No one can be permitted to go into a court of equity to enjoin
the collection of a tax until he has shown himself entitled to the
aid of the court by paying so much of the tax assessed against him
as it can be plainly seen he ought to pay.
State Railroad Tax Cases, 92 U. S.
575, and
National Bank v. Kimball, 103 U.
S. 732, affirmed and followed on this point.
The Northern Pacific.Railroad Company, having accepted the
provisions of the Act of Dakota of March 7, 1889, c. 107, became
liable thereby to pay
Page 153 U. S. 253
the designated percentage of its gross earnings in lieu of taxes
for the year 1889, which liability was not discharged by the
subsequent repeal of the gross earnings act of 1889; and, having
failed to make that payment, or to make a tender of what was due
under one or the other modes of taxation, it is not entitled to
relief in equity to enjoin the enforcement of a tax upon its
property as upon the property of individuals in the counties in
which the property is situated.
This case, under the style of
Northern Pacific Railroad
Company v. Walker, 148 U. S. 391, was
before this Court at October term, 1892, and, the jurisdiction of
the circuit court not appearing upon the face of the record, it was
remanded with leave to amend. The appellant accordingly, on June 6,
1893, filed in the Circuit Court of the United States for the
District of North Dakota its amended bill of complaint, in which,
after setting forth its creation and organization under and by
virtue of an 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, by the northern route,"
and certain acts and joint resolutions of Congress supplementary
thereto and amendatory thereof, it was alleged that, for the
purposes of laying out, locating, constructing, furnishing, and
maintaining a railroad and the telegraph line between the points
indicated, there was granted to it by Congress every alternate
section of public land, not mineral, designated by odd numbers, to
the amount of twenty alternate sections per mile on each side of
the railroad line as the company might adopt, through the
territories of the United States, and ten alternate sections of
land per mile on each side of the railroad line whenever it passed
through any state, to which the United States had full title, not
reserved, sold, granted, or otherwise appropriated, free from
preemption or all other claims at the time the line of the railroad
should be definitely fixed, and the plat thereof be filed with the
Commissioner of the General Land Office; that the railroad company
duly accepted the terms, conditions, and impositions of said act of
Congress, and that, on the respective dates of May 26, 1873, and
July 20, 1880, it definitely fixed the line of its railroad
Page 153 U. S. 254
through certain counties in the Territory of Dakota (now the
State of North Dakota), and filed plats thereof in the office of
the Commissioner of the General Land Office; that the line of
railroad so fixed extends opposite to and past the lands set forth
and described in the schedules made a part of the bill; that prior
to December 20, 1880, it had completed that portion of the railroad
and telegraph line extending on, over, and along the line of
definite location of the railroad, and that the President of the
United States, from time to time, after the same had been examined
by commissioners, had accepted the railroad and telegraph line as
having been constructed and completed in all respects as required
by the Act of July 2, 1864, and the acts and joint resolutions
supplementary and amendatory thereof.
The bill further alleged that the lands on each side of the
railroad, and every portion thereof, were within forty miles of the
company's line of road so definitely fixed; that they were public
lands, to which the United States had full title, not reserved,
sold, granted, or otherwise appropriated, and no entry or
application to make entry for the lands was made or was pending
when the lists of definite location were filed in the office of the
Commissioner of the General Land Office on May 26, 1873, and July
20, 1880; that the described lands had been surveyed by United
States surveyors, and had been reported to be agricultural in their
character, and nonmineral, and that the lands were not, on July 2,
1864, or May 26, 1873, and July 20, 1880, known as mineral lands,
etc.; that the company had, prior to the year 1889, in accordance
with the direction of the Secretary of the Interior, duly prepared
and filed lists in the United States land offices in the land
districts in which the lands were situated respectively, describing
the lands and claiming them as a portion inuring to it under and by
virtue of the act of Congress approved July 2, 1864, which lists
were duly allowed and approved by the United States district land
officers, to whom the fees prescribed by law were paid by the
company, and which were retained by the United States; that the
lists of lands so filed were duly transmitted by the district land
officers to the Commissioner of the General Land Office
Page 153 U. S. 255
for his approval; that since the lists were filed and
transmitted to the Commissioner of the General Land Office, the
commissioner, under the direction of the Secretary of the Interior,
had required the company to file in the office of the commissioner,
or in the office of the land office districts in which the lands
were respectively situated, an affidavit made by some person
acquainted with the character of the lands, setting forth and
showing that the same were nonmineral, and that, until such
affidavits had been filed, the commissioner refused to approve the
lists; that the company had not, nor had any one in its behalf,
filed affidavits of persons having knowledge of the mineral or
nonmineral character of the lands set out in the lists.
