After all this, it can hardly be said that sale must be voluntary and not by operation these were lands belonging to the United of law? The Company is authorized to make States. The acts and declarations of the Com-contracts, to sue and be sued. If judgment be pany as to its ownership are equally emphatic. obtained against it, could not these lands be 1. It accepts the grant. 2. It declared, in 1869, that it had completed its entire road, thereby asserting that it had earned and was entitled to the lands. 3. It receives patents for a part of them, and pays the surveying fees, etc., on the balance. 4. It mortgaged its grant for $10,000,000 and received and used the money. 5. It exercised exclusive acts of ownership, by selecting, classifying, advertising for sale and selling, portions of its grant. 6. It assumes ownership in itself, when it asks the court to interfere by injunction to prevent a cloud being passed upon its title; for if it had title at the time the bill was filed, it had in 1872, as nothing is alleged showing that it acquired rights to the lands after that date, but all its rights are alleged to have accrued prior to the assessment. sold on execution, and a good title passed to the purchaser? Would the court enjoin the sale on the ground that the United States would have a contingent interest in lands not "sold or disposed of?" It would seem that the answer would be, that the land was about to be sold to pay a debt of the Company. There is no law exempting these lands from execution or tax sale. The owner of property owes the State a debt to the amount of the tax assessed upon it. If not paid, the State, the creditor, may enforce payment by sale of the property. Is there any reason why a tax sale should be enjoined any more than an execution sale? And even if the United States has some claim against the lands for surveying fees or anything else, it is difficult to see how it could be prejudiced by a sale of them for taxes. This Then both the United States and the Com-court said in the case of Carroll v. Safford, 3 pany say the lands belong to the latter, and How., 462, that "The sale for taxes is made it would seem, therefore, that Nebraska was on the presumption that the purchase from the justified in regarding them as private property. government has been made bona fide, and if Being such it was the duty of the State to not so made, the purchaser at the tax sale acmake this property bear its just portion of the quires no title and, consequently, no embarpublic burdens. rassment can arise in the future disposition of the same land by the government." A different view seems to have been taken in the Prescott case. But this question is not involved here. The right to tax property is based upon the assumption that it is of value and advantage to the owner. No other theory will justify property taxation. This property has been just as valuable to the Company for every practical purpose as though the patents had been issued ten years ago. It was valuable enough to furnish security for vast sums of money, and available enough to enable the Company to sell one million acres. 7. For three years next following the completion of the road, the Company was certainly the absolute owner of these lands. The Circuit Judge in his able opinion, holds that, even afterwards it is such owner of all lands not actually appropriated by pre-emption settlers. But within the three years' limit, there can be no question about its ownership, provided it had, or was entitled to receive, its patents. Not only this, but the Company was entitled to receive a patent when a section of forty miles was completed and accepted, as early as 1866 (Act 1862, 4th sec.), and the patent conveyed to the Company the right and title of the United States to the land. After this, are these lands property belonging to the United States? Are unpatented lands, which have been fully earned, property belonging to the United States? They were the property of the Company certainly, from May 10, 1869, to May 10, 1872, and the State had the right to deal with them the same as with lands of citizen proprietors. The tax complained of was assessed in March or April, 1872, as required by the local law, before the expiration of three years; therefore, it must be admitted the State had the right to assess: and it follows that it could make that right a substantial one by enforcing the collection of the tax; for the right to tax attached before the three years expired. The tax became a lien on the land. It is conceded that the Company had a right to sell the lands. Will it be claimed that the Mr. Justice Miller delivered the opinion of the court: These are cross appeals from a decree of the Circuit Court for the District of Nebraska, in a suit in equity brought by the Railroad Company to enjoin the defendants, who were Treas urers of Counties in the State of Nebraska, from the collection of taxes assessed on the lands of the Company. The bill alleges that, in the year 1872, the assessors of the several counties where the lands are situated, which lands are described in lists filed as exhibits with the bill, assessed said lands, and the Boards of Commissioners of said counties levied