dissenting.
As authority for the holding that the ownership of a coin operated music machine, which in fact is a very fine musical instrument costing over $1,500, is a privilege and taxable as such, the majority cite the case of White v. Adams, 233 Ark. 241, 343 S. W. 2d 793, which is a fortune telling case. Although that case deals with the general subject of privileges, it does not touch on the subject of the ownership of property as a privilege. There is hardly any comparison between the right to tell fortunes and the right to own property.
In the case at bar we are dealing with one of the most sacred constitutional rights. Article 2, § 22 of the Constitution of Arkansas provides: “The right of property is before and higher than any constitutional sanction; . . .” Appellant Brown is in the restaurant business. Incidental to that business be has available for the enjoyment of bis customers a music machine that may be played by depositing a coin in a slot. In my opinion it is not a privilege to own and use such a machine; it is a matter of common right. It is conceded by all that Brown could play the machine at his place of business to his heart’s content if he would remove the coin operation feature of it and play the machine by merely pressing a button or by permitting the customers to do so. And, according to the reasoning of the majority, a customer could pay the cashier for playing the machine and no privilege would be involved. But if a nickel is put in the slot, it is a privilege. The right to listen to good music, or bad music if one prefers, has been a common right of mankind since before the dawn of recorded history. Even the least advanced of savage tribes have some form of music, but here if one uses a small coin in a certain way to enable him to. listen to recorded music of his choice, a privilege is involved.
In the very early days of statehood the question of what is a privilege first came before the courts, and although since that time a number of things have been declared to be privileges, this Court has always sustained the doctrine that a matter of common right cannot be converted into a privilege by an act of the legislature. The majority say that to own, operate or lease a coin operated music machine is a privilege. But Act 120 of 1959 provides that “The business of owning, operating or leasing coin operated amusement devices ... is hereby declared to be a privilege. . . ' The majority point out that “It is common knowledge that coin operated ‘juke boxes’ are not usually placed in the home.” This is true enough, but it is equally a matter of common knowledge that coin operated music machines in the form of television sets are now widely used in homes and at this very time facilities for putting such machines in homes in Little Rock are being installed. In view of the decision in this case, it is now very likely that each owner of such a coin operated machine will have to pay an annual tax of $250 for the privilege of listening to music that may be provided by such machine. I can hardly see how there can be any valid distinction between music that comes over the air and thence through a machine and music that comes from a record through a machine.
The first case to come before the Court on the question of what is a privilege was Stevens & Woods v. State, 2 Ark. 291. Article VII, § 2 under “Revenues”, of the Constitution of 1836, in respect to the taxing of property and privileges, is the same as Art. 16, § 5 of the Constitution of 1874. In the Stevens & Woods case there was involved the constitutionality of a tax assessment of $1,000 on the keeping of two billiard tables. The issue decided by the Court was whether the keeping of a billiard table could be taxed as a privilege. The Court held that it could not be so taxed; that it was a matter of common right and could not be converted into a privilege by an act of the legislature. The case is closely in point with the case at bar, because not only is the same principle involved, but the Court actually compared the keeping of a billiard table with the keeping of musical instruments. We take the liberty of quoting rather extensively from the Stevens & Woods case. The Court said: “The meaning of the word ‘privilege’ is to be looked for in the common law. In the realm of England, and by the English law, there were a multitude of privileges of various kinds, most of which never crossed the Atlantic or took root in our soil. ... In this country few, if any, privileges exist by prescription, and few of those known in England exist by Legislative grant. But it is a certain class of privileges created in all the States by grant from the Legislature, such as banking, the privilege of keeping ferries, and holding and keeping toll-bridges, of making and receiving toll on turnpikes, canals, and railroads; and unquestionably other privileges of the same nature might be created, and when created, would be taxable. These are all special rights, powers, and privileges, not existing before, but created pro hac vice, and granted out by the Legislature as exclusive rights and franchises. Such privileges which are sources of wealth, or rather wealth in themselves, created and conferred by Legislative grant, and not capable of valuation like tangible and corporeal property, are property taxable as privileges.
