*1 no competent therefore, There is, is. this' proceeding him- appellee brought record show evidence so as to said act and conditions self under the terms to on the rolls. placed pension him entitle The in not the judgment court erred holding, dismissed. cаuse reversed Commissioner Revenues. McCarroll, Caldarera v. 2d 4-5599 S. W. 12, 1939. delivered June Opinion *2 Hugh Loughborough, Dobyns Rose, J. Wharton appellant. & for House, Attorney Pace, General,
Frank Mil- Jr., Holt, Jack Attorney appellee. for Alford, lard General, Assistant Mehaffy Joseph. M. Hill, Charles W. amici curiae. Appellants J. dealers wholesale Humphreys, intoxicаting brought
of suit beer and as have county this chancery enjoin the Z. M. court of Pulaski of McCarroll, Commissioner of of the Bevenues State enforcing Arkansas, from Acts of § 1 of Act of the 310 privi- ground on the that it the excise or increases 1939 lege imposed intoxicating tax on of beer un- wholesalers der Act 7 of of the of Acts of Acts the and 236 of 2 Acts of and is in violation i'937, of Amendment No. of the State the Constitution provision is follows: Arkansas, Constitutional property, privilege,
“None of the excise, or rates personal tаxes now levied shall the Gen- be increased Assembly, except approval qualified eral of the after voting electors at an election, thereon or emergency, the vote three-fourths of the members house, Assembly.” elected each оf the General provision This of the Constitution inhibits the Gen- Assembly increasing property, eral excise, on rates
privilege personal except or levied, now taxes. approval qualified voting'thereon after the electors emergency, by at аn or election, in case of an a vote of three-fourths the members elected to each house Assembly. General by appellee qualified
It is that the conceded voters Assembly of the state have not authorized General property, рrivilege excise, to increase the rates for or personal and that Act taxes Acts 1939 passed vote three-fourth members Assembly, Act 310 of that if it follows General priv- existing of excise rates
the Acts 1939increases intoxicating ilege imposed upon dealers of taxes wholesale of course The converse the act is unconstitutional. of 1939 does not increase If Acts true. Act 310 imposed privilege rate of excise statutes wholesale dealers then the act is constitutional. imposed upon рrivilege wholesale
The excise Arkansas State of one dol- is at rate mentioned above propor- (and fifty thirty-two gallons lar cents *3 tionately quanities) re- larger beer on for or smaller possessed, These or sold. manufactured ceived, handlеd, collect acts dealer to do authorize the wholesale pass TJnder from on to consumers. taxes retailers or it privilege tax im- strictly or acts excise those it was upon posed the wholesale dealer. read Acts of
The title and 1 of Act as follows: liquor, levy upon
“An tax act to a consumers’ sales University provide beer and wines: ‘To funds charity hos- and a Arkansas School Medicine pro- pitalization program conjunction to therewith; provide. building to fund; vide funds for the sanatorium hospitalization indigent sick, for funds for the Depart- county Health tuberculosis the State for fund, purposes.’ ment, and other imposed 1. “Section There is levied upon all sales of beer at within tax retail this state a new to ‘Beer be known as the Sales Tax’ Consumers paid by shall be be the consumer shall collected as provided. hereinafter Beer Said Consumers Sales Tax fifty shall levied at rate of be three dollars and cents thirty-two ($3.50) per (and (32) gallons, pro- barrel portionately larger quantities) and smaller and shall by be collected the wholesaler the retailer, who in рass turn on tax to if consumer, shall said the retailer price elects, an increase the retail beer no glass approximately more bottle than one cent Com- shall Said tax be collected twelve ounces. heretofore the wholesаler as missioner Revenues from regulations provided in such manner under such necessary. . . deem Commissioner shall ambiguity is no used Act 310 There might or could of 1939 that be construed Acts Legislature to to intended increase the mean imposed privilege upon or excise tax rate of the intoxicating acts of wholesale privilege imposed Legislature. is an excise upon privilege the retailer with the pass on to to the retailers consumers increas- price ing of no the retail more than glass apprоximately one bottle cent twelve nothing It has whatever do ounces. with the excise or imposed by existing upon privilege tax the whole- imposed They sale dealer. dif- people may pass which the ferent classes retailer on by including price it in the retail the consumer may or the restrictions, retailer certain absorb it himself price. if beer at the sell same wants old Assembly expressed The General itself in such con unambiguous language cise, clear and that there is no *4 iby room for construction the court. This court said in Cunningham the v. Keeshan, 110 Ark. 99, 161 S. W. 170, that: “There are certain elemental rales of interpretation construction to be observed in the depart. statutes from which we not isOne that, plain unambiguous, where a law is there is no room left for exigencies construction, neither the of a nor a to permitted ease resort extrinsic facts will be to meaning language alter the the used the statute.” again And Valley said in the case of Arkansas Trust Young, Co. v. 128 Ark. 12, 195 W.. S. that: “"Where unambiguous of a statute is the intention of Legislature gathеred must be therefrom. If we change thereby upon peculiar it, we encroach func- power sovereign lodged tion of the in a coordinate government.” branch legislative intent that conclusion is
Our levy passage new was to a the Acts of Act upon parties a tax under tax previous different attempted not an the state and
