3 Dakota 1 | Supreme Court Of The Territory Of Dakota | 1882
—This suit was brought to enjoin the enforcement of taxes against certain lands owned by the plaintiff, and which are part of the land grant made by the United States to the Territory of Minnesota to the Transit Railroad Company, to whose rights the plaintiff claims to have succeeded. The plaintiff claims that these lands are exempt from taxation until it sells or contracts to sell them. This the defendants deny.
The facts on which the decision of this question depends are fully stated in the findings of the Court below, the ease having been tried by the Court without a jury. The correctness of these findings of facts is not questioned by either ' party. Indeed, the attorneys for all the parties have expressly agreed to their correctness. The question is, therefore, one of law, pirre and simple.
The material facts found and admitted may be thus briefly stated : The Transit Railroad Company, a corporation created by the laws of the Territory of Minnesota, was authorized to construct and operate a line of railroad from Winona, in said Territory, westerly by way of St. Peter to a point on the Rig Sioux River south of the 45th parallel of W. latitude — -all of which' line was within the Territory of Minnesota.
Ry an Act of Congress approved March 3d, 1857, the United' States granted to the Territory 'of Minnesota for the purpose of aiding in building said line of road every alternate section of land,
By an Act of its Legislature approved May 22d, 1857, the Territory of Minnesota granted to the said Transit Eailroad Company, subject to the conditions in the act expressed, all the interest and estate present and prospective, of the Territory or future State in and to any and all of said lands ; and by the said Act, it was, for the consideration and on the conditions thereir expressed, provided and enacted, that the lands thereby granted f are, and should be exempt from taxation until conveyed by the1 said Company. The Transit Eailroad Company relying upon the grant to it, accepted the Act and entered upon the building of the line of road. The Transit Eailroad Company was one of the “land grant railroads” of the State of Minnesota, and as such received from the State a loan of five hundred thousand dollars, to secure, which it issued to the State of Minnesota its first mortgage bonds to the amount of the debt, and granted, bargained, sold, transferred and assigned to certain trustees to be by them held in trust, the entire railroad built or to be built, and “ all right, property, “privileges,-franchises and immunities of said Transit Eailroad “ Company of every nature and kind whatever which were then “ owned by the said Company, or which should thereafter be “ acquired or owned by it, and all right, title, interest or claim “ either legal or equitable, which the said Company had or which “ it should afterwards acquire in or to any lands under the afore- “ said Act of Congress or under any of the Acts of the Territory “ of Minnesota above referred to ; and authorized the said trus- “ tees, in case the said Transit Eailroad Company should fail to “ pay the- principal or interest as the same became payable, to “ enter upon and take possession of all and singular the rights “ and interests, property, privileges, franchises and immunities “ granted in trust as aforesaid, and to sell and dispose of the same “ for the payment Of t-hb dbid prineij/ál and infererit, a’s in s’aid.
The Transit Company having made default, and the trustees having neglected and refused to foreclose, the Governor of the State of Minnesota, on the 23d day of June, A. D. 1860, after having given due and legal notice, caused to be sold, at public auction, and did bid in and purchase, for, and in the name of the State, “ all the property, rights, privileges, franchises a/nd immunities pledged in sand deed of trust/” and did, on the 16th day of October, 1860, transfer and convey the same to the State of Minnesota ; * * and the State thereupon claimed and intended and assumed to hold the same without merger or extinguishment. And, on the 10th day of March, A. D. 1862, the State by an Act of its Legislature granted, transferred and conveyed to William Lamb and others, as a Board of directors of the Winona & St. Peter Railroad Company, “ all the property, interest, corporate rights, privileges and franchises of, or which before had belonged to, the said Transit Railroad Company. ”
“ The plaintiff has and prior to the assessment of the taxes referred to had, surveyed, located, constructed and completed, and did, within the times and in the manner specified and required by the laws of the Territory and State of Minnesota and the United States aforesaid, survey, locate, construct and complete a line of railroad from Winona westerly on the most feasible route by way of St. Peter, to the Big Sioux River south of the 45th parallel of north latitude, and has, in all respects complied with the several acts of Congress and of the State and Territory of Minnesota in
The Governor of the State in pursuance of the laws of the Territory and State, has conveyed the land in question, to the plaintiff (which are part of the lands granted as aforesaid), and the plaintiff has not sold or contracted to sell them.
The defendants, claiming the right under a law of the Territory of Dakota, have attempted to tax and are about to sell for delinquent taxes these lands.
