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, It could not have been the purpose of 2 Sup. Ct. Rep. 185; Parkersburg & O. the Supreme Court of the United States, River Transp. Co. v. Parkersburg, 107 upon the appeal from the order granting U. S. 691, 27 L. ed. 584, 2 Sup. Ct. Rep. the preliminary injunction, to decide 732; Morgan's L. & T. R. & S. S. Co. that the separability of the New Mexico v. Board of Health, 118 U. S. 455, 30 law is to be determined by the relative L. ed. 237, 6 Sup. Ct. Rep. 1114; Mugler importance of the two kinds of business conducted by appellee.

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;

Standard Sanitary Mfg. Co. v. United
States, 226 U. S. 49, 57 L. ed. 117, 33
Sup. Ct. Rep. 9.

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.

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

inal packages; and since, from its averments, it was impossible to determine whether the sales from broken packages not, at that stage of the case, go into the were of substantial importance, we did 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 the equal protection of the laws, and amounts to a taking of its property without 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, in such commerce; averring that the state or of an excise tax on the gasolene sold of New Mexico and its officers charged with enforcement of the law do not construe the act as affecting interstate commerce, and have no purpose or intention to enforce it so as to do so, or otherwise than so far as intrastate commerce is concerned; and averring that any gasolene used by plaintiffs at its distributing stations is no longer in interstate commerce, but has become commingled with the general mass of property in the state, and a

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 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- its sales of gasolene in bulk or from

The case came on for final hearing up

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 [647] the receipts of a telebusiness 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.

under consideration upon the "sale or use of all gasolene sold or used in this state" is not property taxation, but in effect, as in name, an excise tax. We see no reason to doubt the power of the state to select this commodity, as distinguished from others, in order to impose an excise tax upon its sale and use; and since the tax operates impartially upon all, and with territorial uniformity throughout the state, we deem it "equal and uniform upon subjects of taxation of the same class," within the meaning of § 1 of article 8.

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 without a license shall be deemed guilty of a misdemeanor, and, upon conviction, be punished by fine or imprisonment, or both. The subject taxed is not in its nature divisible, as in the case of the excise tax. The imposition falls upon the entire business indiscriminately; and so does the prohibition against the further conduct of business without making the payment. By accepted canons of construction, the provisions of the act in respect of this tax are not capable of separation 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. Farm-state commerce because the gasolene is the ers' 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 inter

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.

Decree reversed, and the cause remand- | Municipal corporations ed for further proceedings in conformity with this opinion.

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