*1 per negligence an as to induce se, to be are such ’ ” negligence minds.” inference in all reasonable told First was reversed because the court case jury negligence. that certain acts amounted to Now the being tell the case reversed because the court did not jury negligence. certain acts did amount to I think the question was in the first instance. negligence upon passed jury should be other fact. the reason I For mentioned, concur. Brown v. Cheney, Commissioner.
5-2446
Opinion delivered October
[Rehearing 6, 1961.] denied November appellant. Panich, D. D. appellee.
Lyle for Walther, F. and Glenn Williams Appellant a Brown, Associate Justice. Paul Ward, operates a and owns state, and resident of this citizen Appellant supper a citizen Parr, club in Little Bock. operates the Central and and resident of owns Texas, Company owns, Brown Arkansas. Texarkana, Music in operates “juke business, with one and connection his playing into which the cus- box” or record machine “juke boxes” tomers insert a coin. Parr owns several per- pinball to different and machines which he leases litigation we are con- sons for use in this state. vending only “juke ma- boxes” or music cerned imposes “privilege tax” chines. Ark. 84-2604 § Stats. paid vending phonograph” to be on “each music of $5 annually by of Bevenues. the owner to the Commissioner challenged appellants. tax not here This (Ark. passed legislature Stats. Act In 1959 the 84-2632). declares 84-2622 Section 84-2622 to operated leasing amuse- operating owning, “coin privilege, owners, that such and to be ment devices” pay such operators a fee for lessors shall above. mentioned machine each on in addition provides such can secure that no one 84-2623 Section things, among has been he other unless, license year. section at least one this state for a resident following fee of Section $250. an annual license fixes keep requires records certain licensee to 84-2628 Commissioner) (available to determina- relative to the requires a $3,000 84-2632 taxes. Section of sales tion applicant and faithful “to insure the each bond prompt payment . . .” etc. all tax sales Appellee, let it be Bevenues, Commissioner When appellants, they imposed that the tax would be known declaratory judgment Chancery filed suit grounds that it is Act on the invalidate said constitutional “in violation of and unconstitutional taxpayers similarly plaintiffs situ- and other ” . ated. decree, appellants urge from an adverse Appealing is arbi- that: The Act on the grounds (a) reversal against confiscatory, discriminatory, trary, The Act is viola- powers state; (b) police and Federal tion certain State provisions Constitutions. Act 120 is arbi- to determine whether
(a) trying trary interesting first confiscatory, etc., question a coin- presented operating is whether owning music machine is a e. whether privilege —i. legislature appellants can so declare it. In their brief make this statement: “It the operation is admitted music the class commonly machines falls within vending *3 privilege, referred to as a that reasonable taxes can be but not as be imposed, such taxes and will regulations oppressive, or confiscatory, arbitrary, discriminatory such as are included in Act 120.” (Emphasis added.) think we the admission, question above the
Despite
it
impression
first
further. On
examined
should be
and that
that a
box” is
“juke
harmless,
might appear
it
a common right,
to
play
its owner should be allowed
It is common
other
to be considered.
things
but there are
boxes” are not usu
that coin operated “juke
knowledge
used in dance
in
but are
placed
home,
frequently
ally
amusement'
Pinball
places,
spots.
halls, drinking
which is conceded to be a
operation
machines,
so declared
statute and this
can
Court,
by
also
be used and
in
harmless
perfectly
way,
association and abuse
often lead to unwhole
they
by
some results.
in
legislature,
“juke
regulating
boxes” had
to take all these
into
things
consider
White,
County
Adams,
Treasurer
ation.
In the case of
v.
