1. The B. O. case involved construction of the statutory tax contract of 1878, the instant case the tax statute of 1874; the one an irrepealable contract, the other a statute which could be repealed or amended by the Legislature at any time. But the question of construction is similar in the two cases. Much that was said in the B. O. case is applicable in the instant case. In effect, both the Act of 1878 and the Act of 1874 are now construed to "produce the most beneficial results," i.e., the most taxes.
2. In the B. O. case this court stressed the absence in the Act of 1878 of the express provision for mileage apportionment in the Act of 1874. In the instant case this provision is held to have been amended by the Act of 1890. Without repeating at length what has been well said by Judge Niles, I agree with him that the amendment of 1890 is not applicable to railroads. This construction was adopted by the State Tax Commissioner in his form for annual reports at least as early as 1899. The semicolonper se is not controlling or perhaps significant. It does, however, illustrate the fact that Mr. John P. Poe in 1900 and 1904 and the commission that revised the tax laws in 1929, by separating provisions of the Act of 1874 applicable to railroads from provisions of the Act of 1890 applicable to other corporations, *Page 261 emphasized the construction already adopted by the State Tax Commissioner, which Judge Niles aptly says is the clear meaning of the statute without the semicolon. The 1939 Tax Revision Commission, as Judge Niles points out, recommended that the law be repealed and "the revenue raised by a tax which can be applied equally." After failure to obtain legislative amendment of the "method of allocating" (Acts of 1945, p. 1985, Senate Bill 413, veto memorandum) judicial amendment is effected in the instant case.
3. "Gross receipts within this state" (1) (a) include receipts from wholly intrastate business and (b) exclude receipts from wholly extra-state business and (2) include apportionment of receipts from interstate business. Items 1 (a) and (b) are facts, which by sufficient bookkeeping could be ascertained exactly; item (2) is not a fact but an abstraction, which can only be computed by some more or less arbitrary formula that sufficiently approximates reality to avoid substantially burdening interstate commerce or taxing property outside the State. Whether under the Act of 1874 the tax officials could require separate determination of item (1) (a) is a question not presented in the instant case. If this were done, the mileage apportionment would still be necessary and applicable to item (2).
4. For many years the Supreme Court held that a state cannot tax gross receipts from interstate commerce as such (Philadelphia Southern Steamship Co. v. Commonwealth ofPennsylvania, 122 U.S. 326, 7 S.Ct. 1118, 30 L.Ed. 1200) but may tax gross receipts, apportioned on a mileage basis, in lieu of property taxes, if the tax amounts to no more than a just equivalent for ordinary property taxes, and the apportionment does not in fact amount to a tax on interstate commerce or on property outside the state. Galveston, Harrisburg, etc., R. Co.v. State of Texas, 210 U.S. 217, 224-227, 28 S.Ct. 638, 52 L.Ed. 1031. In Wallace v. Hines, 253 U.S. 66, 40 S.Ct. 435, 64 L.Ed. 782, a North Dakota property tax, apportioned on a mileage basis, was held unconstitutional, *Page 262 not because such apportionment is not ordinarily fair, but because the grossly disproportionate value of farm land in North Dakota and terminals in distant States made the apportionment palpably unfair and had the effect of taxing property in other States.
If and when the Maryland gross receipts tax, apportioned on the mileage basis, actually became grossly disproportionate to the Maryland business and the value of Maryland property of a particular railroad, then either the tax statute in its entirety became unconstitutional, or else it was to be construed as impliedly subject to exceptions to the extent of avoiding conflict with the Constitution. Construing a statute and the Constitution together, so as to avoid conflict, is a familiar method of construction. This method seems to have been followed by the State Tax Commissioner and the State Tax Commission in exceptional cases. In the case of the Maryland and Pennsylvania Railroad, the essential feature of the apportionments was that the taxpayer was permitted to ascertain item (1) (a) exactly — hardly a departure from the statute itself. In the Norfolk Western and the Pennsylvania Railroad cases the question was what was the line to be apportioned, e.g., the Shenandoah Valley Railroad from Hagerstown to Roanoke, taken over by the Norfolk Western, or the total line of the Norfolk Western, geographically and economically remote from the Shenandoah Valley line. This case was compromised. I see nothing in these exceptional cases, evidently disposed of on constitutional grounds, which impairs the correctness of Judge Niles' conclusion that his construction of the statute is supported by unbroken administrative practice for almost seventy years — more than fifty years since the amendment of 1890.
5. On the question whether, on the facts and under the Constitution, the Maryland and Pennsylvania Railroad is entitled to exceptional treatment, I express no opinion. *Page 263