Bollinger v. Watson
| Decision Date | 16 October 1933 |
| Docket Number | No. 4-3285.,4-3285. |
| Parties | BOLLINGER et al. v. WATSON, Commissioner of Revenues. |
| Court | Arkansas Supreme Court |
Appeal from Pulaski Chancery Court; F. H. Dodge, Chancellor.
Proceeding between John Bollinger and others and Fred Watson, Commissioner of Revenues. From the decree, John Bollinger and others appeal.
Affirmed.
Evans & Evans, of Booneville, for appellants.
Earl R. Wiseman, of Little Rock, and Hal L. Norwood, Atty. Gen., and Pat Mehaffy, Asst. Atty. Gen., for appellee.
The General Assembly of 1921 passed Act No. 606, p. 685, the first section of which provides: "That all persons, firms or corporations who shall sell gasoline, kerosene or other products to be used by the purchaser thereof in the propelling of motor vehicles, using combustible type engines over the highways of this State, shall collect from such purchaser, in addition to the usual charge therefor, the sum of one cent (1¢) per gallon for each gallon so sold." This section has been retained in all subsequent legislation except as to the amount to be levied on motor fuel, and at the extra session of the Legislature of 1923, Act No. 5, p. 53, § 35, was passed, retaining the above section except as to difference in the amount per gallon levied, with the following additional paragraph: "Provided, however, that whenever there are adjoining cities or incorporated towns, which are separated by a State line, the tax on lubricating oil and gasoline, sold by any dealer in such adjoining city, on the Arkansas side of the State line, to the owner or owners of a motor vehicle or vehicles for immediate use therein, shall be at the rate as provided by law in such adjoining State, not to exceed the rate herein provided in this Act."
In that act it was also provided that if the above proviso should be held to be unconstitutional, it was the intention of the Legislature that the act be upheld with the proviso eliminated. These provisions passed through the Legislatures of 1927 and 1929, and finally appear in Act No. 63, p. 171 of the Acts of 1931 as paragraphs (c) and (d) of section 1 thereof, which, together with paragraphs (e) and (f) are challenged by the present appeal as violative of Amendment No. 14, Arkansas Constitution, of the Fifth Amendment to the Constitution of the United States, and of section 8, article 2, of the Constitution of Arkansas, and also as prohibited by the Fourteenth Amendment to the Federal Constitution and section 18, art. 2, of our Constitution.
The paragraphs challenged read as follows:
The Fifth Amendment to the United States Constitution and section 8, article 2, of the Arkansas Constitution, are practically identical; both providing that no one shall be deprived of life, liberty, or property without due process of law. Section 18, art. 2, of our Constitution, provides that "The General Assembly shall not grant to any citizen or class of citizens privileges or immunities which upon the same terms shall not equally belong to all citizens." The Fourteenth Amendment to the Federal Constitution may be said to be the antithesis of this, providing that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
The section quoted from the act of 1921 was attacked as in violation of the above constitutional provisions. In the case of Standard Oil Company of Louisiana v. Brodie, 153 Ark. 114, 239 S. W. 753, it was held that the act did not violate any of the constitutional provisions, supra. In the case at bar, in addition to the attack on the constitutional grounds stated, it is contended that the act is a local and special one, and therefore comes within the inhibition of Amendment No. 14 to the Constitution of Arkansas, which prohibits the Legislature from passing any local or special laws. It is argued that the rule promulgated by the highway commission under authority of Act No. 63 and putting into effect paragraph (d), supra, excepts from the general provisions of the act as stated in paragraph (c), the towns of Texarkana, Fort Smith, Blue Eye, Mammoth Spring, and St. Francis; that as the tax in the state of Oklahoma is four cents per gallon, the citizens in the city of Fort Smith are required to pay only four cents per gallon on motor fuel; as the rate in Missouri is two cents per gallon, the citizens of Blue Eye, Mammoth Spring, and St. Francis are required to pay only two cents; and as the rate in Texas is three cents per gallon, the citizens of Texarkana are required to pay only three cents; that the effect of the provision of paragraph (d) renders the act local or special.
To support this contention the appellant cites and relies on the cases of Webb v. Adams, 180 Ark. 713, 23 S.W.(2d) 617, 619; Simpson v. Matthews, 184 Ark. 213, 40 S.W. (2d) 991, 992; Street Imp. Dists. v. Hadfield, 184 Ark. 598, 43 S.W.(2d) 62; Leonard v. Luxora-Little River Road Maintenance (Ark.) 61 S.W.(2d) 70. In the first-mentioned case the act under consideration provided for optional county unit or a consolidated school system operating equally and uniformly throughout the state, but with a proviso that
The act in question in the case of Simpson v. Matthews, supra, provided for the formation of improvement districts for the purpose of constructing dams and reservoirs, and for the condemnation of lands within the areas affected; and, further, that the act should apply only to counties which now or hereafter may have a population of 75,000 inhabitants according to the last federal census.
In Street Imp. Dists. v. Hadfield, supra, the act under consideration provided that the collector and county treasurer of each county which then had, or which should thereafter contain, 125,000 or more inhabitants, should pay to the city treasurer of each city 50 per cent. of all road taxes and delinquent road taxes collected by them, respectively, on property within the limits of such city; and that improvement districts not wholly within the city limits and those whose bonds were issued prior to February 4, 1927, should not come within the provisions of the act.
In Leonard v. Luxora-Little River Road Maintenance, supra, the act attacked on constitutional grounds provided for the division of certain revenues among all the counties of the state on a certain stated basis, but contained a proviso that the general provisions of the act should not apply in counties having more than one judicial district and a population of not less than 65,000, and that in those counties the funds should be divided between the judicial districts on another and different basis.
In holding all of these acts local and special and within the prohibition of the Fourteenth Amendment, a principle applicable to all, and before announced in the case of LeMaire v. Henderson, 174 Ark. 936, 298 S. W. 327, is recognized and stated. This principle recognizes the power of the Legislature to enact a valid law which will not be deemed to be a local or special one because it does not operate alike throughout the state, when it does apply to the whole state in its material and important features; that is to say, that a reasonable classification may be made with respect to the localities or classes of citizens upon which the law may operate, and that it is not the form, but the operation and effect, which determines its constitutionality.
In discussing the effect of the constitutional prohibition against the...
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Thompson v. Continental Southern Lines
...20-gallon exemption has resulted in abuses, but a condition of that kind is one to be remedied by the legislature. In Bollinger v. Watson, 187 Ark. 1044, 63 S.W.2d 642, 644, the Court had under consideration an Act of the Legislature equalizing the gasoline tax in border towns with the tax ......