(Dissenting). I concur in so much of the majority opinion as sustains the tax1 levied, and dissent from so much of the majority opinion as allows the appellees (constructors) any exemption from the tax imposed. I am convinced that the constructors have not brought themselves within the purview of the exemption clause.
The constructors here are claiming exemption from paying the Use Tax on materials used in the construction of a multiple purpose dam: that is, the dam is designed for (a) flood control, (b) a navigation project, and (c) a hydro-electric generating plant. The language of the Statute, relied on by the majority to justify any exemption, is this: “. . . tangible personal property used ... in creating new manufacturing or processing facilities;”. Other language contained in the same paragraph—i.e., § 6 (d) of Act 487 of 1949—reads: “. . . tangible personal property used in . . . the creation
of new facilities used for public transmission, communication, or transportation purposes.”
Certainly neither the flood control nor the navigation project is within the purview of the exemption language, so the question is whether exemption is to be allowed for materials going into a multiple purpose dam, when only one use of the dam will at most be within the exemption clause. The law is well settled that exemption clauses are strictly construed against the taxpayer. In Wiseman v. Arkansas Wholesale Grocers Asso., 192 Ark. 313, 90 S. W. 2d 987, Mr. Justice Mehaeey cited authorities from Arkansas and other States to sustain this statement :
“In all cases of doubt as to the legislative intention or as to the inclusion of particular property within the terms of the statute, the presumption is in favor of the taxing power, and the burden is on the claimant to establish clearly his right to exemption, bringing himself clearly within the terms of such conditions as the statute may impose.”
In 51 Am. Jur. 526, the holdings generally are summarized in this statement:
“When the statute purports to grant an exemption from taxation, the universal rule of construction is that the tax exemption provision is to be construed strictly against the one who asserts the claim of exemption, . . . An exemption from taxation must be clearly defined and founded upon plain language, without doubt or ambiguity. Whenever doubt arises it is to be resolved against the exemption. These principles have been variously expressed. Thus, it is asserted that a claim to a tax •exemption must be in terms too plain to be mistaken; that it must be founded upon language which cannot be otherwise reasonably construed, in clear and unmistakable words, or in regard to which there is no doubt as to meaning; that it must be granted in explicit terms; that it must be clear beyond a reasonable doubt; that it must be so plain as to leave no room for controversy, or so clear and unmistakable as to leave no doubt of the legislative purpose. No claim of exemption from taxation can be sustained unless within the express letter or the necessary scope of the exempting clause.”
As illustrative of the strict construction applied to exemption clauses, the prospective use of property is not sufficient to allow an exemption from taxation. See 51 Am. Jur. 542, and 61 C. J. 401. The burden is on one claiming an exemption to bring himself within the clear purview of the exemption sought; and this rule has been applied to cases involving the collection of Use Taxes. See 47 Am. Jur. 258, and Annotations in 129 A. L. R. 238 and 153 A. L. R. 628. In the case at bar the exemption is claimed by the constructors for materials to be. used in a dam designed for flood control, a navigation project AND a hydro-electric generating plant. Only the latter—hydro-electric generating plant—is an exemption allowed by the Statute. The constructors are using the materials for the construction of a project, two uses of which are not within the exemption clause. In other words, they have not brought themselves entirely within the purview of the exemption. Therefore, they should not be allowed any exemption.
In Missouri Pacific Hospital Asso. v. Pulaski County, 211 Ark. 9, 199 S. W. 2d 329, we refused tax exemption to a hospital because the property was not “used exclusively for public charity.” We held that the failure, to use the hospital exclusively within the purview of the exemption clause, thereby deprived the claimant of tax exemption. Applying the rationale of that holding to the case at bar it follows—as I see it—that the constructors have not shown that the items, on which exemption is sought- were used exclusively for a purpose exempted by the Statute. Therefore, I am of the opinion that appellees are not entitled to any tax exemption under the Statute invoked.
Neither side discusses the constitutionality of the Use Tax levied by Act 487 of 1949. I regard the constitutionality as still an open question in this State, in view of certain language in Mann v. McCarroll, 198 Ark. 628, 180 S. W. 2d 72, as explained and discussed in McLeod v. Dilworth, 205 Ark. 780, 171 S. W. 2d 62. Because the constitutionality of the Use Tax has not been raised in this case, it is not discussed in this opinion.