dissenting. Under a rational-basis review, we are not to judge the wisdom, fairness, or logic of legislative choices. Heller v. Doe, 509 U.S. 312 (1993) (citing F. C. C. v. Beach Communications, Inc., 508 U.S. 307, 313 (1993)). Classifications that do not involve a fundamental right or proceed along suspect lines are accorded a strong presumption of validity. Id. at 319. Furthermore, a legislature that creates “categories need not ‘actually articulate at any time the purpose or rationale supporting its classification.’ ” Id. at 320 (citing Nordlinger v. Hahn, 505 U.S. 1, 11 (1992)). “Instead, a classification ‘must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.’ ” Id. (citing F. C. C. v. Beach Communications, Inc., 508 U.S. 307, 313). States, moreover, have no obligation to produce evidence to sustain the rationality of statutory classifications. Id. “[A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.” Id. (quoting F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 315.) “A statute is presumed constitutional. . . and ‘[t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it’ . . . whether or not the basis has a foundation in the record.” Id. at 320-21 (citing Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)) (emphasis added). In determining whether a rational basis for the legislation exists, we are not required to discover the actual basis for its enactment, but rather we are allowed to hypothesize the facts giving rise to the classification. Bosworth v. Pledger, 305 Ark. 598, 810 S.W.2d 918 (1991); Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983). In sum, the statute remains constitutional if this court can hypothesize any conceivable basis that is rationally related to the statute, whether or not the basis has a foundation in the record. Because it is possible to hypothesize a basis that is rationally related to the statute at issue, Ark. Code Ann. § 26-55-211 (Repl. 1997), I must respectfully dissent.
When the General Assembly originally enacted the predecessor statute to section 26-55-211 in 1941, the border-city tax rate was expressly denied to Arkansas cities bordering the Mississippi River. Ark. Stat. Ann. § 75-1107(A) (1947); Acts 1941, No. 383, § 5. Arguably, there was a rational basis for the denial of the border-city tax rate to those border cities. In 1941, it would have been highly unlikely for motor fuel buyers to drive long distances and cross over a major waterway, the Mississippi River, to neighboring states for the purpose of buying fuel. In other words, at that time, the reason for a border-city tax rate did not exist for Arkansas cities bordering the Mississippi River. Consequently, Mississippi River border cities were excluded from the statute’s tax benefit. That exclusion remained in effect for more than fifty years. In 1997, however, the General Assembly simultaneously struck the portion of section 26-55-211 that expressly denied the border-city tax rate to Arkansas cities bordering the Mississippi River and added the provision that is the subject of this appeal.
It is important to note that interstate travel increased substantially during the fifty years preceding the 1997 amendment to section 26-55-211. The development and improvement of state and interstate highways fostered the increase in interstate travel. More specifically, travel across the Mississippi River between eastern Arkansas and neighboring states became easier and more frequent. Moreover, with the expansion of interstate trucking, more trucks traveled the highways through eastern Arkansas and crossed the Mississippi River. Likewise, there was an increased likelihood that motor fuel buyers would drive across the mighty Mississippi River for the purpose of buying fuel in neighboring states. As a result of increased interstate travel through eastern Arkansas, more tax revenues would have been needed to repair and maintain the roads in that area. In addition, Arkansas would have been losing valuable fuel tax revenues to neighboring states.
With the enactment of the 1997 amendment to Ark. Code Ann. § 26-55-211, the General Assembly granted Mississippi River border cities the right to annex territory that would qualify for the border-city tax rate, regardless of the date of the annexation. As such, section 26-55-211 simply created a way to raise needed tax revenues in an economically blighted area — an area that had been statutorily denied the right to any border-city tax benefit for over fifty years. But for that exclusion, Mississippi River border cities might have benefitted from annexing more territory during those years.
The majority posits that it “can find no basis upon which to justify how being along the Mississippi River, versus being along another river, places the Mississippi River border cities in more need for the exemption to apply only to its annexed territory.” Yet, as set forth above, it is in fact possible to hypothesize a basis that is rationally related to the statute at issue, Ark. Code Ann. § 26-55-211. Therefore, I must conclude that there is a rational basis for the Mississippi River border-city classification. That classification should be upheld against the equal-protection challenge under the Arkansas and United States Constitutions and the special-legislation challenge under Amendment 14 of the Arkansas Constitution.
For the above-stated reasons, I must respectfully dissent.
Corbin and Brown, JJ., join this dissent.