ERROR to the Supreme Court of the ings terminated adversely to the plaintiff in

of that court against certain lands for the taxes thereof in the supreme court of the state. for six years inmediately preceding the assess- That court directed judgment to be entered ment, and that claims for taxes for prior years against the land for the taxes for the six years were barred by the statute of limitations, in a immediately preceding the assessment, holding suit instituted by the Winona & St. Peter that all claims for taxes for prior years were Land Company, against the state of Minne-barred by the statute of limitations. 40 Minn. sota, to review the proceedings for the assess- 512. To reverse this judgment plaintiff in ment and collection of the taxes. Affirmed. error sued out this writ of error.

See same case below, 40 Minn. 512.

Statement by Mr. Justice Brewer: On March 3, 1857, Congress passed an act (11 Stat. at L. 195) granting lands to the territory, now state, of Minnesota, to aid in the building of railroads. On May 22, 1857, the 527] *territorial legislature granted a portion of these lands, including those in controversy, to the Transit Railroad Company. Minn. Laws 1857 (special session) p. 17. The fourth section of this act provided that "the lands so granted shall be and are exempted from all taxation until the same shall have been sold and conveyed by said company." The Transit Company failed to comply with the conditions of this act, and, thereafter, by an act passed March 10, 1862, all its rights, benefits, property, and franchises, including the exemption of the lands from taxation, were transferred to the Winona & St. Peter Railroad Company. Minn. Laws 1862, p. 243. The latter company ac cepted the transfer and grant, and proceeded to build the railroad, and, as built, the lands were, from time to time, certified to the state, and by the state deeded to the company, some of the lands being thus conveyed in 1869 and others in 1870 and 1871.

Mr. James A. Tawney for plaintiff in

error.

Messrs. H. W. Childs, Attorney General of Minnesota, and George B. Edgerton, for defendant in error.

Mr. Justice Brewer delivered the opinion of the court:

Two questions are presented: First, Has the state of Minnesota, in disregard of section 10 of article 1 of the Constitution of the United States, passed any law impairing the obligation of contracts? And, second, Were the tax proceedings in violation of that clause of the 14th Amendment, which prohibits a state from depriving any person of property without due process of law?

With respect to the first question, it may be noticed that since the grant in 1862 to the Winona & St. Peter Railroad Company the legislature of the state has passed no statute in terms referring to the lands, or attempting to repudiate or break the contract of exemption. The act of 1881 is one making general provision for putting upon the tax roll all lands that have escaped taxation in prior years. Of the validity of a statute of that character-[529 On October 31, 1867, the railroad company that is, one providing generally for subjecting entered into a contract with D. N. Barney to taxation lands that have improperly escaped and others. This contract recited the adjust-taxation in prior years-there can be no serious ment and settlement of an indebtedness of the company to Barney and his associates for money theretofore advanced, and provided for payment thereof in bonds and lands. No particular description was made in this contract of the lands to be thus conveyed, but only a general reference to the lands as those included in this congressional and state grant. The plaintiff in error, having succeeded to the rights of Barney and his associates, sought to obtain title to the lands, but the railroad company refused to convey, whereupon in 1879 suit was instituted, which terminated March 7, 1887, in a final decree of the circuit court of the United States directing a conveyance.

doubt; so that the real contention is that the taxing officers applied this valid statute to lands which ought not to have been subjected to its operation by reason of a prior contract between the state and its grantee. Does this bring the case within the constitutional inhibition against a state's passing a law impairing the obligation of a contract? Mississippi & M. R. Co. v. Rock, 71 U. S. 4 Wall. 177 [18: 381]; St. Paul, M. & M. R. Co. v. Todd County, 142 U. S. 282 [35: 1014]; Mobile & O. R. Co. v. Tennessee, 153 U. S. 486 [38: 793]; Central Land Co. v. Laidley, ante, 91.

