dissenting. The majority opinion holds that Jefferson County can validly adopt a one percent sales and use tax. I respectfully dissent.
I.
Article 16, section 9, of the Constitution of Arkansas provides: “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.” The second clause of this section refers to a tax of one-half of one percent to pay debts that existed in 1874, the year the constitution was ratified. There is no debt left from 1874, and, consequently, the second clause is no longer valid. The only part of the section that still is in operation is the first clause, “No county shall levy a tax to exceed one-half of one percent for all purposes.”
“The first rule, of construction is that where the language used in a Constitution is plain and unambiguous, the court cannot seek other aids of interpretation.” Ellison v. Oliver, 147 Ark. 252, 264, 227 S.W. 586, 589 (1921) (emphasis supplied). In its answer, Jefferson County admitted that the tax was “for all purposes.” The word “county” refers to the governmental unit upon which “a tax” limit is placed, and “one-half of one percent” is the limit imposed. The clear meaning of Article 16, section 9, is that a tax in excess of one-half of one percent tax for all purposes is unconstitutional. When the meaning of a constitutional provision is certain, courts should apply that meaning. Rockefeller v. Hogue 244 Ark. 1029, 429 S.W.2d 85 (1968).
The majority opinion cites neither an ambiguous word nor a vague phrase, yet resorts to rules of construction to interpret the meaning of the clause. The procedure is contrary to our settled law that neither rules of construction nor rules of interpretation may be used to defeat the clear and certain meaning of a constitutional provision and that courts should not resort to extrinsic facts to alter the plain meaning of the language used. Bishop v. Linkway Stores, Inc., 280 Ark. 106, 655 S.W.2d 426 (1983); see also Kervin v. Hillman, 226 Ark. 708, 292 S.W.2d 559 (1956); Ellison, 147 Ark. at 264, 227 S.W.2d at 589.
Even though rules of construction should not be applied when the meaning of the language is clear, the majority opinion does so and misconstrues the clause. The fundamental purpose in applying rules of construction to a constitutional provision is to ascertain and give effect to the intent of the framers and of the people who adopted it. Kervin v. Hillman, 226 Ark. 708, 292 S.W.2d 559 (1956). One way to determine that intent is to look at the comparable provisions of our earlier constitutions. See Ferrill v. Keel, 105 Ark. 380, 151 S.W. 269 (1912).
There was no comparable provision limiting the taxing powers of the counties in the 1836 Constitution, often labeled the “Statehood Constitution.” In the pertinent parts it provided, “All revenues shall be raised by taxation to be fixed by law,” and “No other or greater tax shall be levied on the productions or labor of the country than may be required for expenses of inspection.” Ark. Const, of 1836, art. VII, Revenue §§ 1 and 4. Under these provisions counties could enact various taxes since “local taxes for county or municipal purposes might well be authorized, if self-imposed, according to the discretion of the people of such county or town, through their magistrates or officers elected by and directly responsible to them.” Washington v. State, 13 Ark. 752, 761 (1853). The 1861 Constitution, or the “Secession Constitution,” contained the same provisions, but added another that said county courts “shall have jurisdiction in all matters relating to county taxes, disbursements of money for county purposes, and in every other case that may be necessary to the internal improvement and local concerns of the respective counties.” Ark. Const, of 1861, art. VI, §11. The 1864 Constitution, or the “Military Constitution,” contained the same provisions as did the 1861 Constitution. Under it the government “proceeded to levy taxes on carriages, tanyards, distilleries and other industries, jewelry, gold watches and incomes over $600.” Ralph C. Barnhart, A New Constitution for Arkansas? 17 Ark. L. Rev. 1, 2 (1963-64) (emphasis added).
