# Arkansas Tax Commission v. Ashby

> Supreme Court of Arkansas · October 23, 1950 · 217 Ark. 759

URL: https://www.frixlaw.com/law-library/cases/7813383

## Case

- **Full name:** Arkansas Tax Commission v. Ashby
- **Court:** Supreme Court of Arkansas
- **Decided:** October 23, 1950
- **Citations:** 217 Ark. 759; 233 S.W.2d 361; 1950 Ark. LEXIS 501
- **Precedential status:** Published
- **Opinion:** Concurring in part by Smith
- **Judges:** Holt, Leflar, Mofaddin, Smith
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7813383

## Opinion text

Griffin Smith, Chief Justice (with whom Mr. Justice Leflar agrees), concurring in part and dissenting in part. The majority’s holding that statutes creating the Tax Commission are not constitutionally objectionable or functionally defective in their entirety finds support in numerous opinions of this Court; but Mr. Justice Leflar and I veer away from the present construction dealing with the time within which the Commission was compelled to function.
The majority’s analysis of applicable legislation imputes a meaning imperatively requiring the Commission to attain an expressed purpose under an exclusive procedural pattern that in practical application defeats the design to reassess; but it is now said that the procedure is so intricately intertwined with the statutory purpose that we should say the means are mandatory, yet the law — valid though it be — must for all practical purposes fall with the means.
From the standpoint of Courts there is always the presumption that legislative bodies were concerned with the general purpose of a statute and that methods of achieving expressed purposes are incidental. Therefore, where particular administrative steps were not of the essence, nor harmful within themselves, then the fact that a pattern phrased by the General Assembly has not been minutely followed will not be permitted to defeat the la*w.
The prevailing opinion makes the statute valid but without meaning' — a result not contemplated by its framers and those who enacted it. A better construction would be that when the legislature directed the Commission to reassess local properties, a reasonable time was contemplated within which the work might be done. The requirement that as an Equalisation Board it must complete the work by November 15th does not mean that reassessments would likewise be finished by that time; nor is there any language of a mandatory nature directing completion of reassessments by November 15th.
Ed. F. McFaddin, Justice (concurring). I concur in the result reached by the majority in this case, because I think the decree of the Chancery Court was correct in granting the appellees the relief that they sought. But I reach this conclusion because (a) the powers sought to be exercised by the Arkansas Tax Commission in this case arise only from Section 2 of Act 191 of 1949; and (b) I think Section 2 of Act 191 of 1949 is void as violating Art. Y, § 23 of the Constitution of Arkansas, which reads:
“No law shall be revived, amended, or the provisions thereof extended or conferred by reference to its title only; but so rauph thereof as is revived, amended, extended or conferred shall be reenacted and published at length.” 1
Said § 2 of Act 191 of 1949, here involved, reads:
“All powers and duties with respect to the assessment, equalization, extension, and collection of taxes Ad Valorem, and the administration of the corporation franchise or privilege tax, now vested in and imposed upon the Arkansas Public Service Commission under authority of Act 12 of the 1933 General Assembly, as amended or supplemented by Act 247 of the 1937 General Assembly, as amended by Acts Nos. 155 and 206 of the 1939 General Assembly; Acts Nos. 38 and 119 of the 1939 General Assembly; and Acts Nos. 40 and 289 of the 1945 General Assembly be, and the same are hereby, transferred to, vested in, and imposed upon the Arkansas Tax Commission, as herein created. ’ ’
This Section is the only authority for the powers sought to be exercised in this case by the recreated Arkansas Tax- Commission. No specific duties are conferred upon the Commission by this Section. It did not even attempt to transfer to the newly created Commission all of the powers possessed by the Arkansas Public Service Commission. It only attempted to confer on the new Commission such duties and powers as the Arkansas Public Service Commission had with respect to “the assessment, equalization, extension, and collection of taxes Ad Valorem, and the administration of the corporation, franchise or privilege tax. ’ ’ It will be noted that such duties, so referred to, are scattered through various and sundry Acts of different sessions of the Legislature, beginning with Act 129 of 1927 which is an Act not even mentioned in § 2 of Act 191 of 1949. I submit that there is no way in which any member of the Legislature could have realized the full purport of § 2 of said Act 191 without making an extensive study and analysis of the various and sundry Acts not before him in any single digest. 2 It is clear to me that § 2 of Act 191 of 1949 was an attempt to revive the Arkansas Tax Commission and to confer powers on that body and to extend previous laws, and all by reference only to the title of certain Acts.