Assuming, but not deciding, that this law of 1881, enacted subsequently to the contract created by the acts of 1857 and 1862, as practically applied by the officers of the state to the taxation of these lands, presents the question of a violation of the constitutional inhibition,— and the contention of plaintiff in error is that it does, and that the question was distinctly presented to the state court and by it decided, -we are of opinion that the judgment of that court was correct, and that it must be affirmed. The contract of exemption was by the terms of the act to continue until the lands were

In 1881 (Laws 1881, p. 24) the legislature of Minnesota passed an act providing generally for the assessment and taxation of any real or personal property which had been omitted from the tax roll of any preceding year or years. Under this statute, in 1886, the officers of Redwood county proceeded to assess and tax these lands for the taxes of past years. In the proceedings thus instituted the plaintiff in error appeared and defended on the ground that 528] the lands were, *by virtue of the fourth section of the act of May 22, 1857, exempt from sold and conveyed." Plaintiff in error intaxation until after the decree of March 7, 1887, sists that these words extend the exemption and also on the further ground that the act of until the legal title is conveyed, which was 1881 was unconstitutional in failing to provide not done until the decree of 1887. The state proper notice to the owners of the property court held that the exemption was continued sought to be assessed and taxed. The proceed-only until the full equitable title was trans

ferred, and that the railroad company could | of aiding in accomplishing a particular result, not thereafter, by neglecting to convey the legal title, postpone indefinitely the exemption. This question was first presented to that court in State v. Winona & St. P. R. Co. 21 Minn. 472, and the decision in the present case was simply an affirmance of the prior ruling. See also Brown County v. Winona & St. P. Land Co. 38 Minn. 397, 39 Minn. 380.

It is familiar law that statutes exempting property from taxation are to be strictly construed. Bank of Commerce v. Tennessee, 104 U. S. 493 [26: 810]: Vicksburg, S. & P. R. Co. v. 530] Dennis, 116 U. S. 665 [29: 770]; * Yazoo & M. V. R. Co. v. Thomas, 132 U. S. 174 [33: 302]; People v. Cook, 148 U. S. 397 [37: 498].

Section 4 of the Act of 1857, after providing that the lands should be exempted from taxation until "sold and conveyed," added that in consideration of the grant of land and other franchises, the railroad company should pay into the treasury of the territory or state three per cent upon all the gross earnings, and that this three per cent, when paid, should be in lieu of all taxes whatever. Construing the entire section, the supreme court of the state held that the manifest object was to apply the full value of the land to the construction of the road; that when that object was secured, the purpose of the exemption ceased; that it could not have been the contemplation of the legislature to have created an exemption dependent wholly upon the will of the grantee and entirely irrespective of the complete accomplishment of the object for which the lands were granted; that it was not to be expected that a sale could be made of the entire body of lands at once; that sales would progress slowly and from time to time as purchasers could be found, and that it would obviously detract from the value of the grant if, while holding these lands only for purposes of sale, the company was compelled to pay taxes thereon, but that when the company had received full payment for the lands, its interest in the matter ceased, and the purpose of the grant was accomplished. It could not be supposed that the legislature purposed to bestow an exemption upon purchasers from the railroad company. The company, and not its grantees, was the intended beneficiary. The matter of exemption was between it and the state. It was to pay three per cent of its gross earnings, and this in lieu of all other taxes, including those upon these lands. No such equivalent was suggested as between the purchasers and the state. No contract of any kind was expressed as between them. Reference was made in the opinion to Carroll v. Safford, 44 U. S. 3 How. 441 [11: 671], and Witherspoon v. Duncan, 71 U. §. 4 Wall. 210 [18: 339], in which this court held, as to lands purchased from the United States, that after the full equitable title had passed and the government simply held the naked legal title as trustee for the purchaser, they became subject to state taxation.

the exemption should be expected to cease when that result has been accomplished, and the statute should be read in the light of such expectation. While it may be that the word "conveyed" generally implies the passing of the legal title, it is not inaptly or incorrectly used to describe a transfer of title, legal or equitable, and whether used with a narrow and technical meaning, or in a broad and general sense, is to be determined by the context, and the circumstances under which the entire instrument or document in which it was found was framed. "There can be no doubt whatever of the general proposition that, in the interpretation of any particular clause of a contract, the court is not only at liberty, but required, to examine the entire contract, and may also consider the relations of the parties, their connection with the subject matter of the contract, and the circumstances under which it was signed." Chicago, R. I. & P. R. Co. v. Denver & R. G. R. Co. 143 U. S. 596, 609 [36: 277, 281]. Read in the light of these rules of construction the words "sold and conveyed,” as found in the exempting section, are satisfied when the railroad company has received full payment for the lands, and executed an instrument by which all its equitable and substantial interest in them is transferred. It has then not contracted to sell, but has sold; it has not contracted to convey, but has conveyed. It has parted with all its interest, and is thereafter only a barren trustee of a naked legal titleheld for the benefit of the true owner.

