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Decree reversed, and the cause remand- | Municipal corporations

ed for further proceedings in conformity

with this opinion.

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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

ADELBERT HARRIS, by His Next Friend, from a private or municipal act, which ex

Albert Harris,

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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

empts the District of Columbia from liabil ity 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.

NA CERTIFICATE from the Court

lumbia presenting the question whether 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. Ibid. though there might have been a safer or 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 publie 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 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.S.) 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 govern

mental 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."

tank cars or other original packages in which the gasolene was brought into the state, is enforceable to the extent that it imposes the tax upon gasolene sold at retail in quantities to suit customers, not in the original packages.

[For other cases, see Commerce, IV. b. 1; IV. b. 3: Statutes, I. d, 4, in Digest Sup. Ct. invalid in part-license tax

1908.]

Statutes

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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.]

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3. A state may impose an excise tax upon the use of gasolene by a dealer at his distributing stations in the operation of his automobile, tank wagons, and trucks employed in the business of distributing his

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 laws-
excise.

5. The excise tax imposed by N. M.
Laws 1919, chap. 93, upon the sale and use
of gasolene according to the number of gal-
lons sold and used, does not, as applied to
domestic sales and use, infringe rights of
dealers in such product under the due proc-
ess 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. 895.]

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wares for sale, although the gasolene is the APPEAL from the District Court of

product of other states.

excise.

4. The selection by the state of such a commodity as gasolene, as distinguished from other commodities, in order to impose

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.] enjoined the enforcement of a state exTaxes uniformity Reversed and recise and license tax. manded 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.

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.

Regulation and taxation of gasolene

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

An ordinance requiring a permit to operate a portable gasolene supply tank for supplying gasolene to automobiles was held, in New Orleans v. 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.

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12 Am. Crim. Rep. 506; Wagner v. Covington, 251 U. S. 95, 64 L. ed. 157, 40 Sup. Ct. Rep. 93.

Disavowal of unconstitutional construction 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 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 the absence of statute, no authority to such station, one who was maintaining 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.

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 Lake County v. Rollins, 130 U. S. 662 v. Western U. Teleg. Co. 216 U. S. 146, 32 L. ed. 1060, 9 Sup. Ct. Rep. 651;54 L. ed. 423, 30 Sup. Ct. Rep. 280;

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