OPINION ON GRANTING OF REHEARING JULY 17, 1995
[Rehearing denied September 25, 1995.*]
901 S.W.2d 809
Bowden Law Firm, by: David O. Bowden, for appellant. Bart Mullís and Friday, Eldredge & Clark, by: J. Shepherd Russell, III and R. Christopher Lawson, for appellee. Robert L. Brown, Justice.The petition for rehearing is granted, and we affirm the trial court’s order of summary judgment in favor of appellee Jefferson County Quorum Court.
On November 23, 1993, a majority of those voting in a Jefferson County election adopted a one cent sales and use tax. On December 28, 1993, appellant Jack Foster challenged the new tax by filing a declaratory judgment action in which he contended that the new tax violated Article 16, § 9, of the Arkansas Constitution, which reads:
No county shall levy a tax to exceed one-half of one percent for all purposes, but may levy an additional one-half of one percent to pay indebtedness existing at the time of the ratification of this Constitution.
Foster further alleged that the ordinances1 establishing the tax were not appropriately introduced, failed to have the Enactment Clause in the title, and failed to include a statutory rebate. He prayed for a declaratory judgment that the election be declared null and void.
Subsequently, Foster filed an amended complaint, and the Quorum Court answered and moved for summary judgment. Foster then filed a cross motion for summary judgment. The circuit court reviewed the matter, granted summary judgment in favor of the Quorum Court, and dismissed the complaint with prejudice. Because the circuit court did not exclude matters submitted outside the pleadings, including affidavits, in its consideration, we treat the order as one for summary judgment and not a dismissal under Ark. R. Civ. R 12(b)(6). See Ark. R. Civ. P. 12(b); Godwin v. Churchman, 305 Ark. 520, 810 S.W.2d 34 (1991).
I. Article 16, § 9
There are four points on appeal. The first point deals with the interpretation of Article 16, § 9, of the Arkansas Constitution and whether that section forecloses the counties from levying a one cent sales and use tax. We conclude that the one percent sales and use tax adopted in Jefferson County does not run afoul of the Arkansas Constitution.
A brief discussion of the history of Article 16 is instructive on this point. Article 16 was part of the Arkansas Constitution adopted by vote of the people on October 13, 1874. The only tax specifically referred to in the Article is the ad valorem property tax:
§ 5 Property is taxed according to value.
§ 6 Laws exempting property from taxation, other than as provided in the Arkansas Constitution, are void.
§ 7 Power to tax corporations and corporate property shall not be suspended.
§ 8 Legislative power to levy State taxes for any year is limited and may not exceed, in the aggregate, 1% of the assessed value of the property of the State for that year.
Amendment 59 of 1980, which was adopted by vote of the people on November 4, 1980, amended § 5 of the Article and added the following sections, all of which concern ad valorem property taxes:
§ 14 Procedure for adjustment after reappraisal and reassessment of property is established.
§ 15 Assessment of residential property and of agricultural, pasture, timber, residential and commercial land are distinguished.
§ 16 A legislative exemption from property taxes is authorized for a residence of a person over the age of 65 up to a value of $20,000.
Thus, Article 16, as originally adopted by vote of the people, and as amended as recently as 1980, makes specific reference only to property taxes. In addition, § 9 follows behind, and is part of, four sections which have taxation of property as their subject matter.
Sixty-one years after ratification of the 1874 Arkansas Constitution, the Arkansas General Assembly passed its first sales tax — the Arkansas Emergency Retail Sales Tax Act — to be in force for a period of two years. See Act 233 of 1935. By means of Act 386 of 1941, now codified at Ark. Code Ann. § 26-52-101 et seq. (Repl. 1992 & Supp. 1993), a permanent gross receipts tax, or sales tax, was enacted. The question then becomes whether the tax referenced in Article 16, § 9, is limited to the property tax or whether the term embraces other taxes like the one percent sales and use tax adopted in Jefferson County. That one percent sales and use tax was authorized by Act 26 of 1981, now codified at Ark. Code Ann. §§ 26-74-201 et seq. (1987 & Supp. 1993). Act 26 was enacted to facilitate capital improvements and bond financing. Since its enactment, the validity of Act 26 has not been contested as violative of Article 16, § 9, although it has been the subject of litigation. See, e.g., City of Little Rock v. Waters, 303 Ark. 363, 797 S.W.2d 426 (1990); Ragan v. Venhaus, 289 Ark. 266, 711 S.W.2d 467 (1986).
