ed to to aid in construction in cases of doubt. I foreign as well as domestic vessels. Upon Cornell v. Coyne, 192 U. S. 418, 530, 24 Sup. the authority of that case, and others cited Ct. 383, 48 L. Ed. 504, and cases cited. in the opinion therein, we have no doubt as Apart from the text, which we think plain, it to the authority of Congress to pass a statute *355 of this sort, applicable to foreign vessels in our ports and controlling the employment and payment of seamen as a condition of the right of such foreign vessels to enter and use the ports of the United States, [5] But, it is insisted, that Dillon's action was premature as he made a demand upon the master within less than five days after the vessel arrived in an American port. This contention was sustained in the District Court, but it was ruled otherwise in the Court of Appeals. Turning to the language is by no means clear that if the act were given a construction to limit its application to American seamen only, the purposes of Congress would be subserved, for such limited construction would have a tendency to prevent the employment of American seamen, and to promote the engagement of those who were not entitled to sue for one-half wages under the provisions of the law. But, taking the provisions of the act as the same are written, we think it plain that it manifests the purpose of Congress to place Ameri- of the act, it enacts in substance that the can and foreign seamen on an equality of demand shall not be made before the expiraright in so far as the privileges of this section of five days, nor oftener than once in tion are concerned, with equal opportunity five days. Subject to such limitation, such to resort to the courts of the United States demand may be made in the port where the for the enforcement of the act. Before the vessel stops to load or deliver cargo. It is amendment, as we have already pointed out, true that the act is made to apply to seamen the right to recover one-half the wages could on foreign vessels while in United States not be enforced in face of a contractual ob- ports, but this is far from requiring that ligation to the contrary. Congress, for rea- the wages shall be earned in such ports, sons which it deemed sufficient, amended the or that the vessels shall be in such ports act so as to permit the recovery upon the con- five days before demand for one-half the wages earned is made. It is the wages of the voyage for which provision is made. with the limitation of the right to demand one-half of the amount earned not oftener than once in five days. The section permits ditions named in the statute. In the case of *357 no demand until five days after the voyage has begun, and then provides that it may be made at every port where the vessel stops to load or deliver cargo, subject to the fiveday limitation. If the vessel must be five days in port before demand can be made, it would defeat the purpose of the law as to vessels not remaining that long in port, and would run counter to the manifest purpose of Congress to prevent a seaman from being without means while in a port of the United States. We agree with the Circuit Court of ADpeals of the Fifth Circuit, whose judgment we are now reviewing, that the demand was not premature. It is true that the Circuit Court of Appeals for the Second Circuit held in the case of The Italier, 257 Fed. 712, 168 C. C. A. 662, that demand, made before the vessel had been in port for five days, was premature; this was upon the theory that the law was not in force until the vessel had arrived in a port of the United States. But, the limitation upon demand has no reference to the length of stay in the domestic port. The right to recover wages is controlled by the provisions of the statute and includes wages earned from the beginning of the voyage. It is the right to demand and recover such wages with the limitation of the intervals of demand as laid down in the statute, which is given to the seaman while the ship is in a harbor of the United States. Sandberg v. McDonald, 248 U. S. 185, 39 Sup. Ct. 84, 63 L. Ed. 200, supra, we found no purpose manifested by Congress in section 11 to interfere with wages advanced in foreign ports under contracts legal where made. That section dealt with advancements, and contained no provision such as we find in section 4. Under section 4 all contracts are avoided which run counter to the purposes of the statute. Whether consideration for contractual rights under engagements legally made in foreign countries would suggest a different course is not our province to inquire. It is sufficient to say that Congress has otherwise declared by the positive terms of this enactment, and if it had authority to do so, the law is enforceable in the courts. [4] We come then to consider the contention that this construction renders the statute unconstitutional as being destructive of contract rights. But we think this contention must be decided adversely to the petitioner upon the authority of previous cases in this 356 court. The matter was fully considered in Patterson v. Bark Eudora, 190 U. S. 169, 23 