I regret that the majority have found it necessary to strike down Act 29 of the Acts of Arkansas for 1941, and with it an almost identical act of the *Page 290 legislature of Louisiana enacted in 1940, and a similar act adopted by the Texas legislature in 1941, as they were expressly made interdependent in their effect and operation, and if one falls, all will fall.
The striking down of an act of the legislature by judicial construction is no light responsibility, even though it is not tied in with legislation of other states, but when, as here, such a construction takes with it the solemn legislative enactments of other states, the responsibility is greatly increased, and 1 am unwilling to assume it. As we said in Bush v. Martineau, 174 Ark. 214,295 S.W. 9, which I deem quite pertinent here: "Before proceeding to a discussion of the issues raised by this appeal, we deem it proper to premise our remarks by two fundamental rules of construction announced and adhered to throughout the history of this court. First, that the Constitution of this state is not a grant of enumerated powers to the legislature, not an enabling, but a restraining act (Straub v. Gordon, 27 Ark. 625), and that the legislature may rightfully exercise its powers subject only to the limitations and restrictions of the Constitution of the United States and of the State of Arkansas. St. L., I. M. S. Ry. Co. v. State, 99 Ark. 1,136 S.W. 938; Vace v. Austell, 45 Ark. 400; Carson v. St. Francis Levee Dist.,59 Ark. 513, 27 S.W. 590; Butler v. Board, etc., 99 Ark. 100,137 S.W. 251. In other words, as was said in McClure v. Topf Wright, 112 Ark. 342, 166 S.W. 174: `It is not to be doubted that the legislature has the power to make the written laws of the state, unless it is expressly, or by necessary implication, prohibited from so doing by the Constitution, and the act assailed must be plainly at variance with the Constitution before the court will so declare it.' Second, that an act of the legislature is presumed to be constitutional and will not be held by the courts to be unconstitutional unless there is a clear incompatibility between the act and the Constitution; and further, that all doubt on the question must be resolved in favor of the act. State v. Ashley, 1 Ark. 513; Eason v. State, 11 Ark. 481; Dabbs v. State, 39 Ark. 353, 43 Am.Rep. 275; Sallee v. Dalton, 138 Ark. 549, 213 S.W. 762; and in Standard Oil Co. of La. v. Brodie, 153 Ark. 114, *Page 291 239 S.W. 753, this court quoted the language of the Supreme Court of the U.S. in Hooper v. People of California,155 U.S. 648, 15 S. Ct. 207, 39 L.ed. 297, that `the, elementary rule is that every reasonable construction must be resorted to in order to save the statute from unconstitutionality.' There are a great many decisions of this court announcing and following these rules under a great variety of circumstances, and we do not therefore cite or quote from more of them."
Act 29 of 1941 is somewhat novel, but its legislative purpose is not entirely new and without precedent, and such acts have been sustained by the courts of many states and the Supreme Court of the United States. For instance, about 20 years ago, the Kentucky Court of Appeals, in Hendrickson v. Taylor County Farm Bureau, held that an act of the legislature of that state, "providing for the organization of county farm bureaus to advance agriculture, home economics, horticulture and animal industry, in cooperation with the State College of Agriculture and with the United States Department of Agriculture, and providing for appropriation by the county fiscal court of a sum double the amount of dues collected, not exceeding a certain amount," did not violate 3 of the Constitution, providing that "no grant of exclusive, separate public emoluments or privileges shall be made to any man or set of men, except in consideration of public services." Nor did it violate 171, providing: "Taxes shall be levied and collected for public purposes only," nor was it in violation of 181.
In C. V. Floyd Fruit Co. et al. v. Florida Citrus Commission, 128 Fla. 565, 175 So. 248, the Supreme Court of Florida sustained an act of the legislature of that state, levying a tax on each standard-packed box of oranges, grapefruit or tangerines grown in the state to be collected and used in advertising said fruits. It was there held that such a tax is an "excise tax" and not a "property tax," and does not violate constitutional rules of equality, uniformity, or due process, as provided in the Constitutions of Florida or the United States; that such an excise tax is not unreasonable, unjustly discriminatory, nor arbitrary; that the tax was levied on the privilege of turning *Page 292 said fruits into the channels of trade, and is a valid tax regardless of whether they were later to be shipped in interstate or foreign commerce; and that the tax so imposed was for the purpose of advertising such citrus fruits and was for a public purpose and valid because the promotion of the citrus industry in Florida is a matter of public concern.