The 1868 Constitution, or the “Reconstruction Constitution” and at times called the “Carpetbagger Constitution,” did not contain the provision about county courts having jurisdiction in matters relating to county taxes, and did not contain a limit on county taxes. Article X provided for imposing various taxes, and they were not limited to property taxes. See Ark. Const, of 1868, art. X, §§ 2, 3, 4 and 5. This constitution existed during a period of governmental irresponsibility. The period is described by Professor Barnhart as follows:
The constitution of 1868 was the so-called carpetbag constitution. The new governor elected under it was a Republican, or at least a turn-coat Democrat, and it goes without saying that the administration did not have local organizations to carry out its functions throughout the state. Of necessity it was a centralized government in great measure. Under the constitution of 1868 the governor appointed a commissioner of public works and internal improvements who had supervision of all internal improvements and was also ex officio commissioner of immigration and of state lands. The governor appointed tax assessors, prosecuting attorneys, and township and precinct officers. He appointed the Chief Justice of the Supreme Court and all inferior judges. Objective judgments are hard to come by, but it can be imagined that the appointments were unpopular. We are told that the government was wasteful and levied extravagant taxes. Assessors who were naturally kept under control of the administration received a percentage of all taxes levied, so it is said “this was a very great stimulus to place the highest assessment upon all property.” Not only were heavy taxes levied, but bonds were issued by the state in large amounts to railroads, to pay for supplies furnished to the militia and to raise money for treasury deficits, and the governor’s assessors were also given authority to appoint the judges and clerks of elections in the counties. While the people were thus oppressed by what they termed confiscatory taxes, the office holders flourished and had the bad taste to flaunt their prosperity by building palatial homes on what became known as Carpetbag Row in Little Rock. In time the Democrats began to take the oath prescribed by the 1868 constitution and as required under the reconstruction law and to register and vote. By 1874 probably most of them had regained the franchise and the demand for a new constitution became overwhelming. The legislative act submitting the issue to the people noted “that it is manifest that there are many defects and objectionable provisions in the present constitution of the state and it is not satisfactory to the people thereof.” This is probably the understatement of the Nineteenth Century. The vote for a constitutional convention was about 80,000 for, 8,500 against.
It is not surprising that the delegates to the 1874 convention were bent on including a plentiful supply of “thou shalt nots.” It is evident that they were determined to cut down the governor’s power, for they reduced the term of office from four to two years. We can understand why the original article 6, sec. 3, made specific provision for sealing up the returns of the election of executive officers and transmitting them to the Speaker of the House of Representatives, who should open them in the presence of both houses of the General Assembly and publish the votes cast. The salaries of the governor and other public officials including judges were fixed in the new constitution. County officers were to be elected, and it was specifically provided that no percentum should ever be paid to assessors upon the valuation or assessment of property by them. The General Assembly itself was limited in the rate of taxes that might be levied, as were counties and municipalities, and loan of public credit by state, county, city or other municipalities was prohibited. Counties and municipal corporations were barred from becoming stockholders in any corporation. Personal and homestead exemptions for debtors and other exemptions were specifically set out. In short, the constitution reflected distrust of the executive, the legislative and the judicial branches of the government and kept controls to a very great extent in the hands of the people. The “Thou shalt nots” were liberally extended to all three branches of the state government. The constitution of 1874 was a reaction against the government which preceded it with all of the abuses and dissatisfactions fresh in mind. The eyes of the draftsmen were on an immediate and unhappy past and not upon the visions of a new world.
17 Ark. L. Rev. at 3-4 (footnotes omitted).
The framers and people intended to put an end to all governmental excesses with the present, or 1874 Constitution. The present constitution, unlike earlier ones, expressly limits taxation by the counties. The limit on counties is that no county shall levy a tax to exceed one-half of one percent for all purposes. The majority opinion construes this limit to apply only to property taxes.
In determining the intention of the framers and of the peopie who adopted the constitution, a court should look to the history of the times as well as the provisions of the earlier constitutions to determine the mischief that was to be remedied, and, in consideration of all of these things, arrive at the intention of the drafters and people in adopting the constitution. Carter v. Cain, 179 Ark. 79, 14 S.W.2d 250 (1929). The history of the times, recited above, shows the dissatisfaction of the people with the government and the mischief that the drafters and people intended to correct. In 1878, only four years after the present constitution was adopted, in discussing the provision now at issue, this court wrote:
With regard to counties, which, in this Constitution are treated separately, it is provided, (Art. XVI., Sec. 9), that “no county shall levy a tax to exceed one-half of one per cent for all purposes; but may levjr an additional one-half of one per cent to pay indebtednessNexisting at the time of the ratification of this Constitution.”^
Upon a careful consideration W these provisions, in connection with the history of the State, and the existing evils which the Convention of 1874 had probably in view, as resulting from the improvidence and recklessness of counties, cities and towns, in the creation of debts, we conclude that it was the intention of that body to cut off utterly all power to levy taxes beyond the limits assigned.