Sup. Ct. 821, 47 L. Ed. 1002, in which the previous decisions of this court were reviewed, and the conclusion reached that the jurisdiction of this government over foreign merchant vessels in our ports was such as to give authority to Congress to make provisions of the character now under consideration; that it was for this government to determine upon what terms and conditions vessels of other countries might be permitted to enter our harbors, and to impose conditions upon the shipment of sailors in our own ports, and make them applicable to (40 Sup.Ct.) We find no error in the decree of the Cir- | Order Granting Injunction and Appointing Recuit Court of Appeals and the same is ceiver. Affirmed. (252 U. S. 358) THOMPSON v. LUCAS et al. (Argued Dec. 8, 1919. Decided March 29, 1920.) being fully advised in the premises, No. 391. October Term, 1919. On Writ of Certiorari to the United States Circuit Court of Appeals for the Second Circuit. Suit by Peter Lucas and another against the Steamship Westmeath, J. M. Thompson, master and claimant. A decree for the libelants was affirmed by the Circuit Court of Appeals for the Second Circuit (258 Fed. 446, 169 C. C. A. 462), and the claimant brings certiorari. Affirmed. See, also, 250 U. S. 369, 39 Sup. Ct. 495, 63 L. Ed. 1184. Messrs. L. de Grove Potter, of White Plains, N. Y., and John M. Woolsey, of New York City, for petitioners. Mr. W. J. Waguespack, of New Orleans, La., for respondent. This case was argued at the same time as No. 373, just decided. In this case the libelants shipped as part of the crew of the British Steamer Westmeath for a voyage not to exceed one year, before the expiration of which time the vessel arrived in the harbor of New York, where she loaded and discharged cargo. A demand was made for one-half wages under section 4 of the Seamen's Act of 1915 (Comp. St. § 8322). The demand was refused, and an action was begun for full wages. A defense was set up that the libelants were deserters, and, therefore, not entitled to recover. The District Court and the Circuit Court of Appeals held that the libelants' case was made out under the statute. 258 Fed. 446, 169 C. C. A. 462. 364 +373 +363 *is hereby appointed receiver of all the lands *Mr. Justice DAY delivered the opinion of the described in paragraph 2 of the said intervener's Court. motion, to wit: *The case is controlled by principles which governed the disposition of No. 373. The difference being that it appears in this case that demand was made more than five days after the vessel had arrived in the United States port. In all other respects as to the constitutionality and construction of the statute our judgment in the former case is controlling. It follows that the decree of the Circuit Court of Appeals must be affirmed. Affirmed. (252 U. S. 372) STATE OF OKLAHOMA v. STATE OF This cause coming on to be heard on the motion of the United States for leave to intervene herein for an injunction and for the appointment of a receiver, and on the responses made to such motion by the state of Oklahoma and the state of Texas, respectively, and the court Original action by the State of Oklahoma against the State of Texas. On motion by the United States for leave to intervene for an injunction and the appointment of a receiver. Motion granted. 1 252 U. S. 348, 40 Sup. Ct. 350, 64 L. Ed. — 40 SUP.CT.-23 It is now considered, ordered, and decreed as follows, until the further order of the court: 1. That said motion for leave to intervene herein be, and the same is hereby, granted. 2. The defendant, the state of Texas, her officers and agents, are hereby enjoined from selling any purported rights or making or issuing any grants, licenses or permits to any person, corporation or association covering or affecting any lands, or any part of the bed of Red river, lying north of the line of the south bank of such river as said south bank existed at the date of the ratification of the treaty of 1819 between the United States and Spain; that is to say, on the 22d day of February, 1821, and between the one hundredth degree of west longitude and the southeastern corner of the state of Oklahoma. 3. Jacob M. Dickinson, Esq., of Chicago, Ill., Bounded on the north by the mid-channel of the Red river, as the mid-channel is hereinafter defined; on the east by extension south of the west boundary line of range 10 west between township 4 south, range 10 west, and township 4 south, range 11 west, in Cotton county, Okl., crossing the remaining portion of said Red river and to the foot of the Texas bluffs as the south bank; thence up said river along the foot of the Texas bluffs as the south bank, through ranges 11, 12, 13, and through range 14 as follows: Commencing at a point on the east boundary line of range 14 extended which point is 116.50 chains from the original meander corner of fractional section 31, township 4 south, range 13 west and section 36, township 4 south, range 14 west; thence 66 N. 79° 00' W. 26.75 chs. 66 to a point on the present south bank of the Red river which is at the foot of the Texas bluff; thence along the line of the south bank