Opinion
No. 45081.
June 7, 1943.
Peter Reed and Ashley M. Van Duzer, both of Cleveland, Ohio (McKeehan, Merrick, Arter Stewart and Orrin B. Werntz, all of Cleveland, Ohio, on the briefs), for plaintiff.
Joseph H Sheppard, of Washington, D.C., and Samuel O. Clark, Jr., Asst. Atty. Gen. (Robert N. Anderson and Fred K. Dyer, both of Washington, D.C., on the brief), for the United States.
Before WHALEY, Chief Justice, and LITTLETON, WHITAKER, JONES, and MADDEN, Judges.
Action by Sea Gull Lubricants, Inc., to use of National Acme Co., and another, against the United States to recover federal excise tax of four cents a gallon which had been paid on two types of cutting oil sold by it for use in metal cutting operations.
Plaintiff's petition dismissed.
The case having been heard by the Court of Claims, the court, upon the evidence and the report of a commissioner, makes the following special findings of fact:
1. Plaintiff is an Ohio corporation with its principal place of business in Cleveland. The C.H. Clark Oil Company, hereinafter referred to as Clark, is a subsidiary corporation of plaintiff and acts as a selling agent for it. Plaintiff is engaged in the manufacture and sale of oils used in metal cutting operations and of oils used for lubricating moving parts of machinery.
2. During the period June, 1935, to November, 1938, inclusive, plaintiff sold to Clark certain oil under the trade name "Elaine Oil," which oil was in turn sold by the latter company to the National Acme Company, hereinafter referred to as Acme. When the oil was sold by plaintiff to Clark, federal excise taxes at the rate of four cents per gallon, the rate of tax provided under the appropriate revenue statutes for lubricating oils, were shown as a separate item on the invoices and the amounts so shown were collected by plaintiff from Clark. When the sales were made by Clark to Acme, the excise taxes were invoiced by the former to the latter separately at the same rate and in due course paid by the latter to the former.
3. During the period June, 1935, to December, 1938, both inclusive, Clark made sales of oil having the trade name "Clark's X Cutting Oil," to the Lamson Sessions Company, hereinafter referred to as Lamson, which oil had been acquired from plaintiff in the same manner as the oil referred to in the preceding finding as having been acquired and sold to Acme. The same procedure was followed as to excise taxes. During the same period Clark also sold to Lamson a mineral oil under the trade name "Trifilm B 50," which oil was likewise acquired from plaintiff. On all sales to Lamson, excise taxes at the rate indicated in the preceding finding were billed as separate items and were paid by that company as such.
4. For the period June, 1935, to December, 1938, both inclusive, plaintiff, as manufacturer and producer, duly filed excise tax returns covering its sales of oil to ultimate consumers and paid the tax shown due thereon which was computed at four cents a gallon, the rate of tax provided in the revenue statutes as the tax on lubricating oils. Included among the taxes so paid were taxes on the "Elaine Oil" and "Clark's X Cutting oil," heretofore referred to, as follows:
Period Amount of Date of tax payment
June 1935 ...................... $51.94 July 25, 1935 July 1935 ...................... 74.14 Aug. 15, 1935 Aug. 1935 ...................... 21.90 Sept. 26, 1935 Sept. 1935 ..................... 52.04 Oct. 29, 1935 Oct. 1935 ...................... 76.91 Nov. 26, 1935 Nov. 1935 ...................... 34.42 Dec. 28, 1935 Dec. 1935 ...................... 43.97 Jan. 30, 1936 Jan. 1936 ...................... 67.03 Feb. 28, 1936 Feb. 1936 ...................... 54.99 Mar. 27, 1936 Mar. 1936 ...................... 58.73 May 1, 1936 Apr. 1936 ...................... 61.39 May 27, 1936 May 1936 ....................... 50.51 June 23, 1936 June 1936 ...................... 62.98 July 29, 1936 July 1936 ...................... 77.85 Aug. 27, 1936 Aug. 1936 ...................... 43.82 Sept. 23, 1936 Sept. 1936 ..................... 