delivered the opinion of the court.
This is a petition for a mandamus against the auditor of the State, to require him to make to the petitioners a conveyance of the State’s title to certain lands. To the petition the auditor interposed a demurrer, which was sustained in the lower court, and from that judgment this appeal is prosecuted.
In the petition the following history of the title is given : In 1862 the lands were sold for the taxes of 1861 (including a military tax levied for the support of the armies of the Confederate States), and were bought by the State. In the years 1868 and 1872 the lands were sold for the non-payment of liquidating levee taxes and bought by the levee board. In 1875 they were again sold by the sheriff and tax collector -under the act of March, 1875, commonly known as the Abatement Act) and again bought by the State. In 1881 they were sold under the decree of the Chancery Court of Hinds County, made in the case of Green v. Gibbs et al., which will be found reported in 54 Miss. 593, and were purchased by the Louisville, Hew Orleans and Texas Railroad Company. On September 30,1884, the auditor, acting under an act of the legislature approved March 14, 1884, the provisions of which will be hereinafter set forth, executed and delivered to the said company a quit-claim deed, conveying" the State’s interest therein. Afterward the appellants tendered to the auditor the sum which appeared on the books of his office to have been due the State' on account of the taxes thereon, and demanded a deed, which he refused to make, giving, as the petition states, “ no other reason than that the State had no title or claim to the land because of execution of the pretended release and quit-claim of September 30, 1884.” By the demurrer, however," the auditor sets up the further objection that the State naver had any valid title to the land or any part thereof. In support of the defense thus interposed *390by the demurrer for the first time, it is argued that the first sale to the State was void, for the reason that a part of the tax for which it was made was in “aid of the Rebellion;” that as the sale was void, the land was legally sold to the liquidating levee board, which acquired a good title thereto, and that after it became the property of the levee board it was exempt from sale for taxes due the State, wherefore the sale in 1875 was also a nullity. We dispose of this question by saying that it is not within the province of the auditor to determine upon the validity of a tax-title acquired by the State. The-validity or invalidity of a tax-title can only be determined by the courts, except where, upon the advice of the attorney general, the auditor is permitted to strike from his list of lands those which in the opinion of the law officer of the State are not held by a valid title; nor will the court, upon a mandamus, inquire into or determine the validity of such titles.
Where a mandamus is sought to compel the execution of a conveyance, and the objection is made that the State has no title, because it has already parted with it, it becomes necessary to decide the question, for only by such decision can we determine whether the officer ought to act. State v. Myers, 61 Miss. 138. But the validity or invalidity of the original title claimed by the State ought not to be drawn in question collaterally, and it is only collaterally involved in this suit.
Whatever, then, is the character of the State’s title acquired under the sale for taxes, the petitioners are entitled to have it conveyed to them upon the payment of the sum claimed against it by the State, unless there has been an authorized transfer of it by the State’s officers competent to convey her title. The real ground of the refusal by the auditor to convey to the petitioners is that by the deed of September 30, 1884, the State had parted with all claim to the land. If this be true the auditor properly refused to make another conveyance.
The authority of the auditor to make the conveyance of September 30, 1884, is derived from an act entitled: “An Act for the benefit of purchasers of levee lands, sold under the decree of the Chancery Court of Hinds County, First District, in case of *391Joshua Green and others against Hemingway and Gibbs, treasurer and auditor, and ex-officio liquidating levee commissioners,” approved March 14, 1884 (Acts, page 182).
By the first section of that act, the auditor is directed to quitclaim the title of the State to the purchasers under the decree recited in it upon the payment of the usual fees for making such conveyances. To this section there is a proviso in reference to the payment of levee taxes, but which is unimportant now to state. The second section of the Act is as follows :
Section 2. “ Be it further enacted, that said auditor of public accounts shall not in any case execute such quit-claim deed described in the foregoing section, unless all State, county, and levee taxes due thereon, up to the date of the execution of the quit-claim deed as aforesaid, shall have been paidprovided, that the Memphis and Vicksburg Railroad Company shall not be required by the auditor to pay any State and county taxes heretofore due from which it was exempted by the provisions of its charter, or of any act of the legislature passed prior to the year 1884.”
The appellee contends that by this act the legislature committed to him the determination of what, if any, taxes were due on the lands referred to, and that his decision is final and conclusive, or, if mistaken in this, that the State alone can call in question the correctness of his decision, and if mistaken in both these propositions, then he insists that as a matter of fact no taxes were due by reason of the fact that the property of the railroad company was by its charter exempt from taxation.