and the foot of the Texas bluff S. 64° 30′ W. 36.00 chs. 66 S. 64° 00′ W. 20.40 to a point on the present south bank of Red river at the foot of the Texas bluff at the intersection of a direct south extension of the west boundary of range 14 west, between fractional section 7, township 5 south, range 14 west, and section 12, township 5 south, range 66 66 66 66 15, which point is 57.43 chains from the original meander corner of said fractional sections. Thence continuing up said river along the foot of the Texas bluffs as the south bank, through ranges 15 and 16 to the intersection of the west boundary line of range 16 extended to the foot of the Texas bluffs. Thence north along said boundary line of range 16 to mid-channel of said river as the same meanders through the broad stretch of sand which in some places extends to and is bounded by the bluffs on either side, and in other places by the margin of the alluvial flood plain on either side, and which is covered with water at times of freshets and entirely devoid of flowing water during the annual dry seasons -and of all machinery, fixtures, tools, and other property of whatever kind or character now on said lands and used in connection with the extraction, storage, transportation, refining, or disposal of the oil or gas products of said lands. And the said receiver is hereby authorized and empowered to take possession of said lands and property forthwith, to take all appropriate measures to conserve the oil and gas within such lands, and to control all operations thereon for the production and disposal of such oil and gas. 4. Within thirty days after taking possession the receiver shall formulate and report to this court full and complete plans for prospecting such lands and developing and producing the oil and gas within the same; and until such report is made and acted upon by the court the receiver shall operate the existing oil and gas wells on said lands, or permit them to be operated by their respective claimants under his #375 direction and supervision, or *close down said wells if he shall deem it advisable to do so; and he shall sell at market prices the oil and gas so produced and pay out of the proceeds the necessary expenses of operation and supervision. Full and accurate accounts shall be kept by the receiver of all oil and gas so produced and of the proceeds derived from their sale and the expenses paid therefrom; and these accounts shall be kept in such way that they will show separately the production, proceeds, and expenses pertaining to each well so that the net proceeds may be ultimately awarded to the rightful claimant. 5. Before entering upon his duties the receiver shall execute a bond to be approved by the court in the sum of one hundred thousand dol lars for the faithful performance of his duties including the disbursement and payment according to the court's direction of all moneys which may come into his hands in the course of the receivership. 6. The receiver shall receive such compensation for his services as may be fixed hereafter by the court. 7. The defendant, the state of Texas, and the complainant, the state of Oklahoma, and their respective officers, agents and employés, and all persons now in possession of any of the said lands or claiming any right, title or interest therein, are directed to deliver possession thereof to the said receiver and are enjoined until the further order of this court from removing any of the property herein before described from said lands and from conducting any oil or gas mining operations thereon save under the direction and supervision of the receiver and from interfering with the possession, control or operations of the receiver. 8. As to such of the land before described as is not claimed by the defendant, the state of Texas, in its proprietary capacity said state shall have fifteen days within which to file a *376 response to the intervener's motion for an injunction and receiver; and on the filing of such response the state of Texas or any claimant claiming under a patent, lease or permit from that state shall be at liberty to request any modification of this order deemed essential or appropriate for the right or full protection of the interest of such state or claimant. 9. Either the plaintiff, the state of Oklahoma, or the intervener, the United States, may by an amendment of its pleading make any claimant claiming under the state of Texas or any other claimant a party to the cause and have the requisite process issued and served, so that all parties claiming an interest in the subject-matter may be before the court. And the like permission is granted to the state of Texas in respect of parties claiming under the state of Oklahoma or the United States. (40 Sup.Ct.) (252 U. S. 444) (Argued Jan. 5 and 6, 1920. Decided April 19, court. 1. COMMERCE 64, 72-STATE TAX ON SALES OF AND DEALERS IN GASOLINE VOID AS TO SALES IN ORIGINAL PACKAGES. Laws N. M. 1919, c. 93, imposing an excise tax on sales of gasoline and a license tax on distributors and retail dealers therein, is void as imposing a burden upon interstate commerce, as applied to sales in the original barrels and packages in which the gasoline is shipped into the state, and sales to a single customer of the entire contents of the tank cars in which it is shipped into the state. 