*1 488 ques- is facto. The critical it ex post
determines whether consequences law legal tion whether the changes its date. acts completed effective before added) (Emphasis must be which present are two critical elements
There it be 1) must to be ex facto: post a criminal law penal for its is, occurring before must to events it retrospective, apply enactment, affected 2) it offender disadvantage must in the case at hand. of those two elements is present it. Neither 1,1977, in no (3),B. effective has April Ark. Stat. Ann. 43-2829 § It federal conviction. felony been prior way applied appellant’s state 35 conviction only year felony was applied appellant’s 1978, after the statute May long was committed rape rape. violation. effect. There no ex facto post took Affirmed. J., not participating.
Purtle, ASS’N, INC., et al. Henry AMERICAN TRUCKING Dir., GRAY, & et al. Dep’t, C. Arkansas Highway Transp. ASS’N, INC., et al. v. and AMERICAN TRUCKING RAGLAND, Revenues, Charles D. Comm’r of Revenue
Div., et al.
85-101 & 85-112
Supreme 14, Opinion delivered April [SupplementalOpinion Rehearing May on Denial of 1986.*] grant; participating. would *Hickman, J., Purtle, J., not *4 Busker, Barney, S. R. and Robert Digges, William Daniel Williams, Mitchell, Jr.; Tucker, & Jackson Selig, by: Grooms, Moran, Sayre, Timothy G. Pat W. for Eugene appellant. Goodloe, Parker, Ted and Thomas B. Keys,
Chris Henry C. and the Arkansas State appellee, Gray Highway Commission. Counsel, for
Joe Reve- Morphew, Legal Revenue appellee, nue Division. *5 Clark, Gen., E. Jeffery Story,
Steve Asst. Att’y by: Att’y Gen., for appellees. Jr., Holt,
Jack
Chief Justice. In this consolidated appeal,
1983,
the
Ark.
Ann.
75-
Act 685
Stat.
constitutionality
§§
817.2, 75-817.3 and 75-819(b)
1985), is challenged. The
(Supp.
Act
imposed
Use
tax on all
Highway
Equalization (HUE)
trucks that operate on Arkansas
at maximum
highways
weights
73,281
80,000
between
pounds.
American
appellants,
Association, Inc.,
Trucking
(ATA), filed a
in Pulaski
complaint
Court,
division,
fourth
Chancery
against
Arkansas
appellees,
Highway
Transportation
alleging that
Department,
HUE tax would be
“illegal
an
exaction.”
Appellants requested
temporary restraining order
preventing
money collected
being
under Act 685 from
deposited into the state treasury.
Chancellor Bruce Bullion dissolved the
rеstraining
temporary
order and denied appellants’ requested preliminary injunction.
was
That decision
appealed
this court. We affirmed Chancellor
Bullion’s decision and reserved
further
any
consideration until
Ass’n, Inc.,
after
trial on the merits. American
et
Trucking
al.
Director,
258,
Gray,
280 Ark.
On January of A companion case al., et al. v. D. Ragland, Charles et was filed the second division of Pulaski Court. That Chancery also complaint challenged the as an illegal exaction and alleged that Act which was by a mere approved majority vote of the General was Assembly, subject to the three-fourths voting majority required amend ment 19 2 of the Arkansas Constitution. Chancellor John Earl §
granted motion for appellees’ judgment on this summary issue. similar, Since the facts and issues in the two appeals are were consolidated in this court. Our jurisdiction pursuant Ct. Sup. 29(1)(a), R. and We (c), (j). of Act uphold сonstitutionality 685.
