Mahlon Pitney

“ The act, in its second section, requires every distributor of gasoline to pay an annual license tax of $50 for each distributing station or place of business or agency, requires it to be paid in advance, and renders it unlawful to carry on the business without having paid it. Section 8 declares that any person who shall engage or continue in the business of selling gasoline 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. ”

“ First, gasoline is brought in from other states either in tank cars, in barrels, or in packages containing not less that two five-gallon cans, and sold and delivered to customers in the original packages, in the same form and condition as when received by plaintiff in the state 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 gasoline in that manner ”

“ 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 as it imposes a tax upon domestic business legitimately taxable. ”