The bill then proceeds to state that none of the lands described
had ever been certified or patented to the railroad company, and
that neither the United States nor any of its officers or agents
had ever ascertained and determined what specific lands in the
State of North Dakota passed to the railroad company by virtue on
the Act of July 2, 1864, although the railroad company had
repeatedly petitioned to have this done; that the United States and
its officers had refused to certify to the company the lands
described in the schedules of the bill, but held the lists
suspended and unapproved upon the claim that the lands may be
mineral in character, and as such excepted from the grant to the
company, or that the lands may not have been free from claims or
rights reserved in the grant, or that the question as to whether
title to the lands had passed to the railroad company under and by
virtue of the granting act, and acts amendatory thereof; that said
matters were still in controversy, and pending before the
Commissioner of the General Land Office and the Secretary of the
Interior.
It is further alleged that the railroad company had no other
right, title, claim, interest, property, or possession in or to any
of the lands or premises described in the bill, except such right,
title, claim, interest, property, or possession as it may have
obtained under and by virtue of the acts and resolutions of
Congress, and its compliance with the conditions thereof.
It is then averred that on March 7, 1889, the Legislature of
Page 153 U. S. 256
the Territory of Dakota passed an act, which was duly approved
by the governor of the territory, entitled "An act providing for
the levy and collection of taxes upon the property of railroad
companies in this territory," in and by which it was, among other
things, enacted and provided:
"In lieu of any and all other taxes upon any railroads, except
railroads operated by horse power, within this territory, or upon
the equipment, appurtenances, or appendages thereof, or upon any
other property situated within this territory belonging to the
corporation owning or operating such railroads, upon the capital
stock, or business transactions of said railroad company, there
shall hereafter be paid into the treasury of this territory an
amount equal to a percentage of all the gross earnings of the
corporation owning or operating such railroad arising from the
operation of such railroad as shall be situated within this
territory, both upon territorial and interstate traffic, in case
the railroad company owning or operating such line shall accept and
become subject to this act as hereinafter provided."
That the railroad company did, within thirty days after the
passage of this act, by resolution of its board of directors,
attested by its secretary, filed with the secretary of the
Territory of Dakota, accept and become subject to the provisions of
the Act of March 7, 1889. That within thirty days of its passage,
the railroad company, as required by the act, prepared and filed
with the treasurer of the territory, in the manner required by the
provisions of chapter 99 of the session laws of the territory for
the year 1883, an account of the gross earnings of the company,
both territorial and interstate, for the years 1886 and 1887, and
paid into the treasury the entire amount of taxes claimed by the
territory on local and interstate earnings remaining unpaid at the
time of filing such account for said years, such payment being as
follows, to-wit, for the last half of the year 1886, $38,095.31;
for the year 1887, $65,585.46. Such sums so paid, as provided for
in the Territorial Act of March 7, 1889, were percentages computed
entirely upon gross earnings of the company derived from domestic
business, the percentage for the same years computed upon the gross
earnings derived from
Page 153 U. S. 257
interstate business having been previously paid by the company,
as required by the provisions of the territorial act of 1883.
