(dissenting.) I am unable to agree with the views expressed in the prevailing opinion. The plaintiff invokes the interposition of equity to stay the collection of taxes assessed against its land grant in the county of McLean. It rests its claim for equitable relief upon two grounds: It insists that the land grant was exempt from taxation; it asserts that the tax proceedings were illegal and void. We will discuss these propositions in their order. The contention that the land grant was exempt is based upon the provisions of chapter 99 of the Laws of 1883. This statute, in substance, declares that in lieu of any and all other taxes upon the property of any railroad company there shall be paid a percentage of all the gross earnings of such company “ arising from the operation of such railroad as shall be situated within this territory,” and that such payment shall be in full of all taxation and assessment upon such property. To plaintiff’s claim to exemption founded upon this *375statute the defendant presents four answers: First, that the statute does not in fact exempt the land grant; second, that, if it be susceptible of the construction that it does in terms make such exemption, it is repugnant to the fourteenth amendment to the federal constitution, in that it denies to some citizens the equal protection of the laws of the territory by imposing upon them an increased burden of taxation arising from the exemption of this land grant from taxation; third, that it is within the inhibition of § 1925 of the United States Revised Statutés, prohibiting the territory from making any discrimination in taxing different kinds of property, and ordaining that all property subject to taxation shall be taxed in proportion to its value; fourth, that so much of the gross earnings law as relates to local earnings on interstate traffic is void, because repugnant to the exclusive grant to congress in the federal constitution of the power to regulate commerce among the several states, in that it. taxes a portion of the earnings of such interstate commerce,' and that the exemption, resting upon the validity of the entire tax as the consideration for such exemption, falls with the .void! portion of the tax, and therefore the act in its entire scope, including the exemption feature, is a nullity. The first three of these propositions will not be discussed in this opinion. The conclusion which I have reached as to the fourth answer of the defendant renders an opinion on the other questions unneces-sary. The second and third will be sustained, because the fed-eral circuit court has settled them in favor of defendant; and, - being federal questions, I deem it our duty to follow that court-on such questions.
Is, then, the act of 1883 unconstitutional in part? And, if - so, is that part so important — is it of such magnitude — that it cannot be asserted that the legislature would have bargained away the right to tax plaintiff’s property in consideration of the ■ portion of the gross earnings tax, which would be constitutional if standing- by itself? It seems to be clear, and, indeed,' it is undisputed, that, if the act relates solely to gross earnings arising from purely local transportation, it would be constitu- ' tional. It would not in any sense interfere with interstate com- ' merce. The plaintiff insists that this is the true construction; *376of the statute. We can find nothing to support the plaintiff’s contention in this regard. The argument advanced is based on a sound principle, but that principle has no application in view of the language of the act and the circumstances surrounding its passage. The principle invoked by the plaintiff in this connection is that every legislature must be presumed to have intended to enact a constitutional law, and therefore, if the language of a statute is susceptible of two interpretations, equally reasonable, one of which will save it from the death-blow of the constitution, such construction must be adopted. This principle would be of controlling weight in this case if it could be seen that there was any room for doubt as to the intent of the legislature — if it could be said with any degree of plausibility that that body intended to tax only local earnings on local traffic. But it is unjustifiable to adjudge that the law-making power has established a rule different from that which it clearly intended to establish, for the sole purpose of sustaining a law in part, which cannot be upheld in its full scope. Such an application of the principle invoked would lead to the substitution by the courts of a deformed, dismembered, and emasculated statute, which the sovereign power would have scorned to enact, in place of a symmetrical and harmonious law. Say the court in French v. Teschemaker, 24 Cal. 554: “If any particu" lar construction has the effect to declare the act, or any part of it, unconstitutional, such construction must be avoided when it can be fairly done, for the legal presumption is that the legislature could not h ave so intended. This, however, is to be taken with the qualification that, where the language used is unambiguous, and the meaning clear and obvious, an unconstitutional consequence cannot be avoided by forcing upon it a meaning, however plausi ble it may be, which is, upon a fair test, repugnant to its terms.” In Supervisors v. Brogden, 112 U. S. 261, 5 Sup. Ct. Rep. 125, the court said: “But if there were room for two constructions, both' equally obvious and reasonable, the court must, in deference to the legislature of the state, assume that it did not overlook the provisions of the constitution, and designed the act of 1871 to take effect. Our duty, therefore, is to .ad opt that construction which, without doing violence to the *377fair meaning of the words used, brings the statute into harmony with the provisions of the constitution.” See, also, U. S. v. Reese, 92 U. S. 214. The legislature declared in express terms that the gross earnings to be taxed were all gross earnings of the corporation owning or operating such railroad “arising írom the operation of such railroad as shall be situated within the territory.” The language is too clear to justify any doubt as to its meaning. The question is whether the gross earnings arose from the operation of the railroad situated within the territory. If so, they are taxed, and “ all” such earnings are taxed. On a shipment from Bismarck to ¡St. Paul that portion of the earnings for the transportation from Bismarck to Fargo is as much the result of the operation of the railroad situated within the territory as if the freight had been carried no further than Fargo. The statute includes in express terms all local earnings, whether arising from purely local or from interstate transportation. To give it the meaning contended for by plaintiff, we must interpolate into it a limitation of its broad import by construction. We must say that it relates only to local traffic, when it in terms embraces all traffic, interstate as well as local. While we are loath to declare a law unconstitutional, we are still more loath to set up by a species of judicial legislation a mangled statute in the place of a complete act, simply because the manifest intent of the legislature cannot stand before the supreme law of the land.