sovereignty, difficult of defini- therewith, co-extensive by it tion because cannot circumscribed mere words, yet, perennially latent in its nature, nevertheless, exist- ing authority as a vast reservoir of be drawn on law-making government public branch of the for the good. police power may Within constitutional limits, promote safety, be exercised health, morals, general society.” welfare of us that in the case before the view are inclined to
We legislature limitations constitutional did exceed general protect morals and welfare its effort presumption strengthened society. This view Hurlock, v. See State Act 120 is constitutional. 807, said Miller District Levee 185 Ark. S. W. 2d Evers, 200 Ark. 137 S. W. 2d Collector, 2 v. No. dealing
Having concluded that we are here legislature privilege, has it must be concluded *4 regulating great it. of the 16, § Article 5 latitude uniformity taxa- first deals with of State Constitution Assembly says: then “. . . the General tion and power from time to time to tax . . . have shall proper.” manner as be deemed in such leg- by appellants, Conceding, that the as contended impose quoted cannot section islature under the above a confiscatory, arbitrary think we still tax that is arbitrary The Act is Act must be sustained. 120 good in the Act, mentioned reasons, because there are legislature required why for the information the needed purpose collecting Nor taxes and use taxes. the sales confiscatory. Although to Brown we find the Act do only “juke pay must on which he one box” owns many year, as likes is as he without he free own each 924 charge. that Also,
further reflects Brown’s record annually. income from one box of $2,000 is in excess (b) provides that no As heretofore Act noted, person can secure unless he has resided license year. Arkansas at least is not a one Farr resident appellants’ resi- Arkansas. It is contention requirement part dence violates Amendment of the Constitution the United States which states: “No state shall make or enforce law which shall abridge privileges or immunities of citizens of the United . . .” States. think this is We contention place without In merit. the first the Amendment deals citizenship only residency, with while Act deals entirely meanings. and the two words have different eligible Under the Act a citizen of this state would not be residency for a year. he license unless had a of one great weight supports authority validity of simi- requirements only lar residence where involved. Hinebaugh supra, the Court said: case
purpose quoted language amend of the fourteenth protect citizenship heretofore] [same ment is to as citizenship distinguished from the United as States same case, the several in the the Court Further, states.” 1‘ language addi said the in the Amendment furnished an against guaranty tional encroachment states citizenship.” belong those fundamental (Emphasis added.) upheld cited case Court residency requirement nonintoxicating to distribute beer Virginia. in West Also, in the case, cited noted Virginia residing beyond that: “A West citizen the state eligible. regulation is not . Under this citizens exactly privileges other states are entitled the same Virginia.” (Em immunities are citizens of West phasis added.) point Numerous decisions out the differ ence between “resident” and “citizen”. See Ullman v. *5 App. Rep. State, 1 Tex. Wyman Ct. R. 28 220, Am. 405; Wyman (Nev.), Supp. v. 49 F. 952; v. Donovan Jeffcott (Ariz.), Philip Hugh 2d 135 F. 213; La Tourette v. Fitz (S. C.), Sup. McMaster 248 U. S. 39 465, Ct. L. 63 160,
925 Spaulding, Com’r., Ida. Ed. 78 and N. Hankins v. 362, C. Pac. 222. 533, 307 2d significant legislature,
It is think that onr with- we challenge, many out successful has times favored resi- regulating privileges, dents over nonresidents in certain (Ark. such as: The manufacture and sale of wine Stats., 48-110); (§ 48-515); § Retail beer dealers Fur dealers (§ 47-202); taking (§ C.), The of mussels 47-601, practice optometry (§ 72-806).
Appellants’ contention Act 120 violates Arti- 2, §§ 3, cle 19 and 29 2, 18, State Constitution has been examined and found without 2 merit. Section rights privileges; with deals inalienable Sec- —not tion 3 refers to discrimination based on race or color; Section class of refers discriminations between citizens or monopolies,
citizens; Section 19 refers to and; people. 29 deals with Section are unable to retained We any how see of the above sections are related to or are Act violated
It is our conclusion, therefore, the decree of hereby trial court must be, and it is affirmed. Robinson and Johnson, JJ., dissent. dissenting. Justice, Associate
Sam Robinson, ownership holding authority that the As for the very which in fact is machine, a coin music privi- costing is a $1,500, instrument over fine musical majority lege cite the case of such, taxable as 233 Ark. 2d which is Adams, v. S. W. White telling Although that with the case. case deals a fortune general subject it does not touch on the ownership subject property as a comparison right hardly any between the to tell There is right property. fortunes and the to own dealing at In the case bar we are with one of the of the rights. most sacred constitutional 2, § Article prop- provides: Constitution Arkansas erty higher than is before and constitutional sanc- Appellant .” Brown is in the restaurant tion; *6 for has available be to that business Incidental business. that music machine enjoyment a of bis customers the my depositing In in a slot. may played by a coin be a privilege such opinion own and use a to it is not right. It is conceded a matter of common it is machine; by place at play machine his all that Brown could remove if he would to his heart’s content of business play operation it and the machine coin feature of by merely pressing by permitting cus- a button or according reasoning to the tomers do so. And, playing majority, pay for a the cashier customer could privilege if no be involved. But the machine and would put privilege. right a in it is a The slot, nickel is prefers, good has to listen to or bad music if one music, right a of mankind since before the dawn been common history. savage of recorded Even the least advanced of tribes have some form of if one uses music, here way small coin in certain to enable him to. listen to privilege recorded music of his is involved. choice, question days of very early statehood courts, before first came is a what things been although have a number that time since always sustained has this Court declared to be be cannot that a matter of common the doctrine legislature. privilege by an act of the into a converted operate majority say lease a coin to own, The privilege. operated But Act 120 machine is music owning, operating provides that “The business operated leasing ... is amusement devices coin ' major- hereby declared to be knowledge point ity “It that coin out that is common operated ‘juke usually placed in boxes’ are not enough, equally a matter home.” This is true but it operated knowledge common that coin music machines widely form are now used in of television sets very putting homes and at facilities such this time for being machines in Rock homes Little installed. very likely view of it is case, the decision now that each owner such a coin machine will pay an annual tax have provided
