The facts sufficiently appear in the opinion. Plaintiff sued defendant to recover the amount of a license tax upon his business of draying or expressing in the town of Reno, imposed by an ordinance alleged to have been made under the provisions of an act entitled "An act providing for the government of cities and towns in this state" (Stats. 1881, *Page 186 p. 68), and the act amendatory thereof (State. 1889, p. 43). Defendant, answering, set up several defenses.
Thereafter the cause was certified by the justice's court, in which it originated, to the district court, upon the ground that a question touching the legality of a tax was involved. Upon the trial the district court found as a conclusion of law that the board of commissioners had no authority to enact the ordinance, and rendered its judgment dismissing the action. Plaintiff appeals.
If the conclusion found by the district court is correct, the judgment must be affirmed irrespective of other defenses which have been interposed.
The powers of the county commissioners as defined in the ninth subdivision of section 1 of the above-mentioned act are as follows (the amendment of 1889 being included in brackets):
"Ninth — To fix and collect a license tax upon and regulate all places of business and amusement so licensed, as follows, to wit: Artisans, artists, assayers, auctioneers, bakers, bankers, barbers, billiard tables, boiler makers, boot and shoe makers, bowling alleys, brokers, factors and general agents, commission merchants, circus, caravan or menagerie, concerts and other exhibitions, dance houses, saloons or cellars, express and freight companies, foundries, gaming, hawkers and peddlers, hay yards, wagon yards and corrals, hotels, boarding houses and lodging houses, illuminating gas, electric light, insurance agents, job wagons, carts and drays, laundries, livery and sale stables, lumber yards, manufacturing of liquors and other beverages, manufacturers of soap, soda, borax or glue, markets, merchants and traders, newspaper publishers, pawnbrokers, restaurants and refreshment saloons, bar-rooms, shooting galleries, skating rinks, solicitors, drummers, mercantile agents, stage and omnibuses, stock brokers, telegraph companies, theaters and melodeons, undertakers, wood and coal dealers, having due regard to the amount of business done by each firm or person so licensed; to license, tax and regulate, prohibit and suppress all tippling houses, dram shops, public card tables, raffles, hawkers, peddlers and pawnbrokers, gambling houses, disorderly houses and houses of ill-fame; [provided, that in all unincorporated *Page 187 cities and towns in this state the boards of county commissioners shall have power to fix and collect a tax upon the following places of business and amusements, and none other, as follows, to wit: circus, caravan or menagerie, concerts, theatrical performances, melodeons and other exhibitions, dance houses, wholesale liquor merchants, brewers, manufacturers of liquors and beer, saloons, bars, bar-rooms or cellars, gaming and gambling houses, hawkers and peddlers, junk shops, pawnbrokers, auctioneers, solicitors, drummers and mercantile agents]; to levy and collect an annual tax on all dogs owned or kept within the limits of said town or city, and to provide for the extermination of all dogs for which tax shall not have been paid, and to prohibit the keeping of hogs or the running at large of goats, cows or other animals within the limits of said town or city; to fix and collect a license tax upon all professions, trades or business within said town or city not heretofore specified."
There have been two general systems for the government of towns adopted by the legislature. One was by separate charter incorporating the inhabitants of a designated locality and authorizing the election of their own officers to administer local affairs. The other was by general law empowering the boards of county commissioners of the county under specified conditions to assume the management of the affairs and business of any town in their county.
At the session of 1879 the legislature provided a system of town government entitling the act "An act for the government of unincorporated towns in the state." Without stating its details it is sufficient to say that it did not materially differ from the system that had been established by the legislature in regularly chartered municipalities, except that the law did not provide for the incorporation of the towns, and the officers were not selected by their own citizens independently of the officials of the county.
This was followed by the act of 1881. (Stats. 1881, p. 68.) In it the same general plan was adopted as in the act of 1879. No incorporation was provided for and it extended its provisions to the towns that had been disincorporated.
This legislation shows that by the term "unincorporated towns" in the amendment was meant such towns as had not *Page 188 been specially incorporated by separate charter. The entire act is intended to apply only to unincorporated towns, and the fact that the proviso introduced by the amendment is in terms confined to that class of towns does not make any part of the act applicable to any other class of towns.
The proviso being the only change in the section as it originally stood, it is clear that this was the sole purpose of the amendment, and that by it the legislature intended to restrict the previously unlimited powers of the commissioners in the collection of licenses, to the kinds of business enumerated in the clause added to the section.
As the defendant's business of draying or expressing is not enumerated in this clause, the commissioners had no authority to impose a license tax thereon, and the judgment of the district court must be, and hereby is, affirmed.