CJortipll Ham i>rl|onI ICibtaty Cornell University Library KFC 880.A83 Right to tax unpatented railroad lands. 3 1924 024 622 601 The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024622601 [OPINION No. 99.] THE RIGHT TO TAX UNPATENTED RAILROAD LANDS, GOVERNMENT LANDS. FOR WHICfl LAND OFFICE ' 'RECEIFrS HAVE BEEN ISSUED. OPINION BY \V. O. H. HART, A-ttorney-Gen^ral of California. [OPINION No. 99.] THE RIGHT TO TAX UNPATENTED RAILROAD LANDS, GOVERNMENT LANDS FOR WHICH LAND OFFICE RECEIPTS HAVE BEEN ISSUED. OPINION BY W. H. H. HART, -A-ttomeji— General of California. OPINION OF THE ATTORNEY-GENERAL ON THE RIGHT TO TAX UNPATENTED RAILROAD LAIS,. AND Government Land for which Land Office Receipts have been Issued. SYLLABI. 1. All property in the State, not exempt under the laws of the United States, shall be taxed in proportion to its value, to be ascertained as provided by law. 2. The State of California has no power to tax the property belonging to the United States within the limits of California. 3. Where the right to a patent has once become vested in a purchaser of pub- lic lands, it is equivalent, so far as the Government is concerned, to a patent actually issued. The execution and delivery of the patent after the right to it has become complete are the mere ministerial acts of the officers charged with that duty. 4. The grant made to the Central Pacific Railroad Company by the Act of July 1, 1862, U. S. Statutes, Volume 12, page 489, and amendments thereto, and the grant made to the California and Oregon Railroad Company by the Act of July 25, 1866, U. S. Statutes, Volume 14, page 239, and amend- ments thereto, and all other grants of like character, to aid in the con- ' struction of the roads, were grants in presenti; and when the routes of the respective roads became definitely fixed the sections granted by the respective Acts thereupon became susceptible of identification, and the title attached to them, and took effect as of the date of the respective grants, so as to cut off all intervening claims; thereby the lands 'became the property of the railroad companies, and there was nothing to hinder their use and enjoyment, and it was immaterial whether the respective companies then had the legal and indefeasible title to the lands, or merely the equitable title to them , to be subsequently perfected by patents from the Government, and from that time the same were subject to tax- ,ation. 5. A legislative grant of public lands is the highest muniment of title, and is not strengthened by a subsequent patent of the same land. 6. So far as said Acts of Congress relate to indemnity lands to be given to the railroad companies, no title to such lands became vested in the companies until the selections were made and approved, as provided by the statutes; and, upon the making of such selections, the lands there- upon became the property of the railroad companies and subject to taxation, whether or not the Dnited States patents had issued. 7. Where Congress has prescribed the conditions upon which portions of the public domain may be alienated, and all such conditions have been com- plied with, and the tract to be alienated is distinctly defined, and noth- ing remains but to issue the patent, then the donee or purchaser is to be treated as the beneficial owner of the land, holding it as his own property subject to State and local taxation. 8. Whenever the equitable title to Government land becomes vested in a person or corporation, the United States only holds the legal title in trust for that person or corporation, and such property ceases to be the property of the United States, and is subject to State and local taxa- tion; that equitable title determines the ownership, without respect to the legal title within the meaning of the Constitution of the State of California that lands shall be assessed to the owner. _ 4 — 9. Whenever a purchaser of Government land has paid for the same, and cer- tificate of purchase lias been issued therefor, the land is subject to State and local taxation before the issuance of patent. 10. Lands granted by Congress to aid construction of railroads do not revert after condition broken, until forfeiture has been asserted by United States through judicial proceedings or legislative Acts legally equiva- lent to a judgment of office found at common law. 11. It is the duty of County Assessors to assess lands granted to aid in the construction of railroads, within their several counties, in accordance with this opinion. OPINION. 