CONCURRING OPINION.
McCulloch, C. J.I agree to so mush of the opinion handed down by Mr. Justice Humphreys as holds that the tax imposition of the statute under consideration is not a property tax, and that the statute is valid as far as it applies to corporations which come within its operation. But I do not think that such a tax can be imposed on individuals as a State tax.
It is not a property tax because it is imposed, not on the taking or use of timber, but on the severance for “commercial purposes.” It is a tax oil a business— an occupation tax.
The Constitution (art. XYI, § 5) restricts the power of the State to levy taxes generally on privileges. Washington v. State, 13 Ark. 752; Baker v. State, 44 Ark. 134; State v. Washmood, 58 Ark. 609; Standard Oil Co. v. Brodie, 153 Ark. 114. There, was certain language in the Washington case which appeared to decide that a similar provision in the Constitution of 1836 limited this power of imposing a privilege tax for State revenue to “such privileges as were technically known as such at common law,” but in the Baker case, supra, this language was explained. In the Baker case it was distinctly held that the State could not impose an occupation tax on individuals. In that case there was involved a State tax on the sale of seeing machines, and Chief' Justice Cockrill, speaking for the court, said:
“The construction of the provision of the Constitution relating to the taxation of privileges involved the decisions of this court in some confusion at an early day, and in Washington v. State, 13 Ark. 752, in an attempt to extricate itself from this difficulty, the court held that there was no, restraint upon the power of the Legislature to authorize counties and towns to regulate or tax callings and pursuits, hut there was a restriction in that regard upon legislation for the purpose of raising a • State revenue. This distinction has never been questioned by this court, but has been recognized and approved from time to time. * * * The framers of the present organic law, knowing the construction that had been put upon the provisions of the Constitution of 1836, bearing on this subject, adopted them without modification that can affect the question now presented here, and we must presume they intended to adopt them with the meaning the court had ingrafted on them. This was recognized in Barton v. City, supra, and we regard the question as closed against any other view we might be disposed to take of it. * * * We do not understand this case, reading it all together, to limit the power'of the legislation for State purposes to the taxation of such privileges as were technically known as such at common law, notwithstanding an expression to that effect occurs in the opinion. We think the Legislature is not restrained by .anything in the organic law from laying a tax on the franchise of a corporation, and the reasoning of the learned judge who delivered the opinion in Washington’s case, supra, leads to that conclusion. (See Burroughs’ Taxation, § 55). The corporation owes its existence to the State, and the right to emjoy this privilege is the subject of taxation.”
It will be seen from this declaration of the law that the court held that the tax could be imposed on a corporation as a tax on its franchise, but that it could not be imposed on individuals as a State tax on occupations.
In State v. Washmood, supra, there was involved a statute imposing a State tax on “every traveling agent” for any life insurance company or other company doing certain kinds of insurance business, and it was decided that the statute was unconstitutional. The court, in disposing of the question, said: ‘ ‘If, however, the intention of the Legislature in enacting said § 5591 was to impose a tax upon the agent therein named, the tax would he an occupation tax, and, being a State tax as expressed, it would he in violation of the Constitution of the State, as has been settled by numerous decisions of this court.”
In Standard Oil Co. v. Brodie, supra (the gasoline case), we upheld the tax, not as an occupation tax, hut as a tax on the privilege of using the public highways. In that case we said: “While the public highways are for the common use of all, they belong to the public, and it is within the power of the Legislature either to regulate or to tax the privilege of using them.”
The effect of these decisions undoubtedly is that the State cannot tax occupations generally, but must find its power to tax outside of this restriction. The power was found in the Baker case and in the gasoline case in tlfe right to tax the franchise of corporations as a privilege tax and to tax the use of public highways. Whether or not other exceptions outside of the constitutional restriction can be found remains to be seen in the future.
I am unable to discover any ground for taking the operation of this statute, as applied to individuals, out of the restrictions prescribed in the Constitution.
