The opinion
WALKER, Circuit Judge
(dissenting in part). I concur in the conclusion that, as to oil imported by the plaintiff for' sale in the containers in which it is brought into the state, and so sold, the collection of the inspection fees should be enjoined; but I do not concur in •the conclusion that, as to oil imported for use or sale, the prescribed fees may be exacted upon the removal of such oil from the containers in which it was imported.
I am unable to find any basis in the provisions of the statute in question for the conclusion that it is anything but an inspection measure. The fees prescribed cannot well be considered as exacted for anything but inspection, where nothing is required but inspection and payment for it, the payment not conferring on the payer any right or privilege not equally possessed by others who, without paying such fees, may use, keep, or store for sale, or otherwise deal in, the inspected oil. The statute is'materially different from the one which was passed on in the case of Askren et al. v. Continental Oil Co. (April 19, 1920) 253 U. S. -, 40 Sup. Ct. 355, 64 L. Ed. -. The statute there in question was held to impose a tax upon the privilege of dealing in gasoline m the state of New Mexico. It did not require any inspection of gasoline. It imposed a tax on the privilege of dealing in that commodity. 'It was held that, so far as such dealing was in imported gasoline, while still in the containers in which it was imported, it was not subject to the tax.
The statute now in question exacts the payment of fees for inspecting oil, and does not tax oil as property in Georgia, or the privilege of dealing in it there. By it the police power of requiring oil to(be inspected before it is used or sold is so exercised as to be the means of raising a large revenue for the state. To sustain the statute to the extent indicated in the foregoing opinion requires the affirmance of the proposition that, as to imported goods, which, with intent to use or sell them, have been removed from the original containers in which they were brought into a state, a charge for inspection grossly in excess of the expenses involved may be exacted as the price of such goods becoming the subject of lawful use or disposition in the state. In Standard Oil Co. v. Graves, 249 U. S. 389 , 39 Sup. Ct. 320, 63 L. Ed. 662 , it was decided that such an inspection charge on imported goods is an unauthorized burden on interstate commerce, “certainly while the same are in the original receptacles or containers in which they are brought into the state.”
So far as the'writer is informed, it has not been authoritatively decided that the payment of an excessive inspection fee may be made the price of protecting imported goods, even after they have been stopped in a state and been removed from the containers in which they were brought in, from being treated as contraband or outlawed. If such an obstacle may be put in the way of imported commodities acquiring the beneficial qualities of property, the prohibition of interference with interstate or foreign commerce may easily be defeated. If such an exaction is not subject-to the limitation imposed on inspection charges, then all imported commodities, whether properly subject to inspection or not, may be subjected to such exactions as a state may choose to impose as conditions precedent to their acquiring the capacity of be *583 ing lawfully dealt in. As to such a commodity the charge amounts to a toll on the movement of it into domestic commerce. It is believed that as to oil coming from beyotid the borders of the state the limit of the allowable toll on 'its transition into intrastate commerce is the reasonable expense of ascertaining if it is fit for use or sale.
It is not questioned that, as to imported goods which have been removed from the original containers in which they were imported, a state has the power of taxing either the. goods as property, or the carrying on of any business or the exercise of any privilege in which the goods figure. This does not amount to saying that a state has the additional power of charging what it pleases as the price of such goods becoming the subject of lawful commerce or dealings within its borders. If a state can require the payment of such fees as those in question, it also may exact similar payments before shoes, hats, calico, nails, horse collars, or any kind of commodity can be used or sold. It is not believed that such an exaction properly can be regarded as a property, occupation, or privilege tax. No property, occupation, or privilege is taxed. If, on the ground that it is possible for a commodity to have its origin in a state, it may be subjected to such charges for inspection, there is an easy way of creating an obstacle to any imported commodity entering into the commerce of a state. No commodity which is a proper subject of inspection can be moved with the required freedom from one state into another, if it is subject to such an exaction as the one in question. If such an exaction can be made, without being kept within the limit fixed for inspection charges, any commodity coming into a state from beyond its borders may be met by a similar barrier. A denial of the state’s right to make such exaction does not amount to a denial of its taxing power, or of its police power of making reasonable regulations for the protection of its people.