Logan, Rand & Co. v. Board of Commissioners

The opinion of the court was delivered by Horton, C. J.: [753] taxation!338- [752] The only question presented in this case is, whether the lands known as the “Osage trust and diminished reserve lands” in this state are taxable after sale thereof by the United States to a purchaser paying one-fourth of the price of the land at the time of his purchase, and executing [753] his notes to the United States for the remainder, in three annual payments, with interest thereon at the rate of 5 per cent, per annum. (1 Supp. Rev. Stat. U. S., 1874-1881, pp. 237, 529 ) By the act of admission of Kansas into the union, the lands of the United States are not subject to taxation by this state. (Act of Admission, § 3, subdiv. 6; Comp. Laws of 1862, p. 84; Gen. Stat. of 1889, ¶ 277; Comm’rs of Douglas Co. v. Railway Co., 5 Kas. 615; Railroad Co. v. Morris, 13 id. 302; McGoon v. Scales, 9 Wall. 23; Railway Co. v. Prescott, 16 id. 603.) It must be conceded that, if congress had not expressly provided that the lands referred to “shall be [after the first payment is made thereon] subject to taxation according to the laws of the state of Kansas, as other lands are or may be taxed in said state,” the lands in dispute would not be taxable under any of the provisions of the tax laws. (Parker v. Winsor, 5 Kas. 362; Comm’rs of Douglas Co. v. Railway Co., 5 id. 615.) But congress, having full control over the Osage trust lands, may make them, we think, subject to state taxation upon such conditions as are deemed proper, not in conflict with the constitution and the laws of the state. Congress having given the power to the state to tax these lands, the questions presented in this case have been, we think, substantially settled by this court in the cases of Oswalt v. Hallowell, 15 Kas. 154; Prescott v. Beebe, 17 id. 320; Comm’rs of Dickinson Co. v. Baldwin, 29 id. 538; McMahon v. Welsh, 11 id. 280. It is contended that, although the acts of congress intended to, and did, grant permission to the state to tax the lands, we have no statute to carry out the terms of these acts. In support of this contention, it is said that, under our statutes, it is the land itself in all cases, and not any mere equitable or inchoate interest in the land, that is taxed, or is sold at a tax sale or is conveyed by a tax deed; and again, that the sale in the present case is void, for the reason that it is based upon taxes levied in violation of § 1, art. 11, of the state constitution, which ordains, among other things, that “ the legislature shall provide for a uniform and equal rate of assessment and [754] taxation.” It was decided in McMahon v. Welsh, 11 Kas. 280, “that where the United States holds the legal title and an individual holds the equitable, the land is taxable.” (Stone v. Young, 5 Kas. 229.) Prior to the. law of 1879, if a purchaser of school lands failed to pay either interest or principal of the purchase money at the time the same became due, such failure ipso facto worked a forfeiture, and the interest of the purchaser in the land instantly and absolutely ceased. (The State v. Emmert, 19 Kas. 546; Ewing v. Baldwin, 24 id. 82.) Yet, in 1876, in the case of the sale of school lands, although the right of forfeiture existed therein, we held that the land after the sale was subject to taxation in the hands of the purchaser. (Prescott v. Beebe, 17 Kas. 320.) It was ruled in the last case, that “the school lands of this state are, after sale, subject to taxation, although they have never been patented nor fully paid for; and tax deeds therefor, if in form and based upon regular tax proceedings, convey all the interest held by the purchaser from the state.” Under the rule thus stated, so, in this case, it may be remarked that the Osage trust and diminished reserve lands in Kansas, under the acts of congress and the statutes of this state, are, after sale, subject to taxation, although they have neither been patented nor fully paid for; and tax deeds therefor, if in form and based upon regular tax proceedings, convey all the interest held by the purchaser from the United States. The argument against the taxation of the land because the purchaser has only paid a part of the purchase price and given his notes for the balance is answered by this court in Prescott v. Beebe, supra. Brewer, J., speaking for the court in that case, said: , “Nor do we see any section of the law which orders a different rate of assessment and taxation in respect to these lands from that prevailing as to all other lands. The solitary provision is, that ‘the lands purchased under this act shall be subject to taxation as other lands/ etc. The real objection of counsel is exactly the reverse of this, and that is, that this property is assessed and taxed at the same rate as other property, when it ought not to be, because the purchaser does not [755] hold the full equitable or legal title. In other words, there is an equitable mortgage on the land belonging to the state, and in the assessment this mortgage ought to be deducted from the value of the land; the purchaser’s interest in the land should be taxed, and not the land itself. But in no other case is the amount of an incumbrance deducted from the value of the land in assessing it for taxation. The land is assessed at its full value, and no account is taken of any mortgage or other lien. This may work a hardship on the landowner, especially when the incumbrances nearly equal the value of the land; but still it furnishes no basis for enjoining the tax.” 2' |ífser afta” As congress has expressly provided that the Osage trust lands in this state shall be subject to taxation according to the laws of the state, and has further provided, that in case any purchaser makes default in the payment of any installment, the tax-sale purchaser may be substituted in his place by paying “the balance of the purchase price remaining unpaid,” we perceive no serious difficulty in fully enforcing the federal and state statutes concerning the taxation of these lands. After the sale of the lands by the United States to a purchaser, the property cannot be said “to belong exclusively to the United States,” if the original purchaser or his substitute (the tax purchaser) is able and ready to pay the balance of the purchase price. A purchaser at tax sale buys the land charged with the lien of the United States. This is a matter of which he has notice when he buys. The original purchaser also buys with full notice of the condition that, if he does not pay the taxes on the land, a tax purchaser may displace him, under the acts of congress, as owner of the premises, when he makes default in his payments. In that way the tax-sale purchaser may obtain full title for the lands sold at tax sale, the same as the tax purchaser of school lands of the state not paid for, where the original purchaser is in default to the United States. If the original purchaser goes on and makes payment to the United States- for his land, the tax purchaser [756] obtains his tax deed like any other tax purchaser. In either way the tax purchaser is fully protected. We have considered all the other objections urged against the taxation of the lands, but we do not think such objections tenable. The judgment of the district court will be affirmed. All the Justices concurring.