Without determining what effect would be given to the decision of the auditor upon questions of fact necessarily involved in the performance of the duty devolved upon him by the act in question, we cannot assent to the proposition that he is by the act made the final expositor of legal questions which may arise. There is nothing indicating that such was the purpose of the legislature, and it would require an unmistakable declaration to warrant a construction leading to that conclusion. Ordinarily all lands are subject to taxation, and if the taxes have not been paid they are due to the State. There may be exceptional circumstances, in which nothing *392would be due, as where the land was the site of a church, or of a cemetery, or of a charitable institution, in which cases the exemption would be determinable as a question of fact, or if, as in this case, it is claimed as exempt under the charter of a company, that is an exemption to be determined as a mátter o>f law arising upon a construction of the charter. If, however, the auditor mistakes the law, and erroneously treats the property as exempt, and makes a conveyance of the State's title, such conveyance is of no avail, and neither defeats the title of the State nor confers title upon the grantee.
If the quit-claim deed was executed without payment of the taxes due to the State, it was without authority of law, for the act expressly declares that no conveyance shall be made unless such taxes are first paid.
The contention by the appellee that in no event can the appellants call in question the correctness of his decision is not maintainable. The appellants desire to purchase, and are entitled to purchase, the lands if still held by the State, and to the assertion that the State’s title has been conveyed to another they may reply that the conveyance had no effect because made without authority of law, for it is only by securing the deed from- the State that they can obtain a standing in the courts to litigate with the prior grantor. State v. Meyers, ante.
This brings us to the consideration of the question whether the land in the hands of the railroad company was subject to taxation. We pretermit any expression of opinion upon the question of the liability of the lands to taxation anterior to the year 1882, prior to which time they were held or claimed by the board of levee commissioners. In 188 L they were purchased by the railroad company, and after that became subject to taxation unless exempted therefrom under its charter. It is claimed that a fair construction of the charter of the company exempts not only its road-bed, stations, shops, and other real estate necessary or convenient to the purposes of the corporation, but also its outlying lands acquired by it for purposes of sale or for the benefit of the timber growing thereon; and it is further insisted that such construction has *393been given to the charter by the legislative department of the State.
By the thirteenth section of its charter (Acts of 1870, page 324) it is provided that subscriptions to the stock of the company maybe taken by the directors payable in land, to be valued as therein provided, and to this section there is also a proviso that “ nothing in this act' shall be construed to prevent the president and directors from receiving donation of free gifts of land to the company,”
By an act of March 3, 1882 (Acts, page 1011), the Memphis and Vicksburg Railroad Company and the Mississippi Valley and Ship Island Railroad Company were permitted to consolidate, and became merged into the Louisville, Hew Orleans and Texas Railroad Company, and it was further provided “ that the provisions of the twenty-first section of an act entitled, ‘ An Act to incorporate the Mobile and Northwestern Railroad Company/ approved July 20, 1870, is hereby made to apply to the said consolidated company, and for that purpose the said section is hereby- declared to be part of this act, and this act shall be construed as though the twenty-first section was specially set out herein.”
The twenty-first section of the act incorporating the Mobile and Northwestern Company is as follows: “ That, in consideration of the construction of the railroads provided for herein, and of the great benefit which the State will receive in the development of its agricultural resources by means of said railroads as works of internal improvement, and also of the increased value which will thereby be added to the property of the State, thus enabling the State to greatly increase its revenue without additional and burdensome taxation upon the people, the State hereby agrees with said company (and which agreement is irrepealable) that all taxes to which said company shall be subject for the period of thirty years are hereby appropriated and set apart, and shall be applied to the payment of the debts and liabilities which the said company may have incurred in the construction of said road, or for money borrowed by said company upon lands or otherwise, to be used in constructing said road, or paying debts incurred by said company in *394constructing the same; and it shall he the duty of the tax collector in every county, in each and every year, to give to said company a receipt in full for the amount of said taxes upon receiving from the company an affidavit made by the president or cashier of said company that the amount of said taxes have actually been paid and applied by said company, during the year, in payment of the debts incurred, or money borrowed as aforesaid, and which receipt so given shall be in full of all taxes, county, State, and municipal, to which said company shall be subject.”
