In my original opinion in this case, which, at the time it was handed down, was the opinion of the majority, I did not attempt to distinguish between income taxes and occupation taxes. It was stated that the act imposed both an occupation tax and an income tax, and, as the conclusion was announced that the State could not impose either, it was deemed unimportant to point out the distinction between the two.
I have never believed that an income tax is a property tax, nor do I understand that any of the Justices held to that view unless it was entertained by Mr. Justice WOOD, and he has now announced his conviction that it is not a property tax. I concur in all that the learned Justice says on that subject in his supplementary opinion.
It is true the opinions of the court which were reviewed, beginning with the case of Stevens v. State,2 Ark. 291, dealt with attempts to tax occupations, and *Page 600 not incomes, but that point was not regarded as important because of the reasons given for holding that occupations could not be taxed. That reason was as applicable to taxes on income as it was to a tax on an occupation, and that reason was that the Constitution, by designating the subjects of taxation for State purposes, had excluded the subjects of taxation which were not named.
These cases speak for themselves, and I submit, without again reviewing them, that 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.
Now, it has never been held that the Constitution expressly denied the State the right to tax occupations. The conclusion which has heretofore been so consistently followed that the State did not have this right resulted from the construction given the provisions of the Constitution which enumerated what the State might tax. These cases all recognized that there were two ways of imposing a constitutional restriction, viz., by express negation, or by an affirmation which implies a negation, and it was only through the application of this last method that the conclusion was reached that an occupation tax for State purposes could not be imposed.
If that rule of construction had not been invoked and applied, the court could not have held that the State did not have authority to tax occupations. No other reason was ever found or suggested for denying the State this right. All the prior cases denying the *Page 601 State this right are bottomed upon this proposition, as I attempted to point out in my original opinion.
If this is true, there is as much authority to levy an occupation tax as there is to levy an income tax. The Constitution does not expressly deny the right to levy either, nor does it confer the right to tax either. How, if the enumeration of the subjects of State taxation, which does not include occupations, operates, for that reason, to exclude occupations from taxation, how can it be said that the State can tax one but cannot tax the other?
When one considers the provisions of our Constitution in regard to the subjects of taxation for State purpose and follows the reasoning by which this court, at an early date, held that occupations could not be taxed for State purposes, it appears to me that it must follow necessarily, inevitably, that, if incomes can be taxed, so may occupations be, and that, if occupations cannot be taxed, incomes cannot be.
As I understand what is now the majority-opinion, the State does not have the right to tax all incomes, but may enact a properly classified net income tax law. It appears to me that the distinction between the right, under our Constitution, to tax net income and other income is as elusive as the distinction between the right to tax occupations and income. The State might tax incomes, either gross or net, and occupations as well, unless the Constitution has denied the State this right, and, if the right exists, it is the province of the Legislature to determine how it shall be exercised.
I, therefore, respectfully dissent from what is now the majority opinion.
McCULLOCH, C. J., concurs in the opinion of Judge SMITH. *Page 602