The opinion of Judge Riddick in Fort Smith v. Scruggs, 70 Ark. 549, affords no support to the view that the Legislature can impose, for State revenue purposes, a tax on occupations. That was a case where the tax was imposed by a municipality, and it is undisputed that the State may delegate to bounties and municipalities the power to levy any tax not prohibited by the Constitution. Baker v. State, supra.
The business of severing timber or minerals from the soil for commercial purposes is purely an occupation, and the State cannot tax it as' against individuals. Timber and minerals attached to the soil are individual property, as much so as anything else, and the- business of severing for commercial purposes is a lawful business, of the pursuit of which no individual can be deprived. Therefore it falls within the restriction found in the Constitution. Penn. Coal Co. v. Mahon, 260 U. S. 393.
It is unnecessary to say anything further concerning the power of the State to tax corporations in this manner, for the cases cited above decided that the tax on the business of a corporation is in effect a tax on the franchise, and that it is valid. Nor is it worth while to notice the distinction, if any, between the taxing of a corporate franchise and an attempt to tax, as a privilege, the exercise of power under a franchise. It is all a tax on the franchise. Judge Cockrill, in expressing the conclusions of the court in the Baker case, supra, made no distinction, but spoke of the franchise of a corporation and the exercise of power under the franchise as being fit subjects of taxation under our Constitution. See also State v. New York Life Ins. Co., 119 Ark. 314. The fact that a corporate franchise has already been granted does not affect the power of the State to impose the severance tax as an additional tax on the franchise, for the continuing power of the State over corporate franchises cannot ■ be surrendered or bartered away. On the contrary, the continuing power of the State over corporations is expressly reserved in the Constitution, art. XII, § 16.
The different provisions of the statute are separable, and the tax against corporations can be upheld, though it is found to be void against individuals. Railway Co. v. Leep, 58 Ark. 407. The statute itself (§ 16) provides that if any part be found to be invalid, the remainder shall be enforced.
Notwithstanding my views on this subject, on account of the peculiar situation which has arisen in the present case by reason of the conflicting views of the judges and' the fact that one of the judges is disqualified in one branch of the case, I am voting to reverse the decree as to individuals as well as to corporations. Three of the other judges are of the opinion that the statute is valid as against individuals, if valid against corporations, and, as it will be enforced against both, I feel justified in voting to reverse this decree so that the individual litigants in the present case may be placed under the same liability as other individuals engaged in the business to be taxed.
I am authorized by Mr. Justice Smith to say that his attitude in the case is the same as my own, and that he agrees with me in all that I have here written.
Hart, J;,(separate opinion). It is important to the correct and uniform administration of our severance tax statute that the views of the court should be thoroughly understood. 'On this account, as well as on account of the divergent views of the judges, it is appropriate that my views be definitely stated.
Under the Constitution of 1836 the Legislature had' power to tax merchants, hawkers, peddlers, and privileges in such manner as might, from time to time, be prescribed by law.
In construing the provisions, this court held that the Legislature could not tax, as a privilege, the exercise of a common right, which, the very act of licensing admits, is neither immoral nor injurious to the rights of others. Washington v. State, 13 Ark. 752.
Our present Constitution provides that the General Assembly shall have power, from time to time, to tax hawkers, peddlers, ferries, exhibitions, and privileges in such manner as may be deemed proper. Constitution of 1874, art. 16, § 5.
In Baker v. State, 44 Ark. 134, the court expressly applied the doctrine of adoptive construction, and held that the provision of the Constitution limited the power of legislation for said purposes to the taxation of such privileges as were recognized as such at the common law. The court held, further, that the taxation of a corporate franchise was such a privilege.
Again, in the recent case of Standard Oil Co. of La. v. Brodie, 153 Ark. 144, it was recognized that this constitutional provision is a restriction upon the power of taxation óf privileges, and that it does not authorize the taxation upon a privilege which was the common right of every citizen.
