Laws prescribe only for the future; they cannot impair the obligation of contracts nor, ordinarily, have a retrospective operation. Laws looking only to the remedy or mode of trial may apply to contracts, rights, and offenses entered into, accrued, or committed prior to their passage; but in every case a reasonable time subsequent to the passage of the law should be allowed for the citizen to enforce his contract or to protect his right.
(Orig. Code 1863, § 7; Code 1868, § 6; Code 1873, § 6; Code 1882, § 6; Civil Code 1895, § 6; Penal Code 1895, § 3; Civil Code 1910, § 6; Penal Code 1910, § 3; Code 1933, § 102-104.)
Cross references.- Restrictions upon powers of states, U.S. Const., Art. I, Sec. 10, Cl. 1. Bill of attainer; ex post facto laws; and retroactive laws, Ga. Const. 1983, Art. I, Sec. I, Para. X.
Law reviews.- For article, "Synopses of 1968 Amendments Appellate Procedure Act and Georgia Civil Practice Act," see 4 Ga. St. B. J. 503 (1968). For comment on Griffin v. Air S., Inc., 324 F. Supp. 1284 (N.D. Ga. 1971), see 8 Ga. St. B. J. 414 (1972). For comment on statutes of limitations in medical malpractice actions in Georgia, see 33 Mercer L. Rev. 377 (1981).
JUDICIAL DECISIONSANALYSIS
This is the general rule of statutory construction. Focht v. American Cas. Co., 103 Ga. App. 138, 118 S.E.2d 737 (1961).
Legislative intent governs whether law prospective in application.
- Where it is possible to determine the intent of the General Assembly, unless there are constitutional obstacles, the intent of the General Assembly will govern as to whether a law is prospective only in its application. Focht v. American Cas. Co., 103 Ga. App. 138, 118 S.E.2d 737 (1961).
Legislation affecting substantive rights operates prospectively only.
- Although legislation which involves mere procedural or evidentiary changes may operate retrospectively, legislation which affects substantive rights may operate prospectively only. Enger v. Erwin, 245 Ga. 753, 267 S.E.2d 25 (1980).
Appellate courts must apply law as it exists at time of the appellate court judgment, even though it may change the judgment of the trial court which was correct at the time it was rendered. Clary v. State, 151 Ga. App. 301, 259 S.E.2d 697 (1979).
Cited in Hutchinson v. Brown, 47 Ga. App. 82, 169 S.E. 848 (1933); Hancock County v. Hancock Nat'l Bank, 67 F.2d 421 (5th Cir. 1933); Shaw v. National Life Ins. Co., 180 Ga. 755, 180 S.E. 721 (1935); Evans v. Evans, 190 Ga. 364, 9 S.E.2d 254 (1940); Renfroe v. Butts, 192 Ga. 720, 16 S.E.2d 551 (1941); Lowe v. City of Atlanta, 194 Ga. 317, 21 S.E.2d 171 (1942); Clarke v. Carlan, 196 Ga. 130, 26 S.E.2d 362 (1943); Jacobs v. State, 200 Ga. 440, 37 S.E.2d 187 (1946); Leathers v. Turner, 75 Ga. App. 62, 41 S.E.2d 921 (1947); Williams Bros. Lumber Co. v. Anderson, 210 Ga. 198, 78 S.E.2d 612 (1953); Lott v. Lott, 212 Ga. 672, 94 S.E.2d 869 (1956); Williams v. State, 213 Ga. 221, 98 S.E.2d 373 (1957); Sharpe v. Lowe, 214 Ga. 513, 106 S.E.2d 28 (1958); Thompson v. Metropolitan Life Ins. Co., 115 Ga. App. 724, 155 S.E.2d 728 (1967); F.H. Ross & Co. v. White, 224 Ga. 324, 161 S.E.2d 857 (1968); Hare v. United Airlines Corp., 295 F. Supp. 860 (N.D. Ga. 1968); Cohen v. Garland, 119 Ga. App. 333, 167 S.E.2d 599 (1969); Hawes v. National Serv. Indus., Inc., 121 Ga. App. 775, 175 S.E.2d 34 (1970); Elliott v. Leavitt, 122 Ga. App. 622, 178 S.E.2d 268 (1970); Southern Land, Timber & Pulp Corp. v. United States, 322 F. Supp. 788 (N.D. Ga. 1970); Todd v. State, 228 Ga. 746, 187 S.E.2d 831 (1972); Turner v. Bank of Zebulon, 128 Ga. App. 404, 196 S.E.2d 668 (1973); Montaquila v. Cranford, 129 Ga. App. 787, 201 S.E.2d 335 (1973); Nelson v. Bloodworth, 238 Ga. 264, 232 S.E.2d 547 (1977); Wansor v. George Hantscho Co., 243 Ga. 91, 252 S.E.2d 623 (1979); Insurance Co. of N. Am. v. Henson, 150 Ga. App. 788, 258 S.E.2d 706 (1979); Holley v. State, 157 Ga. App. 863, 278 S.E.2d 738 (1981); Smith v. Seaboard Coast Line R.R., 639 F.2d 1235 (5th Cir. 1981); Allrid v. Emory Univ., 248 Ga. 588, 285 S.E.2d 521 (1982); DOT v. Delta Mach. Prods. Co., 162 Ga. App. 252, 291 S.E.2d 104 (1982); Henderson