until the selection lists are altered to comply with new regulations, promulgated since the former selection, is without effect so far as the rights of the plaintiff are concerned, and it is wholly unauthorized by law.
It is urged that our conclusions herein are in direct conflict with the conclusions reached by the court in Jackson v. La Moure Co., 1 N. D. 238, 46 N. W. Rep. 449. That decision, however, is not necessarily in conflict with the opinion here expressed. In that case the court says: “It is, however, averred in the complaint, and admitted by the demurrer, that the company has never made the selection of the land in question, or any part thereof, and that the United States still holds the legal title to the land.” Any discussion in that case as to what would be the law if the railroad company had selected the land in question is dictum, and is not binding upon the court. It was an opinion delivered upon an hypothetical state of facts not presented to the court, and is not necessary to a decision. The judgment of the district court sustaining the demurrer to the complaint is reversed, this court being of the opinion that the facts alleged and set up in the complaint are sufficient to constitute a cause of action.
Corliss, C. J. (dissenting.) I am unable to agree with the views expressed in the prevailing opinion. The plaintiff invokes the interposition of equity to stay the collection of taxes assessed against its land grant in the county of McLean. It rests its claim for equitable relief upon two grounds: It insists that the land grant was exempt from taxation; it asserts that the tax proceedings were illegal and void. We will discuss these propositions in their order. The contention that the land grant was exempt is based upon the provisions of chapter 99 of the Laws of 1883. This statute, in substance, declares that in lieu of any and all other taxes upon the property of any railroad company there shall be paid a percentage of all the gross earnings of such company “arising from the operation of such railroad as shall be situated within this territory,” and that such payment shall be in full of all taxation and assessment upon such property. To plaintiff's claim to exemption founded upon this
