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Standard Sanitary Mfg. Co. v. United inal packages; and since, from its averStates, 226 U. S. 49, 57 L. ed. 117, 33 ments, it was impossible to determine Sup. Ct. Rep. 9.

whether the sales from broken packages

were of substantial importance, we did Mr. Justice Pitney delivered the opin- not, at that stage of the case, go into the ion of the court:

question whether the act was separable, This suit was brought by the Conti- but reserved it for the final hearing, while nental Oil Company against the attorney affirming the order for a temporary ingeneral and certain other officials of the

junction. state of New Mexico, to restrain the en

Upon the going down of the mandate, forcement against the company, a distrib

plaintiff amended its bill by averring that, utor of and dealer in gasolene and other in addition to carrying on the business petroleum products in that state, of the of buying and selling gasolene and other provisions of an act of the legislature petroleum products, it is using gasolene (Laws New Mexico 1919, chap. 93, p. at each of its distributing stations within 182) imposing an excise tax of 2 cents for the state of New Mexico (37 in number), each gallon of gasolene sold or used, and in the operation of its automobile tank an annual license tax of $50 for each dis

wagons and otherwise; that, under the tributing station or place of business. terms of the act, it is prohibited from usThe case was here before under the name of Askren v. Continental Oil Co. 252 U. of the excise tax of 2 cents per gallon

ing this gasolene except upon the payment S. 444, 64 L. ed. 654, 40 Sup. Ct. Rep. therefor; that this is a property tax, void 355, on review of an order of the district under $ 1 of article 8 of the state Consticourt (three judges sitting), granting a tution because not levied in proportion temporary injunction. It is now here for review of the final decree; and Mr. Ask- to the value of the gasolene; and that the

imposition of the tax denies to plaintiff ren's term as attorney general having ex- the equal protection of the laws, and pired, Mr. Bowman, his successor in of- amounts to a taking of its property withfice, has been substituted as a party in out due process of law, in contravention his stead.

of the 14th Amendment, and, further, is On the former appeal, it appeared upon in [645] violation of the commerce the face of the bill that plaintiff (appel-clause of the Constitution of the United lee) purchases gasolene in various states States. other than New Mexico and ships it into

Defendants answered, alleging that that state, there to be sold and delivered; plaintiff's sales in tank cars or other unthat it carries on business in two ways: broken packages are insignificant as comfirst, gasolene is brought in from other pared with its sales made after original states, either in tank cars, in barrels, or packages have been broken; denying that in packages containing not less than two the act exacts of the plaintiff payment of 5-gallon cans, and sold and delivered to a license tax for the privilege of shipping customers in the original packages, in the

or selling gasolene in interstate commerce, same form and condition as when received

or of an excise tax on the gasolene sold by plaintiff in the state [614) of New in such commerce; averring that the state Mexico; as to which we held plaintiff of New Mexico and its officers charged is engaged in interstate commerce, and with enforcement of the law do not connot liable to pay to the state a license strue the act as affecting interstate comtax for purchasing, shipping, and selling

merce, and have no purpose or intention gasolene in that manner; secondly, to enforce it so as to do so, or otherwise à part of plaintiff's business consists than so far as intrastate commerce is conof selling gasolene from the tank cars, barrels, and packages in quantities used by plaintiffs at its distributing sta

cerned; and averring that any gasolene to suit purchasers; and we held that tions is no longer in interstate commerce, business of this kind is properly tax- but has become commingled with the genable by the laws of the state, although the eral mass of property in the state, and a gasolene is brought into the state in inter: tax upon its use is not void under the state commerce; that the mere fact that 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.

