concurring in part, dissenting in part. It appears that the Pulaski County Equalization Board, or at least the Pulaski County taxpayers, along with taxpayers in some other counties, have a legitimate complaint about the disparity in assessed valuations over the state. If assessed value was the basis only for county taxes, perhaps the matter could be viewed in a different light, but that is not entirely the case. But there can be no question about the constitutional mandate to the General Assembly to prescribe a manner of determining values for taxation that would make them uniform throughout the state and such that no one species of property shall be taxed higher than another species of equal value. Art. 16, §5, Constitution of Arkansas.
Along with my brothers Byrd and Hickman, however, I must dissent from a substantial part of the majority’s holding, and I subscribe to the concurring opinions without reservation, except that I feel that Act 411 of 1973 is constitutional.
I submit that the Attorney General’s opinion that the Arkansas Constitution does not require that property be assessed at current market value was correct. In order to say that it does, something must be read into Art. 16, § 5 that is not there. This court has no power to so amend the constitution. I must agree, however, that the acts questioned have been unconstitutionally applied, to say the least.
Perhaps the majority, the trial court and appellees reached their conclusion that value necessarily means market value by commencing with the erroneous premise that the language of our present constitution and that of the 1868 constitution are of the same effect. They are not. Under the 1868 constitution, real and personal property were to be assessed according to its “true value in money.” Nowhere in Art. 16, § 5 is anything said about true value, much less true value in money. Surely the drafters of the present constitution intended that “value” mean something other than “true value in money.” If not, why did they not use the same language? Never has this court said that value in Art. 16, § 5 means market value. Even when the Constitution of 1868 was in effect, we did not say that property must be assessed at market value. If there is anything Pike v. State, 5 Ark. 204, does not hold, that is that property must be assessed at market value. In that case, Albert Pike did not want to have to pay taxes on his house in Little Rock, because the law provided that farm lands be assessed without reference to improvements. An act of the legislature required that improvements on town lots be assessed along with the land. This court certainly did not say that property was to be assessed according to market value, because it held that Pike only had to pay taxes on the value of the lots, exclusive of the improvements. That is not, was not, and cannot be, market value. How can one ignore a building on a tract of real property, particularly a town lot, in fixing its market value?
The foundation of the holding of the trial court and the majority of this court is the premise that “value” in Art. 16, § 5 means “market value.” The fact that the General Assembly has, in some statutes, chosen market value as the manner in which value is determined does not mean that that branch of the government felt that it had a constitutional mandate to do so. It simply chose that manner as the best approach to a determination of value for certain types of property. It has not always done so. Long ago, it resorted to “use value” for some types of property. The General Assembly adopted an act in 1893, providing for the assessment of sleeping or dining car companies, express companies and telegraph companies. A “use” valuation for the purpose of taxation of these com-pañíes was held valid under Art. 16, § 5. In Wells, Fargo & Co’s. Express v. Crawford County, 63 Ark. 576, 40 S.W. 710, we treated the matter of taxation of express companies, saying:
* * * One object of this statute was to require that the property of such corporations should be assessed as a “unit profit-producing plant,” and that their property in this state used in carrying on the corporate business should be assessed at its value when considered as a part of such unit or whole plant. The mere fact, therefore, that the assessment of the property of the company in this state was greater than the aggregate value of the safes, wagons, and other articles of property owned by the company in this state, when considered only as safes, wagons, etc., and apart from the use to which they are pul, would not in itself justify us in concluding that the assessment was illegal and excessive. Much less does the allegation that the aggregate value of the articles of personal property owned by the company in Crawford county is less than the sum apportioned by the board to said county as the value of the property of appellant taxable in such county justify such a conclusion; for the value of the property of the company in this state, considered as part of a whole plant, and in connection with the uses to which it is put, may be more than the aggregate value of the separate articles of personal property owned by the company here, when not considered in connection with the use to which the property is put. “The value of property results from the use to which it is put, and varies with profitableness of that use, present and prospective, actual and anticipated.” And it is the duty of the board to assess the property of the company at its true value, although that value may be in part due to the fact that such property is a portion of a large “profit-producing plant.” Railway Co. v. Backus, 154 U.S. 421, 14 Sup. Ct. 1114. * * *
* * * The method provided for the assessment of this property was legal; for the legislature has the power to classify property for the purposes of taxation, and to provide for the valuation of different classes by different methods. Const. 1874, Art. 16, § 5; Railway Co. v. Worthen, 52 Ark. 529, 13 S.W. 254. The same reason exists for the separate classification of the property of express companies used in carrying on their business as exists in case of railway property. * * * [Emphasis mine.]
