61 N.W. 1032 | N.D. | 1894
The complaint in this action is the same as that in the case of Railroad Co. v. Barnes, 2 N. D. 310, 51 N. W. 386,
We hold that the gross earnings law of 1883 was unconstitutional, as being repugnant to section 1925 of the Revised Statutes of the United States, regulating taxation in the Territory of Dakota. We regard this question as not open to debate in this court, for the reason that it is a federal question, and has been passed upon by the United States circuit court for this district, both the circuit judge (Judge Caldwell) and the District Judge (Judge Thomas) being agreed on the point. Railroad Co. v. Walker, 47 Fed. 681. Judge McConnell, who sits in this case, desires to have it appear that he yields his former view, as expressed in Railroad Co. v. Barnes, 2 N. D. 310, 51 N. W. 386, to the binding force of this decision of the Federal Court, while still adhering to his previous opinion. The gross earnings act being void, it follows that no exemption of plaintiff’s land grant could be claimed under it.
It is urged, however, with great earnestness, that, in view of the fact that the plaintiff has paid its gross earnings tax for the year in which the taxes in question were levied on its land grant, the territory and the counties were estopped from collecting such land taxes. But if, as was held in Railroad Co. v. Walker, 47 Fed. 681, there was no power in the legislature to exempt this land, it is difficult to see how an estoppel can be built up. If the power of the legislature is restricted, that restriction cannot be removed by the act of state officials in receiving moneys which they have no right to receive, and which the party paying it is under no obligation to pay. The plaintiff, being bound to know the law, was
It is next urged that plaintiff had no such title to that portion of its land grant against which the taxes in question were levied as would render it taxable, for the reason that it has never been determined whether such land is mineral in character. The contention thus made leads inevitably to the conclusion that no portion of plaintiff’s vast land grant is taxable until after patent has issued, as the question whether the land has passed under the grant because of its non-mineral character is never definitely settled until the land department has lost jurisdiction by the issue of patent. Barden v. Railroad Co., 14 Sup. Ct. 1030. As a result of this doctrine, millions of acres of land to which the plaintiff unquestionably has title might remain untaxable for a quarter of
There is a portion of these taxes, however, which cannot be sustained. One of the townships has never been surveyed. Unsurveyed land is expressly excepted from the provisions of the act of congress passed July 10, 1886, declaring lands granted by congress to railroad corporations taxable, despite the fact that the survey fees have not been. This act, in terms, excepts from this rule all unsurveyed lands: “But this provision shall not apply to lands unsurveyed.” As to such lands the rule laid down in Northern Pac. R. Co. v. Traill Co., 115 U. S. 600, 6 Sup. Ct. 201, still applies. This was held in State v. Central Pac. Ry. Co., (Nev.) 25 Pac. 442. In the absence of any authority, we should reach the same conclusion, on the plain meaning of the language used. The complaint alleges that these survey fees have not been paid. The land of the plaintiff in the unsurveyed township
The judgment of the District Court is therefore reversed. The plaintiff is allowed 20 days after the filing of the remittitur in which to apply to the District Court for leave to amend the complaint. Whether such amendment shall be allowed will rest in the sound discretion of that court. If no amendment is allowed, the court is directed to render judgment against the plaintiff for the amount of the taxes, penalties, and interest, according to our decision in the Farrington Case; but the taxes levied against the plaintiff’s land in the unsurveyed townships will not be included in said judgment, such taxes being void, for the reason already stated. The judgment will also set aside the tax proceedings, according to the decision in the Farrington Case.