2. COMMERCE 64, 72-STATE TAX ON SALES OF AND DEALERS IN GASOLINE VALID AS TO Laws N. M. 1919, c. 93, is valid as applied to gasoline sold from the tank cars, barrels, and packages in which it is shipped into the state in such quantities as the purchaser requires, though no gasoline is produced in New Mexico, and all gasoline sold therein is brought from other states; there being no discrimination against the products of other states. Appeals from the District Court of the United States for the District of New Mex ico. Three suits, by the Continental Oil Company, by the Sinclair Refining Company, and by the Texas Company, against O. O. Askren, Attorney General of the State of New Mexico, and others. From orders granting temporary injunctions, defendants appeal. Affirmed. Messrs. Charles R. Brock, of Denver, Colo., and E. R. Wright, of Santa Fé, N. M., for appellees. These suits were brought by the three companies, appellees, in the District Court of *446 the United States for the *District of New Mexico to enjoin the enforcement of an act of the Legislature of the state entitled: The cause came before three judges upon an application for temporary injunction and a counter motion to dismiss the bills of complaint. The temporary injunction was granted, and a direct appeal taken to this "An act providing for an excise tax upon the sale or use of gasoline and for a license tax to be paid by distributors and retail dealers therein; providing for collection and application of such taxes; providing for the inspection of gasoline and making it unlawful to sell gasoline below a certain grade without notifying purchaser thereof; providing penalties for violations of this act and for other purposes." *445 upon the sale or use thereof *having been paid as provided in the act shall be deemed guilty of a misdemeanor, and punished by a fine and forfeiture of his license. It is made unlawful for any person (except tour*Mr. A. B. Renehan, of Santa Fé, N. M., ists or travelers to the extent provided in for appellants. the act) to use any gasoline not purchased from a licensed distributor or retail dealer without paying the tax of 2 cents per gallon. Inspectors are provided for each of the Mr. Justice DAY delivered the opinion of eight Judicial districts of the state, who are the Court. required to see that the provisions of the act are enforced, and privileged to examine books and accounts of distributors and retail dealers, or warehousemen or others receiving and storing gasoline and of railroad and transportation companies, relating to purchases, receipts, shipments, or sales of gasoline; their salaries are provided, and salaries and expense bills are to be paid out of the state road fund. Any person who shall engage or continue in the business of selling gasoline without a license or after such license has been forfeited, or shall fail to render any statement, or make any false statement therein, or who shall violate any provision of the act the punishment for which has not been theretofore provided, shall be deemed guilty of a misdemeanor and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes The law is found in Session Laws of New Mexico 1919, c. 93, p. 182. The provisions of the act, so far as necessary to be considered, define a distributor of gasoline as meaning: "Every person, corporation, firm, copartnership and association who sells gasoline from tank cars, receiving tanks or stations, or in or from tanks, barrels or packages not purchased from a licensed distributor of gasoline in this state." A retail dealer is defined as meaning: "A person, other than a distributor of gasoline, who sells gasoline in quantities of fifty gallons or less." Every distributor is required to pay an annual license tax of $50 for each distributing station, or place of business, and agency. Every retail 'dealer is required to pay an annual license tax of $5 for every place of business or agency. An excise tax is imposed upon the sale or use of gasoline sold or used in the state after July 1, 1919; such tax to be 2 cents per gallon on all gasoline so sold or used. Any distributor, or dealer, who shall fail to make return or statement as required in the act, or shall refuse, neglect or fail to pay the tax upon all sales or use of gasoline, or who shall make any false return or statement, or shall knowingly sell, distribute or use any gasoline without the tax *447 upon conviction shall be punished by a fine [cense tax for purchasing, shipping and sell or imprisonment, or both. The state treas- ing gasoline as aforesaid. A second method of dealing in gasoline is described in the bills: That the gasoline shipped to the plaintiffs from the other states, as aforesaid, is in tank cars, and plaintiff, or plaintiffs, sell such gasoline from such tank cars, barrels and packages in such quantities as the purchaser requires. [1] As to the gasoline brought into the state