dissent"> McNamara, District Judge,

dissenting:

I am compelled to dissent from some of the views and the conclusions reached by my learned associates as expressed in the majority opinion in this proceeding.

Petitioner contends that the act in question is so indefinite and uncertain that it is impossible to ascertain the intent of the legislature at the time of the enactment of the statute, and that the same is therefore inoperative and void.

It is a well-established rule of law that—

“Where an act of the legislature is so vague, indefinite and uncertain that the courts are unable to determine with any reasonable degree of certainty what the legislature intended, or is so incomplete or is so conflicting and inconsistent in its provisions that it cannot be executed, it will be declared to be inoperative and void.”

See 25 R. C. L. 810, art. 62, and note.

Section 1 of the act seems to require of every operator *215 of motor vehicles who operate for hire over any of the public highways of the State of Nevada, regardless of the classification of such highways, to procure a license for such operation in accordance with the later provisions of the act itself. The second provision of the act seems to require only that those operators who operate over first-class highways shall procure a license and pay the tax.

My learned associates, in construing and interpreting the act, construe the same to mean that every operator of motor vehicles, who operates as a common carrier for hire of persons or property over any of the highways of the state, is subject to the provisions of the act with reference to the procurement of a license and the payment of the tax. If this is the proper construction of the act, I am at a loss to understand why it was necessary to make any classification of highways whatsoever as is done in paragraph 2 of section 2 of said act. Further, if such is the proper interpretation of the act, I am at a loss to understand why it was necessary to incorporate in said act any part of section 2.

It is apparent from the act, by a reference to the preamble, that it was the intent of the legislature to in some manner tax operators of motor vehicles who operate as common carriers over public highways of the State of Nevada. If' it was the intention of the legislature to tax operators regardless of the class of highways over which they operated, certainly they could have used language which would have made this intention clear, and it would not have been necessary to incorporate in said act section 2 thereof. If it was the intention of the legislature to tax only those operators who operate over first-class highways, likewise the legislature could have employed language which would have made such intention plain and it would not have been necessary to include in the act section 1 thereof.

The fact that the legislature saw fit to incorporate into the act section 2 thereof seems to indicate that they intended to make a further classification with reference to the application of the tax; that is, it seems to me to be plain that the legislature intended to classify operators *216 operating over the various classes of highways, with reference to the application of the tax, and that this classification in some way was left out of the act. What their intention was in this regard certainly cannot be ascertained from the act itself by any rule of statutory construction that I am aware of. If the legislative intent cannot be determined from the act, the court is not at liberty to supply one by legislating itself; the court’s function in this regard being that of interpretation and construction, and not legislation.

July 19, 1926.

After a very careful study of the act, I am unable to ascertain whether or not the legislature intended to tax operators who operated over any class of highways, or only those who operated over first-class highways.

It is stated in State v. Partlow, 91 N. C. 550, 49 Am. Rep. 652, that, “if no judicial certainty can be settled upon as to the meaning of a statute,” the courts are not at liberty to supply one. It “must be capable of construction and interpretation; otherwise, it will be inoperative and void.”

Since I have been unable to place any interpretation or construction upon the act in question from which a judicial certainty can be determined upon as to the meaning of the statute, or the intent of the legislature, therefore, in the light of the above rule, I feel that I am compelled to conclude that the statute is void, and, in so doing, I am very mindful of the rule that it is the duty of courts, if reasonably possible, to so construe a statute as to give it effect.

With reference to the other grounds urged by petitioner, upon which he declares the statute to be unconstitutional and void, I am inclined to agree with my associates 'as to their reasoning and conclusions.

In view of the reasons asserted above, I am of the opinion that petitioner should be discharged.

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