The case came on for final hearing upucts of such state, and that sales from broken packages in quantities to suit pur- on stipulated facts as to the course of chasers are a subject of taxation within plaintiff's business, from which it apthe legitimate power of the state. But peared that during the years 1918 and these latter sales were little emphasized 1919, and the first seven months of 1920, in the bill, which stressed the sales in orig-l its sales of gasolene in bulk or from

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 1127, where, in response to a question 5.5 per cent; in addition to which the com- whether a single tax, assessed by a state pany consumed in the conduct of its own upon [617] the receipts of a telebusiness gasolene equal to about 8 per graph company, derived partly from cent of its total sales. It was further interstate commerce and partly from stipulated that this represents the ordi- commerce within the state, but renary course of business of the company, turned and assessed in

gross and but that future percentages will depend without separation or apportionment, upon the demands of customers.

was wholly invalid, or invalid only in proThe trial court, after referring to our portion and to the extent that the redecision in 252 U. S., proceeded to pass ceipts were derived from interstate comupon the question whether the statute is merce, this court unanimously answered separable and capable of being sustained that, so far as levied upon receipts deso far [646] as it imposes a tax upon rived from interstate commerce, the tax domestic business legitimately taxable. was void; but so far as levied upon reReciting the language of the act, and ceipts from commerce wholly within the reading it as including every distributor state, it was valid. This case has been of gasolene, whether selling at retail cited repeatedly with approval and its or in original packages, as imposing principle accepted. Western U. Teleg. an excise tax upon all gasolene, whether Co. v. Alabama State Bd. of Assessment, sold in one way or the other, and as 132 U. S. 472, 476, 477, 33 L. ed. 409-411, making no exemption from either the 2 Inters. Com. Rep. 726, 10 Sup. Ct. Rep. license or the excise tax for persons 161; Lehigh Valley R. Co. v. Pennsylselling gasolene or for gasolene sold vania, 145 U. S. 192, 200, 201, 36 L. ed. in original packages, the court declared | 672, 674, 675, 4 Inters. Com. Rep. 87, 12 that it could not read an exemption Sup. Ct. Rep. 806; Postal Teleg. Cable into it without giving it a meaning Co. v. Charleston, 153 U. S. 692, 697, 38 the legislature might never have intended; L. ed. 871, 873, 4 Inters. Com. Rep. 637, and held the act not separable, but void as 14 Sup. Ct. Rep. 1094; Western U. Teleg. to both interstate and domestic business. Co. v. Kansas, 216 U. S. 1, 31, 54 L. ed. Having reached this conclusion, the court | 355, 367, 30 Sup. Ct. Rep. 190. found it unnecessary to pass upon the But with the license tax it is otherwise. question whether the imposition of an ex- If the statute is inseparable, then both by cise tax of 2 cents per gallon upon the its terms and by its legal operation and gasolene used by plaintiff in its automo- effect this tax is imposed generally upon biles and trucks employed in the business the entire ness conducted, including of distributing its wares for sale was in interstate commerce as well as domestie; violation of the provision of § 1, art. 8, and the tax is void under the authority of of the Constitution of the state, because Leloup v. Mobile, 127 U. S. 640, 647, 32 not levied in proportion to the value of L. ed. 311, 314, 3 Inters. Com. Rep. 131, the gasolene so used.

8 Sup. Ct. Rep. 1380; Crutcher v. KenAssuming that, upon the question of tucky, 141 U. S. 47, 58, 59, 35 L. ed. 649, construction, the district court was right, | 652, 653, 11 Sup. Ct. Rep. 851; Williams and that the act manifests an intent to tax v. Talladega, 226 U. S. 404, 419, 57 L. ed. interstate as well as domestic transac- 275, 281, 33 Sup. Ct. Rep. 116; and other tions in gasolene, and is not in this respect cases of that character. capable of separation, still, so far as the Upon the question of severability, we excise tax is concerned, -imposed, as it is, are constrained to concur in the view upon the sale and use of gasolene accord- adopted by the district court; and this ing to the number of gallons sold and notwithstanding our hesitation, in advance used,--the divisible nature of the subject of a declaration by the court of last rerenders it feasible to control the opera- sort of the state, to adopt a construction tion and effect of the tax so as to prevent bringing the law into conflict with the it from being imposed upon sales in inter- Federal Constitution. Ohio Tax Cases, state commerce, while allowing the state 232 U. S. 576, 591, 58 L. ed. 738, 745, 34 to enforce it with respect to domestic Sup. Ct. Rep. 372; St. Louis Southwesttransactions; and with the allowance of an ern R. Co. v. Arkansas, 235 U. S. 350, 369, injunction limited accordingly plaintiff 370, 59 L. ed. 265, 274, 275, 35 Sup. Ct. will receive the full protection to which it Rep. 99. The act, in its 2d section, reis entitled under the Constitution of the quires every distributor of gasolene to United States. The applicable rule is pay an annual license tax of $50 for each