We must presume that the Legislature had in mind the principles announced in these decisions when it passed the severance tax act at its last session. General Acts of 1923, p. 67. The act levies a privilege or license tax, to be known as the severance tax, upon each person, firm, corporation, or association of persons engaged in the business of mining, cutting, or otherwise severing from the soil or water, for commercial purposes, certain enumerated natural resources.
Under the terms of the act the plaintiffs combined in one suit separate actions against the Arkansas Railroad Commission for the purpose of enjoining the collection of the taxes imposed by the act. The suits were, in effect, separate and distinct actions, and separate decrees were sought in each case. Therefore the writer considered himself disqualified in the cases against the’ corporations because some of his relatives within the prohibited degree owned nearly all of the stock of a corporation running a sawmill for commercial purposes. He did not consider himself disqualified, however, in the cases involving the collection of the taxes from individuals and partnerships.
Therefore the other members of the court first took up the question of whether or not the act was a valid one in so far as corporations are concerned. After a majority of the court, for different reasons, had reached the conclusion that the law was valid as to corporations, the writer participated in the cases filed against individuals and partnerships, and held to the opinion that if the law should be deemed valid as to corporations, it should also be held valid as to individuals and partnerships.
The opinion of the court was then prepared and delivered by Judge Humphreys. Subsequently a concurring opinion was prepared by Chief Justice McCulloch and agreed to by Justice Smith, and handed down by them.
In,preparing his opinion Judge Humphreys proceeded upon the theory that the case of Fort Smith v. Scruggs, 70 Ark. 549, overrules our earlier decisions on the question to the effect that the Legislature cannot tax, for State revenue, any privileges except those which are ascertained and recognized to be such at common law, and carried us to the Tennessee doctrine, which is that a privilege is whatever the Legislature declares to be a privilege and taxes as such. Burke v. Memphis, 94 Tenn. 692, and eases cited.
On the other hand, Chief Justice McCulloch and Justice Smith proceeded upon the theory that the statute in question is a franchise tax, and announced their views and reasons therefor in a separate opinion. They rely upon the doctrine announced in the case of Baker v. State, supra, but it seems to me that, in doing so, they have placed a construction upon that decision which its language does not warrant and which is directly in conflict with the construction placed upon it in the case of St. Louis S. W. Ry. Co. v. State, 106 Ark. 321.
In the latter case the court had under consideration an act of the Legislature of 1911, entitled, “An act for an annual franchise tax on corporations doing business in,.the State of Arkansas.” The act in question imposed a tax on the corporations for exercising corporate franchises, and the court held, in the application of the doctrine laid down in the case of Baker v. State, supra, that the tax imposed by the act by its very language possessed the legal quality of a franchise tax.
In discussing the statute the court said: “'In the passage of the act in question, no doubt the Legislature had in mind the fact that the right or privilege to be or exist as a corporation, although a matter of value to the stockholders of the corporation, is not an asset of the corporation and transferable as such, and that its value cannot, under ordinary rules, be ascertained for the purpose of taxation as property, hut, since it is a privilege or right granted by the State, a franchise tax may be imposed upon this right or privilege for the purpose of raising revenue. We think it plain, then, under our Constitution and decisions, that the act in question is valid, unless it be held a burden upon interstate commerce.”
While it is competent for the Legislature to declare under what conditions corporations may do business in the State, the statute under consideration was not an act for that purpose, and in my judgment to make it such would be judicial legislation.
It seems to me that, in construing it to be a franchise tax, Chief Justice MoCtjlloch and Judge Smith have disregarded the plain language and evident intent of the act and have proceeded upon the theory that there is no difference whatever between an occupation tax and a franchise tax. Of course, if the language of the act was not intended to make the tax levied a franchise tax, then the doctrine with relation to the partial invalidity of statutes can have no application whatever.
