street sprinkling is a governmental with Mr. Conrad H. Syme, filed a brief for the District of Columbia: function. Answered in the affirmative. The facts are stated in the opinion. Mr. Rossa F. Downing argued the cause and filed a brief for Adelbert Harris: The defendant is liable for its negligence in the care of streets. Weightman v. Washington, 1 Black, 39, 17 L. ed. 52; Barnes v. District of Columbia, 91 U. S. 540, 23 L. ed. 440; District of Columbia v. Woodbury, 136 U. S. 450, 34 L. ed. 472, 10 Sup. Ct. Rep. 990. The protection of the public health by a municipality is a function which it exercises in its governmental and legislative capacity, and for which it is not of its omissions or negligence in that answerable to an individual by reason regard. Coates v. District of Columbia, 42 App. D. C. 194; 4 Dill. Mun. Corp. 5th ed. § 1662; Haley v. Boston, 191 Mass. Bruhnke v. La Crosse, 155 Wis. 485, 50 291, 5 L.R.A. (N.Š.) 1005, 77 N. E. 888; The sanitary feature of the street-Louisville v. Carter, 142 Ky. 443, 32 L.R.A. (N.S.) 1147, 144 N. W. 1100; sprinkling operation does not bring the case within the rule that a municipal corporation is not liable for negligence when performing a public or governmental function. Quill v. New York, 36 App. Div. 476, 66 N. Y. Supp. 889, 5 Am. Neg. Rep. 423; Missano v. New York, 160 N. Y. 126, 54 N. E. 744, 6 Am. Neg. Rep. 652; Barney Dumping-Boat Co. v. New York, 40 Fed. 50; Young v. Metropolitan Street R. Co. 126 Mo. App. 2, 103 S. W. 135; Denver v. Porter, 61 C. C. A. 168, 126 Fed. 288; Pass Christian v. Fernandez, 100 Miss. 76, 39 L.R.A. (N.S.) 649, 56 So. 329; Ostrom v. San Antonio, 94 Tex. 525, 62 S. W. 909, Tex. Civ. App. 60 S. W. 591; Denver v. Davis, 37 Colo. 370, 6 L.R.A.(N.S.) 1013, 119 Am. St. Rep. 293, 86 Pac. 1027, 11 Ann. Cas. 187. Messrs. Francis H. Stephens and Robert L. Williams argued the cause, and, which held that a village, under its pow- | er to improve and repair its streets, had the right to put a reservoir or cistern within the limits of the highway, for the purpose of retaining water to be used in sprinkling the streets and extinguishing fires, the court said: "All those acts which tend to facilitate travel and add to the ease, comfort, and convenience of the traveler or his beasts, whether it be by cutting down the hill, filling the ravines, paving the roads, erecting watering troughs, or sprinkling the streets, are acts which it is proper and often necessary, for the public to do. And in a village containing so numerous and active a population as St. Johnsbury, no other one of these acts, perhaps, would add so much to the comfort of the passers on the highway as well as all the inhabitants of such village, as that of sprinkling the streets." Street sprinkling is a public, rather than a private, improvement, within the rule limiting the expenditure of public L.R.A.(N.S.) 637, 134 S. W. 468; Johnson v. Somerville, 195 Mass. 370, 10 L.R.A.(N.S.) 715, 81 N. E. 268; District of Columbia v. Tyrrell, 41 App. D. C. 46 S. W. 565; Richmond v. Long, 17 463; Conelly v. Nashville, 100 Tenn. 262, Gratt. 375, 94 Am. Dec. 461; Wixon v. Maxmilian v. New York, 62 N. Y. 160, Newport, 13 R. I. 454, 43 Am. Rep. 35; 20 Am. Rep. 468; Burrill v. Augusta, 78 Me. 118, 57 Am. Rep. 788, 3 Atl. 177; Edgerly v. Concord, 62 N. H. 8, 13 Am. St. Rep. 533; Love v. Atlanta, 95 Ga. 129, 51 Am. St. Rep. 64, 22 S. E. 29; Condict v. Jersey City, 46 N. J. L. 157; Savage v. Salem, 23 Or. 381, 24 L.R.A. 787, 37 Am. St. Rep. 688, 31 Pac. 832; Kuehn v. Milwaukee, 92 Wis. 263, 65 N. W. 1030; Hill v. Boston, 122 Mass. 344, 23 Am. Rep. 332; Workman v. New York, 179 U. S. 552, 45 L. ed. 314, 21 Sup. Ct. Rep. 212. funds to public improvements. McAllen v. Hamblin, 129 Iowa, 329, 5 L.R.A. (N.S.) 434, 105 N. W. 593, 6 Ann. Cas. 980. In Maydwell v. Louisville, 116 Ky. 885, 63 L.R.A. 