In the prevailing opinion, after some preliminary discussions, the conclusion is reached that the gross earnings subject to taxation under the law are “all the gross earnings arising from the operation within this territory of such railroad.” I am content to accept this construction for the purpose of the argument, but I am at a loss to understand by what process of reasoning the conclusion is reached on this view of the statute that only local earnings on local traffic are taxed. To demonstrate the unsoundness of this conclusion, let us assume that each of the four states of Washington, Montana, North Dakota, and Minnesota should enact a law taxing all the gross earnings arising from the operation within these states, respectively, of the Northern Pacific Railroad Company. On a shipment from *378some point in Washington to some point in Minnesota $1,000 of freight is earned by the company. Under the view adopted in the prevailing opinion, none of these gross earnings — i. e., the $1,000 — have arisen from the operation of the railroad within any one of these states. If that opinion embodies a correct interpretation of such a statute, it would be the opinion of the supreme court of each of these 'states. We would then have the unanimous voice of all these final tribunals declaring that, although this $1,000 had been earned by the operation of the road within these four states, yet in fact none of these earnings arose from the operation of the road within any one of these states. We go further, and say that, even if it could be claimed that the act of 1883 would admit of two constructions equally obvious, still it does not follow that that should not be adopted which would now make the statute unconstitutional, for the reason that when that law was enacted it was the general opinion of the profession and of courts that the federal supreme court had ruled that a tax on the gross receipts of a corporation arising not only from local, but also from interstate, commerce was valid. The supreme courts of Ohio and Missouri had already placed this construction on the federal court decision. We cannot assume that the legislature which passed this law was wiser than courts of eminent standing, which had before and which subsequently held such a law valid; nor that it entertained any other view of the question than that previously expressed by the courts of two of the states, but also by the highest arbiter, the’federal supreme court itself; Ohio and Missouri having already declared that the court had so held. The principle underlying the doctrine that the meaning must be chosen which will render the statute constitutional is that the legislature must be deemed to have understood the true scope of the constitution, and therefore that the other construction would render their act void. But this rule can have no application where the profession, the highest courts of states, and, apparently, the highest court of the nation, had agreed at the time the act was passed that, giving it its broadest scope, its obvious meaning, it was nevertheless not condemned by the federal constitution. In short, when the act of 1883 was passed, it was regarded as settled *379that the state could tax the local gross earnings of interstáte’ commerce. The legislature so believed, and their language not only indicates that belief, but also that they acted upon it, and gave their enactment the wide scope which contemporary opinion justified as constitutional. It was not until the decision of Fargo v. Michigan, 121 U. S. 230, 7 Sup. Ct. Rep. 857, that it was supposed that a tax on interstate gross earnings was unconstitutional. This case was decided in April, 1887. The case of State Tax on Railway Gross Receipts, 15 Wall. 284, certainly appears to sustain such a tax; and the supreme court of Pennsylvania held that that was the doctrine which that ease enunciated, in Steamship Co. v. Com., 104 Pa. St. 109; Car Co. v. Com., 107 Pa. St. 148; and Telegraph Co. v. Com., 110 Pa. St. 405, 20 Atl. Rep. 720. And in the late case of Canal Co. v. Com., 17 Atl. Rep. 175, the same court overruled these decisions, and distinctly states that they were based on the case in 15 Wall; 284, and that they correctly interpreted the scope and effect of that decision, which, however, had been practically overruled by the Fargo Case and the decision in Steamship Co. v. Pennsylvania, 122 U. S. 326, 7 Sup. Ct. Rep. 1118.
