Hutton v. McCleskey

• Decision Date: 11 February 1918
• Docket Number: (No. 145.)
• Citation: 200 S.W. 1032
• Parties: HUTTON, Tax Collector, v. McCLESKEY.
• Court: Arkansas Supreme Court

Page 1032

200 S.W. 1032

HUTTON, Tax Collector, v. McCLESKEY.

(No. 145.)

Supreme Court of Arkansas.

February 11, 1918.

Appeal from Circuit Court, Pulaski County; G. W. Hendricks, Judge.

Mandamus by H. S. McCleskey against W. G. Hutton, Tax Collector. From an adverse judgment, defendant appeals. Reversed and remanded, with directions.

Rose, Hemingway, Cantrell, Loughborough & Miles, of Little Rock, for appellant. S. L. White and Will G. Akers, both of Little Rock, for appellee.

McCULLOCH, C. J.

The General Assembly of 1917 enacted a statute changing the method of assessing property for taxation, and among other changes in the law imposed a penalty of 25 per centum on the taxes of any delinquent property owner who failed to assess his property for taxation within the time and in manner prescribed by the statute. Acts 1917, p. 1237. On January 2, 1918, the Governor of the state issued a proclamation containing a recital that there had been many delinquencies in the assessment of taxes for the year 1917, which were unintentional and not willful, and declaring a remission of all penalties for such delinquencies down to the sum of $1, "but in no way interfering," so runs the language of the proclamation, "with the minimum penalty of $1.00 to be paid to the township members for the listing of delinquents."

The plaintiff McCleskey is the owner of property in Pulaski county, and was among the list of delinquents. He made an offer to the collector to pay his taxes without penalty, and on refusal of that officer to accept the payment and give a full receipt without the payment of penalty, he instituted this action in the circuit court of Pulaski county to compel the collector by mandamus to do so. The state tax commission also issued a general order undertaking to relieve delinquents from the payment of penalties and directing the tax collectors of the state to accept the payments for taxes from such delinquents without imposing the penalty, except the minimum of $1. No other question has been presented by counsel except the validity of the Governor's proclamation remitting the penalties and the order of the state tax commission attempting to relieve delinquents from payments of penalty.

The power of the executive to grant pardons for crimes and remissions of fines, penalties, and forfeitures depends entirely upon a construction of the provision of the Constitution conferring that power, for it is derived solely from the Constitution, as the office does not carry with it inherently any such power. Baldwin v. Scoggin, 15 Ark. 427. The provision of the Constitution on that subject reads as follows:

"In all criminal and penal cases, except in those of treason and impeachment, the Governor shall have power to grant reprieves, commutations of sentence and pardons after conviction; and to remit fines and forfeitures under such rules and regulations as shall be prescribed by law. In cases of treason he shall have power, by and with the advice and consent of the Senate, to grant reprieves and pardons; and he may, in the recess of the Senate, respite the sentence until the adjournment of the next regular session of the General Assembly. He shall communicate to the General Assembly at every regular session each case of reprieve, commutation or pardon,...