concurring. I join in the opinion written by Mr. Justice Brown for the Court. I write separately to say that I would overrule Pockrus v. Bella Vista Village Property Owners Association, 316 Ark. 468, 872 S.W.2d416 (1994), which is inconsistent with the decision in this case and with the decision in Barker v. Frank, 327 Ark. 589, 939 S.W.2d 837 (1997).
We hold today that the levy of a tax in excess of the millage rate allowed by Amendment 59 is an illegal exaction that may be enjoined in chancery court pursuant to Ark. Const. art. 16, § 13. At least since Greedup v. Franklin County, 30 Ark. 101 (1875), this Court has held that the levy of a tax in excess of the millage rate allowed by the Constitution is an illegal exaction, and that taxpayers are entitled to sue in chancery court to enjoin the illegal exaction “to prevent a multiplicity of suits.” 30 Ark. at 110. A complaint to enjoin the levy of a tax on the ground that the millage rate exceeds a constitution limit alleges an illegal exaction and may be brought either in circuit court or in chancery court. Barker v. Frank, supra.
In Pockrus, this Court followed a line of cases holding that a flaw in the assessment or collection procedure, no matter how serious from the taxpayer’s point of view, does not make the exaction itself illegal. So far as I can determine, that language originated in Schuman v. Ouachita County, 218 Ark. 46, 234 S.W.2d 42 (1950). Schuman involved mineral taxes that were admittedly due and owing; they were not in any way, shape, form or fashion illegal. The complaint in Schuman was that the procedure for recording the assessments on the mineral taxes did not conform to the statutory procedure and, as a result, “these taxes were so extended on the taxbooks that the property owners would encounter difficulty in attempting in good faith to discharge their debt to the State and county.” In a nutshell, the Schuman complaint was that the manner of recording the taxes on the tax books was unduly confusing. In that context, this Court stated, “But the debt nevertheless exists, and our decisions do not support the theory that a flaw in the assessment or collection procedure, no matter how serious from the taxpayer’s point of view, makes the exaction itself illegal.” 218 Ark. at 48-49. This statement in Schuman was supported by citations to Missouri Pacific Railroad Company v. Fish, 181 Ark. 863, 28 S.W.2d 333 (1930), and Beard v. Wilcockson, 184 Ark. 349, 42 S.W.2d 557 (1931). Missouri Pacfic Railroad Company v. Fish, so far as I can tell, has nothing to do with a flaw in an assessment or collection procedure. Beard v. Wilcockson held that an overstatement in the assessed value does not create an illegal exaction, and that a taxpayer whose property is over-valued must follow the statutory remedies. Neither Schuman nor Beard, nor the cases descending from Schuman, support the holding in Pockrus that an Amendment 59 case is not an illegal-exaction case.
Amendment 59 created the opportunity for confusion between the line of cases descending from Greedup v. Franklin County and the line of cases descending from Schuman v. Ouachita County. Greedup held that the levy of a tax in excess of the millage rate allowed by the constitutional limit is an illegal exaction, while Schuman v. Ouachita County held that a flaw in the assessment or collection procedure is not an illegal exaction. Confusion has arisen because Amendment 59 creates a constitutional limit on the millage rate that a local taxing unit may impose, and defines this limit on the millage rate in terms of a formula that is tied to assessment procedures. However, the substance of a claim under Amendment 59 is that a taxing unit has levied a tax in excess of the allowed millage rate. Pleading the facts as to what the taxing unit has done sometimes will necessitate allegations regarding the assessment procedures (as here and in Pockrus), but the relief sought ultimately is to obtain compliance with the millage rate limitation. Thus, a complaint alleging a violation of Amendment 59 falls within the rule of Greedup v. Franklin County; it is a complaint alleging that a taxing unit is levying taxes based on a millage rate that exceeds the constitutional limit, which is an illegal exaction. Such a case may be brought either in chancery court or in circuit court. Such a case is not within the Schuman rule because the taxpayer denies that “the debt nevertheless exists” [Schuman, 218 Ark. at 48] to the extent the millage rate exceeds the Amendment 59 limitation.
In Pockrus, the court quoted from the chancellor’s opinion stating that Amendment 59 provided for a safeguard that under the circumstances specified in the Amendment would require each taxing unit to roll back the millage levied against the property within its taxing jurisdiction. See 316 Ark. at 471. The court then summarized the chancellor’s holding by saying that he had concluded that the reassessment plan “violated Amendment 59 because it prevented Bella Vista Village taxpayers from receiving the benefits of equalization of taxes (roll back in taxes) provided for and allowed under the Amendment.” Id. Thus, in Pockrus the chancellor held that Bella Vista taxpayers were being taxed in excess of the limit provided in Amendment 59 because the local taxing units had not rolled back the millage rate in accordance with that Amendment. Even though the taxpayers in Pockrus complained that the effect of reassessment plan was to avoid the impact of Amendment 59, as the taxpayers do in this case, the gist of the complaint was that the millage rate exceeded the limit imposed by Amendment 59. Such a case is an illegal-exaction case. Pockrus is the only decision that has ever relegated an Amendment 59 case to county court.
Justice Hickman’s Godzilla1 is enough of a terror to litigants, their lawyers, and trial judges without the confusion created by irreconcilable opinions from this Court as the court of original jurisdiction for Godzilla’s cases. I doubt the county judges want Godzilla in their courts; I am certain he does not belong there.
See Clark v. Union Pacific R. Co., 294 Ark. 586, 745 S.W.2d 600 (1988) (Hickman, J. concurring) (“Amendment 59 is the ‘Godzilla' of constitutional amendments. Nobody knows what it means.")