v. State, 162 Ga. App. 320, 292 S.E.2d 77 (1982); Municipal & Indus. Pipe Serv., Ltd. v. Walter E. Heller & Co., 163 Ga. App. 677, 296 S.E.2d 68 (1982); Buckley v. Sears, Roebuck & Co., 165 Ga. App. 838, 299 S.E.2d 744 (1983); Synalloy Corp. v. Newton, 171 Ga. App. 194, 319 S.E.2d 32 (1984); Eig v. Savage, 177 Ga. App. 514, 339 S.E.2d 752 (1986); Dunn v. State, 177 Ga. App. 6, 341 S.E.2d 877 (1986); Godfrey v. State, 183 Ga. App. 183, 358 S.E.2d 264 (1987); A.H. Friedman, Inc. v. Augusta Burglar Alarm Co., 186 Ga. App. 769, 368 S.E.2d 534 (1988); LFE Corp. v. Edenfield, 187 Ga. App. 785, 371 S.E.2d 435 (1988); Department of Cors. v. Hicks, 209 Ga. App. 165, 433 S.E.2d 64 (1993); Bieling v. Battle, 209 Ga. App. 874, 434 S.E.2d 719 (1993); Sardy v. Hodge, 264 Ga. 548, 448 S.E.2d 355 (1994).
Impairing Obligation of Contracts
Repealing Act will not be given a retroactive operation, so as to divest previously acquired rights, or to impair the obligation of a contract lawfully made by virtue of and pending the existence of the law repealed. Bank of Norman Park v. Colquitt County, 169 Ga. 534, 150 S.E. 841 (1929).
Substantive right which has vested cannot be changed or impaired by a subsequent statute. Spengler v. Employers Com. Union Ins. Co., 131 Ga. App. 443, 206 S.E.2d 693 (1974).
Test is whether there was a vested right. If so, no subsequent legislative Act could impair it, but if not, there is no bar to a change or abolition of it at any time before it becomes fixed by a judgment. Spengler v. Employers Com. Union Ins. Co., 131 Ga. App. 443, 206 S.E.2d 693 (1974); Aetna Ins. Co. v. Windsor, 133 Ga. App. 159, 210 S.E.2d 373 (1974).
This section forbids the passage of laws which impair vested rights. The test is whether there was a vested right. If so, no subsequent legislative Act could impair it, but if not, there is no bar to a change or abolition of it at any time before it becomes fixed by a judgment. Goolsby v. Regents of Univ. Sys., 141 Ga. App. 605, 234 S.E.2d 165 (1977).
Subrogation rights.
- Any subrogation rights are vested and therefore cannot be abrogated by a later statute. Blaylock v. Georgia Mut. Ins. Co., 239 Ga. 462, 238 S.E.2d 105 (1977).
Subsequent legislation cannot impair rights created by constitutional Act.
- A constitutional Act of the General Assembly is equivalent to a contract, and when performed, is a contract executed; whatever rights are thereby created, subsequent legislation cannot impair. Spengler v. Employers Com. Union Ins. Co., 131 Ga. App. 443, 206 S.E.2d 693 (1974).
A constitutional Act of the General Assembly has been found to be the equivalent of a contract and the rights created thereby may not be impaired by subsequent legislation. Enger v. Erwin, 245 Ga. 753, 267 S.E.2d 25 (1980).
Section applicable to contracts existing at time of section's enactment.
- This section, so far as it inhibits the state from passing a law impairing the obligation of contracts, applies to contracts existing at the time of the enactment of the section. Redd v. Hargroves, 40 Ga. 18 (1869) see also Bass v. Ware, 34 Ga. 386 (1866).
Legislative instructions to officer resorted to in determining Act's intention.
- The General Assembly cannot, by resolution, change the obligation of a contract made under a previous Act. But if they instruct a public officer as to his duties under the contract, the resulting duties may be resorted to in determining the intention of the General Assembly in passing the Act. Georgia Penitentiary Co. No. 2 v. Nelms, 65 Ga. 67 (1880).
State's obligation to pay bonds not impaired by requiring registration.
- An Act requiring registration of past matured bonds neither repudiates bonds, nor takes away any remedy from the holder, nor impairs the state's obligation to pay any valid bonds. Gurnee, Jr. & Co. v. Speer, 68 Ga. 711 (1882).
Employment contract not impaired by taking away employer's right against interfering parties.
- An Act taking away the right of an employer against parties interfering with the contract of employment does not impair the obligation of the contract. Caldwell v. O'Neal, 117 Ga. 775, 45 S.E. 41 (1903).