49.87 Oct. 28, 1936 Oct. 1936 ...................... 71.11 Dec. 1, 1936 Nov. 1936 ...................... 43.92 Dec. 30, 1936 Dec. 1936 ...................... 50.44 Jan. 23, 1937 Jan. 1937 ...................... 94.38 Feb. 25, 1937 Feb. 1937 ...................... 88.77 Mar. 24, 1937 Mar. 1937 ...................... 69.90 Apr. 23, 1937 Apr. 1937 ...................... 119.13 May 26, 1937 May 1937 ....................... 92.44 June 25, 1937 June 1937 ...................... 76.73 July 28, 1937 July 1937 ...................... 44.25 Aug. 27, 1937 Aug. 1937 ...................... 74.51 Sept. 28, 1937 Sept. 1937 ..................... 50.49 Oct. 26, 1937 Oct. 1937 ...................... 22.34 Nov. 26, 1937 Nov. 1937 ...................... 39.43 Dec. 30, 1937 Dec. 1937 ...................... 37.27 Jan. 27, 1938 Jan. 1938 ...................... 22.56 Feb. 24, 1938 Feb. 1938 ...................... 13.40 Mar. 29, 1938 Mar. 1938 ...................... 43.89 Apr. 28, 1938 Apr. 1938 ...................... 37.19 May 28, 1938 May 1938 ....................... 22.36 June 29, 1938 June 1939 ...................... 22.28 Aug. 3, 1938 July 1938 ...................... 2.06 Aug. 30, 1938 Aug. 1938 ...................... 35.48 Sept. 30, 1938 Sept. 1938 ..................... 22.40 Oct. 22, 1938 Oct. 1938 ...................... 35.35 Nov. 29, 1938 Nov. 1938 ...................... 35.45 Dec. 30, 1938 Dec. 1938 ...................... 44.47 Jan. 24, 1939 --------- Total ...................... 2,194.49
5. Acme and Lamson entered into agreements with plaintiff February 27, 1938, and March 2, 1939, respectively, under which it was agreed among other things that plaintiff should file and prosecute a claim for refund of the taxes referred to in the preceding finding, and that any credit or refund resulting therefrom should inure to the benefit of the appropriate vendee, that is, Acme or Lamson. Appropriate consent has also been secured from Clark.
6. March 10, 1939, plaintiff filed a claim for the refund of the excise taxes paid on the sales of its cutting oil to Acme and Lamson hereinbefore referred to, in the amount of $2,194.49, and assigned the following grounds therefor:
"1. The oil on which said excise tax was paid was not `lubricating oils' within the meaning of Section 601(c)(1) of the Revenue Act of 1932 (26 U.S.C.A. Int. Rev. Acts, page 604).
"2. The oil on which said excise tax was paid was not `lubricating oil' within the meaning of Article 40 of Regulations 44.
"3. The oil on which said excise tax was paid was used as a cutting fluid and not in such manner or for such purpose as to render it taxable under such statute.
"4. The oil on which said excise tax was paid was purchased and used by the ultimate consumers solely as a cutting fluid. The use to which it was put included many non-lubricating factors. Among its primary functions were those of cooling, slushing, and chip removal in connection with the manufacture of metal parts by machine tool. Whatever lubricating function, if any, it may be found to have served was sufficient neither in respect of volume nor character to render it taxable as `lubricating oils' within the meaning of said section.
"5. Such oil so used was not lubricating oil, nor was it sold or used as lubricating oil, nor for lubricating purposes, so as to be subject to the excise tax provided in said section standing alone or as interpreted by Article 40 of Regulations 44.
"6. Section 601(c)(1) of the Revenue Act of 1932 is unconstitutional since it violates the Fifth Amendment of the Constitution of the United States in that, as to the consumer of cutting fluids, it is an unreasonable deprivation of its property without due process of law, because it imposes upon cutting fluids, which are sold in relatively large volume at a relatively low price per gallon, the same tax in cents per gallon and a much greater tax in percentage of cost than that which is imposed upon lubricating oil products sold for purposes other than as cutting fluids and which are sold in relatively small quantities and at a relatively high price per gallon."
