The appeal questions constitutionality of Act 29, approved February 6, 1941, designated by the general assembly as Rice Development Commission Law. It authorizes the governor to appoint five commissioners, not less than three of whom shall be rice growers, and two of whom may be rice millers.1
A tax of two cents per hundred pounds on rice milled within the state is levied, effective after August 1, 1941; contingent, however, upon adoption by Texas of a similar statute.
The plan is borrowed from a Louisiana act, approved July 10, 1940. Texas enacted a measure at variance with those of Louisiana and Arkansas, its effective date being October 2, 1941. *Page 283
At the time the lawmaking body of Arkansas was considering the bill which became Act 29, the general assembly of Texas was debating an identical scheme. The attorney general's opinion was requested. Because that official thought the measure violative of the Texas constitution, changes were made; and an act materially different from the original resulted.
By agreement the transcript in the instant case was amended to include as defendants certain mills and the Arkansas Rice Growers Cooperative Association.2 An agreed statement is that more than 90 per cent. of rice grown and milled in Arkansas is sold for shipment to points in other states and in foreign countries. The tax sought to be levied will produce $65,000 annually.
Among other objects Act 29 seeks to accomplish, that of ". . . promoting the prosperity and welfare of rice growers and producers . . . through . . . publicity, sales promotion, and development campaigns" is paramount and is mentioned as second only to the intent ". . . to encourage, increase, and stimulate the use and sale of rice."
Under a sub-title, "Creation, Collection, and Use of Fund," methods of administration are set out. They appear as 4, shown in the margin.3
Section 5 provides that the tax shall be paid by all rice millers, remittances to be made within the first ten days of each month for all rice milled during the preceding calendar month, ". . . which tax shall be remitted *Page 284 direct to the rice development commission." Penalties are provided for failure to report and make payments, and for refusal of millers to allow their books to be examined; also for failure to keep the necessary records. The fine is fixed at not more than $500, ". . . or imprisonment for more than six months, or both, together with the cost of prosecution."4
Although the commissioners serve without pay, they are authorized to select a manager and all other persons necessary to administer the law, ". . . in connection with the Louisiana and Texas commissions, . . . which manager and other persons shall receive such salary or compensation as the commission may fix, plus such expenses as they may actually incur."5
Of the numerous objections urged against validity of the Act, we shall consider but two: (a) that the tax is levied for a private purpose; (b) that milling rice is an occupation, and cannot be taxed for state purposes. Since both objections must be resolved in favor of the appellants, other matters are unimportant.
Courts of three states have approved legislation thought by appellees to be similar in principle to Act 29. A tax imposed on packages or crates of oranges, grape fruit or tangerines grown in Florida was upheld in Floyd Fruit Co. v. Florida Citrus Fruit Commission,128 Fla. 565, 175 so. 248, 112 A.L.R. 562. Apples, prunes, potatoes, and onions were classified in an Idaho statute on which a tax was laid for benefit of the industry. State ex rel. Graham v. Enking, 59 Idaho 325, 82 P.2d 649. A tax on apples to be paid by the growers when shipped, proceeds of the tax to be used for advertising Michigan apples, was upheld in Miller, et al., v. Michigan State Apple Commission, et al., 296 Mich. 248, 296 N.W. 245. In the Michigan case two judges recorded dissents. *Page 285
In Cobb v. Parnell, 183 Ark. 429, 36 S.W.2d 388, a property tax levy of half a mill annually for payment of bonds issued by agricultural credit corporation was upheld on the theory that an emergency existed and that the purpose to be served was public. The opinion states that plight of the people was the motive moving the general assembly when the tax was levied, and ". . . relief of a people wholly destitute and utterly helpless" was the aim in mind. It was then said by Mr. Justice BUTLER ". . . a review of [court decisions] heretofore cited [where there were constitutional provisions similar to ours, shows that] aid has been extended by the state under varying circumstances, to ward off anticipated dangers, or relieve present calamities; and, even in those cases denying the authority of the state to lend its aid, the intimation is that statutory relief was denied not so much for lack of power, but rather that the power was improvidently exercised and without sufficient reason."
The holding in Smith v. Arkansas Irrigation Company,200 Ark. 1022, 142 S.W.2d 509, was that where an entire community is engaged in rice farming and subterranean sources of water have been drained to such an extent that the cost of pumping is exorbitant, and there is danger of further depletion of the underground supply, a determination by the legislature that the impounding of surface water for irrigation purposes was essential to the public welfare would not be disturbed on an allegation that exercise of the right of eminent domain expressly conferred by the general assembly was in conflict with the constitution.