Act 685 provides that the HUE tax is to be administered for all Arkansas base-registered trucks the Commissioner of Revenues the Revenue Division of the Department of Finance *6 494 State Administration, of the Arkansas while the Director the tax for administers Department
Highway Transportation provides trucks. The Act base-registered all non-Arkansas through the election vehicles can be satisfied tax for all the HUE to pay: $175; flat fee of an annual
1) the truck mile for every mile 2) a fee equal per 50 registration during in Arkansas the previous travelled or year; $8.00 per at the rate of for the of a
3) purchase trip permit hundred miles driven. on the results arguments rest their primarily
The apрellants non- Arkansas and regarding conducted ATA survey which the HUE tax is Arkansas trucks base-registered upon results, established according to appellants, The imposed. survey tax, with the HUE average per that the cost complying basis, base-registered non-Arkansas mile of affects operation it Arkansas base- higher impacts trucks at a rate 370% than circumstances, main- these registered appellants trucks. Under effect of the HUE tax is unconstitutionally tain the practical vehicles’ use of the the non-Arkansas based against discriminate reversal, seven which urge points The highways. appellants will be individually. discussed
I. CLAUSE THE TAX VIOLATES THE COMMERCE HUE commerce in a States are not interstate permitted manner that discriminates in favor of local interests. Northwest Minnesota, U.S. ern States Portland Cement Co. v. 358 450 Comm’n, State Tax 429 U.S. (1959); Boston Stock Exchange v. two theories in their commerce clause pursue First, tax, argument. although state the HUE facially neutral, higher a far effective tax rate on out-of-state imposes of the highways. trucks than on in-state trucks for the same use tax, flat, it is Their second is that as nonproportional not related to the fairly level services highway provided state to each HUE taxpayer. *7 Transit,
In
Auto
Inc. v.
430 U.S.
Complete
Brady,
274 (1977), the United States
Court considered the
Supreme
of a
tax
validity
state sales
under the commerce
The
clause.
Court
noted
undеr its
in
that
decision
Motor Service v.
prior
Spector
O’Connor,
U.S. 602
tax
(1951),
a state
on the
of
“privilege
doing business” was
se unconstitutional when it is
to
per
applied
interstate commerce. In
the
Brady,
Court overruled
Supreme
instead,
a
test to determine
Spector,
applied
four-part
under
constitutionality
the commerce clause.
Under that test
is
(1)
tax
valid when the tax
“is
to an
with a
applied
activity
State”,
substantial nexus with the taxing
(2) “is fairly appor
tioned”, (3) “does not
against
discriminate
interstate com
merce”, and (4) “is
related to
fairly
the services
the
provided by
Comm’r,
State.” In
N.R.R. Co. v.
Burlington
280 Ark.
Ragland,
(1983),
In Aero
Mayflower Transit Co.
Public Serv.
Georgia
Comm’n,
al.,
et
foreign too, There, conditions.” like domestic vehicles operated that the out-of-state was with the Court confronted carriers, Georgia yet less than the local carrier the roads uses held, fee is The Court the same amount. “[t]he that it shall be. the carrier wills for a use as extensive as privilege in a burden so is unreasonable or nothing oppressive There limit not . who receives a without privilege . . One imposed it as as he enjoy freely may” his refusal wronged own (citations omitted).
Here, as being challenged of the fee not amount se, is used for the upkeep the money unreasonable per *8 taxed, the tax being applies the carriers highways travelеd can The interstate carriers to and domestic carriers alike. foreign use flat fact do not make extensive to the fee. The that opt pay levied discrim- does not make the tax highways, of the state’s inatory. R.R. in Aero Transit Co. Bd. v. Mayflower Again, of Montana, al., et (1947), the Supreme
Comm’rs of
Motor carriеrs for and particularly like arduous use goods, make appellant, especially wear and tear much entailing beyond roadways . use . . general from indiscriminate resulting public against or not discriminate ex- Although may the state of its generally such use clude interstate traffic not the state is required this does mean that highways, or indeed on charge furnish those facilities to it free of not similar destruc- inflicting with other equal terms traffic with intrastate tive effects . . . Interstate traffic equally cost a fair share of the be may required use of the related to the made reasonably maintenance (citations omitted). highways,
The decision overruled Brady maintain that Mayflower the Court’s decisions in the two Aero cases. We early did disagree. The Court overruled It not expressly only Spector. Furthermore, treat so these cases. in Massachusetts v. United States, 435 (1978), Brady, U.S. 444 decided one after year Supreme analogized Court flat fee problem registration aircraft, cases, all to their civil motor vehicle tax previous citing the Montana Aero Mayflower decision.
