The income tax designated in the act is separable from other taxes such as per capita, property, occupation, franchise and other privilege taxes. All these other types or methods of taxation have been sustained by our courts, notwithstanding each of them touches upon property rights at some point, and in the payment constitutes a burden directly or indirectly upon the property of the taxpayer. The fact that income may have its source in rents from real estate, interest from money loaned, profits from business, or wages from employment does not stamp a tax on incomes as a property tax. 44 Ark. 134;93 Ark. 613; 98 Ark. 299; 102 Ark. 314; 26 Ark. 523;27 Ark. 625; 56 Ark. 251; 69 Ark. 555; 77 Ark. 321; 84 Ark. 470; 110 Ark. 204; 117 Ark. 54; 123 Ark. 68;34 Ark. 166; 38 Ark. 514; 106 Ark. 321; 235 U.S. 350.
The contention that the tax is void because laid upon gross receipts of natural persons from occupations that are of common right, was squarely met and held adversely to appellees in Fort Smith v. Scruggs,70 Ark. 554, and again in Davis v. Hot Springs, 141 Ark. 525-6-9. The same cases decide adversely to the contention that the tax is laid as a property tax in violation of the ad valorem clause of the Constitution. But even if the income tax is found to be a property tax, it does no violence to that clause as alleged, because the tax is laid upon the value of the income and at a uniform rate. See Acts 19-23, p. 282, 1.
The income tax is not an unjust discrimination because laid upon individuals and not upon corporations. We insist that it is an excise laid upon the privilege of enjoying and appropriating the proceeds of property, business and wages; and this being true, it falls within the oft-announced principle that the Legislature may classify for purposes of taxation, and there is no discrimination where the tax applies equally to all coming within the class. 93 Ark. 612; 1 of the act, supra;70 Ark. 549; 85 Ark. 464; 217 U.S. 79; 102 Ark. 131;153 Ark. 114.
The contention that the act fixes a double liability and holds both the taxpayers and the withholding agent for the payment of accruing tax is untenable in the light of the provisions of 4 and 5 of the act. As to the power of the State to impose upon employers the burden of reporting, withholding and paying over tax, as prescribed in the act, see 153 Ark. 125;76 Ark. U.S. 353; 167 U.S. 461; 217 U.S. 443; 231; U.S. 120; Id. 383; 232 U.S. 58. The tax laid is not a property tax but a tax laid upon incomes. It is clearly within the power of the Legislature because not prohibited by the Constitution. 100 Ark. 549; 23, art. 2, Constitution;99 Ark. 1; Id. 100; 93 Ark. 336; 112 Ark. 342;43 Ark. 527; 86 Tenn. 134.
This tax, in so far as it is not laid on the use of property, must be conceded to be a privilege tax. A tax on gross receipts such as this is necessarily a privilege tax, and the amount of such receipts is the measure of the value of the privilege. 31 L.R.A. 41; 45 Md. 361;80 Ala. 99, 60 Am. Rep. 99; 35 S.E. 73; C. M. Digest, 9967-8; 119 Ark. 314; 160 Ark. 17. The effect and result must be looked to, and not the name, to determine the character of the tax. 128 Ark. 505; 153 Ark. 114. The Constitution of 1874, art. 16, 2, limits taxation for State purposes (1) to taxes on property, and (2) to taxes on privileges. This clause was taken almost verbatim from the Constitution of 1836, and, under both, it has been uniformly held that the provision for taxing privileges limits the State only, not its subdivisions, such as cities and towns. 2 Ark. 291; 13 Ark. 752; 44 Ark. 134;58 Ark. 609; 153 Ark. 114. From these cases it is seen that occupations which are of common right are not privileges, and cannot be taxed by the State, because this clause by limiting the State tax to privileges necessarily excludes taxes on all occupations which are not privileges. Since the act taxes all pursuits or means of earning money of every kind, all must be privileges, or otherwise the act is void. 160 Ark. 17; 70 Ark. 529; 153 Ark. 114. Since, also, all occupations are here sought to be taxed by the State, and the tax on all such occupations as are not privileges is void, the entire act is void, because the void and the valid parts cannot be separated. The word "privilege," as applied to occupations, is limited to those which are subject to police regulation.27 Ark. 629; 43 Ark. 82. A common-law right is not the creature of a license law. 61 Ark. 486. A license implying a privilege cannot possibly exist with reference to something which is right, free and open to all. 49 L.R.A. (Ill.) 412. See also 107 U.S. 365. The right to follow any of the common occupations of life or to earn one's living in any innocent vocation without let or hindrance is an inalienable right, secured to all those living under
