This is an appeal by the state from the judgment of the district court of Dona' Ana County, dismissing a criminal complaint against defendant, entered upon 'the latter’s motion to dismiss at the close of all the evidence in the trial de novo of an appeal by defendant^ from a convic*184tion before the Justice of the Peace of Precinct No. 6 in Dona Ana County, of a violation of L.1941, c. 165, § 1(a).
The portion of the act which the defendant was charged with violating, L.1941, c. 165, § 1(a), reads as .follows: “A nonresident owner, except as otherwise provided in this section, owning any foreign vehicle which has been duly registered for the current calendar year in the state, county or other place of which the owner is a resident and which at all times when operated in this state has displayed upon it the number plate or plates issued for such vehicle in the place of residence of such owner, may operate or permit the operation of such vehicle within this state without registering such vehicle or paying any fees to this state, during a period of three months from the time such vehicle is first brought into the state. Provided, however, a non-resident owner of a vehicle of a type subject to registration in this State, who, while residing in this State, accepts gainful employment within this state shall for the purposes of, and subject to the provisions of this code, be considered a resident of this State.”
The language of the proviso, which is in italics, was added by amendment in 1941. Prior thereto no distinction was made in the application of this subsection of the act to a nonresident, whether gainfully employed or not. The amendment became effective on April 13, 1941. The evidence disclosed defendant’s nonresidence. He arrived in Dona Ana County from Texas on July 4, 1941, driving a four-door Ford sedan of which he was the owner, duly registered and licensed in the state of Texas for the years 1941 and 1942. The defendant was a skilled fruit and canteloupe packer at which occupation he accepted gainful employment in Dona Ana County on July 16, 1941. Having failed and refused thereafter to obtain a New Mexico license for said automobile, as requested by an officer of the State Police, the defendant’s arrest, trial before the justice of the peace and conviction followed as aforesaid. He appealed to the district court from the conviction and the ten-dollar fine imposed by the justice of the peace. In the district court when the evidence adduced by both sides was all in, the defendant interposed the following motion, to-wit: ■
“Mr. Garland: Comes now the defendant and moves the Court to dismiss the case against him on the following grounds, to-wit:
“1. The statute or amendment is unconstitutional in that it imposes a burden upon the Defendant and those in his class that is not imposed upon others of the .same class, and therefore constitutes unwarranted class legislation because it discriminates in favor of one class of citizens, granting to them privileges and immunities denied others in the same class, in violation of the Fourteenth Amendment of the United States Constitution and in violation of Article 4, Section 26 of the New Mexifco Constitution.
*185“2. The statute or amendment is unconstitutional in that it denies to the Defendant and those in his class the equal protection of the laws guaranteed by the Fourteenth Amendment of the Constitution of the United States and by Article 2, Section 18 of the New Mexico Constitution.”
Treating the motion as an interlocutory one to quash a complaint charging facts as disclosed by the evidence, the court sustained the same and entered judgment dismissing the complaint. The state appeals under the authority of 1929 Comp., § 105-2527. The main question presented is whether the act as amended violates the Fourteenth Amendment to the federal constitution and Article 2, § 18 of the State Constitution as deiiying to the defendant the equal protection of the laws.
The State as appellant places chief reliance on the decisions of this court in the cases of Davy v. McNeill, 31 N.M. 7, 240 P. 482, and Hutcheson v. Atherton, 44 N.M. 144, 99 P.2d 462, 465. We think those cases are not decisive. In them we recognized the general rule that in classifying for purposes of legislation the lawmakers are accorded a wide field of choice and that their groupings will not be disturbed merely because the basis adopted therefor may appear to us unreasonable and unjust, if it plausibly could have seemed reasonable to them. The question regarding classification is always, as said in Hutcheson v. Atherton, supra: “Is it so wholly devoid of any semblance of reason to support it, as to amount to mere caprice, depending on legislative fiat alone for support? If so, it will be stricken down as violating constitutional guaranties. But the fact that the legislature has adopted the classification is entitled to great weight.”
