Clean Water Coalition v. the M Resort, LLC

OPINION

By the Court,

Confronting a statewide budget crisis, the Nevada Legislature, during the 2010 special session, undertook several revenue-adjustment and cost-cutting measures in an effort to balance the State’s budget, which resulted in the enactment of Assembly Bill 6 (A.B. 6), 26th Special Session (Nev. 2010). Section 18 of A.B. 6 mandates the transfer of $62 million in securities and cash from a political subdivision of the State created by interlocal agreement into the State’s general fund for the State’s unrestricted, general use.

In this appeal, we are asked to consider whether A.B. 6, section 18 violates the fundamental law of the state — the Nevada Constitution. We recognize that the Legislature is endowed with considerable lawmaking authority under Article 4, Section 1 of the Nevada Constitution. But that authority is not without some restraints. Two such restrictions are contained in Article 4, Section 20, which prohibits, among other things, local and special laws for the “assessment and collection of taxes for state . . . purposes,” and Article 4, Section 21, which requires laws to be “general and of uniform operation throughout the State” in all cases “where a general law can be made applicable.”

We conclude that A.B. 6, section 18 violates both. A.B. 6, section 18 converts $62 million collected by the Clean Water Coalition (CWC) as user fees into a tax that is contrary to Article 4, Section 20’s prohibition against local or special taxes. Because A.B. 6, section 18 applies only to the CWC, and a general law could have applied, it also violates Article 4, Section 21’s mandate that all laws shall be general and operate uniformly throughout the state in all cases where a general law can be made applicable. For those reasons, we reverse the district court’s judgment declaring A.B. 6, section 18 constitutional.

FACTS AND PROCEDURAL HISTORY

The Clean Water Coalition

The Clean Water Coalition was created pursuant to an interlocal cooperative agreement among four Nevada political subdivisions, *306 all located in Clark County: the Clark County Water Reclamation District and the cities of Henderson, Las Vegas, and North Las Vegas. 1 In accordance with NRS 277.080-.180, the four members agreed to form the CWC based on their “common environmental, economic and regulatory interest in the efficient and responsible collection, treatment, reuse and discharge of municipal [e]fflu-ent.” 2 The agreement lists the CWC’s conferred functions, the first of which is to implement the Systems Conveyance and Operations Program (SCOP), which involves planning, designing, financing, constructing, operating, and maintaining a regional system to convey effluent from existing and future wastewater treatment facilities to its ultimate outfall location in the Colorado River system. The interlocal agreement recognizes that the SCOP may include physical facilities such as pipelines and real and personal property, including leases of such property, permits, and licenses. Other CWC functions include managing effluent flowing through CWC facilities and contracting to sell or lease power produced from energy recovery facilities that might be constructed.

The CWC’s powers include, among others, preparing, reviewing, approving, and implementing regional water quality plans; adopting and amending operating and capital improvement plans and budgets; financing facilities that may be needed to carry out its conferred functions, including funding all aspects of the SCOP; assessing members for their agreed share of administration, operation, maintenance, and capital costs; and establishing and adjusting regional sewer connection and user fees to defray CWC costs. Each of the CWC’s members collected sewer connection and usage fees from households and businesses, including The M Resort and other cross-appellants, in their respective localities, and then paid the CWC with the funds from the collected fees, in part to finance *307 the building of the SCOP. The CWC had been collecting the fees since approximately November 2002, 3 but by October 2010, it stopped collecting. It is unclear whether the SCOP project has been put on hold indefinitely or terminated altogether. 4

Litigation over A.B. 6, section 18

A.B. 6 was adopted and approved as part of the Legislature’s effort to balance the state’s budget during its 2010 special session. Section 18 of that bill requires the Clean Water Coalition, an entity created pursuant to interlocal agreement by the Clark County Water Reclamation District and the Cities of Henderson, Las Vegas, and North Las Vegas, to “transfer to the State of Nevada securities and cash which together total $62,000,000, for deposit in the State General Fund for unrestricted State General Fund use.” In adopting A.B. 6, section 18(1), the Legislature found and declared that:

(a) The transfer of money from the Clean Water Coalition to the State General Fund is necessary to ensure that the government of this State is able to continue to operate effectively and to serve', the residents, businesses and governmental entities of this State;

(b) The transfer of money from the Clean Water Coalition to the State General Fund will promote the general welfare of this State; and

(c) A general law cannot be made applicable to the provisions of [Section 18] because of special circumstances.