our form of government by the liberty, property and happiness clauses of our national and State constitutions. 170 P. 1; 111 U.S. 757; 70 L.R.A. 724; 34 L.R.A. (N.S.) 894; 7 R.C.L. 55; 56 L.R.A. 558; 24 Id. 195; 48 Id. 265; 27 L.R.A. (N.S.) 357; 34 Id. 433. The tax, in so far as it is levied on receipts from the use of property, such as rents on realty or personalty, or interest on money loaned, is a property tax, and void (a) because it is levied only on natural persons; (b) it is not levied on an ad valorem basis, and (c) it carries the amount of the tax beyond the constitutional limits for property taxes.153 Ark. 114; 2 Ark. 291; 157 U.S. 429; 158 U.S. 601;72 So. 891; (Miss.) 112 Miss. 383. The act is void because it discriminates against natural persons by exempting corporations. 85 Ark. 509, and cases cited; Judge Wood's discussion of the discrimination feature in the Severance Tax case, 160 Ark. 17.
This appeal involves the constitutionality of act 345 of the Acts of the General Assembly of 1923. General Acts 1923, p. 282.
The title to this act is as follows: "An act to be entitled, an act to levy a sale or gross income tax of one-tenth of one per centum, or one dollar ($1) on each one thousand ($1,000) dollars, on the gross incomes of every resident of the State of Arkansas and by natural persons not residents of this State who shall have received one thousand dollars or more per annum from and after March 31, 1923, to be levied and collected annually, beginning April 1, 1924, for the sole use and benefit of the public schools of Arkansas, and for other purposes."
A portion of 1 of this act reads as follows: "A tax is hereby imposed upon every resident of the State of Arkansas, which shall be levied, collected and paid annually upon and with respect to his or her entire gross income as herein defined, at rates as follows: One-tenth of one per centum, or one dollar on each one thousand dollars, and at that rate of one-tenth of one per cent. on
each and every dollar over and above one thousand dollars from the gross income from all property owned and from every business, trade, profession or occupation carried on in this State, and a like tax is hereby imposed and shall be levied and collected and paid annually to the State Comptroller of this State by natural persons not residents of this State."
Section 2 of the act defines the term "gross income," as employed in 1 of the act, as follows: "The term `gross income' includes gains, profits and income derived from salaries, wages or compensation for personal service, of whatever kind and in whatever form paid, or from professions, vocations, trades, business, commerce, or sales, or dealings in property, whether real or personal, growing out of the ownership or use of or interest in such property; also from interest, rent, dividends, securities or the transaction of any business carried on for gain or profit, or gains, or profits, and income derived from any source whatever, including gains or profits or incomes derived through estates or trusts by the beneficiaries thereof, whether as distributed or as distributable shares, income from property acquired by gift, bequest, devise or descent. The amount of all such items shall be included in the gross income for the taxable year in which received by the taxpayer."
The appellees in this case, who were the plaintiffs below, are residents and citizens of this State, and have earned incomes upon which they will be required to pay taxes if the act under review is valid. The income of one plaintiff had been earned as a manager of an insurance company; that of another from rents received on real estate; a third earned wages as a locomotive engineer; while the fourth had derived profits from his business as a merchant, and these plaintiffs seek by this suit to enjoin the State Comptroller from attempting to enforce the payment of the tax imposed by act 345 on their respective incomes. The court below held the act unconstitutional, and granted the relief prayed and this appeal is prosecuted to reverse that decree.
It is quite obvious that the incomes of the plaintiffs are subject to the tax, if the act itself is valid. The act is all-comprehending. It includes gains, profits and income derived from salaries, wages or compensation for personal service, of whatever kind and in whatever form paid. It includes income derived from professions, vocations, trades, business, commerce, or sales, or dealings in property whether real or personal, growing out of the ownership or use of or interest in such property. It includes also incomes from interest, rent, dividends, securities, or the transaction of any business carried on for gain or profit, or gains or profits. And, after thus including all apparent sources of income, there was added, out of a superabundance of caution that no source of income might be overlooked, the inclusive words, "and income derived from any source whatever."
