Wright v. Storey

Tom Glaze, Justice,

dissenting. In Clark v. Union Pac. R.R., 294 Ark. 586, 745 S.W.2d 600 (1988), we said that Amendment 59 provides that the amount of revenue derived from personal property cannot be increased until the rates for real and personal property equalize. There, the parties provided extensive testimony, findings and conclusions that clearly reflected that the real and personal property rates in School District No. 9 in Cross County had not been equalized and that to apply a new millage to personal property in the district would only perpetuate that unequal discrimination which was contrary to Amendment 59.

Here, the parties have presented virtually no proof bearing on the change in the millage rates and its effect on the collection of revenues from the real and personal property in issue. Unlike in Clark, the parties here offered no testimony or findings to the trial court, so there is virtually no record to review on appeal. The court’s only reference to millage was that a one mill levy on real and personal property was assessed for the benefit of the police and fire pension funds and that the one mill was “rolled back to .4 per fund per Amendment 59” in 1982 and collections for that year totalled $ 135,032.00. No mention is made of how the millage was rolled back or the effect it had on the respective collections from the real and personal property assessed and located in the City of Hot Springs. In sum, I am unable to discern what differences existed between real and personal property rates, assessments and collections in base year 1982 and subsequent years. As a consequence, I cannot determine if any prior discrimination in personal and real property rates has been equalized since the roll back took place in 1981. Clearly, if equalization has been achieved, the appellants’ action in returning the millage to one mill from .4 mill is not wrong merely because it increased revenue collections in excess of 10% over the base year.

772 S.W.2d 598 JULY 3, 1989 David H. White, for appellant. Q. By rum Hurst, Jr., for appellee.

Because this case fails to present an adequate record to decide the issue reached and decided by the trial court, I would reverse and remand this cause rather than postulate the information necessary to determine whether the appellants’ action in this cause violated Amendment 59.

Purtle, J., joins this dissent.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

David Newbern, Justice.

The appellants seek rehearing of

our decision rendered May 1,1989, asserting that the language in our opinion misinterprets the provisions of amend. 59 when read as a whole. They also suggest that the language in our decision inadvertently conflicts with our opinion in Clark v. Union Pacific R.R., 294 Ark. 586, 745 S.W.2d 600 (1988). The Assessment Coordination Division of the Public Service Commission joined as amicus curiae supporting the appellants in these assertions. The petition offers, in great detail, what they submit to be the proper interpretation “overall” of the provisions of amend. 59. The supplemental dissenting opinion on denial of rehearing agrees that our opinion in this case reinstates the same error we corrected by the substituted opinion in the Clark case.

The dissent quotes this sentence from the body of our opinion to support the conclusion that the error corrected by the substituted opinion in the Clark case has been reinstated: “To allow the city then to return to the old rate (clearly in excess of 10 % over the base year) on the newly increased appraised value of the property would violate amendment 59, even though it might have seemed permitted, literally, by amendment 31.”

While that sentence, read in isolation from the remainder of the opinion might be subject to that interpretation, the opinion as a whole does not support such a conclusion. The language we corrected in the Clark case had suggested that real estate taxes could not be increased more than ten percent after the base year. That conclusion is not supported by the majority decision in this case. As we stated in the paragraph above the quoted sentence, the purpose of the amendment is to equalize the tax rates on real and personal property and this could be accomplished either by holding personal property taxes static and raising real property taxes until equalization occurred or by the rollback procedure. There is no suggestion that the same goal could not be achieved by both rolling back personal property rates and raising real property rates to close the gap.

That which is prohibited by amend. 59, by the court’s opinion in this case, and by the court’s opinion in the Clark case is any increase in the millage rate on the newly appraised value of personal property prior to equalization. To avoid the possibility of future misinterpretation, the language of the sentence quoted above is modified to read as follows: To allow the city then to return to the old rate (clearly in excess of 10 % over the base year) on the newly increased appraised value of personal property would violate amend. 59, even though it might seem permitted, literally, by amend. 31.

The dissenting opinion also concludes, as did the dissenting opinion accompanying our decision in this case, that the record was insufficient to support the chancellor’s finding that amend. 59 had not been followed. The record was sufficient to show, and none of the facts were even contested, that the Hot Springs city board raised the millage from .4 to 1 mill after the rollback. If it is the suggestion of the dissenting opinion that the record does not demonstrate that equalization had not occurred at the time the increase was ordered, such a suggestion is unacceptable. If equalization had been achieved, it was the duty of the appellants to present a record demonstrating it. Surely the appellants would have argued equalization had occurred were there any possibility that it had. No such argument has ever been made.

Another good reason for denying rehearing is that the appellants failed to make the arguments presented in their rehearing petition suggesting the possible interpretation of amend. 59 at either the trial level or in the orginal briefs arguing this case before this court. We have repeatedly held that we will not address arguments which the appellant did not raise in the proceedings below. Reed v. Alcoholic Beverage Control Div., 295 Ark. 9, 746 S.W.2d 368 (1988); Arkansas Cemetery Board v. Memorial Properties, 272 Ark. 172, 616 S.W.2d 713 (1981).

Rehearing denied.

Hickman, Hays and Glaze, JJ., would grant this rehearing.