The Irrigation Company case has no applicability here other than to emphasize the court's view that where the thing it is sought to do is one of general necessity, there exists a community of interest which warrants the taking of private property for the public good. That right, however, is derived from the constitution; and, as Chief Justice COCKRILL said in St. Louis, I. M. So. Ry. Co. v. Petty, 57 Ark. 359, 21 S.W. 884, 20 L.R.A. 434, "When once the character of the use [of property sought *Page 286 to be condemned] is found to be public, the court's inquiry ends, and the legislative policy is left supreme. . . ."
Interesting discussions of the nature of tax levies are found in Sims v. Ahrens, 167 Ark. 557, 271 S.W. 720. Four opinions were written; the original majority by MR. JUSTICE FRANK G. SMITH; a concurrence by Mr. Justice HART (later Chief Justice), in which Mr. Justice HUMPHREYS joined; an opinion on rehearing by Mr. Justice WOOD, in which he agreed with the views previously expressed by Mr. Justice HART and Mr. Justice HUMPHREYS; and finally, a dissenting opinion by Mr. Justice FRANK G. SMITH, concurred in by Chief Justice McCULLOCH.
In the dissenting opinion, after referring to authorities cited in support of the proposition that there was no authority for imposition of an income tax, it was said: ". . . the reason given in all those cases, for holding that counties and cities may tax occupations, but that the state could not do so for state purposes, was that the right had not been denied in the one case, while it had been in the other. It would appear that if the state may tax incomes for state purposes, it may also tax occupations. No sound distinction can be drawn between the right to tax the one, rather than the other. The right to tax both exists unless the constitution has withheld that right."
Of the income tax, Mr. Justice WOOD, in the opinion on rehearing, said: "Now, of the various forms and kinds of excise taxes, a tax on incomes holds its own place; it falls in its own particular and distinctive class, and must not be confused with occupation, license, franchise, and business taxes." Mr. Justice WOOD held the further view that the right to engage in an employment or profession, or to carry on a business not in itself hurtful and not pursued in a manner harmful to the public, is a common right, ". . . which, under our constitution, as construed by all our former decisions, can neither be prohibited nor hampered by laying a tax for state revenue on the occupation, employment, business, or profession." The learned Justice then explained *Page 287 what to his mind distinguished the occupation, business, or profession, as such, from the income derived from it.
The original majority opinion was that ". . . this court cannot consistently hold that it is within the power of the legislature to declare and tax as privileges, for state revenue, pursuits and occupations which are matters of common right."
Mr. Justice HART, in his concurring opinion, said: "Our conclusion of the whole matter is that the effect of our previous decisions that the proviso in art. 16, 5 of the constitution, giving the legislature the power to tax certain occupations, by necessary implication precludes it from taxing other occupations for state purposes and that, if the provision had been left out of the section, the legislature might have taxed all occupations."6
In spite of divergent views regarding the nature of an income tax, all of the judges agreed there was no power to tax occupations for state purposes (other than those enumerated in art. 16, 5 of the constitution) and no decision since has been to the contrary.
By express terms of Act 29 a tax of two cents per hundred pounds is assessed on all rice milled in Arkansas. Necessarily the miller must pay the tax. There is no provision in the law for regulation of mills. No inspection is contemplated other than an examination of records to determine what the tax should be. The miller derives no direct return from the tax, receives no consideration for the payment. The charge is made for using the property in the only way it can be utilized — the milling of rice; hence, the tax is laid on a common right, and is prohibited by the constitution. *Page 288
Nor is the situation altered by the fact that rice is a food, and that in its culture, harvesting, milling, classification, storage, branding and shipment care must be exercised to prevent it from reaching the public in an impaired condition. Authority to inspect has existed for more than fifteen years. See Act 218, approved March 25, 1925. Section 3 of Act 218 empowers the state plant board ". . . to fix and promulgate official standards for grading and classifying any or all agricultural products grown or produced in this state and to fix and promulgate official standards for containers of farm products."
Broad use may be made of the state's police power; and if the treatment of rice by grower, miller, seller, or others dealing with it creates a hazard against which there should be protection, then, admittedly, any agency through which it passes may be subjected to regulation and a tax laid for the reasonable cost. But, like corn, wheat, and all agricultural commodities of common use, rice is extremely wholesome. It contains no quality or element requiring that strict supervision which must be applied to products inherently harmful.
