The question presented is, whether the lands in question, conveyed to the complainants by the State, in June 1858, were taxable for the usual state and county purposes, prior to the date of the conveyance.
The provision of the Code (section 455) exempts from taxation, “ the property of the United States and that of this State.” It-then becomes a question whether the lands were the property of the State, or of the petitioners. The complainant contends that these lands so appropriated and commonly called “ the River Lands ” were the property of the United States or of the State, until the delivery of the patent from the State to the company, in June 1858, and therefore were exempt. On the other hand the respondents urge the second clause of section 456, which declares that lands and town lots, including lands bought from the United States and from this State, and whether bought on a credit or otherwise, are subject to taxation. And they argue that the contract between the State and the company, of June, 1854, was a sale on a credit within the above section; and second, that the certificates of the Register above referred to, of May 1855, and May 1856, operated as a conveyance. As emphasis is undoubtedly laid upon the language of these papers, it is given in substance. That of the first date runs thus: “ I certify that the following lands were sold by me on this 14th May,'1855, to the Des Moines Navigation and Rail Road Company, in pursuance of the contracts and agreements with said company, for the construction of the Des Moines River Improvement; ” which is signed by the State Register of that work. The second is as follows : “ This certifies that the following lands, being a part of the land appropriated ” &c., “ have this day been transferred, and are hereby conveyed to ” the said company in consideration of $144,657.71 expended in pursuance of the contracts, &c., '•between the State and the said company.
*14We are well satisfied that the lands were not the property of the company, so as to render them subject to taxation at the times in question. This was not a purchase on credit, in the sense of section 456, above cited. This provision was enacted some time before this contract was made, and therefore could have no intended reference to it, Its material allusion is to those cases which may properly be termed purchases — lands bought on time, from either the State or the general Government. Purchases under the pre-emption laws, giving time for payment, and those of the school lands of this State, are plain subjects of this provision. In these cases the party enters into possession and has the use and enjoyment of the land prior to the payment, and this it is which constitutes the justice of. the enactment. But we will take another view of this hereafter.
Neither can the other view prevail, which would regard the certificates as conveyances. The words implying a sale or conveyance in these papers, can have no such force. The Register had no authority for this; it was not within his power. By the terms of the act of Congress granting the lands for the express purpose, the company was first to expend money upon the work, and these lands to a certain relative amount were to be conveyed to them, and so, from time to time, in moderate quantities, as the work progressed. And in no case was the Register empowered to convey. He only certified to the amount expended by the company, and the quantity of land to which this entitled them, and the deed or patent was, by the law of the State, to be signed by' the Governor. These papers, therefore, are entitled to no other force than as certifying the sums expended and the quantity of land to he conveyed.-
But it is contended that the restrictive and directory provisions of the granting act were in effect released by air act of Congress of 3d August, 1854, which enacts that “ where lands have been, or shall be granted to a state by law of Congress, and such -law .does not convey the fee simple, or require the patents to be issued therefor, the lists thereof, *15certified by tbe commissioner of tbe General Land Office, under bis seal of office, shall be regarded as conveying tbe fee simple of tbe lands properly included in sucb lists.”
We are unable to perceive bow this act should affect the terms, conditions, or objects upon and for which tbe grant might have been made. It goes no farther than to affect tbe mode by which tbe title may pass, dispensing in some instances, with tbe patent, but in no sense releasing from conditions or trusts annexed to the grant. These terms would not be contained in a patent from tbe United States, but stand in tbe act making tbe grant. Therefore, though the State might acquire her mere title by such a list, still the object of tbe gift, and tbe mode of dispensing it in detail, as tbe work progressed, would remain.
Did tbe company buy these lands of the State upon a credit? In view of the position of both parties, let us look at tbe entire transaction. Here is a great public improvement to be made, and here are supposed to be something-like a million of acres of land appropriated for that purpose. Tbe State makes a contract with a company to carry on tbe improvement and take the lands as a remuneration. But the act of Congress has anticipated the contingency of tbe whole passing into their bands and the work being then neglected, and has provided that it shall be meted out only in proportion to tbe progress of the improvement. This intention, this policy, would be entirely defeated, and tbe specific direction disobeyed, if the lands could be held to pass to the company by either of the modes above contended for. The idea that tbe lands pass- by virtue of the contract above, is met in tbe outset by tbe difficulty that they are not yet ascertained either in quantity or in specific discription.
The contract is not, properly, one of sale. To the State the main object was to obtain a certain large internal improvement. The other party is to perform this work and'take his compensation in lands, receiving them in proportion as it progresses. This contract is so similar to the prior one with another company, (Bangs, Bros. & Co.,) that if this can be *16construed as conveying tbe title, so must that, and the result would be that they belong to that former contractor, unless the State has taken some measure to divest them.
In the act of 25th January 1855, chapter 158, sections 6, 8, we find a distinct provision by what means the title shall be conveyed. “ No patents or conveyances of Des Moines Improvement lands shall issue, except on the written requisitions of the Commissioner thereof,” and all patents were to issue from the State land office, and were to be signed by the Governor, and recorded by the Register. This provision indicates the object of the certificates in question, and limits their expression and intent, although the officer may have thought he was passing the very title. Their legal effect is only to certify that the company was entitled to so much land. The questions involved in this proceeding were determined in a former case before this court, Juno term, A. D. 1857; The State ex rel., Johnson v. The Commissioners of the JDes Moines River Improvement, in which the company sought by means of a writ of mandamus, to compel the issuance of a certificate that they were entitled to a certain amount of lands. In that case both the State and the company stood upon the assumed ground that the title was still in the State. It is true that the certificates were not issued then, but the object in requiring that they be issued, was not by them directly to obtain the title, but to show that the company was entitled to the lands, and then obtain the title through another, and the proper source. Finally the legislation of the State has uniformly recognized as the fact, that the lands remained in it until a regular conveyance of them, and that no right in them save an inchoate one was transferred by the contract. See the former acts referred to. Senate Journal of 1857, page 542. Resolution of March 1858. Acts 1858, chapter 99, &c.
We conclude that the State had no right to tax these lands as property of the company, until she had conveyed them. This sufficiently disposes the case without determin*17ing whether the deed of June, 1858, constituted a release of such a right or such a lien.
One question, however, remains. It is whether the lands whose title was acquired in June, 1858, should be placed in the assessment of that year. The time when the assessment should commence has been changed, until, by the statute of 1858, chapter 152, it is fixed at the second Monday of January, or within six days thereafter, and it is to be concluded by the second Monday of April. The case does not require us to decide whether a party must hold his title at the beginning of the assessment, or whether it is sufficient if he acquire it during the period of taking it; but we are of the opinion that the true sense of the law is, that if one acquires his title from the government after the close of the assessment, the land is passed for that year. It can not be brought up as omitted property, and if it can be held subject for any reason, it may be brought into the list, though obtained however short a time before the next list is begun. Such a course would involve an inequality and injustice. This land not having been obtained from the State until June, in 1858, was not subject to taxation for that year.
The judgment of the* District Court is reversed.