require of the employee of the Government that such service be performed with due caution and care. When the United States creates a position and prescribes the duties incident thereto, it assumes that they will be performed in a lawful manner, and does not undertake to shield its employees against liability for doing them negligently. In fact the laws of the United States do not in any respect authorize willful misconduct or negligence upon the part of its employees, and there is no principle better recognized than that a government employee or official is liable for all damages that may result from an unauthorized act. The Flying Fish (2 Cranch 170, 179). Mitchell v. Harmony (13 How. 115). United States v. Russell (13 Wall. 623). Cammeyer v. Newton (94 U. S. 225, 234).

This being true, I think it necessarily follows that when a State has deemed it advisable, in order to protect the public against dangers that might arise from performing the duties of a lawful employment in an unlawful manner, to adopt reasonable regulations which require that certain conditions be complied with before entering upon such occupation, one can not excuse himself from complying therewith on the ground that he is employed by the United States Government. For illustration, suppose the United States should undertake to construct a public building in the city of Baltimore, and in excavating for the foundation it should become necessary to use large quantities of dynamite in blasting. Could it be insisted with any reason that the employees of the Government engaged in that work could not be required to keep this dynamite stored, and to handle the same and do the blasting in accordance with the municipal or state regulations. controlling such work? And if, in order to guard against accidental explosions the local regulations should require that the foreman who had the supervision of work of that character should satisfy the authorities that he possessed proper knowledge and skill, and that he should obtain a license showing that fact, such a regulation would clearly be valid and enforceable against him who should undertake to supervise the work for the Government.

The distinction between the power to adopt and enforce a police regulation and the power to levy a tax is illustrated by the cases of New York v. Miln (11 Pet. 102, 112) and Henderson v. Mayor of New York (92 U. S. 259).

In the former case the Supreme Court of the United States had under consideration the validity of a statute of the State of New York which required, among other things, that every master or commander of any ship or vessel arriving in the port of New York from any country out of the United States, or from any of the other States other than New York, should, within twenty-four hours after the arrival of such ship or vessel, make a report in writing on oath or affirmation to the mayor of the city of New York, or, in his absence, to the recorder of said city, of the name, place of birth, and last legal settlement, age and occupation, of every person brought as a passenger in said ship or vessel on her last voyage; and of all passengers landed, or suffered or permitted to land, from such ship or vessel at any place during such voyage, or put on board, or suffered or permitted to go on board the vessel with the intention of proceeding to said city, under a penalty, in case of failure to comply therewith, of $75 for every person so neglected to be reported. It was insisted that this statute was an unlawful interference with commerce, and hence unconstitutional; but the court maintained its validity on the ground that it was enacted to guard the State of New York against undesirable immigrants, and was designed to promote the public welfare, and was, therefore, a reasonable police regulation.

In Henderson v. Mayor of New York the statute under consideration required that every master of a vessel arriving at the port of New York from a foreign port should, within twenty-four hours after arrival, report in writing to the mayor of the city the name, birthplace, last residence, and occupation of every passenger not a citizen of the United States, and directed that the mayor require the owner or consignee of the vessel to give a bond for every passenger so reported in a penalty of $300, with two sureties, each to be a resident and freeholder of the State, conditioned to indemnify the commissioners of immi

gration and every county, city, and town in the State against any expense for the relief or support of the person named in the bond for four years thereafter; but that the owner or consignee might be relieved from giving the bond by paying for each passenger, within twenty-four hours after his landing, $1.50. The court held that this act was invalid, because the requirement that the master report the passengers on board the vessel was only a subterfuge, and the real purpose of the act was to impose and collect a tax of $1.50 on each passenger.

There appears to be a consensus of opinion that, on account of the power of motor vehicles, and the speed at which they may be driven, which endangers the safety of pedestrians, and their appearance, and the noise which is ordinarily incident to their movements, which tends to frighten animals ridden or driven along the road, it is legitimate and proper for legislative bodies to enact strict rules and regulations governing their operation.