The claim was not accompanied by the exemption certificates referred to in Treasury Department Regulations 44 for the reason that the Commissioner of Internal Revenue would not permit their use in connection with the products in question.
7. October 19, 1939, the Commissioner rejected plaintiff's claim for refund, his letter of rejection concluding with the following statements:
"Section 601(c)(1) of the Revenue Act of 1932, as amended, imposes a tax of 4 cents a gallon on lubricating oil sold by the manufacturer or producer thereof. It is provided in article 40 of Regulations 44 (revised September 1934) that the term `lubricating oil' includes all oils, regardless of their origin, which are sold as lubricating oils and all oils which are sold or used for lubrication.
"The above-mentioned section of the Act imposes the tax on lubricating oils and no attempt is made to show what was meant by the term `lubricating oils.' While under a strict interpretation of the law all lubricating oils could have been held properly subject to the tax, the Bureau, by regulations, limited the application of the tax to only those lubricating oils which are sold as such and those oils which are sold or used for lubrication.
"The question of the taxability of lubricating oils used in cutting and machining operations on metals has been given careful consideration by the Bureau and it has been consistently held, based upon an opinion from the National Bureau of Standards, that oils so used involve lubrication and are properly subject to tax.
"Since the tax in question was paid on lubricating oils sold to your customers for cutting and machining operations on metals, it is held that such tax was properly due and paid and the claim is rejected in full."
8. The "Clark's X Cutting Oil" oil purchased by Lamson, the taxes on which are a part of those in controversy, was a mineral-base cutting oil compounded from mineral oil, animal fat, sulphur and chlorine, the composition having been prepared by plaintiff prior to the sale to Lamson. It was sold by plaintiff and purchased by Lamson for use as a cutting oil on cutting and threading machines. These machines have separate lubricating systems to lubricate all bearings and rotating surfaces. For this latter purpose, Lamson purchased other oil from plaintiff under the name "Trifilm B 50," the taxes upon which are not here in controversy. The latter was a purely petroleum product, a mineral oil. The sale price of Clark's X Cutting Oil was substantially less than that of the Trifilm B 50 oil. The cutting oil was not used by Lamson to lubricate the bearings or rotating surfaces of the machines.
9. The oil purchased by Acme, taxes on which are a part of those in controversy, was a commercial form of oleic acid sold under the name "Elaine Oil." It was a fatty acid derived from lard oil. It was sold by plaintiff and purchased by Acme for use in combination with other substances as a cutting oil. It was ordinarily mixed with a base mineral oil to which had been added chlorine and sulphur. Oleic acid is the organic acid which constitutes the acid part of most fatty oils. While it is not generally considered a good lubricant of itself because of its active and corrosive qualities, it is a common additive to mineral oils in compounding cutting oils and extreme pressure lubricants. Acme manufactures automatic screw machines and also products made on automatic screw machines, lathes, and similar metal-working equipment. These machines have four to eight spindles, each spindle performing a separate cutting operation. They are so made that each moving part and bearing surface is lubricated by a suitable lubricating oil supplied through a separate system and no part of the Elaine Oil was used for that purpose. The bearing surfaces of the machines are sealed off, as far as possible, from any contact with the cutting oil, since the cutting oil corrodes the bearing surfaces, and carries metal particles gathered from the cutting operation, into the bearings. Cutting oil also forms a gummy precipitate when used in bearings.
10. In its most general sense a lubricant is any material that tends to reduce the friction of moving parts. A dictionary definition of a lubricant is a substance possessing such properties that it will, when interposed between moving parts of machinery, make the surfaces slippery and reduce friction, eliminate asperities and prevent cohesion between the lubricated surfaces. A cutting lubricant is defined as a lubricant or cutting compound, as lard oil or soap water, that serves both as coolant and lubricant for metal-cutting tools.