Land purchaser under deed older than former provision may acquire title to growing crops.
- Former Code 1910, § 3651 (1), which declares all crops to be personalty, does not prevent the purchaser of lands under a security deed older than the section from acquiring the title to crops growing in such lands. Chason v. O'Neal, 158 Ga. 725, 124 S.E. 519 (1924) (For present comparable provisions, see O.C.G.A. § 11-2-107).
Contract by county school superintendent in 1918 for school supplies not void.
- A contract made and an indebtedness incurred by a county superintendent of schools in 1918, on behalf of the county board of education, for school supplies and furnishings, which were placed in the schoolhouses of the county and put to use by the pupils thereof, was prior to the enactment of former Code 1933, § 32-928 (see now O.C.G.A. § 20-2-504,) and therefore was not void under this provision, which was applicable to contracts made before its passage. Board of Educ. v. Southern Mich. Nat'l Bank, 184 Ga. 641, 192 S.E. 382 (1937).
Provisions on reversion of realty to guarantor unconstitutional as applied to prior executed deed.
- Ga. L. 1953, Nov.-Dec. Sess., p. 313, § 1 (see now O.C.G.A. § 44-14-80), providing that title to real property conveyed to secure a debt should revert to the grantor when the debt becomes 20 years past due, imposed conditions upon a grantee not in existence at the time of the execution of the grantee's contract, divested the grantee of the grantee's vested right to the property, and impaired the obligation of the grantee's contract, and, as applied to the deed, which was executed prior to the passage and effective date of the section, is unconstitutional. Todd v. Morgan, 215 Ga. 220, 109 S.E.2d 803 (1959).
Application to O.C.G.A. § 16-17-1. - Request by creditors for a preliminary injunction blocking the enforcement of O.C.G.A. §§ 16-17-1 to16-17-10 (the Act), which prohibited payday loans, did not address a case or controversy because the Act did not apply retroactively to loans made before its effective date; even if the Georgia Attorney General had not explicitly conceded this point, O.C.G.A. § 1-3-5 prohibited the retroactive application to impair the obligation of existing contracts. BankWest, Inc. v. Baker, 446 F.3d 1358 (11th Cir. 2006).
Retrospective Operation
What enactments are prohibited.
- Only retrospective enactments which are ex post facto in their character, that is, those whose effect is to impair the obligation of contracts, or to divest vested rights, are within the constitutional prohibition against retroactive legislation. Hart v. Owens-Illinois, Inc., 161 Ga. App. 831, 289 S.E.2d 544, rev'd on other grounds, 250 Ga. 397, 297 S.E.2d 462 (1982).
Retrospective statutes are forbidden by the first principles of justice. Redd v. Hargroves, 40 Ga. 18 (1869); Jones v. Rountree, 96 Ga. 230, 23 S.E. 311 (1895); Bank of Norman Park v. Colquitt County, 169 Ga. 534, 150 S.E. 841 (1929).
Retroactive laws are prohibited. Anthony v. Penn, 212 Ga. 292, 92 S.E.2d 14 (1956).
Ex post facto laws are prohibited. Akins v. State, 231 Ga. 411, 202 S.E.2d 62 (1973).
Term "ex post facto" refers to criminal statutes. Goolsby v. Regents of Univ. Sys., 141 Ga. App. 605, 234 S.E.2d 165 (1977).
Settled rule for the construction of statutes, is not to give them a retrospective operation, unless the language so imperatively requires. Moore v. Gill, 43 Ga. 388 (1871); Bussey v. Bishop, 169 Ga. 251, 150 S.E. 78 (1929); Bank of Norman Park v. Colquitt County, 169 Ga. 534, 150 S.E. 841 (1929); Seaboard Air Line Ry. v. Benton, 175 Ga. 491, 165 S.E. 593 (1932); Walker County Fertilizer Co. v. Napier, 184 Ga. 861, 193 S.E. 770 (1937); National Sur. Corp. v. Gatlin, 192 Ga. 293, 15 S.E.2d 180 (1941); FDIC v. Beasley, 193 Ga. 727, 20 S.E.2d 23 (1942); Eibel v. Forrester, 194 Ga. 439, 22 S.E.2d 96 (1942); Jaro, Inc. v. Shields, 123 Ga. App. 391, 181 S.E.2d 110 (1971); Town of Lyerly v. Short, 234 Ga. 877, 218 S.E.2d 588 (1975); Watkins v. Barber-Colman Co., 625 F.2d 714 (5th Cir. 1980); Landmark Fin. Corp. v. Cox, 2 Bankr. 739 (S.D. Ga. 1980).
Laws prescribe only for the future. and generally have no retroactive operation, and the settled rule for the construction of statutes is not to give them a retrospective operation, unless the language imperatively requires such construction. London Guarantee & Accident Co. v. Pittman, 69 Ga. App. 146, 25 S.E.2d 60 (1943).