Brodie v. McCabe, 33 Ark. 690, 696 (1878) (emphasis added).
This was our interpretation in 1878. The majority opinion changes the clause from its original meaning, which is “to cut off utterly all power to levy taxes beyond the limits assigned” to now mean that there is no limit on any county taxes except for the limit on the property tax.
A cardinal rule in dealing with written instruments is that they are to receive an unvarying interpretation, and that their practical construction is to be uniform. A Constitution is not to be made to mean one thing at one time and another at some subsequent time when the circumstances may have so changed as perhaps to make a different rule in the case seem desirable.
Carter, 179 Ark. at 85, 14 S.W.2d at 253 (quoting 1 Thomas M. Cooley, A Treatise on the Constitutional Limitations, at 124 (8th ed. 1927)).
Under the majority opinion, counties, when authorized by the General Assembly, can now enact sales taxes, use taxes, income taxes, value added taxes, severance taxes, estate taxes, gift taxes, transfer taxes, excise taxes, license taxes, privilege taxes, occupation taxes, and every other kind of tax, except property taxes, without any limit whatsoever. That result is not a fair interpretation of the intent of the framers and the. people who adopted the constitution in 1874.
A part of the rationale used in applying the rules of construction in the majority opinion is that the sales tax was not enacted until the 1930’s, and Article 16 is greatly concerned with property taxes. Neither explanation will fairly justify the result reached.
The sales tax was known at the time of the adoption of the present constitution, the Constitution of 1874. William Blackstone in his landmark Commentaries on the Law states that there were such taxes in England as early as 1643, or 231 years before the adoption of the present constitution. 1 William Blackstone, Commentaries on the Law, Ch. 8 at 319, 319 n.i. (2d ed. 1766).
In this State, sales taxes are recognized as excise taxes. Hardin v. Vestal, 204 Ark. 92, 162 S.W.2d 923 (1942); Wiseman v. Phillips, 191 Ark. 63, 84 S.W.2d 91 (1935). Excise taxes were operational in other states at the time the present constitution was adopted. In 1868, or six years before the present constitution was adopted, the Supreme Court of the United States, in deciding a case from Alabama, held that a uniform tax imposed by a state on all sales made within that state, whether they be made by one of its citizens or a citizen of some other State, and whether the goods sold are the produce of that state enacting the law or some other state, is valid. Woodruff v. Parham, 8 Wall 123 (1868). In the same session, the Court also decided Hinson v. Lott, 8 Wall 148 (1869), and upheld an Alabama tax on the sale of liquor. The previous year, it struck down similar taxes in Nevada and Louisiana. Steamship Co. v. Portwardens, 6 Wall 31 (1867); Crandall v. Nevada, 6 Wall 35 (1867). During the same period, other states’ appellate courts were considering the validity of some of the other types of excise taxes mentioned in Blackstone's Commentaries. For example, four states enacted liquor license taxes in the same period. See State v. Bennett, 19 Neb. 191 (1886); Kitson v. Ann Arbor, 26 Mich. 325 (1873); Block v. Town of Jacksonville, 36 Ill. 301 (1865); and Autlanier v. The Governor of Texas, 1 Tex. 653 (1848). Thus, it seems only reasonable to conclude that the drafters of the present constitution were aware of and contemplated an excise tax when writing the document. In addition, it would seem, without dispute, that the drafters were aware of taxes, other than property taxes, because a statute in existence at that time provided:
Sec. 153 There shall be levied and collected as a county tax the sum of twenty-five dollars on each ánd every hawker or peddler, whether by land or water, for the privilege of hawking and peddling goods, wares and merchandise in any county in this state for the term of six months or less.
Sec. 154 There shall be levied and collected as a county tax the sum of ten dollars for each and every auctioneer for the privilege of selling any lands, goods, wares and merchandise at public outcry in any county of this state for the term of six months or less.
Sec. 155 There shall be levied and collected as a county tax the sum of one hundred dollars on each and every circus or menagerie for each day’s exhibition given in any county in this state.
