Page:North Dakota Reports (vol. 2).pdf/336

 Northern Pacific Railroad Company, Plaintiff and Appellant v. Jerry A. Barnes, County Treasurer of McLean County, Defendant and Respondent.

Constitutional Law—Legislative Powers—Taxation.

1. The taxing power is a legislative power, and such power passed to the territorial legislature of Dakota by virtue of the general grant of legislative power made by congress in the organic act. The power resided in the legislature without any limitations or restrictions whatsoever upon its exercise, except such limitations as were imposed by the organic act itself and the federal constitution.

2 There is nothing in the provisionsof § 6 of the organic act under which the territory of Dakota was organized, or the fourteenth amendment of the federal constitution, which prohibited the legislature of said territory from enacting chapter 99 of the laws of 1883.

Corliss, C. J., dissenting.

(Opinion Filed Jan. 12, 1892.)

APPEAL from district court, Burleigh county; Hon. Roderick Rose, Judge.

James McNaught, John C. Bullitt, Jr., and ''Hollemback & Long'', for appellant. N. F. Boucher, Louis Hanitch, and R. H. Copeland, for respondent.

Action by the Northern Pacific Railroad Company against Jerry A. Barnes, county treasurer of McLean county, to restrain the sale of certain land for taxes. Judgment dismissing the action on demurrer. Plaintiff appeals. Reversed.

James McNaught and John C. Bullitt, Jr., for appellant:

The sale of the plaintiff's land is ‘unauthorized because the taxes are void by reason of defects in the assessment and levy. Morrill v. Taylor, 6 Neb. 236; Clark v. Crane, 5 Mich. 151; Marsh v. Clark County, 42 Wis. 502; Van Rensslaer v. Witbeck, 7 N. Y. 517; Westfall v. Preston, 49 N. Y. 349; Bradley v. Ward, 58 N. Y. 401; Silsbee v. Stockle, 44 Mich. 461; Dickison vy. Reynolds, 48 Mich. 158; Brevoort v. City of Brooklyn, 89 N. Y. 128; McClure v. Warner, 16 Neb. 447; McNish v. Perrine, 14 Neb. 582; Lyman v. Anderson, 9 Neb. 367; Westbrook v.