dissenting. The majority holds that Ark. Stat. Ann. § 84-2634(b) and (c) (Repl. 1980) violate the Equal Protection and the Privileges and Immunities Clauses of the Fourteenth Amendment to the Federal Constitution. I dissent from the majority and respectfully suggest that they are in error procedurally as well as substantively.
Procedurally, the majority is mistaken in declaring § 84-2634(c) unconstitutional. That statute was not at issue before the trial court, is not at issue before this Court, and should not be declared unconstitutional in an advisory manner. See McCuen v. Harris, 271 Ark. 863, 611 S.W.2d 503 (1981).
Substantively, two statutes are properly at issue before us. Both are a part of the Slot and Vending Machines Act. One imposes a privilege fee on coin operated amusement devices. Ark. Stat. Ann. § 84-2633. The other requires a one year residence before an individual can obtain a permit to own or lease coin operated amusement devices. Ark. Stat. Ann. § 84-2634(b). In Brown v. Cheney, 233 Ark. 920, 350 S.W.2d 184 (1961), cert. denied 369 U. S. 796 (1962), we considered the same statutory provisions. In Brown we held the provisions were constitutionally valid while in this case the majority holds the same provisions constitutionally invalid. In Brown we discussed the relationship between the state’s interest in the public health, welfare and safety and the residence requirement. Here, without discussion, the majority holds that no valid relationship exists. Whether a valid relationship exists between the state’s interest sought to be protected and the residency requirement is the crucial issue, the very crux of the case.
The correct rule of law falls into place only after the validity of the relationship is decided. The applicable rules of law are easily stated. The Privileges and Immunities Clause does not curtail the power of the state to reasonably discriminate between residents and non-residents if a legitimate state interest is being protected. Wilmington Star Mining Co. v. Fulton, 205 U.S. 60 (1907). Similarly, the Equal Protection Clause will not be held to interfere with the protection of a legitimate state interest unless there is an invidious discrimination. City of New Orleans v. Dukes, 427 U.S. 297 (1976). Again, the correct rule of law simply cannot be properly applied until there is a determination of whether a valid relationship exists between the state’s interest sought to be protected and the residency requirement.
A valid relationship does exist between the state’s interest sought to be protected and the residency requirement. The Slot and Vending Machines Act, in the section at issue, provides that it is a privilege to own, operate or lease coin operated amusement machines and these machines include, but are not limited to, “such games as Radio, Rifles, Miniature Football, Golf, Baseball, Hockey, Bumper, Tennis, Shooting Galleries, Pool Tables, Bowling, Shuffleboard, Pinball Tables, Marble Tables, Music vending phonographs, jukeboxes, and other similar musical devices for entertainment...” Ark. Stat. Ann. § 84-2633. In Brown we expressly took notice of a rational connection between coin operated amusement machines and places of entertainment. There we wrote:
On first impression it might appear that a “juke box” is harmless, and that its owner should be allowed to play it as a common right, but there are other things to be considered. It is common knowledge that coin operated “juke boxes” are not usually placed in the home, but are frequently used in dance halls, drinking places, and amusement spots. Pinball machines, the operation of which is conceded to be a privilege and so declared by statute and this Court, can also be used and operated in a perfectly harmless way, but by association and abuse they often lead to unwholesome results. The legislature, in regulating “juke boxes” had a right to take all these things into consideration.
Since 1915, we have had statutes regulating dance halls, roadhouses or similar places of entertainment where coin operated amusement devices could lead to unwholesome conditions. See Ark. Stat. Ann. § 34-101 (Repl. 1962), and Hood v. State, 206 Ark. 900, 175 S.W.2d 205 (1943). In the 1937 amendment to § 34-101, the emergency clause expressly referred to the public peace, health and safety. Similarly, in the 1958 amendment the emergency clause expressly referred to public morals as well as the public peace, health and safety.
One of the purposes of the coin operated amusement device act is to regulate closely the licensing of persons who own or operate amusement devices. Such a purpose is reasonably related to the state interests of the public health, safety and welfare. Therefore, the act violates neither the Privileges and Immunities Clause nor the Equal Protection Clause.
The majority fails to grasp the distinction between the facts of this case and the facts of the case of Wometco Services v. Gaddy, 272 Ark. 452, 616 S.W.2d 466 (1981). In Wometco, the state sought to limit the licensing of tobacco vendors to persons who were residents of this State. We held the statute unconstitutional, but carefully pointed out that this State has no legislation relating to the health, safety and welfare of tobacco vendors or purchasers. Thus, there was no valid state interest protected by the licensing of tobacco vendors. In the case before us there is legislation relating to the health, safety and welfare of persons in places of entertainment where coin operated machines could lead to unwholesome conditions.
delivered April 30, 1984I would reverse.
I am authorized to state that Mr. Justice Smith and Mr. Justice Hays join in this opinion.