Tennessee v. Whitworth, 117 U.S. 139 (1886)

The Central Southern Railroad Company was incorporated by the legislature of Tennessee on the 30th of November, 1853, to build a railroad from a point of intersection with the Tennessee and Alabama Railroad at Columbia, by way of Pulaski, to the Alabama State line, in the direction of Athens and Decatur, Alabama, to connect with any railroad that might be p. 141constructed from Decatur to the State line in the direction of Pulaski. This company also was given “all the powers and privileges,” and subjected to “ all the restrictions and liabilities prescribed in the charter of the Nashville and Chattanooga Railroad Company.”

“ Resolved, That under the authority delegated to the executive committee by the respective stockholders of the p. 143Tennessee and Alabama, Central Southern, and Tennessee and Alabama Central Railroad Companies, the committee have agreed that the capital stock of each company shall represent the value of its road, and that therefore each of the companies herein mentioned shall surrender to the Nashville and Decatur Railroad Company, all of its rights, franchises, and property; the Nashville and Decatur Railroad Company assuming to pay all debts owing by the several companies, and being hereby especially pledged to protect all persons who have made themselves individually liable for the debts of any of the several companies, and that the stockholders of each company shall be entitled to, and receive credit for, the same amount of stock in the Nashville and Decatur Railroad Company that they own in any of the several companies; these constituting and comprising the whole basis of settlement.”

I. The charter of the Nashville and Decatur Railroad Company confers no exemption from taxation whatever. 1. The Central Southern and the Tennessee and Alabama Railroad Companies acquired no exemption from taxation whatever, for the reason that the grant to them of all the “ rights, powers, and privileges” of the Nashville and Chattanooga Railroad Company was not intended to, and did not carry with it any exemption from taxation, (a) It has been decided by the Supreme Court of Tennessee that the grant to one company of p. 144the “ privileges ” of another company does not carry an exemption from taxation. Wilson n . Gaines, 9 Baxter, 546. (J) This decision is not contrary to the decisions of this court on that point. The question has never been definitely raised in any of the cases decided by this court. Humphrey n . Pegues, 16 Wall. 244; Tomlinson v. Branch, 15 Wall. 460; Southwestern Railroad Co. v. Georgia, 92 U. S. 676 ; Chesapeake & Ohio Railroad Co. v. Virginia, 94 U. S. 718 ; Railroad Co. v. Gaines, 97 IT. S. 697 ; Railroad Co. v. Georgia, 98 IT. S. 359; Railroad Co. v. County of Hamblen, 102 IT. S. 273 ; Wilson v. Gaines, 103 IT. S. 417.

vol . cxvn—io p. 146v. Palmes, 109 U. S. 244, 253; and Chesapeake & Ohio Railroad Co. v. Miller, 114 U. S. 176, 185.

In view of this the Supreme Court of Tennessee decided in effect, at its December Term, 1877, in Wilson v. Gaines, 9 Baxter, 546, that as the State in its constitution used in the same connection all the words “rights,” “privileges,” “immunities,” and “ exemptions,” each of these words must be given in statutory interpretation a meaning so limited as not to include anything expressed by the others, and that when any one of them is found in a statute the legislature must be conclusively presumed to have used it in this restricted sense. To this we are unable to agree. As has already been seen, the word “ privilege,” in its ordinary meaning, when used in this connection, includes an exemption from taxation. This court so decided a year before the charter of the Tennessee and Alabama Company was granted, and nearly three years before that of the Central Southern. In fact the Supreme Court of Tennessee does not seem to doubt that such would be its meaning but for the constitution, for in the opinion it is said, “ However comprehensive a meaning may have been given the word ‘ privilege ’ by p. 147the courts of other States, or by lexicographers, we are constrained to use it in the restricted sense and meaning given it by our laws and the constitution of the State. ... A legislature acting under this constitution for its powers, and as defining its duties, must be conclusively presumed to have used a word or term of the constitution in the sense and with the meaning given it by that constitution.” We see nothing in the constitution which gives to the word “ right,” or “ privilege,” or “ immunity,” or “ exemption,” any different meaning than that which it has among the people at large. There may be, and probably are, some immunities, and some exemptions, which would not be considered as either rights or privileges in the popular acceptation of those terms. It was to reach such immunities and such exemptions, as it seems to us, that this particular form of expression was used in the constitution, and not to provide that under no circumstances should the word privilege in a statute of Tennessee be held ‘to include a privilege of exemption from taxation. Words in a constitution, as well as words in a statute, are always to be given the meaning they have in common use, unless there are very strong reasons to the contrary. We find no such reasons in this case, and, as an exemption from taxation is a privilege in the popular sense of that term, we feel ourselves compelled to decide that both the Tennessee and Alabama Company and the Central Southern Company were granted such an exemption by their charters, notwithstanding the contrary opinion of the Supreme Court of Tennessee, which, although entitled to great respect, is not binding upon us as authority under the circumstances of this case.