In State ex rel. Graham v. Enking, 59 Idaho 321,82 P.2d 649, decided August 30, 1938, the Supreme Court of Idaho had under consideration a statute of that state, levying a tax of one cent on each 100-pound unit of apples, prunes, potatoes and onions shipped within the state, for the purpose of providing a fund for advertising such fruits and vegetables. It was there held against the several contentions of invalidity that it was a tax on the privilege of turning such fruits and vegetables into the primary channels of trade and was not a tax on such fruits and vegetables; and that it is an "excise tax" and not a "property tax" and did not, therefore, violate constitutional rules of equality, uniformity or due process. It was there further held, in line with our own decisions above cited and many others, to quote a headnote, that: "Where a statute has two possible interpretations one of which would render it unconstitutional and the other valid, court is under the duty to adopt the valid interpretation, and this rule applies where its application will avoid any serious doubt."
In Miller et al. v. Michigan State Apple Commission et al., 296 Mich. 248, 296 N.W. 245, decided February 7, 1941, the Supreme Court of Michigan had under consideration a statute of that state, Act 87 of the Acts of 1939, known as the "Baldwin Apple Act," which levied "an assessment of 1 cent per bushel, or 2 cents per 100 pounds of all apples grown and produced in Michigan, payable by the grower or grower's agent when shipped, with certain exceptions, and providing that "all moneys levied and collected under this act shall be expended exclusively to advertise apples." The act was sustained as a valid and constitutional exercise of legislative power, as not being discriminatory, not a tax on property, but *Page 293 on the privilege of putting apples in the marts of trade, and is one for a public purpose.
So, if Florida can levy a valid tax on her citrus fruits; if Idaho can on her apples, prunes, potatoes and onions; and if Michigan can on her apples, it is difficult to perceive why Arkansas cannot on her rice. The growing and milling of rice in Arkansas is one of her major industries, involving wealth running into the millions of dollars. As I understand it, the majority have held said Act 29 void because it is a tax on property, or that it is a tax on the privilege of milling rice which is an occupation of right and cannot be taxed. This is the mere ipse dixit of this court. I think it is a privilege or excise tax, not upon the milling of rice, but upon the privilege of putting milled rice in the channels of commerce. The act does not say so in so many words, as do some of the acts in cases above cited, but its omission does not keep it from being so, just as its declaration in said other acts does not make it so, if, in fact, it were not.
Milled rice is an important article of food for human consumption, and the tax might well be sustained as one within the police power of the state as it has a direct relation to the public health. It is a well known fact that in the milling of rice, when the inner coating or polish of the berry is removed, the rice or health germ is also removed. It is also a well known scientific fact that a diet composed exclusively of white rice produces or causes a deadly disease known as beriberi. See Webster's dictionary and an article in the Saturday evening post of November 1, 1941, entitled "Morale in a Test Tube." The purpose of this act, in addition to the advertising of our rice, is to provide a fund for laboratory experimentation to develop or improve the methods of milling, how to preserve and retain the health germ and to develop a method of preserving brown or unpolished rice, and for various other purposes.
Appellants have raised and argued many other questions touching the validity of said act, which 1 do not understand the majority opinion discusses. Some of them are: that the act is an illegal compact between the *Page 294 states involved; that the Texas act is not similar; that the Texas act did not become effective until 90 days after the adjournment of the Texas legislature and that, therefore, the tax for 1941 could not be collected; and others, all of which I have carefully considered and do not find them to have substantial merit.
I, therefore, register my dissent, and am authorized to say that Mr. Justice HUMPHREYS agrees with the views herein expressed.