It is insisted that since by the charter the legislature permitted payment of stock to be made in lands and donations of land to be made to the company, it must have contemplated that the company would become the owner of such property, and that by devoting all taxes to which the company should become liable to the payment of “ money borrowed on its lands ” it evinced a purpose to release such lands from taxation, for, it is argued, the legislature could not have intended to relieve the lands from the burden of debt imposed- upon them by mortgages executed by the company, and then to put on them the burden of taxation. This suggestion is not without force, but it is valuable only as an aid to the construction of the charter, and the cardinal rule of construction still remains that grants or privileges are to be strictly construed, and in cases of doubt are to be resolved in favor of the State. In other words, that where the words of a grant are susceptible of two constructions, either of which is reasonable and fairly to be drawn, the courts must assume that the legislature acted with reference to the known rule and intended only to grant those privileges or immunities implied in the more restricted sense. The exemption here is of taxes “ to which said company shall be subject,” it is not of all taxes to which all or any property owned by the company, whether necessary or convenient to its business, or disconnected therefrom, may be subject. The business of a railroad company, the property and instrumen-talities ordinarily owned and employed by them, it must be assumed were well known to the legislative department, and it must also be assumed that the language employed was used in reference to such business and property, unless a contrary intention is shown. “ All *395taxes to which said company shall be subject ” must, therefore, we think, be construed to include only the taxes due upon the property of the company necessary to the construction, equipment, maintenance, and operation of its road. Many of the authorities upon the question here involved are collected by Cooley on Taxation 146 to 153. From them we can deduce no principle of construction which would include in the exemption granted an exemption of the outlying lands owned by the company. The lands involved in this suit have no sort of connection with the business of the company; they are owned by it only as the same character of lands would be owned by a private individual, and for the same purposes; they were bought, not to enable the company to perform any duty it owes to the public, but that it might by dealing in them make a profit as a buyer and seller; in this character we find nothing in the words or spirit of the exemption clause giving immunity from taxation.
Reliance is placed by the appellee upon the fact that by the act of March 12, 1884 (Acts, page 29), the legislature, while declaring the liability of all detached lands owned by railroad companies to taxation (notwithstanding any exemption clause of its charters), expressly declared, “ That the provisions of this act shall not have the effect to tax any of the lands of the Memphis and Vicksburg Railroad Company until the first day of February, 1886,” and also upon the proviso to the second section of the act of March 14, hereinbefore set out, “ That the Memphis and Vicksburg Railroad Company shall not be required by the auditor to pay any State and county taxes heretofore due from which it was exempted by the provisions of its charter, or of any act of the legislature passed prior to the year 1884.”
If the act of March 12 be construed as exempting by its terms these lands, it could only be applied to taxes thereafter arising, for if it be said that this is a legislative construction of the charter that the lands were always exempt in the hands of the company, the obvious reply is that it is not for the legislature to coiistrue laws for the past. That duty is by the constitution devolved upon the courts. The legislature may determine what the law shall be, but the courts must say what the law has been.
*396The act of March 14 by express terms excluded the auditor-from considering any exemption except that conferred by the-charter or by acts passed prior to the year 1884. Without determining whether any taxes were due to the State prior to the purchase of the lands in 1881 by the company, we are of opinion that they then became taxable, that the auditor had no warrant in-law for executing the quit-claim under the act of March 14,1884, without payment of the taxes due, and that the fact that he did make such conveyance affords no justification for his refusal to-make the deed demanded by the petitioners. ’
The judgment of the court below is, therefore, reversed, the demurrer-overruled, and cause remanded.
W. P. & J. B. Harris, of counsel for the appellee, filed a petition for a re-argument.
The opinion of the court below in response to the petition sufficiently states the points urged in support of the petition.
Cooper, C. J.,delivered the opinion of the court in response to-the petition for a re-argument asked by the appellee.
We have carefully considered the petition for a re-argument filed in this cause and the briefs by which it is supported, but remain, satisfied of the correctness of our opinion heretofore delivered.