Laws prescribe for the future. Unless a statute, either expressly or by necessary implication, shows that the General Assembly intended that it operate retroactively, it will be given only prospective application. Anthony v. Penn, 212 Ga. 292, 92 S.E.2d 14 (1956).
Statutes operate retrospectively where legislative intent or purpose clear.
- Statutes prescribe only for the future and generally do not have a retrospective operation. They shall be so construed as to give them a prospective operation only, and they shall be permitted to operate retrospectively only where the intention to have them so operate is clear and undoubted. Talmadge v. Cordell, 170 Ga. 13, 152 S.E. 91 (1930).
The general rule is that laws prescribe only for the future and usually will not be given a retrospective operation; however, they will be given a retrospective effect when the language imperatively requires it, or when an examination of the Act as a whole leads clearly to the conclusion that such was the legislative purpose. Barnett v. D.O. Martin Co., 191 Ga. 11, 11 S.E.2d 210 (1940).
The general rule is that laws prescribe only for the future and usually will not be given a retrospective operation. They will be given a retrospective effect, however, when the language imperatively requires it, or when an examination of the Act as a whole leads clearly to the conclusion that such was the legislative purpose. It is at last and always a question of legislative intent. Biddle v. Moore, 87 Ga. App. 524, 74 S.E.2d 552 (1953).
O.C.G.A. § 1-3-5 expresses only a preference against retroactive applications. It does not absolutely forbid retroactive applications. Ferrero v. Associated Materials, Inc., 923 F.2d 1441 (11th Cir. 1991).
Where no express intent, presumed that legislation prospective.
- Where the legislative intent as to whether a statute is to be given retrospective effect is not expressly stated, it is presumed that the intent was that the legislation be prospective in effect. Biddle v. Moore, 87 Ga. App. 524, 74 S.E.2d 552 (1953).
Amendments of previous statutes are construed as intended to have operation on future transactions only, and as having no retrospective purpose not plainly expressed in the amendment. FDIC v. Beasley, 193 Ga. 727, 20 S.E.2d 23 (1942).
It is a general rule applicable to amending statutes that they are to be construed as intended to have operation on future transactions only, and as having no retroactive purpose not plainly expressed. Layton v. Liberty Loans, 152 Ga. App. 504, 263 S.E.2d 167 (1979), rev'd on other grounds, Finance Am. Corp. v. Drake, 154 Ga. App. 811, 270 S.E.2d 449 (1980).
Trial court did not err when the court applied the 2006 version of O.C.G.A. § 9-11-68 in the property owners' action against the builders because inasmuch as the owners did not obtain any judgment amount in the owners favor it did not matter whether the original or amended version of the statute was applied, or whether the amendment was substantive or procedural in nature; under either version of the statute the owners were liable for the builders' reasonable fees and expenses from the date the offer of settlement was rejected. O'Leary v. Whitehall Constr., 288 Ga. 790, 708 S.E.2d 353 (2011).
Former O.C.G.A. 11-9-403 construed.
- The legislature intended that the 1985 amendment of former O.C.G.A. § 11-9-403 (filing of financing statement) should apply to financing statements originally filed on or after July 1, 1985 and should not apply retroactively to prior filed financing statements. Rainbow Mfg. Co. v. Bank of Fitzgerald, 129 Bankr. 702 (Bankr. M.D. Ga. 1991), rev'd on other grounds, 150 Bankr. 857 (M.D. Ga. 1993).
Repealing Act will not be given a retrospective operation. Dennington v. Mayor of Roberta, 130 Ga. 494, 61 S.E. 20 (1908).
Statute creating new obligation, or destroying or impairing vested rights, deemed retroactive.
- A statute is "retroactive" in the legal sense when it creates a new obligation on transactions or considerations already past, or destroys or impairs vested rights. Ross v. Lettice, 134 Ga. 866, 68 S.E. 734 (1910).
Upon principle, every statute which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past, must be deemed retrospective. London Guarantee & Accident Co. v. Pittman, 69 Ga. App. 146, 25 S.E.2d 60 (1943).
Statute intending to affect antecedent transactions and rights.
- A statute does not operate retrospectively because it relates to antecedent facts, but if it is intended to affect transactions which occurred or rights which accrued before it became operative as such, and ascribe to them essentially different effects, in view of the law at the time of their occurrence, it is retroactive in character. London Guarantee & Accident Co. v. Pittman, 69 Ga. App. 146, 25 S.E.2d 60 (1943).
A statute is "retroactive" in its legal sense which creates a new obligation on transactions or considerations already past, or destroys or impairs vested rights. A statute does not operate retrospectively because it relates to antecedent facts, but if it is intended to affect transactions which occurred or rights which accrued before it became operative as such, and ascribe to them essentially different effects, in view of the law at the time of their occurrence, it is retroactive in character. Todd v. Morgan, 215 Ga. 220, 109 S.E.2d 803 (1959).
