Bismarck weekly tribune. [volume] (Bismarck, Dakota [N.D.]) 1884-1943, 1898-02-04
H COUNTY WINS.
The Supreme Court Af6rms the De-
cision Of the Lower Court in
Railroad Tax Case.
Wells County Wins Its Suit Against
the Northern Pacific for De-
linquent Tax.
Many Thousand Dollars Involved by
the Decision Handed Down by
the Court Monday.
Important Decision.

Noutt Monooy.
Important Decision.
The supreme court today handed
down it's decision in the suit Of Wells
county against the Northern Pacific
railroad company, involving the legality
Of the taxes levied by the county for
the years 1887 to 1894, with penalties
and interest. The county noticed the
sale of the lands of the company under
the Wood bill, for the taxes and the
company brought suit to restrain the
sale. Judge Glaspell decided that the
taxes were legal and collectible, and the
supreme court afirms his decision, only
ordering a new judgment to conform to
the rates Of penalty and interest laid
down in the decision. The case is said
to involve about $4,000, and is one of
great interest to the county and the
company. The syllabus of the decision
is az follows:
The decision of this court in jackson
VS.. LaMoure county. IN. D.. 23S, and
Grandin vs.. LaBar, 3N. D. 446, follow
ed or the question of the taxability Of
idemnity lands of the Northern Pacific
Railroad company, before the selection
thereof has been approved by the secre-
tary of the interior. Before that time
such lands are not taxable.
Place lands are taxable after they
have been surveyed in the field al
though the plat Of survey has not yet
been filed in the local land Office, the
survey made being thereafter approved
as made, and the plat thereof being
duly filed in such Office.
In a proceeding to obtain a tax judg-
ment under chapter 81 of the laws of
1897, the failure of the county board of
equalization to meet at all is not fatal
to the tax for the reason that the act
gives the taxpayer a full hearing in the
very proceeding to enforce the tax as to
the fairness of the assessment and the
justice of the tax, and confers upon the
court the power to reduce the tax if, on
such hearing, it appears that the land
has been partially, unfairly or unequally
assessed.
So far as matters of form are con-
cerned that act is a curative law in all
cases in which the defects in the tax
proceeding have not prejudiced the tax
payer.
When, however. there is no assess
ment or levy, no tax judgment can be
rendered. The act does not vest in the
courts the power to assess property, or
levy taxes, but merely provides the ma
chinery for enforcing and sustaining
tax.
The taxes for 1890, having been as
sessed by percentages instead of in
specific amounts, as required by the act
of 1890 are void, and no tax judgments
thereon can be rendered in this proceed
ing. bartholomew, j, dissenting
1t will not defeat a tax that one OF
the items of levy of taxes for general
county purposes was stated to be 7" mis-
cellaneous expenses"
A tax lien on real estate, being de-
clared to be perpetual, no lapse of time
will bar a remedy to enforce such lien
against tho land. It follows that no
Limitation statute can be invoked as a
defense to a proceeding under the law
of 1897 to foreclose a tax lien.
Certain questions decided relating to
penalties and interest on taxes levied
prior to the act of 1890, and also on
taxes levied subsequently to that act
but prior to the time when the revised
codes took effect.
Following the decision of the federal
supreme court in McHenry VS.. Afford
decided January 3, 1893, are not YET
officially reportedO held that the taxes
against the land grant of the Northern
Pacific railroad company assessed in
1887 and 1888, are illegal, and hence
that no tax judgments therefor can be
rendered.
The opinion in the case is written by
Judge Corliss and all of the judges
concur except on one proposition where
Judge Bartholomew dissents, as notec
in the syllabus. The decision in effect
afirms the decision Of the lower court
and the legality of all the taxes except
1890, and upon the place lands for the
years 1887 and 1883 in conformity with
a recent decision of the supreme court
of the United States. The amount said
to be involved is from $4,000 tc
10000, and as Attorney J. E. John.
son Of Fargo, who represented the
SOuuIyS W SoI uoAA LAo dulOuub CO1'
lected, the fee for him.wil be a healthy
one.
The court orders a new judgment en-.
tered to conform to the rates of penalty
and interest laid down. OF this feature
the court says:
We will now take up each year separ.
ately and determine what penalties and
interest were due March 8, 1897. Under
the law in force in 1887 (section 1910
1911, Compiled Laws 1857 a penalty Of
five per cent must be added with inter.
est from the first Monday Of February
1883, at the rate of ten per cent snnum
and also in addition one pr cent pei
month to be added on the hrst Of each
month. The interest at the rate Of ten
per cent per annum will stop on January
>, 1896, this feature not being found ia
the Revised Codes. But the interest al
one per cent a month payable on the
first of each month, continues to the
eighth of March, 1897, the feature o.
the old law as to this rate of interest
having been continued in force by the
Revised Codes. Total penalty and
interest on taxes for 1887, 1872 per cent
Under Chapter 119. Laws Of. 1889, 1.-THE
interest feature of this Law being con
tinued under sections 1888 and 1858