taxes for state, school and local municipal purposes, upon them, and that the Treasurers, who are made defendants, were about to proceed to the collection of those taxes by seizing and selling the locomotives, cars and rolling stock generally of the Company, with other personal property. They say that the lands were not liable to any state taxation at the time of the assessment or levy, and they pray that these Treasurers, who are made defendants, may be enjoined from further proceedings for their collection. The grounds on which this exemption is claimed may be divided into three distinct propositions, some of which are applicable to all the lands, and others to only part of them: 1. That, by the 3d section of the Act of 1862, under which the Company was organized, and by which the lands within the ten mile limit were granted in aid of the construction of the road, it was provided that all such lands as should not be sold within three years after the entire road shall have been completed, shall be subject to settlement and preemption like other lands, at a price not to exceed $1.25 per acre, to be paid to the Company; and it is alleged that these lands are liable to this pre- tion by Congress, or action by the Interior emption, which would be defeated by a sale of them for the taxes. 2. That, by the amendatory Act of 1864, which extends the grant to twenty miles on each side of the road, it is provided that before any of the land granted shall be conveyed to the Company, there shall first be paid into the Treasury of the United States, the cost of surveying, selecting and conveying the same by the said Company, and that these costs to take, any steps to invite or aid the exercise not having been paid, a sale for taxes would defeat the right of the United States to enforce this claim and recover their expenses out of the land. Department. We do not now propose to decide whether any such legislation or other action is necessary, or whether anyone, having the proper qualification, has the right to settle on these lands and, tendering to the Company the $1.25 per acre, enforce his demand for a title. It is not known that any such attempt has been made, or ever will be, or that Congress or the department has taken, or intends of this right. It would seem that if it exists, it would not be defeated by the issue of the patent to the Company, and it may, therefore, remain the undefined and uncertain right, vested in no particular person or persons, which it now is, for an indefinite period of time. The Company, meantime, obtains the title, sells the lands when a good offer is made, [*462 and exercises all the other acts of full ownership over them, without the liability to pay taxes. 3. That, under the Joint Resolution of April 10, 1869, authorizing the President to appoint a commission to inquire into the manner in which the road had been constructed, and if the report was unfavorable, to take steps to secure 450*] *its proper construction, the Secretary had refused to issue patents for these lands, withholding the title as security for the per- We are of opinion, therefore, that this right formance of what was required in that respect. confers no exemption from taxation, whether Without referring to the answer at present, the land be patented or not; and so far as the opinion in the case of R. Co. v. Prescott, supra, asserts a different doctrine, it is overruled. we will take up these several points. And in examining their legal bearing on the case will, at the same time, where it is necessary, inquire how far they are supported by the facts of the case, and will then look into the other matters set up by way of defense. The first and second of the propositions above stated are supposed to find sufficient support in the case of R. Co. v. Prescott, 16 Wall., 603, 21 L. ed. 373. But the proposition that the State cannot tax these lands while the cost of surveying them is unpaid, and the United States retains the legal title, stands upon a different ground. The Act of 1864, section 21, declares that before any of the lands granted by this Act shall be conveyed to the Company, there shall first be paid into the Treasury of the United States the cost of surveying, selecting and conveying the same. That the payment of these costs of surveying the land is a condition precedent to the right to receive the title from the government, can admit of no doubt. Until this is done, the equitable title of the Company is incomplețe. There remains a payment to be made to perfect it. There is something to be done without which the Company is not entitled to a patent. The case clearly is not within the rule which authorizes state taxation of lands, the title of which is in the United States. That was a suit by the Kansas Branch of the Union Pacific Railroad Company to have declared void a sale of some of its land for taxes, made under state authority, and this court granted the relief on the ground that the land was not liable to taxation at the time it was assessed for the taxes under which it had been sold. No patent had been issued to the Company when the taxes were assessed, and 461*] *the costs of surveying the land had not been paid to the government by