From these general definitions of lubricants have been derived various terms which are descriptive of different types of lubricants and different types of lubrication. The commonly understood process of lubrication is what takes place when a film of oil is interposed between adjacent and relatively moving parts with the result that there is actual prevention of contact between the opposing surfaces, thus eliminating or reducing frictional resistance. In its simplest form it is illustrated by the ordinary journal and bearing where after the oil is inserted in the first instance, the rotation of the journal within the bearing draws the film in until there is complete separation of the metallic surfaces by the film of oil. This type of lubrication is almost, if not entirely, mechanical or physical, rather than chemical, in its nature. It is referred to by various terms, including fluid, wedge, and hydrodynamic film lubrication.
Another type of lubrication commonly recognized by experts in that field, but little understood by laymen, is boundary or border lubrication where there is more or less complete contact between the moving parts but molecular films exist on the surfaces of each moving part or are created there by chemical action. Closely related to and considered by some as of the same type is what is called thin film lubrication. The latter represents the extreme upper limits of fluid film lubrication on the one hand and the lower limits of boundary lubrication on the other. Its action is largely of a chemical nature similar to that arising in boundary lubrication.
Another type of lubrication generally recognized in the lubricating field and by mechanical engineers is extreme pressure lubrication which is characterized by a chemical reaction between the lubricant and the bearing surface to form films of lower shear strength than the bearing surfaces and thus prevent seizure and reduce friction. A common use of a lubricant of this character is in the hypoid differential gears of automobiles where pressures of 300,000 to 400,000 pounds per square inch may prevail. Except at very low pressures, its action is largely chemical as opposed to the physical action which takes place in fluid film lubrication. In many respects its action is similar to that of thin film and boundary lubrication. The principal additives which are combined with fatty and mineral oils to produce extreme pressure lubricants are chlorine and sulphur which are likewise common additives to these oils in compounding cutting oils.
11. Metal cutting consists of the removal of a chip or shaving from a piece of metal, usually referred to as the "work" or "work piece." At times this removal is done by hand but ordinarily it is done by machine tools, such as automatic screw machines, lathes, and tools of related functions. Similar results are accomplished by grinding operations. When metal cutting is done on a lathe, a single-point tool is involved. In grinding operations an abrasive tool or implement is used as the cutter.
Most metal-cutting operations are carried out with the use of metal-cutting fluids, though during the past five years considerable progress has been made in dry cutting, largely by the use of tantalum carbide tools which are operated at very high speeds. These findings, however, deal with the situation presented when cutting fluids are used and, unless otherwise indicated, the references are to the cutting of ductile metals with single-point machine tools.
12. Cutting fluids as used in commercial operations ordinarily consist of varying combinations of the following substances: fatty oil, mineral oil, soluble oil, soap, soda, sulphur, chlorine, aliphatic compounds, phosphoric esters and water.
13. Until recent years little was known of what takes place in a metal-cutting operation in the area where the chip is separated from the work piece. One earlier idea was that the chip of metal splits off ahead of the tool in a manner similar to what occurs when a block of wood is split, and on that basis the theory was advanced that there was a crack or opening ahead of the point of the tool into which the cutting oil penetrated and thereby lubricated the tool and the work. At the present time some oil companies advertise their product on the basis that their cutting fluids act in that manner.
However, the view now coming to be accepted by men engaged in scientific research on the subject is that at least in the case of ductile metals the separation of the chip from the workpiece takes place in a shearing, rather than a splitting, operation wherein there is a plastic deformation of the crystals in the workpiece under extreme pressure and a sliding of the crystals along their fracture planes over what is known as the "built-up edge" of the tool. This action is described as similar to what occurs when a snow plow operates. The "built-up edge" consists of metal from the work piece which adheres to the tool a short distance back of the point of the tool shortly after the cutting operation begins and continues, either in its original form or as replaced, until the cutting is completed. At most times and during most operations the built-up edge rather than the point of the tool is in contact with the work piece and accomplishes the separation of the chip from the work piece. At the high speeds at which commercial cutting is done, there is no crack or space, other than of molecular dimensions, in the metal ahead of the point of the tool or in the immediate area where the separation of the chip from the work piece is accomplished. These molecular dimensions are in terms of millionths of an inch.
