Thompson v. Wiseman

• Decision Date: 29 October 1934
• Docket Number: 4-3565
• Citation: 75 S.W.2d 393,189 Ark. 852
• Parties: THOMPSON v. WISEMAN
• Court: Arkansas Supreme Court

75 S.W.2d 393

189 Ark. 852

THOMPSON v. WISEMAN

4-3565

Supreme Court of Arkansas

October 29, 1934

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

Decree affirmed.

R. Leon Day and Sam Robinson, for appellants.

Hal L Norwood, Attorney General, Earl R. Wiseman and Charles W Mehaffy, for appellee.

OPINION

JOHNSON, C. J.

Appellants own and operate in public places in this State certain miniature pool tables, marble tables and various types of vending machines controlled by coin slot devices. By acts 158 and 167 of [189 Ark. 853] 1931, amended by act 137 of 1933, the privilege of operating these devices in this State is subjected to a tax.

This suit was brought by appellants against appellee Revenue Commissioner to restrain and enjoin him from enforcing said acts because, as it is alleged, act 158 of 1931 is unconstitutional and void because in conflict with the fourteenth amendment to the Constitution of the United States, and is contrary to and in conflict with § 5 of article 16 of the Constitution of this State; that act 158 of 1931 is void because it did not receive the necessary vote required by § 31 of article 5 of the Constitution upon passage through the respective houses of the General Assembly; that act 158 is discriminatory against coin operated pool tables, and in favor of standard pool tables, and is therefore void; that act 167 of 1931 repealed act 158 of 1931, in so far as said act 158 applies to miniature pool tables.

Appellee's demurrer was sustained to this complaint, and this appeal seeks review thereof.

The reasons why these acts are conceived to be contrary to the Fourteenth Amendment of the Constitution of the United States are not pointed out in briefs, therefore we shall pretermit any discussion thereof.

Appellants' contention that said acts are contrary to and in violation of § 5 of article 16 of the Constitution of 1874 can not be sustained. This section of the Constitution provides: "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, provided the General Assembly shall have power from time to time to tax hawkers, peddlers, ferries, exhibitions and privileges, in such manner as may be deemed proper."

Appellants' contention is grounded upon the legal proposition that the Constitution of 1874 limits the taxing power of the State in two particulars, namely: First, a tax must be ad valorem, equal and uniform; secondly, that the State can not lay a tax for State revenue purposes upon occupations of common right. The contention that the tax here levied is not ad valorem, equal and uniform has no application to the question here under consideration. The tax here levied is upon the privilege of operating pool tables, miniature pool tables or other devices controlled by coin slot machine devices, and such a tax is expressly authorized by § 5, article 16, of the Constitution as heretofore quoted. We stated the applicable rule in Fort Smith v. Scruggs, 70 Ark. 549, 69 S.W. 679, as follows:

"The subject-matter of this statute comes, we think, within the general law making power of the Legislature, and, if there be limitations forbidding the exercise of this power in that respect, it must be found in the Constitution. But there is none. Our Constitution expressly provides that the Legislature shall have power to tax privileges in such manner as may be deemed proper."

Again, in Floyd v. Miller Lumber Co., 160 Ark. 17, 254 S.W. 450, we stated the applicable rule in reference to the severance of growing timber from the soil as follows: "Following the lead of the Supreme. Court and the trend of our own decisions, and for purposes of uniformity, a thing to be desired, a majority of the court, including the writer, have concluded that the tax imposed by the acts is a privilege and not a property tax. As a privilege tax it is clearly and definitely authorized by the Constitution."

Appellants especially rely upon Stevens & Woods v. State, 2 Ark. 291, and subsequent cases of similar effect, as authority for their position that the tax here levied is a property tax.

It is true we held in Stevens & Wood v. State, supra, that all property in this State must be taxed according to its value, and that the tax thereon must be equal and uniform throughout the State, but we also said in this connection that when property was acquired it must be so kept and disposed of as not to injure any paramount legal right of another or affect injuriously the public morals or public good.

It is perfectly clear that the holding of this court in the last case cited was that the ownership of a pool table was not per se a privilege, but that its use might be determined a privilege and regulated as such. ...