dissenting.
I respectfully dissent from the majority opinion. The majority is to be congratulated on its able exposition of the principles governing the prospective or retroactive application of the constitutional rulings of the United States Supreme Court. This will, no doubt, gratify legal scholars, but, alas, it has nothing to do with the case before us.
The dispositive question in this case is whether KRS 134.580(6) and 134.590 mean what they say. I believe they do, the majority does not. By these statutes the General Assembly has clearly expressed its will that tax payments made under a statute later held to be unconstitutional shall be refunded provided application for refund is made within two years of each payment of such taxes. The statutes make no distinction as to whether the particular holding of unconstitutionality is to be applied retroactively or prospectively, and so far as I am aware the highest court in this state, which has considered these statutes and their predecessor statutes many times has never intimated that this kind of distinction was appropriate. See, e.g., Department of Revenue v. Jack Cole Co., Ky., 474 S.W.2d 70 (1971). In short, when a judicial declaration of invalidity is effective is of no significance under these statutes. It is the declaration itself which triggers them.
For a court to interpolate a requirement into these statutes that a declaration of constitutional invalidity must be given retroactive effect for them to’ apply amounts to a judicial frustration of what is a plain and legitimate expression of the will of the General Assembly in favor of that court’s notion of what ought to be public policy. Presumably no sane taxpayer would continue to pay taxes under a statute determined by the courts to be unconstitutional, yet under this court’s holding today only those taxpayers who paid the tax after the statute was declared invalid would be entitled to a refund, unless the declaring court elected to give its holding retroactive application.