broken packages constituted about 94.5 that laid down in Ratterman v. Western per cent of its aggregate business, and U. Teleg. Co. 127 U. S. 411, 32 L. ed. 229, sales in original barrels, packages, or tank 2 Inters. Com. Rep. 59, 8 Sup. Ct. Rep. cars without breaking the packages, about 5.5 per cent; in addition to which the company consumed in the conduct of its own business gasolene equal to about 8 per cent of its total sales. It was further stipulated that this represents the ordinary course of business of the company, but that future percentages will depend upon the demands of customers. The trial court, after referring to our decision in 252 U. S., proceeded to pass upon the question whether the statute is separable and capable of being sustained so far [646] as it imposes a tax upon domestic business legitimately taxable. Reciting the language of the act, and reading it as including every distributor of gasolene, whether selling at retail or in original packages, as imposing an excise tax upon all gasolene, whether sold in one way or the other, and as making no exemption from either the license or the excise tax for persons selling gasolene or for gasolene sold in original packages, the court declared that it could not read an exemption into it without giving it a meaning the legislature might never have intended; and held the act not separable, but void as to both interstate and domestic business. Having reached this conclusion, the court found it unnecessary to pass upon the question whether the imposition of an excise tax of 2 cents per gallon upon the gasolene used by plaintiff in its automobiles and trucks employed in the business of distributing its wares for sale was in violation of the provision of § 1, art. 8, of the Constitution of the state, because not levied in proportion to the value of the gasolene so used. Assuming that, upon the question of construction, the district court was right, and that the act manifests an intent to tax interstate as well as domestic transactions in gasolene, and is not in this respect capable of separation, still, so far as the excise tax is concerned,-imposed, as it is, upon the sale and use of gasolene according to the number of gallons sold and used, the divisible nature of the subject renders it feasible to control the operation and effect of the tax so as to prevent it from being imposed upon sales in interstate commerce, while allowing the state to enforce it with respect to domestic transactions; and with the allowance of an injunction limited accordingly plaintiff will receive the full protection to which it is entitled under the Constitution of the United States. The applicable rule is 1127, where, in response to a question whether a single tax, assessed by a state upon [647] the receipts of a telegraph company, derived partly from interstate commerce and partly from commerce within the state, but returned and assessed in gross and without separation or apportionment, was wholly invalid, or invalid only in proportion and to the extent that the receipts were derived from interstate commerce, this court unanimously answered that, so far as levied upon receipts derived from interstate commerce, the tax was void; but so far as levied upon receipts from commerce wholly within the state, it was valid. This case has been cited repeatedly with approval and its principle accepted. Western U. Teleg. Co. v. Alabama State Bd. of Assessment, 132 U. S. 472, 476, 477, 33 L. ed. 409–411, 2 Inters. Com. Rep. 726, 10 Sup. Ct. Rep. 161; Lehigh Valley R. Co. v. Pennsylvania, 145 U. S. 192, 200, 201, 36 L. ed. 672, 674, 675, 4 Inters. Com. Rep. 87, 12 Sup. Ct. Rep. 806; Postal Teleg. Cable Co. v. Charleston, 153 U. S. 692, 697, 38 L. ed. 871, 873, 4 Inters. Com. Rep. 637, 14 Sup. Ct. Rep. 1094; Western U. Teleg. Co. v. Kansas, 216 U. S. 1, 31, 54 L. ed. 355, 367, 30 Sup. Ct. Rep. 190. But with the license tax it is otherwise. If the statute is inseparable, then both by its terms and by its legal operation and effect this tax is imposed generally upon the entire business conducted, including interstate commerce as well as domestic; and the tax is void under the authority of Leloup v. Mobile, 127 U. S. 640, 647, 32 L. ed. 311, 314, 3 Inters. Com. Rep. 134, 8 Sup. Ct. Rep. 1380; Crutcher v. Kentucky, 141 U. S. 47, 58, 59, 35 L. ed. 649, 652, 653, 11 Sup. Ct. Rep. 851; Williams v. Talladega, 226 U. S. 404, 419, 57 L. ed. 275, 281, 33 Sup. Ct. Rep. 116; and other cases of that character. Upon the question of severability, we are constrained to concur in the view adopted by the district court; and this notwithstanding our hesitation, in advance of a declaration by the court of last resort of the state, to adopt a construction bringing the law into conflict with the Federal Constitution. Ohio Tax Cases, 232 U. S. 576, 591, 58 L. ed. 738, 745, 34 Sup. Ct. Rep. 372; St. Louis Southwestern R. Co. v. Arkansas, 235 U. S. 350, 369, 370, 59 L. ed. 265, 274, 275, 35 Sup. Ct. Rep. 99. The act, in its 2d section, requires every distributor of gasolene