Red C. Oil Mfg. Co. v. Board of Agriculture

• Decision Date: 07 September 1909
• Citation: 172 F. 695
• Parties: RED C. OIL MFG. CO. v. BOARD OF AGRICULTURE et al.
• Court: U.S. Court of Appeals — Fourth Circuit

172 F. 695

RED C. OIL MFG. CO. v. BOARD OF AGRICULTURE et al.

United States Circuit Court, E.D. North Carolina.

September 7, 1909

Aycock & Winston, for complainant.

R. H Battle & Son and T. W. Bickett, Atty. Gen., for defendants.

CONNOR District Judge.

Complainant seeks to enjoin the enforcement of the provisions of an act of the General Assembly of North Carolina entitled 'An act to provide for the inspection of illuminating oils and other fluids,' ratified March 8, 1909. Laws 1909, p. 911 c. 554. The act provides:

'Section 1. That all kerosene, or other illuminating oils, sold or offered for sale in this state, shall be subject to inspection and test to determine the safety and value for illuminating purposes.' All manufacturers, wholesalers and jobbers before selling or offering for sale, in this state, any kerosene, or other oil, for illuminating purposes, are required to file with the Commissioner of Agriculture a statement, showing that they desire to do business in the state, and to furnish the name or brand of the oil, or oils, which they desire to sell, with the names and address of the manufacturer, and that such oil will comply with the requirements of the law.

Sec. 2. Power is conferred upon the Commissioner of Agriculture to collect samples of any illuminating oil offered for sale in this state and have the same analyzed. The inspection of oil, as authorized by the act, is to be made under the direction of the Board of Agriculture, which is authorized--

'to make all necessary rules and regulations for the inspection of such oil and to adopt standards of safety, purity or absence from objectionable substances and luminosity when not in conflict with this act and which they may deem necessary to provide the people of the state with satisfactory illuminating oil.'

The Board of Agriculture is required to appoint oil inspectors, not exceeding, in number, one from each congressional district, whose compensation shall not exceed $1,000 a year and expenses. They are given power to examine all barrels, tanks, or other vessels containing kerosene or other illuminating oils to see that they are properly tagged, and shall, as directed, collect and test samples of oil offered for sale in different sections of the state, and, when instructed, collect and send samples to the Department of Agriculture for examination.

Section 3:

'For the purpose of defraying the expenses connected with the inspection, testing and analyzing oils in this state there shall be paid to the Commissioner a charge of one half cent per gallon which payment shall be made before delivery to agents, dealers or consumers in this state.'

Provision is made for attaching to each barrel, tank, tank car, and other containers a tag or a stamp to be furnished by the Commissioner of Agriculture showing that the tax has been paid. When oil is shipped in tank cars or other large containers, the manufacturer or jobber shall give notice to the Commissioner of Agriculture of every shipment, with the name and address of the person, company or corporation to whom it is sent, and the number of gallons, on the day the shipment is made.

Section 4:

'All moneys received under the provisions of this act shall be paid into the state treasury and kept as a distinct fund to be styled 'The Oil Inspection Fund.' All checks or orders in payment for tags or stamps shall be made payable to the State Treasurer. The Commissioner of Agriculture is authorized to draw out of said fund, upon his warrant, such sums as may be necessary to pay all expenses incurred in connection with this act including salary to oil chemist, or chemists, cost of inspection, blanks,' etc.

Section 5:

'The State Treasurer shall, on the first day of June and December of each year turn into the general fund of the state all moneys of the oil fund in his hands in excess of the amount drawn out by the Commissioner of Agriculture for expenses.' Section 6: The Commissioner of Agriculture is required to include in his report to the General Assembly an account of the operations and expenses under the act.

Section 7 provides that, whenever complaint is made to the Department of Agriculture in regard to the illuminating qualities of any oil sold in this state, the Commissioner shall cause a sample of said oil or oils complained of to be procured, and have the same thoroughly analyzed and tested as to safety and illuminating qualities. If such analysis or other tests shall show that the oil is either unsafe or of inferior illuminating quality, its sale shall be forbidden, and report of the result or results shall be sent to the party making the complaint and to the manufacturer of such oil.