We recognized, however, that legislative action in this behalf is necessarily subject to judicial review. The cases already cited, as well as the earlier ones of State v. Atchison, T. & S. F. Ry. Co., 20 N.M. 562, 151 P. 305, and McKinley Board of Education v. Tax Commission, 28 N.M. 221, 210 P. 565, 566, so affirm. As said in McKinley Board of Education v. Tax Commission: “The Legislature is not entitled to exercise an arbitrary power of classification. The power must be exercised within the limits of reason and of a necessity more or less pronounced. No definite rule can be laid down as to when classification is or is not justified. The special circumstances of each case govern the decision. The classification ‘must be based upon substantial distinctions.’ ”
The test of reasonableness is applied alike whether the legislature be exercising the state’s police power or its taxing power. Asher v. Ingels, D.C., 13 F.Supp. 654, and Gaines & Co. v. Holmes, 154 Ga. 344, 144 S.E. 327, 27 A.L.R. 98. Likewise, the distinction imposed should find some reasonable support in or relationship to the purpose of the law.
“Legislative classification to be constitutional must be based upon some sub*186staritial foundation, it may not be arbitrary, it must be germane to the purpose of the law.” H. P. Welch Co. v. State, 89 N.H. 428, 199 A. 886, 889, 120 A.L.R. 282. See, also, Commonwealth v. Alden Coal Co., 251 Pa. 134, 96 A. 246, L.R.A.1916F, 154, and Morf v. Ingels, D.C., 14 F.Supp. 922.
Bearing these considerations in mind, it becomes pertinent to inquire what there is in gainful employment which creates that substantial distinction between the two classes or groups of nonresidents necessary to justify the imposition of the license fee as to the one and its exemption as to the other? We are unable to find a satisfactory answer to the inquiry nor can we see wherein the legislature plausibly could have done so.
As will be seen from the language of this section of the act the unemployed nonresident owning an automobile duly registered for the current year in another state enjoys immunity for three months from registering the same in New Mexico. Whereas, another member of the same general group automatically becomes subject to the requirement of registration upon accepting gainful employment. Conceivably and under the strict letter of the act this could be true of employment for so short a period as a week, or even a single day, occurring at the beginning of a nonresident’s three months’ sojourn in the state.
The appellee cites instances of the operation of the act on nonresidents of his class to illustrate the hardship, injustice and inequality of the law. They follow from his brief:
“The surgeon for the Crippled Childrens’’ Hospital at Hot Springs, New Mexico, is a resident of Texas, but drives up to Hot Springs at regular intervals to treat patients at the hospital. He is gainfully employed in New Mexico. He is subject to' the amendment.
“A teacher from another state desires to teach at the University of New Mexico' or at State College during the summer. He will not be here full three months. No> matter how valuable his services may be, if he accepts the position for the brief summer term, he is subject to the act.
“A musical, chautauqua or other educational or cultural troup may be asked to give performances in this state. If they drive their own cars into the State and receive compensation for their services,, they are subject to the act.
“A great lecturer may be invited to speak ’or lecture at some town or institution in-the State. If he drives his own car and is paid for his services, he may expect the State Police to cite him to the nearest tag agent.
“A citizen of Texas or some other state may be on his way to Arizona or California and passing through New Mexico. If sickness or some other reason force him to stop en route and work a day or so in New Mexico, he must obtain a license or be punished, even though he intends merely to pass through the State.
*187“If a doctor or lawyer from another state has but one patient or client in New Mexico, comes into the state in his own car and renders services for compensation to such patient or client, he must obtain a license for his car or be guilty of violating the law.”
Without indicating a view as to whether the act could be successfully invoked as to each supposed case, as to some, at least, it is obvious a good faith administration of the law, would compel efforts, with justifiable expectation of success, to enforce compliance with the law. In the instant case, the appellee entered the state for a short period to pursue his occupation as an expert fruit packer. As is well known, these migratory and seasonal farm workers come yearly at harvest time, pursue their trade or calling and move on. Without their expert assistance an appreciable portion of certain crops likely would perish unharvested. Aside from the fact that hardship to the gainfully employed nonresidents and the resident farmers might result from the application of the act, it would seem from an examination of the act that we have in the instant case an attempt by the legislature to create a class within a class of nonresidents.
