Page:North Dakota Reports (vol. 2).pdf/403

 fair meaning of the words used, brings the statute into harmony with the provisions of the constitution.” See, also, U. S. v. Reese, 92 U. S. 214. The legislature declared in express terms that the gross earnings to be taxed were all gross earnings of the corporation owning or operating such railroad “arising from the operation of such railroad as shall be situated within the territory.” The language is too clear to justify any doubt as to its meaning. The question is whether the gross’ earnings arose from the operation of the railroad situated within the territory. If so, they are taxed, and “all” such earnings are taxed. On a shipment from Bismarck to St. Paul that portion of the earnings for the transportation from Bismarck to Fargo is as much the result of the operation of the railroad situated within, the territory as if the freight had been carried no further than Fargo. The statute includes in express terms all local earnings, whether arising from purely local or from interstate transportation. To give it the meaning contended for by plaintiff, we must interpolate into it a limitation of its broad import by construction. We must say that it relates only to local traffic, when it in terms embraces all traffic, interstate as well as local. While we are loath to declare a law unconstitutional, we are still more loath to set up by a species of judicial legislation a mangled statute in the place of a complete act, simply because the manifest intent of the legislature cannot stand before the supreme law of the land.

In the prevailing opinion, after some preliminary discussions, the conclusion is reached that the gross earnings subject to taxation under the law are “all the gross earnings arising from the operation within this territory of such railroad.” I am content to accept this construction for the purpose of the argument, but I um at a loss to understand by what process of reasoning the conclusion is reached on this view of the statute that only local earnings on local traffic are taxed. To demonstrate the unsoundness of this conclusion, let us assume that each of the four states of Washington, Montana, North Dakota, and Minnesota should enact a law taxing all the gross earnings arising from the operation within these states, respectively, of the Northern Pacific Railroad Company. On a shipment from