Summary
In Wright, the City of Hot Springs was ordered by the trial court to refund taxes collected in much the same manner as proposed above.
Summary of this case from Opinion No. 2004-179Opinion
David Love, Hot Springs, for appellants.
Q. Byrum Hurst, Jr., Hot Springs, for appellees.
[298 Ark. 510-A] OPINION ON DENIAL OF REHEARING
NEWBERN, Justice.
The appellants seek rehearing of our decision rendered May 1, 1989, 298 Ark. 508, 769 S.W.2d 16, asserting that the language in [298 Ark. 510-B] our opinion misinterprets the provisions of amend. 59 when read as a whole. They also suggest that the language in our decision inadvertently conflicts with our opinion in Clark v. Union Pacific. R.R., 294 Ark. 586, 745 S.W.2d 600 (1988). The Assessment Coordination Division of the Public Service Commission joined as amicus curiae supporting the appellants in these assertions. The petition offers, in great detail, what they submit to be the proper interpretation "overall" of the provisions of amend. 59. The supplemental dissenting opinion on denial of rehearing agrees that our opinion in this case reinstates the same error we corrected by the substituted opinion in the Clark case.
The dissent quotes this sentence from the body of our opinion to support the conclusion that the error corrected by the substituted opinion in the Clark case has been reinstated: "To allow the city then to return to the old rate (clearly in excess of 10% over the base year) on the newly increased appraised value of the property would violate amendment 59, even though it might have seemed permitted, literally, by amendment 31."
While that sentence, read in isolation from the remainder of the opinion might be subject to that interpretation, the opinion as a whole does not support such a conclusion. The language we corrected in the Clark case had suggested that real estate taxes could not be increased more than ten percent after the base year. That conclusion is not supported by the majority decision in this case. As we stated in the paragraph above the quoted sentence, the purpose of the amendment is to equalize the tax rates on real and personal property and this could be accomplished either by holding personal property taxes static and raising real property taxes until equalization occurred or by the rollback procedure. There is no suggestion that the same goal could not be achieved by both rolling back personal property rates and raising real property rates to close the gap.
That which is prohibited by amend. 59, by the court's opinion in this case, and by the court's opinion in the Clark case is any increase in the millage rate on the newly appraised value of personal property prior to equalization. To avoid the possibility of future misinterpretation, the language of the sentence quoted above is modified to read as follows: To allow the city then to [298 Ark. 510-C] return to the old rate (clearly in excess of 10% over the base year) on the newly increased appraised value of personal property would violate amend. 59, even though it might seem permitted, literally, by amend. 31.
The dissenting opinion also concludes, as did the dissenting opinion accompanying our decision in this case, that the record was insufficient to support the chancellor's finding that amend. 59 had not been followed. The record was sufficient to show, and none of the facts were even contested, that the Hot Springs city board raised the millage from .4 to 1 mill after the rollback. If it is the suggestion of the dissenting opinion that the record does not demonstrate that equalization had not occurred at the time the increase was ordered, such a suggestion is unacceptable. If equalization had been achieved, it was the duty of the appellants to present a record demonstrating it. Surely the appellants would have argued equalization had occurred were there any possibility that it had. No such argument has ever been made.
Another good reason for denying rehearing is that the appellants failed to make the arguments presented in their rehearing petition suggesting the possible interpretation of amend. 59 at either the trial level or in the original briefs arguing this case before this court. We have repeatedly held that we will not address arguments which the appellant did not raise in the proceedings below. Reed v. Alcoholic Beverage Control Div., 295 Ark. 9, 746 S.W.2d 368 (1988); Arkansas Cemetery Board v. Memorial Properties, 272 Ark. 172, 616 S.W.2d 713 (1981).
Rehearing denied.
HICKMAN, HAYS and GLAZE, JJ., would grant this rehearing.
GLAZE, Justice, dissenting.
Appellants petition for rehearing and request we reverse our decision rendered on May 1, 1989. The court badly bungled this case, and we compound our error by failing to grant the appellants' petition. I quickly add that I believe the respective parties' failure to present an adequate record in this case did much to cause the erroneous decision reached by this court. See Wright v. Story, 298 Ark. 508, 510, [298 Ark. 510-D] 769 S.W.2d 16, 17 (1989) (Glaze, J., dissenting).
The majority court's opinion says, "To allow the city then to return to the old rate (clearly in excess of 10% over the base year ) on the newly increased appraised value of the property would violate amendment 59, even though it might have seemed permitted, literally, by amendment 31." (Emphasis added.) This language reflects the same blunder we made (and corrected) in Clark v. Union Pac. R.R., 294 Ark. 586, 745 S.W.2d 600 (1988). In Clark, we originally opined that real estate taxes could not be increased more than ten percent after the base year--the same principle noted above and followed by the majority in this cause; however, in response to a rehearing petition, we promptly corrected our error in Clark by deleting such limiting language. Thus, by the majority court's opinion in this case, the court reinstates the same error we corrected in Clark.
After reviewing their petition and contemporaneous brief, I glean the appellants have a better grasp of the constitutional issues in this case and now realize how poorly developed this cause was when it was tried below. Without an adequate record before it, this court chose to shoot in the dark, hoping to resolve the serious constitutional issues presented in this appeal. In doing so, it not only bagged Justice Hickman's "Godzilla," Clark, 294 Ark. at 593, 745 S.W.2d at 604 (Hickman, J., dissenting), it also created a monster of its own. We could alleviate this concern (which will continue to loom in the future) by granting the appellants' rehearing petition and reversing and dismissing this case without prejudice.
In conclusion, I would note that, in responding to my dissent, the majority attempts to clarify its earlier opinion while, at the same time, saying the opinion is correct. Quite candidly, I am uncertain as to how the court's clarification avoids the conflict I, the appellants and the Assessment Coordination Division perceive exists in this case and our prior decision in Clark. From my reading of the majority's original and supplemental opinions, I am further convinced this case was not adequately developed or argued below. If we reversed this case, perhaps the parties would eventually return it to us with a more understandable format and record. As it now stands, the majority's decision only adds to the confusion that gradually envelops Amendment 59.
HICKMAN and HAYS join in this dissent.