Bothwell v. Bingham County
| Decision Date | 21 May 1913 |
| Citation | 24 Idaho 125,132 P. 972 |
| Parties | GLENN R. BOTHWELL, Appellant, v. BINGHAM COUNTY, Respondent |
| Court | Idaho Supreme Court |
CAREY ACT LANDS-WHEN TAXABLE-WHEN TITLE PASSES-STATE AS TRUSTEE.
1. Under the Carey act (28 Stats. at Large, p. 422), and amendment thereto (29 Stats. at Large, p. 435), the government issues its patent to the state for the segregated lands which it is shown that provision has been made for supplying sufficient water for their irrigation and reclamation, and the state holds such title in trust for the settlers and purchasers who settle upon cultivate and improve the land in conformity with the Carey act and the state statutes in relation thereto.
2. Under the statute of this state (sec. 1653, Rev. Codes), as the same was in force and effect on January 9, 1911, a tax lien attached against all taxable property within the state at noon on that day, and where patent issued on that date from the general government to the state in trust for segregated Carey act lands, and the purchaser and claimant to a portion of such lands had prior to that date settled upon cultivated and reclaimed the land in conformity with the acts of Congress and the statutes of the state, and had made his final proofs and received a final certificate from the register of the state land board, such land was taxable and subject to the tax lien attaching on that date for the year 1911.
3. The rule generally recognized by the courts with reference to the taxation of lands for which patent has not yet issued is that when payment in full has been made and settlement and improvement has been had and final proof thereof has been made, and the proper authorities of the Interior Department have accepted the proof and issued a final receipt to that effect, it operates to transfer such an equitable estate in the lands to the purchaser and settler as to immediately render the land liable to taxation, although the legal title is still held by the United States.
4. The general rule which has been applied to the taxation of a homestead, pre-emption and other lands acquired from the United States under the public land laws is applicable to the case of lands acquired under the Carey act.
APPEAL from the District Court of the Sixth Judicial District for Bingham County. Hon. James M. Stevens, Judge.
Action to enjoin the collection of taxes levied against certain lands. Judgment for the defendant. Plaintiff appeals. Affirmed.
Judgment affirmed. Costs awarded in favor of respondent.
W. H. Wilkins and W. A. Lee, for Appellant.
The federal Carey act expressly granted to the state the right to create a lien for the "necessary expenses of reclamation." Such specific expression of a direct grant prohibits the state from imposing any other lien whatever upon said lands. (Johnson v. So. Pacific Co., 117 F. 462, 54 C. C. A. 508; United States v. Thurston Co., 143 F. 287, 74 C. C. A. 425.)
Lands segregated under the federal Carey act are the "instrumentalities" through which the object of the federal government was to be attained. (United States v. Thurston Co., supra; Tucker v. Ferguson, 22 Wall. 527, 22 L.Ed. 805; Van Brocklin v. Anderson, 117 U.S. 151, 6 S.Ct. 670, 29 L.Ed. 845; McCullough v. Maryland, 4 Wheat. 316, 4 L.Ed. 579; Old National Bank v. County Court, 58 W.Va. 559, 52 S.E. 494, 6 Ann. Cas. 115, 3 L. R. A., N. S., 584; United States v. Rickett, 188 U.S. 432, 23 S.Ct. 478, 47 L.Ed. 537; United States v. Des Moines M. N. & R. Co., 142 U.S. 510, 12 S.Ct. 308, 35 L.Ed. 1106.)
The state could not tax these lands while the title remained in the United States, nor while she held them as trustee of the United States, which in view of the law was the same thing. (Tucker v. Ferguson, supra; Van Brocklin v. Anderson, supra; Wisconsin Central R. Co. v. Taylor County, 52 Wis. 37, 8 N.W. 833; Denniston v. Unknown Owners, 29 Wis. 351; Sioux City R. Co. v. County of Osceola, 43 Iowa 318; West Wis. R. Co. v. Supervisors, 93 U.S. 595, 23 L.Ed. 814.)
Public lands cannot be taxed while the title to the same remains vested in the state of Idaho. The state was prohibited from imposing the tax complained of because in this state "the passing of the fee determines the right to tax." (Idaho Const., art. 7, sec. 4; Idaho Rev. Codes, secs. 1586, 1644; Salisbury v. Lane, 7 Idaho 373, 63 P. 383; State v. Stephenson, 6 Idaho 367, 55 P. 886; Inland Lumber Co. v. Thompson, 11 Idaho 508, 114 Am. St. 274, 83 P. 933, 7 Ann. Cas. 862.)
