ON REHEARING. (June 19, 1934.) A rehearing was granted on the following four points:
First, the meaning of this sentence of the amended complaint:
"That a considerable portion of the operation of said trailers is that they are used exclusively in interstate commerce, to-wit: the hauling of freight between Salt Lake City, Utah, and points in Idaho and return."
Second, the constitutionality of acts of the kind herein under consideration, where the use of the vehicle is exclusively interstate, or intrastate or mixed.
Third, whether under Interstate Transit Co. v. Lindsey,283 U.S. 183, 51 Sup. Ct. 380, 75 L. ed. 953, the fees required under subsection h, section 48-127, I. C. A., and section59-811., I. C. A., are unconstitutional?
Fourth, whether under Smith v. Cahoon, 283 U.S. 553,51 Sup. Ct. 582, 75 L. ed. 1264, the exemptions in subsection aa, of section 48-101, I. C. A., and subsection e, of section 59-801, I. C. A., are unconstitutional or whether the reasoning inProuty v. Coyne, 55 Fed. (2d) 289, 295, distinguishes the application of Smith v. Cahoon, supra?
As pointed out in the original opinion the portion of the amended complaint referred to is not clear, however, conceding without determining that the pleader meant to charge that certain individual trailers were used exclusively in interstate commerce, appellant contends they could not be taxed under the statute in question, and that the original opinion did not correctly interpret Interstate Transit Co. v. Lindsey, supra, which case appellant argues rejected a classification based upon carrying capacity, however, the latest interpretation of that case, by the supreme court of *Page 588 the United States in Hicklin v. Coney, 290 U.S. 169,54 Sup. Ct. 142, 78 L. ed. 247, expressly sustains and supports our analysis and holding in the original opinion as follows:
"Carrying capacity, the size and weight of trucks, unquestionably have a direct relation to the wear and hazards of the highways. It is for this reason that the authority of the State to impose directly reasonable limitations on the weight and size of vehicles, although applicable to interstate carriers, has been sustained." (Citing cases.)
The original opinion is in this particular and as to the first, and third questions, therefore adhered to.
As to the fourth question the holding in Prouty v. Coyne,supra, sustains the statute as against appellant's attack of unconstitutionality on the exemptions allowed.
The additional point concerning the tax on "gross revenues" imposed by section 59-811, I. C. A., requires further elucidation. The authorities generally though not without conflict1 are to the effect that such a tax is an interference with interstate commerce and therefore not permissible to the extent that such "gross revenues" are derived from business outside of the taxing state. (Fargo v. Stevens, 121 U.S. 230,7 Sup. Ct. 857, 30 L. ed. 888; Philadelphia S. Mail SteamshipCo. v. Com. of Pennsylvania, 122 U.S. 326, 7 Sup. Ct. 1118,30 L. ed. 1200; Prouty v. Coyne, supra; Alpha Portland Cement Co.v. Com. of Massachusetts, 268 U.S. 203, 45 Sup. Ct. 477,69 L. ed. 916, 44 A.L.R. 1219; Ratterman v. Western Union Tel.Co., 127 U.S. 411, 8 Sup. Ct. 1127, 32 L. ed. 229; Postal Tel.Cable Co. v. Adams, 155 U.S. 688, 15 Sup. Ct. 268, 360,39 L.ed. 311; Ohio Tax Cases, 232 U.S. 576, 34 Sup. Ct. 372,58 L.ed. 737.) *Page 589
While the complaint charges in general language that respondent is seeking to collect this "gross revenue" tax without distinction or reference as to the place earned, section 14 of chap. 267, 1929 Session Laws of Idaho, now section 59-815, I. C. A., provides as follows:
"Neither this chapter nor any provision thereof shall apply or be construed to apply to commerce with foreign nations or commerce among the several states of this Union, except in so far as may be permitted under the provisions of the constitution of the United States and the acts of Congress."
It therefore appears that it was the intention of the legislature not to impose the tax on any part of the "gross revenues" for the operation of auto transportation companies outside the state of Idaho and nothing appears in the record to indicate that a segregation of such "gross operating revenue" between that earned for use on the roads within and without the state is impossible, impracticable, or not feasible. While the respondent should be restrained from collecting the tax on the portion of the "gross operating revenue" earned from use of the roads without the state of Idaho, such tax may be collected on the portion earned from the use of the roads within the state. (26 Rawle C. L. 128, n. 5; 12 C. J. 113, n. 53; Cudahy Packing Co.v. Minnesota, 246 U.S. 450, 38 Sup. Ct. 373, 62 L. ed. 827;Wisconsin M. R. Co. v. Powers, 191 U.S. 379, 24 Sup. Ct. 107,48 L. ed. 229; Maine v. Grand Trunk R. Co., 142 U.S. 217,12 Sup. Ct. 121, 35 L. ed. 994; Roadway Express v. Murray, 60 Fed. (2d) 293; Schwab v. Richardson, 263 U.S. 88, 44 Sup. Ct. 60,68 L. ed. 183; Hump Hairpin Mfg. Co. v. Emmerson, 258 U.S. 291,42 Sup. Ct. 305, 66 L. ed. 622.)