It was also alleged that at the same time the company paid into
the treasury of the territory one-half of the entire amount due for
the year 1888, amounting to $46,937.09, and that before August 15,
1889, it had paid the remainder of the amount due for the year
1888; that the sums so paid into the treasury for the year 1888
were percentages computed upon the gross earnings of the company
for that year, derived from both domestic and interstate business,
the former amounting to $11,446.78 and the latter to $82,427.40,
and it was alleged that all the percentages derived from interstate
business so paid into the treasury were not due from the company,
except by virtue of the Act of March 7, 1889, and the company's
acceptance thereof, and that they were paid as a consideration for
the exemption from taxation provided for by that act, and for no
other reason.
It is then charged that notwithstanding the premises, in the
year 1889, the county auditors for the Counties of Kidder,
Stutsman, Richland, and McLean, under the authority of the laws of
the Territory of Dakota, had assessed the company's lands situate
in their respective counties for purposes of county taxation, and
that they had advertised the lands as described in the schedules to
the bill for sale, and were about to wrongfully sell the same for
the nonpayment of taxes so levied, together with penalties and
costs, and to issue certificates of sale for the same in the form
prescribed by the laws of North Dakota, and, unless restrained by
the order of the court, they would sell the lands, and issue
certificates of sale thereafter, whereby the rights of the railroad
company in and to the lands would be irreparably injured, and lead
to a multiplicity of suits concerning the title thereto.
It was further claimed on the part of the railroad company that
the taxes so assessed and levied upon the lands were a cloud upon
the title of the railroad company thereto; that, if sold, and
certificates were issued to the purchaser, such certificates would
constitute a cloud upon the title of the company in and to the
lands so sold; that the counties were bankrupt;
Page 153 U. S. 258
and that if the railroad company should pay the taxes and then
bring an action against them to recover the amount thereof, it
would require a multiplicity of suits, and such judgments as might
be recovered would be worthless.
The bill further averred that the amount of the taxes levied
upon the lands, together with the costs and penalties claimed by
the county auditors to have accrued thereon and for which the lands
had been advertised for sale and were about to be sold, were as
follows: upon the lands in Kidder County, $12,820.67; upon the
lands in Stutsman County, $8,863.39; upon the lands in Richland
County, $4,094.37, and upon the lands in McLean County, $4,048.17
-- the amount of such tax, penalty, and cost upon each tract of
land being particularly shown in the schedules attached to the
bill.
The prayer of the bill was to the effect that the county
assessments and taxes so levied upon the lands of the railroad
company might be declared illegal and void, and a cloud upon the
title of the company, and that the defendants, and each of them,
their deputies and successors in office, be restrained from selling
or attempting to sell the lands or any portion thereof, or from
issuing tax certificates therefor.
The defendants appeared and demurred to the amended bill on the
ground that, according to the showing made therein, the plaintiff
was not entitled to the relief sought. The circuit court sustained
the demurrer and dismissed the bill on the ground that the act of
1889 was void because it violated the organic act, which provided
that the legislative assembly of the territory shall not make any
discrimination in taxing different kinds of property, but all
property subject to taxation shall be taxed in proportion to its
value; secondly, that the bill was without equity in failing to
allege payment or tender of the gross earnings tax for the year
1889. 47 F. 681.
From this judgment the railroad company appealed to the United
States Circuit Court of Appeals for the Eighth Circuit, and that
court, desiring instructions upon certain questions presented by
the assignments of error filed in the cause, certified to this
Court various propositions of law as to
Page 153 U. S. 259
whether the railroad company acquired such title to the
odd-numbered sections of land within the place limits of the grant
of July 2, 1864, which were not mineral, and which at the dates of
the grant and of the filing of the map of definite location in the
office of the Commissioner of the General Land Office, were not
reserved, sold, granted, or otherwise appropriated, as to render
them taxable before being patented and certified to the railroad
company; whether the company was taxable on such lands by the
territories after the filing of the map of definite location of its
railroad, and full compliance with the terms and conditions of the
granting act, while the United States refused to patent and certify
such lands to the company; whether chapter 107 of the Laws of
Dakota for 1889, being an act entitled "An act providing for the
levy and collection of taxes upon the properties of railroad
companies in this territory," approved March 7, 1889, was void as a
regulation of interstate commerce; whether the Act of March 7,
1889, was in conflict with the fifth and Fourteenth Amendments of
the Constitution of the United States and with the organic law of
the territory as an attempt to exempt from taxation the lands
granted by the Act of July 2, 1864; whether the Act of March 7,
1889, should be construed as granting an exemption for the year
1889, or to be in force and effect only after the year 1890. The
eighth and remaining question certified is as follows:
"Is said bill without equity because of the failure to aver that
the complainant has tendered or paid the 'gross-earnings tax' for
the year 1889, and is said complainant entitled to the equitable
relief prayed without first tendering or paying such tax? "
Page 153 U. S. 263
MR. JUSTICE JACKSON delivered the opinion of the Court.