The tax authorized by this act, whatever else may be said of it, is both an occupation tax and an income tax, because income derived from all pursuits or callings are taxed, except certain exempted incomes enumerated in 4 of the act, and which need not be recited here.
It is not a privilege tax, and cannot be sustained as such, because no attempt is made to distinguish between occupations which are of common right and those which might be designated as privileges, and taxed as such. All are alike subject to the tax.
The act makes no attempt to restrict the imposition of the tax to such occupations as might be taxed as privileges, but imposes the tax as a unit on the entire income of every person subject to its provisions, without regard to the source of the income, and the act must therefore stand or fall in its entirety, as its provisions are not separable. The act proposes a scheme of taxation which is either valid or void, as no separation of the sources of the income was contemplated by the Legislature. Oliver v. Southern Trust Co., 138 Ark. 389; Nixon v. Allen,150 Ark. 244.
The tax in question is a State tax, and is levied for the use and benefit of the public schools of the State, and
the first question presented is whether the State can levy such a tax for any State purpose. If the conclusion is reached that such a tax cannot be levied for State purposes, it will be unnecessary to consider any of the other objections interposed to the act.
In approaching the consideration of this question, it may be said that we do not have to search the Constitution for express authority to levy the tax. The power to levy it exists an all inherent right, unless the Constitution has denied the right to the State to levy taxes of this character.
The question is by no means new in this State. The question arose very early in the history of the State, and was first decided in the case of Stevens and Woods v. State, 2 Ark. 291, and was considered in other early cases. We do not stop to review these cases, but will first consider the case of Baker v. State, 44 Ark. 134, because it was the first case to arise under our present Constitution, and these earlier cases were there reviewed.
In the case of Baker v. State, supra, the appellant had been indicted for "unlawfully engaging in business as an agent for the sale of sewing machines" without obtaining the license required by the act which he was charged with having violated. It was pointed out in the Baker case that there was some apparent conflict in the early cases on this subject, and, on that account, the court was urged to take the subject up anew and consider it de novo, but the court declined to do this for the reason, there stated, that this confusion had been recognized and considered in the case of Washington v. State,13 Ark. 752, and the earlier cases were there reconciled. Chief Justice COCKRILL, in delivering the opinion in the Baker case, said: "In an attempt to extricate itself from this difficulty, the court held (in the Washington case) that there was no restraint upon the power of the Legislature to authorize counties and towns to regulate or tax callings and pursuits, but there was a restriction in that regard upon legislation for the purpose of raising
a State revenue. This distinction has never been questioned by this court, but has been recognized and approved from time to time. McGehee v. Mathis, 21 Ark. 40; Straub v. Gordon, 27 Id. 625; Barton v. Little Rock, 33 Id. 442; Little Rock v. Board, etc., 42 Id. 160."
After recognizing the Washington case as having definitely decided the question that the Legislature might authorize counties and towns to regulate or tax callings or pursuits for the purpose of raising revenue, but that there was a restriction in that regard upon legislation for the purpose of raising State revenue, Chief Justice COCKRILL took occasion to say that the decisions reviewed did not limit the power of legislation for State purposes to the taxing of such privileges as were technically known as such at the common law, that is to say, that the Legislature has a discretion to adjudge what are privileges, and such callings and pursuits as may be classed as privileges may be taxed for State purposes, but the court there clearly decided that, unless a particular calling or pursuit might be classed as a privilege, it was not subject to taxation for State purposes.
Upon the authority of the case of Baker v. State, supra, this court has consistently held that cities and towns may, when so authorized by the Legislature, tax callings and pursuits to raise revenue for municipal purposes, such taxes being commonly designated as occupation taxes. Among other cases in which it was so held are: Little Rock v. Prather, 46 Ark. 471; Fort Smith v. Scruggs,70 Ark. 549; LaPrairie v. Hot Springs, 124 Ark. 346; Davis v. Hot Springs, 141 Ark. 521; Pine Bluff Transfer Co. v. Nichol, 140 Ark. 130.
And, upon the authority of Baker v. State, supra, this court has, with equal consistency, held that the State could not impose such taxes for State purposes. Among the cases so holding are: State v. Washmood, 58 Ark. 609; Standard Oil Co. v. Brodie, 153 Ark. 114; State v. Handlin, 100 Ark. 175.