listening music that be such machine. hardly how can valid distinction I can see there music comes over the air and thence between through a machine music that comes from record through a machine. *7 ques- the the Court on before to come first case
The privilege Woods v. & a was of what is Stevens tion “Revenues”, 2 under VII, § Article Ark. 291. State, taxing respect to of in the the Constitution of of privileges, property § 5 of the same Art. and Woods case of the Stevens & the Constitution constitutionality a tax of assess- there was involved the keeping two billiard tables. on the of ment of $1,000 keeping by the whether The issue decided the Court was privilege. be taxed as The of billiard table could it taxed; that it not be so that was a held could Court not be into matter of common and could converted privilege legislature. by an act of case is point closely only in case at not bar, with the because principle actually is the same involved, compared keeping keep- of billiard table with the ing quot liberty musical of of instruments. We take ing extensively rather from the Woods case. Stevens & ‘privilege’ meaning of the word said: “The The Court law. In the realm of the common be looked for in is to England, by English a multitude there were law, and privileges most of which never of various kinds, root our ... crossed the Atlantic or took soil. privileges prescription, country any, by if exist few, England Legislative by those exist
and few of known privileges grant. But it is certain class of created grant Legislature, by from the such as all the States holding banking, keeping and ferries, receiving making keeping toll-bridges, and toll and unquestionably turnpikes, canals, railroads; and and might privileges same nature be created, other spe when are all created, and would be taxable. These powers, rights, existing cial before, pro granted by Legis vice, but created hac out privi lature as exclusive and franchises. Such leges which are or wealth, sources rather wealth in by Legislative grant, themselves, created and conferred capable corporeal tangible and not of valuation like property, property privileges. taxable as Legislature prohibiting
“But first cannot, any calling, the use of or article the exercise of allowing upon payment it then of a certain sum into the Treasury, create If this could be there done, longer any meaning provi- would no or effect in the species property sion that no one should be taxed higher species property equal than another value. Legislature every If this could be done, could tax every bureau a hundred or dollars, or table, chair, merely pro- sofa, to the same book-case, amount, hibiting possession except the use or of each article upon payment making of such sum, and so ait possess They might pass have, use, or sumptuary it. laws, and tax every shoes, boots, hats, coats, cloaks, and *8 article luxury pur- necessity, by dress, or comfort, suing making privilege same course, and it a to have, possess wear, or it. rights belong
“There are certain which to us as rights Legis- free men; we do not derive all our from grant; belong by lative we have some which to us nature, country; and as citizens of free such are the species holding any property wearing we choose, of garments possessing whatever we choose, and of holding any luxury article of comfort or which we please. belong [of] originally, As all they them to us privileges by process cannot be into converted Legislative alchemy. magical No such transmutation can nothing be effected. If it could, would be easier than by sumptuary the enactment creating laws and acts privileges sweep to transform us at one from citi- free republic zens aof to the mere serfs of the soil. keep right and use a
“The to billiard table is one rights. of these common It is an article of furniture every right possess citizen had the to own and Legislature before we framed the Constitution, upon privilege keeping cannot confer us the what we already jure right keep ex communi have the to and use. Privileges they every thing so if created; are, privilege, by undergoing can into a be transmuted process, property an article of worth hundred dol- may today lars be taxed one dollar and tomorrow a may while thousand, another article of the still same, subject original "Why remain to the tax of one dollar. raising not in the same tax the or cotton, hemp, payable por- by or wheat, and so a tax make one tion of the State alone. playing yet has not been of billiards made penal person every
criminal or and therefore offense, keep right play has the either or on such a table. He right keep play has same so that he has do or organ; violin, on a or and if one can flute, be made a every while it is lawful for so man, nothing other. There is unlawful or criminal in one more than in the law other, nature, the code of morality, prohibitum per neither malum or malum se. keep upon To a billiard table therefore stands the same ground keeping any other article of furniture, purpose of amusement, and one cannot be changed privilege any into a more than the other. privilege,
“A therefore, is a new created Legislative grant; right existing not a before and com- prohibited mon to payment all, now unless on of a exchequer. portion sum into the It preroga- given tive of the State, carved out to an individual corporation. or a This is no such Nor could a *9 by declaring keeping be created of a billiard table allowing payment and criminal, then it on of a sum gross; pandering that present would be to crime and spectacle strange Legislative privi- creation of a lege might to commit altogether, crime. It be forbidden but it could never be a made keeping table, of a billiard is no therefore,
privilege, cannot and therefore be taxed as such, and if consequence, it so, as an inevitable that follows, the law question is unconstitutional. That it is so we have not slightest (Emphasis supplied.) doubt.” Reports, In the same volume of the Arkansas there County, is the case of Gibson v. Pulaski 2 It Ark. 309. 930 keeping a stallion a matter that was
was there held
it
not
taxed as
conld
be
of common
and
privilege. Washington
State,
752,
v.
