Caldarera v. McCarroll

• Decision Date: 12 June 1939
• Docket Number: 4-5599
• Citation: 129 S.W.2d 615,198 Ark. 584
• Parties: CALDARERA v. MCCARROLL, COMMISSIONER OF REVENUES
• Court: Arkansas Supreme Court

129 S.W.2d 615

198 Ark. 584

CALDARERA v. MCCARROLL, COMMISSIONER OF REVENUES

4-5599

Supreme Court of Arkansas

June 12, 1939

Appeal from Pulaski Chancery Court; Frank H. Dodge, Chancellor affirmed.

Decree affirmed.

J. Hugh Wharton and Rose, Loughborough, Dobyns & House, for appellant.

Frank Pace, Jr., Jack Holt, Attorney General, Millard Alford Assistant Attorney General, for appellee.

Charles W. Mehaffy and Joseph M. Hill, amici curiae.

OPINION

HUMPHREYS, J.

Appellants are wholesale dealers of intoxicating beer and as such have brought this suit in the chancery court of Pulaski county to enjoin Z. M. McCarroll, Commissioner of Revenues of the State of Arkansas, from enforcing § 1 of Act 310 of the Acts of 1939 on the ground that it increases the excise or privilege tax imposed on wholesalers of intoxicating beer under Act 7 of the Acts of 1933, 108 of the Acts of 1935, and 236 of the Acts of 1937, and is in violation of § 2 of Amendment No. 19 to the Constitution of the State of Arkansas, which Constitutional provision is as follows:

"None of the rates for property, excise, privilege, or personal taxes now levied shall be increased by the General Assembly except after the approval of the qualified electors voting thereon at an election, or in case of an emergency, by the vote of three-fourths of the members elected to each house of the General Assembly."

This provision of the Constitution inhibits the General Assembly from increasing the rates on property, excise, privilege or personal taxes now levied, except after the approval of the qualified electors voting thereon at an election, or in case of an emergency, by a vote of three-fourths of the members elected to each house of the General Assembly.

It is conceded by appellee that the qualified voters of the state have not authorized the General Assembly to increase the rates for property, excise, privilege or personal taxes and that Act 310 of the Acts of 1939 was not passed by a vote of three-fourth of the members of the General Assembly, so it follows that if Act 310 of the Acts of 1939 increases existing rates of excise or privilege taxes imposed upon wholesale dealers of intoxicating beer the act is unconstitutional. The converse is of course true. If Act 310 of the Acts of 1939 does not increase the rate of existing excise or privilege taxes imposed upon wholesale dealers of intoxicating beer by other statutes then the act is constitutional.

The excise or privilege tax imposed upon wholesale dealers of intoxicating beer in the State of Arkansas under the acts mentioned above is at the rate of one dollar and fifty cents for thirty-two gallons (and proportionately for larger or smaller quantities) on beer received, handled, possessed, manufactured or sold. These acts do not authorize the wholesale dealer to collect the taxes from retailers or pass it on to consumers. Under those acts it was strictly an excise or privilege tax imposed upon the wholesale dealer.

The title and § 1 of Act 310 of the Acts of 1939 read as follows:

"An act to levy a consumers' sales tax upon liquor, beer and wines: 'To provide funds for the University of Arkansas School of Medicine and a charity hospitalization program in conjunction therewith; to provide funds for the sanatorium building fund; to provide funds for the hospitalization of indigent sick, for the county tuberculosis fund, for the State Health Department, and for other purposes.'

"Section 1. There is hereby levied and imposed upon all sales of beer at retail within this state a new tax to be known as the 'Beer Consumers Sales Tax' which shall be paid by the consumer and shall be collected as hereinafter provided. Said Beer Consumers Sales Tax shall be levied at the rate of three dollars and fifty cents ($ 3.50) per barrel of thirty-two (32) gallons, (and proportionately for larger and smaller quantities) and shall be collected by the wholesaler from the retailer, who in turn shall pass on said tax to the consumer, if the retailer elects, by an increase in the retail price of beer of no more than one cent per bottle or glass of approximately twelve ounces. Said tax shall be collected by the Commissioner of Revenues from the wholesaler as heretofore provided in such manner and under such regulations as the Commissioner shall deem necessary. . . ."

There is no ambiguity in the language used in Act 310 of the Acts of 1939 that might be or could be construed to mean that the Legislature intended to increase the rate of the privilege or excise tax imposed upon the wholesale dealers of intoxicating beer by other acts of the Legislature. It is an excise or privilege tax imposed upon the retailer of intoxicating beer with the privilege of the retailers to pass it on to the consumers by increasing the retail price of intoxicating beer of no more than one cent per bottle or glass of approximately twelve ounces. It has nothing whatever to do with the excise or privilege tax imposed by existing acts upon the wholesale dealer. They are separate taxes imposed upon different classes of people which the retailer may pass on to the consumer by including it in the retail price under certain restrictions, or the retailer may absorb it himself if he wants to sell beer at the same old price.

The General Assembly expressed itself in such concise, clear and unambiguous language that there is no room for construction by the court. This court said in the case of Cunningham v. Keeshan, 110 Ark. 99, 161 S.W. 170, that: "There are certain elemental rules of construction to be observed in the interpretation of statutes from which we will not depart. One is that, where a law is plain and unambiguous, there is no room left for construction, and neither the exigencies of a case nor a resort to extrinsic facts will be permitted to alter the meaning of the language used in the statute."

And again said in the case of Arkansas Valley Trust Co. v. Young, 128 Ark. 42, 195 S.W. 36, that: "Where the language of a statute is unambiguous the intention of the Legislature must be gathered therefrom. If we change it, we thereby encroach upon the peculiar function of the sovereign power lodged in a coordinate branch of the government."

Our conclusion is that the legislative intent by the passage of Act 310 of the Acts of 1939 was to levy a new tax upon different parties other than a tax under the previous beer laws of the state and is not an attempted increase of the taxes levied by previous acts upon wholesale dealers of intoxicating beer and that its passage was not inhibited by Amendment No. 19 to the Constitution of the State of Arkansas. We do not understand that appellants seriously contend that the General Assembly does not have the power to levy a new and distinctly separate tax from that existing under previous statutes upon the privilege of sale to the consumer of intoxicating beer, but their argument is that the effect of the passage of Act 310 of the Acts of 1939 was to impose upon wholesalers an increase in the rate of pre-existing taxes imposed upon them. We cannot agree with them as to the effect of the passage of Act 310 of the Acts of 1939. As stated above the effect was to...