Hixon v. School District of Marion

• Decision Date: 05 June 1933
• Docket Number: 4-3107
• Citation: 60 S.W.2d 1027,187 Ark. 554
• Parties: HIXON v. SCHOOL DISTRICT OF MARION
• Court: Arkansas Supreme Court

60 S.W.2d 1027

187 Ark. 554

HIXON v. SCHOOL DISTRICT OF MARION

4-3107

Supreme Court of Arkansas

June 5, 1933

Appeal from Crittenden Circuit Court, First Division; G. E. Keck Judge; affirmed.

Judgment affirmed.

R. H Berry, for appellant.

R. V Wheeler and S. V. Neely, for appellee.

CHAS. T. COLEMAN. BASIL BAKER, S. BRUNDIDGE, C. M. BUCK, S. M. CASEY, O. A. GRAVES and J. D. HEAD, Special Justices, concur.

OPINION

CHAS. T. COLEMAN, Special Chief Justice.

Act No. 271 of the Acts of 1933 creates an old age pension commission, composed of the Governor, the Auditor of State and the Treasurer of State, and appropriates $ 3,000,000 for old age pensions during the current biennium. To provide a fund for the payment of such pensions, the act requires the State Treasurer and the county treasurers to deduct one per cent. of the face value of all warrants paid by them, and deposit the amounts so deducted in the State treasury to the credit of the Old Age Pension Fund. The validity of the act, in so far as it levies a tax on warrants, is challenged on constitutional grounds.

Section 5 of article 16 of the Constitution provides as follows: "All property subject to taxation shall be taxed according to its value, that value to be ascertained in such manner as the General Assembly shall direct, making the same equal and uniform throughout the State. No one species of property from which a tax may be collected shall be taxed higher than another species of property of equal value."

The tax imposed by the act is not levied on all property subject to taxation, but only on the particular species of property represented by State and county warrants. If therefore it is a tax on property, it obviously violates the uniformity requirement.

The tax is plainly not a privilege tax. The right to collect debts, whether from municipalities or from individuals, is not a privilege in the legal acceptation of the term. Moreover, the power to tax privileges implies the power to destroy them, and, since the Constitution prescribes no limit on privilege taxes, the tax levied by this act, if it were a tax of that character, could be increased to any per cent. of the face value of the warrant without encountering constitutional restriction.

A tax on warrants has none of the characteristics of an excise tax. There is no exact definition of excises, but ordinarily they are duties laid on the manufacture, sale or consumption of commodities, or upon certain callings or occupations, and are generally referable to the police power of the State. Pollock v. Trust Company, 157 U.S. 429, 15 S.Ct. 673, 39 L.Ed. 759.

In substance and in legal effect, the tax is a tax on property.

No definition of property can be framed which does not include the right of ownership. Property therefore, in its broad and legal sense, is not only the physical thing which may be the subject of ownership, but is the ownership itself. The essential attributes of ownership are the rights of dominion, possession, enjoyment and disposition (1 Blackstone, Com. 138; Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149; Braceville v. People, 147 Ill. 66, 35 N.E. 62, 22 L. R. A. 340 37 Am. St. Rep. 206); and these rights are included within the protective provisions of the Constitution to the same extent as the physical things to which they pertain. Terrace v. Thompson, 263 U.S. 197, 44 S.Ct. 15, 68 L.Ed. 255. A tax on one of these essential...