The reason for the distinction uniformly drawn by this court for upholding the tax in one case and for
declaring it invalid in the other, goes back to the Washington case, supra, where the apparent conflict in the still earlier cases was reconciled, as Judge COCKRILL said in the Baker case, and the reason upon which the reconciliation of the cases was made was simply this: The Constitution had taken away from the State the right to tax occupations which are of common right for State purposes, and had left the State the right to tax only those callings or pursuits which might be classed as privileges, whereas no such limitation had been placed against the cities and towns.
The State might tax callings and occupations which are of common right, had the Constitution not denied the State this power; but the Legislature has the right to confer this power on the cities and towns of the State, because the right to do so has not been withheld by the Constitution.
It was just here that this court, in the Washington case, speaking through WATKINS, Chief Justice, reconciled the apparent conflict in the earlier cases. The decision in the Washington case was rendered while the State's first Constitution — that of 1836 — was in force.
Section 2 of the article on revenue in the Constitution of 1836 reads as follows: "All property subject to taxation shall be taxed according to its value — that value to be ascertained in such manner as the General Assembly shall direct, making the same equal and uniform throughout the State. No one species of property from which a tax may be collected shall be taxed higher than another species of property of equal value. Provided, the General Assembly shall have power to tax merchants, hawkers, peddlers and privileges in such manner as may, from time to time, be prescribed by law."
It is quite obvious that this is substantially the same as 5, of article 16, of our present Constitution, except that 5, of article 16, of the present Constitution, after declaring the basis of taxation and the privileges which might be taxed, also enumerated the classes of property which should be exempt from taxation. The portion
of 5, of article 16, of the present Constitution relevant to the decision of the question here under consideration reads as follows: "All property subject to taxation shall be taxed according to its value, that value to be ascertained in such manner as the General Assembly shall direct, making the same equal and uniform throughout the State. No one species of property from which a tax may be collected shall be taxed higher than another species of property of equal value, provided the General Assembly shall have power from time to time to tax hawkers, peddlers, ferries, exhibitions and privileges in such manner as may be deemed proper."
A comparison of this section with the one quoted from the Constitution of 1836 shows that one was taken from the other, the difference being that the Constitution of 1836 included merchants, whereas the Constitution of 1874 does not include merchants; and the Constitution of 1836 did not include ferries or exhibitions, whereas the Constitution of 1874 does include them.
These are the provisions of the Constitution of 1836 which the court had under consideration when Chief Justice WATKINS said, for the court, in the Washington case: "But the imposition of taxes, granting of licenses by counties or towns, may be authorized or regulated by legislation, and that legislation is not necessarily controlled or limited by the provisions of the Constitution in regard to State revenues."
This conclusion resulted from the rule of construction first adopted by this court in the case of State v. Ashley, 1 Ark. 513, and since continuously followed by this court in the construction both of the Constitution and of statutes, that the expression of one thing in the Constitution is the exclusion of another, and, as was also said in Colby v. Lawson, 5 Ark. 303, quoting from State v. Ashley, supra, there are two ways of imposing a constitutional restriction, viz., by express negation, and by affirmation which implies a negation.
The Constitution defined what might be taxed by the State, and thus excluded what was not enumerated. No
such limitation was imposed on the right to tax for county or municipal purposes, and the Legislature may therefore confer this right on the counties and municipalities of the State.
The question here involved was again considered by this court in the case of State v. Washmood, 58 Ark. 609, where Chief Justice BUNN, speaking for a unanimous court, said: "If the tax was intended to be a tax levied upon the association or companies represented by the agents named, the question of the validity of the section would, at least, be an open one, but one which it is unnecessary for us to discuss in this connection. If, however, the intention of the Legislature, in enacting said 5591, was to impose a tax upon the agent therein named, the tax would be an occupation tax, and, being a State tax, as expressed, it would be in violation of the Constitution of the State, as has been settled by numerous decisions of the court (Citing cases)."
The court then proceeded to consider whether the tax there sought to be enforced had been imposed upon the associations and companies for the privilege of carrying on their business in the State, or was intended as a tax upon the agents of such associations and companies, and, having reached the conclusion that the tax which the appellant in that case was resisting was not a tax upon the right of the companies to carry on their business in this State, but upon the agent of the company, the court said: "It was therefore an occupation tax, and, being a State tax also, the section authorizing it is in conflict with the Constitution."
