initiation of these tax proceedings—and provides “that no lands granted to any railroad by an act of congress shall be exempt from taxation by states, territories, and municipal corporations on account of the lien of the United States upon the same for the cost of the surveying, selecting, and conveying the same, or because no patent has been issued therefor; but this provision shall not apply to lands unsurveyed.” In justice to the plaintiff's counsel it is proper to add that it is conceded that the failure to pay the costs of survey is of no moment in this controversy, in view of this statute. It appearing that the tax proceedings were so irregular that they would, when they should culminate in a tax deed, cast a cloud upon the plaintiff's title, the plaintiff had a right to maintain this action, in view of the statute and the interpretation placed upon it by this court in Farrington v. Investment Co., 1 N. D. 102; but judgment should have been rendered against the plaintiff and in favor of the defendant, as treasurer, for the amount of the taxes, penalties, and interest, as held by this court in the Farrington Case. The judgment of the district court should therefore be reversed, and that court directed to ascertain the amount of the taxes, with penalties, and interest from date of delinquency, as prescribed by law in cases of delinquency, and render judgment against plaintiff and in favor of defendant, as treasurer, for such amount, and also render judgment for plaintiff annulling the tax proceedings set forth in the complaint.
BagTHOLoMEW and WALLIN, JJ., having been of counsel, did not sit on the hearing of the above case, nor take any part in the decision; Judge WINCHESTER, of the sixth judicial district, and Judge McConnELt, of the third judicial district, sitting in their places by request.