The Court reached a similar Maryland Appeals conclu- Inc., Goldstein, al., sion American et et Trucking Ass’ns al. A.2d 47 (Md. 1984), using reasoning we now That adopt. registration court discussed an annual fee on all motor imposed carriers operating in court Maryland. Maryland specifically found that Brady “did not undercut the discussed flat previously cases”, highway user tax which included both Aero Mayflower decisions.
In finding registration fee did not discriminate against interstate commerce under Brady, the court Maryland noted that is not aimed at interstate at a placing business “[i]t businesses”, competitive disadvantage with local it “applies carriers, in-state and equally” registered out-of-state motor and its “is not to purpose local carriers protect against foreign Rather, competition.” the court noted its “is to purpose spread *9 evenly among all commercial users the tax burden of supporting Maryland’s The HUE highway system.” tax meets the same criteria and thе same accomplishes purposes.
The appellants claim their statistics show that the HUE because, tax basis, discriminatory on a cost mile out of state per truckers are valid, more. charged their statistics Assuming are must, the flat tax our portion of law be the most logically, onerous provision. per The mile or alternatives benefit out of per trip the state by truckers to permitting them less than flat tax. We need nogo further than to cite holding the cases that a flat tax is not law, discriminatory. The alternatives offered our which in by truckers, fact could benefit the out of state do not make this case distinguishable from the ones the flat as approving being rate а proper method in the context of commerce clause challenge.
498 Brady, that as the fourth prong
As to the
under
tax,
to the level of
services
highway
is not
related
fairly
a flat
it
it
be answered
can
the state to each HUE
by
taxpayer,
provided
argument.
the previous
the same
as
authority
under
the U.S.
“flat fee” case dealt with
The first
case,
Mayflower
Aero
supra.
Georgia
Court was the
Supreme
then,
in
flat fee
flat tax
subsequent
The Court
upheld
cases,
a flat fee for the privilege
that a state
holding
may impose
Lines,
Brice,
et al.
v.
Greyhound
Capitol
roads. In
using
its
Comm’r,
the Court held that
formula
(1950),
U.S. 542
crucial,
not
rather the relevant
flat tax was
used
calculating
excessive. We
the amount of the tax was
was whether
inquiry
constitutional
of the
be
agree.
Legislature
presumed
Acts
the courts to be unconstitutional unless
and will not be held by
act
the constitu
between the
there
a clear incompatibility
County
in favor of the act. Pulaski
tion,
with all doubts resolved
Scott,
115,
THE HUE TAX VIOLATES CLAUSE Constitu fourteenth amendment U.S. The be denied equal tion that no shall protection provides person can reviewed under the equal law state. Before a statute be by any law must demonstrate that guarantee, protection party Nowak, Rotunda, Young, & classifies in some manner. persons Law, three Constitutional 1983). There are (2ded. ways p. face; do on its a classification: the statute so may establish to different unevenly neutral statute be facially may applied it; law, those or a neutral groups administering facially applied designed a device constitute evenhandedly, reality may Id. classes of different burdens on different impose persons. on interstate argue that the tax classifies carriers based versus intrastate commerce. *10 exist, to is found equal
Once a classification turns on whether the classification bears analysis protection to a state interest. legitimate rational relationship
499 test, relationship We need not reach the rationаl however, because no classification exists. The ac neutral, knowledge that statute is so the first method facially of not two classifying established. The other methods concern the uneven and of the burdensome effect a neutral application statute. We have of already indicated our discussion commerce clause that the statute is to and interstate applied intrastate carriers alike and does have a discriminatory not effect on interstate Since singled commerce. interstate commerce is not treatment, out for no disparate classification on that basis is made, and no equal arises. protection problеm
III. THE HUE TAX VIOLATES THE PRIVILEGES &
