Arkansas Railroad Commission v. Stout Lumber Company

• Decision Date: 19 November 1923
• Docket Number: 252
• Citation: 255 S.W. 912,161 Ark. 164
• Parties: ARKANSAS RAILROAD COMMISSION v. STOUT LUMBER COMPANY
• Court: Arkansas Supreme Court

255 S.W. 912

161 Ark. 164

ARKANSAS RAILROAD COMMISSION v. STOUT LUMBER COMPANY

No. 252

Supreme Court of Arkansas

November 19, 1923

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor affirmed.

Decree affirmed.

J S. Utley, Attorney General, John L. Carter, Wm. T Hammock and Darden Moose, Assistants, for appellant.

Section 1 of act 681 repeals § 5 of act 118, and supplants the same, or else it is an attempt to extend the provisions of § 5, in violation of art. 5, § 23, of the Constitution. It is fundamental that every reasonable construction must be resorted to in order to save a statute from unconstitutionality, and that, if a statute is susceptible of two constructions, one that conflicts and the other that harmonizes with the Constitution, the latter construction will be adopted. 120 Ark. 288; 91 Ark. 5; 140 Ark. 398; 150 Ark. 486; 155 U.S. 657. On the point that, as an attempt to extend the provisions of § 5 it would be contrary to the Constitution, supra, see 29 Ark. 252; 31 Ark. 239; 61 Ark. 625; 120 Ark. 169; 89 Ark 598; 99 Ark. 100, 104; 132 Ark. 609; 133 Ark. 157; 141 Ark. 518; Id. 84; Id. 196; Id. 612; 158 Ark. 519.

2. The act 681 is complete for the purpose of supplanting § 5 of the original act, and cannot stand as a valid enactment if its purpose be to graft upon § 5 another provision, unless it conforms to the Constitution by reenacting § 5 of the original act, with such ingrafted provision incorporated therein. 132 Ark. 28; 154 Ark. 218; 143 Ark. 83; 138 Ark. 459.

Gaughan & Sifford, for appellee, Stout Lumber Co.

1. It is reasonable, and the court has the right, to ascertain the legislative intent, not only from the language of the statute itself, but also by bringing to its aid public events, public documents, executive messages, etc., legislative proceedings and journals, and the trend of public events leading to the enactment. 76 Ark. 309. It is clear, however, from the language of act 681, that it was intended to be an amendment. Had the Legislature intended to repeal § 5 of act 118, it could, and in appropriate language would, have said so, instead of saying that it intended to amend it. The language used in § 1 of act 681, viz: "Special rates (d), on manganese ore," is convincing of an express purpose and intent to amend § 5 of act 118 by the addition of another paragraph to that section.

2. If a failure to hold that § 5 is repealed by the act 681 is to result in a finding that the latter act is unconstitutional, it is better so, rather than for the court to constitute itself into a legislative body, and read into the act a construction not warranted by its language.

Pryor & Miles, for appellees, Western Coal & Mining Co. et al.

When act 681 is considered in connection with paragraphs "a," "b," and "c" of § 5 of the original act, it is manifest that the Legislature was endeavoring to include manganese ore in the provisions of § 5 by adding another paragraph and designating that as "d," to fix its place in the section. We think this court's decision in Wallace v. McCartney, 159 Ark. 617, is conclusive on the question raised here. It appears, from reading the provisions of the original act, that manganese ore had been omitted, and that act 681 was intended merely to add to the provisions of § 5, so as to include a tax upon manganese ore. 25 R. C. L. 923; Id. 1067; 133 Ark. 157; 3 Ark. 285; 27 Ark. 419; 48 Ark. 305. See also 31 Ark. 119; 137 Ark. 280; 150 Ark. 486, and cases cited; 133 Ark. 491.

Rose, Hemingway, Cantrell & Loughborough, amici curiae, for appellant.

If there is any rule of law that is well settled, it is that the form of amending sections of statutes, "so as to read as follows," shows a clear intent on the part of the Legislature to displace the old section or sections with the new. 26 Am. & Eng. Encyc. of L., 735; 36 Cyc. 1083; 25 R. C. L., "Statutes," p. 907; 43 P. 553; 61 Minn. 205; 63 N.W. 621, 623. While this is a general rule, it is especially rigid and inflexible in all those States having a constitutional provision similar to ours, to the effect that no law shall be amended by reference to its title, etc. Article 5, § 23, Const. It is not necessary, as explained in Wallace v. Trulock, 109 Ark. 556, to reenact all of an amended section, in all cases, still the evil to be guarded against is ever present, and it would take an extreme case to justify a departure from the general rule. See also Wallace v. McCarthy, 159 Ark. 617; 29 Ark. 252; 61 Ark. 625; 120 Ark. 169; 132 Ark. 609, 612; 133 Ark. 157; 138 Ark. 459; 89 Ark. 600, 602; 91 Ark. 243.

