THE STATE OF NEVADA, Respondent, v. THE CENTRAL PACIFIC RAILROAD COMPANY, Appellant
State v. Central Pacific Railroad
THE STATE OF NEVADA, Respondent, v. THE CENTRAL PACIFIC RAILROAD COMPANY, Appellant.
[No. 1331.]
THE STATE OF NEVADA, Respondent, v. THE CENTRAL PACIFIC RAILROAD COMPANY, Appellant.
, , Taxation — Unsurveyed Public Lands. — Unsurveyed public lands nequirod by the appellant under the acts of congress of July 1,1862, and are from taxation by the state.
Idem — Description op Unsurveyed Lands. — A description of unsnrveyed lands as certain odd numbered sections “as their designation will appear when the surveys of tho government are extended over them” is insufficient for their identification for taxation and is not such a description as is required by the revenue laws of Nevada. Tliis principle applies equally when it is only the possessory claim to the land that is assessed.
Idem — Taxes Upon Subdivisions. — The law permits and the taxpayer has a right to pay tho tax on subdivisions of his property without paying the taxes upon his entire property.
Idem — Sufficiency of Answer. — In an action to recover delinquent taxes and penalties an answer denying a possessory claim to the lands and stating facts showing that the rights claimed are untaxable, presents a good defense, although it does not deny all claim, title or interest in tho property assessed. (Concurring opinion of Bigelow, J.)
Idem — Tender—Duty of Tax Receiver. — It is the duty of the tax receiver to receive tho full taxes on the least subdivisions entered on the assessment roll, when properly tendered, ami to give ids receipt therefor. When a public officer has been clothed by statute with power to do an act which concerns tho rights of third persons, the execution of the power may be insisted on, though tho phraseology of the statute be permissive merely, and not peremptory. (Concurring opinion of Bigelow, J.)
Appeal from the District Court of the State of Nevada, Lander ■ county.
A. L. Fitzgerald, District‘Judge.
The facts sufficiently appear in the opinion.
Baker & Wines, for Appellant.
I. The court erred in ordering judgment for respondent for the whole amount of the tax together with all of the statutory penalties added thereto. The taxes alleged to be due from appellant upon all of the property assessed, except upon the lands described upon the assessment roll, were all unconditionally tendered prior to the time when penalties could have been added, .and were subsequently paid upon written demand of tlie tax collector. A tender, if kept good, and if in all respects sufficient, is the same as payment, and relieves a party making such tender from the payment of interest or penalties upon the amount tendered. (Shields v. Lozear, 22 N.. J. Eq. 447.) A tender, so far as the computation of interest is concerned, must be considered as payment. The same must be true as to statutory penalties for alleged non-payment of taxes. (Hidden v. Jordan, 39 Cal. 61.) A tender will defeat a lien. (Tiffany v. St. John, 65 N. Y. 314; Green v. Fry, 93 N. Y. 353.)
II. Prior to July 10, 1886, the supreme court of the United States had several times decided that lands embraced in the grants to the Pacific railroads were not taxable by the state authorities until the costs of making the surveys had been paid by the railroad company. (R. R. Go. v. McShane, 22 Wallace, 444; R. R. Go. v. Trail Ooiuity, 115 U. S. 600.) The act of congress of July 10, 1886, in terms does not apply to lands unsurveyed. A want of power to tax unsurveyed lands still exists. The lands cannot be identified, and the government grant does not attach until such lands are identified. The purpose of congress was, no doubt, to preserve the subject matter subject to the lien of the government. Therefore, we insist that these lands are not taxable. There cannot be a legal identification until the lines dividing the even from the odd numbered sections are run. (Bulloclc v. Rouse, 81 Cal. 590; United States v. Gurtner, 38 Fed. 1 and 9; Whitney v. Gunderson, 31 Wris. 359, 380, 381, 382.)