anyone. This court reaffirmed the doctrine that lands which had constituted a part of the public domain might be taxed by the States before the government had parted with the legal title The reason of this rule is also fully applicaby issuing a patent, but that this could only ble to this case. The United States retains the be done when the right to the patent was com- legal title by withholding the patent for the plete, and the equitable title fully vested in the purpose of securing the payment of these exparty, without anything more to be paid, or penses, and it cannot be permitted to the States any act to be done going to the foundation of to defeat or embarrass this right by a sale his right. And it is said that in that case the of the lands for taxes. If such a sale could be United States had a right to retain the pat-made, it must be valid if the land is subject ent until the costs of surveying the land had to taxation, and the title would pass to the been paid, which had not been done, and that the right of pre-emption in lands unsold by the Company within three years after completion of the road, would be defeated if a sale for state taxes could be made which would be valid. This latter ground was not necessary to the judgment of the court, as it rested as well on the failure to pay the costs of surveying the land. And we are now of opinion, on a fuller argument and more mature consideration, that the proposition is not tenable. The road was completed and accepted by the President in May, 1869, and these lands have been subject to such preemption since three years from that date, if this right can be exercised by the settler without further legisla purchaser. If no such title could pass, then it is because the land is not liable to the tax; and the treasurers of the counties have no right to assess it for that purpose. But when the United States parts with her title, she has parted with the only means which that section of the statute gives for securing the payment of these costs. *It is by retaining the title that the [*463 payment of costs of survey is to be enforced. And so far as the right of the State to tax the land is concerned, we are of opinion that when the original grant has been perfected by the issue of the patent, the right of the State to tax, like the right of the company to sell the lands, has become perfect. As already stated, part of the lands in dispute have been patented, and part of them have not. And the circuit judge in his opinion and decree divides them into the patented and the unpatented lands, and we concur in his opinion that there is no reason why the patented lands should not be taxed. As to those which are not patented, it may be assumed from the evidence in the case that on none of them have the costs of survey been granted by Congress to the Burlington and Missouri Railroad Company, where all dues to the United States had been paid before the final action of the State Board of Equalization, and patents for the lands had issued for all of them before this sult was brought, and at the time of filing the bill, the United States had no interest in the land which would forbid their being taxed. [No. 604.] Argued Dec. 16, 1874. Decided Jan. 25, 1875. paid or tendered to the United States, and if APPEAL from the Circuit Court of the Unit they are all subject to that provision of the Act of 1864 they are not liable, on the principle we have stated, to be taxed. It is said, however, by counsel for the State, that the Interior Department has never demanded the costs of surveying the lands within the original ten mile limit, in cases in which they have issued patents, and do not claim them in those for which no patent has been issued; that as the non-payment of these costs, therefore, is no impediment to demanding and receiving the patents, the equitable title is complete, and they should be held subject to taxation. ed States for the District of Nebraska The case is stated by the court. Mr. J. M. Woolworth, for appellant: 1. The fees of the register and receiver were for the costs of selecting and conveying the lands, because: 1. The statutes nowhere provide for the payment of any other expenses connected with the selection and conveyance of lands granted to railroads. 2. The surplus, after paying those officers the maximum allowed them, is turned into the General Land Office, to defray the expenses of further surveys. II. The costs of patenting the lands were certainly costs of conveying them, none of which were paid until June. We held, however, in the case of R. Co. v. 3. While the term used in one Act is "locaPrescott, supra, that these costs of survey at- tion," and in another "selection," when applied tached to all the lands granted to the road, to railroad grants, both mean the same thing. whether by the original Act or by the amenda- The Act making a grant to a railroad company, tory Act of 1864, and we have no sufficient evi-as in that to this company, always locates the dence before us that the Department of the grant and selects or designates the lands; but Interior has acted on a different principle. If, by reason of conflict with preemption and however, they have done so heretofore, it is not