Section on "new county" not applicable to existing counties.
- The words "new county," as used in a section which relates to charging the administration of an estate, did not apply to counties existing at the time the section became effective. Jones v. Rountree, 96 Ga. 230, 23 S.E. 311 (1895).
Legislative Acts will not be so construed where they would effect revocation of a will. Redd v. Hargroves, 40 Ga. 18 (1869).
Title 33 (Insurance) was not intended to and could not have had any retrospective effect. Chatham County Hosp. Auth. v. John Hancock Mut. Life Ins. Co., 325 F. Supp. 614 (S.D. Ga. 1971).
Georgia workers' compensation law that takes effect after an employment relationship is terminated should not be applied to determine the liability of a party to that relationship since such would constitute an impermissible retrospective application of the law. Hall v. Synalloy Corp., 540 F. Supp. 263 (S.D. Ga. 1982).
Product liability provision not given retroactive effect.
- Since a new cause of action in tort has been established by the General Assembly by its amendment of former Code 1933, § 105-106 (see now O.C.G.A. § 51-1-11) in 1968, it follows that this provision may not be given retroactive effect. Wansor v. George Hantscho Co., 595 F.2d 218 (5th Cir. 1979).
O.C.G.A.
§ 13-8-2.1 construed. - Retroactive application of O.C.G.A. § 13-8-2.1, permitting contracts in partial restraint of trade, did not violate this Code section. Ferrero v. Associated Materials, Inc., 923 F.2d 1441 (11th Cir. 1991).
Criminal Justice Act construed.
- Upon the defendant's constitutional challenge to the retrospective application of three provisions of the Criminal Justice Act, 2005 Ga. Laws 20 (Act), no reversible error resulted from challenges to the closing arguments and admission of character evidence, as: (1) the former was not distinctly ruled upon by the lower court; and (2) the lower court sustained objections to the admissibility of character evidence, and thus, the state could not introduce character evidence regarding the defendant's prior criminal convictions; moreover, a change in the number of the defendant's peremptory challenges by the Act did not affect any protected right by the application of the amended version of O.C.G.A. § 15-12-165, as strikes were procedural and not substantive in nature. Madison v. State, 281 Ga. 640, 641 S.E.2d 789 (2007).
Remedial Laws
Laws operating upon the remedy are not unconstitutional and void. Crawford v. Irwin, 211 Ga. 241, 85 S.E.2d 8 (1954).
Remedial change in the law may validly operate retroactively. Bryan v. Bryan, 242 Ga. 826, 251 S.E.2d 566 (1979).
Statutes which are merely remedial in nature may be applied to pending actions. Landmark Fin. Corp. v. Cox, 2 Bankr. 739 (S.D. Ga. 1980).
Mere remedial Acts may apply to rights accruing prior to their passage. Bauer Int'l Corp. v. Cagle's, Inc., 225 Ga. 684, 171 S.E.2d 314 (1969).
Georgia Whistleblower Act amendments not retroactive.
- New remedies under O.C.G.A. § 45-1-4(e)(2) and (f), which were added by a 2005 amendment to the Georgia Whistleblower Act (GWA), do not apply retroactively under O.C.G.A. § 1-3-5; thus, a port authority officer who asserted claims under the GWA in connection with the officer's 2004 discharge was limited to the remedies provided by the GWA as the GWA existed in 2004. Pattee v. Ga. Ports Auth., 477 F. Supp. 2d 1253 (S.D. Ga. Dec. 18, 2006).
Curing remedy's defects, or conforming or enforcing rights.- Laws curing defects in the remedy, or confirming rights already existing, or adding to the means of securing and enforcing the rights, may be passed and applied retroactively. Bituminous Cas. Corp. v. R.D.C., Inc., 334 F. Supp. 1163 (N.D. Ga. 1971).
State may vary or modify remedies if substantive character not destroyed.
- So long as the state undertakes to furnish remedies, it may vary or modify them at pleasure, if the state does not destroy their substantive character. Cutts & Johnson v. Hardee, 38 Ga. 350 (1868) see also Gardner v. Georgia R.R. & Banking Co., 117 Ga. 522, 43 S.E. 863 (1903) (construing former Code 1895, § 4657 et seq.)
Retrospective statutes not void where they only confirm existing rights, cure defects, and enforce existing obligations. Remedial statutes, although retrospective, are not void, provided they do not impair contracts or disturb absolute vested rights, and only go to confirm rights already existing, and in furtherance of the remedy, by curing defects and adding to the means of enforcing existing obligations. Union Dry Goods Co. v. Georgia Pub. Serv. Corp., 142 Ga. 841, 83 S.E. 946, 1916E L.R.A. 358 (1914), aff'd, 248 U.S. 372, 39 S. Ct. 117, 63 L. Ed. 309, 9 A.L.R. 1420 (1919).