a

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

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 There is no substance in the objection trade, leaving interstate commerce ex- that the excise tax, as applied to domestic empt. United States v. Reese, 92 U. S. sales and domestic use of gasolene, in214, 221, 23 L. ed. 563, 565; Trade-Mark fringes plaintiff's rights under the due Cases, 100 U. S. 82, 99, 25 L. ed. 550, process and equal protection clauses of 553; Poindexter v. Greenhow, 114 U. S. the 14th Amendment. The conten270, 304, 305, 29 L. ed. 185, 197, 198, 5|tion that it interferes with interSup. Ct. Rep. 903, 962; Pollock v. Farm- state commerce because the gasolene is the ers' Loan & T. Co. 158 U. S. 601, 636, 39 product of other states already has been L. ed. 1108, 1125, 15 Sup. Ct. Rep. 912. disposed of. No doubt the state might impose a li

The decree under review should be recense tax upon the distribution and sale versed, and the cause remanded, with diof gasolene in domestic commerce if it did rections to grant a decree enjoining the not make its payment a condition of car- enforcement, as against plaintiff, of the rying on interstate or foreign commerce. license tax, without qualification, and of But the state has not done this by any act the excise tax upon the sale or use of gasof legislation. Its executive and adminis- olene only with respect to sales of gasotrative officials have disavowed a purpose lene brought from without the state into to exact payment of the license tax for the state of New Mexico, and there sold the privilege of carrying on interstate and delivered to customers in the original commerce. But the difficulty is that, since packages, whether tank cars, barrels, or plaintiff, so far as appears, necessarily other packages, and in the same form and conducts its interstate and domestic com- condition when [650] received merce in gasolene indiscriminately at the by plaintiff in that state; but withsame stations and by the same agencies, out prejudice to the right of the state, the license tax cannot be enforced at all through appellants or other officers, without interfering with interstate com- to enforce collection of the excise tax merce unless it be enforced otherwise than with respect to sales of gasolene as prescribed by the statute,—that is to from broken packages in quantities to say, without authority of law. Hence, it suit purchasers, notwithstanding such cannot be enforced at all.

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 [619] 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 I enforce it, as above stated.

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ONA CERTIFICATE from the Court

Decree reversed, and the cause remand- | Municipal corporations liability for ed for further proceedings in conformity

damages governmental function with this opinion.

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 exAlbert Harris,

empts the District of Columbia from liabil. ity for injuries caused by one of its em.

ployees engaged therein. DISTRICT OF COLUMBIA.

(For other cases, see Municipal Corporations,

II. h, in Digest Sup. Ct. 1908.] (See S. C. Reporter's ed. 650–654.)

(No. 16.] Municipal corporations liability for damages - governmental function. Argued January 24, 1919. Decided June 6, 1. Municipal corporations, when acting

1921. in good faith, are not liable for the manner in which they exercise discretionary powers of a public or legislative character. [For other cases, see Municipal Corporations, II. h, in Digest Sup. Ct. 1908.)

lumbia presenting the question whether Note.—On street cleaning as a govern- for another purpose, does not render mental function-see note to Savannah the municipality liable for the injury. v. Jordan, L.R.A.1915C, 741.