The appellants are not strangers or interlopers, as is suggested by counsel for the appellee, but are applicants to purchase the title-held or claimed by the State, having a right under the general laws of the State to a conveyance of that title by the auditor upon payment of the sums tendered by them. The duty of the auditor-is a purely ministerial one — to convey such title as the S,tate may-have upon the payment of the taxes charged against the land, and it is for a failure to perform this duty that they invoke the power of the court. The petitioners do not come claiming to be the-owners of the lands; their claim is that they are entitled to acquire-by purchase whatever title the State has, and that this ■ right is-refused them by the appellee. As to this right, the only one-claimed by them, the petitioners are certainly not strangers, and the fact that in justification of his refusal to recognize it the auditor *397xelies upon the title of the railroad company does not preclude dhem from showing that this asserted title ought not to be successfully interposed against them. It is only because it is necessary for the determination of the rights of the parties to the record that we have passed upon the validity of the title thus invoked. Our decision does not bind the company whose title is interposed in bar of the petitioners’ rights, we only say that on facts stated in the record such title is invalid. It may be that the facts now .admitted are not true, and the railroad company may in a contest ■to which it is -a party show other and different facts from which •other and different conclusions would follow. If, in a controversy between A and B, the court should declare that an unsealed deed was sufficient to convey title, or that a certain judicial sale on the ■facts appearing in the controversy between A and B was invalid, it •could hardly be argued that injustice had been done to C, who also held an unsealed deed, or who had bought at the judicial sale condemned by the court.
The suggestion that the State alone can question the validity of the conveyance, made by the auditor to the company under the act •of 1884, would avail if the act of the auditor was the act of the State. But it is because his act was not the act of the State that we have repudiated the suggestion. The conveyance, as we have said, was not only made without authority of the State, but was made in violation of an express prohibition — in the very statute which confers the power under which the auditor professed to act. There has been, then, no act consented to or authorized by the State, ■and to give any effect whatever to the conveyances made would be to •convert a void deed into one voidable at the election of the State, but effectual, until repudiated, to convey title. The payment of all taxes due the State was by the act of 1884 made a condition precedent to a conveyance by the auditor. Where confessedly such •condition was not complied with, we know of no rule of law which would give to the auditor’s deed any effect, either as against the State in a proceeding instituted by it to annul the conveyance or as against one seeking to- acquire the State’s title under a right conferred by general laws.
*398We cannot assume that the auditor, acting under the advice of the attorney general, has stricken the lands in controversy from the rolls in his office, as it is provided by § 569 of the code he may do when the State, from any reason, has failed to acquire title at a sale for taxes. In the first place, the petition charges that the-lands were conveyed by the auditor to the railroad company, and from this it would be more reasonable to infer that they then stood on the State’s rolls. The petition also states that since the sale of' 1862 the lands have been continuously claimed by the State, meaning, we suppose, except as conveyed by the auditor under the act of 1884. If these facts did not appear in the record, the presumption that they were stricken from the rolls could only follow an examination and condemnation of the title' claimed by the State, and this, as we have held, and we think correctly, is not a proper-subject for investigation in an action of mandamus.
We have carefully reconsidered the proposition advanced in the original argument of the cause, and now repeated and urged upon us with great earnestness and ability, that even in an action of mandamus the court ought to so far investigate the question of' title as to refuse the writ where it appears from the petition that the State is without title, and that its failure to acquire title-arose from the fact that the lands in controversy were at the timé of the sale for taxes of a class that were exempt from taxation ; and it is very forcibly argued that in such case we do not determine a question of title, but only that as to such lands there-can be no controversy about title for the reason that it was always impossible for the State to deal with the lands under its-revenue laws. The reply to this is, we think, that the lands in controversy were not originally of a class not subject to taxation,, and whether they have been assigned to that class by anything-set up in the petition depends upon the solution of questions which are questions of title or no title in the State or levee board.. The lands were once the subject of private ownership and as such liable to taxation. They were taxed, and were in default and were-sold for taxes and bought by the State. Subsequently the levee board, claiming that this sale to the State was invalid, caused them.. *399to be again sold, and it became. the purchaser. They were again sold by the State in 1875. It will thus be seen that before we can declare that these lands belonged to a class not subject to taxation we must first decide that the sale of 1862 was'Void, and that the subsequent sale to the levee board was valid. To do this we would be manifestly passing upon questions of title, and we are satisfied that this should 'not be done in this proceeding further than is necessary for the determination of the question involved, which is simply, whether the auditor, a merely ministerial officer, has refused to recognize a right in the appellants conferred upon them by the general law, and has refused to perform a duty imposed upon him by law, and in the performance of which the appellants are interested. As we have said, the appellants’ right is to buy whatever claim the State has; it is this right they seek to enforce and which has been denied them, and it is this right, and this only, that they ask the court to enforce. In the determination of the question thus presented it is unnecessary, and, we think, improper, to extend the examination so as to include the decision of conflicting claims of title.
We dispose of the case only as presented by the demurrer, and remand it for further proceedings in the court below.