1. All property in the State, not exempt under the laws of the United States, shall be taxed in proportion to its value, to be ascertained as provided by law. Section 1, Article XIII, Constitution of California. It will be noticed that the language of this section of the Constitution needs no enabling Act of the Legislature. The section is self-executing. By its terms "All property shall be taxed in proportion to its value, to be ascertained by law ;" that is, it must be taxed, but its value shall be ascertained by the mode provided by law. Section 3607 of the Political Code pro- vides that "All property in this State, not exempt under the laws of the United States, excepting growing crops, property used exclusively for public schools, and such as may belong to the United States, this State, or to any county or municipal cor- poration within this State, is subject to taxation as within this Code provided; but nothing in this Code shall be construed to require or permit double taxation." Therefore, there is no pro- vision or warrant in law exempting railroad lands from taxa- tion. 2. The State of California has no power to tax property belonging to the United States within the limits of California. Section 1, Article XIII, Constitution of California. Section 3607, Political Code. This question was considered by the Supreme Court of the United States, in the case of the Wisconsin Central Railroad Company vs. Price County, reported in 133 U. S. 496. The opinion commences at page 504, and the honorable Justice rendering the same, declared the law upon this subject to be as follows: " It is familiar law that a State has no power to tax the property of the United States within its limits. This exemp- tion of their property from State taxation — and by State taxa- tion we mean any taxation by authority of the State, whether it be strictly for State purposes or for mere local and special objects — is founded upon that principle which inheres in every independent government, that it must be free from any such interference of another government as may tend to destroy its powers or impair theit efficiency." Also, see case of Van BrocUin vs. State of Tennessee, 117 U.S. 151. — 5 — 3. Where the right to a patent has once become vested in a purchaser of public lands, it is equivalent, so far as the Government is concerned, to a patent actually issued. The execution and delivery of the patent after the right to it has become complete are the mere min- isterial acts of the officers charged with that duty. Stoddard vs. Chambers, 2 How. U. S. 284, 318. Carroll vs. Stafford, 3 How. U. S. 441, op. 461. If a tract confirmed by Congress has clearly d,efined bound- aries, or is capable of identification, the confirmation perfects the claimant's title. A subsequent patent only serves as documentary evidence of that title. (Morrow ys. Whitney,d5\J.S. 551; Whitney ys. Mor- row, 112 U. S. 693.) The right to a patent for land, once vested, is treated by the Government as equivalent to a patent. {Stark vs. Starr, 6 Wall. 402, 418; Lessieur vs. Price, 12 How. 59; Shipley vs. Cowan, 91 U. S. 330; Whitney vs. Morrow, 112 U. S. 693; Wis- consin R. R. Co. vs. Price County, 133 U. S. 496, et seq.) 4. The grant made to the Central Pacific Railroad Company by the Act of July I, 1862, U. S. Statutes, Volume 12, page 489, and amend- ments thereto, and the grant made to the California and Oregon Railroad Company by the Act of July 25, 1866, U. S. Statutes, Volume 14, page 239, and amendments thereto, and all other grants of like character, to aid in the construction of the roads, were grants inpresenti; and when the routes of the respective roads became definitely fixed, the sections granted by the respective Acts there- upon became susceptible of identification and the title attached to them, and took effect as of the date of the respective grants, so as to cut off all intervening claims; thereby the lands became the property of the railroad companies, and there was nothing to hinder their use and enjoyment, and it was immaterial whether the respective companies then had the legal and indefeasible title to the lands, or merely the equitable title to them, to be subse- quently perfected by patents froih the Government, and from that time the same were subject to taxation. Schulenberg vs. Harriman, 21 Wall. 44. Leavenworth, Lawrence, and Galveston R. R. Co. vs. United States, 92 U. S. 733, op. 741. In this case the Court, in speaking of the grant, declares: "It creates an immediate interest, and does not indicate a pur- pose to give in future. 'There he and is hereby granted," are words of absolute donation, and impart a grant in presenti. This Court has held that they can have no other meaning; and the Land Department, on this interpretation of them, has uniformly administered every previous similar grant. (Railroad Company vs. Smith, 9 Wall. 95; Schulenberg vs. Harriman, 21 Id. 60; 1 Lester 513; 8 Opin. 257; 11 Id. 47.) " They vest a present title in the State of Kansas, though a survey of the lands and a location of the road are necessary to give precision to it, and attach it to any particular tract. The — 6 — grant then becomes certain, and by relation has the same effect upon the selected parcels as if it had specifically described them." To the same eflect is the case of Missouri, Kansas, and Texas R. R. Co. vs. Kansas Pacific Ry. Co., 97 U. S., p. 491. At page 496 of the opinion the Court declares that "The Act of July 1, 1862, passed to the company a present interest in the lands, to be designated within the limits there specified. Its language is ' that there be and is hereby granted ' to it the odd sections mentioned — words which import a grant in presenti, and not one in future, or the promise of a grant. * * * "It is true that the route of the road, in this case as in those cases, to aid in the construction of which