{ "id": 1355715, "name": "State v. Berry", "name_abbreviation": "State v. Berry", "decision_date": "1923-04-02", "docket_number": "", "first_page": "84", "last_page": "91", "citations": [ { "type": "official", "cite": "158 Ark. 84" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "141 Ark. 522", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "93 Ark. 620", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "142 Ark. 452", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "140 Ark. 398", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1594410 ], "opinion_index": -1, "case_paths": [ "/ark/140/0398-01" ] }, { "cite": "139 Ark. 153", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1596371 ], "opinion_index": -1, "case_paths": [ "/ark/139/0153-01" ] }, { "cite": "70 Ark. 549", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1509476 ], "opinion_index": -1, "case_paths": [ "/ark/70/0549-01" ] }, { "cite": "140 Ark. 320", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1594427 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ark/140/0320-01" ] }, { "cite": "152 Ark. 573", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1364140 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ark/152/0573-01" ] }, { "cite": "122 Ark. 184", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1558174 ], "opinion_index": 0, "case_paths": [ "/ark/122/0184-01" ] }, { "cite": "1401 Ark. 320", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "70 Ark. 549", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1509476 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/70/0549-01" ] }, { "cite": "152 Ark. 573", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1364140 ], "opinion_index": 0, "case_paths": [ "/ark/152/0573-01" ] } ], "analysis": { "cardinality": 543, "char_count": 13789, "ocr_confidence": 0.486, "pagerank": { "raw": 8.992026982513419e-08, "percentile": 0.5029248809486576 }, "sha256": "a0e08b75dcb21c702403852cb86fc48dcd5f58bb91fe90fdd5d2dc90aac5e919", "simhash": "1:5b73be007c9e4344", "word_count": 2322 }, "last_updated": "2023-07-14T19:02:11.466089+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Smith, J., dissenting." ], "parties": [ "State v. Berry." ], "opinions": [ { "text": "Wood, J.\nThis cause was, by consent of parties, tried by the circuit court upon the following agreed statement of facts:\n\u201cThe defendant, A. M. Berry, was arrested on an information filed in the justice of the peace court of Spadra Township, in Johnson County, Arkansas, on the 15th day of November, 1922, tried and convicted of owning and operating a car in Johnson County, Arkansas, without having paid a county license as provided by act No. 359 of the Special Act of the General Assembly passed and approved on the 24th day of March, 1921.\n\u201cThe defendant, A. M. Berry, is a resident and citizen of Johnson County, Arkansas, and on the-day of October, 1922, purchased one automobile and operated the- same on the roads of said county, and within Road Improvement Districts Nos. 2, 4, 5 and 6, and refused to pay the county license as provided in the act above stated. At a special session of the General Assembly of the State of Arkansas in 1920, and by special acts, Johnson County was divided into various road improvement districts; that the entire county was embraced in one or more of said districts, with the exception of a few hundred acres, and that much of said county was within two or more road improvement districts. The defendant, A. M. Berry, lives within the interlapping territory of Road Improvement Districts Nos. 2, 4, 5 and 6.\n\u201cIt is agreed that all persons owning or operating-automobiles in Johnson County, Arkansas, and within said road improvement districts, are required to assess and pay a tax on such automobile for State and county purposes. It is further agreed that all persons owning and operating- automobiles in said eo\u00fanty and State, and within said road improvement districts, are required to pay the automobile tax as required by the general acts of the State of Arkansas.\u201d\nThe court found the appellee not guilty, and the State appeals.\nThe question for our decision is whether or not act 359 is a valid act.\nSec. 1 of the act provides: \u201cAll persons, firms, and corporation are hereby required to pay a tax for the privilege of keeping, within Johnson County, and using-on any of the roads being, or to be, constructed, improved, and repaired, and maintained by said county, or district therein, any motor-drawn vehicle, or any horse-, mule- or ox-drawn vehicle, including- cart, buggy, carriag-e, surrey, hack, delivery wagon, log wagon, automobile, auto truck, motor tractor, motorcycle, motor bicycle, and motor tricycle, but such tax shall be apportioned and used exclusively in constructing, repairing, improving and maintaining the roads being constructed and to be constructed, improved, repaired and maintained by any such district; provided, that firms or corporations liable for such tax,\u2019and who do not live within any such improvement district, shall pay into the general road fund of such county, to be used for county road purposes; provided, further, that money collected shall be apportioned by the chairmen of the board of commissioners of the various road improvement districts in said county, quarterly, on the first Monday of each January, April, July and October, in the following manner: That derived from persons, firms, or corporations, residmg in one road improvement district of such county, to the credit of that district; that derived from persons living or residing in more than one district among such districts, in proportion to the cost of construction of such roads, and that derived from persons, firms or corporations residing in no road improvement district to the credit of the general road fund of said county.\u201d\nSection 2 of the act makes it unlawful to keep and use on the roads of Johnson County any of the vehicles named in the first section of the act without having oh-' tained a license therefor.\nSection 3 prescribes the penalty for violation of the act.\nSection 4 prescribes the time for the payment of the license fee.\nSection 5 prescribes the amount of such license fees or privilege tax on each vehicle.\nOther sections provide for the method of collecting the tax.\nSection 10 provides that all license fees collected \u201cshall be by the collector of Johnson County paid over every thirty days to the county treasurer of such county, or to such officer or depository of the district as the commissioners shall designate.