655, 105 Am. St. Rep. 245, 76 S. W. 1091, which held that the city had a right to levy and collect a general tax to pay the street sprinkling, there was express statutory authority to uphold the sprinkling of the streets at the public expense. However, the contention that, the ordinance authorizing the levy was void on the ground that street sprinkling was not a public purpose within the meaning of the Constitution, which permitted taxes to be levied for public purposes only, was overruled by the court. See, also, note to the principal case as reported in 14 A.L.R. 1471, on "Liability of municipality for act of employee engaged in sprinkling or cleaning street, or removing garbage or rubbish." Statutes invalid in part-license tax interstate and domestic commerce. 2. The invalidity as respects interstate commerce of the annual license tax imposed by N. M. Laws 1919, chap. 93, upon gasolene distributing stations or places of business, with a prohibition against further conduct of the business without making the required payment, renders the tax unenforceable also as to the domestic commerce of a dealer who conducts his interstate and domestic business indiscriminately at the same stations and by the same agencies. [For other cases, see Commerce, IV. b. 1; IV. b. 3: Statutes, I. d, 4, in Digest Sup. Ct. 1908.] Commerce tors. · excise gasolene distribu 3. A state may impose an excise tax an excise upon its sale and use, is not forbidden by the provisions of N. M. Const. art. 8, § 1, that "taxes levied upon tangible property shall be in proportion to the value thereof, and taxes shall be equal and uniform upon subjects of taxation of the same class," where the tax in question operates impartially upon all, and with territorial uniformity throughout the state. [For other cases, see Taxes, I. b, 1, in Digest Sup. Ct. 1908.] Constitutional law due process of law-equal protection of the lawsexcise. Laws 1919, chap. 93, upon the sale and use 5. The excise tax imposed by N. M. of gasolene according to the number of gallons sold and used, does not, as applied to domestic sales and use, infringe rights of dealers in such product under the due process of law and equal protection of the laws clauses of U. S. Const., 14th Amend. [For other cases, see Constitutional Law, IV. a, 4; IV. b, 6, a, in Digest Sup. Ct. 1908.] [No. 695.] 1921. upon the use of gasolene by a dealer at his Argued April 14, 1921. Decided June 6, distributing stations in the operation of his automobile, tank wagons, and trucks employed in the business of distributing his wares for sale, although the gasolene is the APPEAL from the District Court of product of other states. the United States for the District of [For other cases, see Commerce, IV. b, 1, in New Mexico to review a decree which Digest Sup. Ct. 1908.] Taxes uniformity - excise. 4. The selection by the state of such a commodity as gasolene, as distinguished from other commodities, in order to impose As to what constitutes due process of law, generally-see notes to People v. O'Brien, 2 L.R.A. 255; Kuntz v. Sumption, 2 L.R.A. 655; Re Gannon, 5 L.R.A. 359; Ulman v. Baltimore, 11 L.R.A. 224; Gilman v. Tucker, 13 L.R.A. 304; Pearson v. Yewdall, 24 L. ed. U. S. 436; and Wilson v. North Carolina, 42 L. ed. U. S. 865. As to constitutional equality of privileges, immunities, and protection, generally-see note to Louisville Safety Vault & T. Co. v. Louisville & N. R. Co. 14 L.R.A. 579. enjoined the enforcement of a state excise and license tax. Reversed and remanded for further proceedings. The facts are stated in the opinion. could be granted to or exercised by any city. The legislative, executive, and judicial powers of the city shall extend to all matters of local and municipal government, it being the intent thereof that the specifications of particular powers by any other provision