Hunnewell v. Cass County, 89 U.S. (22 Wall.) 464

Hunnewell v. Cass County.

1. Under the act of July 2d, 1864 (13 Stat, at Large, 364), which gave to the Burlington and Missouri River Railroad Company every alter nate section of the public lands, to the amount of ten alternate sections per mile on each side of the road on the line thereof, but enacted in its twenty-first section that “before any land granted by this act sha conveyed to the said company there shall first be paid into the ^,eas^ of the United States the cost of surveying, selecting, and conveying e same by the said company,” it is not clear what the “cost of c°nV^ ing ” is, no statute known to the court authorizing a charge or ee issuing a patent. Nor is it clear whether, under the terms the cos of selecting and conveying,” the fees of $1 for each final localion o hundred and sixty acres, given to registers and receivers by t e ac Congress of July 1st, 1864 (13 Stat, at Large, 365), is meant or no - 2. Nor under the General Statute 907, of the State of Nebraska, is i what is the latest day at which by the laws of that State the ng

* assess lands for taxation can be exercised for any given jeai.

3. In this state of uncertainty as to the exact meaning of the statutes, Federal and State, and in the absence of any decision by the State court as to the meaning of the State statute, and of any long and well-settled practice under it, this court refused to enjoin county officers in Nebraska from levying a tax laid under State authority, on lands granted by Congress to a railroad company, in a case where the ground on which the prayer for injunction was based was that the registers’ and receivers’ fees, which the complainant assumed to be the “ costs of selecting and conveying,” mentioned in the act of Congress, had not been paid until a few days after the time when the complainant, on his construction of the act of the State above mentioned, assumed was the last day on which taxes could be laid, and when all those claims of the Federal government were satisfied before half the current year for which the taxes were levied had expired, and patents for the lands had issued, before the bill praying the injunction was filed.

Appeal from the Circuit Court for the District of Nebraska.

Hunnewell, for himself and others, citizens, al], of States other than Nebraska, filed a bill in the court below against Cass and other counties of the State of Nebraska, their treasurers, and the Burlington and Missouri River Railroad Company, to obtain an injunction on the said treasurers, to prevent their collecting State and county taxes which had been levied on certain lands granted to the said company by an act of Congress. He alleged himself and the others to be stockholders in the company; that the lands on which the taxes had been assessed were not liable to taxation under State authority; that the company was about to pay these taxes notwithstanding that he had made a protest; and remonstrance against their so doing. The bill prayed relief as above said by injunction.

The case, divested of parts of it disposed of in principle y the case of Railroad Company v. McShane, just reported, and therefore not necessary to be presented, was thus :*

In this case, as in Railroad Co. v. McShane, referred to in the text, the ejection was taken that the lands were or might become, within three years claus1 f c0tnpletion of the road (A-. D. 1872), subject to the pre-emption con)60 1 6 see^on °f the original act of 1862, supra, p. 445; the railroad wTh th® grant to it, because it was found in the act of

W ich act was confessedly “amendatory” of the act of 1862), was VOL. XXII. 30

An act of Congress, approved July 2d, 1864,* by which the Burlington and Missouri River Railroad Company, a corporation created by the laws of Iowa, was authorized to extend its road through Nebraska, from a point on the Missouri River to another point on the Pacific railroad, so as to connect with it, thus enacted :

“Section 19. That for the purpose of aiding in the construction of said road, there be and hereby is granted to the Burlington and Missouri River Railroad Company, every alternate section of public land, . . . designated by odd numbers, to the amount of ten alternate sections pei’ mile on each side of the said road, on the line thereof, and not sold, reserved, or otherwise disposed of by the United States, and to x^hich a pre-emption or homestead claim ma,y not have attached at the time the line of said road is definitely fixed.”

By a subsequent section, whenever the company had completed twenty consecutive miles of its road, in a manner prescribed, the President of the United States was to appoint commissioners to examine and report to him relative thereto; and if it should appear to him that twenty miles of the road had been properly completed, then, upon certificate of said commissioners to that effect, patents were to issue conveying the right and title to the lands to the company on each side of said road as far as the same was completed. And such examination, report, and conveyance by patents, was to continue from time to time, in like manner, until the road should be completed.

The act went on in its twenty-first section thus:

“Section 21. Before any land granted by this act shall be conveyed to the said company . . . there shall first be pa into the Treasury of the United States the cost of surveying, ing, and conveying the same by the said company, . • • governed by that clause. The court below, however, held ths‘PJop0®^ to be one not sound. After the decision in Railroad Co. v. c question whether it was or not became, of course, of no impor anc, if it were so governed, the fact would, under the decision t ere m no ground of exemption.

■* 13 Stat, at Large, 364.

amount shall, without further appropriation, stand to the credit of the proper account, to be used by the Commissioner of the General Land Office, for the prosecution of the survey of public lands along the line of said road.”