Because a majority of the court, for different reasons, voted that the act was valid in so far as corporations were concerned, when we came to the consideration of the' cases against individuals and partnerships, in order to secure some degree of uniformity, the writer voted that the statute also applied to individuals and partnerships, and in reaching this conclusion intended to modify what he then considered the common-law rule. In other words, he was of the opinion at that time that the exercise of the occupations enumerated in the statute was one of common right, and that in no sense did the Legislature intend to impose the tax as a franchise tax upon corporations. ■ ■
To my mind it is quite plain, from the language used in the act, that the Legislature intended to tax the occupation or business of severing from the soil or water, for commercial purposes, the natural resources of the State enumerated in the act, by any person or corporation or association of persons engaged in such pursuit or business. Upon further consideration of the case, upon rehearing, I have reached the conclusion that the occupations taxed in the act may be termed privileges under the common law and taxed as such under our 'Constitution. There has been no precise limit to the police power of the State, as construed by this court. A good definition was given by Judge Smith in Dabbs v. Smith, 39 Ark. 353. We quote from his opinion the following: “It is difficult to assign bounds to the police power of the State. It extends to the protection of the fives, health, comfort and quiet of all persons and the protection of all property within the State. Thorpe v. R. & B. R. Co., 27 Vt. 140.”'
The opinion in the Vermont case was written by Chief Justice Bedeield, one of the great judges of the United States. The same definition was also declared by the Supreme Court of the United States in Barbier v. Connolly, 113 U. S. 27. The opinion was prepared by Judge Field, who was noted for his learning and clearness of expression. In discussing the Fourteenth Amendment he used this language: “But neither the amendment, broad and comprehensive as it is, nor any other amendment, was designed to interfere with the power of the State, sometimes termed its police power, to prescribe regulations to promote, the health, peace, morals, education, and good order of the peoplé, and to legislate so as to increase the industries of the' State, develop its resources, and add to its wealth and prosperity.”
In the application of these definitions, this court held, in Pine Bluff Trans. Co. v. Nichol, 140 Ark. 320, that the movement of motor vehicles over highways, being attended by constant dangers to the public and being abnormally destructive of the highways, was a proper subject of police regulation by the State, and therefore taxable by the Legislature as a privilege, under the clause of the Constitution under consideration in this case.
The holding was in recognition of the principle that the police power of the State is not a fixed and rigid thing, and that changed conditions require different regulations.' It seems to me that the business of mining may be classed as a privilege under the common law. It has always been recognized as an occupation calling for regulation under the police power of the State. The effect of sinking shafts, tunneling, blasting and hoisting ores, whether done by a corporation, an individual, or an association of individuals, consists in changing part of the realty into personalty and putting it into a marketable form. It has been said that the very process of mining is equivalent in its results to a manufacturing process. Stratton’s Independence. Limited, v. Howbert, 231 U. S. 399, and Oliver Iron Mining Co. v. Lord, 262 U. S. 172.
Judge Cooley classes taxes upon manufacturing companies as excise taxes. Cooley on Taxation, 3d ed., vol. 2, p. 1115.
The case with regard to operating a sawmill for commercial purposes is not so clear, but I have also reached the conclusion that it might be classed as a privilege at common law. There comes a time in the history of every country when the conservation of its natural resources, including the protection of its forests, becomes a matter of first importance to the welfare of the people, and, as such, is necessary to the protection of all the property within the State.
It is a rule of universal application that, while principles of law do not change, changed conditions necessitate different regulations, the object being the same in each instance, and that is to promote the welfare of the people and to protect their health and property. The business of severing trees from the soil and converting them into lumber has been held to be a manufacturing enterprise. State v. Chadbourn, 80 N. C. 479.
The result of my views is that the statute does not provide for a franchise tax upon corporations, but imposes a tax upon all those engaged in the business of severing natural resources from the soil for commercial purposes, whether corporations, individuals, associations of individuals, or partnerships; and that these occupations come within the class that at the common law may be regulated under the police power of the State and taxed as privileges under our Constitution. Therefore I have voted to overrule the motion to rehear.