of this charter shall never be construed as impairing the effect of the general grant of powers of local government hereby bestowed." New Orleans v. Shuler, 140 La. 657, 73 So. 715. An ordinance requiring a permit to operate a portable gasolene supply Regulation and taxation of gasolene mobiles was held, in New Orleans v. tank for supplying gasolene to auto stations. Authority to adopt an ordinance forbidding, unless by permission of the municipal council, the placing of a gasolene pump on the outer edge of a sidewalk, and to require, as one condition of such permission, the payment of an annual fee, is delegated to the city by a charter provision that "the city shall also have all powers, privileges, and functions which, by or pursuant to the Constitution of this state, have been or Palmisano, 146 La. 518, 83 So. 789, to be void, and so not to warrant a conviction of one who maintained such a tank without first obtaining a permit, since it did not prescribe any terms or conditions upon compliance with which a permit should be granted, or without which it should be withheld, and so conferred upon the municipal council the arbitrary power to grant the permission to one and withhold it from another citizen in a like situation, to con Mr. Harry S. Bowman, Attorney General of New Mexico, in propria persona, argued the cause, and, with Mr. A. B. Renehan, filed a brief for appellants: The act will be construed as affecting only intrastate commerce. Kehrer v. Stewart, 117 Ga. 969, 44 S. E. 854; Ratterman v. Western U. Teleg. Co. 127 U. S. 411, 32 L. ed. 229, 2 Inters. Com. Rep. 59, 8 Sup. Ct. Rep. 1127; 1 Sutherland Stat. Constr. § 298. Domestic business is subject to the tax anyhow. Crutcher v. Kentucky, 141 U. S. 47, 35 L. ed. 649, 11 Sup. Ct. Rep. 851; Kehrer v. Stewart, 197 U. S. 60, 49 L. ed. 663, 25 Sup. Ct. Rep. 403. Severability includes separability in enforcement. Chesapeake & O. R. Co. v. Kentucky, 179 U. S. 388, 45 L. ed. 244, 21 Sup. Ct. Rep. 101. Separability will be determined by practical operation. Corn Products Ref. Co. v. Eddy, 249 U. S. 427, 63 L. ed. 689, 39 Sup. Ct. Rep. 325; Keokuk Northern Line Packet Co. v. Keokuk, 95 U. S. 80, 24 L. ed. 377; Reid v. Colorado, 187 U. S. 137, 152, 47 L. ed. 108, 116, 23 Sup. Ct. Rep. 92, duct what the ordinance conceded to be a legitimate business. An ordinance prohibiting the erection, construction, building, maintenance, or operation of gasolene stations without a permit to be obtained therefor from a city board was held, in Invader Oil & Ref. Co. v. Ft. Worth, - Tex. Civ. App. - 229 S. W. 616, not to operate against or affect one who had obtained all the permits necessary for the erection of a filling station prior to the passage of said ordinance. 12 Am. Crim. Rep. 506; Wagner v. Covington, 251 U. S. 95, 64 L. ed. 157, 40 Sup. Ct. Rep. 93. con Disavowal of unconstitutional struction or purpose is binding on the courts. Weigle v. Curtis Bros. Co. 248 U. S. 285, 63 L. ed. 242, 39 Sup. Ct. Rep. 124. Where there is no attempt or threat to enforce the law unconstitutionally, an injunction will be refused. Austin v. Boston, 7 Wall. 694, 19 L. ed. 224; Ohio River & W. R. Co. v. Dittey, 232 U. S. 576, 58 L. ed. 737, 34 Sup. Ct. Rep. 372; Stone v. Farmers' Loan & T. Co. 116 U. S. 307, 29 L. ed. 636, 6 Sup. Ct. Rep. 334, 388, 1191; Tiernan v. Rinker, 102 U. S. 123, 26 L. ed. 103. If the law, by generality of terms, might include a tax on domestic and interstate commerce, there being no state high court adjudication, Federal courts will presume that it will be construed as applying only to what a state may constitutionally tax. 7 Enc. U. S. Sup. Ct. Rep. 355; Ratterman v. Western U. Teleg. Co. 127 U. S. 411, 32 L. ed. 229, 2 Inters. Com. Rep. gasolene station. State ex rel. Moore Oil Co. v. Dauben, 99 Ohio St. 406, 124 N. E. 232. The court stated