Consequently, I am of the opinion that the validity of the laws of Maryland and Virginia, as applied to automobiles and the chauffeurs in charge of the same in the service of the President, must turn upon whether the license fees. provided for by those laws are a tax upon the vehicles and upon the privilege of operating them under the employment of the Government, or are fees merely intended to pay the expenses of complying with the preliminary requirements for operating those automobiles in those States.

So far as applicable to this question, the provisions of the two statutes are substantially the same, and it will be necessary only to state the material provisions of the Maryland act, which are contained in sections 131 to 140 of article 56 of the code of 1904, as amended by an act passed by the general assembly of Maryland in 1910.

By section 133 every owner, before operating an automobile in the State, is required to file with the commissioner of motor vehicles an application for the registration of such vehicle; and upon the payment of the prescribed fee the commissioner is authorized to issue to the owner a certifi

cate of registration in the form prescribed, which certificate shall at all times be carried upon the motor vehicle and shall be subject to examination upon demand by any proper officer. The commissioner is also required to furnish the owner with two duplicate metal plates or markers bearing the letters "Md", and a number or mark assigned to such vehicle, the figures thereof to be not less than a designated size.

By section 136 the fees for class A vehicles are fixed at $6 per annum for each motor vehicle with a rating of 20 horsepower or less, $12 per annum for one with a rating of more than 20 and not more than 40 horsepower, and $18 per annum for one with a rating of more than 40 horsepower.

By section 137 it is provided that no person shall operate a motor vehicle upon any highway of the State until he first shall have obtained an operator's license for that purpose, and no license to operate an automobile is to be issued to any person under the age of 16 years; the fee for such license being fixed by section 138 at $2.

By section 139 provision is made for the suspension or revocation of operators' licenses upon a hearing by the commissioner of motor vehicles.

By section 140 it is required that every motor vehicle, except motor cycles, shall at all times while being operated have displayed, entirely unobscured and kept reasonably clean, the number plate or marker issued by the commissioner, one of such plates being displayed on the front and the other on the rear of the vehicle.

Subsequent provisions contain minute regulations with reference to the speed of motor vehicles; when the speed shall be reduced, and when the vehicle shall be stopped; what shall be done in case of accident; what persons are forbidden to operate vehicles; the use of brakes, bells, horns, and other devices for giving warning, and lights; against allowing vehicles to stand unattended, and for the imposition of penalties in case of violation of the act; and in section 140r it is provided that all moneys collected by the commissioner of motor vehicles pursuant to the pro

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visions of the statute, except such as shall be necessary for his salary and the expenses of his office, shall be accounted for and remitted by said commissioner to the state treasurer, who shall create a special fund thereof, and on the 1st day of April of each year one-fifth thereof shall be paid to the mayor and city council of Baltimore for use on its roads and streets, and the balance to be used for the oiling, maintenance, and repair of the roads now being built by the State and counties and for no other purpose, and that the remainder shall be expended on roads in the manner prescribed.

By section 140t certain public vehicles are exempted, among which are not included vehicles belonging to the United States Government.

It is apparent from a reading of this act that it was passed primarily as a police regulation, the purpose being to permit none but experienced and cautious persons to operate motor vehicles, and to exact of them proper care and caution in their operation, by prescribing minutely the permissible rate of speed, under what circumstances the speed shall be reduced or the vehicle stopped, upon what side of the road they shall move, and such other requirements as the legislature deemed necessary to promote the safety of the public, and at the same time permit the public highways to be used by vehicles of this char

acter.

It is equally apparent, however, that the provision with reference to the amount of fees that shall be charged for licenses is a tax upon the vehicles. This is clearly shown by the fact that different fees are charged for the operation of vehicles of different horsepower, and that the revenue derived therefrom, as well as from the penalties imposed for violation of the act, is set aside for the special purpose of the improvement of roads. The fact that this is denominated a license fee does not relieve it from the objection that it is in fact a tax upon the vehicle.

The cases bearing upon this question are all reviewed by the court speaking through Mr. Justice Harlan in the late case of Western Union Telegraph Co. v. Kansas (216 U. S. 1),