the Act was passed,, was to be afterwards designated, and until designated the title could not attach to any specific tracts. The grant was of sec- tions to be afterwards located, and their location depended upon the route to be established; when that was settled, the location became certain, and the title that was previously imperfect acquired precision and attached to the lands. " It is always to be borne in mind, in construing a congres- ,sional grant, that the Act by which it is made is a law as well as a conveyance, and that such eflfect must be given to it as will carry out the intent of Congress. * * * When the location was made and the sections granted ascertained, the title of the plaintifi^ took eft'ect by relation as of the date of the Act, except as to the reservations mentioned; the Act having the same operation upon the sections as if they had been specially described in it. " The construction thus given to the grant in this case is, of course, applicable to all similar congressional grants, and there is a vast number of them; and it will tend, we think, to pre- vent controversies between the grantees and those claiming under them respecting the title to the lands covered by their several grants, and put an end to struggles to encroach upon the rights of others by securing an earlier location. Our lands in controversy by a location of the route of the road, being followed by a construction of the road, took effect by relation as of the date of the Act of 1862, so as to cut off all intervening claimants, except in the cases where reservations were specially made in that Act, and the amendatory Act of 1864." Also, see Railroad Company vs. Baldwin, 103 U. S. 426, a case construing an Act granting a right of way to a railroad company through Government lands, and in which case, at page 439, the opinion declares that " The language of the Act here, and of nearly all the Congressional Acts granting lands, is in terms of a grant in presenti. The Act is a present grant, except so far as its immediate operation is affected by the limi- tations mentioned. ' There is hereby granted,' are the words used, and they import an immediate transfer of interest, so — 7 — that when the route is definitely fixed the title attaches froin- the date of the Act to the sections. * * * This is the con- struction given by this Court to similar language in other Acts of Congress." Also, see case of Van Wyck vs. Knevals, 106 U. S. 360. The Act of July 25, 1866, U. S. Statutes, Vol. 14, page 239, is the Act granting lands to aid in the construction of a rail- road and telegraph line from the Central Pacific Railroad, in California, to Portland, in Oregon. It is provided by Section 2 of said Act, as follows: " Section 2. And be it further enacted, that there be, and hereby is, granted to the said companies, their successors and assigns, for the purpose of aiding in the construction of said railroad and telegraph line, and to secure the safe and speedy transportation of the mails, troops, munitions of war, and the public stores over the line of said railroad, every alternate sec- tion of, public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile (ten on each side) of said railroad line; and, when any of said alternate sec- tions, or parts of sections, shall be found to have been granted, sold, reserved, occupied by homestead settlers, preempted, or otherwise disposed of, other lands, designated as aforesaid, shall be selected by said companies in lieu thereof, under the direction of the Secretary of the Interior, in alternate sections designated by odd numbers as aforesaid, nearest to and not more than ten miles beyond the limits of said first named alternate sections; and, as soon as the said companies, or either of them, shall file in the office of the Secretary of the Interior a map of the survey of said railroad, or any portion thereof, not less than sixty continuous miles from either termi- nus, the Secretary of the Interior shall withdraw from sale public lands herein granted, on each side of said railroad, so far ,as located and within the limits before specified. The lands herein granted shall be applied to the building of said road within the States, respectively, wherein they are situated." It is thus seen that the specific grant in relation to this road was twenty miles on each side of the railroad; that is to say, twenty odd sections for each mile of railroad; and within the principles sustained by the authorities referred to, the above Act was a grant in presenti. The road has been fully completed for several years past without any forfeiture being declared. The question now arises, should the railroad lands be assessed and taxed? This question has been settled by the Supreme Court of the United States. In the case of the Wisconsin Cen- tral Railroad Company vs. Price County, reported in 133 U. S., commencing at page 496, Justice Field rendered the opinion of the Court, which is conclusive upon the question now under consideration. On page 505 the learned Justice says: " Usually the possession: of the legal title by the Government determines both the fact and right of ownership. There is, however, An exception to this doctrine