IMMUNITIES CLAUSE The and immunities clause privileges provides that Citizens of each State to shall be entitled all Privileges “[t]he and Immunities Citizens in the Several States.” United States Constitution, IV, Art. 2. It is well established privileges § and immunities clause is to inapplicable corporations. Hemphill 277 Orloff, (1928); U.S. 537 Western & Southern Ins. Co. Life v. State Bd. Equalization U.S. 451 648 The Calif., ATA, al., Nevertheless, named et are all appellants, corporations. they argue that since their was certified as a complaint class action, there are noncorporate individuals within the class which them to raise a and permits immunities privileges challenge, Cash, City citing Little Rock v. 644 Ark. S.W.2d229 (1982), denied. does not rehearing Cash stand for that proposi tion. The lawsuit in that case was filed six city residents of of Little Rock who were water users. The case was certified as a class action. There is no discussion about corporate Nor noncorporate did our parties. research indicate that there is any case law stating that it will be assumed that noncorporate individuals are included in a class action in a case such as this. In ATA, Goldstein, al., fact in et al. v. et supra, same appellants attempted raise a privileges argument. immunities Maryland court noted that the clause was inapplicable corpo “ rations and stated: of the plaintiffs named are corporations. [a] such, As they have no standing 423(a) under the challenge § Privileges Here, and Immunities Clause of Art. IV.” in as *11 Therefore,
case, they corporations. the named are plaintiff's all argument. this standing have no make IV. & DISCRIMINATORY
THE ARBITRARY OF & THE HUE REGULATIONS ADMINISTRATION TAX ARE UNCONSTITUTIONAL of the for the administration HUE authority Act 685 divides the of Revenues of Department tax between the Commissioner Administration, (DF&A) base-regis- for Arkansas & Finance vehicles; State Highway the Director of the Arkansas tered and (ASH&TD) non-Arkansas Department, & Transportation object regula- do not to the base-registered Appellants vehicles. under this argument tions or the DF&A. Their by administration ASH&TD, whose regula- instead is directed toward the point clause, maintain, violate the commerce they tions and policies, clause, equal and immunities and the privileges protection the clause of the Constitution. with and immu-
We can the immediately dispense privileges are As nities since the named argument corporations. appellants to the protection allegations, commerce clause and equal and of the regulations policies maintain that appellants test, Brady of the ASH&TD violate the first and third prongs the ASH&TD’s object (a) The appellants supra. specifically status, (c) (b) the carrier general approach, specialty fleet registration.
(a) general by The named are that policies appellants ASH&TD, DF&A, does not allow the unlike owner/operator base-registered option choosing non-Arkansas trucks trucks for the use of the wеight whether to their qualify by The policy afforded of the tax. highways HUE payment base-regis- are non-Arkansas challenging requires 73,281 carrying tered trucks to either declare that tax, take the HUE or else some Arkansas pounds A non- weight. to elect not to carry affirmative action has taken either base-registered Arkansas truck who not these not This action actions is allowed enter the state. affirmative according appellants. burdensome on interstate commerce merit. All trucks without appellants’ must declare their for travel in Arkansas. Arkansas gross weight base-registered vehicles do so when in this state. they register Those Arkansas vehicles who International pаrticipate Registration (IRP) weight Plan declare their a sworn state- ment the IRP application. Obviously, comparable opportu- *12 was nity needed for non-Arkansas carriers to base-registered declare their gross weight. Highway Department established a mechanism where a carrier could either and the qualify 73,281 tax or HUE declare a below formally gross weight pounds and obtain a free carrier decal. The state’s interest a specialty all weight travelling highways declaration from trucks state is the first of apparent, satisfying prong Brady.
As to the discrimination issue raised under the third all carriers have to take prong, some affirmative action to declarе Here, weight the of their vehicles. ASH to authority &TD had the it promulgate regulation its and is reasonable. As a practical the matter mechanism for for differed interstate registration vehicles, same, the was yet result the without undue burden to interstate commerce. arguments, oral counsel During appellees’ to explained registration that it was implement procedures, to utilize a certain necessary during the first two policy years effective, however, registration after the act became now there no difference in registration for those who are carriers members of IRP. They presently gross allowed to declare the weight register their vehicles when other they states. Likewise, carriers, base-registered non-Arkansas who are not IRP, members of still submit an as to weight affidavit receive carrier decal special upon entry into Arkansas. These simple methods for carriers to declare of vehicles travel gross weight for in Arkansas are non-discriminatory.