It only remains to consider whether the Nashville and Decatur Company is entitled to the same exemption. When two railroad companies unite or become consolidated under the authority of law, the presumption is, until the contrary appears, that the united or consolidated company has all the powers and privileges, and is subject to all the restrictions and liabilities, of those out of which it was created. Tomlinson v. Branch, 15 Wall. 460 ; Branch v. Charleston, 92 U. S. 677, 682 ; County of Scotland v. Thomas, 94 U. S. 682, 690 ; Bailroad Co. v. Maine, p. 14896 U. S. 499, 512; Green County v. Conness, 109 U. 8. 104. From this it follows, that, as the capital stock of both the original Tennessee corporations was exempt from taxation, the capital stock of the united or consolidated company, formed by the simple aggregation of that of the two old ones, is also exempt, unless it has been provided to the contrary. Is there, then, anything in the statute authorizing the union which rebuts this presumption? We think there is not. The language relied on to show the contrary intention is this : “ That the said Nashville and Decatur Railroad shall, for its government, be entitled to all the powers and privileges, and be subject to all the restrictions and liabilities, conferred and imposed upon the Nashville and Chattanooga Railroad Company.” This is the exact language of the corresponding provision in the charter of the Tennessee and Alabama Company, one of the original companies, save only that the words “ for its government ” have been added. As we hold that this was sufficient to exempt the capital -stock of the original companies from taxation, it follows that the new company is also exempt, unless the added words were intended as a limitation upon the effect of the others.

The rule is imperative that a relinquishment of the taxing power is never to be presumed. Vicksburg, Shreveport (6 Pacific Railroad v. Dennis, 116 U. S. 665. Under this rule, it was held in Railroad Companies v. Gaines, Wl U. S. 711, that the capital stock of the Knoxville and Charleston Railroad Company was not exempt from taxation, although by its charter that company was (p. 702) “ invested, for the purpose of making and using said road, with all the powers, rights, and privileges, and subject to all the disabilities and restrictions that have been conferred and imposed upon the Nashville and Chattanooga Railroad Company,” because (p. 712) “ the grant was not of all 'the rights and privileges of the Nashville and Chattanooga Company, but of such as were necessary for the purpose of making and using the road, or, in other words, the franchises of the company which do not include immunity from taxation.” To the same effect is Railroad Co. v. Commissioners, 103 U. S. 1, where the Annapolis and Elk Ridge p. 149Railroad Company was “ invested with all the rights and powers necessary for the construction and repair ” of its railroad, and for that purpose was to have and use all the powers and privileges, and be subject to all the obligations contained in the enumerated sections of the Baltimore and Ohio charter. This we held “ was not a grant of all the powers and privileges of the Baltimore and Ohio Company, . . . but only of such as were necessary to carry into effect the objects for which the new company was incorporated,” or, in other words, “ such as were necessary to the construction, repair, and use of its railroad,” and this did not include the privilege of exemption from taxation.

Such being the case, we cannot believe that the phrase “ for its government” in the consolidating act was intended as a limitation on the powers and privileges of the new corporation. The natural meaning of the word government in such a connection is regulation and control, and we think it was used in that sense here. In reality it neither adds to nor takes from the force of the other words, and simply implies that the new corporation shall have the same charter rights and privileges, and be subject to the same charter restrictions and liabilities, as the Nashville and Chattanooga Company. Such were the charters of the old companies, and such was intended to be the p. 150charter of the new ; no more, no less. As was said in the court below, “ the government of the corporation embraces every part of the conduct -and business of the company in all its relations to the State, to the general public, to individuals, to its own stockholders,” and consequently the grant of powers and privileges for its government was in reality the grant of the powers and privileges of its corporate entity.

Affirmed. p. 151VAN BROCKLIN & Another v. STATE OF TENNESSEE & Others.