It is now earnestly contended by plaintiff in error that the Barney contract did not operate to transfer the full equitable title. Two propositions are relied upon: First, it is said that the contract contained dependent covenants, and that the covenant to convey the lands depended upon the performance of certain conditions by the contractors; and, second, that the *lands were not particularly described. [532 With reference to these contentions, it may be remarked that the only part of the record in the case of Barney v. Railroad Company, which is before us, is the decree which recites no performance of conditions precedent, but simply adjudges a conveyance. Can we assume, therefore, that it was based upon the performance by the plaintiff of conditions precedent? Must it not rather be held that it adjudicated rights created solely by the original contract and enforced a conveyance stipulated in it? Turning to the contract itself, we find that it recites the advancement of large sums of money by Barney and associates theretofore made for the construction and equipment of 105 miles of railroad, a liquidation of the indebtedness thereby created, and part payment thereof, and then contains an agreement to issue certain bonds in further part payment, and for the residue of said indebtedness promises to convey all the granted lands earned by the construction of the 105 miles of railroad 531]*We concur in these views. A permanent It is also true that there is no description of the exemption of land from taxation, or an exemp- lands by sections, towns, and ranges, and that tion dependent upon the will of an individual, the contract stipulates that the conveyance shall is something not to be adjudged unless the be when the railroad company shall obtain the language creating such exemption clearly com- title, but the description by reference to the pels such construction; and when a statute acts of Congress and the territorial and state creates an exemption with the evident design | legislatures is sufficient, and the right to a con

ment of the taxes and penalties appearing | described in it, for the recovery of the taxes against it. Publication is then to be made of appearing in the list against such tract, and this list, together with a notice in the form pre- tenders an issue on every fact necessary [537 scribed by statute, for at least two weeks, in to the validity of such taxes. Chauncey v. Wass, some newspaper of general circulation in the 35 Minn. 1. The only limitation or restriction county. $ 71, 72. Upon the final publica- upon the defenses or objections which may be tion of this notice the jurisdiction of the court interposed is that contained in section 79, to over the property attaches. § 73. Within the effect that, if a party interposes as a detwenty days after the last publication any per- fense an omission of any of the things provided son having an estate, right, title, or interest in, by law in relation to the assessment or levy of or lien upon, any parcel of land described in a tax, or of anything required by any officer such list may file in the office of the clerk of to be done prior to filing the list with the clerk, the court an answer setting forth his defense the burden is on him to show that such omisor objection to the tax or penalty, which shall sion has resulted in prejudice to him, and that describe the piece or parcel of land and state the taxes have been partially, unfairly, or unthe facts constituting his defense or objection equally assessed. This relates, not to want of to such tax or penalty, and thereupon the authority to levy the tax, but to some omission court is to hear and determine the questions to do or irregularity in doing the things reraised by this complaint and answer, as it hears quired to be done in assessing or levying a tax and determines any other action. § 75. It is otherwise valid. St. Louis County Comrs. v. a full defense that the taxes have been paid or Nettleton, supra. And certainly, in justice or that the property is not subject to taxation. reason, a party cannot complain that, when he 79. The list is prima facie evidence of com- objects to a tax on the ground of some omis. pliance with all provisions of law in relation sion or irregularity in matters of form, he is to the assessment and levy of taxes. No omis required to show that he was prejudiced." 536]sion of any of the things*required by law in relation to such assessment and levy "shall be a defense or objection to the taxes appearing upon any piece or parcel of land, unless it be also made to appear to the court that such omission has resulted to the prejudice of the party objecting, and that the taxes against such piece or parcel of land have been partially, unfairly, or unequally assessed; and in such case but in no other, the court may reduce the amount of taxes upon such piece or parcel, and give judgment accordingly." § 79. We think this opens to the property owner full opportunity for defense, and that he can raise every objection to which in law he is entitled. If he has paid his taxes, or if the land is not subject to taxation, the property is wholly discharged. If there has been any irregularity in the proceedings which worked to his prejudice he can show such irregular ity, and so far as it has injured him, secure a reduction in the amount. In reference to this matter we quote from the opinion of the supreme court of the state in this case, which shows fully the extent to which a party can, under the statutes of the state of Minnesota, make defenses to these tax proceedings:

All the privileges which are secured to the property owner in respect to the taxes of the current year are also secured to him in reference to those imposed under amended section 113. He is therefore notified and given an opportunity to be heard before his property is taken from him. Questions of this kind have been repeatedly before this court, and the rule in respect thereto often declared. That rule is that a law authorizing the imposition of a tax or assessment upon property according to its value does not infringe that provision of the 14th Amendment to the Constitution which declares that no state shall deprive any person of property without due process of law, if the owner has an opportunity to question the validity or the amount of it either before that amount is determined or in subsequent proceedings for its collection. McMillen v. Anderson, 95 U. S. 37 [24: 335]; Davidson v. New Orleans, 96 U. S. 97 [24: 616]; Hagar v. Reclamation Dist. No. 108, 111 U. S. 701 [28: 569]: Spencer v. Merchant, 125 U. S. 345 [31: 763]; Palmer v. McMahon, 133 U. S. 660 ̊[33: 772]; Lent v. Tillson, 140 U. S. 316 [35: 419]; Pittsburg, C. C. St. L. R. Co. v. Backus, 154 U. S. 421 [38: 1031]. That the notice is not personal but by "Within twenty days after the last publica- publication is not sufficient to vitiate it. Where, tion of the delinquent list any person may, by as here, the statute prescribes the *court [538 answer, interpose any defense or objection he in which and the time at which the various steps may have to the tax. He may set up as a de- in the collection proceedings shall be taken, a fense that the tax is void for want of author-notice by publication to all parties interested to ity to levy it, or that it was partially, unfairly, or unequally assessed. St. Louis County Comrs. v. Nettleton, 22 Minn. 356. He may set up as a defense pro tanto that a part of a tax has not been remitted, as required by some statutes. Houston County Comrs. v. Jessup, 22 Minn. 552. That the land is exempt, or that the tax has been paid. Chisago County v. St. Paul & D. R. Co. 27 Minn. 109. That there was no authority to levy the tax, or that the special facts authorizing the insertion of taxes for past years in the list did not exist, or any omissions in the proceedings prior to filing the list, resulting to his prejudice. Olmsted County v. Barber, 31 Minn. 256. The filing of the list is the institution of an action against each tract of land

appear and defend is suitable and one that sufficiently answers the demand of due process of law. Taylor v. Secor ("State R. Tax Cases") 92 U. S. 575, 609 [23: 663, 672]; Hagar v. Reclama tion Dist. No. 108, 111 U. S. 701, 710 [28: 569, 572]; Cincinnati, N. O. & T. P. R. Co. v. Kentucky (Kentucky R. Tax Cases") 115 U. S. 321 [29: 414]; Lent v. Tillson, 140 U. S: 316, 328 [35: 419, 425]; Pittsburg, C. C. & St. L. R. Co. v. Backus, 154 U. S. 421 [38: 1031]. It cannot be doubted under these various authorities that in respect to the collection of these taxes ample provision is made for notice, and therefore that it cannot be adjudged that the owner is, for want thereof, deprived of his property without due process of law.

real estate, it might elect to proceed against that. At any rate, if it did so it would violate no provision of the Federal Constitution, and whether it did so or not was a matter to be determined finally by the supreme court of the state.

These being the only matters presented, and in them appearing no error, the judgment of the supreme court of the state will be affirmed.