14. The pressure between the tool and the work piece is high, ordinarily ranging from 100,000 to 300,000 pounds per square inch and the temperatures generated are likewise high, 800° to 1200° Fahrenheit. Fluid or hydrodynamic oil films will not withstand such pressures and temperatures except possibly momentarily. A pressure of 1,000 pounds per square inch is considered an extremely heavy load for a film of oil and the temperature destruction point of an oil film is less than the minimum temperature limits involved in the ordinary metal-cutting operation.
15. Regardless of the pressures and temperatures involved and other factors, cutting oils are extensively used in metal cutting and when used aid in accomplishing the desired results, including satisfactory machine output, desired finished surface of the material being worked on, and tool life. In approved commercial practice, the entire area where the cutting is to take place is flooded with the cutting oil prior to the time the cutting begins and it continues to be so flooded throughout the cutting operation. This flooding is ordinarily achieved by having jets of oil directed at the area where the tool cuts the work piece, in a continuous stream of from ten to eighty gallons per minute.
The functions served by the cutting oils when used in that manner are: (1) to cool the work piece and thereby prevent it from being machined in a distorted shape, and to cool the tool and thereby increase its useful life; (2) to serve as an anti-weld or anti-seizure substance whereby friction is reduced between the work piece and the tool and the chip and the tool; (3) to wash away the chips or cuttings; and (4) to perform the foregoing functions without causing rust and corrosion such as would occur if water, the best cooling liquid known, were used instead of a cutting oil.
16. The second function of cutting oils set out above, namely, that of serving as an anti-weld or anti-seizure substance or medium, is recognized as one of the important primary functions of cutting oils as used in commercial cutting. It is scientifically explained in general terms as follows: Metal surfaces are normally covered with films of molecular thickness which are sometimes referred to as absorbed films. Both the surface of the tool and the surface of the work piece are so covered with a film when the cutting operation begins. Freshly ruptured metal is in a nascent, that is, chemically clean, state, and that nascent surface is in an extremely active condition. As the cutting operation advances the surface of the tool encounters that nascent surface of the work piece which, because of its active condition, progressively robs the surface of the tool of its absorbed film, thus tending to produce another nascent surface. When two such chemically clean surfaces come in contact adhesion develops, that is, the normal reaction is for the two surfaces to weld or seize and thus build up frictional resistance. The cutting fluid is used to prevent such seizure or welding. The application of a cutting fluid sets up, under the pressures and temperatures which develop, a chemical reaction which results in the constant or intermittent replacing of the absorbed film by the formation of new compounds, such as oxides or chlorides, having shear strength less than the metal which is being cut. This tends to prevent welding or seizure. This reaction takes place between the chip material and the tool in the region of the point of the tool where high pressures and temperatures prevail. These pressures and temperatures greatly facilitate the desired reactions of the additives which are, as stated in finding 12, a part of the cutting fluid. Whatever physical or mechanical action, that is, fluid film lubrication, takes place, if any, is of a minor or incidental character, occurring only at the beginning of the operation, or at points some distance from the point of the tool.
The actions described above are primarily due to the presence in cutting oils of additives, such as sulphur or chlorine. The base oil in the cutting oil acts as a carrier for the additives and the base oils and the additives are separated only when the chemical action takes place. The chemical actions are similar to those which occur in extreme pressure lubrication where similar additives are used. Ordinary mineral lubricating oils such as are used in fluid film lubrication described in finding 10 are generally not satisfactory cutting oils for high-speed commercial cutting, and cutting oils are generally not satisfactory for the uses performed by the oils which are ordinarily used for lubricating the moving parts of the machinery.