beer laws by previous upon whole- levied of the taxes increase passage that was beer and its sale No. 19 to Amendment the Constitution inhibited Arkansas. do not We understand of the State seriously Assembly, appellants contend that the General distinctly power levy to new and have a does not previous from that statutes upon privilege of to the consumer of sale argument passage is that the their effect but beer, impose upon of 1939 was to Act 310 of the Acts whole- pre-existing in the rate of im- an increase salers agree upon posed cannot with them We to the them. as passage of 310 of the Acts of As 1939'. effect impose effect was to a new tax above stated party agent make and to wholesale dealers the different collecting the new tax state state. appearing the decree is affirmed. No error Baker, JJ., dissent. Mehaffy, Smith, C. J., J., concur. Smith, Holt, Griffin (concurring).- ap- Smith, C. J., Act No. 7, Griffin August permit proved 24,1933, is an manufac- and distribution of sale, wines and ture, beers, products. taxing provide “any The term “beer” was fermented liquor from malt or made substitute therefor, and alcoholic content more than 3.2 by weight.” liquor”
“Intoxicating declared mean vinous, spirits fermented or distilled with an alco- by weight. of 3.2 excess holic By levied pro- taxes were 4. Certain § it *5 taxes, that funds realized such vided were to be constitutional, used for the state’s educational, and char- departments, moneys and such itable institutions deposited to be treasury Beverage credit of “The created.” Fund, Tax legal- is to purpose of this act “The 10 is: Section and of beer the state and sale within ize the manufacture per in, 3.2 content excess light of an alcoholic wine regulate of manu- by weight, the business and to cent facturing prevеnt selling liquors il- as to such and having consumption manufacture licit by weight, of 3.2 cent in excess alcoholic purpose it is not the of which sale manufacture legalize.” this act to any permit author- “Before 13 directs that
Section any appli- be issued delivеred to ized this act shall applicant subscribe shall make and cant therefor, liquors any intoxicating to an oath allow that any including kind or act, character, this spirits light having beer or wine and distilled an alcoholic by weight, kept, content in 3.2 to be excess рremises in or stored, such secreted described in permit.” part, in
Section “It 19, is: shall unlawful any light brewer or distributor to manu- wines knowingly upon,his bring premises keep facture or any thereon or wine of an alcoholic content excess by weight, spirits of 3.2 distilled alcoholic content whatever.” creating arising will be noted the fund
from the sale of such fund is- beer, des- wines ignated “Beverage Tax Fund.” However, § 10, legalized the wines and beer the act are referred to as liquors,” “such being expressly alcoholic content lim- ited to сent. legislature no There can be doubt that the intended adopt, adopt, and did found in the act of definition Congress generally refered to as the Volstead Act, the
determination under the federal statute been that not in excess' of one-half of onе cent. intoxicating. alcohol volume was not approved legalized 108, March the sale liquors, being title “The Arkansas Alco- holic Control Act.” Between 1933 and 1935 national prohibition repealed, proposed and this state to aban-
590 policy “dry” fostered so-called had
don the many yeаrs. -6) (§ provided “Malt 1935 enactment and The cent, containing per beverages more of than 3.2
vinous cent, by weight per not more than and 5 alco- alcohol regulated weight provided and shall be taxed as hol beverages containing vinous not more and thаn for malt cent, weight provisions per alcohol under the 3.2 . . . 1933.” 7 act No. “liquor “malt” was defined
The word as brewed juices grain containing from the fermented and not cent, per by weight. 5 of alcohol more than taining Beer con- cent, per by weight more than 5 alсohol beverages containing malt all other not more and than 5 cent, by weight per of alcohol are not defined as malt excepted liquors, every provision from each of this act.” classify effect of The act 108 as malt cent, commodity рer more than 5 of alco- designate beverages” as “malt
hol, those drinks cent, having per alcoholic more an than 3.2 Act more than 5 No. and not cent. 7 had classified liquor having fermented an alcoholic content of “intoxicating liquor.” as an than mоre applied commodity a new term to the occupying 108 twilight between “3.2 zone and not more consequence beverages” cent.,” “malt purpose emerged sale and taxation, as distin- guished an from alcoholic content of moré than 3.2 cent.
Rеcognition light wines and beer, as given general enactment, the 1933 assembly 4 of is: 1939. Section act 173 “Because doubts and un- speedily' need to certainties resolved as between public, affected, industries courts and the with re- spect -apparently was, -tо what is, intention assembly heep separate general apart the tax- regulation ation, a/nd control the manufacture, sale, expressed and distribution wines a/nd beers, as liquors, expressed, in act No. alcoholic emergency declared No. supplied.] [Italics to exist.” *7 provi- except from its While act 108 undertook beverages containing than not more sions all malt cent, regulate beverages malt and to tax and alcohol, cent, of alcohol more than 3.2 cent, provisions of aсt No. more than under the yet every every classification, in sentence explanation every acts, in in the two was definition or non-intoxicating made a that in first instance clear entirely beverage legalized, by1 malt 108 an while commodity ex- different press Indеed, with. was dealt hav- malt fermented act 7, ing an an alcoholic content of more than intoxicating liquor, taoced commodity it is not the authorized to he sold. adopted
Amendment our No. 19 to Constitution prohibits in November, 1934. increase -property, pеrsonal privilege, taxes, rates excise, except by people, or in vote levied, then n an emergency, then a vote three-fourths assembly. general members elected to each house of the beverages non-intoxicating The tax on wаs an malt adopted, tax when the amendment was and there- except fore men- be increased in the manner cannot tioned.
Intoxicating beverages—those having alco- holic content of not more more than 3.2 per cent.—emerged legislаtive from the mill 1935 as product, commodity a new occu- and distinct pying liq- the field between the extremes non-intoxicating product, 'Being uors a new beers. legally it was made saleable this state Amend- after adopted, ment No. 19 was and therefore the taxes levied permits required by and the act 310 of 1939 not with- purview of the amendment. Mr. Justice Holt concurs the views herein expressed.