With respect to the next inquiry, it is true there | charge it with back taxes, while at the same is a difference in the mode of assessment. Sec- time, by reason of the stationary character of tion 113 authorizes the county auditor to make the assessment, while as to property generally the assessment is made by the county assessor. The latter also acts upon actual view (§ 33), while there is in section 113 no such direction to the county auditor. The assessment made by the assessor comes before a town board of review (39), and subsequently before a county board of equalization. 44. Neither of these provisions is found in section 113. So that the difference between the two modes of assessment may be stated thus: In the one case there is an assessment by one officer, with a right to review his action; in the other, there is an assessment by a different officer, and no provision for a review except as the matter comes before the court in the proceedings for the collection of taxes. But there is nothing in this difference to affect the constitutional rights of a party. The legislature may authorize different modes of assessment for different properties, providing the rule of assessment is the same. Cincinnati, N. O. & T. P. R. Co. v. Kentucky ("Kentucky R. Tax Cases") 115 U. S. 821, 337 [29: 414, 419]; Pittsburg, C. C. & St. L. R. Co. v. Backus, 154 U. S. 421 [38: 1031].

WINONA & ST. PETER LAND [540
COMPANY, Piff. in Err.,

v.

STATE OF MINNESOTA (No. 2).

(See S. C. Reporter's ed. 540, 541.) Jurisdiction of Supreme Court.

Where the Federal questions sought to be raised in this court were not seasonably presented in the state court, the failure to do so prevents this court from acquiring jurisdiction.

[No. 38.]

Argued Oct. 16, 1895. Decided Nov. 11. 1895.

The facts are stated in the opinion.

Mr. James A. Tawney for plaintiff in

error.

Minnesota, and George B. Edgerton, for de-
Messrs H. W. Childs, Attorney General of

fendant in error.

Mr. John Lind, for defendant in error,filed a brief on behalf of Brown county.

Mr. Justice Brewer delivered the opinion of the court:

This case is similar to the one between the

One other suggestion is made by counsel for the plaintiff in error. Section 113 contemplates the assessment and taxation of both real and persoual property. It is claimed that the taxation IN ERROR to the Supreme Court of the of personal property is manifestly void because, of that court in regard to the taxation of cerState of Minnesota to review the judgment even under the general tax law, there is no pro-tain lands. Dismissed for want of jurisdiction. 539] vision for notice to *the owner of the property before the charge is fixed upon him, and that it cannot be assumed that the legislature would attempt to provide for the taxing of real property which had escaped taxation in prior years without also providing for a like taxation of personal property, and hence that the whole section must fail. The supreme court of the state was of opinion that even if the tax on personal property was not collectible under the general provisions of the tax law for the reason claimed, yet there was, at least, a valid tax which, in the absence of any law providing another method, might be enforced by any ordinary personal action. It seems to us, also, that the assumption that it cannot be believed that the legislature would never seek to provide for the collection of back taxes on real property without at the same time including therein a like provision for collecting back taxes on personal property, cannot be sustained. The case is different from that of an ordinary tax law in which there may be some foundation for the claim that the legislature is expected to make no discrimination, and would not attempt to provide for the collection of taxes on one kind of property without also making provision for collection of taxes on all other property equally subject to taxation. For this statute rests on the assumption that, generally speaking, all property subject to taxa tion has been reached, and aims only to provide for those accidents which may happen under any system of taxation, in consequence of which here and there some item of property has escaped its proper burden; and it may well be that the legislature in view of the probabilities of changes in the title or situs of personal property might deem it unwise to attempt to

same parties just decided, in that the questions presented to the state courts involved the taxability of lands included in the legislative grants of May 22, 1857, and March 10, 1862, the Barney contract of October 31, 1867, and the decree in the United States circuit court of March 7, 1887. The tax proceedings were under the law of 1881, but were had in the county of Brown instead of the county of Redwood. The case, however, differs from the preceding, in that the Federal questions sought to be raised in this court were not seasonably

NOTE. As to jurisdiction of Federal over state courts; necessity of Federal question: what constitutes Federal question, see note to Hamblin v. Western Land Co. 37: 267.

As to jurisdiction of United States Supreme Court to declare state law void as in conflict with stare Constitution; to revise decrees of state courts as to con struction of state laws, see notes to Hart v. Lamphire, 7: 679, and Commercial Bank of Cincin

nati v. Buckingham, 12: 169.

Court where Federal question arises, or where are drawn in question statutes, treaty, or Constitu tion, see notes to Martin v. Hunter, 4:97; Mathews v. Zane, 2: 654; and Williams v. Norris, 6: 571

As to jurisdiction in the United States Supreme