Ark.
a dis
13
municipal
county
tinction
tax and
between
state
pointed
tax
in the Stevens &
was
decisions
Woods
out;
ninety
and
were left intact. About
case
the Gibson case
Judge
original opin
years later
Frank
wrote the
Smith
involving
validity
ion
state
tax in the
income
Ahrens,
case
v.
A was holding income tax is majority opinion the state but is an property tax, tax nor neither prohibited by Art. 5 of the 16, § not excise tax to the case of Stevens referred The Court Constitution. 291, and other cases'of similar State, Ark. v. & Woods Brodie, v. Ark. Oil Co. on down Standard nature, “Those and said: cases have S. W. provisions the above and therefore overruled, been interpreted should be to read as fol our Constitution power Assembly shall have from ‘The General lows: peddlers, hawkers, ferries, to tax exhibi time to time privileges such manner as be deemed tions purposes proper, tax for but it shall not of State reve *10 occupations pursuits that are matters of nue and common ” right.’
931 Thompson Ark. 75 S. Wiseman, 852, v. 189 W. oper- operated appellant certain coin owned 2d Assembly for the Act of the General ated devices. 137 vending provides assessing ma- year a tax on for including vending machines. The chines, mnsic upheld applying as to those but treated case tax, provides: operated Act “It the machines. who corporation, any-person, or shall be unlawful for firm agents operate permit thereof, or or receiver or operation any of the machines mentioned in Section .” majority holding Act. Now the ownership prohibited that mere of such machines is having paid without first tax. $250 my opinion Act 120 consideration, Act under provide a tax for owner- mere does not single ship operation music but does machine, or of a owning, operating leasing or coin tax the business operated nothing in the music devices. There is record appellant in this to indicate Brown is case owning operating leasing music ma- business of chines. he is in restaurant business. The fact that He incidentally certainly uses a does not mean that stove is in stove nor the fact that he business, he does incidentally pick-up use truck mean that he is in the owning, operating leasing business of trucks. On the appellant doing Lynn other Farr, business hand, Company, owning, is in Central Music the business of operating leasing the machines. The tax $250 against assessed him is valid under the decision in Thompson v. Wiseman. might 120 of 1959 is effect of Act
I that the add engaged in the give Arkansas busi- certain residents of operated owning slot includ- devices, all kinds of ness of monopoly ing in that machines, music coin public policy. against No doubt a this is field, operators perhaps portion goodly dozens and own operated devices and it would be hundreds of such slot pay an annual tax of But in burden them to $250. no having many man the little one machine instances pay the cannot afford to in addi- in his restaurant *11 purchase paid tax at the time of the tion to sales regular taxes, annual ad valorem machine, the sales tax money machine, taken in tax on the income tax and the state income federal money use machine received. he will have to Hence, belonging big operator, pay at as rent least perhaps money one-half, more, of the taken in According machine. to the there are record, State only alleged 117 owners of coin devices come people under the Act. This includes as Brown such who only own one machine. The 117 own 6,790 owners ma- operators average chines in the hence, the own an State; many 58 machines each. itWhen considered only very large owners have one, few own a must many average number, more than the of 58. For the respectfully reasons set out I herein, dis- part opinion sent from that holds Brown is liable for the tax.
Johnson, J., in this dissent. joins
Superior Forwarding Co. v. Sikes. 5-2456 349 S. 2d 818 W.
Opinion delivered October
[Rehearing 30, 1961.] denied October