City of Watertown, 19 Wall. 107 [86 U. tk. 22, L. ed. 72], a federal court, sitting Zity, was asked, in the absence of a levy, bject the property of the taxpayers of a the payment of complainant's judgments Sit, and that the marshal of the district empowered to seize and sell so much of their *perty as might be necessary for the satisfacsuch judgments. In other words, the was asked to make a levy of taxes. And Bey. Levee Commissioners, 19 Wall. 655 C. S. bk. 22, L. ed. 223], it appears that of bonds issued by the levee commis-no judgment at law having been rered on the bonds, nor any attempt made to eet the amount due by suit in a common-law brought a suit in equity, and prayed the commissioners be required to assess lect the tax necessary to pay the bonds rest, and if, after reasonable time, they to do so, that the district judge of the who was by statute authorized to levy dear when the commissioners failed to do so, dered to make the levy. It was decided the power of taxation belonged to the legisot to the judicial branch of the governthat, in that case, the power must be defrom the Legislature of the State; if the own as Levee Commissioners had, by tion of their members, ceased to exist, dy was in the Legislature either to assess by special statute, or to vest the power esther tribunal; that, in any event, a court was without power to levy and & tax authorized by a state law. That the extent of the decision in that case Ain State Railroad Tax Cases, 92 U. S. Led. 615, 674], where, referring to The Levee Commissioners, it was said: of taxes is not a judicial function. aese, by the Constitutions of all the by the theory of our English origin, vely legislative."

The

| they are under legal obligation to pay.
collection of these sums will not interfere with
any discretion with which the Allen County
Court is invested by law; for, by its own order,
made in conformity with the law of the State,
and by the judgment in the mandamus proceed-
ings, the sums due from the individual defend-
ants, and from other taxpayers, have been set
apart for the payment of Thompson's judg
ments. Those sums, when collected, cannot
be otherwise used. As the county court can-
not find anyone who will accept the office of
special collector, and as the parties agree that
there is no mode of collecting the sums set apart
in the hands of the individual defendants and
other taxpayers, for the payment of Thomp-
son, I am unable to perceive why the circuit
court, sitting in equity, may not cause these sums
to be applied in satisfaction of its judgments at
law. The plaintiff has no remedy at law; for,
the common-law court in rendering judgment
has all that it can do, and the local tribunal, by
levying the required tax and seeking the aid of
a special collector to collect it, has done all that
it can do. There is no suggestion, or even pre-
tense, that the taxpayers who are sued dispute
the regularity of the assessment made against
them by the county court. Admitting their
legal liability for the specific amounts assessed
against them, and conceding that what they
owe must, when paid, go in satisfaction of
Thompson's judgments, they dispute the au-
thority of any judicial tribunal to compel them
to pay it over. With money in their hands,
equitably belonging to the judgment creditor,
they walk out of the court whose judgments
remain unsatisfied, announcing, in effect, that
they will hold negotiations only with a "spe-
cial collector," who has no existence.

Levee Commissioners, 93 U. S. 23. L. ed. 8931, the court was asked by the process of mandamus, a board Commissioners, the members of which d, to assess and collect a tax for the of a certain judgment against the if that could not be done, that the of the parish be required to make Cent and collection; or, if that could Mere, that the United States Marshal be required to assess at once or by infrom year to year, and collect suffiates apon the property subject to taxation poses to pay the judgment. It was amandamus could not issue, because

That the court below, sitting in equity-after
it has given a judgment at law for money, and
after a return of nulla bona against the debtor-
may not lay hold of moneys, set apart, by the
act of the debtor, in the hands of individuals ex-
clusively for the payment of that judgment, and
which money, the parties agree, cannot be
otherwise reached than by being brought into
that court, under its orders, is a confession of
helplessness on the part of the courts of the
United States that I am unwilling to make. I,
therefore, dissent from the opinion and judg
ment in this case.
True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. S.

levee commissioners had become NORTHERN PACIFIC R. R. CO., Appt.,

wabody, and that the court had no gen

v.

to commission the marshal to levy IVER L. ROCKNE, County Treasurer of

e parpose of satisfying a judgment. only establish the doctrine that of taxes is not a judicial function. me that the granting of relief to * will not, in any degree, disturb the Anounced in the foregoing cases.

task the court to usurp the funcng taxes. That duty has been perthe only tribunal authorized to do County Court of Allen County. uns to be done, except to collect *27das specific sums of money which

Traill County.

(See S. C.," Northern Pac. R. R. Co. v. Traill Co."
Reporter's ed., 600-611.)
Public lands-grant to Northern Pacific Rail
road Company-right of Territory to tax.

1. The lands granted to the Northern Pacifio
Railroad Company are not subject to taxation by
the local authorities while the legal title remains
in the United States as security for the payment
of the cost of surveying them.

2. The Act of 1870 requiring the payment of

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[600]

these costs by the Company, is valid, though the | S. bk. 22, L. ed. 554); Cent. Pac. R. R. Co. v. original grant imposed no such condition. [No. 690.]