“But the Legislature cannot, by first prohibiting the use of any article or the exercise of any calling, and then allowing it upon payment of a certain sum into the Treasury, create a privilege. If this could be done, there would no longer be any meaning or effect in the provision that no one species of property should be taxed higher than another species of property of equal value. If this could be done, the Legislature could tax every bureau a hundred dollars, or every table, or chair, or sofa, or book-case, to the same amount, merely by prohibiting the use or possession of each article except upon payment of such sum, and so making it a privilege to have, use, or possess it. They might pass sumptuary laws, and tax shoes, boots, hats, coats, cloaks, and every article of dress, comfort, luxury or necessity, by pursuing the same course, and making it a privilege to have, wear, or possess it.
“There are certain rights which belong to us as free men; we do not derive all our rights from Legislative grant; we have some which belong to us by nature, and as citizens of a free country; such are the rights of holding any species of property we choose, of wearing whatever garments we choose, and of possessing and holding any article of comfort or luxury which we please. As all [of] them belong to us originally, they cannot be converted into privileges by any process of Legislative alchemy. No such magical transmutation can be effected. If it could, nothing would be easier than by the enactment of sumptuary laws and acts creating privileges to transform us at one sweep from free citizens of a republic to the mere serfs of the soil.
“The right to keep and use a billiard table is one of these common rights. It is an article of furniture which every citizen had the right to own and possess before we framed the Constitution, and the Legislature cannot confer upon us the privilege of keeping what we already ex communi jure have the right to keep and use. Privileges are not so created; if they are, every thing can be transmuted into a privilege, and by undergoing this process, an article of property worth a hundred dollars may today be taxed one dollar and tomorrow a thousand, while another article of the same, may still remain subject to the original tax of one dollar. "Why not in the same tax the privilege of raising cotton, or hemp, or wheat, and so make a tax payable by one portion of the State alone.
“The playing of billiards has not been yet made a criminal or penal offense, and therefore every person has the right either to keep or play on such a table. He has the same right to do so that he has to keep or play on a flute, violin, or organ; and if one can be made a privilege while it is lawful for every man, so may the other. There is nothing unlawful or criminal in one more than in the other, by the law of nature, or the code of morality, neither malum prohibitum or malum per se. To keep a billiard table therefore stands upon the same ground with keeping any other article of furniture, or for the purpose of amusement, and one cannot be changed into a privilege any more than the other.
“A privilege, therefore, is a new right created by Legislative grant; not a right existing before and common to all, but now prohibited unless on payment of a sum into the exchequer. It is a portion of the prerogative of the State, carved out and given to an individual or a corporation. This is no such privilege. Nor could a privilege be created by declaring the keeping of a billiard table criminal, and then allowing it on payment of a sum in gross; that would be pandering to crime and present the strange spectacle of Legislative creation of a privilege to commit crime. It might be forbidden altogether, but it could never be made a privilege.
“The keeping of a billiard table, therefore, is no privilege, and therefore cannot be taxed as such, and if so, it follows, as an inevitable consequence, that the law in question is unconstitutional. That it is so we have not the slightest doubt.” (Emphasis supplied.)
