Hawkins v. Louisville & Nashville R. R. , 145 Ala. 385 ( 1906 )

DENSON, J.

The question to be determined in this case is whether or not the oil inspector of Jefferson county is entitled to compensation for a voluntary second inspection of miners’ oil contained in unstamped barrels, but filled with oil from a tank which had before such filling been tested and stamped, as required by law. The act, local to Jefferson county, is entitled, “An act to prevent the sale or use in the county of Jefferson of impure miners’ oil or other material that shall be used for illuminating purposes in mines, and providing for the inspection of miners’ oils or other material used as a substitute therefor.” The act was approved February 27, 1901, and is found in the Acts of 1900-01, at page 1249.

The facts of the case, briefly stated, are, that the plaintiff, who was the oil inspector, found six barrels of oil in defendant’s depot in Birmingham, consigned by the Standard Oil Company to various purchasers, and to be used for illuminating purposes in the mines of Jefferson county. Each of the barrels had plainly stenciled on its head the words: “The contents of this package taken from the tank inspected by oil inspector of miners’ oil, under date of September 8th, 1904.” These words the inspector (plaintiff) saw and read before he inspected the contents of the barrels. All the oil in the barrels was on the 8th day of September, 1904, contained in a 5,000-gallon tank at the warehouse of the Standard Oil Company in Birmingham. The tank of oil was on that date inspected by the inspector, it conformed to the standard required by the act, and was duly stamped by the inspector as required by the act. The fees for this inspection Avere paid to the inspector on the date of the inspection. The Standard Oil Company loaded the oil so inspected from the tank into the barrels in Avliich it was found in defendant’s depot. The inspector Avas not present Avlien the barrels were loaded, and -he was not requested to be present; but the oil Avas loaded by the company into the barrels after he Avas informed by the company of its purpose to load the oil from the tank into barrels and to sell and deliver the same to customers for use for illuminating purposes in the mines of Jefferson county, without further inspection or stamping. The inspector, when he found the oil in the defendant’s depot, inspected the oil in the barrels, it conformed to the requirements of the act, and he affixed his brand to each of the barrels; the inspection was made voluntarily. After the barrels had been inspected and stamped, the inspector notified the defendant, which Avas a common carrier, not to remove the oil Avithout paying the inspector’s fee; but it disregarded the notice and delivered the barrels to the consignees.

Section 2 of the act provides that all miners’ oils or other material used as a substittue therefor shall be inspected, and provides hoAV the inspection shall be made. Section 3 provides for the election of a county inspector of miners’ oils and empowers Mm to appoint as-many assistants as he may deem necessary. It requires that the inspector and his associates shall inspect the quality of all oil or other material offered or intended to be offered for sale, to be used for illuminating purposes in the mines of Jefferson county. It further requires that, if upon making the test required the oil shall meet the requirements of the act, the inspector shall brand the vessel containing the oil with the Avords, “Jefferson county test - degrees,” with the number of degrees at Avhich the oil bore the test provided, and the date of the inspection, after which it shall be lawful for any manufacturer, vender, or dealer to sell the same in the county of Jefferson, for illuminating purposes in the mines of said county. It further provides that, if the oil shall not meet the requirements, the inspector shall mark by stencil, label, or brand in plain letters, on any package, tank, barrel, or other vessel containing the same, and by a stamp or label subscribed Avith his official signature the words, “Rejected for illuminating purposes in .the mines of Jefferson county,” giving the date of such inspection, and it shall be unlaAvful for the owner or person in possession thereof to sell such oil so branded as rejected, to be consumed within the county for illuminating purposes in mines, etc. Section 10 of the act is in the following language, to-wit: “Be it further enacted, that every package, cask, barrel, or other vessel containing miner’s oil, or substitute therefor, shall be duly and carefully inspected and the same shall not be marked as approved until the material therein shall have been inspected as hereinbefore provided. Any inspector or assistant who shall violate the terms of this section shall be removed from office by the appointing board when the offense has been proven to the satisfaction of such appointing board.” Section 12 of the act provides that the inspector as compensation for his services shall receive three-fourths of a cent per gallon if inspection is made in quantities in bulk not less than 5,000 gallons. If inspected in bulk in less quantities than 5,000 gallons, one cent per gallon; if inspected in barrels or other vessels other than tanks, two cents per gallon. The section further provides that the articles inspected shall be held subject to the payment of the fees -which shall be a lien on the oil or other material inspected, whether in the hands of carrier, agent, or owner.