(b) The regula carrier status was created by specialty tion and is awarded to carriers entering the state who are carrying 73,281 below or fall within a pounds statutory and are exemption thus not to subject the HUE tax. The carrier decal is specialty given free to those carriers and allows them into the state. entry contend the status was Appellants regulаtion created even by the though language of Act 685 does not provide a rational basis action, claim, the creation of such classification. This legislative grant violates agency’s rule-making authority, State, Burnett, rel citing ex General v. 200 Ark. Attorney a regulation promul- held that Burnett
140 S.W.2d was contrary revenues commissioner of gated by carrier status void. The specialty and therefore statute applicable to the HUE exemptions identifies is not Act 685. It contrary 73,281 Since tax, less than including carrying pounds. trucks and to do so the HUE tax to administer required ASH&TD is of vehicles weight using gross a determination requires status of the carrier designation specialty highways, state’s is within the agency’s оf that tax and to facilitate collection way power promulgate. base-regis- non-Arkansas
(c) also complain Appellants “integral trucks an fleets” must their tered carriers qualify classification, Arkansas-based under one only payment option. pick DF&A to their payment are allowed owner/operators trucks, according it to their individual option apply appellants. *13 The
The misinterpret pertinent policies. appellants of and DF&A are the same: actual the ASH&TD practices fleet. Arkansas base-registered allow one option per payment mileage their under the IRP have registered vehicles that mileage IRP documen- the IRP on a fleet basis. That reported by to an to allow the carrier select is then used the DF&A tation mileage for allows each fleet. ASH&TD Similarly, option a either IRP using to on fleet basis computed documentation be governmental entity records or other records submitted a case, set, one the fleet in either only some official Once purpose. is allowed. payment HUE option carriers, allows non-Arkansas based
The ASH&TD and exist under one separate integral ownership where fleets for each are maintained reporting systems record separate fleet, integral separate options. Highway Department to select V(B). regulation stating The DF&A also has a Regulation vehicles be on a fleet basis and all аffected IRP shall qualification Use Highway Equaliza will either of two relevant options. pay Gerke, head Tax Ellen Regulations, Mary tion paragraph Unit, fleet can select single IRP testified that a IRP the Revenue with has the same option an but the owner to then exercise option is no in that or fleet. Since there disparate all the trucks account no basis for claim discrimination. treatment there
V. ACT 685 OF 1983 WAS NOT ADOPTED IN ACCORDANCE WITH THE OF THE REQUIREMENTS
ARKANSAS CONSTITUTION
Amendment 19
2 of the Arkansas Constitution
§
excise,
that no rates for
or
provides
“property,
privilege
personal
taxes now levied shall be increased by the General Assembly
in case of an
except...
emergency,
votes
three-fourths of
the members elected to each House of the General Assembly.”
Act
an
appellants suggest that
685 is
increase
in an existing
tax” and is
“privilege
subject
therefore
the three-
fourths vote
In
requirement.
of their
an
support
allegation that
increased,
existing privilege tax has been
point
registration
charged
fee
under Ark.
Ann.
Stat.
75-201 (Repl.
§
1985),
as
Supp.
the tax that Act 685 increased.
this is a
on
Appellees maintain
new tax
the new privilege of
carrying
loads. We find
larger
that amendment 19
2 is
§
inapplicable because Act 685 does not
impose privilege
but
rather exacts a user fee from motor vehicles
carrying
In
prescribed weight.
Dist.,
Evansville-Vanderburgh
Auth.
Airport
Airlines, Inc.,
et al. v. Delta
that a charge the user designed only make of state- facilities provided reasonable fee to help defray costs of their construction and maintenance may constitu- be tionally imposed interstate and domestic users a- *14 like. ..