that such a construction of the ordinance would preclude the reinstallation of a removed portion of such station, and prevent restoration of a building damaged or destroyed by fire or otherwise; that if changes or improvements of such station were to be forbidden, presumably language would have been used making such further restriction. A municipality which has granted a citizen permission to install a gasolene station in front of his place of business, in the space between the sidewalk and the graded part of the street, will not be permitted to arbitrarily deny a competitor permission to install and maintain similar apparatus, under like conditions, in front of his own premises. Kenney v. Dorchester, 101 Neb. 425, 163 N. W. 762. Under an ordinance which prohibits the erection and maintenance of a public gasolene or filling station unless the permission of two thirds of the property owners within a certain distance has been secured, and which excepts any owner or operator of a station theretofore erected unless two thirds of the owners of property within a specified distance, within thirty days after the ordinance takes effect, file a written protest against the further operation of A municipal corporation having, in such station, one who was maintaining the absence of statute, no authority to and operating such a station prior to permit the erection of a gasolene pump the enactment of the ordinance, and in a street, its purported license for that against whom a protest had not been purpose may be revoked at leisure, alfiled within the specified time, was not though expense has been incurred on required to secure the consent of prop- the face of it. Keyser v. Boise, 30 erty owners before he might repair, re- Idaho, 440, L.R.A. 1917F, 1004, 165 Pac. model, or rebuild such pre-existing 1121. 59, 8 Sup. Ct. Rep. 1127; St. Louis Southwestern R. Co. v. Arkansas, 235 U. S. 350, 59 L. ed. 265, 35 Sup. Ct. Rep. 99; Singer Sewing Mach. Co. v. Brickell, 233 U. S. 304, 58 L. ed. 974, 34 Sup. Ct. Rep. 493; Western U. Teleg. Co. v. Pennsylvania, 128 U. S. 39, 32 L. ed. 345, 2 Inters. Com. Rep. 241, 9 Sup. Ct. Rep. 6. Messrs. Charles R. Brock and E. R. Wright argued the cause, and, with Messrs. Milton Smith, W. H. Ferguson, Stephen B. Davis, Jr., and Elmer L. Brock, filed a brief for appellee: It could not have been the purpose of the Supreme Court of the United States, upon the appeal from the order granting the preliminary injunction, to decide that the separability of the New Mexico law is to be determined by the relative importance of the two kinds of business conducted by appellee. Kehrer v. Stewart, 197 U. S. 60, 49 L. ed. 663, 25 Sup. Ct. Rep. 403. It is the well-established doctrine that a statute valid in part and invalid in part cannot be sustained at all unless capable of separation so that each part may stand by itself; and the court has no power, by interpolation or interlineation, to limit or qualify the meaning of the words as used by the legislature. Cella Commission Co. v. Bohlinger, 8 L.R.A. (N.S.) 537, 78 C. C. A. 467, 147 Fed. 419; Baldwin v. Franks, 120 U. S. 679, 30 L. ed. 766, 7 Sup. Ct. Rep. 656, 763; United States v. Harris, 106 U. S. 629, 27 L. ed. 290, 1 Sup. Ct. Rep. 601: United States v. Reese, 92 U. S. 214, 23 L. ed. 563; Pollock v. Farmers' Loan & T. Co. 158 U. S. 601, 39 L. ed. 1108, 15 Sup. Ct. Rep. 912; Spraigue v. Thompson, 118 U. S. 90, 30 L. ed. 115, 6 Sup. Ct. Rep. 988; Poindexter v. Greenhow, 114 U. S. 270, 29 L. ed. 185, 5 Sup. Ct. Rep. 903, 962; International Textbook Co. v. Pigg, 217 U. S. 91, 54 L. ed. 678, 27 L.R.A. (N.S.) 493, 30 Sup. Ct. Rep. 481, 18 Ann. Cas. 1103; Allen v. Louisiana, 103 U. S. 80, 26 L. ed. 318; Sweet v. United States, 143 C. C. A. 3, 228 Fed. 423; United States v. Alamogordo Lumber Co. 121 C. C. A. 162, 202 Fed. 706; Chicago, M. & St. P. R. Co. v. Westby, 