Remedial statutes are operative, although of a retrospective nature, provided they do not impair contracts, and only go to confirm rights already existing, and in furtherance of the remedy, by curing defects and adding to the means of enforcing existing obligations. Seaboard Air Line Ry. v. Benton, 175 Ga. 491, 165 S.E. 593 (1932).
Laws which act upon remedies alone, although retrospective, will be enforced, provided they do not impair the obligation of contracts or disturb absolutely vested rights, and only go to confirm rights already existing, and in furtherance of the remedy, by curing defects and adding to the means of enforcing existing obligations. Byers v. Black Motor Co., 65 Ga. App. 773, 16 S.E.2d 478 (1941).
Where new statute substantial reenactment of old, remedies remain in force.
- As a general rule, the repeal of a statute without any reservation takes away all remedies given by the repealed statute. But where a new statute is a substantial reenactment of an old one, and expressly recognizes and makes provision in regard to the rights and remedies which accrued under it, the general rule is not applicable and the remedies remain in force. Lanham & Sons Co. v. City of Rome, 136 Ga. 398, 71 S.E. 770 (1911).
Statutes relating to remedies or procedure may be given retrospective construction.
- A generally recognized exception to the rule that laws prescribe only for the future is that statutes relating to remedies or procedure may be given a retrospective or retroactive construction. Focht v. American Cas. Co., 103 Ga. App. 138, 118 S.E.2d 737 (1961).
The presumption against a retrospective construction has no application to enactments which affect only the procedure and practice of the courts, even where the alteration which the statutes make has been disadvantageous to one of the parties. Hart v. Owens-Illinois, Inc., 161 Ga. App. 831, 289 S.E.2d 544, rev'd on other grounds, 250 Ga. 397, 297 S.E.2d 462 (1982).
Prohibition of ex post facto laws applies only to substantive, but not procedural, rights. Cannon v. State, 246 Ga. 754, 272 S.E.2d 709 (1980).
Section distinguishes laws looking to remedy or mode of trial.
- Georgia has a statutory policy disapproving the retroactive application of new statutes. However, this section expressly distinguishes laws looking only to the remedy or mode of trial. Sanks v. Georgia, 401 U.S. 144, 91 S. Ct. 593, 27 L. Ed. 2d 741 (1971).
Repealing statute regulating court procedure not within section's inhibition.
- A repealing statute which did not deprive the defendant of any substantial right but only regulated the procedure of the court, in which the defendant could acquire no right, is not within the inhibition against the passage of retroactive laws. Pritchard v. Savannah St. & Rural Resort R.R., 87 Ga. 294, 13 S.E. 493, 14 L.R.A. 721 (1891); Baker v. Smith, 91 Ga. 142, 16 S.E. 967 (1893).
Statute void if it takes substantial right from accused.
- While it is the rule that no one has a vested right in a mere mode of procedure, so that a statute merely regulating procedure and leaving untouched all the substantial protections with which existing law surrounds the person accused of a crime is not within the constitutional inhibition against ex post facto laws, yet a statute is void and ineffective as related to previous offenses if it takes from the accused a substantial right given to the accused by the law in force at the time to which the accused's guilt relates, and such a statute cannot be sustained simply because, in a general sense, it may be said to regulate procedure. Winston v. State, 186 Ga. 573, 198 S.E. 667 (1938).
Act which merely changes rule of evidence is within the sphere of ordinary legislative competency. Slaughter v. Culpepper, 35 Ga. 25 (1866).
There is no ground upon which to hold a statute to be ex post facto which does nothing more than admit evidence of a particular kind in a criminal case upon an issue of fact which was not admissible under the rules of evidence as enforced at the time the offense was committed. Bryan v. Bryan, 242 Ga. 826, 251 S.E.2d 566 (1979).
Procedure changed pending appeal.
- Where the controlling procedural rule is changed pending appeal, the case must be concluded in the trial court pursuant to the changed provisions of the rule. Clary v. State, 151 Ga. App. 301, 259 S.E.2d 697 (1979).
Changing municipal tax laws.
- The changing of municipal tax laws by an Act of the General Assembly is not contrary to this section because the change applies to taxes due at the time of the passage of the Act where the change only affects the remedy. DuBignon v. Mayor of Brunswick, 106 Ga. 317, 32 S.E. 102 (1898).
Act enforcing previously fixed stockholders' liability.
- Where the stockholders' liability is fixed by one Act, and a subsequent Act provides that this liability shall be considered as an asset of the bank and enforced by the receiver, the latter Act is remedial in its nature, does not affect any vested right of the creditor, and is applicable. Moore v. Ripley, 106 Ga. 556, 32 S.E. 647 (1899).
Act providing for cost of paving, passed after Act providing for paving, is not unlawful or objectionable. Georgia Ry. & Elec. Co. v. Town of Decatur, 29 Ga. App. 653, 116 S.E. 645 (1923) see also Allen v. Schweigert, 110 Ga. 323, 35 S.E. 315 (1900); Mills v. Geer, 111 Ga. 275, 36 S.E. 673, 52 L.R.A. 934 (1900); Ross v. Lettice, 134 Ga. 866, 68 S.E. 734 (1910).
