dissenting. Section 84-1903 levies an excise tax of three per cent on gross receipts derived from all sales to qny person subsequent to the effective date of the act. The pertinent portion, as mentioned by the Majority, reads as follows:
“(e) The sale of tickets or admissions to places of amusement, to athletic, entertainment, recreational events, or1 fees for the privilege of having access to or the use of amusement, entertainment, athletic or recreational facilities, . . .”
The use of the word “or” is quite significant, because, to me, this language definitely levies a tax on sales in addition to ticket sales occasioned by attendance at an athletic or recreational event. The coin inserted into the music machine gives access to the use of an amusement facility. The coin is inserted into the box solely because the individual doing so wants to be amused — he is amused or entertained by the record he hears; that is the purpose of a music machine — to amuse or entertain, and it is an amusement facility. It is readily apparent that the Majority and I are in disagreement over the meaning of the word “entertainment”, for they cite the definition of “entertainment” as “that which engages the attention of agreeably or to occupy pleasurably”, and then state:
‘ ‘ If one must be pleasurably and agreeably occupied to be entertained and amused, how will we allow for music which is sad and depressing!”
I am unable to comprehend the logic of this statement, for I do not understand that music must emotionally move one to gleefully jump up and down before it can be considered entertaining. “Tara’s Song” (theme song of “Gone With the Wind”), certain religious hymns, and many of the classic numbers written by Stephen Foster, such as “My Old Kentucky Home”, “Beautiful Dreamer”, and “I Dream of Jeanie With the Light Brown Hair”, leave one somewhat melancholy, but would anyone say that because of this, the listener is not entertained or agreeably occupied, when hearing these selections beautifully rendered? Some of the outstanding motion pictures and TY performances leave one sad— but does this keep the viewer from being entertained? The answer is too obvious for further comment.
I personally find no room to doubt that the Legislature, under the language of the statute quoted, definitely included music machines in levying the tax. The actual intent of the legislature is made even more obvious by the passage of Act 120 of 1959. The Majority quote from Section 7 of that act as follows:
“It is the duty and obligation of the licensee to ascertain the amount of sales tax due on the receipts of the machine and to withhold the amount of such tax from such receipts and to remit same to the Arkansas Revenue Department. The amount of such sales tax shall not be taken into consideration in determining the rent due the licensee.”
Section 11 of that same act reads as follows:
“ Prior to the issuance or renewal of any license hereunder, the Revenue Commissioner shall require the applicant to procure a suitable surety bond in the principal sum of $3,000.00 to insure the faithful and prompt payment of all sales tax, use tax or privilege tax which may become due in connection with the operation of the licensed business and to secure the faithful performance of all duties and obligations imposed by this Act. ’ ’
I certainly cannot, under any stretch of the imagination, understand why the legislature will provide the manner of collecting the sales tax — and even further, require a surety bond to insure the prompt payment of all sales tax, if, as the Majority say, “the legislature was saying that the operator should perform those tasks if and when2 there should be a gross receipts or sales tax levied against the money received in the operation of the machine.” Never before have I heard of a legislature passing an act providing for the collection of a tax, and providing further that a bond shall be posted for that purpose, purely in contemplation of the fact that some future legislature might desire to levy such a tax. What would be the purpose of “pre-tax” legislation? Any future General Assembly in enacting such a measure, can well include the discussed language in any act passed —and, of course, is not bound by the language of the previous legislature. In other words, I find not one scintilla of explanation for the legislature to use the discussed language in Act 120 for the reason stated by the Majority.
Sales tax is payable on gas, electricity, water, ice, steam, or any other utility or public service except transportation services. The tax is chargeable on service by telephone and telegraph companies, hotel, apartment, and motel rooms, printing, photography, automobiles, and sales of practically all tangible personal property, even to such necessities as bread, milk, medicines, and drugs. Under the Majority holding, though all of these items are taxed, the legislature saw fit to exempt the “juke-box”. I am convinced that the language of Section 84-1903 levies a tax on the machines in question, and the Revenue Department should be permitted to collect such a tax.
I therefore respectfully dissent.
My emphasis.