Judges: STEVE CLARK, Attorney General
Filed Date: 8/31/1988
Status: Precedential
Modified Date: 7/5/2016
The Honorable Ted E. Mullenix State Representative Route 1, Box 271-J Pearcy, Arkansas 71964
Dear Representative Mullenix:
This is in response to your request for an opinion concerning an initiative petition being circulated in the City of Hot Springs. Specifically, you have asked whether, if sufficient signatures are gathered on the petitions, the people of the City of Hot Springs could enact an ordinance levying a two dollar per day "public safety tax" on hotel and motel accommodations which would accrue to a fund to pay hazardous duty compensation to policemen and firefighters. You have also asked whether an issue of this sort may be raised by petition, and whether the petition being circulated conforms to Arkansas law.
For the following reasons, it is my opinion that the answer to your first question is "no", and the answer to your second question is "yes".
The petition proposes an ordinance to levy a "public safety tax." Such a tax is authorized by no specific legislative action in Arkansas. It has consistently been held that:
. . . municipal corporations, or quasi corporations, such as cities and counties, cannot disregard the provisions of the acts of the legislature for the collection of revenue, because they are but its creatures, and have no sovereignty, have no power whatever to collect a single dollar of tax for any purpose whatever, unless it is conferred upon them by the legislature — their taxing powers are all derived from that source. . . .
English v. Oliver,
Taxes imposed by political subdivisions without statutory authority are void. Baldwin v. City of Blytheville,
Although several Arkansas statutory provisions provide for the taxing of hotel and motel accommodations, (See, A.C.A.
(a) In addition to all other authority of local governments to levy taxes provided by law, any county, acting through its quorum court, or any municipality, acting through its governing body, may levy any tax not otherwise prohibited by law.
(f) Nothing in this subchapter shall terminate, repeal, or otherwise affect a gross receipts tax on the receipts derived from hotels, motels, and restaurants located within any city levied under the provisions of
26-75-601 et seq.
The provision quoted above does not give the taxation power to the people by initiative, only to the city's governing body. Additionally, subsection (f) above, and the various statutory provisions cited, supra, authorizing gross receipts taxes on hotels, arguably have "covered the entire field" thus preempting local legislation on the subject. Allen, supra. It is therefore my opinion that the tax contemplated by the petition is unauthorized by statute and would therefore be void if enacted. The case of City of North Little v. Graham,
As to the question of whether an issue of this nature can be raised by initiative petition, Amendment
Finally, we express no opinion upon the sufficiency of the petition you have enclosed as the duty to determine the sufficiency of all local petitions lies, in the first instance with the City Clerk. Arkansas Constitution, Amendment
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elana L. Cunningham.