In Canal Co. v. Com., 17 Atl. Rep. 175, the supreme court adopted as its opinion the opinion of the trial court. Referring to the two later decisions of the federal supreme court, above cited, the trial court said: “If the cases thus referred to, with others therein quoted, and the language quoted, do not completely overthrow the authority of the State Tax on Railway Gross Receipts, we are at a loss to understand their meaning. Believing that they do, we think it our duty to disregard that decision, and to follow the later cases in holding that a statute which attempts to tax the gross receipts of transportation companies derived, in the language of the act before us, from “ tolls and transportation, telegraph business, or express,” is not valid, so far as such receipts are derived from commerce between points without the state.” There is no doubt that the supreme court of Pennsylvania always has considered, and still does consider, that the case of State Tax on Railway Gross Receipts, 15 Wall. 284, sustained the constitutionality of a tax on the gross earnings of interstate commerce. The Michigan supreme court *380placed the same construction on that decision in Fargo v. Auditor General, 57 Mich. 598, 24 N. W. Rep. 538, the case which was reversed in 121 U. S. 230, 7 Sup. Ct. Rep. 857, when the new doctrine was for the first time announced. In answer to the claim that the tax was unconstitutional because it was upon the interstate gross earnings of a corporation, the Michigan supreme court referred to the case of State Tax on Railway Gross Receipts, 15 Wall. 284; and in reply to an attempt to distinguish the case the court in emphatic language declared that that case held that a tax on the receipts of interstate commerce was not repugnant to the federal constitution, saying: “But the point decided was that such a tax was not invalid because in conflict with the power of congress to regulate commerce among the states.” The syllabus in the ease in 15 Wall. 284, certainly warrants this statement. It is as follows: “A tax levied upon the gross receipts of a railroad company is not in conflict with the constitution of the United States. Such a tax is not a tax upon interstate transportation.” In the opinion the court said: “It was claimed in the state court that the act is unconstitutional so far as it taxes that portion of the gross receipts of companies which are derived from transportation from the state to another state, or into the state from another; and, the supreme court of the state having decided adversely to the claim, the case has been brought here for review.” The decision of the state court holding the act to be constitutional in its entire scope was affirmed. In Telegraph Co. v. Mayer, 28 Ohio St. 521, the supreme court, in 1876 — seven years before the passage of the gross earnings statute in question — held that the case in 15 Wall. 284 had settled the law in favor of the constitutionality of such a tax; the court deciding on the basis of that case that a tax on the gross receipts of telegraph companies was valid, although the gross receipts “ arose chiefly from messages pertaining to such commerce, or from messages originating or terminating outside of the state, or were earned on the lines of such companies outside of the state.” The same decision was made, and the same construction was placed upon 15 Wall. 284, in the case of Express Co. v. St. Joseph, 66 Mo. 675. This case was decided in 1877 — six years before the gross earnings law of *3811883 was passed in this territory. The court said: “But it is said, as the business of plaintiff consisted in receiving packages to be transported from St. Joseph to other points outside of the state, to which plaintiff’s line did not extend, the tax upon the gross receipts of the plaintiff was violative of that provision of the constitution of the United States confiding to congress alone the power to regulate commerce with foreign nations and among the several states. In the case of Railroad Co. v. Pennsylvania, 15 Wall. 284, it was expressly held that a statute of a state imposing a tax upon the gross receipts of railroad companies is not repugnant to the constitution, though the gross receipts are made up in part from freights received for transportation from that state to another state; that such a tax is neither a regulation of interstate commerce nor a tax on imports nor upon interstate transportation.” At the time the act of 1883 was passed there was no adjudication that a tax on gross earnings arising from interstate commerce was a regulation of commerce. There was apparently, and, in the opinion of this and other courts, actually, a decision to the contrary in the federal supreme court and in Ohio and Missouri, and it was the accepted doctrine that such legislation was valid. We agree with counsel for the plaintiff that the legislature must, if possible, be deemed to have intended to enact such a law as would be constitutional. But such a statute as we construe this to be would have been constitutional had not decisions — one of them in the federal supreme court — in force when it was enacted, been subsequently overruled. Not feeling justified in attributing to that body superhuman prescience, I must hold that they believed they had the power to tax the local gross earnings of interstate commerce, and therefore meant to tax them, having so declared in unmistakable terms. The territorial supreme court, in Railroad Co. v. Raymond, 5 Dak. 356, 40 N. W. Rep. 538, practically held that the act of 1883 related to local earnings on interstate as well as on local transportation. It is plain that the court in that case did not deem it possible to put such a construction on the statute aS would limit its provisions to a tax on local traffic. This view of the meaning of the law would have obviated the necessity of *382passing upon the constitutionality of any part of the act, for it would, under that interpretation, have