                   ~~~A~TORNEY             GENERAL
                              OF    TEXAS
                             Aus-    11.'Jk-
  GEEAID C.   MANN
  -N
A--          GENERAL




       Hon. George Ii.Sheppard
       Comptrollersof Public Accounts
       Austin, Texas
       Dear Sir:             Opinion No. O-1208
                             Re: Paragraph 13, sec. 1, House ~Bill 89,
                                  44th Legislature, does not apply re-
                                  trospectively; and money erroneously
                                  paid as gross production oil taxes
                                  prior to the passage of said Bill can-
                                  not be credited on the taxes that be-
                                  come due after the Bill takes effect.
               This is In answer to your inquiry in which you ask for
       our oplnlon on the question of whether or not a person who er-
       roneously paid more gross production oil taxes than were actually
       due for a period prior to May 30, 1935, can receive credit for
       such over-payment on the gross production oil taxes that become
       due and are owned by him after that date.
               Your question depends on whether or not paragraph 13 of
       sectlon 1, House Blll~~89,44th Legislature (codified as Article
       7057a, Vernon's Annotated Revised Civil Statutes), includes and
       applies to taxes erroneously paid prior to May 30, 1935, the
       date said House Bill went into effect. Said paragraph 13 reads
       as follows:
               "When it shall.appear that a taxpayer to
           whom the provisions of this Act shall apply has
           erroneously paid more taxes than were due during
           any tax paying period either on the account of
           a mistake of fact or law, it shall be the duty
           of the State Comptroller to credit the total
           amount of taxes due by such taxpayer for the cur-
           rent period with the total amount of taxes 80
           &roneously paid."
               This question was discussed In an opinion dated March
       9;1936,,by Mr, Hubert Faulk, an Assistant under Attorney Gen-
       eral McGraw, In which it was held that '!deductlonson account
       of~erroneous payments of taxes cannot be made behind,the effec-
       tive date of H. B, 89, which date was May 30, 1935.
                The question was reconsidered in Conference Opinion No.
Hon. George H. Sheppard, page 2        0-1208


2985, dated April 28, 1936, dtiringthe administration of Attor-
ney General McGraw, by Assistants Vernon Coe and W.W. Heath;
and the same conclusion reached.
        The gross production 011 tax law was In effect and was
known as House Bill 154 of the 43rd Legislature, prior to the
passage of House Bill 89 of the 44th Legislature In 1935.
H6use Bill 89 was only an amendment to House Bill 154, and it
made several changes in the gross production oil tax law; among
which was the addition of paragraph 13 in Section 1, as quoted
above.
        As to whether or not the Legislature intended for said
paragraph 13 to apply to taxes paid before it went into effect
nust be determined by the words of the paragraph. We can find
n~othlngin the other paragraphs of said House Bill 89 or in
the emergency clause or the caption thereof which aids us in
construing paragraph 13.
        We feel that the answer to this question Is controlled
by the rule stated in many cases, among which is the case of
Rockwall County vs. Kaufman County, 69 Tex. 172, 6 S.W. 431,
in which Justice Gaines said:
       ~"Mr. Bishop says: 'I,"the absence of any
    special Indication or reason, and as a common
    rule, a statute will not be applied retrospectlve-
    ly even when there is no constitutional impediment.
    Some of the cases appear to hold that, to work an
    exception to this rule, the retrospective intent
    must a pear In the words themselves.' Blsh. Writ.
    Law, 8$ * ....tietake it that in any case, in
    order to give a retrospective construction, tt
    should appear, at least by fair implication, from
    the language used, that it was the intent to make
    it applicable both to past and future cases."
        The same rule was followed in T. & N. 0. Ry. Co. VS.
Wells-Fargo Express Co., 101 Tex. 564, 11O~S.W. 38; American
Surety Company vs. Axtell Co., 120 Tex. 166, 36 S.W. (26) 715;
and City of Fort Worth.vs. Morrow (Clv. App.), 284 S.W. 275
(error refused). See also 39 Tex. Jur. 53.
        It does not appear from the language used in paragraph
13 of section 1 that the Legislature Intended for It to operate
retrospectively, that is, for it to apply to taxes prior to the
effective date of the law; and therefore we nust presume that
it operates prospectively, that Is, It applies only to taxes
paid after it went Into effect.
Hon. George H. Sheppard, page 3        O-1208


        We have been unable to find any Texas appellate court
cases Lnvolvlng retrospective and prospective application of
laws concerning the over-payment of taxes; but we did find a
Mlssisslppi case and a North Dakota case dealing with the
 uestion. In the case of M, C. R. Co. vs. City of Battlesburg
sSup. Ct. Miss.), 163 Miss. 311, 141 Sou. 897, a railroad com-
pany in 1923 by mistake voluntarily paid more ad valorem taxes
than it owed, and in 1926 a law was passed authorizing the re-
fund of taxes erroneously paid under the circumstances those
taxes were paid; and in holding that the Act did not apply to
payments made prior to its passage, the court said:
        "The Legislature in lg.26passed a law (Laws
    1926, c. 196) authorizing the refund of taxes
    erroneously paid, whether paid under protest or
    not, and the appellant contends that it was en-
    titled to a refund because repayment was applied
    for and demanded after the passage of this act.
       "In our opinion, this act has no application
   here, but contemplated a prospective, and not a
   retrospective, operation of the statute. Statutes
   will be given a prospective operation unless a
   contrary intention Is shown. Richards v. City
   Lumber Co. 101 Miss. 678, 57 So. 977.
       “A statute should not be given aneffect
   which Imposes an additional burden on past trans-
   actions, unless that plainly appears to be the
   Intention of the Legislature. Power v; Calvert
   Mortgage Co,, 112 Miss. 319, 73 So, 51; State v.
   Miller, 144 Miss. 614, 109 So. 900."
        In the case of Ford Motor Company vs. State (Sup. Ct.
N. Dak.), 59 N, Dak. 792, 231 N,W. 883, the court. Indetermining
whether OP not an amendment to the state income tax law Was
retrospective OP not, said:
        "The original Income tax law was enacted by
    E,";Legislative assembly in 1919. Laws 1919, c.
          Certain amendments were made by successive
    1eg;slatlve assemblies, but there was no law In
    force in North Dakota priop to July 1, 1923, which
    made any provision for a refund of Income tax
    payments made by a taxpayer in excess of the amount
    legally due from him. The legislative assembly
    in 1923 enacted a complete and comprehensive Income
    tax act. Laws 1923, c. 312, The title recites
    that it is an act to amend and re-enact the var-
    ious statutes of North Dakota relating to income
Hon. George H. Sheppard. page 4        0-1208