in respect to the public domain, which is as well settled as the doctrine itself, and that is, that where Congress has prescribed the conditions upon which portions of that domain may be alienated, and provided that upon the performance of the conditions a patent of the United States shall issue to the donee or purchaser, and all such conditions are complied with, the land alienated being distinctly defined, it only remaining for the Government to issue its patent, and until such issue holding the legal title in trust for him, who, in the meantime, is not excluded from the use of the property; in other words, when the Government has ceased to hold any such right or interest in the property as to justify it in withholding a patent from the donee or purchaser, and it does not exclude him from the use of the property, then the donee or purchaser will be treated as the beneficial owner of the land, and the same be held subject to taxation as his property. This exception to the general doctrine is founded on the principle 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. " Thus in Carroll vs. Safford, 3 How. 441, 461, the complainant had entered certain lands belonging to the United States, in the local land ofiice, paid for them the required price, and received from the office a land certificate. Patents were issued for them, but before their issue the lands were assessed for taxation and sold for taxes. The question whether they were subject to tax- ation by the State after their entry and before the patents were issued was answered in the affirmative. Said the Court: ' When the land was purchased and paid for, it was no longer the property of the United States, but of the purchaser. He held for it a final certificate, which could no more be canceled by the United States than a patent.' , And again: 'It is said the fee is not in the purchaser, but in the United States, until the patent shall be issued. This is so, technically, at law, but not in equity. The land in the hands of the purchaser is real estate, descends to his heirs, and does not go to his executors or administrators.' And again: 'Lands which have been sold by the United States can in no sense be called the property of the United States. They are no more the property of the United States than lands patented. So far as the rights of the purchaser are considered, they are protected under the patent certificate as fully as under the patent. Suppose the officers of the Government had sold a tract of land, received the purchase money, and issued a patent certificate; can it be contended that they could sell it again, and convey a good title? They could no more do this than they could sell land a second time which had been previously patented. When sold, — 9 — the Government, until the patent shall issue, holds the mere legal title for the land in trust for the purchaser, and any- second purchaser would take the land charged with the trust.' " In Witherspoon vs. Duncan, 4 Wall. 210, 218, a similar ques- tion arose, and was in like manner answered. Saidthe Court: ' In no just sense can lands be said to he public lands after they have been entered at the land' office, and a certificate of entry obtained. If public lands before the entry, after it they are private property. If subject to sale, the Government has no power to revoke the entry and withhold the patent. Second sale, if the first was authorized by law, confers no right on the buyer, and is a void act.' And again: ' The contract of purchase is complete when the certificate of entry is executed and deliv- ered, and thereafter the land ceases to be a part of the public domain. The Government agrees to make proper conveyance as soon as it can, and in the meantime holds the naked legal title in trust for the purchaser, who has an equitable title.' (See, also, Railway Company vs. Prescott, 16 Wall. 603, 608; Rail- way Company vs. McShane, 22 Wall. 444, 461.) " In the light of these decisions it will be necessary, in order to determine the liability of the property held by the plaintiff to taxation in 1883, to consider the nature and extent of its inter- est in the property at that tinle, acquired under the grant of Congress of May, 1864, and by its subsequent construction of the road. " Numerous grants of land were made by Congress between 1860 and 1880, to aid in the construction of railroads; some directly to incorporated companies, others to diff'erent States, the lands to be. by them transferred to companies by whom the construction of the roads might be undertaken. The diff'erent Acts making these grants were similar in their general provis- ions, and so many of them have been, at different times, before this Court for consideration that little can be "said of their pur- port and meaning, the title they transfer, and the conditions upon which the land could be used and disposed of, which has not already and repeatedly been said in its decisions. Each grant gave a 'specified quantity of lands, designated by sections along the route of the proposed road, with the exception of such as might, when the line of the road should be definitely fixed, have been disposed of or reserved by the Government, or to which