The Saline County journal. [volume] (Salina, Kan.) 1871-1893, 1873-05-01

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Mr.. Jqsite Miller delivered the opin-
ion of theU0urt.
This writ of error to the Supreme
Court of the State of Kansas brings be-
fore us q record involving the tight Of
thai State TO tax, under certain cireum-
stances, the land granted by Congress
|te.%his company 20 cid ie-the eeDstRse-
ton of their road.
The case was heard in the state courts
on an agreed statement of facts which
presents the simple question whether the
land was subject, in the year Of 1868, to
state taxation. II was contended by
plaintiff in error that under certain pro-
visions Of the acts granting this land it
was not.
The statue which gave alternate Sec
tons of land on each side of said road
within certain limits, provided, that q
patent should issue 10 the company on
~ As each section Of forty miles in
length should be completed and accept
ed BY the President. 1t also contained
q provision that any of these lands not
sold by the company within three years
after the final completion Of the road,
should be liable to be sold to actual set
tors under the presumption laws, at n
dollar and . quarter per acre, the money
to be paid to the company.
The original act Of 1862 was amend
ed in 1864 by extending the limits Of
the grant on each side Of the road, and
by several other provisions favorable to
the company, But BY the 21st section
of the amendatory statute it was
declared that before any of the lands
granted by the act should be conveyed
to the company, the cost of surveying,
selecting and conveying said lands
should first be paid into the Treasury of
the United States by the company or
party in interest, which amount should
stand as q fund for the prosecution Of
the surveys OF the public lands along
the line OF the road until tho whole
should be completed.
A question is raised whether the lat
ter provision requires this prepayment
of the cost OF surveying for the land
granted by the original act, or IS limited
to the lands acquired by the extension
Of the grant. Looking to the whole
scope of the amended act, and to the
provision that tho money so paid was tn
constitute fund for the continu-
ance and completion of the entire sur
veys along the road where none had
been made, we are OF the opinion that no
patent could rightfully issue in any case
until the cost of survey had been paid.
None OF the road hal been built when
i the amendatory act was passed. No
right had vested in any tracts OF
lard, and the power, as well as intent, Of
Congress to require such payment can
not be contested.
While we>recgnize the doctrine here
tofOre laid down by this court, that lands
sold by the United States may DO taxed
before they have parted with tn legal
title by issuing patent, it IS to be un-
dcrstood as applicable to cases where
right to tn. patent ia nnnPlss". and the
equitable title is fully vested in the par
ty without anything more to be paid, or
any act to be done going to the tounda-
ton Of his right.
The present case does not fall within
that principle.
Two important acts remain TO be done,
the failure to do which may wholly do
feat the right of the company to pat
ent tor these lands.
The first is payment Of the costs OF
surveying. II is admitted that this has
never been done in the present case. II
the company have such an interest in
these lands that they can be sold by the
state under her power of taxation, then
the title is Invested out of the gov
eminent without its consent, and the
right to recover the money expended in
the surveys is defeated.
As the government retains the legal
title until the company or some one in
tercsted in the same grant or title shall
pay these expenses, the state cannot
l levy taxes { the land, and under such
levy sell and make title which may in
any event defeat the right Of the federal
government reserved in the act by which
THE inchoate grant was made.
Another important and declared pur-
pose OF Congress would be equally de-
teated by the tito thus acquired under
the take sale, if it were valid.
! 1t is wisely provided, that these lands
shall not be used by the company US a
monopoIy of indefinite duration. The
policy of the government has been for
years to encourage settlement on the
public lands by the pioneers of emisra-
ton, and to this end il has passed many
laws for their benefit. This policy not
only iavors the actual settlers, but it is
to the interest of those who, by pur-
chase, own adjacent lands, that all of it
should be open to settlement and culti-
walton.
|. Looking to thispclicy and to the very
large quantity Of lands granted by this
statue 10 single corporation. Congress
declared that if the company did not
sell those lands within "a time limited
by the act they should then, without
further action of the company, or of
l.. IL