Prom these facts two questions arise: 1. Was it within the power of the Legislature of the Territory of Minnesota to exempt these lands from taxation, until they should be sold and conveyed by the Railroad Company, and, if it had such power, did it exercise it?
2. If it had that power and did exercise it, did the plaintiff succeed to this privilege or immunity of exemption from taxation?
I think that both of these questions must be answered in the affirmative, for reasons which I shall briefly state :.
As to the power of the Territory of Minnesota to grant such privileges and to bind itself and its successors by its contract to that effect, the question is not new. The following cases are directly in point in favor of the existence of such power : St. Paul & Pacific Railroad Co. v. Parcher, 14 Minn., 297; State v. W. & St. P. R. Co., 21 Minn., 315; State v. Trustees, &c., 21 Minn., 344.
These are adjudications under the very acts of the Legislature of the Territory and State of Minnesota here to be considered. On principle it is difficult to see how any other conclusion could be arrived at. The United States had the sole power of legislating over or for the Territory of Minnesota, and it could and did delegate that power to the Territorial Legislature.
“ Seo. 4. That the Legislative power and authority of said “ Territory shall be vested in the Governor and a Legislative “ Assembly. * * *
“Sec. 6. And be it further enacted: That the Legislative “ power of the Territory shall extend to all rightful subjects of “ Legislation, consistent with the Constitution of the United “ States and the provisions of this act ; but no law shall be passed “ interfering with the primary disposal of the soil ; no tax shall “ be imposed upon the property of the United States ; nor shall “ the lands or other property, of non-residents be taxed higher than “ the lands or other property of residents. All the laws passed by “ the Legislative Assembly and Governor shall be submitted to “ the Congress of the United States, and if disapproved shall be “ null and of no effect : 9 U. S. Stats, at large, 404.”
Here is the most ample grant of legislative power. It includes all the legislative power, and extends to all rightful subjects of legislation. The only limitation is that the Congress of the U. S. might disapprove of any law, in which case it should be null and void. Not only is the grant of legislative power unlimited, but this proviso implies that, when Congress did not disapprove, it approved and affirmed the laws of the Territory.
This is the letter and spirit of this Statute, and it is in accordance with the understanding of the bar and the bench for over a quarter of a century; and millions — yes, many millions — of dollars have been invested in the State of Minnesota on the faitli and belief that the Territorial legislature possessed such power, and we have yet to learn that in a single case the power has leen ever questioned.
The Legislature of the Territory of Minnesota having had unlimited legislative'power, subject only to the disapproval and veto of its acts by Congress, it is no longer an open or debatable ques
In Humphreys v. Pegues, 16 Wall., 249, the Supreme Court of the U. S. employs this language :
“ Another question is raised, to-wit : That a legislature does “ not possess the power to grant to a corporation a perpetual im- “ munity from taxation. It is said that the power of taxation is “ among the higher powers of a sovereign state ; that its exercise “ is a political necessity, without which the state must cease to “ exist, and that it is not competent for one legislature, by binding “ its successors to compass the death of the State. It is too late “ to raise this question in this Court. It has been held that the “ Legislature has the power to bind the State in relinquishing its “ power to tax a corporation. It has been held that such a provision in the charter of an incorporation constitutes a contract “ which the State may not subsequently impair. These doctrines “ have been reiterated and reaffirmed so recently as the year 1871, “ in an opinion delivered by Mr. Justice Davis in the case of The “ Wilmington Railroad v. Read. They must be considered as “ settled in this Court. ” Wilmington R. Co. v. Read, 13 Wall., 264; State Bank v. Knoop, 16 How., 369, 380, 382, 387, 390; Pac. R. Co. v. Maguire, 20 Wall., 36.
' Authorities might be multiplied to the effect that such a law is a legitimate act of legislation; that it is not only a law but a contract whose inviolability is guaranteed by the Constitution of the United States.
But it is argued that although the Territory of Minnesota had the power as against itself and the State of Minnesota to exempt these lands from taxation, it had not the power as against the United States or the Territory of Dakota, That as soon as the Territory of Dakota was formed it had the right and power to tax
As to the United States we have seen that it conferred on the Territory of Minnesota the power to enact such a law subject only to the veto of Congress and that Congress by not disapproving, impliedly sanctioned this very act. There is no basis, therefore, for the suggestion that the Territory of Minnesota, in this respect, attempted or did any thing which was unauthorized or disapproved by or hostile to the United States.
