as calling for the forfeiture of the privilege of doing interstate business in the event of non-payment of the franchise tax; nor is the State here insisting upon such a construction. The present is an ordinary action to collect the tax as a debt, and not to forfeit the franchise for its nonpayment. Non constat but that the state court will hold, when confronted with the question, that the franchise to be forfeited pursuant to § 20 is confined to intra-state commerce. Such a construction is clearly foreshadowed by what the court has in this case held with respect to the general purpose of the act. And in exercising the jurisdiction conferred by § 237, Jud. Code, it is proper for this court to wait until the state court has adopted a construction of the statute under attack, rather than to assume in advance that such a construction will be adopted as to render the law repugnant to the Federal Constitution. Bachtel v. Wilson, 204 U. S. 36, 40; Adams v. Russell, 229 U. S. 353, 360; Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531, 546. And see Ohio Tax Cases, 232 U. S. 576, 591. At present, therefore, we have merely to consider whether § 20 so clearly requires a forfeiture of the interstate franchise for non-payment of the tax in question that it is not reasonable to anticipate that the state court will put another construction upon it. And in doing this we ought not to indulge the presumption either that the legislature intended to exceed the limits imposed upon state action by the Federal Constitution, or that the courts of the State will so interpret the legislation as to lead to that result. No canon of construction is better established or more universally observed than this, that if a statute will bear two constructions, one within and the other beyond the constitutional power of the law-making body, the courts should adopt that which is consistent with the Constitution, because it is to be presumed that the legislature intended to act within the scope of its authority. United States v. Coombs, 12 Pet. 72, 76; Grenada County SuperVOL. CCXXxv-24

Opinion of the Court.

235 U.S.

visors v. Brogden, 112 U. S. 261, 269; The Japanese Immigrant Case, 189 U. S. 86, 101. It hardly needs to be said that the Supreme Court of Arkansas recognizes and applies this fundamental rule of construction. State v. Lancashire Ins. Co., 66 Arkansas, 466, 477; Waterman v. Hawkins, 75 Arkansas, 120, 126; State v. Moore, 76 Arkansas, 197, 201.

It does not seem to us that § 20, when taken in connection with the context, requires to be so construed as to interfere with interstate commerce. The taxing provisions of the act apply to all corporations doing business in the State for profit, whether organized under its laws, or under the laws of other States, or of foreign countries, and entirely irrespective of the question whether they are engaged in commerce. Therefore it was natural that, in such a provision as is contained in § 20, language having upon its face a general scope should be adopted; but it need not be indiscriminately applied to all the several kinds of corporations that are subject to the act. The forfeiture in terms is of "the right of such corporation to do business in this State." This does not necessarily include the right to transact business that is done partly within and partly without the State. The section does not call for an annulment of the charter. That topic is covered by § 15 of the same act, which applies, however, only to corporations organized under the laws of Arkansas or of foreign countries, and not to corporations of other States, to which class plaintiff in error belongs.

In view of all these considerations, we ought to assume, until the State, through its judicial or administrative officers, places a different construction upon the act, that § 20 will be limited in its operation to forfeiting for nonpayment of the franchise tax only the privilege of doing intrastate business; or else that the section, being void for unconstitutionality, will be treated as severable from the other provisions of the act. Under either view it is ob

235 U. S.

Statement of the Case.

vious, from what has been already said, that the tax does not amount to a regulation of or a burden upon interstate

commerce.

Judgment affirmed.

MR. JUSTICE MCREYNOLDS took no part in the consideration or decision of this case.

BERWIND-WHITE COAL MINING COMPANY v. CHICAGO AND ERIE RAILROAD COMPANY.

ERROR TO THE APPELLATE COURT, FIRST DISTRICT, STATE OF ILLINOIS.

No. 92. Argued December 3, 1914.-Decided December 14, 1914.

Filing with the Interstate Commerce Commission the book of rules as to demurrage of the Car Service Association, of which the railroad is a member, with a statement as to what its rates will be, held, in this case, to be a compliance with the provisions of the Act to Regulate Commerce requiring filing of tariff sheets, no objection having been taken as to form, and it appearing that the documents were adequate to give notice and that there was proof of posting. Although cars billed for reconsignment may not have actually reached the point named as destination, demurrage may attach for the time held after reaching the point convenient to the belt line for transfer where, under usual practice for many years, cars so billed were held for reconsignment.

171 Ill. App. 302, affirmed.

THE facts, which involve questions of filing tariff sheets under the Act to Regulate Commerce and the right of the railroad company to collect demurrage, are stated in the opinion.

Argument for Plaintiff in Error.