The express declaration of the third section, that after the oil is inspected and the package, cask, tank, barrel, or other vessel containing the oil is stamped as required by law it shall be lawful to sell said oil, would seem to convey the idea that it was not the intention of the Legislature that there should be a reinspection of the oil when, for convenience in vending, or for the purpose of vending, the oil is loaded into other and smaller vessels. Taking the facts of the case in hand, it is a matter of common knowledge that a tank of oil containing 5,000 gallons, unless fixed on a railroad car, could not be transported, and it could not become a subject of commerce without being reloaded into smaller vessels. The Legislature must have realized these facts, when it provided for inspecting the oil in bulk without any limitation as to quantity, and when it expressly provided that when so inspected and branded the oil contained therein became a legitimate subject of commerce and use. There is no provision of the act which can be pointed to as prohibiting emptying the contents of a tank of oil after it has been properly inspected and branded into another nnbranded vessel and selling the oil therefrom. Such a construction of the statute -would require every change of the oil from one package or vessel to another to be reinspected. — State v. Finch, (Minn.) 34 N. W. 904 ; State ex rel. Waters Oil Co. v. Baggot, (Mo. Sup.) 8 S. W. 737 ; Ex parte Robinson, (Tex. App.) 15 S. W. 603 ; Waters v. State, (Ark.) 18 S. W. 57.

Appellant hinges his right to recovery upon section 10 of the act; his contention being that that section controls the previous provision of the act, and requires an inspection of every package, cask, barrel, or other vessel containing miners’ oil, irrespective of the fact that the oil in the vessels may have been previously inspected by the inspector in Jefferson county; and he argues that the inspector may not be required to inspect every vessel without compensation for each inspection.- In construing a statute -it must be so construed as to give effect to every clause, if it can be done. — Ex parte Dunlap, 71 Ala. 73. Section 7 of the act, Avhich requires the inspection of oil within two days after its receipt in the county, makes no mention of an inspection of each vessel in which the oil is contained, and limits the penalty for violation to a willful failure to comply with its provisions. We have seen that section 12 provides the compensation for inspection of oil in quantities in bulk not less than 5,000 gallons, and that section 3 provides that after the inspection has been made and the vessel branded the oil may be sold; while section 4 penalizes the sale or attempt to sell oil for consumption in the mines of the county before having the same inspected as provided in the act. In section 11 of the act is found the only reference to reinspection of oil. It provides that the inspector shall have the power to reinspect any miner’s oil or substitute therefor in said county which he -has reason to suspect is below the standard required by law, provided no fee shall be charged for such inspection. Construing the act as a whole, .we are of the opinion that section 10 does not apply to oil previously inspected in tanks or other vessels and loaded into barrels or other ■ vessels to be shipped to retailers in the county, .as the 011 in -this case was. The effect or office of section 10 is to enjoin upon the inspector the duty of seeing that no miners’ oil offered or intended to be offered for sale in the county «hall escape inspection, and tliat tlie inspection .shall be made with care. And it prohibits the inspector from marking the packages, cask, barrel, or other vessel containing the oil approved until it shall have been duly and carefully inspected, under penalty of removal from his office upon satisfactory proof being made of a violation of the law.

Our conclusion on the agreed statement of facts is that the oil in the barrels ivas not subject to reinspection, that the inspector Avas not entitled to fees for the second inspection, and that the judgment Avas properly rendered for the defendant.

There is no error in the record, and the judgment must be affirmed.

McClellan, C. J., and Doavdell and Simpson, JJ., concur.