Ragland v. Arkansas Writers' Project, Inc.

698 S.W.2d 802 (1985) 287 Ark. 155

Charles D. RAGLAND, Commissioner of Revenues, Appellant,
v.
ARKANSAS WRITERS' PROJECT, INC., Appellee.

No. 85-115.

Supreme Court of Arkansas.

November 18, 1985.

SUPPLEMENTARY OPINION ON REHEARING

GEORGE ROSE SMITH, Justice, on rehearing.

In our original opinion the decree was reversed on a question of statutory construction, 287 Ark. 155, 697 S.W.2d 94 (1985). In its petition for rehearing the appellee does not reargue that issue, but it does insist that we should have discussed the constitutionality of the imposition of a sales tax on the sales of the Arkansas Times Magazine. That issue was argued by the appellee on its cross appeal, seeking attorney's fees, but the argument was incorporated by reference in the response to the direct appeal and should have been discussed.

The constitutional contention is twofold. It is first said that to exempt certain sports publications from the sales tax but to tax the sales of the Times is a denial of equal protection. We need not explore this point, for it would avail the appellee nothing if it wins its argument. The legislature has levied a valid sales tax that is applicable to the Times. It is immaterial that an exemption in favor of some other taxpayer may be invalid, as discriminatory. If so, it is the exemption that would fall, not the tax against the Times. The courts cannot create a tax exemption; that must be done by the legislature. It has not exempted the Times.

It is also argued that a tax on the sales of the Times is an infringement upon its freedom of speech and of the press. Two cases are primarily relied upon, but neither addressed the validity of a tax comparable to an ordinary sales tax. Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575, 103 S. Ct. 1365, 75 L. Ed. 2d 295 (1983); Grosjean v. American Press Co., 297 U.S. 233, 56 S. Ct. 444, 80 L. Ed. 660 (1936). In fact, Grosjean supplied the answer to the appellee's contention. The Court said that the owners of newspapers are not immune from any of the "ordinary forms of taxation" for support of the government. That statement applies with even greater force to the Times, a monthly magazine publishing matters of general interest. Certainly the Times has no greater claim to tax exemptions than has, say, a publisher of books. Both are exercising First Amendment rights, but it would not be seriously argued that they are exempt from income taxes, property taxes, and other exactions levied to pay for the cost of government. No authority has been cited applying a different rule to the sales tax; we are confident that no such authority exists.

We do not reach the cross appeal, for the Times is not entitled to an attorney's fee when it loses its case.

The petition for rehearing is denied.

PURTLE, J., not participating.