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Nye County v. Schmidt

December 31, 1916

BOARD OF COUNTY COMMISSIONERS OF NYE COUNTY, APPELLANT, V. HENRY SCHMIDT AND RUSSELL WILLIAMS, CO-PARTNERS DOING BUSINESS UNDER THE FIRM NAME AND STYLE OF THE TONOPAH HARDWARE COMPANY, RESPONDENT.


Appeal from the Fifth Judicial District Court, Nye County; Mark R. Averill, Judge.

J. A. Sanders, District Attorney of Nye County, and E. P. Carville, District Attorney of Elko County, for Appellant.

Wm. Forman, for Respondent.

By the Court, McCarran, J.:

This action involves the imposition of a license tax upon the business of respondent, to wit, retail hardware, in the town of Tonopah, Nye County, Nevada. The appellant herein, the board of county commissioners of Nye County, acting as a board of town commissioners for the town of Tonopah, brought suit to collect a license tax on the business conducted by respondent, under an act of the legislature of 1881 entitled “An act providing for the government of the towns and cities of this state.” Subdivision 9 of section 1 of the act as originally passed in 1881 invested the board of county commissioners, sitting as a board of town commissioners, with powers as follows:

[39 Nev. 456, Page 459]

“To fix and collect a license tax on, and regulate all places of business and amusement so licensed, as follows, to wit: Artisans, artists, assayers, auctioneers, bakers, bankers, barbers, billiard tables, boilermakers, boot and shoemakers and cobblers, 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, manufacturers of liquors and other beverages, manufacturers of soap, soda, borax or glue, markets, merchants and traders, milliners and dressmakers, newspaper publishers, pawnbrokers, restaurants and refreshment saloons, barrooms, shooting galleries, skating rinks, solicitors, drummers, mercantile agents, stages and omnibuses, stockbrokers, tailors, clothes cleaners, telegraph companies, theaters, melodeons, undertakers, wood and coal dealers, having due regard to the amount of business done by each person or firm 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; 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 such 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.” (Stats. 1881, p. 69.)

The legislature of 1889 amended this section by adding thereto a proviso as follows:

“Provided, that in all unincorporated cities and towns in this state the boards of county commissioners shall

[39 Nev. 456, Page 460]

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, barrooms 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.” (Stats. 1889, p. 45.)

The legislature of this state, in its efforts to assist communities in establishing and maintaining a form of organized government suitable to conditions, has from time to time enacted statutes for that purpose. It might be said that four classes of town government have been created within our state by our several legislative acts (we use the word “classes” here, not in its strict sense, but for the purpose of exemplification only):

First—That class which by legislative enactment was permitted to petition the board of county commissioners for the application of the town government act, such petition being required to be signed by a majority of the voting population, representing three-fifths of the taxable property. (Stats. 1873, 1879, 1881.)

Second—Unincorporated towns, securing town government by a petition of a majority of the taxpayers representing a majority of the taxable property. (Stats. 1879, p. 103.)

Third—Disincorporated towns, ipso facto coming within the provisions of the statute of 1881. ...


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