In the same volume of the Arkansas Reports, there is the case of Gibson v. Pulaski County, 2 Ark. 309. It was there held that the keeping of a stallion was a matter of common right and that it conld not be taxed as a privilege. In Washington v. State, 13 Ark. 752, a distinction between a state tax and a county or municipal tax was pointed out; decisions in the Stevens & Woods case and the Gibson case were left intact. About ninety years later Judge Frank Smith wrote the original opinion involving the validity of the state income tax in the case of Sims v. Ahrens, 167 Ark. 557, 271 S. W. 720 (1925). There Judge Smith cited the cases of Stevens & Woods v. State and Gibson v. Pulaski County, above mentioned, along with McGehee v. Mathis, 21 Ark. 40; Straub v. Gordon, 27 Ark. 625; Little Rock v. Barton, 33 Ark. 436; Little Rock v. Board, 42 Ark. 160; Baker v. State, 44 Ark. 134; and State v. Washmood, 58 Ark. 609, 26 S. W. 11, and said: “Under the doctrine of stare decisis, these cases have become the settled law of this State, and, until they are overruled, which up to this hour has not been done, this court cannot consistently hold that it is within the power of the Legislature to declare and tax as privileges, for State revenue, pursuits and occupations which are matters of common right. To so hold would be to overrule all these cases, and, if they are to be overruled at all, it should be done expressly, and not by implication.”
A rehearing was granted and Judge Wood wrote the majority opinion holding that the state income tax is neither a property tax nor a privilege tax, but is an excise tax and not prohibited by Art. 16, § 5 of the Constitution. The Court referred to the case of Stevens & Woods v. State, 2 Ark. 291, and other cases'of a similar nature, on down to Standard Oil Co. v. Brodie, 153 Ark. 114, 239 S. W. 753, and said: “Those cases have not been overruled, and therefore the above provisions of our Constitution should be interpreted to read as follows: ‘The General Assembly shall have power from time to time to tax hawkers, peddlers, ferries, exhibitions and privileges in such manner as may be deemed proper, but it shall not tax for purposes of State revenue pursuits and occupations that are matters of common right.’ ”
In Thompson v. Wiseman, 189 Ark. 852, 75 S. W. 2d 393, appellant owned and operated certain coin operated devices. Act 137 of the General Assembly for the year 1933 provides for assessing a tax on vending machines, including mnsic vending machines. The Court upheld the tax, but treated the case as applying to those who operated the machines. The 1933 Act provides: “It shall be unlawful for any-person, firm or corporation, or agents or receiver thereof, to operate or permit the operation of any of the machines mentioned in Section 1 of this Act. . . .” Now the majority are holding that mere ownership of such machines is prohibited without first having paid the $250 tax.
In my opinion the Act under consideration, Act 120 of 1959, does not provide for a tax for the mere ownership or operation of a single music machine, but does tax the business of owning, operating or leasing coin operated music devices. There is nothing in the record in this case to indicate that appellant Brown is in the business of owning and operating or leasing music machines. He is in the restaurant business. The fact that he incidentally uses a stove certainly does not mean that he is in the stove business, nor does the fact that he may incidentally use a pick-up truck mean that he is in the business of owning, operating or leasing trucks. On the other hand, appellant Lynn Farr, doing business as the Central Music Company, is in the business of owning, operating and leasing the machines. The $250 tax assessed against him is valid under the decision in Thompson v. Wiseman.
I might add that the effect of Act 120 of 1959 is to give certain residents of Arkansas engaged in the business of owning all kinds of slot operated devices, including coin operated music machines, a monopoly in that field, and this is against public policy. No doubt a goodly portion of the operators own dozens and perhaps hundreds of such slot operated devices and it would be no burden on them to pay an annual tax of $250. But in many instances the little man having but one machine in his restaurant cannot afford to pay the $250 in addition to the sales tax paid at the time of the purchase of the machine, the regular annual ad valorem taxes, the sales tax on the money taken in by the machine, the federal income tax and the state income tax on the money received. Hence, he will have to use a machine belonging to a big operator, and pay as rent at least one-half, or perhaps more, of the money taken in by the machine. According to the record, there are in the State only 117 owners of coin operated devices alleged to come under the Act. This includes people such as Brown who own only one machine. The 117 owners own 6,790 machines in the State; hence, the operators own an average of 58 machines each. When it is considered that many owners have only one, a very few must own a large number, many more than the average of 58.
For the reasons set out herein, I respectfully dissent from that part of the opinion which holds that Brown is liable for the tax.
Johnson, J., joins in this dissent.