related solely to a tax on local earnings, conceded to be valid by all the cases, and so held in this very decision. That such a tax is valid, see Sands v. Improvement Co., 123 U. S. 295, 8 Sup. Ct. Rep. 113;. State Freight Tax, 15 Wall. 232; Fargo v. State, 121 U. S. 230, 7 Sup. Ct. Rep. 857; Ratterman v. Telegraph Co., 127 U. S. 411,8 Sup. Ct. Rep. 1127. Courts are loath to hold any portion of an act unconstitutional, and the supreme court in that case would never have adjudged the unconstitutionality of that part of the statute which referred to interstate earnings could it possibly have held that such earnings were not within the purview of the law. Say the court on this point: “It is olear at the outset, and conceded by the attorney general for the appellant, that so much of the act * * * as provides for a tax, or the payment of a percentage in lieu thereof, upon the gross earnings of a railroad company operating in this territory, received for business — the transportation of passengers and property not local, that is, not originating and ending wholly within this territory, but interstate, and therefore coming under the head of interstate commerce — is unconstitutional and void.” The attorney general of the territory also construed the statute to refer to interstate gross earnings. In fact, all the officers of the territory charged with the enforcement of this law have adopted the same interpretation, and that construction was acquiesced in by the plaintiff and all other railroad corporations until the decision in the Fargo Case, when the plaintiff insisted, not that the act did not in terms relate to interstate earnings, but that, in so far as it did embrace such earnings, it was, in the light of the ruling in the Fargo Case, unconstitutional and void. The promptness with which the plaintiff seized upon this ground to resist the payment of the tax on interstate earnings furnished strong evidence that it did not consider that the other ground, now for the first time urged, existed.
A construction placed upon a statute by those intrusted with the enforcement of it is strong evidence of its meaning, especially where*, as in this case, that construction has been adopted by parties interested, when the contrary interpretation *383would have saved them the payment of thousands of dollars of taxes annually. Said the court in U. S. v. Johnson, 124 U. S. 236, 8 Sup. Ct. Rep. 446: “In view of the foregoing facts, the' case comes fairly within the rule announced by this court that the contemporaneous construction of a statute by those charged with its execution, especially when it has long prevailed, is entitled to great weight, and should not be disregarded or overturned except for cogent reasons, and unless it be clear that such construction is erroneous.” While the construction of this statute had not prevailed for a very long time, it was sustained by the voluntary con currence of all the corporations interested in defeating such int erpretation. In U. S. v. Philbrick, 120 U. S. 52, 7 Sup. Ct. Rep. 413, the court, in stating the rule, eliminated the element of time, saying: ‘.‘A contemporaneous construction by the officers upon whom was imposed the duty of executing" those statutes, is entitled to great weight, and, since it is not clear that that construction was erroneous, it ought not now to be overturned.” To same effect, Hahn v. U. S., 107 U. S. 402, 2 Sup. Ct. Rep. 494; U. S. v. Pugh, 99 U. S. 265; Brown v. U. S., 113 U. S. 568, 5 Sup. Ct. Rep. 648, and cases cited. Our statute embodies this principle: “Contemporaneous construction is, in general, the best.” § 4722, Comp. Laws. The act of 1889 (chapter 107) is a legislative construction of the act of 1883. Among other provisions, not important to be considered, it declares that “any company which has not complied with the provisions of chapter 99 of the Session Laws of 1883 by paying all taxes claimed on gross earnings, both territorial and interstate,” etc. Said the court in U. S. v. Freeman, 3 How. 556: “And if it can be gathered from a subsequent statute in pari materia what meaning the legislature attached to the words of a former statute they will amount to a legislative declaration of its meaning, and will govern the construction of the first statute.” The soundness of this doctrine is expressly recognized in the prevailing opinion in this case in connection with the construction of ■ the act of congress containing the land grant to the appellant, and it is applied in the case where the subsequent legislative construction of a prior act is much less emphatic and unmistakable than is the interpretation placed upon the gross *384earnings law of 1883 by the gross earnings law of 1889. This later act expressly declares that a failure to pay a tax on the gross earnings, both territorial and interstate, is a failure to comply with the terms of the act of 1883. I can see no justification for a distinction which applies this rule of construction when the subsequent act throws but a faint light upon the meaning of the former statute, and utterly ignores this rule of construction in the same opinion with respect to a case where the legislative interpretation is full and explicit. Such interpretation, however, could not prevail against prior judicial construction of the clear meaning of the law. The language of the Michigan act, held unconstitutional in the Fargo Case, was quite similar to the act of 1883, in so far as the question as to what gross earnings were to be taxed is concerned. It provided for the payment by persons or corporations running railroad cars within the state of a fixed tax by a percentage on the “gross amount of their receipts for freight earned within the limits of the state.” Yet in both the state and the federal supreme court it was undisputed that local earnings on interstate traffic were within the language of the act, these tribunals differing only as to the power to tax such earnings.