Desct Court of Traill County, for the purpose of enjoining the authorities of that counfrom enforcing the collection of taxes asassed on lands of the Company, on the ground by law and the Acts of Congress to be after considered, they were not subject to The district court made a finding of the facts in the case, on which it declared the law to be for the defendant, and dismissed On appeal to the supreme court of Territory, the case was twice argued, and, the membership of that court was tanged by the substitution of two new judges bretiring judges between the two hearthe court was, in each instance, equally ed, and the judgment it rendered of affirmSad but the assent of two judges out of who had heard it argued.

The Railroad Company claims that the lands 3 pastion are not taxable under the decisions court in the cases of the Railway Co. v. 16 Wall, 603 [83 U. S. bk. 21, L. ed. ad R. Co. v. McShane, 22 Wall. 444 [89 7. 8. bk. 22, L. ed. 747].

In those cases taxes levied on lands granted gress to aid in building the roads were to be void by reason of the fact that the companies, nor anyone for them, to the United States the costs of surthose lands by the government. The the first case had been levied by aues of the State, under the laws of Kanand in the second by like authorities of the of Nebraska. The lands had originally been granted to on Pacific Railroad Company and other es, to aid in building a road from the state line to the Pacific Ocean, by an of Congress approved July 1, 1862. The y to which the grant was made for ach of the road in Kansas was already sace, and the company which received at to build the main road, namely: Pacific Railroad Company, was red by this Act, and the corporators imtely organized under it. In the year 1864 Congress, by an amendatory Act, ditional grants to the companies, and Several changes in the charter or original of which, found in section 21, reads

That before any land granted by this Act veyed to the said company or party thereto, there shall first be paid Treasury of the United States the cost g, selecting, and conveying the tul company or party in interest, as #tail be required by said company."

- L. 385.

case of R. Co. v. Prescott, which rit of error to the Supreme Court of this court held these lands could not red and sold for taxes under state laws cost of surveying them was paid to ed States, because the government reeral title to the same to compel this The case was decided in 1872. the case of the R. Co. v. McShane, reus, involving the same question, Be it also involved some other points Cov. Prescott, which the court red and overruled, it necessarily reconsideration, the result of which

was to reaffim the proposition that, until the
United States was reimbursed for the expenses
of the survey of those lands, they were not sub-
ject to state taxation.

By an Act approved also July 2, 1864 (13
Stat. at L. 365), Congress passed a law charter-
ing the Northern Pacific Railroad Company to
construct a road from Lake Superior to Puget's
Sound, on the Pacific Coast, by the northern
route, and made a munificent grant of the pub-
lic lands to aid in this construction. The terms
of the grant and its conditions were much the
same as the original grant of 1862 to the Union
Pacific Company and its branches. It con-
tained the following provision:

"Sec. 20 And be it further enacted, That the better to accomplish the object of this Act, namely: to promote the public interest and welfare by the construction of said railroad and telegraph line, and keeping the same in working order, and to secure to the government at all times (but particularly in time of war) the use and benefits of the same for postal, military, and other purposes, Congress may at any time, having due regard for the rights of said Northern Pacific Railroad Company, add to, alter, amend, or repeal this Act."

And in 1870, when making the appropriation for the survey of these lands within the limit of the grant to the Northern Pacific Railroad Company, Congress added this proviso: "That before any land granted to said Company by the United States shall be conveyed to any party entitled thereto under any of the Acts incorporating or relating to said Company, there shall first be paid into the Treasury of the United States the cost of surveying, selecting, and conveying the same by the company or party in interest." 16 Stat. at L., p. 305. It will be seen that this language is almost identical with section 21 of the Act of 1864 concerning the lands granted to the Union Pacific Company which was construed in R. Co. v. Prescott and in R. Co. v. McShane. As the principle of the exemption of these lands from taxation until the costs of surveying them was paid received the full consideration of the court in two cases argued and decided two years apart, and as it received the unanimous approval of the court, it must govern the present case, unless a distinction can be shown.

Such distinction is relied on, and has received the support of a decision of the Supreme Court of Minnesota in the case of Cass Co. v. Morrison, 28 Minn. 257. It is there held that the company, having built its road and earned the lands, had thereby acquired a complete equitable title, with right to demand a patent, though the costs of survey had not been paid, and this equitable title was subject to taxation.

It was also held that because the requirement to pay these costs was made in 1870, six years after the original grant, it was void as an unconstitutional exercise of power by Congress.

But we think that the clause authorizing Congress to add to, alter, amend, or repeal the Act of 1864, clearly conferred this power on Congress, especially when exercised, as in this instance, before the Company had built a mile of road, or earned an acre of land, or in any other manner secured an equitable right to the lands. Sinking Fund Cases, 99 U. S. 719 [Bk. 25, L. ed. 501].

[608]

[609]

At all events, the holder of the equitable title to these lands has a right to prevent a sale which would have the effect of impeding the United States in the assertion of her right to them until these costs are paid.