Sec. 156 There shall be levied and collected as a county tax the sum of five dollars for each public exhibition given in any county in this state by any person or persons, for personal profit.
Sec. 157 There shall be and is hereby levied and collected, as a state tax, the sum of one hundred dollars, for the use and benefit of the sinking fund, which shall be paid in the lawful money of the United States, and the further sum of one hundred dollars as a county tax, from each and every person selling, either at wholesale or retail, any ardent or vinous liquors, it being an occupation of no real use to society (except the same is sold exclusively for medicinal purposes), in any county of this state for the term of one year or less, i.e. for the calendar year, or any part thereof.
Act No. 124 of 1873, §§ 153-157 (emphasis added).
Thus, the framers, many of whom were lawyers, surely knew of the court decisions and statutes involving various kinds of taxes. The eyes of the framers were on an immediate and unhappy past, and they intended to limit the power of governments to limit all taxes, not just property taxes.
Article 16 contains 16 sections, ranging from “Lending credit — Bond issues — Interest-bearing warrants” in section 1, and “Debts of state — Payment” in section 2, to “Providing for exemption of value of residence of persons 65 or over” in section 16. The majority opinion states that the other sections referring to taxes mention only the property tax and from that it infers that section 9 must also refer to a property tax. The majority opinion is correct when it states that other sections refer to property taxes. Section 8, titled the “maximum rate of state taxes,” specifically provides that the State is limited to “the aggregate of one percent of the assessed valuation of the property of the State for that year.” Thus, it is clear that the framers knew how to refer to the property tax, and to restrict the limit on it alone, and they did so when referring to a state property tax, but they did not do so in section 9, when they placed the taxation limit on counties. Rather, they clearly wrote that counties cannot levy “a tax to exceed one-half of one percent for all purposes.” Ark. Const, art. 16, § 9.
The majority opinion also cites the case of Quapaw Cent. Business Improvement Dist. v. Bond-Kinman, Inc., 315 Ark. 703, 870 S.W.2d 390 (1994) as some authority that the limit provided in section 9 applies only to property taxes. However, that case involved an improvement district, and the present constitution does not limit improvement districts the same as it does counties and cities. Keel v. Board of Directors of St. Francis Levee Dist., 59 Ark. 513, 27 S.W. 590 (1894).
II.
The majority opinion contains a second fundamental mistake. The majority opinion utilizes rules of construction to change the meaning of Article 16, section 9, to limit property taxes only, and, by deductive reasoning, assumes that the tax at issue is not limited. The deductive reasoning contains a fallacious assumption: It assumes that the sales and use tax is not a property tax. However, the use tax is a property tax. Mann v. McCarroll 198 Ark. 628, 130 S.W.2d 721 (1939). Thus, the limitation on property taxes applies to the use tax in this case, and the ordinance does not contain a severance clause. Thus, even if the use tax might be severed from the sales tax, it must fail in this particular case.
III.
The special justice joined in the original opinion, but now changes and joins in the grant of rehearing. In Part I of the concurring opinion, the special justice writes that the decision in the original opinion should have been to affirm, with three votes to affirm, two to dismiss, and two to reverse. The statement is mistaken. The two votes to dismiss were based upon a perceived lack of subject-matter jurisdiction in the circuit court. We held, five to two, that circuit court had jurisdiction. At that point, the appeal was validly in this court from the circuit court, and the case was therefore ready to be decided on its merits. The jurisdictional issue was decided by that holding. It was ended. We then took up the merits of the case, and the special justice joined with the majority in deciding the merits of the case in the original opinion. The vote on the merits was four to reverse and three to affirm. In Part II of the special justice’s concurring opinion, she explains the reasons she now changes her vote on the merits. It is the duty of a judge to change his or her vote upon rehearing if he or she thinks his or her original vote was in error, and not one of us has any criticism of a judge who so changes his or her vote.