17. Many large manufacturers of cutting oils advertise their cutting-oil products as lubricants and for their lubricating qualities. In some instances such manufacturers have little scientific knowledge of the action of the cutting oils in a metal-cutting operation or of the mechanics involved in the operation. In some instances, they explain and illustrate in their advertising the action which takes place in a manner that connotes film lubrication. In other instances alleged lubricating actions are explained by analogy to extreme pressure lubricants and with reference to the chemical actions which take place.
18. Large quantities of cutting oils are sold, the manager of one of the large oil manufacturers estimating that 100,000,000 to 150,000,000 gallons are sold annually in this country.
19. The substances, the taxes on which are here in question, were oils. As used, one of their principal purposes was to prevent friction or adhesion between the surfaces of metal cutting tools on the one hand and the pieces of metal which are being cut by those tools, and the chips or shavings which are cut from those pieces, on the other. This prevention was lubrication and the oils used to accomplish it were lubricating oils.
Plaintiff sues to recover the federal excise tax of four cents a gallon which it paid on two types of cutting oil sold by it, through the Clark Company, a subsidiary, to purchasers who intended to use, and did use, the oils in metal cutting operations. The Commissioner of Internal Revenue classified the cutting oils as "lubricating oil," within the meaning of the Revenue Act of 1932, c. 209, Sec. 601, and taxed them as such. He also denied a timely claim for refund filed by plaintiff.
47 Stat. 169, 26 U.S.C.A. Int.Rev. Acts, page 603.
Plaintiff contends that cutting oils, manufactured or compounded for use in the cutting of metals, are not lubricating oils and are therefore not subject to a tax which applies only to lubricating oils.
The substances in question were oils. One of the two types taxed to plaintiff, called "Clark's X Cutting Oil", was compounded from mineral oil, animal fat, sulphur and chlorine. The other kind, sold as "Elaine Oil", was a commercial form of oleic acid, a fatty acid derived from lard oil. The purchaser of it mixed it with a base mineral oil, to which had been added chlorine and sulphur. They were always designated as oils, and no contention seems to have been made, either before the Commissioner of Internal Revenue or here, that they were not. Our question therefore is not whether they were oils, but whether they were lubricating oils.
The applicable Revenue Act simply taxed "lubricating oils" without further defining them. The Treasury Regulations likewise gave no definition of the word lubricating.
Treasury Regulations 44 (Revised September, 1934).
In S.T. 505, XI-2 Cumulative Bulletin (1932) at page 448 appears the following:
"Regulations 44, Article 11: Scope of tax. — Cutting oils and water soluble oils used for lubricating purposes held taxable. — Advice is requested whether cutting oils and water soluble oils are lubricating oils and subject to the tax under section 601(c) 1 of the Revenue Act of 1932.
"Under Treasury Decision 4339, issued July 16, 1932 (see page 446), any oil having both lubricating and nonlubricating uses is taxable when sold or used for lubrication.
"Cutting oils and water soluble oils, used in cutting and machining operations on metals are used for lubricating purposes and are therefore held to be taxable under section 601(c) 1 of the Revenue Act of 1932, when sold by the manufacturer or producer."
Plaintiff urges that the statement in the third paragraph of the quotation as to the operation of cutting oils is erroneous; that they do not, in the uses for which they were bought from plaintiff, lubricate in the sense in which Congress used that word. Plaintiff urges that the meaning of the word lubricating as applied to oils, both in the statute here applicable and in common speech, relates to the process of inserting a film of oil between two moving parts such as a crankshaft and the bearings in which it turns, or a piston and the wall of the cylinder in which it moves.
As shown in finding 10, if the pressure of the moving parts upon each other is great the film is squeezed very thin, and the pressure and accompanying heat may produce a chemical change in the oil, so that what keeps the moving metals from seizure and wear is not a film of liquid, but a molecular film of substance resulting from the chemical reaction in the oil, which substance is deposited on the metal surfaces.