The remaining sections prescribe penalties for violation of the provisions of the law. The act went into effect July 1, 1909. On the 9th day of March, 1909, the General Assembly passed an act entitled:

'An act to suspend the collection of taxes under section 58 of the revenue act because of the higher taxes imposed by the oil inspection act which was ratified on the 8th day of March, 1909. ' Laws 1909, p. 742, c. 441.

This act contained the following preamble:

'Whereas, since the passage and ratification of the act to raise revenue at the present Session of the General Assembly, a law has been passed providing for the inspection of illuminating oils and for the imposition of an inspection tax of one half cent per gallon thereon; and whereas the said tax is much greater than the tax imposed under section 58 of the revenue act; and whereas it is not the purpose of the General Assembly that the said taxes shall be cumulative: Now therefore: It is enacted, That the tax imposed under section 58 of the revenue act be suspended and not collected from any person, dealer or corporation paying the tax imposed under the inspection law.'

This act contains a proviso that, if the inspection act should be held invalid, section 58 should remain in full force and effect. It is alleged that, under a similar provision in the revenue law in force prior to 1909, the tax levied upon oil companies, confined to such as sold more than $25,000 in value of oil, yielded about $10,000 annually. The complainant did not sell a sufficient quantity of oil in this state to subject it to the provision of this act.

Pursuant to the provisions of the act, the Board of Agriculture prescribed a form of 'A Statement' to be filed by every person, company, or corporation desiring to sell, or offer for sale, illuminating oil in this state, setting forth the name or brand of oil, flash test, by whom manufactured, a stipulation that the oil or oils sold shall comply with the requirements of the act and regulations of the Board of Agriculture. The board adopted the following rules:

'There shall be placed upon each tank car, vessel, barrel or other container of illuminating oil, offered for sale in this state, the name under which it is sold, the name of the manufacturer or wholesale dealer, flash test of said oil, date when filled; and when a barrel or other container is filled from a tank car, or other large container, the number of said tank car, or other large container; also tax stamp as required by section 3, c. 554, Laws of 1909.

'The flash test of illuminating oils shall not be less than one hundred and five (105) Fahrenheit, as tested by the Elliott method, according to directions prepared by the state chemist.'

Shipments by car loads of oil in barrels or vessels or other small containers shall be reported to the commissioner, as required for shipment in tank cars or other large containers by section 4 of the act.

The oil chemist is required to analyze such samples as are deemed necessary to ascertain purity and luminosity and report to the Board of Agriculture. The board elected 10 oil inspectors for a term of one year. Each inspector is required to examine all tanks, cars, barrels, vessels, cans, or other containers found in his district to see that they are properly tagged, and to collect samples as directed, and send same to the department for analysis by the oil chemist. The compensation of each inspector is fixed at $3 per day and actual expenses while at work. 'All kerosene, or other oils usually used for illuminating purposes offered for sale or sold in this state for other use, shall have plainly marked on the container in letters at least two inches long, or plainly printed on a tag attached thereto: 'Not for illuminating purposes--Dangerous.' Such oil is not subject to inspection. ' Using or selling it for illuminating purposes is declared to be a violation of section 8 of the act. 'The Commissioner, with the approval of the oil committee, may suspend or change any of the regulations, until the ensuing meeting of the board.'

The complainant alleges: That it is a corporation duly created and organized under the General Laws of the state of Maryland, authorized to purchase, sell, and otherwise dispose of petroleum and the by-products thereof in the state of Maryland and elsewhere in the United States. That, pursuant to its corporate powers, it is and has been for several years engaged in buying and selling petroleum oil and the products and by-products thereof in the state of North Carolina and other states. That for the purpose of conducting its trade and business in said state it is engaged in shipping over the railroads and other transportation lines extending from the state of Maryland and other states into North Carolina large quantities of illuminating oil and other products and by-products of petroleum. That it has been for several years engaged in the manufacture of kerosene oil for illuminating purposes in the state of Maryland, and shipping and selling the same in North Carolina, and intends to...