a preemption or homestead right might then have attached. For these excepted sections, which otherwise would have been taken from those designated along the line of the road, other lands beyond those sections within a specified distance were allowed to be selected. The title conferred was a present one, so as to insure the donation for the construction of the road proposed against any revocation by Congress, except for non- performance of the work within the period designated, accom- panied, however, with such restrictions upon the use and — 10 — disposal of the lands as to prevent their diversion from the purposes of the grant." And again, on page 509, the Justice says: "The refusal of the Land Department, therefore, to allow the deficiencies aris- ing in the sections within the place limits in this State to be supplied by selections from the indemnity lands, and to issue patents of the United States for them, was erroneous. " The question now arises as to how far this refusal affected the legal or equitable title of the company to the lands taxed in 1883, for which it only obtained a patent in 1884. The lands taxed amounted to eleven parcels of forty acres each, lying within the original sections named in the grant; that is, within the ten-mile limit from the line of the road, and the remainder were within the indemnity limits. Neither were allowed, because, by excluding the deficiencies arising before the date of the grant from indemnity, the whole amount of the lands granted had already been patented. So far as the eleven parcels of forty acres each are concerned, the right of the plaintiff to them and to a patent for them had, as early as 1877, become complete under the terms of the granting Act. The line of the railroad had been definitely fixed on the seventh of October, 1869; and the three twenty-mile sections, numbers five, six, and seven, were all completed in June, 1877, and supplied with the build- ings and appurtenances specified in the Act to entitle the com- pany to patents for them from the United States. The title conferred by the grant was necessarily an imperfect one, because, until the lands were identified by definite location of the road, it could not be known what specific lands would be embraced in the sections named. The grant was, therefore, until such location, a float. But when the route of the road was definitely fixed, the sections granted became susceptible of identification, and the title attached to them and took effect as of the date of the grant, so as to cut off' all intervening claims. {Schulenberg vs. Harriman, 21 "Wall. 44, 60; Leavenworth, etc., Railroad vs. United States, 92 U. S. 703, 741 ; Missouri, Kansas, and Texas Rail- road Co. vs. Kansas Pacific Railroad Co., 97 U. S. 491, 496; Railway Co. vs. Baldwin, 103 U. S. 426, 42^.) The road having been built as early as June, 1877, and supplied, as required, with the appurtenances specified, the company was entitled to have the restrictions upon the use of the land released. It had then,_ to the eleven forty-acre parcels which were capable of identification, an indefeasible right or title; it matters not which term be used. The subsequent issue of the patents by the United States was not essential to the right of the company to those parcels, although in many respects they would have been of great service to it. They would have served to identify the lands as coterminous with the road completed; they would have been evidence that the grantee had complied with the conditions of the grant, and to that extent that the grant was relieved of — 11 — possibility of forfeiture for breach of them; they would have obviated the necessity of any other evidence of the grantee's right to the lands; and they would have been evidence that the lands were subject to the disposal of the railroad company with the consent of the Government. They would have been, in these respects, deeds of further assurance of the patentee's title, and, therefore, a source of quiet and peace to it in its possession. " There are many instances in the reports where such effect as is here stated has been given to patents authorized or directed to be issued to parties, n9twithstanding they had previously received a legislative grant of the premises, or their title had been already confirmed. In Langdeau vs. Hanes, 21 Wall. 521, 529, we have one of that kind. There, this Court said: ' In the legislation of Congress a patent has a double operation. It is a conveyance by the Government, when the Government has any interest to ponvey; but where it is issued upon the confirmation of a claim of a previously existing title, it is documentary evi- dence, having the dignity of a record of the existence of that title, or of such equities respecting the claim as justify its recognition and confirmation. The instrument is not the less efficacious as evidence of previously existing rights, because it also embodies words of release or transfer from the Government.' We are of opinion, therefore, that these eleven forty-acre parcels were in 1883 subject to taxation by the State of Wisconsin. The lands had become the property of the railroad company, and there was nothing to hinder their use