Appellees referred us to a definition of the word “value” in Black’s Law Dictionary. The very first definition of the word given there is use value, not market value. It is:
The utility of an object in satisfying, directly or indirectly, the needs or desires of human beings, called by economists “value in use;” or its worth consisting in the power of purchasing other objects, called “value in exchange.” [Citation omitted.] Also the estimated or appraised worth of any object or property, calculated in money.
Other definitions given in that dictionary include:
In economic consideration, the word “value,” when used in reference to property, has a variety of significations, according to the connection in which the word is employed. It may mean the cost of a production or reproduction of the property in question, when it is sometimes called “sound value”; or it may mean the purchasing power of the property, or the amount of money which the property will command in exchange, if sold, this being called its “market value,” which in the case of any particular property may be more or less than either the cost of its production or its value measured by its utility to the present or some other owner; or the word may mean the subjective value of property, having in view its profitableness for some particular purpose, sometimes termed its “value for use.” * * *
See Black’s Law Dictionary (DeLuxe 4th Ed.), p. 1721. Furthermore, the case upon which the dictionary definition adopted by appellees relies, does not support the definition they would have us use. That case was Thaw v. Fairfield, 132 Conn. 173, 43 A. 2d 65, 160 ALR 679 (1945). It involved assessments for the purpose of taxation. The Connecticut Supreme Court only said in that case that the ordinary basis for arriving at true and actual valuation is what the property would bring in a fair market and not at a forced sale. That court recognized, in specific language, that the value of property is determined by many factors and, in the final analysis, is a matter of opinion, but, in its opinion, the best test is that of market sales.
The only mandate of Art. 16, § 5 is that all property be taxed according to value, i.e., on a valuation basis, and not some other basis. The value is to be ascertained in such manner and on such basis as directed by the General Assembly. It is not necessary that the value be full value, so long as valuations of property are equalized. State v. Meek, 127 Ark. 349, 192 S.W. 202. This section only requires that the burden of taxation be laid equally and uniformly on all property in proportion to its value, so that every property owner will contribute to the public revenue in proportion to the value of the property owned by him. Pulaski County Board of Equalization Cases, 49 Ark. 518, 6 S.W. 1. It has even been said that the constitutional requirement has been met when assessments are imposed equally upon all standing in the same relation. Shibley v. Ft. Smith & Van Buren Dist., 96 Ark. 410, 132 S.W. 444.
The infringement on the rights of taxpayers purportedly represented by appellees is that use valuation is restricted to particular types or species of property, i.e., farm, agricultural and timber lands. Unfortunately, owners of these lands were not before the trial court. It appears clear, however, that regardless of the manner in which values are fixed by assessing authorities, the classifications of property for that purpose must not run counter to the fundamental requirement of equality in taxation prescribed by Art. 16, § 5, i.e., that all property of the same value be taxed at the same ratps. Pulaski County Board of Equalization v. American Republic Life Ins. Co., 233 Ark. 124, 342 S.W. 2d 660; Pulaski County Board of Equalization Cases, supra.
Achievement of equality and uniformity in taxation is an ideal which is unattainable, and all that the constitution requires is substantial or approximate equality and uniformity. Peay v. City of Little Rock, 32 Ark. 31; Board of Directors of Crawford County Levee District v. Crawford County Bank, 108 Ark. 419, 158 S.W. 149; Shibley v. Ft. Smith & Van Buren District, supra; Pulaski County Board of Equalization v. American Republic Life Ins. Co., supra. But a system which obviously produces inequality violates the constitution. Pulaski County Board of Equalization v. American Republic Life Ins. Co., supra. The requirements of Art. 16, § 5 extend beyond the rate of taxation to the mode of assessment. Hays v. Missouri Pac. R. Co., 159 Ark. 101, 250 S.W. 879. The legislature cannot discriminate between different classes of property in the imposition of the tax burden. The only discretion with which it is invested is in the ascertainment of value so as to make the same equal and uniform throughout the state. L.R. & F.S. Ry. Co. v. Worthen, 46 Ark. 312, appeal dismissed 120 U.S. 97, 7 S. Ct. 469, 30 L. Ed. 588 (1886).
