Howard

The lands mentioned in the complaint were assessed for the purposes of taxation, in the year 1874. The patent for said lands was issued to the plaintiff on the 17th day of March, 1875. The twenty-first section of the act of Congress of July 27, 1866 (14 U. S. Stats, at Large, 299), provides that whenever in any grant of land, made or hereafter to be made, the United States has reserved the right to appoint commissioners to examine the roads, the costs, charges and pay of such commissioners shall be paid by the respective companies; and that in case any company shall refuse or *235 neglect to make such payments, no more patents for lands shall be issued to such company until such payments are made. The act of Congress of July 25, 1866 (14 U. S. Stats, at Large, 239), under which the plaintiff claims title, provides, in the fourth section, for the appointment of commissioners to examine the railroad and report its condition to the President of the United States. It is not alleged in the complaint that such commissioners had been appointed, or that payment for the services of the commissioners had been made when the lands were assessed, or the taxes levied.

The question presented is…