“While classification is proper, there must always be uniformity within the class. If persons under the same circumstances and conditions are treated differently, there is discrimination and not classification.” See 6 R.C.L. § 370.
Do we not have here a general class, viz. nonresident owners or operators of motor vehicles? And is not this general class arbitrarily divided within itself, by the act of the legislature, when it seeks to impose a license fee on those within the class who are gainfully employed and exempting those within the same class who are not ? Such differentiation is discrimination and not classification.
Seeking a reasonable basis for the classification, although the act does not so state, the Attorney General relates the legislation to the use of the highways, a field in which admittedly the legislature has a broad discretion. It is suggested that perhaps the legislature entertained the thought that a gainfully employed nonresident would use the highways more than other nonresidents. The argument, upon reflection, proves a boomerang. We may notice judicially the fact that the class of nonresident car owners remaining in the state three months, not gainfully employed, is made up largely of tourists drawn to New Mexico by its renowned climate and historic background. Obviously, this type of visitor, on pleasure bent, will make a much more extensive use of our highways than the itinerant worker or other nonresident sojourner whose economic condition may induce the acceptance of gainful employment within a short time following his arrival.
And it was further suggested by appellant that a gainfully employed nonresident might take away employment from a resident of this state. The courts do not inquire into the motives of the legislature. However, in passing it may be *188argued, with some force, that a gainfully employed nonresident contributes the value of his work in return for the compensation he is paid. He contributes service and the expense of his living while he is here in keeping with his economic status, as the tourist contributes money for the benefits that he derives. The nonresident gainfully employed and the nonresident visitor each pays for what he receives even though there is a difference in the medium of payment. It may be assumed that “The laborer is worthy of his hire,” and therefore that he contributes his labor in return for his wages and that those who employ him have received value, so that his remuneration does not come within the category of gratuitous benefits. But whether of the one or the other group, all nonresidents become subject to .the requirements of the act at the end of a three months’ period.
In Asher v. Ingels, D.C., 13 F.Supp. 654, 658, there was before the court for consideration, a California statute which classified used automobiles for purposes of the act. One class comprised secondhand-automobiles originating in California. The other embraced secondhand automobiles previously registered in another state. As to the latter, the act imposed a larger registration fee. The court held the act invalid under the Fourteenth Amendment to the federal constitution. Among other things, the opinion states:
“Nevertheless, there must be no arbitrariness or discrimination in the exercise of the power. And courts must, without substituting their judgment for that of the Legislature, be in a position to say that there is an actual relation between the law and the purported objective to be attained. * * *
“The principle (adverted to by the Attorney General) that the state has the right to determine the condition upon which its roads shall be used has therefore no application here. The state has placed arbitrarily used automobiles into two arbitrary classifications. To one classification comprising automobiles originating in California it applies one rule. To them it grants a transfer for the asking. The other class consists of secondhand automobiles which have previously been registered in another state. Upon them it imposes a larger registration fee. * * *
“Such suppression of competition may be as effective through the exercise of the police power as through the exercise of the taxing power. Both may result in the unlawful erection of barriers between the states. Both may as effectively enthrone that arbitrariness which is a denial of the due process and the equal protection of laws guaranteed by the Fourteenth Amendment. Of the true effect of such provisions, the Supreme Court, in Buck v. Kuykendall, 1925, 267 U.S. 307, 308, 45 S. Ct. 324, 326, 69 L.Ed. 623, 38 A.L.R. 286, has said: ‘Its primary purpose is not regulation with a view to safety or to conservation of the highways, but the prohibition of competition. It. determines, not the manner of use, but the persons by whom *189the highways may be used. It prohibits such use to some persons, while permitting it to others for the same purpose and in the same manner.’ ”
In Sherman Clay & Co. v. Brown, 131 Wash. 679, 231 P. 166, at page 168, a case in which an ordinance requiring the registration of all articles purchased by secondhand dealers except a certain class of them was held unconstitutional as unreasonable class legislation, the Court said: “This case emphasizes a situation which is present in the case at bar, and it might be, as we will see from a citation of subsequent cases, that in the exercise of its regulatory powers, the city might pass an ordinance creating a certain class of persons subject to that regulation, and excluding others from the operation of it, but when, as in the case at bar, it makes a general classification which covers all persons, say, dealing in secondhand goods, it cannot thereafter, without being guilty of discrimination, exempt a part of those of the general class covered by the ordinance from the operation of such ordinance. In other words, as noted in the Macho case [City of Spokane v. Macho, 51 Wash. 322, 98 P. 755, 21 L.R.A.,N.S., 263, 130 Am.St. Rep. 1100], supra, what is attempted to be done here is to exempt a class within a class. Certain kind of secondhand dealers are allowed certain privileges and immunities not granted to the balance, and this without any reasonable distinction between the characters of their businesses.”
