dissenting. The majority opinion correctly states the law that in order to salvage § 2 of Act 727 of 1997, now codified at Ark. Code Ann. § 26-55-211 (Supp. 2005), we must find a rational basis for the disparate tax treatment afforded border cities along the Mississippi River. The majority opinion is further correct when it states that this court may determine a rational basis for disparate treatment on its own even though the reasoning is not stated in the legislation.
Where the majority jumps the track, however, is when it says there is no conceivable rational basis for distinguishing Mississippi River border cities and other border cities on a river like Fort Smith. That is simply wrong, and because of that, I would reverse.
The Department of Finance and Administration posits a bona fide reason for classifying Mississippi River border cities differently. That reason is that Mississippi River border cities need more favorable tax treatment, because they are located in an economically depressed area of the state as compared to Fort Smith, for example. Lessening the motor fuel tax burden of residents and businesses in a depressed area will, no doubt, have a salutary effect on the economy.
A second reason asserted by DFA is that from 1941 to 1997, Mississippi River border cities were not given the favorable tax treatment available to other river and non-river border cities. Indeed, Mississippi River border cities were expressly excluded from the legislation. See Act 383 of 1941. In 1997, that exclusion for Mississippi River border cities was removed by Act 727, as if to set right what had been denied these communities for more than fifty years. Surely, that qualifies as another reasonable explanation for the General Assembly’s treatment of these cities in 1997. It is really beyond debate that the General Assembly has known precisely what it has been doing with Mississippi River border cities for more than fifty years. That is because these cities were first expressly excluded from favorable treatment in legislation in 1941, and then expressly included for such treatment in a 1997 act.
The danger, of course, with the majority’s opinion is that it supplants clear legislative intent and strikes part of a sentence when, as already stated, valid reasons exist for the General Assembly’s Mississippi River exemption. This court has traditionally been leery of striking down legislation on grounds of some classification, including whether it is local or special, because of the potential hazard that we would be legislating ourselves. That is why we have often stated that we have used the hypothesized rational basis standard and said that will suffice to save suspect legislation. See, e.g., Johnson v. Sunray Servs., Inc., 306 Ark. 497, 816 S.W.2d 582 (1991); Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983). The Streight case is the seminal case for this proposition. There, we elaborated on what is meant by a rational basis:
Before it is said that' such hypothesizing is far afield, we reemphasize that our role is not to discover the actual basis for the legislation. Our task is merely to consider if any rational basis exists which demonstrates the possibility of a deliberate nexus with state objectives so that the legislation is not the product of utterly arbitrary and capricious government and void of any hint of deliberate and lawful purpose. Since we can reasonably conceive of lawful purposes for the state’s classification scheme, it may not be held to have been arbitrarily enacted.
280 Ark. at 215, 655 S.W.2d at 464 (emphasis in original).
It was Mr. Geisbauer’s burden to disprove any hypothesized rational basis for the Mississippi River exemption. See id. This he did not do. There are two reasonable and legitimate bases for the legislation. The majority may disagree with the hypothesized reasons, but this does not make them perse unreasonable. Nor does it justify striking the words, “the Mississippi” from the statute.
I respectfully dissent.
Corbin and Imber, JJ., join this dissent.