In the case of Standard Oil Co. of Louisiana v. Brodie, 153 Ark. 114 the principles involved in this case were again under consideration. In that case a tax had been imposed on the sale of gasoline, and we there said: "It is conceded in all quarters that, if the imposition (of the tax on gasoline) is, in effect, a property tax, it is void." The tax was upheld, and in doing so we there further said: "It is easy to discover in the language (of the act) an intention on the part of the
lawmakers to impose a tax, not on property, but on a privilege, so as to bring the enactment within constitutional limits. The tax is not imposed on the sale or purchase of gasoline, nor on the gasoline itself, nor even on the use of the gasoline. On the contrary, the final and essential element in the imposition of the tax is that the gasoline purchased must be used in propelling a certain kind of vehicle over the public highways. In the final analysis of this language it comes down to the point that the thing which is really taxed is the use of the vehicle of the character described upon the public highway, and the extent of the use is measured by the quantity of fuel consumed, and the tax is imposed according to the extent of the use as thus measured."
In the Brodie case we again reviewed the Washington and the Baker cases, supra, and of the Washington case we there said: "The substance of that decision is that the constitutional provision mentioned is a restriction upon the power of taxation of privileges, and that it does not authorize taxation upon a privilege which was a common right of every citizen" for State purposes.
And upon the review of the Baker case we there said: "We understand the effect of this decision to be that the restriction is not to the privileges specifically mentioned in the Constitution, nor privileges which were `technically known as such at the common law,' but that the restriction relates merely to privileges which were matters of common right. This being true, there is nothing in the provision of the Constitution referred to which prohibits taxation for State purposes of the use of the public roads. While the public highways are for the common use of all, they belong to the public, and it is within the power of the Legislature either to regulate or to tax the privilege of using them. The power was declared in express terms by Judge RIDDICK in the Scruggs case, supra."
These decisions apparently settled the law as definitely as repeated decisions of the same question can settle anything, that the State cannot tax, for revenue
purposes, occupations which are of common right; but it is said that the case of Floyd v. Miller Lumber Co., 160 Ark. 17, unsettled those decisions and gave a new interpretation to the section of the Constitution quoted above. Has this been done?
It may well be said that the decision in the Floyd case is somewhat anomalous, but the apparent anomaly results from the fact that the justices participating in the decisions of the case entertained views which were conflicting and which they were unable to reconcile. Such a result is always unfortunate, but is not always avoidable, and there are a number of such cases in our own reports as well as in those of all other appellate courts. A recent example of this kind is the case of Mashburn v. North Ark. Road Imp. Dist. No. 3, 167 Ark. 58.
There were four opinions in the Floyd case, one by Justice HUMPHREYS, another by the CHIEF JUSTICE, in which this writer concurred, a third by Justice HART, and a dissenting opinion by Justice WOOD.
These opinions expressed views which were so conflicting that they could not be reconciled, and it takes a consideration of them all to determine what was decided in that case. It may be said that the opinion was a composite one, and, to extract the points decided, it is necessary to determine what points were agreed upon for the different reasons expressed by the respective judges. The only point expressly decided by a constitutional majority of the court was that the tax — a severance tax — was not a property tax.
The opinion delivered by Justice HUMPHREYS was a sweeping one, and the effect of his view was that the State could tax any occupation which the Legislature saw fit to make taxable. He applied to such tax the rule announced by Justice RIDDICK for this court in the case of Fort Smith v. Scruggs, 70 Ark. 549, and it must be conceded that, under his view, a fair income tax would be constitutional. But that view was not accepted by the majority of the court.
In the opinion of the CHIEF JUSTICE he reviewed the decisions of this court in the cases of Washington v. State, Baker v. State, State v. Washmood, and Standard Oil Co. v. Brodie, and the review of these cases was summarized by him as follows: "The effect of these decisions undoubtedly is that the State cannot tax occupations generally, but must find its power to tax outside of this restriction. The power was found in the Baker case and in the gasoline case in the right to tax the franchise of corporations as a privilege tax, and to tax the use of public highways. Whether or not other exceptions outside of the constitutional restriction can be found remains to be seen in the future. I am unable to discover any ground for taking the operation of this statute, as applied to individuals, out of the restrictions prescribed in the Constitution."
