This was an action commenced by the Northern Pacific Railroad Company against J. L. Patterson, county treasurer of Gallatin county, Mont., for an injunction to restrain the defendant from selling certain lands, blocks, and lots for taxes which have been levied thereon in the year 1889, or collecting the same, and also for a decree adjudging said taxes to be void. The complaint set out three separate and distinct causes of action; but it is not claimed that any federal question was presented by the allegations in respect of the second and third causes, and no error as to the ruling of the state court thereon was assigned in this court. The complaint asserted an interest in the lands in question under the act of congress approved July 2, 1864, entitled 'An act granting lands to aid in the construction of a railroad and telegraph line from Lake Superior to Puget sound on the Pacific coast on the northern route,' but insisted that the lands were not so segregated from the public domain and identified as a part of the lands granted by said act as to extinguish all interest of the United States therein, and render them taxable; and the grounds set up are thus stated in the brief of counsel: 'That a grant was made to the plaintiff by said act of July 2, 1864. That plaintiff definitely fixed the line of its road, and filed a plat thereof in the office of the commissioner of the general land office. That the road [154 U.S. 130, 131] was duly constructed, and was accepted by the president. That the lands involved are on and within 40 miles of the line of the road as definitely fixed, and that plaintiff has performed all the things and conditions upon its part to be done and performed to entitle it to the lands inuring to it under the grant, except that it has not repaid to the United States the cost of surveying these lands. That it is now, and has been at all times, ready and willing to pay such costs, and has so advised the United States, but is unable to repay such costs until the United States shall determine what lands are granted to it. That the lands have not been certified or patented to plaintiff, and that the United States have failed and refused to certify said lands, or to certify any lands in Gallatin county to plaintiff, for the reason that it is claimed that said lands are mineral, and are excepted from the grant; and that the question whether the title to said lands passed to plaintiff under said grant, and plaintiff's compliance therewith, is now in controversy, and pending before the commissioner of the general land office and secretary of the interior. That this failure to certify or patent these lands is solely because of their nonidentification as granted lands. That the lands granted by said act of congress to plaintiff in said county have never been segregated from the public lands or identified, and the boundaries of the specific lands granted have never been ascertained or determined.
The complaint alleged that a sale would greatly impair the rights of the plaintiff in and to the lands, and cloud its title thereto, and cause a multiplicity of suits with reference to such title, etc. The defendant demurred on the ground that [154 U.S. 130, 132] the complaint did not state facts sufficient to constitute a cause of action, which demurrer was sustained, and, plaintiff electing to stand on the complaint, judgment was entered in favor of defendant. From this judgment plaintiff appealed to the supreme court of the state, by which it was affirmed. 10 Mont. 90, 24 Pac. 704. Thereupon plaintiff sued out this writ of error.
F. M. Dudley, for plaintiff in error.
W W. Dixon, for defendant in error.
Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.
The ground upon which it was asserted that these lands were not subject to taxation was that they had not been identified as lands passing to the plaintiff under its grant, because the United States had refused to certify them, and held them suspended, 'for the reason that it is claimed that such lands are mineral, and are excepted from the grant to the plaintiff.' It was said in Railroad Co. v. Price, 133 U.S. 496, 505 , 10 S. Sup. Ct. 341, that 'he who has the right to property, and is not excluded from its enjoyment, shall not be permitted to use the legal title of the government to avoid his just share of state taxation;' and plaintiff does not state whether all or any part of the lands are mineral or nonmineral. If the legal or equitable title to the lands, or any of them, was in the plaintiff, then it was liable for the taxes on all or some of them; and the mere fact that the title might be in controversy would not appear, in itself, to furnish sufficient reason why plaintiff should not determine whether the lands, or some of them, were worth paying taxes on or not. But the ground upon which the decision of the supreme court of Montana proceeded was this: The twenty-second second section of the statute of Montana, [154 U.S. 130, 133] entitled 'An act to provide for the levy of taxes and assessment of property' (Laws Mont. Ex. Sess. 15th Leg. Assem. 1887, 82, 92), provided:
The court held that under this section plaintiff had an ample legal remedy, which it was obliged to exhaust before the equitable powers of the court could be resorted to, and, as upon the face of the bill it appeared that the plaintiff had not applied to the board of equalization of Gallatin county for the correction or abatement of the assessment, that no jurisdiction existed under the complaint to grant the injunction. It is contended, on the other hand, that, where taxes are levied upon property which is by law exempt from taxation, the statutory remedy by application to a board of review is only [154 U.S. 130, 134] cumulative, and that the taxpayer may, at his election, seek his remedy by injunction in the first instance. But it was for the supreme court of Montana to determine whether the statute was exclusive, and whether plaintiff came within its terms or not, and its action in that regard raises no federal question for our consideration. It is argued that the opinion, in effect, decides that, under the statute, the state of Montana has a right to assess and levy taxes upon the lands of the United States, and that, if no application is made to the board of equalization, the sale of such public lands cannot be restrained. The plaintiff, however, in no respect represented the United States, and an injunction cannot be granted to private individuals to avert the sale for taxes of the property of others, whether exempt from taxation or not.
The writ of error must be dismissed, and it is so ordered.