    tax (such acts being specifically enumerated).
    The act was approved March 7, 1923, but did not
    take force or become effective until July 1, 1923.
    The 1923 law contained the following provisions:
       "'Sec. 38. A taxpayer may apply to the tax
   commissioner for revision of the tax assessed -
   against him at any time within two years from the
   time of the filing of the return or from the date
   of the notice of the assessment of any addltional
   tax. The tax commissioner shall grant a hearing
   thereon, and If upon such bearing, he shall deter-
   mine that the tax Is excessive or incorrect, he
   shall resettle the same according to the law and
   the facts and adjust the computation of the tax ac-
   cordingly. ......
       "It is the contention of the appellant that
   the foregoing provisions of the 1923 law became
   and were applicable to excessive or illegal income
   tax payments exacted under the prior law, and that
   hence they furnished plaintiff a statutory remedy
   for the recovery of the payments in question here.
       "'An amendatory act, like other legislative
   enactments, takes effect only from the time of Its
   passage and has no application to prior transactions
   unless an Intent to the contrary is expressed in the
   act or clearly Implied from Its provlslons. ....I
   26 Am. & Eng. Ency. of Law (2d Rd.) p. 712.
       "'Unless the contrary Intent is clearly lndl-
   cated, the amended statute is to be construed as
   If the original statute had been repealed and a
   new and Independent act In the amended form had
   been adopted.' 25 R.C.L. p. 1067.
       "In speaking of the effect of an amendatory
   act (under a constitutional provision similar to
   sectlon 64 of the Constitution of North Dakota),
   Sutherland says:
       "'The amendment operates to repeal all of the
   section amended not embraced in the amended form.
   The portions of the amended sections which are
   merely copied withcut change are not to be consid-
   ered as repealed and again enacted, but to have
   been the law all along; and the new parts or the
   changed oortions are not to be taken to have been
   the law at any time orlor to the uassage of the
Hon. George H. Sheppard, page 5         0-1208


    amended act. The change takes effect urosuectlvely
    according to the general rule.' I Lewis, Sutherland,
    Stat. Const. pp. 442, 443.
        "We find nothing in chapter 312, Laws 1923,
    Indicating any Intention on the part of the Leg-
    islature that the new provisions embodied In that
    act should be retroactive in their operation, The
    presumption Is that the Legislature intended that
    they should operate prospectively only."
        Another reason why we are compelled to reach the con-
clusion that this paragraph 13 Is not retrospective is by vir-
tue of Section 44 of Article III of the Constltutlon of Texas,
and the construction placed thereon, which reads In part as
follows:
       "The Legislature O.D shall not .*. grant, by
   appropriation or otherwise, any amount of money
   out of the Treasury of the State, to any lndlvl-
   dual, on a claim, real or pretended, when the same
   shall not have been provided for by pre-existing
   law; 0..D"
        It is a well known rule of law that "a person who vol-
untarlly~pays an illegal tax has no claim for Its repayment."
Austin Natlonal'Bank VS. Sheppard, 123 Tex. 272, 71 S.W. (2d)
242. The courts hold that "such moneys cannot be recovered
back In any sort of suit, either at law or ln~equity." State
  . Perlsteln 79 S,W. (2d) 143; and Austin National Bank vs.
ZZeppard, supia. By virtue of these rules of law a person who
by mistake voluntarily paid prior to May 30, 1935, more money
as gross production oil tax than was due, such person would
have no claim for hia money back. He could not maintain a
suit for his money back; and by virtue of the above quoted pro-
vision-of the Constitution, the Legislature could not pay him
his money back. Th1.sbeing true, we are forced to the conclu-
sion that the Legislature cannot reimburse a person for money
he erronecruslypays as taxes by allowing such person to deduct
that amount from the taxes that later become due and that he
will be required to pay under the law, because to do so would
be to allow the Legislature to do indirectly what It cannot do
directly.
        We are in accord with the conclusions reached In the
two opinions referred to above, Our answer to your inquiry is
that paragraph 13 of sectfon 1, House Bill 89, 44th Legislature,
applies prospectively and not retrospectively, and that a person
who erroneously paid more gross production oil taxes than were
actually due for a period prior to May 30, 1935, cannot receive
credit for such over-payment on the gross production oil tax
                                                      -   ^




Hon. George H. Sheppard, page 6        0-1208


that became due and Is owed by him after that date.
                            Yours very truly
                          ATTORNJ3YGENERAL OF TEXAS
                            By s/Cecil C. Rotsch
                                 Cecil C. Rotsch
                                 Assistant
CCR:pbp:wc

APPROVED SEP 27, 1939
s/Gerald C. Mann
ATTORNEYGENERALOF TEXAS
Approved Opinion Committee By s/BWB Chairman