Page 153 U. S. 264
In the view we take of the case, the answer to the last question
will dispose of the suit and render it unnecessary to enter upon
the consideration and determination of the other propositions of
law on which instructions are asked.
By an act of the legislature of the territory approved March 9,
1883, c. 99, Laws 1883, it was provided that all railroad
companies, except railroads operated by horse power, owned and
operated within the territory, should pay two percentum on the
gross earnings of their railroads for a period of five years, and
thereafter three percentum on the gross earnings, in lieu of all
other taxes upon said railroads and the capital stock and business
thereof. The payment of this percentage was to be made at
designated dates in each year, and penalties were imposed upon the
companies failing to comply with the provisions of the law as to
the making of returns of earnings and paying the percentages
imposed by the act. The moneys so received and collected were to be
apportioned between the territory and the several counties through
which the railroads respectively ran.
This act of 1883 left the railroad companies no choice as to
whether they would pay the designated percentage on their gross
earnings, or remain subject to taxation upon their property in the
ordinary method. It was compulsory upon them. It is not material to
the present case to consider whether this act was constitutional or
not; it was repealed by the act of legislature approved January 29,
1889. Now it is shown by the bill that at the time the act of 1883
was repealed, the appellant was in default of the payment of the
percentages due upon its gross earnings for the years 1886, 1887,
and 1888.
On March 7, 1889, the Legislature of the Territory of Dakota
passed an act entitled "An act providing for the levy and
collection of taxes upon property of railroad companies in this
territory,"
* which went into
force and effect immediately after its passage.
Page 153 U. S. 265
This act is, by its terms, nothing but a tax law, and, while it
adopted the same rule of percentages on the gross earnings as
Page 153 U. S. 266
provided in the act of 1883, it differed from that act in not
being compulsory upon the railroad companies, for it left to
Page 153 U. S. 267
them the election as to which of two modes of taxation they
should accept or submit to. It practically gave to the railroad
Page 153 U. S. 268
companies the choice of having their property taxed as other
property in the territory, by assessment and levy, or of taking the
benefits of the act upon the terms and conditions provided therein.
It was, by section 7, made a condition of
Page 153 U. S. 269
the acceptance of the act that
"any railroad company assessed under chapter 99 of the Laws of
1883 shall, within thirty days after the passage of this act, pay
into the territorial treasury the full amount of the taxes and
interest due under the assessments under said Laws of 1883,
including taxes on both territorial and interstate earnings . . .
before they can avail themselves of the provisions of this
act."
It was further provided that any company failing to strictly
comply with the provisions of the act within the time provided
should be immediately subject to assessment and taxation upon its
property in the same manner as the property of individuals was
assessed and taxed.
The companies accepting the benefits of the act were not only to
pay arrearages under the law of 1883, but were also to pay a
percentage of gross earnings for the current year of 1889, it being
provided that
"if such acceptance was filed on or before the 15th day of
February in any year, such companies should pay one-half of said
amount on said 15th day of February and the balance on the 15th day
of August next following. Should such acceptance be filed before
the 15th day of August and after the 15th day of February in any
year, then an amount equal to three percentum of such account shall
be paid in full on or before the 15th day of August in each
year."
