Page:North Dakota Reports (vol. 2).pdf/419

 taxable property in the county, leaving only a trifling balance to bear the entire burden of taxation, and we would have presented the spectacle of local and inferior officers vested with particular powers, and exercising specific duties, in effect authorized to confiscate the entire property of the few for the benefit of the many, because this power to indirectly exempt can be so exercised as to throw upon the remaining property a tax equal to its entire value. A position which leads to a conclusion so revolting to reason and justice needs no further attack.

But it is said that by the payment of this tax, and by the receipt by the county of its share, the plaintiff has done equity. The position is untenable, for the reason that it does not appear from the complaint that the plaintiff has paid the tax in controversy, or that the county has received a sum equivalent to that tax by the receipt of its share of the gross earnings tax. Further, if the gross earnings law did not in terms exempt these lands, then the plaintiff has paid no part of the tax upon such lands. But we do not decide that question, for the reason already stated. The burden is on the plaintiff to show that it has done or offers to do not only partial, but full and unstinted equity. Until it avers the payment or tender of the tax in question, or of a sum equal to such tax, equity will lend it no aid, although it should be satisfied that a portion of such tax had, in effect, been received by the county. This reasoning, of course, ignores the statute which has substituted the tax judgment for payment or tender. But the principle is important, for where equity required payment or tender the statute provides for a judgment. 1 N. D. 102. The dissent of Justice WALLIN in that case was not upon this question.

The complaint avers the non-payment by the plaintiff of the cost of surveying, selecting and conveying the plaintiff's land grant within the territory of Dakota. Under the decision in Railroad Co. v. Traill Co., 115 U. 8. 600, 6 Sup. Ct. Rep. 201, the lands would not have been taxable because of the lien of the government thereon for such unpaid expenses had congress not taken from plaintiff and other like companies the power to interpose its own dereliction of duty as a barrier against taxation. That act was approved July 10, 1886—a year before the