequate as to shock the conscience and constitute an actual fraud by defendant.

It further charged that the lands were timber lands, and located in the overflow area of the Mississippi River, and covering so vast an area that it made it difficult or impossible for the taxing officials to make any estimate of the value thereof, but that said officials were compelled to rely wholly on the representations of defendant as to said value, and all former assessments have been made on the faith of such representations. It might be that the complaint was such that the court should have sustained a motion to make more definite and certain, but certainly it charged fraud committed by the defendant, because it said that the taxing officials were compelled to rely and did rely on the defendant, and that defendant made the representation as to the value of the property, and fraudulently stated that it was worth less than one-fourth of its actual value, and that the taxing officials relied on these representations, believing them to be true. This is certainly the meaning of the allegation, and I think is sufficient to charge actual fraud. Of course, whether these are true would depend upon the evidence.

This court has frequently held that in testing the sufficiency of a pleading by general demurrer, every reasonable intendment should be indulged to support it. Ellis v. First Natl. Bank, 163 Ark. 471, 260 S.W. 714. *Page 179

"Contrary to the common-law rule, under our Code every possible intendment and presumption is to be made in favor of a pleading, and a complaint will not be set aside on demurrer unless it be so fatally defective that, taking all the facts to be admitted, the court can say that they furnish no cause of action whatever." Wright v. Lake, 178 Ark. 1184, 13 S.W.2d 826.

Taking the facts to be admitted in this case, it is admitted that the defendant itself made false representations, and that it was impossible for the taxing officers to ascertain the value of the land otherwise, and that they relied on the representations bade by the defendant.

Can it be said that these facts, if admitted, furnish no cause of action whatever? I do not think so.

The complaint also alleged that appellant failed to assess its taxes as required by law. The act expressly provides that such failure shall be prima facie evidence of fraud. The act as construed by the majority does not mean anything. There could not be a suit maintained under it. I think if the Legislature had intended to repeal the law, it would have said so.

I think the complaint charges fraud on the part of the defendant, and that the case should be reversed and remanded for trial.

Mr. JUSTICE HUMPHREYS agrees with me in the views herein expressed.