Doctrine of election of remedies.
- Almost by definition, the doctrine of election of remedies is procedural and remedial in nature. Douglas County v. Abercrombie, 119 Ga. App. 727, 168 S.E.2d 870 (1969).
Statute of limitation is remedial in nature. Jaro, Inc. v. Shields, 123 Ga. App. 391, 181 S.E.2d 110 (1971).
Three-year statute of limitations that was added to the Georgia Whistleblower Act (GWA) in 2005 in O.C.G.A. § 45-1-4(e)(1) is prospective in nature pursuant to O.C.G.A. § 1-3-5; thus, a port authority officer's GWA claim, which related to the officer's 2004 discharge, was not affected by the amendment. Pattee v. Ga. Ports Auth., 477 F. Supp. 2d 1253 (S.D. Ga. Dec. 18, 2006).
Ga. L. 1968, p. 1419, § 2 (see now O.C.G.A. § 9-10-90), which specifically includes corporations in meaning of term "nonresident," may be applied retroactively. Griffin v. Air S., Inc., 324 F. Supp. 1284 (N.D. Ga. 1971), commented on in 8 Ga. St. B. J. 414 (1972).
Former paragraph (3) of Ga. L. 1966, p. 343, § 1 (see now O.C.G.A. § 9-10-91) may be applied retroactively. Griffin v. Air S., Inc., 324 F. Supp. 1284 (N.D. Ga. 1971), commented on in 8 Ga. St. B. J. 414 (1972).
Subjecting nonresident corporation to jurisdiction retroactively.- Nonresident corporation may be subjected retroactively to the jurisdiction of this state. Bituminous Cas. Corp. v. R.D.C., Inc., 334 F. Supp. 1163 (N.D. Ga. 1971).
Convictions occurring before sentencing provision's enactment.
- The use of prior convictions which had occurred before the enactment of former Code 1933, § 27-2503 (see now O.C.G.A. § 17-10-2), in the sentencing phase of the trial did not amount to an ex post facto application of law. Solomon v. State, 247 Ga. 27, 277 S.E.2d 1 (1980), cert. denied, 451 U.S. 1011, 101 S. Ct. 2348, 68 L. Ed. 2d 863 (1981).
Act denying all remedies on a contract would impair its obligation and be void. West v. Sansom, 44 Ga. 295 (1871).
Amendment to workers' compensation provision on modifying award.
- The 1937 amendment to former Code 1933, § 114-709 (see now O.C.G.A. § 34-9-104), in which the time for filing applications to review an award on a change in condition is limited to two years from the date the Industrial Board (now State Board of Workers' Compensation) is notified of the final payment of the claim, does not cover a case where the employee was injured before the adoption of the amendment, although the report of final payment of the claim was made after the amendment. London Guarantee & Accident Co. v. Pittman, 69 Ga. App. 146, 25 S.E.2d 60 (1943).
Survival statutes.
- A statute authorizing the recovery of medical and funeral expenses by the personal representative of the estate in cases of wrongful death and a statute providing for the survival of causes of action confers upon the personal representative a new substantive right and are not remedial only. Such statutes, therefore, may not be given a retrospective effect so as to apply to the estate of one who died prior to their passage. Biddle v. Moore, 87 Ga. App. 524, 74 S.E.2d 552 (1953).
Not reversible error for court to use term "prisoner at bar" instead of "accused."
- Where the trial court uses the term "the prisoner at bar" instead of "the accused" in its first two voir dire questions in a case prior to the General Assembly changing the terms, it is not reversible error. Clary v. State, 151 Ga. App. 301, 259 S.E.2d 697 (1979).
Issue of attorney's fees in divorce cases is remedial and ought to be considered broadly by the trial court. Crecelius v. Brooks, 258 Ga. 372, 369 S.E.2d 743 (1988).
OPINIONS OF THE ATTORNEY GENERAL
Prospective construction.
- In absence of imperative, contrary language, statute is construed to operate prospectively and not retrospectively. 1971 Op. Att'y Gen. No. U71-125.
Laws may apply retroactively when vested rights are not impaired and where intended to do so by the General Assembly. 1972 Op. Att'y Gen. No. 72-34.
Veterans taking state examination prior to 1960 cannot have preference points.
- Applicants who took an examination and received their scores prior to the effective date of Ga. L. 1960, p. 1172, §§ 1 and 2 (see now O.C.G.A. §§ 43-1-9 and43-1-10), cannot have veterans' preference points applied to those scores. 1972 Op. Att'y Gen. No. 72-119.
RESEARCH REFERENCES
Am. Jur. 2d.
- 16A Am. Jur. 2d, Constitutional Law, §§ 382, 392 et seq. 73 Am. Jur. 2d, Statutes, § 231 et seq.