Louisville v. Carter, 142 Ky. 443, 32

L.R.A.(N.S.) 637, 134 S. W. 468. Street sprinkling as a governmental So, a municipal corporation is not liafunction.

ble for an injury to a pedestrian caused A city, in flushing its streets for the by a wagon used for removing refuse

from the street, which, to remove it promotion of the health, comfort, and safety of the general public, acts in its from one place to another, was attached governmental capacity, and is therefore to the back of a sprinkling cart, alnot liable for injuries to a passerby by better way of doing the work.

though there might have been a safer or the bursting of a hose through the negli- The court stated: “We are unable to

Ibid. gence of its employees. Kippes v.

Louisville, 140 Ky. 423, 30 L.R.A.(N.S.) 1161, counsel would make between an injury

draw the distinction which appellee's 131 S. W. 184.

resulting from the negligent use of the And in Conelly v. Nashville, 100 Tenn.

sprinkler while actually sprinkling, and 262, 46 S. W. 565, it was held that a

while the sprinkler was being municipal corporation is not liable for the negligence of the driver of a street thereof to another. In the

drawn through the city, from one part

numerous sprinkling cart in its service, in colliding with a buggy, causing the overturn- other courts, holding that a city is not

cases that have been decided by this and ing thereof and injury to the occupant, liable for

injury that resulted as the employee is, in such case, en

through the negligence of its employees gaged in the performance of a governmental, and not a merely ministerial, engaged in the discharge of any of those

duties commonly called “governmental duty.

And again, in O'Daly v. Louisville, 156 functions, the opinion in each is rested Ky. 815, 49' L.R.A.(N.S.) 1119, 162 s. upon the idea that, as the city is a W. 79, it was held that a city fireman, arm of the state, -it is against publie

branch of the state government,-an in sprinkling or flushing a street in front of an engine house, is engaged in policy to permit it to be sued for the work reasonably necessary for the pru

negligence of those of its servants endent operation of the fire department, gaged in the discharge of some duty and that the maintenance of such de- which has for its aim the protection of partment being a governmental function, the life, health, or property of the citithe city is not liable to a passerby in- zens,

In none of these opinions, to jured by the bursting of a hose.

which our attention has been called, has And the mere fact that a cart owned the distinction here contended for been and used by a municipal corporation for made." the purpose of sprinkling its streets is To the contrary is Denver v. Maurer, not in actual use for that purpose at 47 Colo. 209, 135 Am. St. Rep. 210, 106 the time it causes injury to pedestrians, Pac. 875. but is being taken through the streets In West V. Bancroft, 32 Vt. 367,

one

an

son

street sprinkling is a 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 a municipality is a function which it cause and filed a brief for Adelbert lative capacity, and for which it is not

exercises in its governmental and legisHarris: The defendant is liable for its negli- of its omissions or negligence in that

answerable to an individual by reason gence in the care of streets.

. Weightman v. Washington, 1 Black. regard.

,

Coates v. District of Columbia, 42 39, 17 L. ed. 52; Barnes v. District of Columbia, 91 U.'S. 540, 23 L. ed. 440; App: D. C. 194; 4 Dill. Mun. Corp. 5th District of Columbia v. Woodbury, 136 ed. 8-1662; Haley v. Boston, 191 Mass.