The case was heard upon pleadings and proofs, by which it appeared to be as follows: In June, 1864, these three lots, then owned by one Glenn, with other lots, were sold by auction and struck off and conveyed to the United States, under the act of Congress of June 7, 1862, ch. 98, § 7, 12 Stat. 423, for nonpayment of direct taxes assessed thereon, with a penalty of fifty per cent, and interest. The amount so bid for lot 21 was $2.75, and the amount bid for lots 13 and 14, together with other lots not now in question, was $14. In or before 1870, Glenn conveyed the three lots to Van Brocklin, who thereupon. p. 152took possession of them, and kept possession of lot 21 ever since, and of lots 13 and 14 until March 30, 1877. The United States in 1872 brought actions of ejectment against Van Brocklin, and therein, on March 30, 1877, obtained judgments and writs of possession for the three lots, and were put in possession of lots 13 and 14. The execution of the writ of possession for lot 21 was suspended until February 3, 1878; and meanwhile, in June, 1877, this lot was redeemed by Van Brocklin in the name of Glenn from the sale for taxes, by paying $2.75, the amount of the tax, penalty and interest, and was released by the United States. In May, 1878, lots 13 and 14 were sold by the United States and bought by Stacy for the price of $54, and in July, 1878, were conveyed to him by the United States, under the acts of Congress of June 8, 1872, ch. 337, § 4, 17 Stat. 331, and February 8, 1875, ch. 36, § 26, 18 Stat. 313.

We are unable to reconcile this position with a just view of the rights and powers conferred upon the national government by the Constitution of the United States. The importance of p. 154the subject, and the consideration due to the opinion of that learned court, make it proper to state somewhat fully the grounds of our conclusion.

In the words of Chief Justice Marshall, “ The United States is a government, and consequently a body politic and corporate, capable of attaining the objects for which it was created, by the means which are necessary for their attainment. This great corporation was ordained and established by the American people, and endowed by them with great powers for important purposes. Its powers are unquestionably limited; but while within those limits, it is a perfect government as any other, having all the faculties and properties belonging to a government, with a perfect right to use them freely, in order to accomplish the objects of its institution.” United States v. Maurice, 2 Brock. 96, 109. The United States, for instance, as incident to the general right of sovereignty, have the capacity, within the sphere of their constitutional powers, and through the instrumentality of the proper department, to enter into contracts and take bonds, not prohibited by law, and appropriate to the just exercise of those powers, although not expressly directed or authorized to do so by any legislative act; and likewise to take mortgages of real estate to secure the payment of debts due to them, notwithstanding1 Congress has enacted that “no land shall be purchased on account of the United States, except under a law authorizing such purchase.” Act of May 1, 1820, ch. 52, § 7, 3 Stat. 568 ; Rev, Stat. § 3736; Neilson v. Lagow, 12 How. 98, 107, 108, and cases there cited. So the United States, at the discretion of Congress, may acquire and hold real property in any State, whenever such property is needed for the use of the government in the execution of any of its powers, whether for arsenals, fortifications, light-houses, custom-houses, court-houses, barracks or hospitals, or for any other of the many public purposes for which such property is used; and when the property cannot be acquired by voluntary arrangement with the owners, it may be taken against their will, by the United States, in the exercise of the power of eminent domain, upon making just compensation, with or without a concurrent act of the State in which the land p. 155is situated. Harris v. Elliott, 10 Pet. 25 ; Kohl v. United States, 91 U. S. 367; United States v. Fox, 94 U. S. 315, 320; United States n . Jones, 109 U. S. 513; United States v. Great Falls Manufacturing Co., 112 U. S. 645; Fort Leavenworth Railroad n . Lowe, 114 U. S. 525, 531, 532.

While the power of taxation is one of vital importance, retained by the States, not abridged by the grant of a similar power to the government of the Union, but to be concurrently exercised by the two governments, yet even this power of a State is subordinate to, and may be controlled by, the Constitution of the United States. That Constitution and the laws made in pursuance thereof are supreme; they control the constitutions and laws of the respective States, and cannot be controlled by them. The people of a State give to their government a right of taxing themselves and their property at its discretion. . But the means employed by the government of the Union are not given by the people of a particular State, but by the people of all the States; and being given by all, for the benefit of all, should be subjected to that government only which belongs to all. All subjects over which the sovereign power of a State extends are objects of taxation; but those over which it does not extend are, upon the soundest principles, exempt from taxation. The sovereignty of a State extends to everything which exists by its own authority, or is introduced by its permission; but does not extend to those means which are employed by Congress to carry into execution powers conferred on that body by the people of the United States. The attempt to use the taxing power of a State on the means employed by the government of the Union, in pursuance of the Constitution, is itself an abuse, because it is the usurpation of a power which the people of a single State cannot give. The power to tax involves the power to destroy; the power to destroy may defeat and render useless the power to create; and there is a plain repugnance in conferring on one government a power to control the constitutional measures of another, which other, with respect to those very measures, is declared to be supreme over that which exerts the control. The States have no power, by taxation p. 156or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government.