Act 188 of 1969 is unconstitutional, not because it permits agricultural and timber lands to be assessed for taxation only on the basis of their current use, but because it has resulted in an impermissibly unequal and non-uniform placing of the tax burden on those owners of property of a different species who must pay taxes on an assessed valuation based on market value. If as a result of the act, assessments are such that the burden of taxation falls more heavily upon one species of property than it does on another of equal value, it is unconstitutional. I must agree that there has been an adequate showing that this has resulted and that showing has been uncontroverted.
Act 411 of 1973 presents an entirely different problem. It requires the county assessor to use a manual and standards which appear to be out of date. It does not limit him to its use in making an assessment. It requires county boards of equalization to recognize and follow those manuals and standards, but the boards are not limited to them. A county judge is required to recognize and follow such manuals and standards only “to the extent he deems them applicable,” just as the statute required before amendment by Act 411. The act specifically provides that the manuals and standards are for the assistance of the assessors and boards of equalization in making assessments and that both the assessors and the boards “may use other acceptable appraisal or valuation methods which, in their judgment, provide for a more equitable assessment and appraisal of real and personal property.” An equalization board may change an assessment made by an assessor only when necessary to provide uniformity in assessment of similar classes of property. The county judge may change one only when it is deemed necessary to provide for equitable assessment of the property to make it uniform with the assessment of similar classes of property in the county. As long as the various classes of property are valued on a uniform basis, there has been no infringement on the constitutional restrictions. The mere fact that the General Assembly required that the manuals and standards promulgated by the Assessment Coordination Department (Division) not be changed until new or revised manuals and standards had been submitted to, and approved by, the General Assembly does not make the act unconstitutional on its face. The General Assembly, by Act 411 of 1973, virtually required the Assessment Coordination Department to submit a manual and standards based upon pertinent and proper real estate valuation standards, i.e., cost factors, market conditions, actual or potential income-producing value and other acceptable valuation methods and procedures. The fact that this has not been done does not make the act facially unconstitutional.
I earnestly submit that Act 411 is not unconstitutional. The application of the act and the failure of the Assessment Coordination Department, or the Public Service Commission, to function may well have caused the unconstitutional disparity in valuations of property over the state. That department or its predecessors have been charged with the duty of equalizing assessments from county to county for quite a long time. See Bank of Jonesboro v. Hampton, 92 Ark. 492, 123 S.W. 753; Arkansas Tax Commission v. Ashby, 217 Ark. 759, 233 S.W. 2d 361; State v. Meek, 127 Ark. 349, 192 S.W. 202; Ark. Stal. Ann. § 84-714, et seq (Repl. 1960).
It is obvious that there is no equalization of assessments from county to county. The state equalization authorities have not functioned. It may be that the failure is because the legislature has not provided the funds or manpower. We cannot pass judgment on that question.
But it is obvious that there can be no equalization when the authorities charged with that duty abdicate in favor of each individual assessor. The evidence in this case shows clearly that in checking compliance of the county officials in each county, the representatives of the Assessment Coordination Department accept whatever standard the assessor in that county chose to follow, whether it was based on values in a 1960 manual, a 1972 version, or a 1976 revision, current values or whatever values struck that assessor’s fancy. In most counties, if the assessor comes within 60% of market value on town lots, the Assessment Coordination Department approves. But in Pulaski and Jefferson Counties, the criterion is 100%. In Benton, Washington and Faulkner Counties, it is 75%. Uniform assessment is impossible when that practice is followed. The updating of the department manuals and standards could well result in a constitutional application of Act 411. I cannot agree that it is unconstitutional.