to pay an annual license tax of $50 for each distributing station or place of business, upon tangible property shall be in or agency; requires it to be paid in ad- proportion to the value thereof, and taxes vance; and renders it unlawful to carry shall be equal and uniform upon subjects on the business without having paid it. of taxation of the same class." Clearly, [648] Section 8 declares that any the first part of this refers to property person who shall engage or continue taxation. The tax imposed by the act in the business of selling gasolene under consideration upon the "sale or use without a license shall be deemed of all gasolene sold or used in this state" guilty of a misdemeanor, and, upon is not property taxation, but in effect, as conviction, be punished by fine or im- in name, an excise tax. We see no reason prisonment, or both. The subject taxed is to doubt the power of the state to select not in its nature divisible, as in the case this commodity, as distinguished from of the excise tax. The imposition falls others, in order to impose an excise tax upon the entire business indiscriminately; upon its sale and use; and since the tax and so does the prohibition against the operates impartially upon all, and with further conduct of business without mak- territorial uniformity throughout the ing the payment. By accepted canons of state, we deem it "equal and uniform upconstruction, the provisions of the act in on subjects of taxation of the same class," respect of this tax are not capable of sep- within the meaning of § 1 of article 8. aration so as to confine them to domestic trade, leaving interstate commerce exempt. United States v. Reese, 92 U. S. 214, 221, 23 L. ed. 563, 565; Trade-Mark Cases, 100 U. S. 82, 99, 25 L. ed. 550, 553; Poindexter v. Greenhow, 114 U. S. 270, 304, 305, 29 L. ed. 185, 197, 198, 5 Sup. Ct. Rep. 903, 962; Pollock v. Farmers' Loan & T. Co. 158 U. S. 601, 636, 39 L. ed. 1108, 1125, 15 Sup. Ct. Rep. 912. No doubt the state might impose a license tax upon the distribution and sale of gasolene in domestic commerce if it did not make its payment a condition of carrying on interstate or foreign commerce. But the state has not done this by any act of legislation. Its executive and administrative officials have disavowed a purpose to exact payment of the license tax for the privilege of carrying on interstate commerce. But the difficulty is that, since plaintiff, so far as appears, necessarily conducts its interstate and domestic commerce in gasolene indiscriminately at the same stations and by the same agencies, the license tax cannot be enforced at all without interfering with interstate commerce unless it be enforced otherwise than as prescribed by the statute,-that is to say, without authority of law. Hence, it cannot be enforced at all. There is no substance in the objection that the excise tax, as applied to domestic sales and domestic use of gasolene, infringes plaintiff's rights under the due process and equal protection clauses of the 14th Amendment. The contention that it interferes with interstate commerce because the gasolene is the product of other states already has been disposed of. The decree under review should be reversed, and the cause remanded, with directions to grant a decree enjoining the enforcement, as against plaintiff, of the license tax, without qualification, and of the excise tax upon the sale or use of gasolene only with respect to sales of gasolene brought from without the state into the state of New Mexico, and there sold and delivered to customers in the original packages, whether tank cars, barrels, or other packages, and in the same form and condition as when [650] received by plaintiff in that state; but without prejudice to the right of the state, through appellants or other officers, to enforce collection of the excise tax with respect to sales of gasolene from broken packages in quantities to suit purchasers, notwithstanding such gasolene may have been brought into the With the excise tax as imposed upon the state in interstate commerce, and with reuse of gasolene by plaintiff at its distrib- spect to any and all gasolene used by uting stations, in the operation of its au- plaintiff at its distributing stations or tomobile tank wagons and otherwise, we elsewhere in the state in the operation of have no difficulty. Manifestly, gasolene its automobile tank wagons or otherwise; thus used has passed [649] beyond and without prejudice to the right of the interstate commerce, and the tax can state, through appellants or other officers, be imposed upon its use, as well as to require plaintiff to render detailed upon the sale of the same commodity statements of all gasolene received, sold, in domestic trade, without infringing or used by it, whether in interstate complaintiff's commercial rights under the merce or not, to the end that the state may Federal Constitution. Section 1, article the more readily enforce said excise tax 8, of the State Constitution, invoked to the extent that it has lawful power to by plaintiff, reads: "Taxes levied enforce it, as above stated. governmental function Decree reversed, and the cause remand- | Municipal corporations ed for further proceedings in conformity with this opinion. Municipal corporations damages 1. Municipal corporations, when acting in good faith, are not liable for the manner in which they exercise discretionary powers of a public or legislative character. liability for governmental function. damages street sprinkling. 