City of North Little Rock v. Pulaski County , 332 Ark. 578 ( 1998 )

Robert L. Brown, Justice.

Appellants City of North Litde Rock and the North Little Rock Airport Commission (joindy referred to in this opinion as North Little Rock) filed an amended appeal in circuit court from a decision of the Pulaski County Court that affirmed the assessment for ad valorem tax purposes of eleven parcels of real property located within the domain of the North Little Rock Municipal Airport. North Little Rock claimed that Act 438 of 1995 designated the eleven parcels as public property and, thus, the parcels should be exempt from taxation under Ark. Const, art. 16, § 5, and removed from the County tax rolls. North Little Rock also requested that the property tax assessments for the years 1992 through 1995 be declared null and void.

Appellees, Pulaski County and the County Assessor (County), answered and moved for a declaratory judgment on the grounds (1) that Act 438 of 1995 should not be given retroactive effect; and (2) that Act 438 violated Ark. Const, art. 16, § 6, which renders void any law exempting property from taxation other than as provided in the Arkansas Constitution.

The circuit court agreed with the County and entered an order declaring that the General Assembly had violated the separation-of-powers doctrine when it enacted Act 438 of 1995. See Ark. Const, art. 4, § 2. It did so, according to the court, by usurping the judicial fact-finding function and by declaring through legislation that airport property is acquired and held exclusively for public purposes. The circuit court further determined that because Act 438 established that certain airport property was per se exempt as being used exclusively for public purposes under Ark. Const, art. 16, § 5(b), this violated the proscription against laws exempting property from taxation other than as provided in the Arkansas Constitution. See Ark. Const, art. 16, § 6. The matter then went to hearing before the court on the issues of whether the eleven parcels were exempt after this court’s opinion in City of Little Rock v. McIntosh, 319 Ark. 423, 892 S.W.2d 462 (1995), and whether the County’s revaluation efforts complied with Ark. Code Ann. § 26-26-1011 (Repl. 1997), which requires assessments to occur between the first Monday in January and July 1 of a given year.

At the hearing before the circuit court, Judy Wheeler, manager of the North Little Rock Municipal Airport, testified that the airport is a general aviation airport that owns land and provides service to single and twin-engine planes but not for commercial air traffic. She testified that the airport enters into leases with individuals and private entities to use its land to house hangars, fuel stations, repair stations, and the like, with the lessees being responsible for the construction of their own improvements. She explained that in the past the leases were silent on who was required to pay county ad valorem taxes on real property because there had never before been a county assessment. However, the leases were changed in 1992 to require that the lessee pay those taxes.

Ms. Wheeler testified that the North Little Rock Airport received a “Notice of Property Revaluation” dated July 11, 1993, that purported to notify North Little Rock of the assessment of the entire amount of airport property, including runways, taxiways, and common areas. She explained that North Little Rock then went before the County Equalization Board to complain about the entire property’s being assessed. On September 9, 1993, the Equalization Board determined that only the eleven parcels which were leased to private entities should be assessed.

The crux of Ms. Wheeler’s testimony on direct examination was that hangars and other improvements by lessees were an integral part of the operation and maintenance of a municipal airport and that North Little Rock could ill afford to construct the improvements itself. Furthermore, FAA regulations did not require North Little Rock to construct hangars and terminal facilities. Rather, the FAA only required that suitable space and reasonable prices be made available for those who wished to do so. On cross-examination, Ms. Wheeler admitted that although the “Notice of Property Revaluation” reflected the date July 11, 1993, she did not know when the assessment of ad valorem taxes actually occurred.

Following the hearing, the circuit court entered its order, finding the following: (1) any issues regarding 1992 ad valorem taxes were moot; (2) taxes for the year 1993 were assessed in compliance with § 26-26-1011; and (3) the eleven parcels were not exempt under Ark. Const. art. 16, § 5, and City of Little Rock v. McIntosh, supra.