At so long least as the toll on is based some fair approxima- tion use, of use or for . . . privilege and is neither against interstate nor discriminatory commerce excessive conferred, with the comparison governmental benefit it will pass constitutional muster. . . facilities, charges
Such for the use of like public have been highways, characterized as in the of being “nature rent State, the charged by based its upon interests the proprietary Hartman, public rather than of a tax.” property, Federal Limita- 504 Taxation, and Local
tions on State Chapt. p. fee, user the by this is a passed We find the the wear and tear on the state for compensate Legislature is not a higher weights. the It carrying caused trucks highways by “ the is a technical sense. A tax tax privilege tax in privilege [a] a for which a of on a business or carrying occupation privilege Law ed. Dictionary, (5th or is Black’s license franchise required.” not weight prohibited not the are 1979). higher Trucks carrying state, thus, the tax is not a tax through the HUE travelling from It charge on a business. is instead for the privilege carrying weights the and damage higher done trucks carrying a user dоes not Since the fee repairs. approval exacted make in the majority Legislature, appel three-fourths necessitate a merit. lants’ without
VI. & OF THE THE FINDINGS CONCLUSIONS ARCP ARE INSUFFICIENT UNDER CHANCELLORS RULE 52(a) Rule 52(a) of Civil Procedure pro Arkansas Rules that, if tried without a by judge jury, vides in contested actions find facts specifically “the court shall party, requested by of law thereon.” and state its conclusions separately Appellants law object findings here fact conclusions of chancellors, brief, were claiming very promulgated by 52(a) not address the general and in nature. Rule does conclusory must which of fact and conclusions of law findings with specificity de novo Furthermore, chancery be made. we review cases record findings chancellors’ and conclusions supported is not well point in this case. this taken. Accordingly, VH. BE ATTORNEYS’
APPELLANTS SHOULD AWARDED REGARD TO ANY REFUNDS RECEIVED FEES WITH MEMBERS OF APPELLANT CLASS BY fees. seeking two theories pursue attorneys’ The state that if this court should find that HUE Initially they to members illegal is an exaction and refund taxes collected *15 class, be awarded as attorneys’ that a should portion appellant
505 constitutional, we tax is fees. Since find this be need not addressed. that, notwithstanding next contend the decision
Appellants merits, on the Bullion an Chancellor erred them award denying $9,270.42 The chancellor found attorneys’ fees. that refunds were made to from taxes the class collected erroneously pursuant before final emergency regulations, regulations were enacted. The final did not include this regulations erroneously ruled, however, tax. judge collected there was no common fund from which could attorneys’ paid, fees be denied the claim. We agree. Powell, 484, In Mayor Henry, N.L.R. 267 Ark.
592 (1980), S.W.2d 107 sought attorneys’ fees from refunds that were ratepayers. made electrical This court held that fees were because attorneys’ proper the refund created a fund, common and stated: action, action was class which resulted in the
[T]he recovery of substantial amount which constituted a common fund. The allowance fees from a attorneys’ common fund established or augmentеd through the efforts of the to whom the fee is attorneys allowed a well recognized practice and is (citations omitted). proper, Awards have been made courts based on the common fund doctrine where litigation results in the creation of a common fund against Annotation, which the fees bemay awarded. A.L.R.3d
In finding that the fund requirement common was not met, Chancellor Bullion in a explained letter that: opinion
Because the Court refused to enjoin the collection of tax, this and refused to monies to be require account, in an escrow deposited all the tax monies been, collected under Act 685 have and are now being in the State deposited There is no Treasury. impounded fund from which costs and fees that be allowed for a might successful action taxpayers to be drawn.
Monies paid truckers under the offensive emer- gency regulation ago ceased to be and those long paid, who
506 refunds It is ago. its received full long under mandates
paid being Act 685 taxes are true that other lawful probably basis, this money on a but tax received the State daily regulation, rather emergency to the offensive not related valid of the exercise being pursuant are collected situation, it is In this beyond to tax. power State’s government pay of this Court to order state power services, no how for a fee for mаtter the class counsel deserving it be. may no of fact that finding do not find the chancellor’s
We to be Ark. R. was established erroneous. clearly common fund we his judgment. Civ. affirm 52(a). Accordingly P. Affirmed.