Section 18 became effective on March 12, 2010, and that same day, the CWC filed a district court complaint against the State *308 seeking declaratory and injunctive relief, challenging section 18’s constitutionality on numerous grounds, including that it violated Nevada Constitution Article 4, Section 20, prohibiting local and special laws for the assessment and collection of taxes, and Article 4, Section 21, prohibiting local and special laws where a general law can be made applicable. 5 The M Resort also filed a district court complaint against the State and the CWC, seeking injunctive and declaratory relief and damages, also based on allegations that section 18 is not constitutionally permissible legislation. 6 The two actions were consolidated, and the parties stipulated to other businesses (cross-appellants in this matter) intervening in the actions. The State answered the complaints and filed a counterclaim against the CWC, seeking a declaration that section 18 is constitutional and an order compelling the CWC to transfer the $62 million to the State’s general fund, as mandated under the bill.

Subsequently, on cross-motions for summary judgment, the district court entered an order declaring A.B. 6, section 18 constitutional. The court made eight conclusions of law, all but one of which would support a determination that section 18 is unconstitutional as a tax upon only certain Clark County residents and businesses, or as a local or special law where a general law could have applied. Nonetheless, the court upheld the bill section because it could not conclude without a reasonable doubt that section 18 plainly conflicted with the Nevada Constitution, given its ultimate determination that “each political subdivision remains subject to the overriding sovereign control of statutes enacted by the Legislature.’ ’ The court certified its judgment as final under NRCP 54(b) and, pursuant to the parties’ stipulation, stayed enforcement of the judgment pending appeal. This appeal and cross-appeal followed. 7

*309 DISCUSSION

The CWC and The M Resort and other Clark County business cross-appellants (hereinafter The M Resort) challenge A.B. 6, section 18 on two grounds: that it impermissibly converts funds assessed as user fees and exacted on a local basis into a tax for distribution on a statewide basis in violation of Nevada Constitution Article 4, Section 20; and that it is a local or special law that operates over a particular locality, and is directed at funds obtained from wastewater treatment users in Clark County, in violation of Nevada Constitution Article 4, Section 21, which requires laws to be general and to operate uniformly throughout the state.

The State, on the other hand, maintains that the CWC and its members are subject to the overriding sovereign control of legislatively enacted statutes and that A.B. 6, section 18 is within the Legislature’s authority to enact. That conclusion, however fails to address the principle that the State’s sovereign control over its political subdivisions is not absolute, but rather subject to specific constitutional limitations, including Article 4, Sections 20 and 21, which explicitly limit the Legislature’s authority to enact local and special laws. Although the district court extended unqualified deference to the Legislature’s law-making authority in upholding section 18, the Legislature’s authority to enact a local or special law is constrained by Nevada Constitution Article 4, Sections 20 and 21. A.B. 6, section 18 must, therefore, be analyzed under that constitutional framework.

The Legislature’s authority to enact laws binding upon political subdivisions is subject to constitutional limitations

Although the Legislature’s law-making authority is considerable, it is not unlimited. Galloway v. Truesdell, 83 Nev. 13 , 20, 422 P.2d 237, 242 (1967). Under constitutional checks and balances principles, courts are obligated to enforce the limitations that the constitution imposes upon legislative acts, and in that regard, the district court erred by essentially concluding that A.B. 6, section 18 is insulated from judicial review based on the Legislature’s overriding sovereign authority over political subdivisions. The Nevada Constitution is the “supreme law of the state,” which “control[s] over any conflicting statutory provisions.” Goldman v. Bryan, 106 Nev. 30, 37, 787 P.2d 372, 377 (1990). Thus, although the State argues that the CWC has no authority to disregard A.B. 6, section 18’s mandate to transfer the $62 million to the State’s general fund, the State admits that political subdivisions are not bound by a statute that “violates a specific constitutional limitation.” Article 4 of the Nevada Constitution both confers lawmaking authority on the Legislature, see Nev. Const. art. 4, § 1, *310 and limits that authority in order to protect Nevada citizens from unequal treatment under the laws. See Nev. Const. art. 4, §§ 20, 21.

In determining whether A.B. 6, section 18’s mandate requiring the CWC to turn over $62 million to the State for its unrestricted general use is permissible under the Nevada Constitution’s local and special law proscriptions, we first analyze whether section 18 is local or special legislation. In so doing, we examine the origin of the Nevada Constitution’s proscriptions on local and special laws, as that history provides a framework for our analysis. Since, as explained below, we conclude that A.B. 6, section 18 is both a local and.special law, we next analyze whether it violates Nevada Constitution Article 4, Section 20, which prohibits local or special laws that assess and collect taxes for state purposes, and Article 4, Section 21, which otherwise prohibits local or special laws in cases where a general law could apply. As discussed below, we determine that A.B. 6, section 18 violates both Article 4, Sections 20 and 21, and it therefore fails under the Nevada Constitution.