North Little Rock now appeals from both orders of the circuit court and urges, first, that the circuit court erred in declaring Act 438 unconstitutional. We disagree. In reviewing the constitutionality of legislative acts, we start with a presumption of constitutional validity. Board of Trustees v. City of Little Rock, 295 Ark. 585, 589, 750 S.W.2d 950, 952 (1988). Statutes will not be struck down unless they conflict with the constitution “clearly and unmistakably.” Id., citing Board of Trustees of Municipal Judges and Clerks Fund, City of Little Rock v. Beard, 273 Ark. 423, 620 S.W.2d 295 (1981); Buzbee v. Hutton, 186 Ark. 134, 52 S.W.2d 647 (1932).

The Arkansas Constitution specifically exempts from ad valorem taxes “public property used exclusively for public purposes.” Ark. Const. art. 16, § 5(b). In the past, we have declined to give a judicial definition to the phrase “public purpose” because its meaning is not exact, nor is it prone to a static definition. Holiday Is. Suburban Improvement Dist. #1 v. Williams, 295 Ark. 442, 749 S.W.2d 314 (1988). See Murphy v. Epes, 283 Ark. 517, 678 S.W.2d 352 (1984). Instead, we look to legislative language for such pronouncements. See Murphy v. Epes, supra; Kerr v. East Central Arkansas Housing Authority, 208 Ark. 625, 187 S.W.2d 189 (1945). The Act must prevail unless there is something in the Arkansas Constitution which restrains the legislature from saying that a designated course of conduct or a policy is for the public welfare, or unless the thing authorized is so demonstrably wrong that reasonable people would not believe that this was the legislative intent. Murphy, 283 Ark. at 525, 678 S.W.2d at 357. We reverse a legislative public-purpose declaration only if the legislature acted arbitrarily, unreasonably, or capriciously. Id. at 525-26. 678 S.W.2d at 357.

In City of Little Rock v. McIntosh, supra, this court held that certain tracts of property at the Little Rock Municipal Airport leased to private entities were not exempt from ad valorem taxation under Ark. Const. art. 16, § 5. Our holding was based on the fact that the City of Little Rock had failed to prove that the tracts leased to private businesses, which were conceded to be “public land,” were being used “exclusively” for public purposes. In doing so, we focused on the actual use of the land and whether that use was solely for public purposes. The private businesses involved in McIntosh included four car rental companies, one aircraft modification company, two aircraft service companies, and three fixed-based operators.

Eleven days after the McIntosh decision, the General Assembly passed Act 438 of 1995, with an emergency clause. The Act provided in pertinent part:

(a) The ownership, operation, and management of municipal airports . . . and their related properties and facilities, including without Hmitation runways, hangars, terminal facilities, and suitable areas or space which are made available to those who are willing and otherwise qualified to offer transportation services to the public or support services to aircraft operators, all as may be necessary or desirable for the servicing of aircraft in commercial or general aviation or for the comfort and accommodation of air travelers traveling in commercial or general aviation, are vital to the economic welfare of the state of Arkansas and its people and such airports and their related properties and facilities are declared and confirmed to be used exclusively for public purposes.

(b) All airport property and related properties and facilities owned by a municipality, county, or other public agency for the purposes enumerated in this section are declared to be acquired and used exclusively for public and governmental purposes and as a matter of public necessity and shall be exempt from ad valorem taxation to the same extent as other property used exclusively for public purposes.

1995 Ark. Acts 438, now codified at Ark. Code Ann. § 14-356-102 (Supp. 1997).

In its appeal, North Little Rock agrees with the circuit court that the General Assembly violated the doctrine of separation of powers by declaring various uses involved in the operation of an airport to be exempt from ad valorem taxation. Despite that acknowledgment, North Little Rock contends that the General Assembly did have the authority to declare what property falls into the category of property used for public purposes and that the circuit court erred in not recognizing that fact. Thus, North Little Rock urges this court to cut and paste and salvage that portion of subsection (a) of Act 438 which declares that certain activities are used for public purposes. In doing so, North Little Rock also urges that we strike the word “exclusively” in subsection (a).