It is not to be lightly supposed that, after a contract like this has been by the permission and authority of the United States entered into, and after it has been fulfilled to the letter on the part of the Transit Railroad Company and its successors and assigns, the United States would deliberately repudiate it or impair its obligation. And it gives me pleasure to add that there is not a word or indication in any act or law of the U. S. which has been called to our attention to justify an intimation or suspicion that it has been guilty of such bad faith.
As to the Territory of Dakota, the contention is that the clause of the constitution of the U. S. which forbids a State to pass any law impairing the obligation of contracts — is not applicable to a Territory. But this being conceded the defendant’s position is not strengthened thereby ; for by its organic Act, the Territory of Dakota is expressly inhibited from passing “any law impairing the rights of private property.” Rev. Statutes U. S. Sec. 1925. This, as to the Territory, is the equivalent of what the contract clause of the Constitution of the U. S. above referred to, is to the States. That contract rights are property will not be denied.
Nor is it true, that, because the Territory of Minnesota was divided, that the contracts right of the plaintiff, in that part of it which has become incorporated into Dakota, are affected or
But it does not seem to me that the Territory of Dakota has attempted or intended to violate or divest any vested rights. The law by which it is claimed these faxes are authorized is the general revenue law of the Territory, in the enactment of which such cases as this were not considered any more than were government bonds or other exempt property held by private parties.
It is not claimed by the plaintiff’s attorney and certainly it can not be allowed that the laws of the Territory or State of Minnesota can have any extra territorial effect or operation. When the law of 1857 which exempted these lands from taxation was enacted, the portion of the Territory of Dakota in which these lands lie was represented in that legislature. It was then a part of the Territory of Minnesota.
That it was intended by that act on the conditions and for the consideration therein expressed to exempt these very lands is clear. The language of the Act will admit of no other construction. It is as follows: “Sec. 2. For the purpose of aiding in the “ construction of the railroad, which . by this act the Transit Rail- “ road Company is authorized to construct, all the mterest and “ estate present and prospeetwe of this Territory and future “ State in and to any and all of the lands granted by the govern-
And as said by the Supreme Court of the U. S. in a like case: “ If the contract is plain and unambiguous and the meaning of “ the parties to it can be clearly ascertained, it is the duty of the “ Court to give effect to it the same as if it were a contract between “ private persons without regard to its supposed injurious effects “ upon the public interests.” Pacific R. Co., v. Maguire 20 Wall., 43.
And it may be added that the consideration paid by the Railroad Co., for this immunity was ample, and as it is conceded by the pleadings, has heen fully paid and performed according to agreement. A railroad was thus secured, at a great expense, in advance of settlement, into this country. And there is not one word of evidence in the case, or a fact found or admitted to indicate that the conduct of the railroad company, in this affair has not been characterized by good faith.
The grant of these lands by the U. S. to the Territory of Minnesota was i/n presenti—it operated to vest an immediate title in the Territory; Schulenberg v. Harriman, 21 Wall., 60, 62; Lawrence & L. R. Co. v. U. S., 92, U. S., 741, 742, 748, 749; Grinnell v. Railroad Co., 103 U. S., 739, 742; 9 Opinion of Attorneys General, 254-5; Newhall v. Sanger, 92 U. S., 761-2-3; Cent. Pac. R. Co. v. Dyer, 1 Sawyer, 642, 651-2; Mo. K. & T. R. Co. v. Kan. Pac. R. Co., 97 U. S., 491.
And the Territory had the right to appropriate them for the purposes expi'essfed.” in the Act of Congress. It did n&t attempt to
It may be admitted that it was not competent for the State to - grant those lands to the Transit Bailroad Co., absolutely and without reference to the performance of those acts which were made by the Act of Congress a condition precedent- to such right of disposition.
As we have seen, no such thing was attempted. If the Act of the Territorial Legislature did not operate as an unconditional grant, it was at least a valid contract with the Bailroad Company’ that it might earn the lands. As such it was in strict accordance with the Act of Congress and in pursuance of its provisions and in furtherance of its policy.
This is the very course which has been generally — I believe uniformly-pursued in all such cases, not only in Minnesota, but in the several western states, to which such grants have been made, as the statute laws and the reports of their courts show.