J. E. Good, County Attorney, and Hansbrough & Gagon, for Respondent.
The appellant was on January 9, 1911, possessed of the beneficial and an indefeasible title to his lands, because on said date the United States parted with all its right, title and interest in said lands, and having prior thereto performed all of the conditions required of him, by both the state and federal government, to entitle him to a patent. (Wisconsin Central R. Co. v. Price County, 133 U.S. 496, 10 S.Ct. 341, 33 L.Ed. 687; Herrick v. Sargent, 140 Iowa 590, 132 Am. St. 281, 117 N.W. 751; County of Polk v. Hunter (State v. Hunter), 42 Minn. 312, 44 N.W. 201; Northern P. Ry. Co. v. Myers, 172 U.S. 589, 19 S.Ct. 276, 43 L.Ed. 564; United States v. Des Moines Nav. Ry. Co., 142 U.S. 510, 12 S.Ct. 308, 35 L.Ed. 1106; Chicago M. & St. P. Ry. Co. v. Hemenway, 117 Iowa 598, 91 N.W. 910.)
Government land, as to which all conditions precedent to transfer of title have been performed, is subject to taxation to the purchaser, though the legal title still remains in the government. (United States v. Southern Oregon Co., 196 F. 423.)
When payment of the full consideration for public lands has been made, and the receiver of the local land office issues a final receipt, it operates to transfer such an equitable estate in the premises as immediately to render them liable to taxation, though the United States holds the legal title until a patent is executed. (Johnson v. Crook County, 53 Ore. 329, 133 Am. St. 834, 100 P. 294; Mariner v. Oconto Land Co., 142 Wis. 531, 126 N.W. 34; State v. Itasca Lumber Co., 100 Minn. 355, 111 N.W. 276.)
This action involves the right of the county to collect taxes against lands taken under what is commonly known as the Carey act. Under the provisions of the Carey act (28 Stats. at Large, p. 422, 6 F. Stats. Ann., p. 397, Comp. Stats. 1901, p. 1554), the Secretary of the Interior, with the approval of the President, was authorized to contract with a state wherein desert land was situated, binding the United States to donate and patent to the state free of costs such desert lands not exceeding one million acres within the state as the state might cause to be "irrigated, reclaimed, occupied, and not less than twenty acres of each 160-acre tract, cultivated by actual settlers within ten years next after the passage of the act," etc. It was further provided by that act that "as fast as any state may furnish satisfactory proof, according to such rules and regulations as may be prescribed by the Secretary of the Interior, that any of said lands are irrigated, reclaimed and occupied by actual settlers, patents shall be issued to the state or its assigns for said lands so reclaimed and settled; providing that said states shall not sell or dispose of more than one hundred and sixty acres of said lands to any one person, and any surplus money derived by any state from the sale of said lands in excess of the cost of their reclamation, shall be held as a trust fund for and be applied to the reclamation of other desert lands in such state." By a subsequent act (29 Stats. at Large, 434, 6 F. Stats. Ann., p. 398, Comp. Stats. 1901, p. 1556), the state was authorized to create a lien on such lands "for the actual cost and necessary expense of reclamation," but for no other purpose.
In pursuance of the provisions of the Carey act, the legislature enacted chap. 5, title 9 of the Revised Codes of this state comprising secs. 1613 to 1634, inclusive, accepting the provisions of the act of Congress and providing for the state entering into contracts with individuals, associations or corporations, for the construction of irrigation works, and providing the means for reclaiming desert land within the purview and intention of the Carey act. Under and in pursuance of the provisions of the Carey act, and chap. 5, title 9 of the Rev. Codes of this state, and on the 19th day of July, 1899, the governor of Idaho entered into an agreement with the Secretary of the Interior for the withdrawal of a tract of land aggregating about 50,000 acres, of which the parcel of land taxed in this case was a part. The state thereafter entered into a contract with the American Falls Canal and Power Co., a corporation, existing under the laws of the state of Utah, by which this corporation contracted and agreed to construct a canal from a point on Snake river through this tract of land for the purpose of irrigating and reclaiming the same. The canal company thereafter constructed a canal known as the American Falls Canal, and represented that the canal was completed and that water had been furnished for the irrigation and reclamation of the greater part of the lands segregated, including the land belonging to the appellant herein. Upon this representation being made to the state board of land commissioners and the board being satisfied with such representation, application was made by the state to the Secretary of the Interior for the issuance of patent to the state for the lands described in the previous contract of segregation. In support of this application the state offered evidence of the irrigation and reclamation of the lands described in the list and of the completion of the canal system as required by...
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