ON rehearing.
Miller, J. —Within the time prescribed by the rules of court, after the foregoing opinions were filed, plaintiff’s counsel filed a petition for a rehearing, to which a reply was ordered, and was filed at the J une term, 1872.
I. The first point made in the petition for rehearing attacks the doctrine of the opinion first enunciated in The Iowa Homestead Company v. Webster County, 21 Iowa, 221, under which the plaintiff’s lands are held to be taxable when and as the same are earned by the completion of portions of its road from time to time,, and prior to the issuing of certificates of the Governor and Secretary of the Interior, as provided in the Act of Congress of May 15, 1856.
In that case the plaintiff claimed, and the defendant did not deny, the right of the railroad company to select and obtain *187certificates for land more than twenty miles west of its completed line. The land, claimed by the company, and on which taxes had been levied, were situated one hundred and fifty-miles west of the then completed line of the railroad. The right to thus select lands from those granted at so great a' distance from the end of the completed road was not, therefore, made a question or decided by the court. It was, however, made a question as to when the lands became taxable whether from the time they were earned by the company or not until it had received from the General Government the proper evidence of title thereto, and the court says: “Upon the completion of the twenty miles of road the company had-a right to take the lands in Webster county.” (The right of the company to go farther than 20 miles beyond the completed line of its road for lands earned being conceded.) “ This: was its right under the Act of Congress, and our state legislation. And this right was afterwards recognized, for it did' acquire in 1863 (if not before), by the action of the Depai’t-■ xnent at Washington, the full legal title. Having, then, completed so much of the road on the 1st day of January, 1861,' could the counties legally tax the one hundred and twenty sections of land to which the company became entitled by virtue of such completionf The question is thus faii’ly made and fairly stated, and, after the statement of an argument in favor of a negative answer to the question, the court further says, that “ it is uxxdeniably true that, upon the completion of so much of.the line (within the time, and ixx the manner fixed-by the Act, as to which there is no question), the company-was legally and absolutely entitled to this quantity of land. And if the several Acts had designated the particular tracts: to which, from time to time, the company woxxld become entitled, there could remain no doubt that the completion of axxy twenty miles would vest such an interest to the lands thus-set apart therefor, as woxxld make them liable to taxation. And this, too, though the certificate of the Governor*, and the final certificate at the Depai’tment at Washington should not be made for months afterward. In other words, these subsequent acts would be but the perfection of the evidence of title, *188while the,fact of completion would form the true basis of the l’ight, and at once vest the interest.” The learned Judge delivering the opinion, after further argument in support of the view taken, concludes as follows: “ And our opinion is, under the Act making the grant to the State, and the subsequent Act of the Legislature, that at least when the company completed this twenty miles of road, all of the one hundi’ed and twenty sections to which it became entitled, by virtue thereof, were liable to taxation. In other words, that while it might be necessary thereafter for the company to procure further evidence of title, it, by the fact of completing its line to this extent, acquired a right or interest in these lands, which was subject to taxation.”
It is not correct, therefore, as claimed by the learned counsel for plaintiff, that what was said by the court on this point is simply dictum. The language is used in the decision of a question presented in the record, and which it is necessary to decide.
The decision was approved and followed in the subsequent case of The Dubugue and Pacific Railroad Company v. Webster County, 21 Iowa, 235. We are asked, however, to oveiTule these cases, or to disregard them for the alleged reason that they are overruled by The Cedar Rapids & Mo. R. R. Co. v. Woodbury Co., 29 Iowa, 247. A perusal of this last named case will satisfy any one that the court in making the decision did not intend to, and did not understand that it was overruling those cases. On the contrary, the last case is expi’essly distinguished from this in 21 Iowa. The court says, in regard to those cases, “ with the construction there given and. the views there expressed, we are still content, and did the facts of this case bring it within those, we should have no hesitation in holding these lands taxable, or that plaintiff had a taxable interest therein.” So far, therefore, from those cases being overruled by the Woodbury county case, they are there expressly approved in clear and exjxlicit language. Nx’om the doctrine of those cases we see no good reason now to depart, although it be considei’ed not entirely .free from doubt.
*189There is no question of evidence arising in this branch of the case. The facts upon which the doctrine of The Homestead Company v. Webster County, supra, is held to apply, are settled by agreement of the parties. This agreement shows the date of the completion of the various portions of the road and of the whole road, and upon these admitted facts, that doctrine is applied and the lands held taxable from the time the jdaintiff became entitled thereto, from time to time, by the completion of the different portions of its road.
There is, in our judgment, no conflict between these cases and The Des Moines Navigation and R. R. Co. v. Polk Co., 10 Iowa, 1; The State ex rel. v. Kirkwood, 14 Iowa, 162; The Iowa R'd Land Co. v. Story County, 36 Iowa, 48; The Iowa Falls & Sioux City R’y Co. v. Cherokee County, or Goodrich v. Beaman, 37 Iowa, 563.