Purtle, J., not participating.
Hickman, J., dissents. Hickman, Justice, This is test of the dissenting.
Darrell that our answer to the claim Highway Arkansas Department’s of the damaged will be because of the increase state’s highways 80,000 weight legisla- maximum limit on trucks pounds. was to to make for goal heavy ture’s tax these trucks them pay was goal their of the to our That damage highways. worthy share in a tax which legislators, resulting partly forgotten do all may favors Arkansas-based trucks. Those trucks decidedly $175 per want for damage they year. invariably interstate truсkers The evidence reflected ticket, rather trip five cents mile or purchase choose to pay per $ is the sensible than the annual fee of 175 truck. That per only pay who use High- choice for interstate truckers will not Arkansas choose as ways extensively. just sensibly Arkansas-based truckers mileage $175 there is no every year, truck because pay per limit can drive thousand miles They thirty with that payment. less five cents mile. considerably than Arkansas, truckers, 370% not based in Interstate paying That damage more than Arkansas-based truckers for the done. the commerce clause of the United discrimination violates such as legislation Discriminatory, States Constitution. pаrochial commerce, this with an exclusive province interferes interstate
506-A
the federal
Boston Stock
v. State Tax
government.
Exchange
Commission,
City
v. New
(1977);
U.S.
Philadelphia
Jersey,
Perhaps important the fact that the as delineated does not make those who do most may damage; our own truckers.
The tax must be related to the services fairly this provided, Transit, case decent Auto Inc. highways. Complete Brady, U.S. 274 mile-weight A tax is fair probably most truckers, sensible answer to problem: all Arkansas-based and interstate, for the Not equally damage highways. only sensible, is that it is fair to the this unquestionably state people who have to bear any unpaid costs damage.
I would find violаtes the commerce clause of the United States Constitution.
Supplemental Opinion Rehearing on Denial of delivered
Opinion May
Jack contending that we erred rehearing part by failing petition to address of whether the HUE tax violates the question and clause immunities of the United States privileges Constitution.
In the we found the lacked opinion, incorrectly standing to raise this since all of the named plaintiff's immunities are and the and clause corporations privileges inapplicable corporations. maintain in their that the
Appellants parties petition named had there were two individuals in the stipulated that as were so named for the who complaint representative appellants this of issue. The states that is so. respondent this purpose raising we admit error and address this its Accordingly, question merits. clause provides: and immunities privileges
506-C
of
State
be
to all Privileges
The Citizens
each
shall
entitled
in the Several States.
and Immunities
The United States
Court has
Supreme
explained
“[t]he
of this clause . . . was to
fuse into one
primary purpose
help
Nation a collection of
States. It was
independent, sovereign
of
A who ventures into State
insure to a citizen
State
designed to
B the same
which the
of
B
privileges
citizens
State
enjoy.”
Witsell,
(1948);
334 U.S.
see also
v.
Toomer
Paul
The HUE does not violate the privileges and immunities clause. We have held that tax is already facially neutral, to both Arkansas applying base-registered trucks equally as Further, well as to non-Arkansas vehicles. base-registered Arkansas and non-Arkansas based trucks share the same oppor Therefore, tunity carrying higher no weights. there is classifiсation made between citizens one state as opposed citizens of another state. *19 argument second petitioners is the court by
was in incorrect that the tax did not finding discriminate against non-Arkansas based trucks. Petitioners cite two Vermont cases which been have decided since arguments were presented this We appeal. obviously not bound the decisions of Furthermore, cases, Vermont court. in those the court found that the relevant statutes different on out-of- imposed requirements Here, state operators. HUE tax to all applies equally operators and any disparity amounts results from the number
506-D trucks. The rest petitioners’ traveled their of miles restate- essentially contention are their final issue and on this rehearing. thus not proper brief and original of their ments 20(g). R. Ct. Sup. denied.
Rehearing J., not participating. Purtle, J., Hickman, rehearing. grant would