and enjoyment. For that purpose it is immaterial whether it be held that the company then had a legal and indefeasible title to the lands, or merely an equitable title to them, to be subsequently perfected by patents from the Government." On reading these authorities, and applying the principles therein announced, there can be no doubt that lands within the limits of a specific grant (twenty miles on each side of the railroad, in the matter now under consideration) is taxable, whether or not United States patent has issued. The Act of Congress, passed and approved July 10, 1886, pro- vides for taxation of railroad grants, and is as follows: " Chap. 764. An !Act to provide for taxation of railroad-grant lands, and for other purposes. " Be it enacted by the Senate and House of Representatives of the United States of America, in Congress^ assembled, That no lands granted to any railroad corporation by any Act of Con- gress 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 costs of surveying, selecting, and conveying the same, or because no patent has been issued there- for; but this provision shall not apply to lands unsurveyed; provided, that any such land sold for taxes shall be taken by the purchaser subject to the lien for costs of surveying, select- — 12 — ing, and conveying, to be paid in such manner by the purchaser as the Secretary of the Interior may by rule provide, and to all liens of the United States, all mortgages of the United States, and all rights of the United States in respect of such lands; pro- vided further, that this Act shall apply only to lands situated opposite to and coterminous with completed portions of said roads, and in organized counties; provided further, that at any sale of lands under the provisions of this Act the United States may become a preferred purchaser, and in such case the land sold shall be restored to the public domain and disposed of as provided by the laws relating thereto." 5. A legislative grant of public lands is the highest muniment of title, and is not strengthened by a subsequent patent for the same land. In Whitney vs. Morrow, 112 U. S. 693, it was held that: "If, by a legislative declaration, a specific tract is confirmed to any one, his title is not strengthened by a subsequent pat- ent from the Government. That instrument may be of great service to him in proving his title, if contested, and the extent of his land, especially when proof of its boundaries would otherwise rest in the uncertain recollection of witnesses. It would thus be an instrument of quiet and security to him, but it could not add to the validity and completeness of the title confirmed by the Act of Congress. {Langdeau vs. Hanes, 21 Wall'. 521 ; Ryan vs. Carter, 93 U. S. 78; Tripp vs. Spring, 5 Sawyer, 209,216.) " If there were any difference in the grade of the two con- veyances of the Government — that by a direct legislative act, and that by officers acting under provisions of the statute — it would seem that there should be greater weight and dignity attached to the legislative grant, as proceeding more immediately from the source of title than the patent. No impeachment can be had of the motives of the Legislature; whereas, the motives of ofiicers employed to supervise the alienation of public lands may sometimes be questioned, as in proceedings to set aside their action,, Still, if the law be complied with, the title passes as completely in the one case as in the other. {Montgom- ery vs. Bevans, 1 Sawyer, 653, 677.)" 6. So far as said Acts of Congress relate to indemnity lands to be given to the railroad companies, no title to such lands became vested in the companies until the selections were made and approved, as pro-, vided by the statutes; and, upon the making of such selections, the lands thereupon became the property of the railroad companies and subject to taxation, whether or not the United States patents had issued. In the case of Sioux City Railroad vs. Chicago Railway, 117 U. S., page 406, opinion page 408, the Court says: " But no title to indemnity lands was vested until a selection was made^ by — 13 — which they were pointed out and ascertained, and the selection made approved by the Secretary of the Interior." Wisconsin Railroad Company vs. Price County, 133 U. S. 496, opinion pages 511, 512, 513. At page 513 the learned Justice says: "In Sioux City, etc., Railroad vs. Chicago, etc.. Railway, 117 U. S. 406, 408, where the railroad grant as to indemnity lands was substantially similar to the one in this case, and one of the questions was as to the title to the indemnity lands, the Court said: ' No title to indemnity lands was vested until a selection was made by which they were pointed out'and ascertained, and the selection made approved by the Secretary of the Interior.' "In Barney vs. Winona, etc.. Railroad, 117 U. S. 228-232, the Court said: 'In the construction of land-grant Acts, in aid of railroads, there is a well established distinction observed between ' granted lands ' and ' indemnity lands.' The former are those falling within the limits specially designated, and the title to which attaches when the lands are located by an approved and accepted survey of the line of