47 L.R.A. (N.S.) 97, 102 C. C. A. 65, 178 Fed. 629. The act evinces with such clearness a purpose to tax interstate as well as domestic sales that there is no basis whatever for interpretation; and, moreover, this court has already interpreted the act in this respect according to the legislative intent, unambiguously expressed. Lake County v. Rollins, 130 U. S. 662 32 L. ed. 1060, 9 Sup. Ct. Rep. 651; People ex rel. Tate v. Prevost, 55 Colo. 199, 209, 134 Pac. 129. While New Mexico produces no gasolene whatever, her legislature may not lawfully single out gasolene imported from other states as the sole subject of an excise tax. Hinson v. Lott, 8 Wall. 148, 19 L. ed. 387; Brown v. Houston, 114 C. S. 622, 29 L. ed. 257, 5 Sup. Ct. Rep. 1091; Woodruff v. Parham, 8 Wall. 123, 19 L. ed. 382; Escanaba & L. M. Transp. Co. v. Chicago, 107 U. S. 678, 27 L. ed. 442, 2 Sup. Ct. Rep. 185; Parkersburg & 0. River Transp. Co. v. Parkersburg, 107 U. S. 691, 27 L. ed. 584, 2 Sup. Ct. Rep. 732; Morgan's L. & T. R. & S. S. Co. v. Board of Health, 118 U. S. 455, 30 L. ed. 237, 6 Sup. Ct. Rep. 1114; Mugler v. Kansas, 123 U. S. 623, 31 L. ed. 205, 8 Sup. Ct. Rep. 273; Smith v. Alabama, 124 U. S. 465, 31 L. ed. 508, 1 Inters. Com. Rep. 804, 8 Sup. Ct. Rep. 564; Leloup v. Mobile, 127 U. S. 640, 32 L. ed. 311, 2 Inters. Com. Rep. 134, 8 Sup. Ct. Rep. 1380; Bacon v. Illinois, 227 U. S. 504, 57 L. ed. 615, 33 Sup. Ct. Rep. 299; Nashville, C. & St. L. R. Co. v. Alabama, 128 U. S. 96, 32 L. ed. 352, 2 Inters. Com. Rep. 238, 9 Sup. Ct. Rep. 28; Kimmish v. Ball, 129 U. S. 217, 32 L. ed. 695, 2 Inters. Com. Rep. 407, 9 Sup. Ct. Rep. 277; Voight v. Wright, 141 U. S. 62, 35 L. ed. 638, 11 Sup. Ct. Rep. 855; Patapsco Guano Co. v. Board of Agriculture, 171 U. S. 345, 43 L. ed. 191, 18 Sup. Ct. Rep. 862; New Mexico ex rel. McLean v. Denver & R. G. R. Co. 203 U. S. 38, 51 L. ed. 78, 27 Sup. Ct. Rep. 1; Red "C" Oil Mfg. Co. v. Board of Agriculture, 222 U. S. 380, 56 L. ed. 240, 32 Sup. Ct. Rep. 152; D. E. Foote & Co. v. Stanley, 232 U. S. 494, 58 L. ed. 698, 34 Sup. Ct. Rep. 377; Armour & Co. v. Virginia, 246 U. S. 1, 62 L. ed. 547, 38 Sup. Ct. Rep. 267; Pure Oil Co. v. Minnesota, 248 U. S. 158, 63 L. ed. 180, 39 Sup. Ct. Rep. 35; Standard Oil Co. v. Graves, 249 U. S. 389, 63 L. ed. 662, 39 Sup. Ct. Rep. 320: Wagner v. Covington, 251 U. S. 95, 64 L. ed. 157, 40 Sup. Ct. Rep. 93. The New Mexico gasolene act discloses a clear intent to burden interstate commerce. United States Exp. Co. v. Minnesota, 223 U. S. 335, 56 L. ed. 459, 32 Sup. Ct. Rep. 211; Singer Sewing Mach. Co. v. Brickell, 233 U. S. 304, 58 L. ed. 974, 34 Sup. Ct. Rep. 493; Galveston, H. & S. A. R. Co. v. Texas, 210 U. S. 217, 52 L ed. 1031, 28 Sup. Ct. Rep. 638; Ludwig v. Western U. Teleg. Co. 216 U. S. 146, 54 L. ed. 423, 30 Sup. Ct. Rep. 280; Standard Sanitary Mfg. Co. v. United Mr. Justice Pitney delivered the opin ion of the court: This suit was brought by the Continental Oil Company against the attorney general and certain other officials of the state of New Mexico, to restrain the enforcement against the company, a distributor of and dealer in gasolene and other petroleum products in that state, of the provisions of an act of the legislature (Laws New Mexico 1919, chap. 93, P. 182) imposing an excise tax of 2 cents for each gallon of gasolene sold or used, and an annual license tax of $50 for each distributing station or place of business. The case was here before under the name of Askren v. Continental Oil Co. 252 U. S. 444, 64 L. ed. 654, 40 Sup. Ct. Rep. 355, on review of an order of the district court (three judges sitting), granting a temporary injunction. It is now here for review of the final decree; and Mr. Askren's term as attorney general having expired, Mr. Bowman, his successor in of fice, has been substituted as a party in his stead. inal