The legality and propriety of such a practice is recognized by the decisions of every western state, as it is also in the last case cited from Supreme Court U. S. (Grinnell v. Railroad Co., 103 U. S., 742.) The cases cited by the defendant’s counsel, and which, it is claimed, held a contrary doctrine, are not in point. They merely hold that the State or Territory to which the grant is
In the eases cited by defendant’s counsel, the attempt was made to dispose of the lands without the building of a single mile of road. In other words, it was attempted to dispose of the lands in violation of both the letter and spirit of the law. It was held that this could not be done : Schulenberg v. Harriman, 21 Wall., 59; Railroad Co. v. Carroll County, 41 Iowa, 153, 162, 163. Rut it certainly does not follow that it is not competent for the legislature to make a binding contract with any person or company to oompl/y with and fulfill the objects and purposes of the land grcmvt acts. It is not expected in such cases, nor would it be desirable, that the State or Territories to which such grants are made should themselves build the roads, and as the lands can be used only to aid in building the road, it must be competent for such State or Territory to contract with some corporation or person to do the work. And of course if it has the power to do this it has the power to make a binding contract that, on the performance of the conditions specified, the Railroad Company shall become entitled to the bounty of Congress; and such other conditions as may be agreed upon.
This being so, these lands were clearly exempt from taxation while they were owned by the Transit Railroad Company. We are led, therefore, to the consideration of the second question in the case, namely: L)id this plaintiff succeed to the immunity from taxation possessed by the Transit Company?
This is denied by the defendant’s counsel. But after a most careful consideration of his very able argument, I am not able to assent to his conclusions.
It cannot be questioned but that it is within the power of a State or Territory (in the absence of any limitation of its power) by which a railroad corporation is created, to authorize and
Hence we have this state of facts: The trust deed or mortgage made by a party (which owned the property) conveyed in trust “all “the rights,property,privileges, ^franchises and immunities of the “ Transit Railroad of every nature and kind whatever which were “ then owned by the said Company, or which should thereafter be “ acquired or owned by it, ” * * and authorized the trustees therein named in case the Transit Railroad Company should fail to pay the principal or interest of said State bonds or of said first mortgage bonds, * * “to enter upon and take possession of ail “and singular the rights and interests, property, privileges, fran“chises and immunities granted in trust as aforesaid, and to sell “and dispose of the same,” etc.
The default which justified the foreclosure, and the legality of the foreclosure are not questioned. . And it is admitted that the Governor who acted instead of the trustees named in the mortgage or deed of trust (as he was by law authorized to do) did in fact, bid ' in and transfer to the State “all the property, rights, privileges, franchises and immunities pledged in said deed of trust;” and that the State subsequently conveyed to this plaintiff “all the property interests, corporate rights, privileges, amdfran- “ chises of or which before had belonged to or were owned by the “ Transit Railroad Company.”
And all this was done while a law was in force which expressly provided that the purchaser at such sale should succeed to and “ acquire thereby and shall exercise and enjoy thereafter all the “ same rights, privileges, grants, franchises, immu/nities and ad- “ vantages in and by said mortgage and trust deed enumerated
Here is a clear an<;l apparently perfect chain of title from the owner to this plaintiff. It was not on the argument questioned, but that a grantee or purchaser, at a mortgage or execution sale of “ all the property, privileges franchises and immunities,” or of “all the property, franchises and privileges ” of such a corporation obtains and succeeds to the privilege or immunity of exemption from taxation which the grantor, mortgagor or execution debtor may have possessed.
And, if this was not admitted, the proposition is no longer open to question or doubt. See, Q. & N. R. Co. v. Gaines, 3 Fed. Rep., 266; Humphreys v. Pegues, 16 Wall., 244; St. Paul Pac. R. Co., v. Parcher, 14 Minn., 297; State v. W. & St. P. R. Co., 21 Minn., 315; State v. Trustees, 21 Minn., 344.
Though in each of the following cases the exemption from taxation was denied, it is conceded that, if the language which is used in this case had been used in those the purchaser, at mortgage or execution sale, would have taken and acquired the privilege or immunity of exemption from taxation. Morgan v. Louisiana, 93 U. S., 217, 224; Railroad Co. v. Gaines, 97 U. S., 697, 711, 712; Railroad Co., v. Hamblen, 102 U. S., 273; Railroad Co , v. Commissioners, 103 U. S., 1; Wilson v. Gaines, 103 U. S., 417.
But defendant’s counsel claims — and I believe this is the point principally relied on —that though the Transit Go., may have mortgaged all its property, franchises, privileges and immunities including the privilege of exemption from taxation, and though that mortgage may have been legally foreclosed and all the rights,
This rule is well illustrated by the case of a person who acquires by assignment, or otherwise, a mortgage on real property, while he owns the fee.
