State v. Gray
| Citation | 96 S.W.2d 447,192 Ark. 1045 |
| Decision Date | 29 June 1936 |
| Docket Number | Crim. 3996 |
| Parties | STATE v. GRAY ET AL |
| Court | Arkansas Supreme Court |
Appeal from Benton Circuit Court; J. S. Combs, Judge; reversed.
Judgment reversed and remanded
Carl E. Bailey, Attorney General, and J. F. Koone, Assistant, for appellant.
Blansett & Blansett, for appellees. A. P. Patton, amicus curiae.
On relation of the prosecuting attorney of and for the Fourteenth Judicial Circuit, proceedings were instituted in a justice of the peace court of Benton county, the object of which was to have appellees, Jack Gray and T. G. Allen adjudged in violation of the provisions of act 186 of 1935 p. 501 and to require payment of the occupation tax therein levied. At the instance of appellees the justice of the peace declared the act unconstitutional and void and a like result occurred in the circuit court on appeal. This appeal is prosecuted by the Attorney General seeking reversal.
Constitutional questions should be approached and considered in the cardinal light that all legislative acts are presumed to be constitutional and valid and all doubts in reference thereto should be resolved in favor of their validity. Wiseman, Commissioner v. Phillips, 191 Ark. 63, 84 S.W.2d 91, and cases there cited. Section 1 of the act provides: Section 2 thereof expressly defines "itinerant nonresident photographers" as employed in said act. This section provides: "That for the purposes of this act the term 'itinerant nonresident photographer' is defined to be any person, firm or corporation, engaged in the business of going into and about the city or county soliciting orders through the sale of coupons, or otherwise, for portrait photographic work, enlargements or portraits, and tinted portraits whether in water colors or in oils, and not having within this State a permanently established and bona fide place of business of at least one year standing before applying for the license permit to do business."
The opinions and consequent judgments of the justice of the peace and the circuit court are sought to be upheld, first upon the theory that the act is applicable only to nonresidents or citizens of other States and is, therefore, discriminatory and repugnant to § 18 of art. 2 of the Constitution of 1874.
This contention cannot be sustained if we give any meaning or effect to § 2 of said act. This section clearly and definitely defines who are "itinerant nonresident photographers" as designated in said act and plainly and expressly provides that such "itinerant nonresident photographers" are those not having within the State a permanently established bona fide place of business of at least one year's standing, etc.
The language of the act last quoted, when considered and construed with its other provisions can have but one meaning and that is that the provisions of act 186 of 1935, p. 501 apply to all photographers doing business in this State, resident and nonresident, citizens of this State and citizens of other States alike and upon equal terms saving those only from payment of the tax who have a permanently established business of one year's duration immediately prior to the application for the privilege of doing such business. These and those only who have such established place of business are exempt from paying the tax. The act being thus construed is a proper classification for the purposes of taxation and does not offend § 18 of art. 2 of the Constitution.
Next the judgments of the lower courts are sought to be sustained because as it is said the act offends the Fourteenth Amendment of the Constitution of the United States which by its terms guarantees to all citizens equal protection of the...
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