The next question is whether the portion of the act of 1883 exempting plaintiff’s land grant (assuming that it does in fact exempt such property) falls within the unconstitutional part of the statute. On such a question authorities are unnecessary. The case is so plain that no case should be followed which would sustain the exemption under such circumstances. It was given for a consideration, six-sevenths of which has failed. In the Raymond Case it appeared that the tax derived from the percentage on earnings of local commerce was about one-seventh that which would be received from a percentage on the earnings of both local and interstate transportation. Nor do we need to test this question by what transpired subsequently to the enactment of the law. The Raymond Case is only an illustration of what every one, including the members of the legislature, knew when the act of 1883 was passed. It was known that the internal commerce of the territory was insignificant, as compared with its interstate commerce. The people were chiefly *385engaged in agriculture. The larger proportion of such products must pass beyond the bounds of the territory to find a market. The purely internal shipments would be trifling in amount. But few of the other necessaries, and absolutely none of the' luxuries, came from within our borders. Nor must we ignore the fact that the plaintiff’s road was known to be one of the great arteries of the nation’s business life, through which flowed and was destined to flow a current of strength and volume, not only of the nation’s commerce within itself, but of the nation’s commerce with foreign lands. "With these facts before them, the, legislature have declared their intention to tax the local gross earnings not only of local traffic, but also of transportation from, points without to points within, from points within to points without, and wholly across the territory from and to points: without; and that for such tax they granted the exemption.. Shall we hold that they granted it for less, nay, for a pittance,, in comparison with the tax they designated as the price? “If the parts of a statute are so mutually connected with and dependent upon each other as conditions, considerations, o.r- compensations for each other as to warrant the belief that the* legislature intended them as a whole, and that, if all could not. be carried into effect, the legislature would not have passed the residue independently, then, if some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected must fall with them.” Cooley, Const. Lim. (5th Ed.) 213, 214, and cases cited; Meyer v. Berlandi, 39 Minn. 438, 40 N. W. Rep. 513; O’Brien v. Kreuz, 36 Minn. 136, 30 N. W. Rep. 458; Allen v. City of Louisiana, 103 U. S. 80; State v. Denny, 118 Ind. 449, 21 N. E. Rep. 274; Utsy v. Hiott, 30 S. C. 360, 9 S. E. Rep. 338; State v. Harris, 19 Nev. 222, 8 Pac. Rep. 462. In Lathrop v. Mills, 19 Cal. 530, the court said: “In order to sustain the excepted clause, we must intend that the legislature, knowing that the other provisions of the statute would fall, still willed that this particular section would stand as the law of the land.” See, also, Baldwin v. Franks, 120 U. S. 678, 7 Sup. Ct. Rep. 656, 763. I therefore hold that the gross earnings law of 1883 is void in its entire scope for the reasons already stated.
*386I deem it my duty to hold that this law is in conflict also with § 1925 of the organic act of the territory of Dakota, and with the fourteenth amendment of the federal constitution. Such has been the ruling of the federal circuit court sitting in the district of North Dakota in the case of Railroad Co. v. Walker, 47 Fed. Rep. 681. This decision holds that the gross earnings law of 1889 is repugnant to this section of the organic act and to the fourteenth amendment. The act of 1889 and the act of 1883 are, so far as these questions are concerned, identical in their provisions. The decision applies with full force to the act of 1883, and, following this decision, as it is my duty to do under our dual system of government, I am constrained to hold this statute is void because the organic act and the fourteenth amendment are both violated by it. Said Judge Caldwell in that case: “Property of the same kind, in the same condition, and used for the same purpose, must be taxed by a uniform rule, without regard to its ownership. The legislature having selected land as a subject of taxation, all lands under the same condition are subject to be taxed. The law for the taxation of land must operate equally and uniformly upon all lands the condition and use of which are similar. While property may be classified for the purpose of taxation, between the subjects of taxation in the same class there must be equality. Property of the same kind, in the same condition, and used for the same purpose, cannot be divided into different classes for purposes of taxation, and taxed by a different rule, because it belongs to different owners. But this is precisely what the act under consideration seeks to do. It exempts the lands of the company from taxation simply and solely because they belong to the company, and taxes all other lands, by a uniform rule, according to their value. It was not competent for the legislature, either under the organic act or the fourteenth amendment of the constitution of the United States, to classify the lands in the territory- for purposes of taxation into lands owned by railroad companies and lands owned by all other persons, and declare that the former should not and the latter should be taxed.” While I am willing to admit that much can be said on the other side of these two questions, and that their solution is not free *387from difficulty, I am not willing to admit that we have any right to refuse to follow the construction of an act of congress, i. e., § 1925 of the organic act'of the territory of Dakota, and of the fourteenth