It is shown by the bill that the appellant accepted the
provisions and benefits of the act within thirty days after March
7, 1889, and it thereby became liable to pay the required
percentage on its gross earnings on or before the 15th day of
August, 1889. It is also shown by the bill that within thirty days
after the passage of the act, it paid the arrearages of percentages
on its gross earnings accruing under the act of 1883 for the years
1886, 1887, and 1888, but it is not alleged that it made payment,
or tender of payment, of the percentage on its gross earnings for
the year 1889, or any portion thereof, although by the express
provisions of the act a percentage on a portion of such gross
earnings was due and payable on the 15th day of August, 1889.
The moneys to be received and collected by the territorial
Page 153 U. S. 270
treasurer under this act from the railroad companies which
accepted its provisions were to be apportioned between the
territory and the several counties, respectively, through which the
railroads run, or in which the companies had lands subject to
taxation, in the manner pointed out in section 6 of the act. The
several counties whose auditors are made defendants in the present
case were therefore interested in the gross earnings tax which the
appellant was required to pay for the year 1889 in lieu of all
other ordinary taxes upon its property.
The gross earnings act remained in force until November 2, 1889,
when it was repealed by the repugnant provisions contained in the
Constitution of the State of North Dakota, as adopted and approved
by Congress, and the claim is now made by the appellant that this
repeal relieves it from liability to pay any percentage on its
gross earnings for the year 1889, or any part thereof, because the
same was not payable until after 1890, and that it was not liable
to assessment and taxation on its property because it had accepted
the provisions of the gross earnings act of 1889.
This contention, if correct, would relieve the appellant from
any burden in the way of taxation for the year 1889, but such a
claim as this cannot possibly be sustained. The Act of March 7,
1889, clearly intended that the gross earnings tax therein provided
for, as to all companies which would accept its provisions, should
supply revenue for the territory and the counties for the year
1889. It is equally clear from the whole act, as a tax law, that
the railroad company had to pay the required percentage on its
gross earnings for that year, and that such percentage was payable
in part on the 15th day of August in that year. It is not,
therefore, correct to say that no part of the gross earnings was
payable until 1890; but if that were not the case, having accepted
the provisions of that act, and thus becoming liable to pay the
designated percentage of its gross earnings in lieu of taxes for
the year 1889, that liability would not be discharged by the
subsequent repeal of the gross earnings act of 1889. If the company
was released from the gross earnings tax by the repeal of the act
its property immediately became subject to assessment
Page 153 U. S. 271
and taxation in the manner provided for the assessment and
taxation of property of individuals in the territory, and it would
not vitiate any such assessment made on the part of the counties
that happened to be made prior to the repeal of the act of 1889.
Such assessment would remain in full force and effect after the
repeal of the act, and until satisfied.
It is next contended by the appellant that its payment of
arrearages claimed to be due under the act of 1883 was a
consideration for the exemption of its property from taxation for
the year 1889. This position cannot be sustained, for by the terms
of the act of 1889, the payment of those arrearages was simply a
condition upon which the railroad company was allowed to accept the
benefits of that act, which was not an act exempting the property
of the railroad company from taxation, but merely substituted one
mode of taxation for another, upon the terms and conditions
specified. One of the terms on which the railroad was allowed to
accept the gross earnings tax in lieu of the ordinary tax upon its
property was that it should pay the arrearages which the territory
claimed under the act of 1883. No exemption from taxation for the
year 1889 was contemplated. The railroads accepting the act were
required to pay the gross earnings tax for that year in addition to
such arrearages. It cannot, therefore, be properly claimed that the
payment of these arrearages constituted a consideration for any
exemption from taxation, or that such payment raised any equity on
the part of the appellant against the payment of taxes for 1889,
whether such taxes were imposed in the shape of a percentage on the
gross earnings for that year or in the shape of the ordinary
assessment upon its property.
