For the reasons hereafter set out, I am unable to agree with the majority opinion.
I cannot help feeling that those making the majority opinion have missed entirely the purpose and the essential provision of Act 530 of the 1957 General Assembly. The sole and only purpose of the Act was not to punish but to help the franchise dealers of Arkansas. This is specifically stated in Section 1 of the Act. This plain fact seems to have entirely escaped the majority, because they say: “There is no reasonable basis for placing the franchised dealers under regulation and requiring them to pay a license fee” (my emphasis). It is, of course, the view of the complaining dealers [and General Motors Corporation] that the Act is a burden on them, but that certainly does not express the attitude of a vast majority of the franchise dealers of Arkansas. Confirmation of this conviction is the fact that they are so persistent in their efforts to obtain this kind of legislation. Section 1 of the Act explains clearly why auto manufacturers are opposing this legislation. It removes the economic pressure they now are able to exert upon their dealers.
Having understood the purpose of the act, it is now pertinent to examine the question of “classification”. The essence of the majority opinion is that there is “an arbitrary classification among persons following the same trade or calling”, (my emphasis). So it will be interesting to have a look at just what are these classifications, and just how arbitrary they are.
One group consists of authorized dealers who sell new cars. This group [as stated in said § 1] are subjected to superior economic pressure and thereby forced into agreements, acts, and practices which produce harmful effects on thé general economy. Those in this group can resist this pressure only at the risk of losing their business to others who are willing to submit and thus start the round robbin of economic pressure all over again.
In the other group are used car dealers, and they are not affected by the Act in any way. Those in this group do not have to buy more cars than they want and therefore are not under the pressure imposed on the first group.
To say, as the majority does in effect, that this difference between the two groups is imaginary and that a classification based thereon is arbitrary is simply being unrealistic. Neither is it realistic to say both groups are engaged in the same hind of business. Of course both groups deal basically with automobiles, but they do so under entirely different circumstances and conditions. The legislature has always recognized classification distinctions, and with this courts approval. For example, the county officers in one county deal with the same matters as officers in other counties, but they are nevertheless classified as to salaries solely on the basis of different conditions. All cities deal with local government but they are also classified and given different powers and duties depending on different conditions. In the case of Ring v. Mayor and Council of Borough of North Arlington, 136 N. J. L. 494, 56A. 2d 744, in dealing with this precise question, the court said: “In the exercise of the power to license for regulation and revenue, distinctions may be made not only between businesses of different character, but also between businesses of the same general class where there are substantial differences in the subject matter and trade methods and practices related to the object of legislation” (my emphasis). It was also said in the Bing case: “A distinction in legislation £is not arbitrary, if any state of facts reasonably can be conceived that would sustain it’ ”.
Neither do I agree that this case is controlled by the Bebsamen case, cited in the majority opinion. The gravamen of the Bebsamen opinion is found on page 152 of the Ark. Reports. It holds that there is no distinction between selling “new and unused cars” and selling “new and used cars”. A careful examination of Act 530 reveals that no such classification is made. Of course I took the view in the Rebsamen case, as shown by my dissenting opinion, that the classification there was not arbitrary, and I certainly do not want to extend further the restrictive scope of that opinion. In the Rebsamen case both groups dealt with new cars while here only one group does. That one distinguishing feature alone, added to the numerous other distinguishing features enumerated heretofore, constitutes the basis for a reasonable classification, and that is all this court has ever required. For confirming decisions see: Williams v. State, 85 Ark. 464, 108 S. W. 838; Kelso v. Bush, 191 Ark. 1044, 89 S. W. 2d 594; Bollinger v. Watson, 187 Ark. 1044, 63 S. W. 2d 642; Hogue v. The Housing Authority of North Little Rock, 201 Ark. 263, 144 S. W. 2d 49, and; Thompson, Com. of Revenues v. Continental Southern Lines, Inc., 222 Ark. 108, 257 S. W. 2d 375.