We turn to our rules of constitutional construction and interpretation in analyzing Article 16, § 9. Our primary goal in construing and interpreting a constitutional provision is to ascertain and give effect to the intent of the Arkansas people. Knox v. Williamson, 241 Ark. 455, 408 S.W.2d 501 (1966). There is also the rule that we give language its plain and ordinary meaning. Gritts v. State, 315 Ark. 1, 864 S.W.2d 859 (1993); Mountain Home School Dist. No. 9 v. T.M.J. Builders, Inc., 313 Ark. 661, 858 S.W.2d 74 (1993); Omega Tube & Conduit Corp. v. Maples, 312 Ark. 489, 850 S.W.2d 317 (1993). When engaging in constitutional construction and interpretation, we look to the history of the constitutional provision and to the mischief intended to be corrected by its passage:
In interpreting constitutional amendments, we have said that a court, in order to determine the meaning and the extent of coverage of a constitutional amendment, may look to the history of the times and the condition existing at the time of the adoption of the amendment in order to ascertain the mischief to be remedied and the remedy adopted.
Bryant v. English, 311 Ark. 187, 193, 843 S.W.2d 308, 311 (1992). Finally, the Arkansas Constitution must be considered as a whole and to get at the meaning of any part of it, we must read the provision in the light of other provisions relating to the same subject matter. Wells v. Riviere, 269 Ark. 156, 599 S.W.2d 375 (1980), quoting Chesshir v. Copeland, 182 Ark. 425, 32 S.W.2d 301 (1930).
The people of Arkansas adopted the new constitution in 1874 in part to gain control over high property taxes and the county tax assessors who, because they received a percentage of all taxes levied, were apt to place unreasonably high assessments on the value of land. Ralph C. Barnhart, A New Constitution for Arkansas?, 17 Ark. L. Rev. 1, 3 (1963-64). The 1874 Constitution, as a result, prohibited the assessors from taking a percentage of property taxes levied and limited the percentage of taxes that the counties could levy against property. Arkansas Constitution, art 7, § 46; art. 16, § 9. Thus, the mischief to be remedied in 1874 related solely to the property tax, and the remedy incorporated into the 1874 Constitution applied solely to the property tax.
Early on, this court recognized this interpretation when it stated that “sections eight (8) and nine (9) of the same article [Article 16] refer to limitations of taxation by the state and county upon property as such, and have no reference to license taxes.” City of Little Rock v. Prather, 46 Ark. 471, 478 (1885). (Emphasis added). Two recent cases lend credence to this interpretation of Article 16, § 9. See Quapaw Central Business Improvement Dist. v. Bond-Kinman, Inc., 315 Ark. 703, 870 S.W.2d 390 (1994); Holt v. City of Maumelle, 302 Ark. 51, 786 S.W.2d 581 (1990). In the Quapaw Central case, which involved assessments by a local improvement district and bond financing, we emphasized that Article 16 applied to property taxes and did not limit special improvement assessments:
The Arkansas Constitution of 1874 contains provisions limiting the maximum rate of general property taxation by counties and municipalities, and prohibiting counties and municipalities from issuing interest-bearing certificates of indebtedness. See generally Ark. Const, art. 16 as amended. Because these constitutional restrictions do not apply to improvement districts, the improvement district has been used in Arkansas as a means of constructing and financing large public improvements that counties and municipalities could not normally afford, [citing Sloan, A Treatise on the Law of Improvement Districts in Arkansas, pp. 2-28 (1928)]
315 Ark. at 706, 870 S.W.2d at 392. (Emphasis added.) In Holt v. City of Maumelle, supra, we considered a municipal ordinance and the issue of whether a monthly charge on certain housing was a property tax within the meaning of Article 12, § 4 of the Arkansas Constitution. We stated:
“Further, in 1883, the only taxes of consequence were taxes on property, and the provisions of Act 114 should be construed keeping in mind the historical context and the taxing alternatives and conditions existing at the time of enactment. (citing authority)”
Holt, 302 Ark. at 54, 786 S.W.2d at 583. Thus, the Quapaw Central case is illustrative of this court’s ongoing treatment of Article 16 as limiting county levies only on property taxes. The Holt case expresses our commitment to view specific tax levies in a historical context.