2. The sprinkling of the streets to keep down dust for the purpose of the comfort and health of the general public is a public or governmental act, as contradistinguished from a private or municipal act, which exempts the District of Columbia from liability for injuries caused by one of its employees engaged therein. [For other cases, see Municipal Corporations, II. h, in Digest Sup, Ct. 1908.] [No. 16.] Argued January 24, 1919. Decided June 6, 1921. N A CERTIFICATE from the Court [For other cases, see Municipal Corporations,lumbia presenting the question whether II. h, in Digest Sup. Ct. 1908.] Note. On street cleaning as a governmental function-see note to Savannah v. Jordan, L.R.A.1915C, 741. Street sprinkling as a governmental function. A city, in flushing its streets for the promotion of the health, comfort, and safety of the general public, acts in its governmental capacity, and is therefore not liable for injuries to a passerby by the bursting of a hose through the negligence of its employees. Kippes v. Louisville, 140 Ky. 423, 30 L.R.A.(N.S.) 1161, 131 S. W. 184. And in Conelly v. Nashville, 100 Tenn. 262, 46 S. W. 565, it was held that a municipal corporation is not liable for the negligence of the driver of a street sprinkling cart in its service, in colliding with a buggy, causing the overturning thereof and injury to the occupant, as the employee is, in such case, engaged in the performance of a governmental, and not a merely ministerial, duty. And again, in O'Daly v. Louisville, 156 Ky. 815, 49 L.R.A. (N.S.) 1119, 162 S. W. 79, it was held that a city fireman, in sprinkling or flushing a street in front of an engine house, is engaged in work reasonably necessary for the prudent operation of the fire department, and that the maintenance of such department being a governmental function, the city is not liable to a passerby injured by the bursting of a hose. And the mere fact that a cart owned and used by a municipal corporation for the purpose of sprinkling its streets is not in actual use for that purpose at the time it causes injury to pedestrians, but is being taken through the streets for another purpose, does not render the municipality liable for the injury. Louisville v. Carter, 142 Ky. 443, 32 L.R.A.(N.S.) 637, 134 S. W. 468. So, a municipal corporation is not liable for an injury to a pedestrian caused by a wagon used for removing refuse from the street, which, to remove it from one place to another, was attached to the back of a sprinkling cart, albetter way of doing the work. though there might have been a safer or Ibid. The court stated: "We are unable to draw the distinction which appellee's counsel would make between an injury resulting from the negligent use of the sprinkler while actually sprinkling, and one while the sprinkler was being drawn through the city, from one part thereof to another. In the numerous cases that have been decided by this and other courts, holding that a city is not liable for an injury that resulted through the negligence of its employees engaged in the discharge of any of those duties commonly called 'governmental functions,' the opinion in each is rested upon the idea that, as the city is a branch of the state government,—an arm of the state, it is against public policy to permit it to be sued for the negligence of those of its servants engaged in the discharge of some duty which has for its aim the protection of the life, health, or property of the citizens. In none of these opinions, to which our attention has been called, has the distinction here contended for been made." To the contrary is Denver v. Maurer, 47 Colo. 209, 135 Am. St. Rep. 210, 106 Pac. 875. In West v. Bancroft, 32 Vt. 367, street sprinkling is governmental with Mr. Conrad H. Syme, filed a brief function. Answered in the affirmative. for the District of Columbia: The facts are stated in the opinion. The protection of the public health by 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 sanitary feature of the streetsprinkling 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 pass ers 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 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. son 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.S.) 1005, 77 N. E. 888; L.R.A. (N.S.) 1147, 144 N. W. 1100; Louisville v. Carter, 142 Ky. 443, 32 L.R.A. (N.S.) 637, 134 S. W. 468; JohnL.R.A.(N.S.) 715, 81 N. E. 268; District v. Somerville, 195 Mass. 370, 10 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. Newport, 13 R. I. 454, 43 Am. Rep. 35; 20 Am. Rep. 468; Burrill v. Augusta, 78 New York, 62 N. Y. 160, 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. Maxmilian v. 