There is nothing in the allegations of the bill showing
affirmatively that the company did not possess the equitable title
or ownership in the lands described and assessed. Nor do the
averments of the bill negative the fact that the appellant was
properly chargeable with taxes on the lands coming within the grant
of July 2, 1864, and within the limits of the line of definite
location of its road. Payment of the gross earnings tax imposed by
the act of 1889 would have discharged
Page 153 U. S. 272
all claims for taxes upon the company's lands for that year, but
no ground is shown by the bill for releasing the appellant from the
payment of either the percentage tax on its gross earnings or from
the payment of the assessments upon its lands made by the county
auditors. By section 7 of the act of 1889, its failure to promptly
and strictly comply with the provisions thereof, and pay all sums
therein provided to be paid, subjected the company to assessment
and taxation in the same manner as individuals. It did not comply
with the provisions of the act in paying the percentage of gross
earnings due on the 15th day of August, 1889, and thereupon its
property became liable to assessment and taxation as the property
of individuals in the several counties.
Being liable to pay either the percentage on gross earnings in
accordance with the provisions of the act of 1889 or the tax upon
its lands, as other property of like character was assessed, the
appellant was not entitled to any relief in a court of equity by
injunction without payment or tender of what was due under one or
the other of these modes of taxation.
In
State Railroad Tax Cases, 92 U. S.
575,
92 U. S.
616-617, the rule is established that before an
injunction will be granted in such cases as the present, a party
must pay or tender what can be seen to be due on the face of the
bill, and, speaking for the Court in that case, Mr. Justice Miller
said that the duty of making such a tender or payment before any
injunction will be allowed is laid down "as a rule to govern the
courts of the United States in their action in such cases." This
rule was repeated in
National Bank v. Kimball,
103 U. S. 732,
103 U. S. 733,
where it was treated as a fatal objection to the bill that there
was no offer to pay any sum as a tax which the party ought to pay,
and, again speaking for this Court, Mr. Justice Miller there
said:
"We have announced more than once that it is the established
rule of this Court that no one can be permitted to go into a court
of equity to enjoin the collection of a tax until he has shown
himself entitled to the aid of the court by paying so much of the
tax assessed against him as it can be plainly seen he ought to
pay,"
etc.
Applying this rule to the present case, it is clear that the
Page 153 U. S. 273
appellant's bill was properly dismissed for failing to pay, or
tender to pay, taxes which it ought to have paid on its property,
or, in lieu thereof, a percentage of its gross earnings.
Our response, therefore, to the eighth question certified is
that the bill was without equity because of the failure to aver
that the plaintiff had tendered or paid the gross earnings
percentage for the year 1889 (or the tax assessed by the county
auditors), and was not entitled to the equitable relief prayed
without first tendering or paying such taxes.
The answer of the court to that question will accordingly be
certified to the Circuit Court of Appeals for the Eighth
Circuit.
MR. JUSTICE BREWER dissented.
*
"
Be it enacted by the Legislative Assembly of the Territory
of Dakota:"
"1.
Percentage of Gross Earnings to be Paid in Lieu of other
Taxes. -- In lieu of any and all other taxes upon any
railroads, except railroads operated by horse power, within this
territory, or upon the equipment, appurtenances, or appendages
thereof, or upon any other property situated in this territory
belonging to the corporation owning or operating such railroads,
upon the capital stock or business transactions of said railroad
company, there shall hereafter be paid into the treasury of this
territory an amount equal to a percentage of all the gross earnings
of the corporation owning or operating such railroad, arising from
the operating of such railroad, as shall be situated within this
territory, both upon territorial and interstate traffic, in case
the railroad company owning or operating such line shall accept and
become subject to this act as hereinafter provided."
"Every such railroad corporation or person owning or operating
or that may hereafter own or operate any line of railroad in this
territory which shall have accepted this act shall pay to said
treasurer each year 'for the first five years' after the approval
of this act an amount equal to three percentum of such gross
earnings, 'and for and in each and every year after the expiration
of such five years an amount equal to two percent of said gross
earning,' and the payment of such amount annually as aforesaid
shall be and is in full of any and all other taxation and
assessment whatever upon the property aforesaid."