MCCULLOCH C. J. WOOD and HUMPHREYS, JJ., dissenting.

OPINION

MCCULLOCH, C. J.

This appeal involves the construction and effect of an amendment to the severance tax statute enacted by the General Assembly of 1923, approved February 14, 1923, imposing a tax on the business of severing certain products from the soil for commercial purposes. Acts 1923, General Statutes, p. 67. The statute is designated, and will be hereinafter referred to, as act No. 118. The amendatory statute was approved March 26, 1923 (Acts 1923, General Statutes, p. 578), and designated as act No. 681. Both of these statutes were enacted at the same session The bill for act No. 681 was introduced in the Senate on March 5, 1923, and passed the House of Representatives on March 7, but was not presented to the Governor for approval until after adjournment.

Section 4 of act No. 118 provides for the imposition of "a privilege tax amounting to two and one-half per cent. of the gross cash market value of the total production of such natural resources" other than "the production of certain natural resources, the privilege tax upon which is hereinafter specially provided for."

Section 5 of act No. 118 reads as follows:

"Section 5. Special rates.

"(a) On bauxite. Every producer of bauxite shall be subject to all of the provisions of this act, except, instead of a tax of two and one-half (2 1/2) per cent. of the gross market value of said product, the producer of bauxite shall pay a privilege tax equivalent to twenty-five cents (25c) per ton on the total production of bauxite during the preceding quarterly period, irrespective of the market value thereof.

"(b) On coal. Every producer of coal shall be subject to all of the provisions of this act, except that, instead of a tax of two and one-half (2 1/2) per cent. on the gross market value of said products, the producer of coal shall pay a privilege tax equivalent to one cent (1c) per ton on the total production of coal during the preceding quarterly period, irrespective of the market value thereof.

"(c) On timber. Every producer of timber shall be subject to all the provisions of this act, except that, instead of a tax of two and one-half (2 1/2) per cent. of the gross market value of said products, the producer of timber shall pay a privilege tax equivalent to seven cents (7c) per thousand feet, board measure, on the total stumpage covered or cut during the preceding quarterly period, irrespective of the market value thereof."

Act No. 681 (omitting § 2, which is the concluding section declaring an emergency and putting the statute into immediate effect) reads as follows:

"Sec. 1. That § 5 of act No. 118 of the Acts of the Legislature of the State of Arkansas, approved February 14, 1923, be amended to read as follows:

"'Special rates' (d). On manganese ore. The provisions of this act shall not apply to the producer of manganese ore, but every shipper of manganese ore shall pay a privilege tax of ten cents per ton, based on the weight at the point of shipment, irrespective of the market value of the said ore. Said tax to be paid as provided in said act."

The Arkansas Railroad Commission, which is clothed with authority to collect the tax, sought to collect from those producing commodities mentioned in § 5 a tax of two and one-half per cent. on value as prescribed in § 4, claiming authority to do so on the theory that the original § 5 had been repealed by act No. 681.

The appellees, each a corporation engaged in the business, respectively, of severing timber and coal from the soil for commercial purposes, disputed this assertion, and claimed the right to pay under § 5 of the original statute as the limit of its taxation. Appellees instituted this suit in the chancery court of Pulaski County to restrain the Commission from attempting to impose the tax of two and one-half per cent. on valuation of the product. The chancery court granted the relief prayed for by appellees, and the Commission has appealed.

The question presented is whether act No. 681 operates as a repeal of the whole of original § 5 by substitution, or whether it merely amends the statute by adding another subdivision to § 5 relating to the tax on production of manganese. The State contends that the later statute operates as a repeal of § 5 by substitution; and the contention of appellees is that it operates merely as an amendment to the original section by adding another subdivision.

The rule of interpretation has been firmly established by many decisions of this court, as well as by decisions of other courts of last resort, that the use of the formula "amended so as to read as follows," in an amendatory statute, means that the new statute is substituted for and repeals the old statute, or that part of it which is thus referred to. The authorities on this subject are reviewed in the case of State ex rel. v. Trulock, 109 Ark. 556, 160 S.W. 516. We decided, however, in that case that the rule was not an inflexible one, and was not applicable where there were other controlling and unmistakable indicia found in the statute of a contrary intention on the part of the lawmakers. In the opinion in that case it was...