I think the case at bar is ruled by the case of Terminal Oil Co. v. McCarroll, 201 Ark. 830, 147 S.W.2d 352, rather than by the case of *Page 604 McCarroll v. Hollis Co., 201 Ark. 931, 148 S.W.2d 167. It appears to me that the effect of the majority opinion in the case at bar is to overrule the Terminal Oil Company case; and to this I am opposed.
Furthermore, the majority is holding:
(1) that the Back Tax statute applies, but
(2) that nevertheless the state shall recover the money in escrow.
These two propositions seem to me entirely inconsistent. If the state loses the money under No. 1 above, then it should not be able to recover part of the same many under No. 2 above.
Here is the situation, as I view it:
The state sued in discovery to ascertain and collect from appellant the amount of tax due. Appellant filed answer, denying anything was due and stating that appellant had made a full and complete report every month, and therefore was entitled to the benefit of the limitations in the Back Tax statute (13899, Pope's Digest). A stipulation was filed on February 25, 1943, stating that the amount of the tax that would have been due — if any — was $97,125.09. Then a second stipulation was filed on April 7, 1943, which recited: "It is further stipulated that of the said $97,125.09 Arkansas-Louisiana Gas Company was during the aforesaid period paid the sum of $50,845.73, which sum was paid by certain of the pipeline industrial customers listed in said Exhibit 1. In this connection, it is stipulated that the pipeline industrial customers who made such payments each contended that their purchases of gas constituted interstate commerce and were not subject to Arkansas sales tax, and that in each case the pipeline industrial customer making payment did so upon the agreement and condition that Arkansas-Louisiana Gas Company would withhold payment to the State Revenue Commissioner of the money so paid and would hold same in its possession until the question of tax liability was finally determined by the courts."
So far as I can find from the record the first information ever received by the state about appellant having *Page 605 collected this $50,845.73, was in the stipulation filed April 7, 1943. How can it be said that a full disclosure was being made by appellant to the state in the years 1936 to 1939 when the facts now disclose that during that period of time appellant was collecting and holding in its possession taxes in the amount of $50,845.73. This second stipulation seems to me to defeat appellant from claiming the benefits of the Back Tax Law. The effect of the majority holding is to release appellant from its failure to collect from all its customers, but to seize the money which appellant had collected from other customers similarly situated but whom appellant had required to pay the tax. This seems highly inequitable.