| Ark. | Jul 15, 1840
delivered the opinion of the Court:
The plaintiff expressly waives all objections to such discrepancies and irregularities, as arc shown by the return of the County Court, and submits the single question, whether the keeping of a stud horse is a privilege embraced by the Constitution which may be taxed as such.
The attorney representing the county is also understood to rest the case solely upon the validity of the act of the Legislature, approved November 7th, 1836, in pursuance of a provision contained in the third section of which the tax in question is imposed. The section enacts “that in order to raise a revenue for county purposes in addition to-'the sums arising from tavern, grocery and ferry licenses, the county courts of the respective counties in this State shall have power to levy a tax of not exceeding fifty cents of each and every free male inhabitant, between the age of one and fifty years, residing in their respective counties; and for the privilege of keeping each stallion or jack, a tax equal to the amount for which every such stud horse, or jack, shall stand for the season; and a tax on the value of all property made taxable by the first section of this act not exceeding one-fourth of one per cent, on the nett value thereof; which taxes shall be levied and collected in the same manner as State taxes arc, and paid over to the County Treasurers of the respective counties.” Acts 1836, p. 189. The first section of this act subjects “ all horses, mules, jack, jennies, and neat cattle of whatsoever kind, or description, above three years old,” to taxation; and therefore, according to the express letter of the section above quoted, the county court may levy on stud horses, a tax ad valorem, in addition to the price for which he stands for the season; though in the present instance, such charge does not appear to have been made. Yet if the keeping of a stud horse may be taxed as a privilege, the act in question warrants it. But how is the keeping of a stallion metamorphosed into a privilege ? It certainly is not a right derived from, or enjoyed by virtue of, any grant from the government; nor is it enjoyed by part, and denied to others of the community. It is a right which, under our political organization, may be enjoyed as perfectly without, as with the aid of a grant from the Legislature. It is strictly and emphatically a common right, which1 cannot be denied, though it may be so restricted and regulated by law, as' to prevent injury to others, as well as improper, obscene, or offensive exhibitions of such beasts, but such laws can only be enforced by the infliction of penalties and punishments on those who violate such legal restrictions or regulations. Besides which, stallions are unquestionably property, within any legal definition of the term, and as such, every person in this State has the absolute right of acquiring and keeping .them. Const. Ark., Art. II, Sec. I. And this is a right of which no one can be deprived by any act of the Legislature, and therefore, as the right is absolute, and enjoyed by all, and none can be deprived of its benefits, it cannot by possibility be created a privilege to be enjoyed by a portion of the community only. This principle is alsoasserted and , enforced in, the case of Stevens and Woods vs. the State, ante p. 291. We are therefore of the opinion, that so much of the 3rd section of the •Statute, approved Nov. 7, 1836, as purports to authorize a tax to be •levied “for the privilege of keeping each stallion,” is in conflict with, and repugnant to the Constitution of this State, and void, and the tax with which the plaintiff is charged, in pursuance of said provision, on the tax book of the county of Pulaski, for the year A. D. 1838, is wholly unauthorized by law,- and the judgment of the County Court directing it to be levied is illegal, and ought to be, and the same is hereby quashed, and set aside with costs, and the collection thereof perpetually superseded.
But to prevent any misunderstanding, or misapplication of the principles asserted and decided in this case, as well as the case of Stevens and Woods, above cited, it may not be improper, before we dismiss this subject, to remark, that the court has not intended to decide, or in fact decided, whether the taxes levied for county purposes, must be 'ad valorem, and equal and uniform throughout the State, or may be otherwise in the discretion of those to whom the power of prescribing such taxes is confided, or what property, or things, may be constitutionally taxed. These are, in the opinion of this court, important questions, not necessarily involved in cither case, in relation to which the court has not designed either to express, or intimate any opinion.