Harlan F. Stone

“ Since the Arkansas court, as this Court's opinion does not dispute, has sustained the tax without deciding whether the lien and collection provisions are severable and inapplicable to the United States, we are completely at loss to know whether the tax rests ultimately upon the Government, as it does under Arkansas law on all other owners not expressly exempted. ”

“ It is true that they have not raised here any question of discriminatory enforcement. But this is because they had no reason to believe that the Arkansas court had applied, or would apply, the statute differently to them than to others or to anticipate the character of the ruling now made. It is doubtful, to say the least, that the Arkansas legislature could place a severance tax exclusively upon persons who sever resources from governmentally owned land. ”

“ All other contractors, by the terms of the statute and the Arkansas decisions, would be required to pass the tax along to owners. Only contractors with the Government would not be allowed or required to do this. Thus to treat the tax as applicable only to the severer in this case, and the collection provisions affecting the owner as severable and inapplicable, would raise serious questions of discrimination, which neither the Arkansas court nor this court has considered and which appellants are entitled to have determined. ”

“ It is equally evident that, when the timber severed from the soil is sold, it falls within the terms of the act, and the tax must be paid by someone. To illustrate: If the owner of timber lands desired to sever it for the purpose of clearing the land and putting it in cultivation and hired other persons to sever the timber for him, he would be required to pay the severance tax. ”

“ If the owner should lease his land to another person for a designated number of years, in order to have his lessee clear the land and put it in cultivation,↑ This view is sustained also by the court's expressed view that 'Imposition of the tax here does not in any sense interfere with the Government's business.' Ark., 187 S.W.2d 7, 12, the statement could mean that the tax would not be applied to the Government as to other owners, in which event a severance of the collection provisions would be implied. ”

“ An Arkansas statute, Act 118 of 1923, Pope's Digest, Arkansas Statutes 1937, § 13371, imposes 'a privilege or license tax * * * upon each person * * * engaged in the business of * * * severing from the soil * * * for commercial purposes natural resources, including * * * timber.' By § 13372, as a condition of the license, there is imposed on the severer an obligation to pay the tax and consent that the tax 'shall * * * remain a lien on each unit of production until paid into the State Treasury.' Section 13375 fixes the tax at 7 cents per thousand feet of the timber severed. ”

“ The same doubt would appl to the state court's effort to make the statute so effective, were it to undertake doing this. In my judgment it has not done so. Whether or not such an effort ultimately would be successful, appellants are entitled to be heard upon the question before that result is achieved. They should not be deprived of this opportunity through this Court's upholding of an ambiguously applicable statute or in advance of a decision by the only court which can remove the ambiguity. ”

“ On the remand the state courts will be free, so far as their own practice allows, to determine any state questions here involved and any federal questions not already decided by this opinion. Compare Schuylkill Trust Co. ”