III. Every character of possession mentioned in the statute as being the subject of taxation, must be an actual possession, and not the constructive possession, which follows the legal title. A constructive possession is not the subject of taxation. To tax that is simply to tax the title. A constructive possession can not exist iu the absence of title. (Hersee v. Porter, 100 N. Y. 403; Hale & Norcross G. & S. M. Go. v. Storey Go., 1 Nev. 104; State v. Moore, 12 Cal. 56; People v. Shearer, 30 Cal. 645; People v. Frisbie, 31 Cal. 146; People v. Cohen, 31 Cal. 210; Peoples. Crockett, 33 Cal. 150; People v. Castro, 39 Cal. 65, 69; Riley v. Lancaster, 39 Cal. 354; People v. Black Diamond, 37 Cal. 54; Barrett v. Amerein, 36 Cal. 322.)
IY. It was a palpable error for the court to deny the application of appellant to remove the cause to the circuit court. If tbe title, or that which depends upon title, is sought to be taxed, the power to do so depends upon a construction of the acts of congress, before cited; and which clearly involves a federal question. (Speer on Removal, pp. 28-30; Dillon on Removal, p. 91, Sec. 76; R. R. Co. v. Mississippi, 102 U. S. 135; Slarin v. New York, 115 ü. S. 248; Germany I. Go. v. Wisconsin, 119 ü. S. 473.)
J. F. Alexander, Attorney General, W. D. Jones, District Attorney of Lander county, and Henry Mayenbaum, for Respondent.
I. The amendment to the answer cannot be considered. It is no part of the judgment roll. It was filed without leave of court, without motion or notice and without complying with rule 17 of the district court. (Winter v. Winter, 8 Nev. 134; Smith v. Yreka Water Go., 14 Cal. 201; Ilaydon v. Haydon, 46 Cal. 337; Harney v. Gorcor'an, 60 Gal. 317; Martins. Thompson, 62 Cal. 619; 3 Esteems Plead. 4447-4452.)
II. The court minutes cannot be brought here except by statement. (Gorbeit v. Job, 5 Nev. 205; Imperial v. Barstow, 5 Nev. 253-254; Caldwell v. Greely, 5 Nev. 202; Irwin v. Samson, 10 Nev. 282; Simpson v. Ogy, 18 Nev. 28.)
III. There is no federal question in the case. (Murdock v. Memphis City, 20 Wall. 638; Insurance Go. v. Henderson, 92 U. S. 286; Theurlcauf v. Ireland; 11 Saw. 514; Bowel v. Griswold, 5 Saw. 39; Garson v. Dunham, 121 U. S. 422-429; Gold Washing Go. v. Keyes, 96 U. S. 199; Berger v. Douglas County, 5 Fed. 23; Davenport N. Bank v. Mittelbuscher, 15 Fed. 225; KirtlandY. Hotchkiss, 100 U. S. 491; Memphis Gas Go. v. Shelby Go., 109 U. S. 398; Manhatten R. Go. v. New York, 18 Fed. 195; Slarin v. New York, 115 U. S. 248; Romie v. Casanova, 91 U. S. 379; McStay v. Friedman, 92 TJ. S. 723; Trafion v. Nougues, 4 Saw. 180; Hoadley v. San Fi'ancisco, 94 ü. S. 4; Austin v. Gayan, 39 Fed. 626; San Francisco v. Itsel, TJ. S. S. C. 1889, 33 L. R. 570; Beatty v. Benton, ü. S. S. C., 10 S. C. Rep. 747.)
IV. This action is a case arising under the revenue laws of this state, and it does not matter whether defendant has title. The assessment is under our statute requiring the assessment of possessory claims to lands and the state has power to tax such possessory claims. (Gen. Stat. of Nev. 1080, 1081 and 1088; People v. Shearer, 30 Cal. 645; Kirlland v. Hotchkiss, 100 U. S. 491; People v. Cohen, 31 Cal. 210; Gold Washing Oo. v. Keyes, 96 U. S. 199; People v. B. D. O. M. Go., 37 Cal. 54; Memphis •Gas Go. v. Shelby Go., 109 U. S. 398; Berger v. Douglas Go., 5 Fed. 23; People v. Crockett, 33 Cal. 150; Davenporl N. Bank v, Mitlelbuscher, 15 Fed. 225; Wright v. Gracllebough, 3 Nev. 346.)