Nevada constitutional provisions proscribing local and special laws

The Nevada Constitution provides that “[t]he legislature shall not pass local or special laws . . . [f]or the assessment and collection of taxes for state, county, and township purposes,” Nev. Const. art. 4, § 20, and it further requires that “[i]n all cases enumerated in [Section 20], and in all other cases where a general law can be made applicable, all laws shall be general and of uniform operation throughout the State.” Nev. Const. art. 4, § 21. This court has explained the prohibition against local and special laws under Article 4, Sections 20 and 21 as follows:

[I]f a statute be either a special or local law, or both, and comes within any one or more of the cases enumerated in section 20, such statute is unconstitutional; if the statute be special or local, or both, but does not come within any of the cases enumerated in section 20, then its constitutionality depends upon whether a general law can be made applicable.

Conservation District v. Beemer, 56 Nev. 104, 116, 45 P.2d 779, 782 (1935).

Because history instructs the analysis that follows, we first explain the origins of the Nevada Constitution’s proscriptions on such laws and the constitutional framers’ purpose in adopting provisions limiting the Legislature’s authority to enact local and special laws before delving into why A.B. 6, section 18 fits within the proscribed local and special laws set forth under Nevada Constitution Article 4, Sections 20 and 21.

*311 History leading to the adoption of Nevada Constitution Article 4, Sections 20 and 21

During Nevada’s Constitutional Convention in 1864, the delegates, in structuring Article 4, Section 20 for adoption into the Nevada Constitution, used as a guide Indiana’s constitutional provisions prohibiting special legislation. See Debates & Proceedings of the Nevada State Constitutional Convention of 1864, at 466 (Andrew J. Marsh off. rep. 1866); Hess v. Pegg, 7 Nev. 23 (1871) (noting that the language in Nevada’s constitutional provisions proscribing local and special legislation was borrowed from the constitution of Indiana); State of Nevada v. Irwin, 5 Nev. 111, 120 (1869) (pointing out that Article 4, Section 22 of the Indiana Constitution is “verbatim with that of Nevada” Constitution Article 4, Section 20, except that Indiana makes more exceptions to special legislation). The Nevada constitutional framers’ purpose in adopting mandates proscribing local and special legislation was to “remedy an evil into which it was supposed the territorial legislature had fallen in the practice of passing local and special laws for the benefit of individuals instead of enacting laws of a general nature for the benefit of the public welfare.” Evans v. Job, 8 Nev. 322, 333 (1873). The framers of the Indiana Constitution had similar concerns with local and special legislation, deeming the practice of legislators agreeing to vote for the local bills of other legislators in return for comparable cooperation for passing their own local bills a “growing evil.” See Municipal City of South Bend v. Kimsey, 781 N.E.2d 683, 686 (Ind. 2003). The problem with such lawmaking is that when “a law affects only one small area of the state, voters in most areas will be ignorant of and indifferent to it.” Id. Likewise, early in Nevada’s jurisprudence, this court explained that the purpose behind requiring statutes to be general in nature is that when a statute affects the entire state, it is more likely to have been adequately considered by all members of the Legislature, whereas a localized statute is not apt to be considered seriously by those who are not affected by it. Town of Pahrump v. Nye County, 105 Nev. 227, 773 P.2d 1224 (1989); see also Colman v. Utah State Land Bd., 795 P.2d 622, 636 (Utah 1990) (providing that “ ‘[a] law is general when it applies equally to all persons embraced in a class founded upon some natural, intrinsic, or constitutional distinction. It is special legislation if it confers particular privileges or imposes peculiar disabilities, or burdensome conditions in the exercise of a common right; upon a class of persons arbitrarily selected, from the general body of those who stand in precisely the same relation to the subject of the law’ ” (quoting Utah Farm Bur. Ins. Co. v. Utah Ins. Guar. Ass’n, 564 P.2d 751, 754 (Utah 1977))). At their core, local and special law proscriptions “reflect a concern for equal treatment under the law,” Robert F. Williams, Equality Guarantees in State Constitutional Law, 63 *312 Tex. L. Rev. 1195, 1209 (1985), and seek to fix inequities in the areas of “economics and social welfare.” See Donald Marritz, Making Equality Matter (Again): The Prohibition Against Special Laws in the Pennsylvania Constitution, 3 Widener J. Pub. L. 161, 184-85 (1993) (explaining the origins of Pennsylvania’s constitutional prohibition against special laws).

