Bowytz v. Tax Commission of Ohio

20 N.E.2d 528, 135 Ohio St. 278, 135 Ohio St. (N.S.) 278, 14 Ohio Op. 123, 1939 Ohio LEXIS 340

• Court: Ohio Supreme Court
• Decided: April 12, 1939
• Docket: 27384
• Status: Published

Opinion

By the Court.

In November, 1986, Section 12 of Article XII of the Constitution of Ohio was adopted and reads as follows:

“On and after November 11, 1936, no excise tax shall be levied or collected upon the sale or purchase of food for human consumption off the premises where sold.” (Italics ours.)

Counsel for appellant contend that the words “levied or collected” are used in the disjunctive, that the word “collected” refers to taxes which had accrued at the time the amendment became effective, and that after November 11, 1936, no excise tax could be collected upon such sales of food.

The Court of Appeals held, first, that the obligation sought to be enforced is not a tax but is a liability placed by statute (Section 5546-9a, General Code) upon a collector either 'for failure to collect from the customer taxpayer or to account to the state for the tax collection, and, second, that the amendment should be construed to have a prospective operation and therefore not apply to obligations for taxes levied, due and payable prior to November 11, 1936.

We agree with the Court of Appeals in the conclusion last stated that, in the absence of a clear intention to the contrary, the amendment should be construed to operate prospectively, and not retrospectively. It is therefore not necessary to pass upon the question as to whether this is a proceeding to enforce a liability, as stated.

Judgment affirmed.

Weygandt, C. J., Day, Zimmerman, Williams, Myers, Matthias and Hart, JJ., concur.