homestead rights, and other grants, a process, for us to say that they will grant patents here- more or less complicated, is gone through with, after without payment of these costs; and in a which is properly described by either term. case where we are called on to decide whether such costs are lawfully demandable before the legal title of the Company is perfect, we must abide by our own construction of the statute. III. The Revenue Law of Nebraska fixes no It is said, however, that these lands have day at which the fiscal year begins; nor does 464*] been mortgaged by the Company un-it, in terms, fix a day at which the owner of der sanction of the Act of Congress on that real estate becomes taxable in respect thereof. subject, and that the mortgage conveys the But section 52, designating the first of March legal title out of the United States, so that as the day at which taxes become a lien, does her rights can no longer be interposed to pro-impliedly fix that as the day at which the owntect them from taxation. er is liable for taxes thereon. If, on that day, lands are not taxable, they are not so at all for that year. On the first of March, 1872, this company was not taxable in respect of these lands. It is not necessary to go into the merely technical question whether the legal title passed from the United States by virtue of that mortgage and the Act of Congress which authorized it, nor whether, if it ever becomes necessary to foreclose that mortgage, the rights of the United States in the land would be devested by the proceeding, because we are satisfied that the United States, until she conveys them by patent or otherwise, has an interest, whether it be legal or equitable, which the State of Nebraska is not at liberty to devest by the exercise of the right of taxation. Under these views we are of opinion that the State had no right to tax the lands for which the cost of surveying had not been paid, and for which no patent had been issued; and as the decree of the Circuit Court was made in conformity with these principles, it is affirmed. HORATIO H. HUNNEWELL, Appt., v. COUNTY OF CASS et al. (See S. C., 22 Wall., 464-479.) Injunction to prevent collection of taxes, when denied. This court declines to issue an injunction to restrain counties of Nebraska from collecting state IV. But if this be not so, certainly the process of assessment having been concluded on the first Monday in April, after which day the lands were selected, and all the cost of selection and conveyance paid, these lands were not taxable to this company for that year. 1. The assessment of property is the essential prerequisite to a valid levy of taxes there on. Ferris v. Coover, 10 Cal., 589, 637; Parker v. Overman, 18 How., 137, 15 L. ed. 318. 2. The rule is general and imperative, that assessments can be made only when and as the statute prescribes. Whitney v. Thomas, 23 N. Y., 281; Cruger v. Dougherty, 43 N. Y., 107; Torrey v. Millbury, 21 Pick., 64; People v. Goff, 52 N. Y., 434. 3. And the assessment must be made within the time limited therefor. Thames, etc., Co. v. Lathrop, 7 Conn., 555; State v. Hardin, 34 N. J. L., 79; Williamsport v. Kent, 14 Ind., 306; People v. Goff, 52 N. Y.. 434; Marsh v. Chesnut, 14 Ill., 223; Ludlow v. and county taxes which had been levied on lands Willich, 1 Cin. Supr. Ct., 315. Property not taxable at the day the assessment closes is not taxable at all. Mygatt v. Washburn, 15 N. Y., 316; Clark v. Norton, 3 Lans., 484; on appeal, 49 N. Y., 248. Messrs. Clinton Briggs and E. E. Brown & England, for appellees: The state law does not in terms fix the time in which property shall be assessed. The assessment roll is to be returned to the county clerk, on or before the second Monday of April. Laws of 1869, p. 190, sec. 26. But let us assume that they must be paid before the patent can issue, and in that view consider the question. (1) The mode of acquiring title to public lands by these companies bears little or no analogy to the mode prescribed in cases of entries by individuals. The purchase by a railroad company is a progressive one, consisting of many acts, and extending over a long period of time. It may be asked: at what point in this progressive stage will the company become vested The bill says that the power of the assessor with a taxable interest in the lands? We anwas exhausted Apr. 8, and that of the Board, swer: at the point when all acts have been perApr. 