Although the Nevada Constitution expresses a preference for generally applicable laws, local or special laws are not ipso facto unconstitutional. Nev. Const. art. 4, §§ 20, 21; see W.R. Co. v. City of Reno, 63 Nev. 330, 352-53, 172 P.2d 158, 169 (1946). A local or special law may be upheld so long as (1) it does not come within any of the cases enumerated in Nevada Constitution Article 4, Section 20; and (2) a general law could not have been made applicable. Nev. Const. art. 4, § 21; see Anthony v. State of Nevada, 94 Nev. 337, 580 P.2d 939 (1978); Cauble v. Beemer, 64 Nev. 77, 96, 177 P.2d 677, 686 (1947); Conservation District v. Beemer, 56 Nev. 104, 45 P.2d 779 (1935). For the reasons explained below, A.B. 6, section 18 fails on both counts.

A.B. 6, section 18 is a local and special law

The CWC and The M Resort argue that because A.B. 6, section 18 applies in only a single Nevada county, and only to users of the municipal or county sewer systems in that county, it is a local law, and because it applies specifically and directly to a single entity in the state to the exclusion of all others similarly situated, it is a special law. The CWC also points out that the assembly bill’s text admits that it is being used in lieu of a general law. The State responds that even though, on its face, A.B. 6, section 18 operates selectively in a few political subdivisions and in only a limited geographical area, it is not a local or special law because it advances supervening statewide budget concerns that transcend purely local interests. The State also urges this court to disregard the legislative admission that section 18 is being used in lieu of a general law.

A law is local if it operates over “a particular locality instead of over the whole territory of the State.” Damus v. County of Clark, 93 Nev. 512, 516, 569 P.2d 933, 935 (1977) (citing State of Nevada v. Irwin, 5 Nev. 111, 121 (1869)). A law is special if it “pertain[s] to a part of a class as opposed to all of a class.” Id. (citing Irwin, 5 Nev. at 121); see State of Nevada v. Cal. M. Co., 15 Nev. 234, 249 (1880) (describing a special law as one that “imposes special burdens, or confers peculiar privileges upon one or more persons in no wise distinguished [way] from others of the same category”). On the other hand, a general law is one that is applied uniformly. Nev. Const. art. 4, § 21; see Black’s Law Die- *313 tionary 963 (9th ed. 2009) (defining a general law as one that is “neither local nor confined in application to particular persons”).

In drafting A.B. 6, section 18, the Legislature found and declared that “[a] general law cannot be made applicable to the provisions of this section because of special circumstances.” A.B. 6, § 18(l)(c), 26th Spec. Sess. (Nev. 2010). The State acknowledges that when legislative findings are expressly included within a statute, those findings should be accorded great weight in interpreting the statute, but it points out that such findings are not binding and this court may, nevertheless, properly conclude that section 18 is a general law despite the Legislature’s declaration to the contrary. McLaughlin v. L.V.H.A., 68 Nev. 84, 93, 227 P.2d 206, 210 (1951); Dunn v. Tax Commission, 67 Nev. 173, 184, 216 P.2d 985, 991 (1950). The Legislature’s express finding and declaration that section 18 is not a general law, however, is consistent with the bill section’s text, which, as the district court found, is directed specifically at the CWC and funds collected from wastewater treatment users within specified areas of Clark County. The law applies only to the CWC. The State argues that a law need not be operative in every part of the state to be general, but the determination of whether a law is local or special is based on how it is applied, not on how it actually operates. See County of Clark v. City of Las Vegas, 97 Nev. 260, 628 P.2d 1120 (1981) (noting that a statute with a population classification is not necessarily contrary to Article 4, Sections 20 and 21, because if the classification applies prospectively to all counties that could come within its population class, it is neither local nor special).

