Appeal from the Second Judicial District Court, Washoe County; T. F. Moran, Judge.
W. L. Hacker, City Attorney, and Lewers & Henderson, for Appellant.
James Glinn, for Respondent.
By the Court, Talbot, C. J.:
Respondent brought this action to recover nine quarterly license payments made by him to the city of Sparks, which he alleges were made under protest. He obtained judgment in the district court, and from an order denying a motion for a new trial the city has appealed.
Respondent owned a place of business just outside the city of Sparks, and there manufactured and compounded spices, extracts, vinegar, and other articles used in the grocery trade. Also, acting as his own salesman, he solicited orders in Sparks, and bought and sold to restaurants, hotels, bakeries and confectioners other kinds of groceries, such as coffee, tea, rice, sugar, cheese, bacon, eggs and olive oil. These sales were made in small and large quantities, and in broken and unbroken packages, and it does not appear to be disputed that he filled any order given him by these customers, no matter how small the quantity.
During the time that he carried on the business and paid the license, the following ordinance was in force in the city of Sparks: Every person, firm, association or corporation (other than itinerant vendors), engaged in the business or occupation of selling or disposing of at retail, for a commission or otherwise, or in any manner other than at a fixed place of business in the city of Sparks, any goods, wares, merchandise, jewelry, dry goods, meats, cigars, tobacco, fruit, vegetables or any products of the farm (except as hereinafter provided), shall first obtain a quarterly license from said city to carry on such business or occupation, and shall pay therefor fifteen dollars per quarter.
Before he began paying a license, he appeared before the city council and protested against being required to pay, claiming that he was exempt under the following provisions of the act of March 29, 1907:
Section 1. On and after the first day of April, 1907, it shall be unlawful for any county, city or town to impose or collect any license or tax upon or from any drummer or traveling salesman employed by, and selling
the goods of, any manufacturer, compounder, wholesaler or jobber whose factory or store is located in Nevada.
Sec. 2. The provisions of section one of ths act shall not apply to peddlers or hucksters. (Rev. Laws, 3879, 3880.)
It was the contention of respondent that he was the traveling salesman for himself, a manufacturer, compounder, wholesaler and jobber. The city claimed that he was also a retailer, because he sold his goods direct to consumers, in broken packages, and that consequently he must pay the license.
Evidently the statute quoted was passed for the purpose of exempting from payment of license traveling salesmen employed by and selling the goods of manufacturers, compounders, wholesalers or jobbers having factories or stores in this state, so that they might be exempted in common with the traveling salesmen of manufacturers and wholesalers in other states who, as held at different times by this court and the Supreme Court of the United States, cannot be taxed by the state, owing to the provision of the federal constitution conferring upon Congress the regulation of interstate commerce. (Ex parte Rosenblatt, 19 Nev. 439, 3 Am. St. Rep. 901; Ex Parte Taylor and Rounds, 35 Nev. 504; Norfolk Ry. Co. v. Sims, 191 U. S. 441, 24 Sup. Ct. 151, 48 L. Ed. 254; State v. Bayer, 34 Utah, 257, 97 Pac. 129, 19 L. R. A. n.s. 297.)
Conceding that the respondent was entitled to the exemption from the payment of the license which pertains to resident and nonresident manufacturers, compounders, wholesalers and jobbers, it is apparent that in addition to these lines of business, by purchasing groceries and selling them in small quantities and broken packages, differently from wholesalers, he ...