Northern Pacific Company v. Patterson/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 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, 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 board of county commissioners of each county shall constitute a board for the correction of the assessment roll and the equalization of assessed value of property, and on the third Monday in the month of September, of each year, said board shall meet at the office of the county clerk, at the county seat, and may adjourn from time to time as deemed necessary. Public notice of the time and place of the meeting of said board shall be given by the county clerk by publication for at least two successive weeks, in a newspaper published in said county, if there be one, otherwise by notices posted in five public places immediately prior to the meeting of said board of equalization; but no notice of an adjourned meeting of said board shall be required. Any person feeling aggrieved by any valuation, or amount of property listed, or by any other fact appearing on such assessment, may apply to such board for the correction thereof, and if, in the opinion of said board, any valuation is too high or too low, as compared with other valuations, by the assessor, of similar classes of property, it may equalize the same; but if such equalization results in any increase, the party affected thereby shall be given reasonable notice of the intention to increase such valuation, with opportunity to appear, which notice may be sent by mail, with postage thereon prepaid. If any person returned as refusing to render a list or to be sworn thereto, can show good cause therefor, the penalty provided may be remitted.'

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 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. 

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