2 Ark. 291 (Ark. 1840), Stevens & Woods v. State

Citation:2 Ark. 291
Opinion Judge:Ringo, C. J.
Party Name:STEVENS and WOODS v. THE STATE.
Attorney:Pike, for plaintiff.
Court:Supreme Court of Arkansas
 
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Page 291

2 Ark. 291 (Ark. 1840)

STEVENS and WOODS

v.

THE STATE.

Supreme Court of Arkansas.

January, 1840

��������� All property in this State must, by the Constitution, be taxed according to its value; and the tax thereon must be equal and uniform throughout the State.

���������The Legislature has no power to discriminate, and fix upon one description or species of property a greater tax than that fixed by law upon every other description or species of property of equal value, subjected to taxation.

���������Every individual may lawfully acquire and possess any species or description of property, if he does not thereby destroy or deprive some other person of his property, or some enjoyment thereof, in which he is protected by law.

���������But property, when acquired and possessed, must be so kept and disposed of as not to injure any paramount legal right of another, or affect injuriously the public morals, or public good, so far as they are protected by law.

���������The Legislature cannot restrict any one from making or purchasing a billiard table; but may, by law, so regulate or restrict the use of it, as to prevent any injury therefrom to the public morals or public good.

���������No individual in this government does, or can, have or possess any privilege which is not common to every other citizen of the State, until it is created by law, and acquired by him under authority thereof, and in the manner therein designated.

���������The Legislature can tax no privileges, except those created by law, and legally existing at such time as the law imposing the tax directs it to be levied thereon.

���������The Legislature cannot, by prohibiting the exercise of a right common to every citizen, and then allowing its exercise upon payment of a tax, create it a privilege.

���������The privileges made taxable by the Constitution, are such as cannot be exercised or enjoyed by any citizen or integral part of the community, without the intervention of some statutory provision, granting to, or conferring upon one or more individuals the right of doing some particular thing, as the right of banking, keeping a ferry, etc.

���������It might also embrace such as enjoy any privilege by way of exemption from the performance of onerous duties imposed upon the great mass of the community, if such exemption be first created by statute; but this admits of great doubt.

���������Keeping a billiard table cannot be made a privilege, under that clause of the Constitution which provides that all property shall be taxed according to its value; but that the Legislature may tax merchants, hawkers, pedlars and privileges. It is not a privilege, and therefore the law imposing a tax of $500 for every six months on each keeper of a billiard table is unconstitutional and void.

���������On certiorari to Pulaski County Court.

���������This was a proceeding upon a writ of certiorari to the County Court of Pulaski county, issued upon the petition of plaintiffs, requiring the County Court to certify and send to the Supreme Court a transcript of the record of the tax book of said county, embracing the State and county taxes assessed in said county for the year 1839, with all orders and objections made upon the consideration and adjustment thereof, and other things touching the same, on which it is alleged that the plaintiffs stand charged with the sum of $1000 as the semi-annual tax, in said annual tax-book, as the keepers of two billiard tables in the county of Pulaski for the term of six months. By the return to said writ it appeared that the ordinary annual assessment list of the persons and property in said county, supposed to be subject by law to taxation, embracing billiard tables, was duly returned by the Sheriff, and regularly filed in the office of the Clerk of the Circuit and County Courts of said county, on the 23d day of March, 1839, and that the plaintiffs were, by the style of Woods and Stevens, assessed as the keepers of two billiard tables, with a tax of $1000, but the term of time for which they were so assessed and charged with said tax was not stated in the assessment list, that due notice of the return of said list was given by the Sheriff on the 25th day of March, 1839, that no appeal from the assessment made by the Sheriff was taken by the plaintiffs to the County Court, and that the County Court, at the first term thereof, after the same was returned and filed as aforesaid, on the 26th day of April, 1839, adjudicated upon said list and levied the county tax to be charged and collected thereupon, that the tax book was made out by the Clerk from said assessment list, agreeably to the order of the County Court, and on the 28th day of May, 1839, a regular warrant was indorsed thereon, in the form prescribed by law, with the seal of the County Court thereto affixed, and that the plaintiffs were charged in said tax-book as the keepers of two billiard tables, with a State tax of $1000, which the Sheriff, by the warrant aforesaid, was required to collect and pay in the manner and within the time prescribed by law for the payment thereof.

��������� Pike, for plaintiff.

���������Ringo, C. J.

��������� The tax in question appears to have been assessed and charged against the plaintiffs as the joint keepers of two billiard tables, as upon the privilege of keeping them by the authority and under the provisions of the 5th section of the 128th chapter of the Revised Statutes of this State, page 674, which enacts that " there shall be levied and collected as a State tax the sum of five hundred dollars on the keeper of every billiard table in this State, and the like sum on the keeper of every nine-pin alley, for the period of six months, and at the same rate for a shorter time, and no person shall have or use any billiard table or nine-pin alley without first paying to the Sheriff the tax required by this act."

���������The plaintiffs insist that the tax thus imposed upon the keeper of a billiard table is not warranted by the Constitution, and that the enactment above quoted is repugnant thereto and void, and if valid, cannot be enforced in the manner attempted against them.

���������In support of the former position they contend that a billiard table is in every point of view " property," which, under the provisions of the Constitntion, every person has an indefeasible right of acquiring, possessing...

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