235 U. S.

Mr. Henry T. Martin, with whom Mr. Edward D. Pomeroy was on the brief, for plaintiff in error:

The booklet of the Chicago Car Service Association and the letters and circular which were mailed to the Interstate Commerce Commission do not constitute a tariff. England & Co. v. Balt. & Ohio R. R., 13 I. C. C. 614; Porter v. St. L. & S. F. R. R., 15 I. C. C. 4.

The alleged tariffs in question were never established. Tex. & Pac. Ry. v. Cisco Oil Mills, 204 U. S. 449; Ill. Cent. R. R. v. Henderson Elevator Co., 226 U. S. 441.

The filing of papers with the Interstate Commerce Commission raises no presumption of approval. Suffern Hunt & Co. v. I. D. & W., 7 I. C. C. 279; San Bernardino v. A., T. & S. F. R. R., 3 I. C. C. 138-143, and cases supra.

Demurrage is governed by the Interstate Commerce Act. Michie v. N. Y., N. H. & H. R. Ry., 151 Fed. Rep. 694; United States v. Standard Oil Co., 148 Fed. Rep. 722; St. Louis & Iron Mt. Ry. v. Edwards, 227 U. S. 265; C., R. I. & P. Ry. v. Hardwick, 226 U. S. 426.

There can be no charge for demurrage upon interstate shipments without a specific tariff authority therefor.

The published rate should govern and the value of a service cannot be fixed by agreement. Chicago & Alton v. Kirby, 225 U. S. 155; N. H. R. Co. v. Int. Comm. Com., 200 U. S. 361, 391; Armour Packing Co. v. United States, 209 U. S. 56, 80-81; Tex. & Pac. Ry. v. Abilene Oil Co., 204 U. S. 439; Tex. & Pac. Ry. v. Mugg, 202 U. S. 242; United States v. D. & R. G. R. R., 18 I. C. C. 7, 10; Monroe & Sons v. M. C. R. R., 17 I. C. C. 27-29; Crescent Coal Co. v. Balt. & Ohio R. R., 20 I. C. C. 569.

In the absence of a published demurrage rate, it is presumed that the through rate embraces terminal charges. Int. Comm. Com. v. C., B. & Q. R. R., 186 U. S. 320, 328.

The purpose of the Interstate Commerce Act is to fix the rate absolutely and take it out of the realm of contract. The rates on file, being binding upon shipper and carrier

235 U.S.

Argument for Plaintiff in Error.

alike, Penna. R. Co. v. International Coal Co., 230 U. S. 184, the statute required the carrier to abide absolutely by the tariff. Cases supra and Louis. & Nash. R. R. v. Mottley, 219 U. S. 467.

The tariffs are binding upon shipper and carrier alike. Penna. R. R. v. International Coal Co., 230 U. S. 184.

The Interstate Commerce Act supersedes the common law with reference to interstate shipments. St. L. & Iron Mt. Ry. v. Edwards, 227 U. S. 265; Chi., R. I. & P. Ry. v. Hardwick, 226 U. S. 426.

Demurrage cannot properly be assessed until the shipment has reached its destination. United States v. Denver & R. G. R. R., 18 I. C. C. 9; Staten Island Ry. v. Marshall, 136 N. Y. App. Div. 571; Crescent Coal Co. v. Balt. & Ohio R. R., 20 I. C. C. 569..

The appellate court of Illinois is the highest court in which a decision could be had. Norfolk Turnpike Co. v. Virginia, 225 U. S. 264; West. Un. Tel. Co. v. Crovo, 220 U. S. 364.

The denial of a right under the Interstate Commerce Act gives this court jurisdiction. Atchison, T. &c. Ry. v. Robinson, 233 U. S. 173; Chicago & Alton v. Kirby, 225 U. S. 155.

The denial of a right under other Federal statutes is sufficient to give this court jurisdiction. Seaboard Airline v. Duvall, 225 U. S. 477; St. L., I. M. & S. Ry. v. McWhirter, 229 U. S. 265; St. L., I. M. & S. Ry. v. Taylor, 210 U. S. 281; Eau Claire Bank v. Jackman, 204 U. S. 522; Nutt v. Knut, 200 U. S. 12; Charleston &c. Ry. v. Thompson, 234 U.S. 576.

The alleged tariffs introduced in evidence were not tariffs at all and without which there was no evidence whatever to support a verdict and judgment. Creswill v. Grand Lodge, 225 U. S. 246; Kansas City Southern v. Albers, 223 U. S. 573; Gas Light Co. v. Cedar Rapids, 223 U. S. 655; Oregon R. & N. Co. v. Fairchild, 225 U. S. 111.