the road filed in the Land Depart- ment, as of the date of the Act of Congress. The latter are those lands selected in lieu of parcels lost by previous disposi- tion or reservation for other purposes, and the title to which accrues only from the time of their selection.' " The same view has been held by different Attorneys-Gen- eral of the United States, in their official communications to heads of the departments, where selections of the public lands have been granted, subject to the approval of the Secretary of the Interior (Cape Mendocino Lighthouse Site, 14 Opinions Att'ys- Gen. 50; Portage Land Grant, Id. 645), and such has been the consistent practice of the Land Department. The uniform language is, that no title to indemnity lands becomes vested in any company or in the State until the selections are made; and they are not considered as made until they have been approved, as provided by statute, by the Secretary of the In- terior," 7. Where Congress has prescribed the conditions upon which portions of the public domain may be alienated, and all such conditions have been complied with, and the tract to be alienated is distinctly defined, and nothing remains but to issue the patent, then the donee or pur- chaser is to be treated as the beneficial owner of the land, holding it as his own property, subject to State and local taxation. Wisconsin Railroad Company vs., Price County, 133 U. S. 496. Whitney vs. Morrow, 112 U. S. 693. — 14 — , 8. Whenever the equitable title to Government land becomes vested in^a person or corporation, the United States only holds the legal title in trust for that person or corporation, and such property ceases to be the property of the United States and is subject to State and local taxation; that equitable title determines the ovynership, Tvithout respect to the legal title within the meaning of the Constitution of the State of California that lands shall be assessed to the owner. Wisconsin Railroad Company vs. Price County, 133 U. S. 496. People vs. Donnelly, 58 Cal. 144. People vs. Crockett, 33 Cal. 150. People vs. Shearer, 30 Cal. 645. Lux vs. Haggin, 69 Cal. 429. Central Pacific R. R. Co. vs. Howard, 52 Cal. 280. The case of Central Pacific R. R. Co. vs. Howard, 52 Cal. 227, does not militate against the views expressed in this opinion, so far as the opinion in that case holds that the limitations in the Act of Congress might defeat the title; and hence the right of taxation was not necessary to the decision in that case; and such a construction upon the Act of Congress grant- ing lands to railroad companies is overcome and finally de- termined by the decision in the case of Wisconsin Railroad Company vs. Price County, 133 U. S. 496, in that the construc- tion of the Federal Statutes by the Supreme Court of the United States must govern in preference to a construction given to such statute by the Supreme Court of a State. 9. Whenever a purchaser of Government land has paid for the same, and certificate of purchase has been issued therefor, the land is subject to State and local taxation before the issuance of patent. , Carroll vs. Stafford, 3 How. 441, op. 461. Wisconsin Railroad Co. vs. Price County, 133 U. S. 496, et seq. ID. ■ Lands granted by Congress to aid construction of railroads .do not revert after condition broken, until forfeiture has been asserted by United States through judicial proceedings or legislative Acts legally equivalent to a judgment of office found at common law. The railroad company cannot escape taxation of these lands subject to taxation as aforesaid, by claiming that Congress may yet declare a forfeiture of the grant. It is sufficient to say that the lands would not revert to the United States, although the road was not constructed within the period prescribed, without action being taken either by legislative or judicial proceedings to enforce a forfeiture of the grant. (Schulenberq vs. Harriman 21 Wall. 44.) And I hold that if the road was completed before legislative or judicial action was taken to declare the forfeiture, the completion of the road would be an answer to such actor judicial proceeding. — 15 — It was decided in St. Louis, Iron Mountain, and Southern Railway Company vs. McGee, 115 U. S. 469, opinion page 473, that: "It has often been decided that lands granted by Con- gress to aid in the construction of railroads do not revert after condition broken, until a forfeiture has been asserted by the United States, either through judicial proceedings instituted under authority of law for that purpose, or through some legis- lative action legally equivalent to a judgment of office found at common law;" and authorities there cited. II. It is the duty of County Assessors to assess lands granted to aid in the construction of railroads within their several counties in accord- ance with this opinion. Under the authorities here cited, and in accordance with this opinion. County Assessors in this State should assess railroad lands within their respective counties; and a failure to do so will be dereliction of duty upon their part, for which they may be proceeded against under the law. Wm. h. h. hart, Attorney-General of California. Sacramento, June 13, 1891.