Ordinarily, in such case, the mortgage interest would become merged in the fee, and extinguished. But to this rule the exceptions are numerous and well understood by every lawyer. In such case, the mortgage interest may be, at the option of the owner of the mortgage, held without merger or extinguishment. And, when it is for his interest to hold it separate, the presumption, in the absence of evidence to the contrary will be that he so intended. See authorities last above cited. It may be argued that it is absurd to hold that a man has a valid mortgage of his own land.
This is technically true. But the law does not favor hair splitting quibbles ; but rather seeks to subserve the ends of justice and to effectuate the intention of the parties. This is especially true, when a state is a party or the act of a legislature is to be interpreted, in which case all merely technical rules must yield to the legislative will. It must be borne in mind in such cases that the legislative acts are laws as well as contracts, and that the
As said by the Supreme Court of the U. S., in the case above cited (97 U. S., 497). “ The rules of the common law must yield in this as in all other cases, to the legislative will.”
It is admitted by the pleadings in this case and found as a fact, that the state of Minnesota intended to hold and regrant, without merger or extinguishment all the lands, property, franchises, privileges and immunities which the Transit Railroad Company owned or possessed, and, in my judgment, according to the rule laid down by the Supreme Court above, this intention must prevail in this case. See Railroad Co. v. Parcher, 14 Minn., 303, 304, 329, 330; which is an adjudication on this very question. See also, State v. W. & St. P. R. Co., 21 Minn., 315.
Nor have I been impressed by the force of the argument of defendant’s counsel that because the state of Minnesota is the creator and grantor of the franchises, immunities and privileges which it acquired and assumed to regrant as aforesaid, it can not hold them without merger as a natural person might.
The answer to this seems plain. Not only, as before said the will of the legislature in such cases, as in all cases must prevail; but, when a state descends from the plane of its sovereignty and contracts with private persons, it is regarded pro hac vice as a private person itself, and is as to that transaction to be so treated and considered. Davis v. Gray, 16 Wal., 232 ; Curran v. Arkansas, 15 How., 308, 309 ; St. Paul & Pac. R. Co., v. Parcher, 14 Minn., 303, 304, 329 330 ; U. S. Bank v. Planter's Bank, 9 Wheat., 906, 907.
Besides, as to the franchises, immunities, etc., pertaining to that part of the lands in this Territory, the doctrine of merger which was argued and decided in the cases in Minnesota, is
It could purchase and hold property there, not as sovereign, but as a private person, subject to all the duties, liabilities and taxes imposed on private persons. In the absence of any law or expression of intention to the contrary, it might be said as to lands within the state of Minnesota, as said by the Supreme Court II. S. in a case hereafter cited. “ When the state became “ the purchaser, the immunity ceased ; the property stood in its “ hands precisely the same as any other unincumbered property “ of the state, exempt from taxation, not by virtue of any “ previous stipulation with the company, but as all property in “ the state is thus exempt.” Trask v. Maguire, 18 Wal., 404.
But, when the state of Minnesota purchased or acquired lands in the territory of Dakota, it took and held them as a private party and subject to taxation as the lands of any private party. If these lands are or have been exempt, at any time, from taxation in Dakota, it is because of the immunity granted and . guaranteed by the Act of the territory of Minnesota, of 1857, above referred to — not because the sovereign state of Minnesota held them. The state beyond its own limits is not clothed with any of the attributes of sovereignty.
It must not be lost sight of in this case that when the law of the territory of Minnesota was enacted which exempted these lands from taxation they were within the limits of Miivnesota. Hence as to that part of the now territory of Dakota, the territory of Minnesota had all the jurisdiction which any sovereign has over its own territory.
Hence the case of Trask v. Maguire, 18 Wal., 391, is not an authority against the plaintiff in this case, but it seems to be an authority in favor of the plaintiff.
The court there holds that the immunity from taxation granted to the original Co., having been merged and having ceased to exist, it was not competent to renew it under the Constitution of that state. It was not intimated by the court that it would not have been in the power of the state to prevent such merger by a law to the contrary, or by any expression of an intention to the contrary. And in the absence of such intention, express, or implied, it is ■ well settled that there would, under the circumstances existing in that case, be a merger and extinguishment of the original privileges or franchises granted.
