During the period involved in this action appellees were engaged in the plumbing business, and in their activities in said business, according to the allegations of the declaration, appellees "supplied materials and labor, and installed said plumbing and said heating plants, and supplied the instrumentalities for doing said work, and the gross income received therefrom was based on a fixed, lump sum price, for said material, labor and workmanship, and no part of said gross income was derived from the sale of tangible property and no part of said material was sold by the (plaintiffs) appellees to their customers." The allegations are further that the State Tax Commissioner demanded of appellees the payment of a sales tax on the gross income from said activities on the claim that there was involved therein the sale of personal property, which tax was paid by appellees and the action was to recover the amounts so paid, as allowed by Section 10122, Code 1942, as that section read when the action was instituted.
The facts as above stated were admitted, and on the trial the circuit court awarded judgment to the plaintiffs, which was correct as the law existed at the time of the rendition of the judgment, the transaction in question involving a work of service not sales of personal property, as was ruled by us in Singing River Tire Shop v. Stone, 21 So. 2d 580, and as foreshadowed in Cook v. Stone, 192 Miss. 219, 5 So. 2d 223.
The judgment was rendered on December 4, 1945, and the Tax Commissioner took an immediate appeal therefrom. Pending the appeal the Legislature, at its recent *Page 811 session, amended the said Section 10122, Code 1942, the amended act having been approved on March 19, 1946, by which two limitations or provisos were annexed to the statute allowing suit against the State Tax Commissioner, these provisos being as follows:
"Provided, however, that in any such suit, the plaintiff must allege and prove that he alone bore the burden of the tax sued for, and did not directly or indirectly collect the tax from his customers. It being the declared purpose of this section to make certain that any taxes refunded will go to the one who has borne the burden of the illegal tax, and therefore is entitled in justice and good conscience to such relief, and is therefore the real party in interest. It shall not be necessary for the taxpayer to protest against the payment of the tax or to make any demand to have the same refunded in order to maintain such suit. In any suit to recover taxes paid or to collect taxes the court shall adjudge costs to such extent and in such manner as may be deemed equitable.
"Provided, further, that all suits to recover taxes under this section shall be filed within three years next after the payment of such taxes."
The real question before the Court is, therefore, what is the effect of the subsequent act of the legislature on the judgment herein rendered. Upon that inquiry two propositions are beyond the range of debate in this State, and the first is that no right of action exists against the State except as allowed and prescribed by statute, and this in express terms and not by implication; and the second is that an action against a state officer to recover money which except for the action would belong to the State, is an action against the State within the rule first stated. And it is further settled in our jurisprudence that when a right of action or remedy is created solely by statute and does not exist at common law, the repeal of the statute has the same effect as had the statute never existed; or, if the statute is modified or amended the effect is the same as had the statute previously existed all the while in the *Page 812 same language as the amending act, unless there is a saving clause, and there is none here. Deposit Guaranty Bank Tr. Co. v. Williams, 193 Miss. 432, 9 So. 2d 638, and the cases therein cited.
Moreover, the effect of the rule is that it applies not only to actions already instituted, but also to any judgment rendered by the trial court under the old statute, but which judgment is covered by an appeal pending at the time of the repealing or amendatory enactment, it being the duty of the appellate court to decide the case according to the law at the time when the matter is acted on by that court rather than on the law theretofore existing. Musgrove v. Vicksburg N.R. Co., 50 Miss. 677, 682, and compare Crow v. Cartledge, 99 Miss. 281, 54 So. 947, Ann. Cas. 1913E, 470. This is the rule which prevails as well in other jurisdictions, as may be seen by the text and the note cases, 59 C.J. pp. 1189, 1190, and 3 Am. Jur. pp. 668, 669, Sec. 1157.
It is sufficiently well settled also that a state's consent to be sued is not a contract and may be repealed or modified at any time even though pending suits are thereby defeated. 59 C.J. p. 306, and cases there cited. The rule is more fully stated in 49 Am. Jur. p. 316, Sec. 99, as follows:
"After the legislature enacts a statute giving the consent of the state to the bringing of suits against it, it may at any time it thinks proper withdraw that consent and thus deny the right of a suitor to maintain an action against the state, or it may change the condition under which it will permit the state to be sued. It may withdraw the consent or change the conditions and requirements after a claim against the state arises, and make it effective as to that claim, and even after suit is instituted on a claim the state may withdraw its consent or impose different conditions, thus causing the abatement of the pending suit. A change in the conditions upon which the consent of the state to suits against it may be invoked, or the withdrawal of that consent, does not, although made *Page 813 effective as to existing claims, impair the obligation of contracts. . . ."
It follows from what has been said that the amended act abates the action as to all payments made more than three years before the suit was filed, and that as to those not barred the plaintiffs must allege and prove that they alone bore the burden of the taxes sued for, that is, that they themselves paid it, and did not collect it from their customers.
Reversed and remanded.