[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The constitutionality of sections 6679-6682, N.C.L. must be justified, as we view them, upon the ground that they are a valid exercise of the taxing power of the state. They are purely revenue measures and not the exercise of police power. The license provided for is a burden laid upon the animals per capita. It is a property tax. The grazing of live stock by nonresidents within the State of Nevada is not sought to be regulated by these sections. 22 Am. and Eng. Enc. of Law (2d ed.), 917; Cooley's Const. Lim. (6th ed.) 242; 2 Cooley on Taxation (3d ed.), 1127; Shaffer v. Carter, 252 U.S. 50. The act is manifestly discriminatory. No construction of it is possible under which citizens of Nevada and citizens of other states are accorded like or substantially similar privileges and immunities. Art. X, sec. 1, Const. of Nevada; Smith v. Mahoney (Ariz.), 197 P. 704; Hostetler v. Harris, 45 Nev. 43; People v. Harris, 76 Colo. 395; 232 P. 675; art. IV, sec. 2, U.S. Const.; Douglas v. Stephens, 1 Del. Ch. 465, 476; Buchannan v. Knoxville O.R. Co., 1 Fed. 324, 334, 18 C.C.A. 122; 12 C.J. 1130, 1152; Gunn v. Minneapolis, etc. R.R. Co., 34 N.D. 418, 158 N.W. 1004; State v. Butterfield Livestock Co., 17 Idaho 441, 106 P. 455.
Contending that the sections authorizing such seizure and arrest by said sheriff are unconstitutional, null and void because discriminative, but, to obviate the annoyance, inconvenience, loss, and expense incident to such seizure and arrest, the respondents paid to said sheriff, under protest, the amount demanded. Thereafter this action was instituted to recover the money so paid. Judgment was rendered in favor of plaintiffs.
The constitutionality of the statutes is the only question presented.
Counsel for appellant frankly state that they are of the opinion that the statutes in question are unconstitutional, but feel that they should be enforced until declared so to be by this court.
The statutes in question provide that nonresidents who drive their sheep into this state to graze upon the uninclosed public domain shall pay a fee of 15 cents per head on all sheep and procure a license to so graze, make it a misdemeanor to fail to comply therewith, and authorize the seizure and sale of enough sheep to pay for such grazing.
Pursuant to the sections in question, citizens of Nevada are exempt from the payment of such license on 1,000 head of sheep. It is further provided that citizens of Nevada shall pay 35 cents per head on each sheep grazed, but that this provision shall not apply to persons who own one or more acres of land in fee simple in the state for each five sheep so owned, grazed, or pastured.
Counsel for appellant suggest that the statutes in question are revenue measures, and as such are valid *Page 97 pursuant to the rule stated in the following authorities, namely: Shaffer v. Carter, 252 U.S. 50, 40 S. Ct. 221, 64 L. Ed. 445; 2 Cooley on Taxation (3d ed.), 1127; Cooley, Const. Lim. (6th ed.) 242; 22 Am. and Eng. Ency. Law (2d ed.), 917.
However it might be if the sections in question were not discriminatory, it is clear that the rule invoked can have no application in the instant case, for the reason that the statutes clearly discriminate against respondents, in that they own no land in the state and are not exempt from such license to the number of 1,000 head of sheep.
The conclusion reached by the learned trial judge is clearly right. The question is no longer a debatable one. A similar question was before us in Hostetler v. Harris, 45 Nev. 43,197 P. 697, wherein we held such a discriminatory statute null and void. Since the rendition of that decision the question has arisen in Colorado, where the supreme court followed the Hostetler opinion. People v. McPherson, 76 Colo. 395, 232 P. 675.
A few days after the decision in the Hostetler Case, the supreme court of Arizona reached a like conclusion in Smith v. Mahoney, 22 Ariz. 342, 197 P. 704. To the same effect is the opinion in Reser v. Umatilla Co., 48 Or. 326, 86 P. 595, 120 Am. St. Rep. 815.
There is no dissent from the view expressed in the cases mentioned.
Judgment affirmed. *Page 98