That is what Chap. 165, L.1941 attempts to do. Nonresidents come within a general classification and prior to the enactment of said act, all were allowed three months’ exemption from obtaining a permit to operate their cars on the highways of this State. The act now attempts to exempt a part of those within the general class and force the balance to obtain permits. In other words, taxing a class within a class. This is in contravention of Art. 4, § 26 of the State Constitution.
The rule is stated in 16 C.J.S., Constitutional Law, § 465, p. 925: “ * * * Such exemptions, however, must apply to all alike who are of the classes and in the situation included; and if the statute or ordinance granting the exemption has the effect of conferring on certain persons privileges or immunities not granted to other persons similarly situated or not performing similar public services, it is unconstitutional. * * * ”
In support of the reasonableness of the classification here challenged, it has been pointed out that a few other states have similar statutes governing the registration of automobiles of nonresident motorists. Admittedly none of these statutes of sister states has been upheld as against the challenge here made, or even tested in the light of it. The existence of these statutes has been given due weight in our consideration of the question presented but the decisive inquiry remains whether reasonable basis exists for the distinction made between the nonresident who does not and him who does, within ninety days after entering the state, accept gainful employment. The *190registration fee being for the privilege of using the highways as this Court has held in State v. Ingalls, 18 N.M. 211, 135 P. 1177, it was perfectly natural for the Attorney General to seek to relate it to the use of the highways. The suggestion, however, was not seriously urged in view of the known fact that pleasure seeking tourists make much greater use of our highways than seasonal farm laborers or other migratory workers.
The only other basis put forward to support the classification is that it has the economic purpose of protecting home labor. However, to be valid the distinction must be germane to the purpose of the law. H. P. Welch Co. v. State, supra; Commonwealth v. Alden Coal Co., supra; Morf v. Ingels, supra. Counsel have not attempted to point out the relationship, if any, existing between the protection of home labor and the use of our highways. We see none. Furthermore, if we assume this economic purpose to be the basis of the classification, in accomplishing such purpose, the Legislature may not override the constitutional guaranty of equal protection to the group of nonresidents aimed at—those accepting gainful employment—in favor of another and privileged group of nonresidents whose economic security 'is such that they are not compelled to seek employment.
We think the trial court properly sustained the appellee’s challenge against the validity of the act as denying equal protection of the law contrary to guaranties found both in the state and federal constitutions. Morf v. Ingels, D.C., 14 F.Supp. 922; People v. Chicago, M. & St. P. Ry. Co., 306 Ill. 486, 138 N.E. 155, 28 A.L.R. 610; Woolf v. Fuller, 87 N.H. 64, 174 A. 193, 94 A.L.R. 1067; People v. Henry, 131 Cal.App. 82, 21 P.2d 672; State v. Cohen, 133 Me. 293, 177 A. 403; Henry Fisher Packing Co. v. Mattox, 262 Ky. 318, 90 S. W.2d 70.
It follows from what has been said that the former opinion herein reached an erroneous result. It and the dissenting opinion directed to it already having been withdrawn, we conclude that the judgment of the lower court should be affirmed.
It is so ordered.
SADLER, MABRY, and BRICE, JJ., concur.
ZINN, C. J., being absent, did not participate.