But this very question, in a little different | fer such a title, it is because there exists no auform, was raised and decided in R. Co. v. Pres- thority to make it. cott, 16 Wall. 608 [83 U. S. bk. 21, L. ed. 374]. In that case the original grant, made in 1862, contained no provision about the payment of the costs of survey. The Act of 1864, which did contain this provision, added very largely to the area of the land granted by the Act of 1862, and the opening sentences of the opinion state the proposition whether the requirement that the costs of surveying must be paid before the patent shall issue, covers all of both grants or only that of 1864, and it is held that it covers both. We think this governs the present case. Independently of the clause of the Act of 1864 authorizing amendments, additions and repeals, we think that, until the lands were earned, and other acts that the law demanded that the Company should do had been done, it had no such right in the lands as would prevent Congress from passing a remedial provision so eminently just as the one under consideration.

We are aware of the use being made of this principle by the companies, who, having earned the lands, neglect to pay these costs in order to prevent taxation. The remedy lies with Congress and is of easy application. If that body will take steps to enforce its lien for these costs of survey, by sale of the lands or by forfeiture of title, the Treasury of the United States would soon be reimbursed for its expenses in making the surveys, and the States and Territories, in which the lands lie, be remitted to their appropriate rights of taxation. The courts can do no more than declare the law as it exists.

The decree of the Supreme Court of the Terri tory of Dakota is reversed and the cause remanded, with directions to cause a decree to be Again, it is said that, since the road was built entered perpetually enjoining the Treasurer of before this tax was levied and the Company had Traill County from any further proceeding to earned the land, its equitable title was com-collect the taxes in the bill mentioned. plete, and according to the decisions of this court, it was subject to taxation.

The same point was urged in R. Co. v. Prescott. But the court said that "this doctrine was only applicable to cases where the right to the patent is complete, the equitable title fully vested, without anything more to be paid or [61C] any act to be done going to the foundation of the right." But it added, in that case, that two important acts remained to be done, the failure to do which might wholly defeat the company's title. One of these was payment of the costs of surveying.

It may be well to restate the grounds on which this decision rests.

The United States made a magnificent grant to this Company, of lands equal in quantity to forty or fifty thousand square miles, an area as large as an average State of the Union. It thought proper to require of the grantee the payment of the costs of making the surveys necessary to the location and ascertainment of these lands. To secure the payment of those expenses, it decided to retain the legal title in its own hands until they were paid. The government was, as to these costs, in the condition of a trustee in a conveyance to secure payment of money. But, if the land was liable to be sold for taxes due to state, territorial or county organizations, this security would be casily

lost.

No sale of land for taxes, no taxes can be assessed on any property, but by virtue of the sov ereign authority in whose jurisdiction it is done. If not assessed by direct Act of the Legislature itself, it must, to be valid, be done under authority of a law enacted by such Legislature. A valid sale, therefore, for taxes, being the highest exercise of sovereign power of the State, must carry the title to the property sold, and if it does not do this, it is because the assessment is void. It follows that if the assessment of these taxes is valid and the proceedings well conducted, the sale confers a title paramount to all others, and thereby destroys the lien of the United States for the costs of surveying these lands. If, on the other hand, the sale would not con

True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. 8. Cited-117 U. S. 109.

DAVIS SEWING MACHINE COMPANY,
OF WATERTOWN, N. Y., Piff. in Err.

ALMARIN C. RICHARDS ET AL., EXTS. O
ANDREW ROTHWELL, Deceased, and AL
MARIN C. RICHARDS.

(See S. C., Reporter's ed., 524-527.) Guaranty when acceptance of, required.

1. A guaranty, signed by the guarantor withou any previous request of the other party, and in hi absence, for no consideration moving between ther debtor, is in legal effect an offer or proposal on th except future advances to be made to the princip part of the guarantor, which requires an accept ance to complete the contract.

The rules stated in Davis v. Wells, 104 U. S. 154 bk. 26, 686, applied.

[No. 49.] Argued Nov. 10, 11, 1885. Decided Dec. 7, 188

N ERROR to the Supreme Court of the Di

trict of Columbia.

The history and facts of the case appear i opinion of the court.

NOTE.-Guaranty: notice of acceptance; whe necessary to render quarantor liable. See Davis Wells Fargo & Co., 104 U. S., 159, bk. 26, 686, whe the subject is fully considered. See also Edmonst v. Drake, 30 U. S. (5 Pet.), 624, bk. 8, 251, no King v. Batterson, 13 R. I., 117; Thompson v. G ver, 78 Ky., 193: Taylor v. Shouse, 73 Mo., 361: PL ter v. Green, 28 Kan., 252; Wilcox v. Draper, 12 Ne 138, Crittenden v. Fiske, 46 Mich., 70; Duncan v. H ler, 13 S. C., 94: Milroy v. Quinn, 69 Ind., 406; Kl v. Raymond, 70 Ind., 271; Newbury Bank v. Sincla 60 N. H., 100.

Some of the recent cases in the state courts a

Continuing guaranties, what are. See Dru mond v. Prestman, 25 U.S. (12 Wheat.), 515, bk. 6, 7 note.

for the benefit of another, and wishes to restrict "If one proposes to lend his credit as guarant liability to a particular transaction, he should ta

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