(dissenting). In the case of Rison v. Farr, 24 Ark. 161, the court said: “The Constitution is the fortification within which the people have entrenched themselves for the preservation of their rights and privileges, and every act of the Legislature, or other department of the government, which infringes upon any right declared in the Constitution, whether it be inherent in the people or created by that instrument, is absolutely void. ’ ’
Therefore, having reached the conclusion that the Legislature has invaded and disregarded the constitutional scheme for assessing taxes and has substituted another not provided for by the Constitution, it becomes my duty to give my reasons for such belief.
The proper determination of the constitutionality of the statute involves the construction of article 7, section 46, and article 16, section 5, of our Constitution. Section 46 of article 7 reads as follows:
“Section 46. The qualified electors of each county shall elect one sheriff, who shall be ex-officio collector of taxes, unless otherwise provided by law; one assessor, one coroner, one treasurer, who shall be ex-officio treasurer of the common school fund of the county, and one county surveyor, for the term of two years, with such duties as are now or may be prescribed by law. Provided, that no per centum shall ever be paid to assessors upon the valuation or assessment of property by them.” Section 5 of article 16 is as follows:
“All property subject to taxation shall be taxed according to its value; that value to be ascertained in such manner as the General Assembly shall direct, making the same uniform throughout the State.. No one species of property from which a tax may be collected, shall be taxed higher than another species of property of equal value.”
In construing these two sections in the Pulaski County Board of Equalization Cases, 49 Ark. 518, the court said that the duties performed by the county assessor were well understood and performed in this State long before the office found recognition in the present Constitution and that the framers of the Constitution of 1874 were familiar with the practice of correcting and revising the assessments of county assessors whether the office was created by the Legislature or the Constitution. It was therefore held that under these sections of the Constitution the valuation placed upon property by the assessor was not final and that a board of equalization could be created for the purpose of revising Ms assessments. In that case the court said that the question of whether boards of equalization could be authorized to make original assessments under any circumstances was not presented by the record. But as a part of the reasoning of the court, in deciding that the Legislature had the authority to create a board of equalization to act in a revising capacity, the court said:
“As one-of the necessary steps toward ascertaining values for taxation, local assessors elected for the purpose must make, or be afforded the -opportunity to make, the primary assessment. But this valuation need not be final. On the contrary, it becomes the duty of the Legislature to afford the means of making this approximate estimate of values conform as nearly as practicable to the constitutional design of equality and uniformity. Savings & Loan Society v. Austin, 46 Cal. 473; People v. Saloman, 46 Ill. 337.”
In Savings & Loan Society v. Austin, supra, the Supreme Court of California was construing a provision of its Constitution very similar to the sections of our own above quoted. It leads as follows:
“Section 13. Taxation shall be equal and uniform throughout the State. All property in this State shall be taxed in proportion, to its value, to be ascertained as directed by law; but assessors and collectors of town, county and State taxes shall be elected by the qualified electors of the district,' county or town in which the property taxed for State, county or town purposes is situated. ’ ’
Article 11, section 13 of the Constitution of the State of California of 1849 and amended in 1862.
In that case the court upheld the validity of a State Board of Equalization and said: “The dominant idea of the Constitution on the subject .of taxation is, first, that it “shall be equal and uniform throughout the State, ’ ’ and second, that ‘ ‘ all property in the State shall be taxed in proportion to its value, to be ascertained as directed by law; ’ ’ and, as a part of the system for producing equality and uniformity, it provides that “assessors and collectors of town, county and State taxes shall be elected by the qualified electors of the district, county or town in which property taxed for State, county or town purposes is situated.”
Continuing the discussion on the next page, the court said: “As one of the necessary steps towards ascertaining its value, local assessors must be elected, who shall make the primary valuation. But there is nothing in the instrument to indicate that this valuation was intended to be final. On the contrary, it is expressly provided that the valuation'is to be ascertained “as directed by law”— which is an explicit recognition of the power of the Legislature to provide appropriate methods for ascertaining the value, subject only to the limitation that the primary valuation shall be made by local assessors to be elected by the people of the district. It may be further observed that, when the Constitution was adopted, the term ‘ ‘ assessor” was not understood as defining an officer whose valuations were to be necessarily final. On the contrary, from the earliest period in our American jurisprudence, assessors had been employed in almost every State for the purpose of making the primary valuation of property for taxation, and in none of them, so far as we are advised, was this valuation final, but was subject to correction and alteration by some supervisory board or officer. In employing the term “assessor” the framers of the Constitution must be understood to have used it in this its popular sense. We are, therefore, of opinion that it is competent for the Legislature to provide appropriate methods for equalizing assessments in the several counties.”
A careful reading of the Board of Equalization Cases in 49 Ark. 518, shows that the court had much the same idea as the California Supreme Court. While the question of whether the board of equalization could be created to make original assessments was not presented in either case, yet the language used in both decisions constitutes a part of the reasoning of the court in holding that the valuation made by the assessor is not final but that the valuation made by him could be changed, altered or modified by a board of equalization created for that purpose. That, the office of assessor being a constitutional office it, can not be abolished by the Legislature by direct enactment, nor could the office be entirely abolished by transferring the duties of that office to some other person or board, is established by the principles of law laid down in the following cases: People v. Raymond, 37 N. Y. 428; Massenburg v. Commissioners, 96 Ga. 614, and State v. Douglass, 33 Nev. 82.
In the last mentioned case it is said that it is well settled by the courts that the Legislature, in the absence of special authorization in the Constitution, is without power to abolish a constitutional office, or to change, alter or modify its constitutional powers and functions. Many authorities are ci ted in support of the rule. It is said in the majority opinion that this rule is not transcended because the statute allows the assessor to participate in making primary assessments. This is not sufficient. It was intended by the framers of the Constitution that the primary or original assessment of all ordinary property or property lying wholly within the limits of the county should be assessed by the county assessor.
Neither can it be said that the statute merely creates a board of equalization to revise or modify the primary assessment made by the assessor. Its language excludes that idea, and in my opinion no refinement of argument can change the meaning of the plain import of the words used by the Legislature. The act is entitled, ‘ ‘ An Act to Abolish the County Boards of Equalization; to Provide for the Assessment and Valuation of the Taxable Property in the State of Arkansas and for other purposes.” Acts of 1917, page 1237.
Section 1 provides that the county court may appoint assistant assessors in each township, who, together with the county tax assessor, shall be known as the Township Board of Assessment and Valuation for said Townshiu; “that the members of said board shall take and subscribe to the same oath as subscribed to by the tax assessor,” Section 2, after stating that the assessor shall'administer the oaths of the assistants, provides, “That said board shall at once proceed to place a fair market valne on all real and personal property in their township and extend said values in the proper blanks on the lists of assessment, which blanks shall be provided on said lists to contain the values of property as determined by said board in addition to similar blanks used by property owners for noting the valne of their property. ’ ’
Thus it appears that the same oath is to be taken by the members of the board as is taken by the assessor under the Constitution and that precisely the same essential functions are to be performed by the board in assessing property as were formerly performed by the assessor at the time of the adoption of the present Constitution. The acts done by the board and the result to be accomplished by it are identical with the duties to be performed by the county assessor before the board was created. The plain intention of the Legislature was to take away from the county assessor control over the original assessment of property and by conferring powers upon a board created by it to substitute such board in place of the assessor in making the original or primary assessment of property. It thus deprives the people of the right to have the primary assessment of their property made by the county assessor, a right secured to them by the Constitution, and the act is, therefore void.
Mr. Justice WOOD concurs in this dissent.