The road of the Burlington and Missouri company was completed for the purpose of this case, we may consider, in the spring of 1872. In that year, the first day of April fell on Monday.

The costs of surveying the lands which the county treasurers had sought to tax, were paid on the seventh day of March; and the fees of the register and receiver of the land office—which fees the complainants alleged to be the “ cost ’*■ of “ selecting and conveying,” which, with the cost of surveying, the above-quoted twenty-first section enacted should be paid into the treasury, “ before any land granted by the act should be conveyed to the company,”—were not paid until the 19th and 20th of April, which days, as happened in 1872, were respectively the third Friday and Saturday of the month; the third Monday (as the month came in on Monday) having been the 15th.

The complainants now, citing a statute of Nebraska, which they stated governed the subject, alleged that the time to which all assessment, for taxation of lands in the State related, was fixed by the statute on the first day of March, in each year; and that if the lands were not taxable on that day, they were not taxable at all for that year; that if this were not true, yet that no land could be taxed for any year which was not liable to taxation when the power of certain ‘precinct assessors,” mentioned in the statute, expired after their meeting on the first Monday of April (prescribed by the statute), for the purpose of equalizing the assessment, Or, at the latest, after the session of the county commissioners which the statute fixed for the third Monday of ■A.pnl, and which third Monday in April, 1872, was, as aheady stated, Monday the fifteenth of the month.

The facts of the case and the positions just stated involved, therefore, two questions:

1- Whether under the statutes of Nebraska the assessment, &c., had been in time ?

2. Whether the fees of the register and receiver, which had been paid on the third Friday and Saturday (the 19th and 20th) of April, were the “ costs ” of “ selecting and conveying the lands ” which the twenty-first section of the act of Congress enacted should, with the cost of surveying, be paid before the lands should be conveyed to the company?

As to the first point, the only statute of Nebraska referred to by counsel on either side, or which was suggested from any quarter as bearing on the question, was one, as follows:

“General Statute 709.

“Section 26. The precinct assessors of each county shall meet at the office of the county clerk, on the first Monday of April of each year, for the purpose of equalizing the assessments, and shall return their lists to the county clerk on or before the second Monday of the same month.

“ Section 27. The county commissioners of each county shall constitute a board of equalization for the county7, and said board, or any two of them, shall hold a session of at least three days, at the county seat, commencing on the third Monday of April in each year, for the purpose of equalizing and correcting the assessment roll in their county.”

By section twenty-eight the county clerk is directed to make out and transmit to the State auditor an abstract of these matters, as settled by the board of county commissioners, on or before the first Monday of May. On the fourth Monday in May the governor, State auditor, and treasurer are to meet as a State board of equalization, and to decide upon the rate of the State tax, State school tax, and sinking fund tax for the current year.

The auditor is then to transmit this result to the county clerks on or before the second Monday in June, and on the first Monday in July the county commissioners are require to meet and levy the necessary taxes for the current yeai.

By section fifty-two it is declared that taxes upon rea property shall be a perpetual lien thereupon, commencing from the 1st day of March of the current year, against a persons and bodies corporate, except the United States au the State of Nebraska.

By section fifteen all personal property is to be listed, assessed, and taxed in the county where the owner resides on the 1st day of March, but if the owner resides out of the State it is to be listed and taxed where it may be at the time of listing.

As to the second matter, whether the fees of the registers and receivers were or were not “costs of selecting and conveying the lands,” within the meaning of the twenty-first section, the act of Congress, the only statute cited on either side, was one of July 1st, 1864, as follows:*

“An Act to regulate the compensation of registers and receivers of the land offices in the several States and Territories, in the location of lands by States and corporations under grants from Congress.

“In the location of lands by States and corporations, under grants from Congress for railroads and other purposes, . . . the registers and receivers of the land offices of the several States and Territories in the districts where such lands may be located, for their services therein shall be entitled to receive a fee of $1 for each final location of one hundred and sixty acres, to be paid by the State or corporation making such location, the same to be accounted for in the same manner as fees and commissions on warrants and pre-emption locations, with limitations as to maximum of salary prescribed by existing laws, in accordance with such instructions as shall be given by the Commissioner of the General Land Office.”

he court below dismissed the bill. It said in its opinion : he fees to the registers and receivers of the local land o ces, under the act of July 1st, 1864, are not embraced within ose required to be paid by the twenty-first section of the act

64. These are fees for ‘location,’ not for ‘selectino* ’ and conveying’the land.

But again, it may be remarked that the cost of surveying in fk to ma,ke the lands taxable; the work of seleetsho 6 lan^8 was done by the company without, so far as wn, any expense to the government, and for the cost of con-

* 13 Stat, at Large, 335.

Argument in favor of the exemption from taxation.

veying it does not appear that the government makes or has any claim.”