in the tank cars, or in the original packages and so sold, we are unable to discover any difference in plan of importation and sale between the instant case and that before us in Standard Oil Co. v. Graves, 249 U. S. 389, 39 Sup. Ct. 320, 63 L. Ed. 662, in which we held that a tax, which was in effect a privilege tax, as is the one under consideration, providing for a levy of fees in excess of the cost of inspection, amounted to a direct burden on interstate commerce. *its provisions and the effect of the act, it is a tax upon the privilege of dealing in gaso-In that case we reaffirmed, what had often line in the state of New Mexico. been adjudicated heretofore in this court, The bills in the three cases are identical that the direct and necessary effect of such except as to the number of distributing sta- legislation was to impose a burden upon intertions alleged to belong to the companies re-state commerce; that under the federal Conspectively. As there was no answer, and the stitution the importer of such products from bills were considered upon application for another state into his own state for sale in injunction, and motion to dismiss, their al- the original packages, had a right to sell the legations must be taken to be true. same in such packages without being taxed for the privilege by taxation of the sort here involved. Upon this branch of the case we deem it only necessary to refer to that case, and the cases therein cited, as establishing the proposition that the license tax upon the sale of gasoline brought into the state in tank cars, or original packages, and thus sold, is beyond the taxing power of the state. urer is required to set aside from the license fees and taxes collected under the provisions of the act a sufficient sum to pay the salaries and traveling expenses of the inspectors out of the money received from such collections, and to place the balance to the credit of the state road fund, to be used for the construction, improvement and maintenance of public highways. It is evident from the provisions of the act thus stated that it is not an inspection act merely; indeed, the inspectors do not seem to be required to make any inspection beyond seeing that the provisions of the act are enforced, and the excess of the salaries and fees of the inspectors is to be used in making roads within the state. Considering *448 Plaintiffs are engaged in the business of buying and selling gasoline and other petroleum products. The bills state that they purchase gasoline in the states of Colorado, California, Oklahoma, Texas and Kansas, and ship it into the state of New Mexico, there to be sold and delivered. The bills describe two classes of business: First, that they purchase in the states mentioned, or in some one of said states, gasoline, and ship it in tank cars from the state in which purchased into the state of New Mexico, and there, according to their custom and the ordinary method in the conduct of their business, they sell in tank cars the whole of the contents thereof to a single customer, before the package or packages, in which the gasoline was shipped have been broken. In the usual and regular course of their business they purchase gasoline in one is dealt in within that *state must be brought of the states, other than the state of New in from other states. But, so long as there Mexico, and ship it, so purchased from that is no discrimination against the products of state, in barrels and packages containing not another state, and none is shown from the less than two 5-gallon cans into the state mere fact that the gasoline is produced in of New Mexico, and there, in the usual and another state, the gasoline thus stored and ordinary course of their business, without dealt in, is not beyond the taxing power of breaking the barrels and packages, containthe state. W. F. Wagner & Sons v. City of ing the cans, it is their custom to sell the gas-Covington, 251 U. S. 95, 40 Sup. Ct. 93, 64 L oline in the original packages and barrels. Ed., decided December 8, 1919, and the The gasoline is sold and delivered to the cases from this court cited therein. customers in precisely the same form and condition as when received in the state of New Mexico; that this manner of sale makes the plaintiffs distributors of gasoline as the term is defined in the statute, and they are required to pay the sum of $50 per annum for each of their stations *as an annual li *449 [2] The plaintiffs state in the bills that their business in part consists in selling gasoline in retail in quantities to suit purchasers. A business of this sort, although the gasoline was brought into the state in interstate commerce, is properly taxable by the laws of the state. Much is made of the fact that New Mexico does not produce gasoline, and all of it that *450 Sales of the class last mentioned would be a subject of taxation within the legitimate power of the state. But from the averments of the bills it is impossible to determine the relative importance of this part of the business as compared with that which is nontaxable, and at this preliminary stage of the |