But the only taxes thus spoken of as valid are those upon p. 157property not owned by the United States, but either real estate owned by the bank, or bank stock or other property owned by individuals. Throughout the discussion, both by the counsel and by the court, in McCulloch v. Maryland, State taxes upon any property of the United States had been treated as not distinguishable in principle from the particular tax whose validity was in controversy. This will be clearly shown by referring to a few passages of the arguments and the opinion.

Mr. Pinkney, in the closing argument on the same side, said: “ There is no express provision in the Constitution, which exempts any of the national institutions or property from State taxation. It is only by implication that the army, and navy, and treasure, and judicature of the Union are exempt from State taxation. Yet they are practically exempt; and they must be, or it would be in the power of any one State to destroy their use. Whatever the United States have a right to p. 158do, the individual States have no right to undo.” 4 Wheat. 390, 391. “ All the property and all the institutions of the United States are, constructively, without the local, territorial jurisdiction of the individual States, in every respect, and for every purpose, including that of taxation.” 4 Wheat. 395.

The United States do not and cannot hold property, as a monarch may, for private or personal purposes. All the property and revenues of the United States must be held and applied, as all taxes, duties, imposts and excises must be laid and collected, “ to pay the debts and provide for the common p. 159defence and general welfare of the United States.” Constitution, art. 1, sect. 8, cl. 1 ; Dobbins v. Erie County Commissioners, 16 Pet. 435, 448. The principal reason assigned in Buchanan v. Alexander, 4 How. 20, for holding that money in the hands of a purser, due to seamen in the navy for wages, could not be attached by their creditors in a State court was, “ The funds of the government are specifically appropriated to certain national objects, and if such appropriations may be diverted and defeated by State process or otherwise, the functions of the government may be suspended.”

The Constitution creating a more perfect union, and increasing the powers of the national government, expressly authorized the Congress of the United States “to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United states ; ” “ to exercise exclusive legislation over all places p. 160purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings; ” and “ to dispose of and make needful rules and regulations respecting the territory or other property belonging to the United States; ” and declared, “This Constitution and the laws of the United States which shall be made in pursuance thereof shall be the supreme law of the land ; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.” No further provision was necessary to secure the lands or other property of the United States from taxation by the States.

The first State formed out of territory not within the jurisdiction of an existing State vTas Ohio, admitted into the Union in 1802, under an act of Congress containing three propositions, offered by Congress for her acceptance or rejection, and which were accepted by the State, namely, that one section of land should be granted to each township for the use of schools, that certain salt springs should be granted to the State, and that one twentieth part of the net proceeds of lands lying within the State and sold by Congress after June 30,1802, should be applied to the laying out of public roads : “ Provided always, that the three foregoing propositions herein offered are on the conditions that the convention of the said State shall provide, by an ordinance irrevocable without the consent of the United States, that every and each tract of land sold by Congress from and after the thirtieth day of June next shall be and remain exempt from any tax laid by order or under authority of the State, whether for State, county, township, or any other purpose whatever, for the p. 161term of five years from and after the day of sale.” Constitutions and Charters, 1454, 1455.

The question in issue in that case was not of the State’s right of taxation, but of its right of eminent domain for the construction of roads and bridges. The decision of the learned justice in favor of the validity of the exercise of that right by a State over lands of the United States, without the consent of the United States, manifested either by an express act of Congress, or by the assent of a department or officer vested by law with the power of disposing of lands of the United States, appears to have been based upon the theory that the United States can hold land as a private proprietor, for other than public objects, and upon a presumption of the acquiescence of Congress in the State’s exercise of the power as tending to increase the value of the lands ; and it finds some support in dicta of Mr. Justice Woodbury, in a case in which, however, the exercise of the power by the State was adjudged to be unlawful. United States v. Chicago, 7 How. 185, 194, 195. But it can hardly be reconciled with the views expressed by Congress, in acts convo l . cxvn—11 p. 162cerning particular railroads, too numerous to be cited, as well as in general,legislation. Acts of August 4,1852, ch. 80, and March 3, 1855, ch. 200, 10 Stat. 28, 683; July 26, 1866, ch. 262, § 8,14 Stat. 253; Rev. Stat. § 2477. When that question shall be brought into judgment here, it will require and will receive the careful consideration of the court.