The ideal lubricating fluid, then, to use in situations where this kind of pressure or heat exists or may develop is one which will serve as a film lubricant until the pressure or heat develops which makes it impossible for it to serve longer as such, but which contains substances which, under the pressure or the heat, will, as a result of the resulting chemical changes, deposit the kind of nonfluid molecular film which will best keep the moving metal parts from wearing each other. Some of these substances have been discovered to be animal fats, or oleic acid, sulphur and chlorine. Mineral oils or greases containing such additives are used to lubricate the hypoid differential gears of automobiles, where very high pressures are developed.
In the process of metal cutting several problems must be taken account of. If the process is one of grinding, or cutting on a lathe, and if the speed and duration of the process is such as to produce great heat, the cutting instrument should be cooled to prevent it from being damaged, and the "work piece" or metal which is being cut should be cooled to keep it from being distorted. This cooling is accomplished by flooding the area where the tool meets the work piece by jets or liquid pouring from ten to eighty gallons a minute. Water is the best liquid coolant, but it is not used for this purpose. The liquid poured upon the work also serves to wash away the cuttings or chips. This purpose would also be served by water. Another important purpose which the liquid must serve is to serve as an antiweld or anti-seizure agent to reduce the friction between the tool and the work piece, and between the tool and the chip or cutting, if there is a substantial body to the cutting. This last purpose would not be served by water, and oil is the substance which is actually used to facilitate metal cutting, since it satisfactorily serves all three purposes.
The freshly cut metal, being chemically clean, is in an active or nascent condition which causes it to tend to adhere to other like surfaces. The tool, likewise, is scraped clean and there would be adhesion between the two, if their condition of cleanness were not cured by the constant restoration of a film of nonnascent substance. In the beginning of the cutting operation, before the heat and the pressure become great, there may be a period, depending on the speed and nature of the operation, during which this nonnascent substance is the liquid oil itself. This would seem to be true when pipe or bolt threading or metal drilling or planing is carried on at slow speeds. There is seizure if no oil is used, and ordinary mineral oil prevents the seizure. But when the heat and pressure are great, friction and adhesion are still prevented, by the use of cutting oil, though the oil loses its fluid nature at the point of contact of the tool and the metal. The reason why it still prevents adhesion seems to be that, when it is converted by heat and pressure, the oil and its sulphur and chlorine additives produce substances which are deposited on the tool and the metal and thus prevent the surfaces from being clean and nascent, and tending to adhere.
This whole process seems to us to be a process of lubrication. Its purpose is to render the tangent surfaces slippery so that they will move upon one another instead of sticking. The fact that the industry which produced cutting oils called the process lubrication is significant. The fact that, even after persons producing or selling cutting oils became tax-conscious, plaintiff's witnesses who thought the word "lubrication" was not the proper word for the process, had no other generic term to describe it, is significant. It cannot be supposed that Congress, when it imposed a tax on lubricating oils, did not intend to tax oils which their makers advertised and sold for the purpose of lubrication. In statutes, as in ordinary speech, words mean what those who commonly used them suppose them to mean, unless a strong case is made to show that the legislature, or other user of the words, actually intended otherwise. Here there is no such showing.
Plaintiff urges that, by interpreting the tax statute as including cutting oils within its scope, we encounter a constitutional problem, because cutting oils are cheaper than ordinary lubricating oils, and therefore a tax of four cents a gallon, applied to them, is so heavy a burden as to make the tax discriminatory as to them. The only factual basis offered for this argument is that some lubricating oils, not cutting oils, retail for as much as $1.40 per gallon, while cutting oils retail at from 10 to 30 cents per gallon. But the $1.40 price is far above the average price for oils which are concededly taxable, and many such oils sell for as little, or almost as little, as some cutting oils. No serious constitutional question is presented by these facts.
Plaintiff's petition will be dismissed. It is so ordered.
JONES, Judge, took no part in the decision of this case.