\u201d\nSection 11 provides that, if any of the sections of the act be unconstitutional, it shall not affect the remainder of the act, and that the act, in so far as it is not in conflict with the Constitution, shall be upheld. -\nSection 12 provides that \u201cthe tax herein provided shall be in lieu of all other taxes imposed upon the articles taxed.\u201d\nIt was in the power of the Legislature to enact the statute imposing the privilege tax designated therein, according to the doctrine of this court in Fort Smith v. Scruggs, 70 Ark. 549, and reiterated in Pine Bluff Transportation Co. v. Nichol, 1401 Ark. 320. In these cases we held that \u201cthe license fee imposed is, then, not a tax upon property, but is in the nature of a toll for the use of the improved streets. In other words, it is the privilege of using vehicles on the improved streets, and not the vehicles itself, that is taxed. We are therefore of the opinion that the statute is not subject to the criticism that it authorizes double taxation.\u201d We also held that \u201cthe subject-matter of the statute comes within the general law-making power of the Legislature, and that our Constitution specially provides that the Legislature shall have power to tax privileges in such manner as it may deem proper.\u201d\nIn the case of Fort Smith v. Scruggs, supra, the power to impose the tax was delegated to a municipality, and in the case of Pine Bluff Transportation Co. v. Nichol, supra, the power was delegated to a county. In these cases it is held that the Legislature may delegate such power, under article 2, \u00a7 23 of the Constitution of-1874, which provides as follows: \u201cThe General Assembly may delegate the taxing power, with the necessary restrictions, to the State\u2019s subordinate political and municipal corporations, to the extent of providing for their existence, maintenance and wellbeing.\u201d\nWhile the act under review does not delegate the power to Johnson County to lay the privilege tax, but imposes directly the tax for the privilege of keeping and using- the vehicles therein named within Johnson County and for the privilege of using such vehicles on the roads improved, repaired and maintained by the county, or improvement districts therein, still, if the remaining portions of the first section and the other sections of the act were consistent with this first portion, then the act might be construed as a delegation of power to the county to lay a privilege tax for the use of the roads in Johnson County, within the doctrine of the above cases. But the remaining portions of the first section and other sections \u25a0cannot he harmonized with this view. After laying the tax, as above indicated in the first section, it is provided, \u201chut such tax shall be apportioned and used exclusively in the construction, repairing, improving and maintaining the roads being constructed and to be constructed, improved, repaired and maintained by any such district.\u201d And further, \u201cthat money collected shall be apportioned by the chairmen of the boards of commissioners of the various road improvement districts in said county quarterly on the first Monday of each January, April, July, and October, in the following manner,\u201d etc.\nThe tenth section provides, \u201cthat all the taxes collected shall be paid over to the county treasurer, or to such officer or depository of the district as the commissioners shall designate.\u201d\nIt will be observed that the disposition of the tax, after the same has been collected, except that portion which is paid by those who do not live in any improvement district, is put into the hands of the commissioners of road improvement districts of Johnson County. The entire tax collected under the act, if the commissioners of the district so direct, may be deposited with an officer or depository other than that of the county treasurer. It is impossible to construe these inharmonious provisions so as to uphold this act as a delegation of power to Johnson County to lay a privilege tax on the vehicles therein .named, under the doctrine of Pine Bluff Transportation Co. v. Nichol, supra. The jurisdiction of the county court, except over such funds as are paid by those who do not live within any improvement district, is entirely taken away. For only the funds derived from those who do not reside in any improvement district are paid to the credit of the general road fund of the county, and even this fund, as we have seen, under \u00a7 10, may be diverted by the commissioners of improvement districts from the general revenue fund of the county. Such provisions rob the county court of its jurisdiction, and are in direct conflict with article 7, $ 28, of the Constitution. This section vests the county court with exclusive original jurisdiction in all matters relating to county taxes, roads, bridges, etc.\nIn El Dorado v. Union County, 122 Ark. 184, we held that the Legislature has no power to vest any tribunal, other than the county court, with jurisdiction over the expenditure of the funds raised under the general revenue clause of the Constitution, and that an optional road tax raised as a part of general revenue funds must be expended under the supervision of the county court. That doctrine is applicable here. If the privilege tax authorized by this act is a part of the general revenue of such county for road purposes, then it must be expended under the supervision of the county court.\nTaking all of the provisions of this act together, it would be more appropriately classified as a delegation of power to improvement districts to lay a privilege tax than a delegation of power to the county. But it cannot be upheld as a delegation of power to improvement districts, for they do not constitute subordinate political agencies of the State for the purpose of taxation under the Constitution, and are therefore not authorized to lay a tax of any kind. As was said in the recent case of Whaley v. Northern Road Imp. Dist., 152 Ark. 573: \u201cA local improvement district is not a subordinate political agency of the State, but is merely a governmental agency created for the specific purpose of constructing or maintaining a local improvement. General powers of taxation cannot be delegated to such an agency.\u201d\nThe provisions of this act concerning the county and improvement districts are so jumbled that it appears to us to be more of an effort to lay a privilege tax f