17. This is denied by the answer. Ac-formed, going to the foundation of the comcording to the appellant's theory, the register's and receiver's fees were paid two days or twelve days too late for taxation purposes. If the county officers had control of this matter of assessment as late as Apr. 21, then these lands were taxable, even upon appellant's theory. We are not disposed to base the right to tax these lands upon any figuring in or out of the three, or eleven days; but we propose to rest the case upon grounds less technical. We are brought, then, to the single point: were the lands taxable, say Apr. 1, notwithstanding these fees were not paid? Section 21 of the Act of 1864 provides that before the lands shall be conveyed the costs of surveying, selecting and conveying them shall be paid, "Which amount shall stand to the credit of the proper account, to be used by the Commissioner of the General Land Office, for the prosecution of the surveys of public lands along the line of the road." Thus all the money paid stands appropriated, at the moment of payment, to the single purpose of prosecuting surveys along the line of the road. If there were no unsurveyed lands along the line of the road, what becomes of the money? But do the words "selecting and conveying,' mean acts of the register and receiver, for which they are to receive fees? As to the selecting, it appears that this was done by the company; and, as said by the Circuit Judge, "Without, so far as shown, any expense to the government." pany's right to them; and in this case, at the The right of the State to tax these lands may be placed upon broader grounds than yet suggested. The relation which the government sustains to the company and the grant does not necessarily determine the rights of the State as respects the same. It is true the latter cannot in any way interfere with or in the least embarrass the operations of any of the Departments of the Federal Government. But the Federal Government and the States sustain a relation in respect to this grant, important to be considered. Congress declared, in the Nebraska enabling Act, "That no taxes shall be imposed, by said State, on lands or property therein, belonging to or which may hereafter be purchased by the United States." 13 Stat. at L., 49. This would probably be the law without this enactment. The implication then is, that as to property not belonging to the United States, the State may tax it or not at pleasure. Mr. Justice Miller delivered the opinion of the court: By the 19th section of the Act of July 2, 1864, 13 U. S. Stat., 365, which was an Act to Amend the Act of 1862, organizing the Union Pacific Railroad Company, and granting That "selecting and conveying" do not mean it a subsidy in lands and bonds, there was registers' and receivers' fees, is apparent in an- granted to the Burlington & Missouri River other view of the matter. The law provides Railroad Company, for the purpose of aiding that these officers shall receive for their servit in building a road from a point of its road ices all moneys that shall come into their in Iowa on the Missouri River, to a junction hands as fees, to an amount not exceeding $3,000 per annum each. Yet this section says: "All money shall be used in the prosecution of surveys.' with the Pacific Railroad, every alternate section of public land designated by odd numbers, to the amount of ten sections per mile on each side of said railroad in the line thereof, not sold, reserved or otherwise disposed of, and to which no preemption right had attached. Section 21 of the Act declared that, before conveyed to the company, the cost of surveying, selecting and conveying them should first be paid into the Treasury of the United States. After this payment, it would seem that the equitable title was complete, and that what follows relates only to the exigencies of the legal title, such as payment of registers' and re-any of the lands granted by the Act should be ceivers' fees, issuing and recording patent, etc. If these views are correct, it follows that the case does not fall within the principles laid down in the Prescott case, that neither the 3d section of the Act of 1862 nor the 21st section of the Act of 1864 contain anything to defeat the right of the State to tax these lands. These fees are not called for by the words "selecting and conveying," in the 21st section of the Act of 1864. So thought the Circuit Judge. The appellant in this case, who is a citizen of Massachusetts, filed his bill in the Circuit Court of the United States for the District of Nebraska, against the Burlington & Missouri River Railroad Company, and certain Counties and the Treasurers of those Counties in Nebraska, to obtain an injunction against the latter, to prevent their collecting taxes which they had levied on the lands granted by the 19th regulations of the Land Department, it would section of this Act. He alleges himself to be seem an appropriate one for a Federal Court a stockholder in the company; that it is about to answer. to pay these taxes, notwithstanding his protest and remonstrance; that the lands on which they are assessed are not liable to taxation under state authority, and he, therefore, prays for relief. The grounds of objection are the same taken in the case recently decided here, of Union Pacific R. Co. v. McShane, ante, 747, namely: that the lands are now, or may become within three years from the completion of the road in 1872, subject to the preemption clause of the 3d section of the original Act of 1862, and that the cost of selecting, surveying and conveying the lands had not been paid at the time of their assessment for taxes of the year 1872, these being the taxes in contest. In order to bring these lands within the preemption clause, it is necessary to maintain that the grant of the Burlington & Missouri River Railroad Company, because it is found in the amendatory Act of 1864, is governed by the preemption clause of the original Act of 1862. The