Opinion No. ( 1989 )

The Honorable Bobby Tullis State Representative Box 277 Mineral Springs, AR 71851

Dear Representative Tullis:

This is in response to your request for an opinion concerning the increase of excise taxes by the General Assembly under Art. 5, 38 of the Arkansas Constitution. You have asked two specific questions in this regard which are as follows:

1) May the Arkansas General Assembly pass an act by a majority vote of each house of the General Assembly increasing the rates for excise taxes which were in existence at the time of adoption of Amendment 19 to the Arkansas Constitution [now codified as Art. 5, 38] and provide in that act that the question of the increase shall be placed on the ballot at an election and be subject to the approval of a majority vote of the qualified electors voting at the election?

2) If the answer to Question No. 1 is "no", would your answer be different if the act was passed by a three-fourths (3/4) vote of the members elected to each house of the General Assembly?

Amendment 19 to the Arkansas Constitution is now codified at Art. 5, 38. That section provides:

2. None of the rates for property, excise, privilege, or personal taxes, now levied shall be increased by the General Assembly except after the approval of the qualified electors voting thereon at an election, or in case of emergency, by the votes of three-fourths of the members elected to each House of the General Assembly.

It is my opinion that there is nothing in this provision which would preclude the General Assembly from passing an act by majority vote to provide for an election on the question of the excise tax increase, and in that same act provide that if the result of the election is positive, the tax shall be increased. This conclusion is reached solely by construction of the constitutional provision, as precise case law on point is unavailable.

It is established law that the legislature can make a law and prescribe the condition upon which it may become operative. This condition is often approval of the electors. Miller v. Witcher,160 Ark. 479, 254 S.W. 1063 (1923), Summers v. Road Improvement Dist. No. 16, 160 Ark. 371, 254 S.W. 696 (1923). The more specific question here is whether, in this instance, the act with its conditional provision would violate Art. 5, 38. It is my opinion that it would not. That provision prohibits the legislature from increasing excise taxes without the approval of the electors, unless there is an "emergency" and a three-fourths vote. If an act such as the one you contemplate were passed, no taxes would actually be increased, (i.e., levied), until after a favorable vote of the electors.

The act would thus comply with Art. 5, 38 of the Arkansas Constitution.

Because, in my opinion, the answer to your first question is yes, resolution of your second question is unnecessary.

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elana L. Cunningham.