The opinion
Johnson, C. J. (concurring). Since a constitutional majority of the court decline to overrule State v. Handlin, 100 Ark. 175 , 139 S. W. 1112 , Floyd v. Miller Lumber Co., 160 Ark. 17 , 254 S. W. 450 , Sims v. Ahrens, 167 Ark. 557 , 271 S. W. 720 , and Stanley v. Gates, 179 Ark. 886 , 19 S. W. (2d) 1000 , I perceive that we are bound by the doctrines therein announced and for this reason I concur in the court’s view that the Sales Tax Act of 1935 is constitutional and valid. This Sales Tax Act cannot be distinguished in principle from the Income Tax Act held constitutional in Stanley v. Gates, supra, and all efforts in this respect immediately prove illogical. Were I free to follow reason and logic, I should hold that under art. 16, § 5 of the Constitution of 1874 that this sales tax act is inhibited by affirmation which implies a negation. Such was the express holding of this court in the early case of State v. Ashley, 1 Ark. 513 , and adhered to and followed for three quarters of a century. This case was decided under the Constitution of 1836, but a comparison of art. 16, § 5, of the Constitution of 1874 with that of 1936 demonstrates that the former was copied from the latter except in minor details not necessary to here point out.
State v. Ashley, supra, was followed and its doctrine re-examined and approved by this court in such cases as Colby v. Lawson, 5 Ark. 303 ; State v. Washmood, 58 Ark. 609 , 26 S. W. 11 ; Baker v. State, 44 Ark. 314 ; Stevens and Woods v. State, 2 Ark. 291 ; Washington v. State, 13 Ark. 752 and many other cases, until Ilandlin v. State, supra. This case arose under the inheritance tax statute, and the majority held the inheritance tax statute constitutional and valid, thereby, in my opinion, for the first time materially impairing State v. Ashley, supra, and all subsequent cases which followed its lead. Floyd v. Miller Lumber Co., supra, arose over an act levying a tax against the severance of natural resources and by a divided court this enactment was sustained, thereby further impairing the line of cases heretofore cited. Sims v. Ahrens, supra, arose over an income tax statute and was sustained by a divided court, the result of which presented the anomalous situation of the court holding the act in question invalid but affirmatively deciding in- advance that a proper income tax act would be approved by the-court if drawn under certain specifications. Subsequently these specifications were complied with by the legislative branch of the State government, and the constitutionality of this planned income tax act was presented in Stanley v. Gates, supra, and the opinion there approved the form of the act and relied upon its previous dictum as to its constitutionality. Such is the history, reasoning, logic and effect of the cases heretofore referred to and cited, and they and each of them should be overruled.
Until State v. Handlin, supra, we -consistently held that § 16, art. 5, of our Constitution authorized a property tax and prescribes the rules to be applied in assessing and collecting taxes on property, with the proviso that the Legislature shall have authority to levy a tax on hawkers, peddlers, ferries, exhibitions and privileges. Under settled principles of constitutional interpretation, these provisions of our Constitution should be treated as a limitation upon the powers of taxation. Since the Constitution prescribes what taxes may be levied, it impliedly prohibits any other kind of taxation not therein provided for. “To specify is to exclude” is a maxim of interpretation. The Constitution specifies what taxes may be imposed. Therefore, no taxes may be levied which are not specified.
Moreover, the line of cases last referred to should be overruled for still another reason. Fundamentally courts should be interested in realities and not nomenclatures. Realities are ignored in each of the cases referred to. An inheritance tax is a tax on property and not a hybrid tax, as decided by the court in State v. Handlin, supra. Likewise a severance tax is a tax on property, and not a cross breed tax, as decided by this court in Floyd v. Miller Lumber Co., supra. Demonstrably certain is an income tax one on property and not an excise as decided by a majority of this court in Sims v. Ahrens and Stanley v. Gates, supra. The two last-mentioned cases are true hybrids, the offspring of illogic and misnomer.
The sales tax is a property tax beyond question, cavil or doubt, when measured by constitutional law and logic. The Supreme Court of the United States has so decided many, many times. The true rule is a tax on a sale of an article is a tax on the article itself, so says the highest court in the land. Stewart Dry Goods Co. v. Lewis —U. S.—55 S. Ct. 525; Brown v. Maryland, 2 Wheat. 419 ; Cook v. Pennsylvania, 97 U. S. 566 ; Crew Levic Co. v. Pennsylvania, 245 U. S. 292 ; Panhandle Oil Co. v. Knox, 277 U. S. 218 , and Indian Motorcycle Co. v. U. S., 283 U. S. 570 .
If a property tax, coneededly, the sales tax does not conform to art. 16, § 5, and therefore is null and void.
Necessity of raising revenue should never be considered so urgent as to warrant courts to either ignore or rewrite the Constitution. For seventy-five years we treated art. 16, § 5, as a limitation upon the Legislature’s taxing power, and I perceive no good reason for overturning the wisdom of the ages and not only opening, but destroying the flood-gates of taxation, and I fear the ultimate results.
I was not a member of this court when the novations heretofore discussed were decided, therefore I perceive that I should, in fairness to myself, make my position clear.
Justice Baker concurs in this opinion.