Santa Fe new Mexican. [volume] (Santa Fe, N.M.) 1898-1951, 1900-01-31

pSllitcu W Hd" 1ur illdL pun Hyne3 aIu IN
coal oil is sold or offered for sale by the
petitioner or by the Continental Oh
Company except such as is suitable fol
Illuminating purposes, in accordance
with the requirements of the statutes
of said territory.
8. That the Continental Oil Company
has fully complied with the provisions
of all laws of the territory relating tc
foreign corporations doing business
within said territory, except the provi.
sions of the said act entitled AN act
relating to sales of coal Oil and Its prod.
ucts," approved March Is, 1899, and has
refused to comply with the provisions
of said last mentioned act on the grount
that the same Is unconstitutional an6
void.
Neill B. Field, for petitioner; E. l.
Bartlett, solicitor general, for the terri
tory.
OPINION OF THE COURT.
Parker, j.
Upon the foregoing record this cour'
discharged the petitioner, and it %
remains for the court to express it's rea-
sons for holding this statute unconsti-
tutional and void.
The scope and effect of the commerce
clause of the constitution of the United
States has been a much-mooted ques.
tion before the courts, both state an(
federal, ever since early in the century
and the number of cases involving this
important provision have constantly in.
creased down to h present time
Without attempting to review or ever
cite the numerous cases involving the
question under consideration, we think
there are certain principles firmly es-
tablished by the supreme court of the
United States which are decisive of this
case, and which may be stated as fol-
lows:
l. Commerce between a state and ter
ritory is commerce among the several
States within the meaning of the on
stitution. (Stoutenburg VS.. Hennick, 129
u. S., 49,
2. The right to conduct Interstate
m includes the right to sell in
original packages the goods which are
the subject of such commerce, free from
state regulations. (Gibbins VS.. Ogden,
9 Wheat, l.; Brown VS.. Maryland, IL
Wheat, 419; Leisy rs. Hardin, 1856 U. S.,
100; Schollenberger VS.. Penn, III U. s.,
~
8. A state statute imposing a license
tax upon the conduct Of Interstate COM
MERGE is a regulation of such commerce
and invalid. (Ieloup vs.. Mobile, 127 U.
S., $40; Lying vs.. Michigan, 1876 u. S.,
161; Crutcher VS.. Kentucky, 141 U. S.,
40
4. A license may not be demanded OF
a foreign corporation or person engaged
in Interstate for the privilege
Of conducting the same, nor may the
same be prohibited, Notwithstanding a
like tax may be eXacted for domestic
business covering the anne articles, and
notwithsltandi such domestic business
may be prohibited. (Crutcher Is. Ken
lucky, 141 U. S., At; Schollenberger VS..
Pennsylvania, III U. S., 1; Powell VS..
Pennsylvania, 1877 U. S., 67s; Mugler VS..
Kansas, 1923 U. S., 623.)
S. A state may tax or license a bust
ness wholly within the state, notwith-
standing the person or corporation en-
gagged in such business may also be, Ell
Their Incidentally or principally, engaged
in Interstate business, SO long as the IL
cense or tax does not refer to and Is not
imposed upon the business which is in
terstate. Osborne VS.. Florida, 1854 u.
S., 650.) +,
6. But where a license tax is laid gen.
orally upon the conduct of business in
all forms, and without distinction as to
whether it is Interstate or local, and
where the tax which is laid upon local
business not be separated from that
which Is on interstate business, the
whole tax is In contravention of the
constitution and void. (Crutcher VS..
IAciltuShy Ill ~ o., I'll LCfC5l oPh \oAii-
pany VS.. Alabama, 1872 U. S., 473; Ratter-
man VS.. Western Union Telegraph
Company, 1877 U. S., All; Leloup VS..
Port of Mobile, 127 U. S., GAO, CAT; Os-
borne VS.. Florida, 1874 U. S., $50, 655.)
Applying the foregoing principles to
the facts in this case, it eern clear that
section 2 Of the act of the territorial
legislature under consideration Is in
co~ntr'avention of the provisions of the
constitution and void, SO far az it APP
plies to the business Of the petitioner
as agent of the Continental Oil Com
pany. The petitioner, as such agent, Is
engaged in the business of buying coal
oil from the producers thereof without
the territory and shipping the same into
the territory for distribution and sale.
Coal oil is a recognized article Of COM
merce, and as such entitled to the pro-
lection of the commerce clause of the
constitution. The sales of the petition
such not subject to a license tax. 1t
Is true that the act provides for a like
license for the sale OF oil produced with
in the territory, but this fact does not
take the business OF the petitioner,
which is Interstate, out of the protec-
ton of the constitution. 1t is to be fur
Their observed that none of the excep-
tions, such as the right of inspection,
the right to regulate sale I'M "a particu-
lar way, as by au%ctioneers, peddlers or
hawkers, or the right to regulate sales
of intoxicating liquors under the will
son act" (26 stat, 213), or the right to
exercise any of the police powers which
conceded to the states, intervene in
this case to modify the principles am
nounced above. 1t appears, however,
that some portion Of the business of the
petitioner consists Of the sale OF coal