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 eníployee engaged in sprinkling or cleaning street, or removing garbage or rubbish." Mr. Justice McReynolds delivered the opinion of the court: The court of appeals, District of Columbia, has certified the following question (Judicial Code, § 251): "Is the sprinkling of the streets to keep down dust for the purpose of the comfort and health of the general public, a public or governmental act, as contradistinguished from a private or municipal act, which exempts the District of Columbia from liability for the injuries caused by one of its employees engaged therein ?" [652] In order to prepare the streets of Washington for sweeping, it was the practice to sprinkle them from portable tanks. While filling one of these tanks through a hose connected to a water plug, a corporate employee negligently dropped the plug cover and injured Adelbert Harris, a young child. He brought suit against the District of Columbia for damages. the corporation was held liable for injuries resulting from an insecure bridge placed by the charter under its exclusive control and management. Among other things, through [653] Mr. Justice Clifford, this was said: "Municipal corporations undoubtedly are invested with certain powers, which, from their nature, are discretionary, such as the power to adopt regulations or by-laws for the management of their own affairs, or for the preservation of the public health, or to pass ordinances prescribing and regulating the duties of policemen and firemen, and for many other useful and important objects within the scope of their charters. Such powers are generally regarded as discretionary, because, in their nature, they are legislative; and although it is the duty of such corporations to carry out the powers so granted and make them beneficial, still it has never been held that an action on the case would lie against the corporation, at the suit of an individual, for the failure on their part to perform such a duty. . . Whether the action in this It is established doctrine that, when acting in good faith, municipal corporations are not liable for the manner in which they exercise discretionary pow-case is maintainable against the defenders of a public or legislative character. A different rule generally prevails as to their private or corporate powers. Dill. Mun. Corp. 5th ed. §§ 1626 et seq., and cases cited. ants or not depends upon the terms and conditions of their charter, as is obvious from the views already advanced." Barnes v. District of Columbia (1875) 91 U. S. 540, 551, 23 L. ed. 440, 443, presented a case of injury arising from a defective street. The District was held liable, and, for the court, Mr. Justice Hunt said, concerning the point presently important: Application of these general principles to the facts of particular cases has occasioned much difficulty. The circumstances being stated, it is not always easy to determine what power a municipal corporation is exercising. But, nothing else "Some cases hold that the adoption of appearing, we are of opinion that, when a plan of such a work is a judicial act; sweeping the streets, a municipality is and, if injury arises from the mere exexercising its discretionary powers to ecution of that plan, no liability exists. protect public health and comfort, and Child v. Boston, 4 Allen, 41, 81 Am. Dec. is not performing a special corporate or 680; Thayer v. Boston, 19 Pick. 511, 31 municipal duty to keep them in repair. Am. Dec. 157. Other cases hold that for This conclusion, we think, accords with its negligent execution of a plan good in common observation, harmonizes with itself, or for mere negligence in the care what has been declared heretofore con- of its streets or other works, a municcerning liability of the District of Co-ipal corporation cannot be charged. Delumbia for torts, and is supported by troit v. Blackeby, 21 Mich. 84, 4 Am. well-considered cases. Weightman v. Washington (1861) 1 Black, 39, 17 L. ed. 52; Barnes v. District of Columbia (1875) 91 U. S. 540, 551, 23 L. ed. 440, 443; District of Columbia v. Woodbury (1890) 136 U. S. 450, 34 L. ed. 472, 10 Sup. Ct. Rep. 990; Love v. Atlanta, 95 Ga. 129, 51 Am. St. Rep. 64, 22 S. E. 29; Conelly v. Nashville, 100 Tenn. 262, 46 S. W. 565; Haley v. Boston, 191 Mass. 291, 5 L.R.A. (N.S.) 1005, 77 N. E. 888; Bruhnke v La Crosse, 155 Wis. 485, 50 L.R.A. (N.S.) 1147, 144 N. W. 1100. In Weightman v. Washington, supra, Rep. 450, is of the latter class, where it was held that the city was not liable for an injury arising from its neglect to keep its sidewalks in repair. "The authorities establishing the contrary doctrine, that a city is responsible for its mere negligence, are so [654] numerous and so well considered that the law must be deemed to be settled in accordance with them." (Citing many cases.) In District of Columbia v. Woodbury (1890) 136 U. S. 450, 34 L. ed. 472, 10 Sup. Ct. Rep. 990, Woodbury claimed |