Walton v. Scott
| Decision Date | 06 October 1969 |
| Docket Number | No. 5---5045,5---5045 |
| Citation | 247 Ark. 268,445 S.W.2d 97 |
| Parties | Leo WALTON and Milford Fuller, Appellants, v. Bob SCOTT, Commissioner of Revenues, Appellee. |
| Court | Arkansas Supreme Court |
Donald J. Adams and Moore, Logan & Brockmann, Harrison, for appellants.
Lyle Williams, J. Victor Harvey, John F. Gautney, L. Philip McClendon and Hugh L. Brown, Little Rock, for appellee.
Henry Ginger and Tom Tanner, Little Rock, for intervenor Joe Purcell, Atty. Gen.
In September of 1967 the two appellants were discovered to be in possession of a large quantity of stolen property that had been brought to this state from Missouri. See Walton and Fuller v. State, 245 Ark. 84, 431 S.W.2d 462 (1968). Among the items seized by the investigating officers were 8,940 packages of cigarettes upon which the Arkansas cigarette tax had not been paid. The Commissioner of Revenues brought this action to collect the statutory penalty of $25 a package, or $223,500. Ark.Stat.Ann. § 84--2310 (Repl.1960). Upon testimony that the officers had examined only one package in each ten-package carton the jury returned a verdict for $22,350, that being one tenth of the amount sued for.
For reversal the appellants contend that the statute is unconstitutional--generally as a denial of due process of law and specifically as a violation of the constitutional prohibition against the imposition of excessive fines. Ark.Const., Art. 2, § 9. The tax was levied at the rate of eight cents a package, or a total of $71.52 upon 894 packages. Counsel insist that the penalty of $22,350 is so disproportionate to the amount of the tax as to be excessive on its face.
The appellants rely principally upon our holding in Beckler Produce Co. v. American Ry. Express Co., 156 Ark. 296, 246 S.W. 1, 26 A.L.R. 1197 (1922). There the statute imposed a penalty of two dollars a day for the express company's failure to settle a claim for property damage, but it allowed shippers to delay the filing of suit for any length of time within the period of limitations. Beckler waited for two and a half years before seeking to collect a penalty of $1,740.00 for the loss of a shipment worth $48.66. We held that the statute was so oppressive and went so far beyond its legitimate purpose as to be contrary to the due process and equal protection clauses of the constitution.
That case is not sufficiently similar to this one to be controlling. There the penalty was applicable to a business transaction between private persons. The statute allowed the shipper, merely by delay, to build up a penalty claim so completely out of proportion to the amount of the asserted loss as to virtually compel the carrier to compromise the demand regardless of its actual merit. By contrast, here the penalty stems from the State's effort to collect a lawful tax, the evasion of which is a criminal offense. Ark.Stat.Ann. § 84--2323. The amount of the penalty is fixed by law and cannot be augmented by any maneuvering on the part of the State. The tax dodger is given fair warning in advance that a violation of the statute carries a fixed penalty with respect to each untaxed package of cigarettes.
In the Beckler case we based our discussion upon the premise that 'in general the amount of the penalty prescribed is a matter for the Legislature to determine in its discretion, and the courts will not interfere with its discretion * * * as long as it keeps within the fair and reasonable scope of its power.' More specifically, we declared in Ex parte Brady, 70 Ark. 376, 68 S.W. 34 (1902), that the imposition of a fine is not a cruel or unusual punishment and that to violate the constitution 'the fine imposed must be so excessive and unusual, and so disproportionate to the offense committed, as to shock public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances.'
It could not be seriously contended that a penalty of $25 for the unlawful...
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Delta School of Commerce, Inc. v. Harris
...witnesses be unreasonably detained." The prohibition has been applied to penalties levied by the State. See, e.g., Walton v. Scott, Comm'r, 247 Ark. 268, 445 S.W.2d 97 (1969) (penalty for failure to pay cigarette tax held not excessive); Baker v. State, 199 Ark. 1005, 137 S.W.2d 938 (1940) ......