The latest federal census of agriculture for Arkansas lists 1,428 rice farms, embracing 153,095 acres. The total of all farms in the state is 216,671, the acerage [acreage] being 6,609,833. In point of numbers, rice farms account for .0066 per cent. of the total, and in acreage, .023 per cent.
Can it be said that the interests of so small a group (although such farmers are among the more aggressive, progressive, and substantial of the state) are such as to call for protective intervention by the state's taxing powers on the theory that the common welfare is involved? That which is termed the logic of this contention is shredded by the facts.
But, it is insisted, the commission ". . . may be treated and considered, if necessary, as a division or department of the bureau of mines, manufacture and agriculture."7 Here, again, realities intervene; for Act 29 in very positive language undertakes to create an *Page 289 agency independent of all others save similar commissions in Texas and Louisiana. Even if this construction should be given, and the commission should be classified as a part of the bureau of mining, manufacturing and agriculture,8 authority for taxing millers of rice for advertising purposes would still be lacking. While the general assembly would have power to make necessary appropriations from available funds for administration of the duties thus imposed, rice mills could not be singled out and assessed with cost of the bureau's activities.
It would be just as logical to say that all gins must pay a tax for the privilege of ginning cotton; that on mills and compresses may be assessed for purposes of tri-state publicity; that a blacksmith may not use his anvils or shoe a horse without yielding to the taxing authority a percentage of his income; that every garage in Arkansas may be taxed by the state for the privilege of repairing automobiles, and that other domestic industries, ad infinitum, may be brought within the tax structure on a concept heretofore held to be prohibited by the constitution.
It is argued that the exaction is insignificant. If a tax of two cents per hundred pounds produces $65,000 annually from the milling of rice grown on 1,428 farms, the cost would be the equivalent of $45.51 per farm, or 42.50 cents per acre. This, however, is not the test of validity. The questions are, Did the general assembly have power, under the constitution, to assess the tax?, and was it laid for a public purpose? There must be a negative answer to each question.
The decree is reversed with directions to enjoin enforcement of the act.
1 The implication arising from use of the words "shall" and "may" seems to be that all of the commissioners may be rice growers.
2 The Arkansas Rice Growers Cooperative Association; Walton Rice Mill, Inc.; Standard Rice Company, Inc.; Arkansas State Rice Milling Company; Smith Rice Mill Company; Mouton Rice Milling Company.
3 "There is hereby assessed a tax of two cents per hundred pounds on all milled rice which is milled in the State of Arkansas on and after the first day of August after the Legislature of Louisiana and Texas shall have adopted a statute similar to this statute, assessing a tax of not less than two cents per hundred pounds on milled rice in said states and creating similar commissions, boards, departments or other authorities in said states having similar powers and purposes, or vesting such powers and purposes in officers, commissions, boards, departments or other authorities already created in such states."
4 It was probably the intention of those who drafted the bill to make the jail sentence not more than six months. An examination of the original document, however, discloses that the word "not" has been omitted.
5 But see art. 5, 29, and art. 16, 4, of the constitution. Compare with Nixon v. Allen, 150 Ark. 244, 234 S.W. 45; Ward v. Bailey, Governor, 198 Ark. 27, 127 S.W.2d 272.
6 See Baker v. State, 44 Ark. 134; Sparling v. Refunding Board,189 Ark. 189, 71 S.W.2d 182; Floyd v. Miller Lumber Co., 160 Ark. 17,254 S.W. 450, 32 A.L.R. 811; Wiseman v. Phillips, 191 Ark. 63,84 S.W.2d 91; Cooley on Taxation, Fourth Edition, 1673; American Manufacturing Co. v. City of St. Louis, 250 U.S. 459, 63 L. Ed. 1084,39 Sup.Ct. Rep. 493; Spreckels Sugar Refining Co. v. McClain,192 U.S. 397, 48 L. Ed. 496, 24 Sup.Ct. Rep. 376; Oliver Iron Mining Co. v. Lord et al., 262 U.S. 172, 67 L. Ed. 929, 43 Sup.Ct. Rep. 526; Worth Bros. v. Lederer, Collector, 256 F. 116; Viquesney v. Kansas City et al., 305 Mo. 488, 266 S.W. 700; Gila Meat Co. v. State,35 Ariz. 134, 276 P. 1; City of Cincinnati v. Cincinnati Oil Works Co., 123 Ohio St. 448, 175 N.E. 699.
7 Section 1, art. 10, constitution.
8 The bureau of mines, manufacture and agriculture was abolished by Act 153, approved March 25, 1933. By Act 209, approved March 28, 1933, appropriations were made for certain functions formerly discharged by the bureau, for the years 1934 and 1935.