APPEAL from the Circuit Court for the District of Nebraska.
Hunnewell, for himself and others, citizens, all, of States other than Nebraska, filed a bill in the court below against Cass and other counties of the State of Nebraska, their treasurers, and the Burlington and Missouri River Railroad Company, to obtain an injunction on the said treasurers, to prevent their collecting State and county taxes which had been levied on certain lands granted to the said company by an act of Congress. He alleged himself and the others to be stockholders in the company; that the lands on which the taxes had been assessed were not liable to taxation under State authority; that the company was about to pay these taxes notwithstanding that he had made a protest and remonstrance against their so doing. The bill prayed relief as above said by injunction.
The case, divested of parts of it disposed of in principle by the case of Railroad Company v. McShane, just reported, and therefore not necessary to be presented, was thus:
An act of Congress, approved July 2d, 1864, by which the Burlington and Missouri River Railroad Company, a corporation created by the laws of Iowa, was authorized to extend its road through Nebraska, from a point on the Missouri River to another point on the Pacific railroad, so as to connect with it, thus enacted:
'SECTION 19. That for the purpose of aiding in the construction of said road, there be and hereby is granted to the Burlington and Missouri River Railroad Company, every alternate section of public land, . . . designated by odd numbers, to the amount of ten alternate sections per mile on each side of the said road, on the line thereof, and not sold, reserved, or otherwise disposed of by the United States, and to which a pre-emption or homestead claim may not have attached at the time the line of said road is definitely fixed.'
By a subsequent section, whenever the company had completed twenty consecutive miles of its road, in a manner prescribed, the President of the United States was to appoint commissioners to examine and report to him relative thereto; and if it should appear to him that twenty miles of the road had been properly completed, then, upon certificate of said commissioners to that effect, patents were to issue conveying the right and title to the lands to the company on each side of said road as far as the same was completed. And such examination, report, and conveyance by patents, was to continue from time to time, in like manner, until the road should be completed.
The act went on in its twenty-first section thus:
'SECTION 21. Before any land granted by this act shall be conveyed to the said company . . . 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, . . . which amount shall, without further 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 public lands along the line of said road.'
The road of the Burlington and Missouri company was completed for the purpose of this case, we may consider, in the spring of 1872. In that year, the first day of April fell on Monday.
The costs of surveying the lands which the county treasurers had sought to tax, were paid on the seventh day of March; and the fees of the register and receiver of the land office-which fees the complainants alleged to be the 'cost' of 'selecting and conveying,' which, with the cost of surveying, the above-quoted twenty-first section enacted should be paid into the treasury, 'before any land granted by the act should be conveyed to the company,'-were not paid until the 19th and 20th of April, which days, as happened in 1872, were respectively the third Friday and Saturday of the month; the third Monday (as the month came in on Monday) having been the 15th.