Page:North Dakota Reports (vol. 2).pdf/373

 is not gratuitous, but is paid for upon a basis that seemed fair and just to the legislature. Whether it was wise to enact the gross earnings law is not for this court to inquire. If any landowner contends that he is discriminated against, his contention should be addressed, not to the courts, but to the legislature. The appellant pays a certain tax upon its income, and in consideration therefor obtains an exemption from taxation for its lands. No individual property owner in the state (then territory) paid any tax whatsoever upon its income. It would be as reasonable for the railroad companies to contend that the gross earnings law was void because the incomes of other persons were not taxed, as it is for respondent to contend that it is void because railroad lands are, by its terms, exempt.

But is appellant, as owner of its land grant, in exactly the same position as other owners of land? We think not. The individual who owns a city or town lot may erect a dwelling house thereon, and either live in it himself or rent it to another. He may erect a store thereon, or a manufactory, and carry on merchant’s or manufacturer's business. He may mortgage the property to secure his debts. In fact, he may do what he sees fit with his land. And the same is true of the owner of country land, who may cultivate it as a garden or farm, or mortgage it, or permit it to lie vacant and untilled. And all individual property owners may at any time sell their lands, and dispose of the proceeds as they choose. But appellant does not have like or equal or similar powers in respect to its land grant. It possesses and holds its lands for certain specified purposes, and cannot exercise the same freedom of action in respect thereof as may be exercised by every other property owner. The act of congress (chapter 217, 13 St. U. S. p. 365) whereby appellant was incorporated provided, by § 1, that appellant should have the power to “lay out, locate, construct, furnish, maintain, and enjoy a continuous railroad and telegraph line, with the appurtenances,” etc. By § 2 aright of way was granted to appellant for its railroad and telegraph line over the public lands of the United States, to the extent of 200 feet in width on each side of said railroad, and this right of way was, by said § 2, declared to be exempt from taxation in the territories of the United