The majority opinion in the ease at bar cites and quotes from Arkansas State Highway Commission v. Otis & Company, 182 Ark. 242 , 31 S. W. 2d 427 , as authority for the majority holding that § 2 of Act 191 of 1949 does not violate Art. V, § 23 óf the Constitution. But the legislative enactment involved in the cited case is vastly different from the legislative enactment involved in the case at bar. In Arkansas Highway Commission v. Otis & Company, the challenged Act read:
‘ ‘ Section 1. That the Highway Commission shall as soon as possible ascertain the amount of any valid outstanding indebtedness incurred prior to January 1st, 1927, against any road district in the State of Arkansas organized prior to the passage of Act No. 11 of the Acts of the General Assembly of the State of Arkansas for the year 1927 which was approved February 4, 1927, and shall draw vouchers to be paid out of the appropriation already provided for in Act No. 18 of the Forty-Seventh General Assembly for the payment of road district bonds and interest obligations; . . . ”
Of course that enactment was complete in itself because it directed the Highway Commission (already pos-sossocl of powers under oilier Acts) to determine the amount of indebtedness incurred by a.ny road district prior to a certain date, and to |)ay such indebtedness out of a particular fund. So, all the language in the present opinion quoted from the cited case is language that merely bears on the “referring” to some previous enactment for procedure and not for power or authority. In the case at bar, however, the situation is vastly different. Here the newly recreated Arkansas Tax Commission has no powers except those revived, extended and conferred by § 2 of the Act 191 of 1949; and all such powers are revived, extended and conferred by reference merely to the title of the Acts. Such is clearly contrary to the Constitution. In every one of the so-called “reference statutes,” to which my attention has been called, the same thing is true as existed in the cited case of Arkansas State Highway Commission v. Otis & Company, supra; and none of these cases is like the case at bar.
In State v. McKinley, 120 Ark. 165 , 179 S. W. 181 , Mr. Justice Hart stated the line of demarcation between the so-called “reference statutes” and an Act attempting to revive, extend and confer powers. Here is his language :
“Where the new act is not complete but refers to a prior statute which is changed so that the legislative intent on the subject can only be ascertained by reading both statutes, uncertainty and confusion will exist; and this constitutes the vice sought to be prohibited by this clause of the Constitution.”
I insist that § 2 of said Act 191 shows on its face that it contains the vice sought to be prohibited by this clause of the Constitution.
Likewise, in Harrington v. White, 131 Ark. 291 , 199 S. W. 92 , Chief Justice McCulloch said:
“We have steadily adhered to the rule that where a statute ‘by its own language grants some power, confers some right or creates some burden or obligation, it is not in conflict with the Constitution, although it may refer to some existing statute for the purpose of pointing out tlie procedure in executing the power, enforcing the right, or discharging the burden.’ ” (Italics are our own.)
It will be observed that Chief Justice McCulloch said that the statute could refer to an existing statute for procedure. He did not say that the new enactment could refer to another statute for the creation of the poiver itself. Yet that is exactly what § 2 of Act 191 of 1949 attempts to accomplish — i. e., refer to another statute for the extending and conferring of power.
We have some cases in Arkansas in which Art. V, § 23 has been applied. In Watkins v. Eureka Springs, 49 Ark. 131 , 4 S. W. 384 , a legislative enactment of 1875 attempted to allow municipalities to call in and cancel outstanding warrants. Section 4 of that Act read: . . . “that the law now in force governing in cases where counties are authorized to call in their floating indebtedness shall appty and govern in proceedings had by counties, cities or incorporated towns. ’ ’ The said § 4 was attacked as violating Aid. V, § 23 of the Constitution. This Court, speaking through Chief Justice Cockrill, held that § 4 violated the Constitution. Here is the language :
“But can the operation of the provision be extended or the power given by it conferred upon cities, by a general reference to the former law? We apprehend that it was just this sort of blind legislation the Constitution intends to prohibit when it says the provisions of a law shall not be ‘extended or conferred’ without ‘reenacting’ the part ‘extended or conferred.’ It may be that no legislator was misled by this act or failed to perceive all that it was desired it should accomplish. Of that we have no means of judging. It is sufficient that the Constitution renders such an effort at legislation unavailing. It does not permit the intelligent duty of legislation to be performed like the devotions of the Christian who was content to point to the lids of a sealed book as containing his prayers and expressing his sentiments.”