II, In respect to the road taxes, we do not deem it necessary to add anything to what is said in the first opinion. We think the evidence shows a substantial compliance with the law in the assessment and levy, in fact, of the road taxes, although there were irregularities in certifying the delinquent taxes by the township clerk in, and placing the same upon, the tax lists. There is no claim that these taxes have been paid, for these were irregularities of form; a court of equity ought not and will not relieve against the payment of taxes justly due and unpaid.
The petition for a rehearing will be
Overruled.
Beck, J. — At the present term of this court appellants made application in due form for the’modification of the judgment here rendered so far as to relieve them of the penalties incurred under the statute upon the delinquent taxes involved in the action. As appears in the foregoing opinion, the judgment of this court was rendered December, 1872. February 7,1873, a petition for rehearing was filed by plaintiffs and the procedendo stayed thereon. A rehearing was granted in April following, and the appellees replied to the petition fof rehearing in June. For some reason, which need not be determined, the cause was not at once submitted to us; it did *190not reach us so that a decision upon the re-argument could be announced until the present term. The case has been delayed beyond the time usual for the disposition of business in this court. The action was commenced in the District Court in December 1870. It will be seen that considerable time has ¿lapsed since the commencement of the suit, and that the penalties prescribed by the statute upon the delinquent taxes in controversy have amounted to a very considerable sum. To obtain relief from these penalties is the object of the application before us.
I. — It is first claimed that this court ought to determine when the penalties began to run, as the lands were not assessed for the years for which they are taxed. This matter was considered and determined by us, as .will appear in the original opinion. We hold as the taxes were not entered upon the tax book until November 1,1868, the penalties ought not to begin until that day. Of this ruling plaintiffs cannot complain in view of the provisions of the statute which make- it the duty of land owners to have their lands assessed by the treasurer when it has been omitted by the assessor, Rev. § 753, and affixes a penalty for the non-payment of taxes without regard to the circumstances of their assessment, whether made by the assessor at -the time prescribed by law or by the treasurer at a subsequent date.
14.:--: pen-o£tstatute?’eal II. Under the law now in' force, Code, § 866, penalties for delinquent taxes .are not the same as provided by the statute prevailing when the taxes involved in this action were assessed, which continued in force until after the decision of the court announced in the foregoing opinion. It is now insisted: 1. That, under Code, § 51, (which provides that “no penalty * * * ’incurred uncler any statute hereby Repealed and before the repeal takes effect, shall be affected by the repeal, except that when * '* a penalty * * is mitigated by the provisions herein contained, such provisions shall be applied to a judgment to be pronounced after the repeal,”) the penalty upon the taxes must conform to the law of the Code. 2. That, as under § 47 of the Code the statutes before existing which are named therein, or are repug*191nant thereto, are repealed, the statutes under which the penalties accrued are no longer of force, and there is, therefore, no law to support the penalties, and they cannot be enforced. But the ready and most satisfactory answer to these questions is found in the following considerations: Under the statutes in force prior to the Code the penalties had accrued, month by month, during the delinquency. The right of defendant to these penalties had thus become perfect under the statute. Code, § 50, is in these words: “This repeal of existing statutes shall not affect any act done, any right accruing or which has accrued or been established, nor any suit or proceeding had or commenced in any civil cause before the time when such repeal takes effect; but the proceedings in such cases shall be conformed to the provisions of this Code as far as consistent.” It is quite obvious that the right of defendant to the penalties secured by the law before the repealing Act took effect is not impaired thereby. The points demand no further consideration.
15-_. fajl_ are to sen. III. It is next urged that, as it was the duty of the treasurer to sell the lands for taxes in October, 1869, he cannot, by failing to perform that duty, enable the county to retain the taxes upon its books unsatisfied, drawing the heavy penalty provided by law; that these penalties cease to run after the date at which the lands could have been sold for taxes. Thé only answer that need be given to this proposition is that the law does not so provide. We find nothing in the statute that will bear a construction supporting appellant’s position.
1G _. ao_ penalties':11 of equity. IY. It is urged that the penalties are onerous, inequitable and oppressive; that they have accrued, while plaintiffs’ were, in good faith, contesting the rights of defendant to enforce them and that the questions 0f ¡aw involved were doubtful, and justified plaintiffs in resisting the payment of the taxes. That plaintiffs’ will suffer a hardship in the payment of these heavy penalties is very apparent; that the questions involved in the cause were doubtful, and the litigation has been prosecuted in good faith, may be conceded, but these things give us no authority *192to annul a statute and remit a penalty explicitly provided for, and in which defendant has a vested right.
The delay incident to the progress of this cause, especially in this court, has been great, and plaintiff has been subject thereby to suffer from the enormous increase of the penalties. This is no ground for relief; it is an incident of litigation, the risk of which parties are required to assume. None of these considerations will authorize us, without law or precedent, to abate any part of the sum to which defendant is entitled under the law. With the hardships of the law, or with those resulting fortuitous circumstances connected with its administration, we have nothing to do. When the rule is admitted that equity will not relieve against penalties imposed by statute, arguments based upon hardships furnish ns no avenue of escape from its operation. The relief asked upon the application under.consideration is refused.