The question, as held by the Supreme Court of the United states in the case last cited, is whether the Constitution and laws of the State authorized it to continue these franchises, etc., without merger or extinguishment.
As we have seen, the highest courts of Minnesota have uniformly and repeatedly decided that the constitution and laws of that state gave this power, and that, therefore, the
A party could never be certain as to his rights under any law until the question had been passed upon by all the courts, before which it could be raised. The law certainly does not countenance such absurdities. On the contrary, it is well settled that the construction which the courts of any state may give to the Constitution or statute law of such state, is conclusive on, or, at least, will be followed by the TJ. S. Courts, and the courts of other states and territories.
Such Construction becomes thereafter a part of the law or Constitution ; Jessup v. Carnegie, 80 N. Y., 441, and cases there cited.
This case, and the cases cited in the opinion, clearly and accurately lay down the rule with its exceptions. See also the following : Hunt v. Hunt, 72 N. Y., 236, 237, and cases cited. Walker v. State Commissioners, 17 Wal., 648, 650, 651 ; Secombe v. Rail Road Co., 23 Wal., 108 ; Town of Ottawa v. Perkins, 94 U. S., 266, 267, 268 ; Peck v. Chicago Rail Road Co., 94 U. S., 178 ; County of Leavenworth v. Barney, 94 U. S., 71 ; Adams v. Nashville, 92 U. S., 21 ; Township of Elmswood v. Marcy, 92 U. S., 289, 294.
None of tlie exceptions to • or limitations of this general rule, toueli this case. The rule, of course, does not apply in a case on appeal to the Supremo Court of the U. S. from a state court. In such a case it must follow that the appellate court would not be bound by the decision of the court from which the appeal is taken. Or, if contracts, when made, are valid by the laws of the state as then expounded, their validity can not be impaired by subsequent legislation, or the decisions of the courts altering the construction of the law. In other words, as against contracts which are valid when made,- a change of decision of state courts will not be allowed by the federal courts to have a retroactive effect. But no exception to the general rule, which would affect this case, has been brought to the attention of the court, and it is not believed that any such could be referred to.
The case of Secomb v. R. Co., 23 Wal., 108, above cited is in point not only on principle, but on the peculiar facts of this case. In that case ejectment was brought by Secombe against the defendant for a lot in Minneapolis, which had been acquired by condemnation of the Minnesota Central R. Co., which was the successor in interest of the Cedar Valley R. Co.
The Cedar Valley R. Co., was one of the Land Grant Railway Companies of Minnesota and its property, franchises, etc., were sold and bid in by the Governor and transferred to ■ the State, which transferred them to the Minnesota Central R. Co., which transferred them to the defendant in that action.
The steps taken to foreclose the trust deed and sell and transfer the property and franchises in that case, were identical with the steps taken in this — and under the same Statute and Constitution.
Secombe claimed in that case, as defendants in this, that, when
While I assent to the doctrine laid down by the Supreme Court of Minnesota, in the. cases cited, I think that, even if their soundness were doubtful, the cases above cited clearly show them to be conclusive as to the proper construction of the Constitution and Statute laws of that State.
To a proper understanding and decision of this ease, certain considerations must not be lost sight of. The forfeiture so called is not a forfeiture of any of the -rights, privileges, franchises or immunities granted by the Act of the Territory of Minnesota of 1857, which granted to the Transit Eailroad the lands, franchises and privileges aforesaid.
Under and by that Act on the conditions and for the consideration expressed, certain property, franchises and privileges were granted to the Transit Co., among which was the immunity from taxation. The Transit Eailroad Company accepted that Act, and it and its successors have strictly complied therewith.
But there are two contracts referred to in the case to which
It was under the former that the lands were exempted from taxation. That contract has been complied with by the Transit Co., and its successors, and therefore, I believe they are legally and equitably entitled to the consideration stipulated and agreed upon for such performance.
The latter contract was not complied with by the Transit Co.
It was under it that the foreclosure referred to was had. But it is wholly immaterial so far as the rights of the parties to the first contract are concerned, or so far as the rights of the Territory of Dakota (which has succeeded as to these lands, to the rights and duties of the Territory of Minnesota) are concerned— whether the latter contract was complied with by either party thereto or not. As to that contract, the state of Minnesota had the legal and equitable right to waive any performance, or to waive a forfeiture on part of the Transit Go., in whole or in part ; or to enforce the contract as against that Company in any manner which to the State might seem best. The judgment of the Court below is, therefore,
Affirmed.
