Page:North Dakota Reports (vol. 2).pdf/401

 statute the defendant presents four answers: First, that the statute does not in fact exempt the land grant; second, that, if it be susceptible of the construction that it does in terms make such exemption, it is repugnant to the fourteenth amendment to the federal constitution, in that it denies to some citizens the equal protection of the laws of the territory by imposing upon them an increased burden of taxation arising from the exemption of this land grant from taxation; third, that it is within the inhibition of § 1925 of the United States Revised Statutes, prohibiting the territory from making any discrimination in taxing different kinds of property, and ordaining that all property subject to taxation shall be taxed in proportion to its value; fourth, that so much of the gross earnings law as relates to local earnings on interstate traffic is void, because repugnant to the exclusive grant to congress in the federal constitution of the power to regulate commerce among the several states, in that it taxes a portion of the earnings of such interstate commerce, and that the exemption, resting upon the validity of the entire tax as the consideration for such exemption, falls with the void portion of the tax, and therefore the act in its entire scope, including the exemption feature, isa nullity. The first three of these propositions will not be discussed in this opinion. The conclusion which I have reached as to the fourth answer of the defendant renders an opinion on the other questions unnecessary. The second and third will be sustained, because the federal circuit court has settled them in favor of defendant; and, being federal questions, I deem it our duty to follow that court on such questions.

Is, then, the act of 1883 unconstitutional in part? And, if so, is that part so important—is it of such magnitude—that it cannot be asserted that the legislature would have bargained away the right to tax plaintiff's property in consideration of the portion of the gross earnings tax, which would be constitutional if standing by itself? It seems to be clear, and, indeed, it is undisputed, that, if the act relates solely to gross earnings arising from purely local transportation, it would be constitutional. It would not in any sense interfere with interstate commerce. The plaintiff insists that this is the true construction