Although the State asserts that the law is general because it advances supervening statewide concerns that transcend local interests, the case on which the State relies, State ex rel. List v. County of Douglas, does not support that proposition. 90 Nev. 272, 278, 524 P.2d 1271, 1275 (1974). Instead, in List, this court upheld a statute, enacted pursuant to a compact between Nevada and California that required the Nevada counties bordering Lake Tahoe to pay apportioned shares from their general funds to the Tahoe Regional Planning Agency, holding that the *314 List, 90 Nev. at 279, 524 P.2d at 1275. Thus, the holding is based on the conclusion that the statute’s purpose was to conserve a common “natural resource for the enjoyment of all people” that is not confined to a local area. Id. In so holding, the court in List agreed with the California Supreme Court, which, in addressing a challenge to the same compact under similar California constitutional provisions reasoned that

*313 preservation of the region of the Lake Tahoe Basin as a natural resource for the enjoyment of all people sets it apart from the embrace of the commands of [Nevada Constitution Article 4, Sections 20 and 21]. Were we to rule otherwise, every interstate compact proposing to protect and preserve a common natural resource through an agency empowered to enact laws would be a nullity. We are wholly unable to attribute such an intention to those who wrote the prohibitions of [Article 4, Sections] 20 and 21.

*314 “[t]he water that the Agency is to purify cannot be confined within one county or state; .... The wildlife which the Agency should protect ranges freely from one local jurisdiction to another. . . . Only an agency transcending local boundaries can devise, adopt and put into operation solutions for the problems besetting the region as a whole. Indeed, the fact that the Compact is the product of the cooperative efforts and mutual agreement of two states is impressive proof that its subject matter and objectives are of regional rather than local concern.”

Id. (quoting People ex rel. Younger v. County of El Dorado, 487 P.2d 1193, 1201 (Cal. 1971)).

List, unlike this case, addresses regional concerns and the preservation of a natural resource directly affected by inhabitants of that region. Here, a natural resource common to an interstate region is not at issue; instead, A.B. 6, section 18 is in the reverse and addresses statewide concerns through legislation that applies only to the CWC and funds collected from wastewater-treatment users within a certain locality. Since section 18 on its face advances statewide objectives, but burdens only the CWC by appropriating funds collected from certain residents and businesses within a particular locality for the state’s general use, it is special (pertaining to only the CWC) and local (applying to only a particular locality). Damus, 93 Nev. at 516, 569 P.2d at 935; Cal. M. Co., 15 Nev. at 249.

By requiring the CWC to turn over fees it assessed against its members for capital improvement projects and services for the benefit of Las Vegas Valley sewer service users, A.B. 6, section 18 imposes an unconstitutional local and special tax against the CWC in violation of Nevada Constitution Article 4, Section 20

The Legislature is not permitted to pass local or special laws “[f]or the assessment and collection of taxes for state, county, and township purposes.” Nev. Const, art. 4, § 20. An exaction of money for the purpose of generating revenue is a tax. Douglas Co. Contractors v. Douglas Co., 112 Nev. 1452, 1457, 929 P.2d 253, 256 (1996); State v. Boyd, 27 Nev. 249, 256, 74 P. 654, 655 *315 (1903); see also Hawaii Insurers Council v. Lingle, 201 P.3d 564 (Haw. 2008); 71 Am. Jur. 2d State and Local Taxation § 13 (2001) (explaining that a charge is a tax if its purpose is to raise revenue). While a tax is compulsory and it entitles the taxpayer to receive nothing except the governmental rights enjoyed by all citizens, a user fee is optional and applies to a specific charge for the use of publicly provided services. See U.S. v. City of Huntington, W.Va., 999 F.2d 71, 74 (4th Cir. 1993) (explaining that “[u]ser fees are payments given in return for a government-provided benefit”; while taxes are “ ‘enforced contribution^] for the support of government’ ” (alteration in original) (quoting United States v. La Franca, 282 U.S. 568, 572 (1931))); City of Gary, Ind. v. Indiana Bell Tel., 732 N.E.2d 149, 156 (Ind. 2000).

Other courts, in addressing the issue of whether an exaction amounts to a tax, have explained that “the nature of the tax or charge that a law imposes is not determined by the label given to it but by its operating incidence.” State v. Medeiros, 973 P.2d 736, 741 (Haw. 1999) (internal quotation omitted) (citing City of Huntington v. Bacon, 473 S.E.2d 743, 752 (W. Va. 1996) (“ ‘It is a well-nigh universal principle that courts will determine and classify taxation on the basis of realities, rather than what the tax is called in the taxing statute or ordinance.’ ’ ’ (quoting Hukle v. City of Huntington, 58 S.E.2d 780, 783 (W. Va. 1950))); Emerson College v. City of Boston, 462 N.E.2d 1098, 1105 (Mass. 1984) (explaining that ultimately, “the nature of a monetary exaction must be determined by its operation rather than its specially descriptive phrase” (internal quotation omitted))). Thus, to distinguish between a “fee” and a “tax,” the Hawaii Supreme Court in Medeiros adopted a modified version of the test articulated by the Massachusetts Supreme ludicial Court in Emerson College, which analyzes whether the charge “(1) applies to the direct beneficiary of a particular service, (2) is allocated directly to defraying the costs of providing the service, and (3) is reasonably proportionate to the benefit received.” Medeiros, 973 P.2d at 742. If those criteria fit the charge, it is a fee. Id. at 742-45.