C.J.S.- 16A C.J.S., Constitutional Law, § 645 et seq. 82 C.J.S., Statutes, §§ 375 et seq., 394, 574 et seq.
ALR.
- Unconstitutional statute or veto as protection against civil or criminal responsibility for act or omission in reliance thereon, 53 A.L.R. 268.
Retrospective operation of succession tax, 66 A.L.R. 404; 109 A.L.R. 858; 114 A.L.R. 518.
Construction of statutes of limitations as regards their retrospective application to causes of action already barred, 67 A.L.R. 297.
Applicability of constitutional provision requiring reenactment of altered or amended statute to one which leaves intact terms of original statute, but transfers or extends its operation to another field, 67 A.L.R. 564.
Retroactive effect of statutes relating to interest on or penalties in respect of delinquent taxes, 77 A.L.R. 1034.
Retrospective effect of statute relating to causes of action for death dependent upon prior statute, 77 A.L.R. 1338.
Retroactive effect of statutes regarding provisions with reference to avoidance of fire insurance policies, 78 A.L.R. 617.
Constitutional provision against impairing obligation of contract as applicable to statutes affecting rights or remedies of holders or owners of improvement bonds or liens, 85 A.L.R. 244; 97 A.L.R. 911.
Retroactive effect of statute relating to exemption of proceeds of life or benefit insurance, 92 A.L.R. 1388.
Debtor's exemption statutes as impairing obligations of existing contracts, 93 A.L.R. 177.
At what stage does a statute or ordinance pass beyond the power of legislative body to reconsider or recall, 96 A.L.R. 1309.
Retrospective operation of statutes relating to alimony or suit money in divorce, 97 A.L.R. 1188.
Retroactive effect of statute prescribing terms or rights under life insurance policies, 106 A.L.R. 46.
Retrospective operation of succession or estate tax, 114 A.L.R. 518.
Retroactive application of repeal of statute which operated as limitation of or exception to a substantive right of action in tort otherwise arising at common law, 120 A.L.R. 943.
Power of legislature to revive a right of action barred by limitation or to revive an action which has abated by lapse of time, 133 A.L.R. 384.
Validity and effect, as to previously recorded instrument, of statute which places or changes time limit on effectiveness of record of mortgages or other instruments, 133 A.L.R. 1325.
Price ceiling, adopted as a war measure, as affecting preexisting contracts, 147 A.L.R. 1286; 149 A.L.R. 1451; 151 A.L.R. 1450.
Constitutionality, construction, and application of statute or contract regarding deduction from, or adjustment of, wages in respect of defective workmanship, 153 A.L.R. 866.
Statute providing for apportionment between lessor and lessee of a tax imposed upon the producer of oil, gas, or other natural production as violation of the constitutional provisions against impairment of the obligation of contracts, 160 A.L.R. 980.
Effect, as to prior offenses, of amendment increasing punishment for crime, 167 A.L.R. 845.
Validity of curative statute impairing judgment or rendering it ineffective, 171 A.L.R. 1352.
Applicability of constitutional requirement that repealing or amendatory statute refer to statute repealed or amended, to repeal or amendment by implication, 5 A.L.R.2d 1270.
Retrospective operation of criminal negligence statute, 14 A.L.R.2d 726.
What law, in point of time, governs as to inheritance from or through adoptive parent, 18 A.L.R.2d 960.
Retrospective application of statutes relating to trust investments, 35 A.L.R.2d 991.
Retroactive effect of statute fixing minimum value of corporate stock shares or otherwise affecting power of corporation to change par value of existing shares, 54 A.L.R.2d 1289.
Retroactive effect of statute changing manner and method of distribution of recovery or settlement for wrongful death, 66 A.L.R.2d 1444.
Retroactive effect of statute which imposes, removes, or changes a monetary limitation of recovery for personal injury or death, 98 A.L.R.2d 1105.
Retrospective application of state statute substituting rule of comparative negligence for that of contributory negligence, 37 A.L.R.3d 1438.
Retroactive effect of zoning regulation, in absence of saving clause, on validly issued building permit, 49 A.L.R.3d 13.
Zoning provisions protecting land owners who applied for or received building permit prior to change in zoning, 49 A.L.R.3d 1150.
Validity of statute establishing or authorizing minimum price schedules for barbers, 54 A.L.R.3d 916.
Construction and effect of tenure provisions of contract or statute governing employment of college or university faculty member, 66 A.L.R.3d 1018.
Validity and construction of state or local regulation prohibiting off-premises advertising structures, 81 A.L.R.3d 486.
Validity and construction of state or local regulation prohibiting the erection or maintenance of advertising structures within a specified distance of street or highway, 81 A.L.R.3d 564.
Mandatory retirement of public officer or employee based on age, 81 A.L.R.3d 811.
Zoning: building in course of construction as establishing valid nonconforming use or vested right to complete construction for intended use, 89 A.L.R.3d 1051.