NORTHERN PACIFIC RAILROAD CO. v. BARNES. 351
by passing the gross earnings law of 1883; and, as congress had never annulled or repealed the law, it had the same effect as a similar act of congress itself. It must be considered as, and is, an act of congress, and must be given the same force and effect as though duly enacted by that body. Railroad Co. v. Lesueur Co. (Ariz.), 19 Pac. Rep. 157.
The only other constitutional question raised at the argument is whether the law is void because, being concededly invalid in so far as it attempted to tax the earnings derived from interstate traffic, the remaining portions, being inseparably connected with the void parts, must fall with them. The argument of respondent is that the gross earnings law of 1883 is void so far as interstate earnings of railroad companies are concerned; that the legislature would not have passed the law if it had known that interstate earnings could not be taxed; that, by the terms of the act, earnings upon local traffic cannot be separated from interstate earnings for purposes of taxation; that all the earnings of railroads must be taxed or none at all; and hence that, as the tax on interstate earnings cannot be sustained, the entire act falls to the ground. The earnings of railroads, derived from interstate traffic or business, cannot be taxed by the states. Fargo v. Michigan, 121 U. S. 230, 7 Sup. Ct. Rep. 857; Steamship Co. v. Pennsylvania, 122 U. S. 326, 7 Sup. Ct. Rep. 1118. The act of 1883 was expressly declared by the supreme court of Dakota territory to be unconstitutional, in so far as it related to interstate commerce, in the case of Railroad Co. vy. Raymond, 5 Dak. 356 40 N. W. Rep. 538. That case, however, did not touch upon or decide the question now under consideration. It is our duty to construe the act so as to make it constitutional, unless it clearly appears that it cannot be sustained by any reasonable intendment or allowable presumption. People y. Supervisors, 17 N. Y. 241. It is to be presumed that the legislature did not intend to exceed its jurisdiction, and tax earnings of appellant derived from interstate commerce, and this presumption must prevail, unless it is clearly rebutted by the language of the act itself. If that language is susceptible of two constructions, one of which will invalidate the statute, and the other of which will sustain