In determining whether the invalidity of part of an act is fatal to the entire legislation, this court looks to (1) whether a single purpose is meant to be accomplished by the act, and (2) whether the sections of the act are interrelated and dependent upon each other. U.S. Term Limits, Inc. v. Hill, 316 Ark. 251, 872 S.W.2d 349 (1994); Wenderoth v. City of Ft. Smith, 251 Ark. 342, 472 S.W.2d 74 (1971); Faubus v. Kinney, 239 Ark. 443, 389 S.W.2d 887 (1965).

The purpose of Act 438 can be garnered from its title:

AN ACT to Amend Title 14, Subtitle 22, Chapter 356 of the Arkansas Code for the Purpose of Declaring That Airports Owned by Municipalities, Counties, or Other Public Agencies are Used Exclusively for Public Purposes and Therefore Exempt From Ad Valorem Taxation; Declaring an Emergency; and for Other Purposes.

1995 Ark. Acts 438. This theme of tax exemption is repeated in subsection (b) and the Act’s Emergency Clause, and the test for exemption - — ■ exclusively used for public purposes — is repeated in subsection (a) as well. The clear purpose of the Act is to undertake a function which is reserved to the judiciary, that is, the declaration of property exempt from ad valorem taxes because of its exclusive use for public purposes.

Furthermore, it is obvious that the provisions of the act, only two in number, and both of which contain language conceded to be infirm by North Litde Rock, are dependent upon each other and interrelated and evince the General Assembly’s intent to pass the act as a whole or not at all. U.S. Term Limits, Inc. v. Hill, supra; Wenderoth v. City of Fort Smith, supra. Although a severability clause is included in Act 438, that factor alone is not determinative. U.S. Term Limits, Inc. v. Hill, supra. Under the circumstances, we are loath to strike subsection (b) of Act 438 as unconstitutional and strike the word “exclusively” in subsection (a), when that same word is used in the Act’s title. Were we to do so, it would smack of legislative drafting on our part.

In short, we draw a clear distinction between the General Assembly’s declaration of what is a public purpose on the one hand, which is entirely legitimate, and a per se determination by the General Assembly that certain private property is actually used exclusively for public purposes, and thus exempt from tax, on the other. The latter, as the circuit court correctly observed, is a judicial function performed only after appropriate fact-finding by the trial court. For the foregoing reasons, we conclude that Act 438 must be struck in its entirety.

The dissent emphasizes our holding in Hogue v. The Housing Authority of North Little Rock, 201 Ark. 263, 144 S.W.2d 49 (1940), where we held the Housing Authorities Act (Act 298 of 1937) to be constitutional. In doing so, we discussed in Hogue whether property acquired by the housing authorities would be exclusively used for public purposes pursuant to Article 16, § 5, of the Arkansas Constitution. We concluded that the purpose of Act 298 was slum clearance, which is a public purpose, and that the property acquired by the housing authorities was exclusively used for public purposes and, thus, exempt from ad valorem taxes. Absent in our analysis in Hogue was any discussion of separation of powers or any consideration of whether the General Assembly had overstepped its bounds in declaring a tax exemption. Accordingly, because the separation-of-powers issue was not reached, or even considered in Hogue, we do not deem it to be governing authority for the case at hand.

For its second point, North Little Rock contends that the 1993 tax was illegal because it was not assessed before July 1, 1993, as required by Ark. Code Ann. § 26-26-1101 (Repl. 1992). Because North Little Rock received a “Notice of Property Revaluation” dated July 11, 1993, it contends that the assessment could not have been timely. As further evidence, North Little Rock claims that the initial assessment was improper because it covered the entire airport and was later reassessed in either August or September 1993 by the County Board of Equalization with respect to the eleven parcels at issue. North Little Rock also shows us that the July 11, 1993 notice included an appraised land value of $0, which would not have resulted in any tax liability.

The County responds that North Little Rock failed to satisfy its burden of proving when the appraisal and assessment occurred because notice of assessment is not proof of when the assessment actually occurred. The County is correct. North Little Rock appears to believe that it can make this allegation of an untimely assessment without following up with proof. Surely, the date of a notice of revaluation is not conclusive proof of when the assessment actually took place. Because North Little Rock has not met its burden in this regard, there is no basis for reversal.

Affirmed.

Corbin and Thornton, JJ., concur in part and dissent in part.