Bismarck weekly tribune. [volume] (Bismarck, Dakota [N.D.]) 1884-1943, 1891-10-23
Judge Caldwell Files an Opinion in
the Famous Northern Pacific {
Tax Cases.
at Is in Favor of the Counties, and
the Railroad Must Pay
the Taxes.
Tempo airy Injunction Which
Was Previously Granted Was
Dissolved.
Against the Northern Pacific.

I'D Judge Caldwell of the United States
Helrcuit court has filed a decision in the
Northern Pacific tax cases which have
I&een the various courts for the
past fouryears. A part of the
i ecision is as follows: The action
n brought by the Northern Pacific rail-
pad against1the county auditors of twelve
k&&ountles in North Dakota, to perpetually
a. njoin them from collecting taxes levied
{ pr the year 1888 upon that portion of
z3f place lands granted the complainant
SsGtuated in said counties. On the filing
ASg.ff plaintiffs bill a temporary restraining
sgNSrder was granted. The cause is now
Shefore the court upon a damurrer to the
ssbill.
The opinion first says that the COMMITTEES
have a right to bring a joint action, as
the issues involved were the same in all
Ceases. The opinion then proceeds to
review the grounds on which the railroad
asked a restraining order against the
lands being sold for taxes. These are
two. the first being that the lands are
not taxable. 1t is said that they are not
taxable because no patent has been
issued to the company for them, and
that the commissioner of the general
land office has required the railroad
company to file an affidavit made by
some person acquainted with the charac-
ter of the lands showing that they are
non-mineral and refuses to certify the
lands for patent until such affidavit is
fled, claiming that they are unable to
ascertain or determine whether or not the
lands are mineral in character. The
opinion then recites the act of congress
granting the lands to the Northern Paci-
nc and also averments to plaintiffs bill,
showing definite location of line, the sur
veying of lands in question by United
States surveyors and by them reported
to be non-mineral lands and agricultural
IN their character and that they were not
known as mineral lands and no mineral
other than coal or iron has ever been dis
covered upon them. The court then
says: "Assuming these averments to be
true, the lands are within the terms of
the grant and the title to them has vest
ed in the company. The reports of the
deputy surveyor of the United States
that the lands were agricultural and not
mineral lands have the force of deposi-
lions and are prima facie evidence of the
character of the lands" But it said min
eral may be discovered in some of these
lands at some future time, and when
such discovery is made it will then be
apparent such lands did not pass by the
grant. Mineral lands are undoubtedly
excluded from the grant, but there must
be time and mode of determining once
for all what lands are mineral. The de-
termination of this question cannot be
left to accidents or future ages. Mineral
lands excluded from the operation of an
act are lands known to be such at the
time the company acquired title. No
mineral has been discovered in any of
these lands to this day. Absolute title
to these lands has, therefore. vested in
1.-THE company. Discovery of mineral en-
amy of these lands in the future will not
Sredound to the prejudice of the company
but it's profit, for it will own the mineral
5Ps we'll as land. The second ground upon
which injunction is asked rests
1 he act OF the territorial legislature, ap-
proved March 8, 1889. The bill alleges
acceptance of the act by the company in
lime and place specified. This act is re-
led on as exempting the lands of the
- ompany from taxation. The conceded
language of tho act is bread enough for
his purpose, but it is contended that so
9huch of this act as attempts to do
his is in conflict with the organic act of
he territory and the Fourteenth amend
nent to the constitution of the United
Btates and therefore void. The organic
ct provides that the legislative assem-
plyy of the territory shall not pass any
NV impairing rights to private property
bor make any discrimination in taxing
itferent kinds of property, but property
[ubject to taxation "shall be taxed in
proportion to it's value" Land is one of
he subjects of taxation under the reve-
ue laws of the territory. Conceding
hat under the organic act the legisla-
IRE may Select the subjects of taxation,
nd c%onceding that it may classify pro-
eerty for the purposes of taxation, and
bat different classes of property may
valued or taxed by different methods;
esnming, but not deciding that it was
bmpetent for the legislature to provide
taxing railroads by tax on their gross
innings, the question remains whether
g act we are considering is not in ex-
kss Of the lawful exercise of any
these powers under the or
(enic act. 1t is necessary to de-
ermine the character, condition and