circuit court held that the proposition was not sound, and a large portion of the argument in this court was made in its support. It is unnecessary to decide it here; as we have decided in the case of Union Pacific R. Co. v. McShane, just referred to, that this clause cannot be made the foundation of any exemption from state taxation; and referring to that case for the grounds of the decision, we dismiss that branch of the case before us. In regard to the other ground of exemption claimed in the bill, we find ourselves embarrassed by two very troublesome questions. If their solution is essential to a decision of the case, as was assumed in the argument, they arose in this way: the costs of surveying the lands mentioned in this bill were paid on the 7th of March, 1872, and the fees of the Register and Receiver of the Land Office, which are said to be the costs of selecting the lands, were paid on the 19th and 20th days of April. It is argued by the appellant, that the time to which all assessment for taxation of lands in Nebraska relates, is fixed by the Statute of that State on the first day of March of each year, and if this be not true, that no land can be taxed for any year which was not liable to taxation when the power of the precinct assessors expired, after their meeting on the first Monday of April, for the purpose of equalizing the assessment; or at the latest, after the session of the County Commissioners, on the third Monday in April, for the same purpose. It is alleged that the costs of surveying were not paid at the time first mentioned, and the costs of selecting and conveying were not paid until after the meeting of the County Commissioners for the year 1872 had adjourned. The two questions of difficulty are: 1. What is the latest period at which, by the laws of Nebraska, the right to assess lands for taxation can be exercised for any given year? 2. What are the costs of selecting and con476*] veying the lands of these railroad companies, mentioned in the 3d section of the Act of 1864? As the latter question is one to be solved by the Acts of Congress or by the rules and But the lands granted to railroads generally by Acts of Congress are the alternate sections on each side of the road within a certain limit and, therefore, when the surveys are made and the line of the road laid down by protraction through these surveys, the sections and parts of sections are at once determined; and there is no choice or selection to be made. It is true that, by some statutes and especially by the one granting the lands in question where it is found that any odd section which would otherwise go to the company has been disposed of or preempted, the Company may take other lands in place of it, and this it may select within certain distances from the road. But the selection, in such case, is made by the Company, and it is difficult to imagine what costs the government incurs in the selection which is to be paid by the Company "into the Treasury of the United States." These lands thus selected in lieu of others also are such small part of the whole grant that the costs of selection could not amount to much, and the record in the case does not enable us to determine what particular parcels are of this character. The Act of July 1, 1864, 13 Stat. at L., 335, enacts that the register and receiver of the land office in which the lands granted to States and corporations for railroad and other purposes are located, are entitled to receive from such corporations a fee of $1 for each final location of one hundred and sixty acres, to be accounted for as other fees are, with limitations of maximum salary prescribed by law. Counsel for appellant insists that these are the costs of selection referred to in section 21 of the amendatory act of 1864, but those costs were to be paid into the Treasury, and these are to be paid to the registers and *re- [*477 ceivers. Unless these officers receive fees beyond the maximum salary allowed to them, these fees would not go into the Treasury, and certainly are not paid into it by the Company, as that Act requires the cost to be paid to which it refers. Again; these fees are to be paid on all the lands located, which may fairly be construed to be all the lands ascertained to belong to the Company under a grant, while the costs spoken of in the 21st section are the costs of selection, which can properly apply only to lands where a choice or option employing exercise of judgment has been used. Still, as these are the only costs or expenses which counsel on either side has been able to suggest as the costs of selecting the lands within the meaning of the statute, it is unsafe to say they are not the costs referred to. There is equal uncertainty about what is meant by the costs of conveying the lands by the government. The conveyance is by patent, and we have been shown no statute which authorizes a charge or fee for issuing the patent, nor was counsel on either side able to refer us to any such, though both were familiar with the operations of the Land Department in the West. Turning from this difficulty to the question of the time to which the taxability of property, real or personal, relates under the laws of Ne |