Page:North Dakota Reports (vol. 1).pdf/403

 sumption that all land is prima facie, taxable, and the erroneous conclusion drawn therefrom that in the case at bar, the assessor had jurisdiction on the subject matter.

All land in Dakota is prima facie, not taxable. It originally belonged to the government of the United States.

The government of the Territory of Dakota was subordinate to the government of the United States, and not a sovereign power. The exercise of the power of taxation is the exercise of a power of the highest sovereignty. N. P. R. R. Co. v. Rockne, 115 U. S. 600. It cannot be exercised by the subject over the property of the sovereign.

The presumption being that the title to land in the Territory of Dakota, is in the government of the United States, it, follows that such land is not prima facie taxable, but is taxable only upon proof that the title has passed from the United States. The laws of the territory recognize this principle and provide the means of obtaining such proof. §§ 77 and 1646, Compiled Laws. The land of the United States is not therefore the subject matter of taxation by the Territory of Dakota, and only becomes such subject matter of taxation upon proof that the title has passed from the United States.

It is conceded by the stipulation of facts, that the land in question is a “part of the public domain of the United States.” The assessor, therefore, had not jurisdiction of the subject matter at the time of the assessment of the land in question.

The sheriff must determine whether the property upon which he levies is the property of the defendant. This he must do at his peril.

He must also determine whether the property upon which he levies, and which is claimed as exempt from execution, is in fact exempt. In this he acts at his peril. These are questions of fact and law which he is required to determine.

The requirement that the treasurer shall only sell lands over which the territory has power of taxation: or in other words, which are subject matter of taxation is no more difficult of performance, and puts no greater burden upon him than the law has always put upon the sheriff, in determining whether the property he levies upon is the property of the defendant, and in