V. The description of the lands in the complaint is sufficient. (Gen. Stat. 1088; People v. Crockett, 33 Cal. 150; High v. Shoemaker, 22 Cal. 363; Bosworlh v. Damien, 25 Cal. 296; Wright v. Boseberry, 121 U. S. 501; Stale v. G. P. R. R, Go., 10 Nev. 48, 62; State v. G. P. R. R. Go., 22 Pac. Rep. 339.)
VI. The answer of defendant, and the amendment to the answer, are not sufficient to raise an issue under 1108 Gen. Stat. There is no denial of “all claim, title or interest in the property assessed.” (Stale v. G. P. R. R. Go., 9 Nev. 87-90; Slate v. Tel. Go., 4 Nev. 345-6; People v. Pearis, 37 Cal. 259; People v. Frisbie, 31 Cal. 146; State v. G. P. R. R. Go., 22 Pac. Rep. 240; Robinson v. Gaar, 6 Gal. 273; Stale v. Sadler, 23 Pac. Rep. 799.)
VII. The tender was only on part of the property assessed against the company and is not good, therefore the penalties attached. The whole of the taxes must be tendered. The action for taxes on all of the property assessed against an individual is entire and the whole tax must be paid or tendered. (Slate v. Gal. M. Go., 13 Nev. 293; Staley. Yellow Jacket, 14 Nev. 247; Stale v. Carson Sao. Bank, 17 Nev. 147, 165; Slate v. G. P. R. R. Go., 9 Nev. 87, 90; Wells, Fargo & Go. v. Dayton, 11 Nev. 162; 2 Desty’s Taxation, 815, 722; Cooley’s Taxation, 323.)
VIII. The statute provides that “ no ex-officio tax receiver shall receive any taxes for any portion less than the least subdivision entered upon the assessment roll.” This implies that the treasurer may demand all. (Endl Interp. of Stat. p. 557, n.; Hankins v. People, 106 111. 628; Drake v. Stale, 5 Tex. App. 649; Chiles v. Stale, 2 Tex. App. 36.)
IX. Every mile of its road and every acre of its lands is separately liable for all of the taxes assessed against' the company. (1 Elac swell’s Tax Titles, S. 4”9; Cooley’s Taxation, 323; 2 Desty’s Taxation, 815; Drigger v. Gassady, 71 Ala. 529; Rinard v. Nordyke, 76 Ind. 130; Meslcer y. Koch, 76 Ind. 68; Ludlow v. Ludlow, 109 Ind. 199; Gavey. Houston, 65 Tex. 619; Yuba y. Adams, 7 Cal. 36; Cowell v. Washburn, 22 Cal. 522; Heave, v. Kennedy, 43 Cal. 653; Tnwl Go. v. Young, 39 N. W. Rep. 116; Stale v. G. P. B. B. Go., 9 Nev. 87.)
By the Court.
Belknap, C. J.:
This is an action for the recovery of delinquent taxes assessed against the real and personal property of the defendant situated in Lander county. Included in the list of assessed property is a large quantity of unsurveyed land. The principal question in the case is whether land of this character is taxable or not. These lands were acquired by the railroad company under acts of congress of July 1, 1862, and July 2, 1864. The act of July 2, 1864, provides as follows : "Sec. 21. That before any land granted by this act shall be conveyed to any company or party entitled thereto under this act, 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 or party in interest as the title shall be required by said company, which amount shall, without any furtner appropriation, stand to the credit of the proper account, to be used by the commissioner of the general land office for the prosecution of the survey of the public lands along the line of railroad, and so from year to year, until the whole shall be completed, as provided under the provisions of this act." (13 U. S. Stat. at Large, 365.)
In the case of Railway Co. v. McShane, 22 Wall, 462, the court, in considering this provision, said : " 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 incomplete. 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.
The reason of this rule is also fully applicable to this case. The United States retains the legal title by withholding the patent, for the purpose of securing the payment of these expenses, and it can not bo permitted to the states to defeat or embarrass this right by a sale of the lands for taxes. If such a sale could be made, it must be valid if the land is subject to taxation, and the title would pass to the 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 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 opiuion that, where the original grant has been perfected by the issuance of the patent, the right of the state to tax, like the right of the company to sell, the lands, has become perfect."