"Said payments shall be made, except as hereinafter provided,
one-half on or before the 15th day of February and one-half on or
before the first day of August in each year. And for the purpose of
ascertaining the gross earnings aforesaid, an accurate account of
such earnings shall be kept by said company. An abstract shall be
furnished by said company to the treasurer of this territory on or
before the first day of February in each year, the truth of which
abstract shall be verified by the affidavits of the treasurer and
secretary of such company, and for the purpose of ascertaining the
truth of such affidavits and the correctness of such abstracts,
full power is hereby vested in the governor of this territory, or
any other person appointed by law, to examine under oath the
officers, employees of said company, or other persons, and if any
person so examined by the governor or other authorized person shall
knowingly or willfully swear falsely concerning the matter
aforesaid, every such person is declared to have committed perjury,
and for the purpose of securing to the territory the payment of the
aforesaid percentum it is hereby declared that the territory shall
have a lien upon the railroad of said company, and upon all
property, estate, or effects of said company whatsoever, personal,
real, or mixed, and the lien hereby secured to the territory shall
have and take precedence of all demands, decrees, and judgments
against said company."
"2.
When Company shall Fail to Make Return. -- If any
such railroad company having accepted this act shall fail to make
return of its gross earnings as aforesaid, or of any part thereof
at the time and in the manner provided by law, and such default
shall continue during the period of thirty days, such company shall
be subject to a penalty of an amount equal to ten percent. of the
tax imposed upon such company by this act, and the treasurer of the
territory shall forthwith ascertain the amount of such percentage
justly due from such company, as near as may be, from such evidence
as may be available, and shall thereupon collect such amount so
ascertained, together with the said penalty thereon."
"The amount so ascertained by the territorial treasurer as in
this section provided shall, together with the said penalty
thereon, be by him entered in the books of his office and such
entry when so made shall stand in the place of the report required
by law to be made by such company, and shall in all courts within
this territory be evidence of the amount of such tax and penalty
and of the other facts stated therein in pursuance of this
act."
"3.
Neglect to Pay Taxes -- In case any railroad
company which shall have accepted the provisions of this act shall
fail or neglect to pay the amount reported at the time and in the
manner hereinafter provided for a period of thirty days after the
same shall have become due by the terms thereof, in such case there
shall be added to the amount of such tax ten percentum thereof as a
penalty for such failure or neglect to pay."
"4.
Territorial Treasurer to Distrain -- At any time
after the expiration of the period of thirty days after the amount
as above provided has become due and payable under the provisions
of this act, the territorial treasurer or his deputy shall distrain
sufficient goods, chattels, or other movable property, if found
within this territory, to pay the said amount due from such
corporation, together with the penalty thereon as hereinafter
provided, and shall immediately advertise the sale of the same in
at least three newspapers published within this territory, stating
the time when and the place where such property shall be sold; such
sale shall take place at some point on the railroad of such
delinquent company, and at least four weeks' notice of the time and
place of such sale shall be given; such delinquent company, its
successors or assigns, may pay in such amount and penalty at any
time before the sale of the property distrained as herein provided,
and thereupon further proceedings in connection with such distress
shall cease, and the property distrained shall be delivered to the
owner thereof."
"5.
Land Subject to Taxation -- The lands of any
railroad company shall become subject to taxation in the same
manner as other similar property as soon as the same are sold,
leased, contracted to be sold or leased, and on or before the first
day of April of each year each railroad company having lands within
this territory shall return to the county clerk of each county
within this territory full and complete lists, verified by the
affidavit of such officers of the company having knowledge of the
facts, of all lands of such company situated within such county,
sold, or contracted to be sold, or leased, during the year ending
the last day of December preceding, and the list furnished on or
before the first day of April, A.D. 1889, in compliance with the
terms of this section, shall include a complete list of all lands
sold or leased, prior to the last day of December, 1888."
"6.