Even so, the change in the vote and the resulting new majority opinion, do not necessarily end the issue, even in this case. The taxpayer, Foster, can now file his only petition for rehearing, see Register v. Oaklawn Jockey Club, Inc., 306 Ark. 318, 321-A, 821 S.W.2d 475 (1991) (supplemental opinion denying rehearing). Submissions for this term have ended, and the petition, if filed, will be submitted upon the opening next “October” term, see Ark. Code Ann. § 16-11-101 (1987). When the new term opens, the composition of this court will be changed because the Chief Justice has submitted his notice of resignation effective before the next tqrm begins. In addition, appeals from other cases involving the same issue will most likely reach this court, and most likely they will be decided by the regular justices, and, even if a justice, or justices, should disqualify, and a special justice, or justices, should be appointed, the composition of the court probably would be different.
IV.
Each of us is aware of the critical financial importance this case has to the counties, but this case does not involve a matter of expediency; rather, it involves a matter of constitutional law. The framers of the 1874 Constitution, and the people who approved it, did not write that, except for the property tax, counties can levy all types or kinds of taxes without any limits, and they never intended for such a construction of the constitution to be adopted by this court. It is basic that a constitutional democracy must follow its constitution..
We have faced similar situations in recent years. After we held the clear language of the constitution placed a limitation on the power of cities to incur bonded indebtedness, the people changed the constitution by adopting Amendments 62 and 65 to the Constitution of Arkansas. See City of Hot Springs v. Creviston, 288 Ark. 286, 705 S.W.2d 415 (1986); City of Hot Springs v. Creviston, 288 Ark. 286, 293-A, 713 S.W.2d 230 (1986) (supplemental opinion denying rehearing); Purvis v. City of Little Rock, 282 Ark. 102, 667 S.W.2d 936 (1984); Purvis v. Hubbell, 273 Ark. 330, 620 S.W.2d 282 (1981). We should again follow the clear language of the constitution, and then if the people want to change it, they can so do.
Newbern and Corbin, JJ., join in this dissent.SEPARATE OPINION DENYING MOTION REQUESTING DISQUALIFICATION SEPTEMBER 25, 1995
906 S.W.2d 314
Paula Jamell Storeygard, Special Justice.I was appointed to act as a Special Justice on this case as a matter of public record in February, 1995, some two months before oral arguments. I sat with the Court during oral arguments in the presence of Appellant and his attorney. I wrote a dissenting opinion adverse to the position of the Appellant several weeks before Appellee’s petition for rehearing was heard. During all of these months, Appellant knew of my participation and had the opportunity to determine the identity of my law firm and the nature of my practice. Appellant did not, however, file his motion for my disqualification until after the Court ruled against him.
Appellant has now made serious allegations regarding my participation, about which I will only make a few comments. Appellant’s allegation that my law firm is qualified to act as bond counsel is true but irrelevant. We are qualified to practice in many areas of the law and municipal finance is not a significant part of our firm’s overall practice. We have never been involved in any general obligation bond issue or any other bond issue which would or could be affected by the ruling in this case. Were it otherwise, I would never have accepted this assignment. The fact that, because of our legal abilities, a local governmental entity could be a “potential” client is not a reasonable basis for my disqualification in this case. Indeed, my firm’s bond practice has not precluded it from representing taxpayers in illegal exaction cases detrimental to the interests of governmental entities. Finally, Appellant seeks my disqualification because three years ago my law firm worked with one of the many law firms that has filed an amicus curiae brief. This firm’s co-representation of one client, in 1992, in a matter wholly unrelated to the case at bar, is not legally or ethically suggestive of or a basis for recusal.
Not only does Appellant’s motion fail to set forth a reasonable basis for disqualification, it is untimely. Rule 6.4 of the Arkansas Supreme Court Rules requires that any motion requesting disqualification of a Justice “shall be filed a reasonable time prior to the submission of the case to the court.” The mle is based upon the common sqnse principle that a party should not be allowed to wait upon the adverse outcome of a case to decide whether to seek disqualification of a judge. See Nowlen v. Kreis, 213 Ark. 1027, 214 S.W.2d 221 (1948); Ingram v. Raiford, 174 Ark. 1127, 298 S.W. 507 (1927). The motion should also be denied as a matter of judicial administration.
When considering a motion for disqualification, a judge has a duty not to recuse when no reasonable basis for disqualification exists. See Walker v. Bishop, 408 F.2d 1378 (8th Cir. 1969). Having fully considered every argument advanced by Appellant, I do not find it necessary or proper to recuse and I would deny the Appellant’s motion for disqualification.