Again, in the case of Railroad Co. v. Traill Co., 115 U. S. 607, these principles were reaffirmed. Said the court: "In the case of Railway Co. v. Prescott, which was a writ of error to the supreme court of Kansas, this court held these lands could not be assessed and sold for taxes under state laws until this cost of surveying them was paid to the United States, because the government retained the legal title to the same to compel this payment. This case was decided in 1872. In 1874, the case of Railway Co. v. McShane came before us, involving the same question, and because it also involved some other points decided in Railway Co. v. Prescott, which the court reconsidered and overruled, it necessariR received full consideration, the result of which was to reaffirm the proposition that, until the United States was reimbursed for the expenses of the survey of those lands, they were not subject to state taxation."
Advantage was taken of this interpretation of the law to escape taxation by neglecting to pay the costs of surveys. To obviate the difficulty, congress enacted " that no lands granted to any railroad corporation by any act of congress shall be exempt from taxation by states, territories and municipal corporations, on account of the lien of the United States upon the same for the costs of surveying, selecting and conveying the same, or because no patent has been issued therefor; but this provision shall not apply to lauds unsurveyed." (U. S. Stat. at Large, 1886, p. 143.)
This is the only enactment of congress waiving the lien of the government upon railroad lands for the purpose of state taxation. A reason for withholding the right to tax unsurveyed lands may be found in the fact that it is impracticable to assess them. It is a well-established principle of law that land as sessed for the purpose of taxation must be so described that it may be identified. The purposes of this requirement, as stated by Judge Cooley, are: " First, that the owner may have information of the claim made upon him or his property; second, that the public, in case the tax is not paid, may be notified what land is to be offered for sale for the non-payment; and, third, that the purchaser may be enabled to obtain a sufficient conveyance." (Cooley, Tax'n. 284.)
The lands granted to the railroad company wore the odd-numbered sections within the limits of twenty miles on each side of the railroad, except such as had been sold or otherwise disposed of by the United States, or to which a homestead or pre-emption claim had attached, or mineral lauds. Until the surveys are made it cannot be known what parts of the lands are within the enumerated exceptions, nor what sections or parts of sections will belong to the company, nor until then, can the locality of the lands be determined so that a description may identify them. The exemption enforces the principle that lands may not be assessed for taxation unless described so that they may be found. It is said, however, that the possessory interest of the defendant is taxable under the revenue laws of the state, independently of the land itself, or the title to it. It must be borne in mind that the unsurveyed lands are not described by metes and bounds, or by common designation or name, but as sections and parts of sections, and, as alleged by the complaint, "as their designation will appear when the surveys of the United States are extended over them."
It is plain that this is not a description by which the identity of the lands can be established, and it is equally plain that possession of lands so described cannot be established until the surveys are made. The reasons suggested as having induced congress to exempt unsurveyed lands from taxation will exclude a possessory interest in such lands from taxation when described only " as their designation will appear when the surveys of the government are extended over them."
The answer of defendant alleges tender and payment of the tax imposed upon all of the assessed property described in the complaint other than lands. Defendant had the right, under the statute (Gen. Stat. Sec. 1096) to pay the taxes upon any subdivision of its property entered upon the assessment roll. And no judgment for taxes or penalties should be entered against defendant by reason of its ownership of property, tlie taxes upon which have been paid in conformity with this provision of the statute.
A motion has been made in this court to amend the record by striking out a pleading entitled "Amendment to Answer." The motion is denied upon the authority of the following eases: Satterlee v. Bliss, 36 Cal. 521; People v. Romero, 18 Cal. 93; Boston v. Haynes, 31 Cal. 107; Bonds v. Hickman, 29 Cal. 464; Boyd, v. Burrel, 60 Cal. 280. A similar answer was considered insufficient in the case of People v. Pearis; 37 Cal. 259. It is unnecessary for us, however, to rule upon the point, as the complaint states the facts upon which our decision is based.
Judgment reversed, and cause remanded.