Page:North Dakota Reports (vol. 2).pdf/407

 1883 was passed in this territory. The court said: “But it is said, as the business of plaintiff consisted in receiving packages to be transported from St. Joseph to other points outside of the state, to which plaintiffs line did not extend, the tax upon the gross receipts of the plaintiff was violative of that provision of the constitution of the United States confiding to congress alone the power to regulate commerce with foreign nations and among the several states. In the case of Railroad Co. v. Pennsylvania, 15 Wall. 284, it was expressly held that a statute of a state imposing a tax upon the gross receipts of railroad companies is not repugnant to the constitution, though the gross receipts are made up in part from freights received for transportation from that state to another state; that such a tax is neither a regulation of interstate commerce nor a tax on imports nor upon interstate transportation.” At the time the act of 1883 was passed there was no adjudication that a tax on gross earnings arising from interstate commerce was a regulation of commerce. There was apparently, and, in the opinion of this and other courts, actually, a decision to the contrary in the federal supreme court and in Ohio and Missouri, and it was the accepted doctrine that such legislation was valid. We agree with counsel for the plaintiff that the legislature must, if possible, be deemed to have intended to enact such a law as would be constitutional. But such a statute as we construe this to be would have been constitutional had not decisions—one of them in the federal supreme court—in force when it was enacted, been subsequently overruled. Not feeling justified in attributing to that body superhuman prescience, I must hold that they believed they had the power to tax the local gross earnings of interstate commerce, and therefore meant to tax them, having so declared in unmistakable terms. The territorial supreme court, in Railroad Co. v. Raymond, 5 Dak. 356, 40 N. W. Rep. 538, practically held that the act of 1883 related to local earnings on interstate as well as on local transportation. It is plain that the court in that case did not deem it possible to put such a construction on the statute as would limit its provisions to a tax on local traffic. This view of the meaning of the law would have obviated the necessity of