amendment to the federal constitution, by the federal circuit court. On the contrary, our duty is clear in such a. case, under all the adjudications, to follow where the federal court leads. Judicial courtesy, the prevention of unseemly conflict, the undoubted right of every sovereign to have its adjudications construing its own laws and constitution respected by the courts of every other sovereign, all call loudly for the strict enforcement of tharule which is ignored in this case. The federal supreme court never refuses to adopt the interpretation of a state statute or constitution by the state court; and much stronger is the reason why we should follow the’ construction by the federal court of a federal statute and of a clause of the federal constitution, because the constitution and laws of the United States are the supreme- law of the land, and ultimately the state court can always, by judgment of the federal supreme court on writ of error, be compelled to accept such construction. There is no power which can coerce the federal courts, and compel an observance by them of the state court’s construction of a state law, statutory or fundamental. While I do not deem it proper, in view of the decision in Railroad Co. v. Walker, to discuss the question whether the organic act is contravened by the exemption contained in the gross earnings law of 1883, there is one feature of the prevailing opinion that seems to me so utterly anomalous and unsound that I cannot suffer it to pass without comment. The position-seems to be thus taken that whether this act violates the rule of uniformity in taxation prescribed by congress is not very important, because congress itself, by not disapproving of the act, has in effect ratified it, and it stands as though congress had in fact enacted it. The language of the opinion is: “By the organic act congress delegated this power [the taxing power] to the territorial legislature. The latter body exercised the power by passing the gross earnings law of 1883; and, as congress has never annulled or repealed the law, it has the same effect as a similar act of congress itself. It must be considered as, and is, *388an act o£ congress, and must be given the same force and effect asthough duly enacted by that body. ” The scope of this reasoning is that it is idle for congress, in delegating the taxing power to a territorial legislature, to set limitation to that power, as was done by the provisions of § 1925, because in every case congress must annul an act which sets at defiance this limitation prescribed by congress, or be regarded as ratifying the illegal act by its silence; nay, worse, its silence makes the act which it has already emphatically asserted should not be passed by the territorial legislature an act of congress itself. Having power to set bounds to the authority it delegates, and having unmistakably erected a barrier beyond which the body exercising such delegated authority may not pass, the prevailing opinion asserts the doctrine that nevertheless congress must pursue every usurpation of power by the territorial legislature in defiance of this limitation, and expressly annul such void act, or be deemed to have assented to it. Under such a view, I am at a loss to understand for what purpose the limitation upon the taxing power of the territorial legislature was enacted. The silence of congress, it is said, annuls it; and without it, it is clear that that body could have arbitrarily destroyed the gross earnings law, or any other law the territorial legislature might have passed. The case of Railroad Co. v. Le Sueur (Ariz.) 19 Pac. Rep. 157, is cited to sustain this view of the prevailing opinion. A most casual reading of the opinion discloses the fact that the case stands upon an express statute relating to the territory of Arizona and other territories, providing that “ all laws passed by the legislative assembly shall be submitted to congress, and, if disapproved, shall be null, and of no effect.” This provision did not apply to the territory of Dakota, but that territory, with others, was expressly excepted from the statute. Rev. St. U. S. § 1850. The opinion of Judge Bartholomew in the case of Trust Co. v. Whithed, ante, is extensively quoted from in the prevailing opinion in this case as being peculiarly pertinent to the question of the power of the legislature to classify as the territorial legislature classified the appellant’s land grant by exempting it from taxation. I do not regard this *389opinion (in which I concurred) as containing anything which sustains the appellant’s contention in this behalf.
Are, then, the averments as to the defects in the tax proceedings such as to warrant the equitable relief sought? We will discuss the question first on the authorities, and then refer to our statute, which had wrought a change in the mode in which the taxpayer is required to do justice. The first irregularity set forth in the complaint is the ommission of the assessor to take and subscribe the statutory oath, and attach the same to the assessment roll. This defect is, however, conceded by the plaintiff and appellant to be insufficient to warrant the maintenance of this action without payment or tender of the tax, or an offer to pay it, set forth in the complaint, in the absence of statutory regulation. No such allegation is made, and therefore, under the authorities, this irregularity must be disregarded in determining whether the plaintiff has any right to be heard in equity, leaving our statute out of consideration for the present. Boeck v. Merriam, 10 Neb. 199, 4 N. W. Rep. 962; Hunt v. Esterday, 10 Neb. 165, 4 N. W. Rep. 952; Wood v. Helmer, 10 Reb. 65, 4 N. W. Rep. 968; Fifield v. Marinet Co., 62 Wis. 532, 22 N. W. Rep. 705; Railroad Co. v. Lincoln Co., 67 Wis. 478, 30 N. W. Rep. 619; Land Co. v. City of Crete, 11 Neb. 344, 7 N. W. Rep. 859; Stell v. Watson (Ark.) 11 S. W. Rep. 822.
