(after stating the facts). The decision of the circuit court was wrong. The Legislature of 1917 passed an act regulating the working of public roads and highways in Arkansas County, and providing a tax therefor. Acts of 1917, volume 2, page 2173. Section 1 provides that all nonresidents of the State of Arkansas owning land in Arkansas County shall pay an annual road tax of $4.50, -and that said tax shall be Collected in the same manner that other taxes are collected.
The Legislature of 1919 passed an act for the better working of roads in Arkansas County which is amendatory to the act passed in 1917. Special Acts, of Arkansas, page 180. Section 2 uf that act provides that the tax against nonresidents of the State of Arkansas owning land in Arkansas County as provided for in section 16 of act 472, approved March 28, 1917, shall be ten cents per acre per annum for each acre of land owned instead of $4.50 per owner. The section further provides that the tax shall be collected each year in the same manner as other taxes are collected.
The act is unconstitutional. Section 5, article 16 of the Constitution of 1874 provides that all property subject to taxation shall be taxed according to its value, to be. ascertained in such manner as the General Assembly shall direct, making the same equal and uniform throughout the State. The section further provides that one species of property from which a tax may be collected shall not be taxed higher than another species of property of equal value.
*554It is apparent from reading the section of the constitution just referred to, that the act under consideration is in violation of its provisions. It provides for a road tax of ten cents per acre upon the land of nonresidents when no such tax is imposed upon the land of residents of this State. Hence the act is discriminatory and must be declared unconstitutional.
The question of whether the Legislature could impose an acreage tax for road purposes on lands generally is not involved in this suit; for the act in question only imposes such tax upon the lands of nonresidents. Therefore we do not pass upon the question of whether or not such a tax could be imposed upon all lands alike.
It is insisted, however, that the tax was paid voluntarily, and on that account can not be recovered. In making this contention counsel for the defendant rely on the case of Brunson v. Board of Directors, 107 Ark. 24. In that case the landowner in a levee district made a payment. of taxes under an. illegal assessment with knowledge of the facts, and the court held that the payment was voluntary, and that the taxes could not be recovered. In that case, if the landowner had refused payment to the collector, the latter had no authority to levy upon and seize his lands to enforce payment. The statute required suit to be brought by the board of directors of the levee district to collect the taxes. The landowner could have made his defense in that suit, and thus would have had his day in court.
In the instant case the collector could have sold the lands for the nonpayment of the taxes, and this would have constituted a cloud upon its title. To prevent this the owner had the right to pay the taxes under protest and then sue the collector to recover them. This brings the case within the principle announced in Dickinson v. Housley, 130 Ark. 259.
It follows that the judgment must be reversed and the cause will be remanded for further proceedings according to the law and not inconsistent, with this opinion.