291, 5 L.R.A.(N.Š.) 1005, 77 N. E. 888; U. S. 450, 34 L. ed. 472, 10 Sup. Ct. Rep. Bruhnke v. La Crosse, 155 Wis. 485, 50 990. 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 L.R.A.(N.S.) 637, 134 S. W. 468; Johncase within the rule that a municipal corporation is not liable for negligence L.R.A.(N.S.) 715, đi N. E. 268; District

v. Somerville, 195 Mass. 370, 10 when performing a public or govern- of Columbia v. Tyrrell, 41 App. D. C. mental function. Quill v. New York, 36 App. Div. 476, 46 's. w. 565; Richmond v. Long, 11

463; Conelly v. Nashville, 100 Tenn. 262, 66 N. Y. Supp. 889, 5 Am. Neg. Rep. Gratt. 375, 94 'Am. Dec. 461; Wixon v. 423; Missano v. New York, 160 N. Y. 126, 54 N. E. 744, 6 Am. Neg. Rep. 652; Maxmilian v. New York, 62 N. Y. 160,

Newport, 13 R. I. 454, 43 Am. Rep. 35; Barney Dumping-Boat Co. v. New York, 20 Am. Rep. 468; Burrill v. Augusta, 78 40 Fed. 50; Young v. Metropolitan Street Me. 118, 57 Am. Rep. 788, 3 Atl. 177; R. Co. 126 Mo. App: 2, 103 S. W. 135; Edgerly' v. Concord, 62 N. H. 8, 13 Am. Denver v. Porter, 61 C. C. A. 168, 126 St. Rep. 533; Love v. Atlanta, 95 Ga. Fed. 289; Pass Christian v. Fernandez, 129, 51 Am. St. Rep. 64, 22 s. E. 29; 100 Miss. 76, 39 L.R.A.(N.S.) 649, 56 Condict v. Jersey City, 46 N. J. L. 157; So. 329; Ostrom v. San Antonio, 94 Tex.

Savage v. Salem, 23 Or. 381, 24 L.R.A. 525, 62 S. W. 909, Tex. Civ. App. 60 S. W. 591; Denver r. Davis, 37 Colo. Kuehn v. Milwaukee, 92 Wis. 263, 65 N.

787, 37 Am. St. Rep. 688, 31 Pac. 832; 370, 6 L.R.A.(N.S.) 1013, 119 Am. St. W. 1030; Hill v. Boston, 122 Mass. 344, Rep. 293, 86 Pac. 1027, 11 Ann. Cas. 187. 23 Am. Rep. 332; Workman v. New

Messrs. Francis H. Stephens and Rob- York, 179 U. S. 552, 45 L. ed. 314, 21 ert L. Williams argued the cause, and, Sup. Ct. Rep. 212. which held that a village, under its pow-| funds to public improvements. McAllen er to improve and repair its streets, had v. Hamblin, 129 Iowa, 329, 5 L.R.A. the right to put a reservoir or cistern (N.S.) 434, 105 N. W. 593, 6 Ann. Cas. within the limits of the highway, for the 980. purpose of retaining water to be used In Maydwell v. Louisville, 116 Ky. in sprinkling the streets and extinguish- 885, 63 L.R.A. 655, 105 Am. St. Rep. ing fires, the court said: “All those acts | 245, 76 S. W. 1091, which held that the which tend to facilitate travel and add city had a right to levy and collect a to the ease, comfort, and convenience of general tax to pay the street sprinkling, the traveler or his beasts, whether it be there was express statutory authority to by cutting down the hill, filling the uphold the sprinkling of the streets at ravines, paving the roads, erecting wa- the public expense. However, the contering troughs, or sprinkling the streets tention that, the ordinance authorizing are acts which it is proper and often the levy was void on the ground that necessary, for the public to do. And in street sprinkling was not a public pura village containing so numerous and

pose within the meaning of the Constituactive a population as St. Johnsbury, no other one of these acts, perhaps, would tion, which permitted taxes to be levied add so much to the comfort of the pass

for public purposes only, was overruled ers on the highway as well as all the by the court. inhabitants of such village, as that of

See, also, note to the principal case sprinkling the streets."

as reported in 14 A.L.R. 1471, on “LiaStreet sprinkling is a public, rather bility of municipality for act of emthan a private, improvement, within the ployee engaged in sprinkling or cleaning rule limiting the expenditure of public street, or removing garbage or rubbish.”

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