packages; and since, from its averments, it was impossible to determine whether the sales from broken packages were of substantial importance, we did not, at that stage of the case, go into the question whether the act was separable, but reserved it for the final hearing, while affirming the order for a temporary injunction. Upon the going down of the mandate, plaintiff amended its bill by averring that, in addition to carrying on the business of buying and selling gasolene and other petroleum products, it is using gasolene at each of its distributing stations within the state of New Mexico (37 in number), in the operation of its automobile tank terms of the act, it is prohibited from uswagons and otherwise; that, under the ing this gasolene except upon the payment of the excise tax of 2 cents per gallon therefor; that this is a property tax, void under § 1 of article 8 of the state Constitution because not levied in proportion to the value of the gasolene; and that the imposition of the tax denies to plaintiff amounts to a taking of its property withthe equal protection of the laws, and out due process of law, in contravention of the 14th Amendment, and, further, is in [645] violation of the commerce clause of the Constitution of the United States. Defendants answered, alleging that plaintiff's sales in tank cars or other unbroken packages are insignificant as compared with its sales made after original packages have been broken; denying that the act exacts of the plaintiff payment of a license tax for the privilege of shipping or selling gasolene in interstate commerce, or of an excise tax on the gasolene sold in such commerce; averring that the state of New Mexico and its officers charged with enforcement of the law do not construe the act as affecting interstate comto enforce it so as to do so, or otherwise merce, and have no purpose or intention than so far as intrastate commerce is conused by plaintiffs at its distributing stacerned; and averring that any gasolene tions is no longer in interstate commerce, but has become commingled with the general mass of property in the state, and a On the former appeal, it appeared upon the face of the bill that plaintiff (appellee) purchases gasolene in various states other than New Mexico and ships it into that state, there to be sold and delivered; that it carries on business in two ways: first, gasolene is brought in from other states, either in tank cars, in barrels, or in packages containing not less than two 5-gallon cans, and sold and delivered to customers in the original packages, in the same form and condition as when received by plaintiff in the state [644] of New Mexico; as to which we held plaintiff is engaged in interstate commerce, and not liable to pay to the state a license tax for purchasing, shipping, and selling gasolene in that manner; secondly, a part of plaintiff's business consists of selling gasolene from the tank cars, barrels, and packages in quantities to suit purchasers; and we held that business of this kind is properly taxable by the laws of the state, although the gasolene is brought into the state in interstate commerce; that the mere fact that tax upon its use is not void under the it was produced in another state does not state Constitution, or a violation of the show a discrimination against the prod-commerce clause or the 14th Amendment. ucts of such state, and that sales from The case came on for final hearing upbroken packages in quantities to suit pur- on stipulated facts as to the course of chasers are a subject of taxation within the legitimate power of the state. But these latter sales were little emphasized in the bill, which stressed the sales in orig plaintiff's business, from which it appeared that during the years 1918 and 1919, and the first seven months of 1920, its sales of gasolene in bulk or from |