The cited cases do not all agree nor base their conclusions on the same reason or ground, nor can they perhaps be reconciled, but these three incidents of taxability, in the manner here sustained, find support, that the gross revenue being collected only every three months may be considered to have become a part of the mass of property of the taxpayer, within the state, that it is a tax for the use of a *Page 590 special instrumentality, furnished by the state, or that it be a tax on the functioning of the taxpayer within the state, not as a prerequisite or right to engage within or through the state in interstate commerce but, as stated by Justice Brandeis in Underwood Typewriter Co. v. Chamberlain, 254 U.S. 113,41 Sup. Ct. 45, 65 L. ed. 165, 169:
"It is contended that the tax burdens interstate commerce, and hence is void under § 8 of article 1 of the Federal Constitution. Payment of the tax is not made a condition precedent to the right of the corporation to carry on business, including interstate business. Its enforcement is left to the ordinary means of collecting taxes. (St. Louis Southwestern R.Co. v. Arkansas, 235 U.S. 350, 364, 35 Sup. Ct. 99,59 L. ed. 265, 272; Atlantic P. Tel. Co. v. Philadelphia, 190 U.S. 160,163, 23 Sup. Ct. 817, 47 L. ed. 995, 999.) The statute is, therefore, not open to the objection that it compels the company to pay for the privilege of engaging in interstate commerce. A tax is not obnoxious to the commerce clause merely because imposed upon property used in interstate commerce, even if it takes the form of a tax for the privilege of exercising its franchise within the state. (Postal Tel. Cable Co. v.Adams, 155 U.S. 688, 695, 15 Sup. Ct. 268, 360, 39 L. ed. 311,315; 5 Inters. Com. Rep. 1.) This tax is based upon the net profits earned within the state. That a tax measured by net profits is valid, although these profits may have been derived in part, or indeed mainly from interstate commerce, is settled. (United States Glue Co. v. Oak Creek, 247 U.S. 321,38 Sup. Ct. 499, 62 L. ed. 1135, Ann. Cas. 1918E, 748; Shaffer v. Carter,252 U.S. 37, 57, 40 Sup. Ct. 221, 64 L. ed. 445, 458; compareWilliam E. Peck Co. v. Lowe, 247 U.S. 165, 38 Sup. Ct. 432,62 L. ed. 1049.) Whether it be deemed a property tax or a franchise tax, it is not obnoxious to the commerce clause."
Though the statute does not in terms provide for such segregation, it is the duty of the court to, if possible, construe the law in such a way that it may be harmonized with the Constitution. (Grice v. Clearwater Timber Co., 20 Idaho 70,117 P. 112; Continental Life Ins. Inv. Co. v. Hattabaugh, *Page 591 21 Idaho 285, 121 P. 81; State v. Morris, 28 Idaho 599,155 P. 296, L.R.A. 1916D, 573; Burt v. Farmers' Co-operativeIrr. Co., Ltd., 30 Idaho 752, 168 P. 1078; In re Edwards,45 Idaho 676, 266 P. 665; Williams v. Baldridge, 48 Idaho 618,284 P. 203.)
Thus modified the judgment is affirmed.
No costs allowed on the rehearing.
Budge, C.J., and Morgan, Holden and Wernette, JJ., concur.
Second petition for rehearing denied.
1 Philadelphia Reading R. R. Co. v. Pennsylvania, 15 Wall. (82 U.S.) 284, 21 L. ed. 164; Railway Express Agency v. Holm,180 Minn. 268, 230 N.W. 815; Galveston, H. S. A. R. Co. v.Texas, 210 U.S. 217, 28 Sup. Ct. 638, 52 L. ed. 1031; NewJersey Bell Tel. Co. . State Board of T. and A., 280 U.S. 338,50 Sup. Ct. 111, 74 L. ed. 63; Cudahy Packing Co. v.Hinkle, 278 U.S. 460, 49 Sup. Ct. 204, 3 L. ed. 454.