Here, the amounts collected by the CWC members through assessments were directed at capital improvement projects (mainly the SCOP) and sewer services. As the district court concluded in its summary judgment, such fees are user fees. 8 Applying the *316 Medeiros test, the fees were to be applied for the benefit of members who provided sewer services, they were allocated to defray capital improvement project and sewer service costs, and they were proportionate to the benefits included in the CWC’s capital improvement plan (in particular, the SCOP, which the district court estimated would cost $850 million to construct) that was in effect when A.B. 6 was enacted and when the district court rendered its decision. Id. at 742.

This court has not addressed whether user fees collected for capital improvement projects and sewer services are transformed into a tax through a subsequent law directing their transfer into the State’s general fund, but it has addressed the issue of whether an ordinance exacting a fee from subdivision contractors for purposes of supporting county school capital improvements was properly characterized as a regulatory measure or a tax. Douglas Co. Contractors v. Douglas Co., 112 Nev. 1452, 1459, 929 P.2d 253, 257 (1996). In that case, looking at the ordinance’s “true purpose” to determine whether it was regulatory or revenue-raising, the court reasoned that the ordinance that implemented the “fair share cost” (FSC) program was being utilized to benefit the entire county rather than the new subdivision against which the fee was assessed. Id. It then concluded that “any regulatory features of the FSC are incidental to its true purpose — to raise revenue to finance construction benefitting the County at large and not simply the subdivision at issue.” Id. Since the FSC was “clothed with the in-dicia of a tax rather than a regulatory measure,” this court held that the FSC program was an impermissible tax. 9 Id. at 1459, 929 P.2d at 257-58. In so doing, this court explained that “ ‘when it appears from the Act itself that revenue is its main objective, and the amount of the tax supports that theory, the enactment is a revenue measure.’ ” Id. at 1457, 229 P.2d at 256 (quoting Eastern Diversified v. Montgomery County, 570 A.2d 850, 854 (Md. 1990)).

Applying that reasoning to this case, the purpose of A.B. 6, section 18 is to help correct the state’s revenue shortfall. Revenue- *317 raising acts are defined as taxes. Id. Although the State distinguishes Douglas County Contractors on the basis that the ordinance in that case involved the “collection of regulatory fees,” and argues that this case involves “reasonable utility fees,” the holding in Douglas County Contractors rests on the exaction’s true purpose. A.B. 6, section 18 takes the revenue obtained from user fees collected by the CWC members from business and residents within their respective jurisdictions with the intention of applying those fees to unrestricted statewide general fund uses. Such a broad-range-intended use “is of weight in indicating that the charge is a tax.” Emerson College, 462 N.E.2d at 1106 (internal quotation omitted). “[SJtatutory earmarking of proceeds for [purposes other than what they were assessed] is more consistent with a revenue raising purpose than with an intent to recover . . . expenditures” related to the CWC’s conferred functions. Id. Applying that reasoning here, A.B. 6, section 18’s mandate directing the CWC to transfer money to the State’s general fund for statewide-unrestricted-general use is an impermissible local and special tax. Id.; see La Franca, 282 U.S. at 572 (defining taxes as the “enforced contribution to provide for the support of government”).

The State, in arguing that A.B. 6, section 18 is not an impermissible tax under Nevada Constitution Article 4, Section 20, relies in part on Barber v. Ritter, in which the Colorado Supreme Court upheld statutes requiring money to be transferred from state special cash funds that were financed by user fees, surcharges, and special assessments into the state’s general fund. 196 P.3d 238 (Colo. 2008). We are not persuaded, however, that the reasoning in Barber applies to this case for two reasons. First, the challenge against the statute requiring the money transfer in this matter is based on the Nevada Constitution’s prohibition against local and special laws under Article 4, Sections 20 and 21, and the plaintiffs/appellants in Barber challenged the statutes at issue in that case under the Colorado Taxpayer’s Bill of Rights (TABOR), an amendment to the Colorado Constitution passed in 1992 by citizen initiative that was aimed at limiting government spending without taxpayer approval. See Colo. Const. art. X, § 20 (1992); Barber,