I submit that § 2 of Act 191 of 1949 attempts to give to the newly recreated Arkansas Tax Commission the powers formerly held by another body, and is thereby’ attempbting to extend and confer powers just as was held unconstitutional in Watkins w Eureka Springs, supra, which is a landmark case and has been cited by this Court in a score of subsequent cases.
Another case to the same effect is Beard v. Wilson, 52 Ark. 290 , 12 S. W. 567 . The Legislature of 1875 passed an Act, declaring that certain sections of Gantt’s Digest providing for the redemption of land sold under execution should apply likewise to all sales made under decrees in Chancery. This Court held that such Act violated Art. V, § 23 of the Constitution of Arkansas, saying:
“It would be difficult to imagine a plainer violation of the Constitutional provision.”
Likewise, in Farris v. Wright, 158 Ark. 519 , 250 S. W. 889 , the Legislature of 1923- attempted to abolish tenancy by the curtesy and give the surviving husband the same interest in his wife’s estate that the law gave the surviving wife in the husband’s estate. This Court held that the 1923 Act was void, as violating Art. V, § 23 of the Constitution.
Again, in Texarkana-Forest Park District v. State, 189 Ark. 617 , 74 S. W. 2d 784 , the Legislature had passed Act 183 of 1927, attempting to extend Acts 126 and 645 of 1923, by reference to title only. The Court held:
“. . . It definitely and certainly appears from a mere reading of Act 183 of 1927 that no valid improvement district could be organized under its authority and mandate. Without the aid of Acts 126 and 645 of 1923 the provisions of Act 183 of 1927 are absolutely meaningless and void of purpose. . . .”
The Court held the Act 183 of 1927 to be void, in violation of Art. Y, § 23 of the Constitution, saying:
“In Watkins v. Eureka Springs, 49 Ark. 131 , 4 S. W. 384 , this court decided that an act of the General Assembly which had the purpose and effect of extending to
cities and towns rights and remedies which existed by law in favor of counties conld not be so extended by reference to title only. We have uniformly held, following the case just cited, that when a new right is conferred or canse of action given, .§ 23 of Art. 5 of the Constitution of 1874 requires the whole law governing the right and remedy to be reenacted in order to enable the court to effect its enforcement. Farris v. Wright, 158 Ark. 519 , 250 S. W. 889 ; Beard v. Wilson, 52 Ark. 290 , 12 S. W. 567 ; Common School Dist. v. Oak Grove Special School Dist., 102 Ark. 411 , 144 S. W. 224 ; State v. McKinley, 120 Ark. 165 , 179 S. W. 181 ; Harrington v. White, 131 Aide. 291, 199 S. W. 92 ; Palmer v. Palmer, 132 Ark. 609 , 202 S. W. 19 ; Hermitage Special School Dist. v. Ingalls Special School Dist., 133 Ark. 157 , 202 S. W. 26 ; Fenolio v. Sebastian Bridge Dist., 133 Ark. 380 , 200 S. W. 501 ; St. L.-S. Ry. Co. v. Southwestern Telegraph & Telephone Co., 121 Federal 276.”
Thus, in a long line of cases we have held that laws cannot be revived, or the provisions thereof extended, or conferred by reference to title only. Certainly § 2 of Act 191 of 1949 attempts to do the very things that the Constitutional provision ¡orohibits; and certainly we have upheld this Constitutional provision in the cases just cited. Accordingly, I submit that § 2 of Act 191 of 1949 is null and void; and the decree of the lower court should be affirmed for that reason. It seems to me that now is a good time to return to the foundation cases on Constitutional Law and see that Constitutional rights are protected, rather than frittered away by some system of judicial refinement.
The foregoing provision of our Constitution was probably taken from Article Y, Section 23 of the Constitution of 1868, except that that provision in that Constitution was worded:
“No law shall be revised, altered or amended by reference to its title only, but the act revised and the section or sections of the act as altered or amended shall be enacted and published at length.”
It is well to note that in the Constitution of 1868 the inhibition was against the law being “revised”, whereas in the present Constitution it is against a law being revived, as well as against the provisions thereof being “extended” or “conferred.”
Section 2 of Act 191 of 1949 is an attempt to revive the Arkansas Tax Commission and to confer on it — by reference to title only • — the powers formerly held by the original Arkansas Tax Commission, created by Act 129 of 1927, which Tax Commission was superceded by the Arkansas Corporation Commission in 1933, which in turn was superceded by the Arkansas Public Service Commission in 1945. There is thus an effort to revive and confer that extends over to the third i degree — that is, from the original Arkansas Tax Commission through the Arkansas Corporation Commission, and through the Arkansas Public Service Commission. In these acts of transmission, the duties of the Commission were at no time specifically re-enacted; and then comes Section 2 of Act 191 of 1949, which attempts to confer powers on the re-created Arkansas Tax Commission. The opinion of the majority in the case at bar demonstrates that in order to find out what powers the present Tax Commission has, it is necessary to go back to Act 129 of 1927, which is not even one of the Acts mentioned in Section 2 of Act 191 of 1949 now under attack,

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7813383. Public record. Not legal advice.