The next irregularity pleaded as a ground for equitable relief without payment, tender, or offer to pay is the failure of the county clerk to “make out a tax list containing the description of the lands, * * * with a valuation of each or any of the tracts specified thereon, and the several species of taxes and the total taxes against the said tracts carried out in separate columns opposite each tract, and as nearly as practicable in the form set forth in § 37 and § 39 of chapter 28 of the Political Code of this territory.” There is also an allegation in the same language relating to the duplicate list required by law to be furnished the county treasurer by the county clerk. These two defects will be discussed together. These allegations might be strictly true, and yet the defect in the list and in the duplicate list might be in some trifling matter of form which could not possibly affect the tax either in law or in equity. The sufficiency *390of the pleadings, having been challenged by demurrer, is to be construed most strongly against the pleader, who, having the selection of the language in which to set forth his facts, can and should plead specifically all the particulars wherein there was a violation of the statute. Equity is loath to restrain tax proceedings, and, if a litigant insist that he has a right to relief without making payment or tender, he must point out the illegality of the tax with the utmost particularity. The speedy and unhampered collection of taxes is of great importance to the life of every government. Public policy, therefore, demands in this class of cases the rigid enforcement of the rule that the suitor must state the facts entitling him to relief clearly and explicitly. These allegations in this case are similar, so far as principle is concerned, to that which was condemned in Southard v. Dorrington, 10 Neb. 119, 4 N. W. Rep. 935, and Dillon v. Merriam, 22 Neb. 151, 34 N. W. Rep. 344. But assume that in neither the original nor the duplicate list was any value of plaintiff’s property set down, would that warrant a court of equity in restraining the tax without payment or tender? The ground-work of the tax is not wanting. There is no claim that the levy was illegal, or that the assessment was not properly made. With these data lawfully and justly established, the amount of the plaintiff’s taxes is a mere matter of calculation. Equity, regarding substance, and not form, seizes upon these two facts, and declares the amount of plaintiff’s taxes then settled without further proceedings, basing its decision upon the maxim, id certum est quod cerium reddi potest. A fixed value and a fixed rate lead inevitably to a fixed tax. Value and rate being justly and lawfully settled, all possibility of injustice to the taxpayer from disregard of statutory requirements vanishes. Nothing subsequent can lessen oí enhance the amount of his contribution to the public funds. Under such circumstances, for equity to restrain the collection of the tax would be to aid the taxpayer in escaping a just obligation because of irregularities which could not possibly work him any injury, and which in no manner affected his duty to pay what equity regards as established by the assessment and levy, because it can be made certain by mere calculation. The principle underlying *391numerous authorities justifies this view. Frost v. Flick, 1 Dak. 131, 46 N. W. Rep. 508; Moore v. Wayman, 107 Ill. 192; Hagaman v. Commissioners, 19 Kan. 394; Knox v. Dunn, 22 Kan. 683; Albany, etc., v. Auditor, 37 Mich. 391; Iowa Railroad Land Co. v. Sac Co., 39 Iowa, 124-128; Iowa Railroad Land Co. v. Carroll Co., Id 151-154; Challis v. Atchison Co., 15 Kan. 49; City of Lawrence v. Killam, 11 Kan. 499; Railroad Co. v. Tontz, 29 Kan. 460; DuPage Co. v. Jenks, 65 Ill. 275; Nunda v. Chrystal Lake, 79 Ill. 311-314; Trust Co. v. Weber, 96 Ill. 346-357; Parks v. Watson, 20 Fed. Rep. 764.