After thus declaring himself, the CHIEF JUSTICE took up the interpretation of the Scruggs case as announced in the opinion of Justice HUMPHREYS, and said: "The opinion of Judge RIDDICK in Fort Smith v. Scruggs,70 Ark. 549, affords no support to the view that the Legislature can impose, for State revenue purposes, a tax on occupations. That was a case where the tax was imposed by a municipality, and it is undisputed that the State may delegate to counties and municipalities the power to levy any tax not prohibited by the Constitution. Baker v. State, supra. The business of severing timber or minerals from the soil for commercial purposes is purely an occupation and the State cannot tax it as against individuals. Timber and minerals attached to the soil are individual property, as much so as anything else, and the business of severing for commercial purposes is a lawful business, of the pursuit of which no individual can be deprived. Therefore it falls within the restriction found in the Constitution. Penn. Coal Co. v. Mahon,260 U.S. 393."
After announcing this view of the law, the CHIEF JUSTICE expressed the opinion that the statute there under review could be upheld against corporations as
being in the nature of a tax on the franchise of the corporations engaged in the occupations there taxed.
Justice HART, for reasons which he there fully stated, and which need not be recopied here, reached the conclusion that the tax was valid against both individuals and corporations. He stated that, through the development of a country, occupations which had been of common right might cease to be such and might become proper subjects for regulation by the State in the exercise of its police power, and announced his final conclusion in the following language: "Upon further consideration of the case, upon rehearing, I have reached the conclusion that the occupations taxed in the act may be termed privileges under the common law and taxed as such under our Constitution. There has been no precise limit to the police power of the State, as construed by this court."
Had the entire court reached the view announced by Justice HART, in summing up his views, the decision would have been a unanimous one, and most of what was said by the various judges would have been obiter, as there was, and is, no difference of opinion about the right of the State to tax privileges for State purposes; the conflict of opinion arose over the question whether the business of severing products from the soil constituted a privilege.
In his dissenting opinion, Justice WOOD recited that in certain States it had been held that "a privilege is whatever business, pursuit, occupation or vocation affecting the public the Legislature chooses to declare and tax as such." After mentioning cases so holding, he proceeded to say: "Our court, from a very early period in its history, has taken a different view, by holding that it is not within the power of the Legislature, under our Constitution, to declare and tax as a privilege, for State revenue, those pursuits and occupations which every one may follow as a matter of common right. The doctrine of our court is that these pursuits and occupations which are matters of common right cannot be taxed
as privileges for State revenue. It is within the power of the Legislature, under our Constitution, to authorize counties and towns to regulate or tax callings and pursuits, but this cannot be done by towns or counties for the purpose of raising State revenue, nor by the Legislature itself for that purpose. Of course, if pursuits or occupations which are matters of common right are conducted in a manner which injuriously affects the public interest, they may be required to pay a license fee for purposes of regulation under the police power. See Stevens v. State, 2 Ark. 291; Gibson v. Pulaski County, 2 Ark. 309; Washington v. State, 13 Ark. 752; McGehee v. Mathis, 21 Ark. 40; Straub v. Gordon, 27 Ark. 625; Barton v. Little Rock, 33 Ark. 442; Little Rock v. Board.42 Ark. 160; Baker v. State, 44 Ark. 134; State v. Washmood, 58 Ark. 609. Under the doctrine of stare decisis, these cases have become the settled law of this State, and, until they are overruled, which up to this hour has not been done, this court cannot consistently hold that it is within the power of the Legislature to declare and tax as privileges, for State revenue, pursuits and occupations which are matters of common right. To so hold would be to overrule all these cases, and, if they are to be overruled at all, it should be done expressly, and not by implication. Therefore, even if the tax under review were an occupation tax, it would be unconstitutional and void, under these numerous decisions of our court."
In view of these expressions of opinion appearing in the case of Floyd v. Miller Lumber Co., we think it cannot be said that the cases of Washington v. State, Baker v. State, State v. Washmood, and Standard Oil Co. v. Brodie, supra, have been overruled or their authority impaired by the case of Floyd v. Miller Lumber Co., and, unless they have been overruled, the State is without power to impose an income tax or an occupation tax for State purposes, and the court below was therefore correct in holding that act unconstitutional, and decree is affirmed.