This court has made it clear that constitutional provisions should receive a consistent and uniform interpretation and when one interpretation has been followed for a number of years, it should not be changed. S.W. Ark. Communications, Inc. v. Arrington, 296 Ark. 141, 753 S.W.2d 267 (1988). Cases from this court which have cited Article 16, § 9 since the adoption of the 1874 Constitution have all been cases which touch and concern property taxes and no other means of taxation. See, e.g., Sherrill v. Faulkner, 200 Ark. 1006, 142 S.W.2d 229 (1940); Gaither v. Gage & Co., 82 Ark. 51, 100 S.W. 80 (1907); Doniphan Lumber Co. v. Reid, 82 Ark. 31, 100 S.W. 69 (1907); Desha County v. Chicot County, 73 Ark. 387, 84 S.W. 625 (1904); Cope v. Collins, 37 Ark. 649 (1881); Lee County v. State, 36 Ark. 276 (1880); Graham v. Parham, 32 Ark. 676 (1878).
We are aware that § 11 of Article 16, which prohibits taxes generally that are raised for one purpose from being used for another purpose, and § 12 of Article 16, which precludes payment of money from the State Treasury unless appropriated, have been analyzed together by way of dictum as applying to all taxation and not just to property taxes. See Collins v. Humphrey, 181 Ark. 609, 27 S.W.2d 102 (1930). That analysis, however, does not control our interpretation and construction of § 9. Section 9 expressly and specifically limits county tax levies to one-half of one percent and follows in the wake of sections 5, 6, 7, and 8, all of which relate to property taxes. Most importantly, the intent of the people in 1874 to limit property taxes by adopting § 9 is beyond dispute.
In sum, we conclude that it was the ad valorem property tax that exclusively concerned both the framers of the Arkansas Constitution and the voters in 1874, and not a tax on retail sales, such as that enacted some 60 years later. Both the historical context of the 1874 Constitution and the subject matter of Article 16 make that clear. We hold that Article 16, § 9, limits county tax levies to the ad valorem property tax and that it does not fix a limit on the one percent sales and use tax adopted in Jefferson County on November 23, 1993.
II. Invalidity of Sales Tax Ordinance
We turn next to the three points raised by appellant Jack Foster which concern the invalidity of the Jefferson County ordinance authorizing the sales and use tax. We can dispose of two of the points for the same reason. Foster urges (1) that the ordinances were introduced by the County Judge and not by a Justice of the Peace, as required by Ark. Code Ann. § 14-14-905(a) (1987); and (2) that the Enactment Clause language in Ordinance 1993-74 was not in the title, as required by Ark. Code Ann. § 14-14-905(b) (1987).
We underscore again that the ordinance has now been passed by a vote of the people of Jefferson County. We further observe that a Justice of the Peace reported successful committee action on the ordinance to the full Quorum Court at the October 11, 1993 meeting, and a second Justice of the Peace recommended a “Do Pass.” Regarding the Enactment Clause, Ordinance No. 1993-74 did contain the required language, though not in the title. We view both matters as substantial compliance with the statutory requirements, especially in light of the fact that the ordinances have been approved by a vote of the people. See Vandiver v. Washington County, 274 Ark. 561, 628 S.W.2d 1 (1982). As we stated in Vandiver, quoting from Orr v. Carpenter, 222 Ark. 716, 262 S.W.2d 280 (1953), preelection provisions of the election law are directory only after the election and not mandatory unless proclaimed to be essential by the governing statute or unless they are of such a character as to affect the election result. Neither circumstance applies here.
Foster also argues that Ordinance 1993-74 fails to comply with the rebate mandated by Ark. Code Ann. § 26-74-213(a) (Supp. 1993), for taxes collected in excess of the tax on the first $2,500 of the sales price. The Quorum Court counters that Ordinance 1993-74 provides that the tax is only levied “on the first $2,500 for each single transaction.” As a consequence, no rebate is necessary. That approach by the Quorum Court obviates the need for a rebate provision. We find no basis for reversal on this point.
For his last point, Foster maintains that the Jefferson County ordinance is invalid because it fails to comply with the dictates of Act 885 of 1991, now codified at Ark. Code Ann. § 26-74-401 et seq. (Supp. 1993), for counties without an existing one percent sales and use tax. The ordinance at issue, however, was passed by the Quorum Court under the authority of Act 26 of 1981, codified at Ark. Code Ann. § 26-74-201 et seq. (1987 & Supp. 1993). This argument, accordingly, has no merit.
For the reasons stated, the order granting summary judgment to the Jefferson County Quorum Court is affirmed.
Glaze, J., and Special Justice Paula Jamell Storeygard concur. Dudley, Newbern, and Corbin, JJ., dissent. Roaf, J., not participating.Dudley, Newbern and Corbin, JJ., would grant. Roaf, J., not participating.
Though Foster refers to two ordinances in his Complaint —No. 1993-74 and No. 1993-75 — it is Ordinance No. 1993-74 that was the focus of the litigation and the appeal.