The other two allegations — that the county commissioners did not attach to the original and duplicate lists their warrants requiring the treasurer to collect the taxes, and that the county treasurer had not given the proper notice to acquire jurisdiction to sell the property for such taxes — are, under all the authorities, insufficient to warrant a restraint of the tax proceedings without payment or tender of the tax. A cloud on the title from illegal tax proceedings will ordinarily warrant a resort to equity to remove it. But a dominant principle of equity intervenes, and requires equity to be done by the taxpayer before he can secure the relief sought. He must, when the tax is valid in equity, pay or tender the tax as a condition precedent to his right of action. In all such cases our statute has substituted a judgment for such taxes in the action in place of tender or payment. It is thus equity is to be done by the taxpayer. The statute provides that the court shall in such cases render judgment for the tax. It treats the judgment for the tax as a substitute for the tax itself. The tax proceedings, being such as to cast or threaten' to cast a cloud on the title, must be set aside, but the tax itself, with its penalties and interest, must be émbodied in a judgment,' on which execution shall issue as soon as the tax is delinquent. The penalties and interest which must be embodied in the judgment when rendered after the tax has become delinquent are those prescribed by law in cases of delinquency. § 1643, Comp. Laws; Farrington v. Investment Co., 1 N. B. 102.
The argument that the county has estopped itself from claiming the tax upon these lands because of having received its *392share of the gross earnings tax paid by plaintiff, in lieu of all taxes upon the plaintiff’s property, is utterly without foundation in principle. In the first place, there is wanting a vital element of estoppel. The payment by the plaintiff of the gross earnings was not- induced by any word or act of the county from which the plaintiff would or did infer that the county, when it ultimately obtained its portion of the tax, would release the plaintiff from the payment of taxes due upon its lands. The receipt by the county of the money in lieu of all other taxes was necessarily after the plaintiff had paid the gross earnings tax to the territory, and this is what the complaint alleges. The plaintiff did not rely on anything said or done by the county when it paid the tax. It relied on its construction of the constitutionality and scope of the law. Moreover, it was not in the power of all the officers combined to estop the county by acts beyond their power. This is elementary law. The power of attorney of all such officers is in the statute. No person can rightfully rely on any assumption of power not found there. There is no estoppel because he knows that the claim of the right to exercise a power not conferred is without foundation. The county did not even agree with the plaintiff to accept its share of the gross earnings tax in lieu of all other taxes. But suppose the complaint had averred that the county had so agreed, what force could such an agreement have? None whatever. The county could act — could bind itself — only through officers of the county. All such officers together could not make such an agreement obligatory upon the county. There is no warrant for the exercise of such an extraordinary power found in the statute in express terms. Nor can such an authority be inferred. Every taxpayer has a direct interest in the payment by every other taxpayer of the county of his share of the taxes collected in and by the county. Every piece of property exempted from taxation increases the burden of all other property in the county. If the county officers can bind the taxpayers by agreeing to accept one dollar in lieu of a legal tax of $100, they can bind such taxpayers by a compact to virtually exempt certain property by a release of every thousand dollars of tax for a cent. Now, expand the exercise of this power until it sweeps over nearly all the *393taxable property in tbe county, leaving only a trifling balance to bear tbe entire burden of taxation, and we would have presented the spectacle of local and inferior officers vested with particular powers, and exercising specific duties, in effect authorized to confiscate the entire property of the few for the benefit of the many, because this power to indirectly exempt can be so exercised as to throw upon the remaining property a tax equal to its entire value. A position which leads to a conclusion so revolting to reason and justice need's no further attack.
But it is said that by the payment of this tax, and by the receipt by the county of its share, the plaintiff has done equity. The position is untenable, for the reason that it does not appear from the complaint that the plaintiff has paid the tax in controversy, or that the county has received a sum equivalent to that tax by the receipt of its share of the gross earnings tax. Further, if the gross earnings law did not in terms exempt these lands, then the plaintiff has paid no part of the tax upon such lands. But we do not decide that question, for the reason already stated. The burden is on the plaintiff to show that it has done or offers to do not only partial, but full and unstinted equity. Until it avers the payment or tender of the tax in question, or of a sum equal to such tax, equity will lend it no aid, although it should be satisfied that a portion of such tax had, in effect, been, received by the county. This reasoning, of course, ignores the statute which has substituted the tax judgment for payment or tender. But the principle is important, for where equity required payment or tender the statute provides for a judgment. 1 N. D. 102. The dissent of Justice Wallin in that case was not upon this question.
The complaint avers the non-payment by the plaintiff of the cost of surveying, selecting and conveying the plaintiff’s land grant within the territory of Dakota. Under the decision in Railroad Co. v. Traill Co., 115 U. S. 600, 6 Sup. Ct. Rep. 201, the lands would not have been taxable because of the lien of the government thereon for such unpaid expenses had congress not taken from plaintiff and other like companies the power to interpose its own dereliction of duty as a barrier against taxation. That act was approved July 10, 1886 — a year before the *394initiation 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.
Bartholomew and Wallin, J.T., 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 McConnell, of the third judicial district, sitting in their places by request.