The opinion
BeowN, J.,
dissenting: I would be very glad to sustain the act of the General Assembly in question if I could reconcile it with the principles of taxation embodied in our Constitution. *182 I recognize tbe inherent justice and value of such legislation, for it is an admitted fact that lumber companies 'do use the public roads to a far greater extent than private citizens.
I agreed to the decision in S. v. Holloman, 139 N. C., 642 , because the statute was framed upon a very different principle from the one under consideration. There is a wide difference between this law and the Hertford County law. The latter applies to all persons, firms, or corporations using the public roads of the townshipwhereas the Macon County law is confined. in its operation to any lumbej company, corporation, or person engaged in the lumber business, and levies a tax of- two cents per 1,000 feet upon the lumber belonging to such users of the public road. This tax cannot be" sustained as an exercise of police power. It does not in any way tend to promote health, peace, morals, and good order of the people. Cooley Constitutional Limitations, 572.
It is not a license tax or regulation tax in any sense. Cooley on Taxation, 408. It is a contract pure and simple for keeping-up the public roads, levied solely upon the property of those who happen to be engaged in the lumber business. It does not apply to the private individual who may haul hundreds of thousands of feet of lumber over the same road for his individual benefit.
Nor does it apply to those engaged in hauling as a business brick, clay, coal, or other heavy material over the same road.
The tax cannot be called uniform, because it does not apply 'to all persons using the public ro.ads, but to a particular class who happen to be engaged in a certain kind of business. I admit that there is certain discretion given to the lawmaking-power in regard to legislation affecting the public roads, but it is not- an uncontrollable discretion; and when the tax is confined to one particular class of persons and not extended to all alike who use the same road, it cannot be called a regulation, but it is a revenue measure, pure and simple* and inasmuch as it is not uniform and does not bear alike upon all who use the public roads, it violates the uniformity of taxation, which is one of the essential features of our Constitution. Gray’s Limitations of Taxing Power, sec. 1450; S. v. Moore, 113 N. C., 697 .
*183 It is said, however, that this action for the penalty1 may be sustained because tbe Legislature has a right to make the defendants report monthly- to the road trustees the number of feet of lumber, logs, and other heavy material hauled during the preceding month, in order that the tax of two cents per 1,000 feet may be collected.
It is apparent from reading the statute that this report is simply a part of the machinery for collecting taxes, and inasmuch as the statute must be taken as a.whole, if the tax is void for lack of uniformity, then the whole statute falls to the. ground.
Me. Justice Allen concurs in this opinion.