How Taxes Apportioned -- The moneys received and
collected by the territorial treasurer in pursuance to this act
shall be disposed of by him as follows: in case the railroad
company paying such tax owns no land granted in aid of the
construction of its railroad, one-third of the same shall be
retained in the territorial treasury for the use of the territory,
and the remainder shall be apportioned among the several counties
into or through which the railroad or railroads of such companies
run, in proportion to the number of miles of main track situate in
such counties respectively. In case the railroad company paying
such tax owns land granted in aid of the construction of its
railroad, then thirty percent of the tax paid by such company shall
be retained in the territorial treasury for the use of the
territory, and forty percent shall be apportioned among the several
counties into or through which the railroad or railroads of such
company run, in proportion to the number of miles of main track
situated in such counties, respectively, and thirty percent shall
be apportioned among the several counties in which lands forming a
part of its land grant are situated, in proportion to the number of
acres of surveyed and unsold lands in said counties."
"7.
Any Railroad Company -- Which at the date of the
passage of this act owns or is engaged in operating any line or
lines of railroad in this territory may at any time within thirty
days after the passage of this act, by resolution of its board of
directors, attested by its secretary, and filed with the secretary
of the territory, accept and become subject to the provisions of
this act, and provided that any railroad company which is now in
arrears in the payment of taxes assessed under chapter 99 of the
Laws of 1883 shall, within thirty days after the passage of this
act, pay into the territorial treasury the full amount of the taxes
and interest due under the assessments under said Laws of 1883
before they can avail themselves of the provisions of this act by
accepting its terms, including taxes on both territorial and
interstate earnings. It is further expressly provided that any
company failing to strictly comply with the provisions of this act
within the term herein provided shall be immediately subject to
assessment and taxation in the manner provided for the assessment
and taxation of the property of individuals of this territory, and
said taxes shall be collected in the same manner as is now provided
in cases of the property of individuals. Any company which has not
complied with the provisions of chapter 99 of the Session Laws of
1883 by paying all taxes claimed on gross earnings, both
territorial and interstate, or by filing an account of gross
earnings both territorial and interstate, shall prepare and file
such account in the manner therein provided within thirty days from
the passage hereof, and pay one-half of the entire amount due under
the agreement and acceptance herein referred to, for the current
year, and also the entire amount of taxes heretofore claimed by the
territory on local and interstate earnings of such companies, but
remaining unpaid at the time of filing said account and within
thirty days after the passage of this act, or the same shall not
apply to such company or companies. The balance of said taxes due
for the current year shall be paid to the territorial treasurer on
or before the 15th day of August, 1889. Any railroad company that
may be hereafter organized in this territory, or that shall
hereafter become the owner of or engaged in operating any lines of
railroad in this territory, may accept and become subject to the
provisions of this act by filing a resolution of its board of
directors in the manner as hereinbefore provided."
In case any such railroad company shall accept and become
subject to the provisions of this act, it shall at the time of
filing such acceptance render an account of gross earnings both
territorial and interstate, in the manner as hereinbefore provided,
and shall pay at the time of rendering such account all amounts
claimed by the territorial auditor as tax due on the local and
interstate earnings of such company for the current or any
preceding year, and shall thereafter pay an amount equal to three
percentum of such account, as follows: if such acceptance is filed
on or before the fifteenth day of February in any year, such
company shall pay one-half of said amount on said fifteenth day of
February, and the balance on the fifteenth day of August following.
Should such acceptance be filed before the fifteenth day of August
and after the fifteenth day of February in any year, then an amount
equal to three percentum of such account shall be paid in full on
or before the fifteenth day of August in each year. Thereafter
accounts shall be rendered and payment made in the manner provided
in this act,
provided that any company failing to promptly
and strictly comply with the provisions herein set forth and to pay
all sums herein provided to be paid shall be subject to assessment
and taxation in the same manner as individuals.
"8.
In case of Non-Acceptance -- The railroads and
property of all railroad companies owning or operating lines of
railway in this territory, which companies shall not accept and
become subject to the provisions of this act, shall not be entitled
to the exemption in this act contained, but shall be subject to
taxation in such manner as shall be provided by law."
"9.
Repeal or Amendment -- This act shall be subject to
repeal or amendment by any future legislature, and nothing herein
contained shall be construed as a repeal of any revenue law now in
existence, as applicable to any railroad company which shall not
accept the provisions of this act as herein provided."
"10.
Effect when -- This action shall take effect and
be in force from and after its passage."
Approved March 7, 1889.