In Louisiana, the first territory acquired by the United States from a foreign country, the act of March 26,1804, establishing a territorial government over it by the name of the Territory of Orleans, provided that the legislative power should be vested in the governor and legislative council, and “ shall extend to p. 163all the rightful subjects of legislation ; but no law shall be valid which is inconsistent with the Constitution and laws of the United States ; ” and that “ the governor or legislative council shall have no power over the primary disposal of the soil, nor to tax the lands of the United States.” Constitutions and Charters, 691.

Upon the admission of every other State into the Union, the p. 164exemption, of the lands of the United States from taxation by the State has been declared—sometimes in the form of a condition imposed by Congress, and sometimes in the form of a proviso to a propositipn to grant the State certain lands or money, offered for its acceptance or rejection—in phrases somewhat varying, but substantially similar to one another.

In the debate in the Senate in June, 1850, on the act for the admission of California, a motion to amend the act by requiring California before her admission to pass in convention an ordinance providing, among other things, “ that she relinquishes all title or claim to tax, dispose of, or in any way to interfere with the primary disposal by the United States of the public domain p. 165within her limits,” was opposed by Mr. Douglas and Mr. Webster as unnecessary, and was defeated by a vote of thirty-six to nineteen. In the course of the debate, Mr. Douglas, after showing that the United States acquired title to the public lands, not by virtue of their sovereignty, but by deeds of cession from the old States, or by treaty of cession from France, Spain or Mexico, and referring to the provision of the Constitution authorizing Congress “ to dispose of and make all needful rules and regulations concerning the territory or other property of the United States,” said : “ This provision authorizes the United States to be and become a land owner, and prescribes the mode in which the lands may be disposed of and the title conveyed to the purchaser. Congress is to make the needful rules and regulations upon this subject. The title of the United States can be divested by no other power, by no other means, in no other mode, than that which Congress shall sanction and prescribe. It cannot be done by the action of the people or legislature of a Territory or State.” And he supported this conclusion by a review of all the acts of Congress under which States had theretofore been admitted. Mr. Webster said that those precedents demonstrated that “ the general idea has been, in the creation of a State, that its admission as a State has no effect at all on the property of the United States lying within its limits; ” and that it was settled by the judgment of this court in Pollard v. Hagan, 3 How. 212, 224, “ that the authority of the United States does so far extend as, by force of itself, proprio vigors, to exempt the public lands from taxation, when new States are created in the Territory in which the lands lie.” Congressional Globe, 31st Cong., 1st sess., vol. 21, p. 1314, vol. 22, pp. 848 & seq., 960, 989,1004; 5 Webster’s Works, 395, 396, 405.

The Supreme Court of the State of California appears at one period to have assumed that the exemption of the lands of the United States from taxation depended upon the terms of the act of Congress admitting the State into the Union, or upon the statutes of the State. People v. Morrison, 22 California, 73; People v. Shearer, 30 California, 645. But in later cases it has taken broader ground, and has defined the meaning of p. 166“ taxation ” as “ a charge levied by the sovereign power upon the property of its subject. It is not a charge upon its own property, nor upon property over which it has no dominion. This excludes the property of the State, whether lands, revenues or other property, and the property of the United States.” People n . McCreery, 34 California, 432, 456; People n . Austin, 47 California, 353, 361.

The taxation by the State of Kansas, the validity of which p. 167was upheld by the decision of the Supreme Court of that State in Fort Leavenworth Railroad n . Lowe, 27 Kansas, 749, affirmed by this court in 114 U. S. 525, was not upon property of the United States, but upon property of a railroad corporation in lands situated within the boundaries of the Fort Leavenworth Military Reservation, yet not in that part of the lands occupied or used by the United States for a fort or military post. The civil and criminal jurisdiction over the Reservation had passed to the State upon its admission into the Union, and the cession of exclusive jurisdiction by the subsequent statute of Kansas of 1875, ch. 66, which, because it conferred a benefit, Avas presumed to have been accepted by the United States, expressly saved “ to said State the right to tax railroad, bridge and other corporations, their franchises and property, on said Reservation.”

Upon the admission of a State into the Union, the State p. 168doubtless acquires general jurisdiction, civil and criminal, for the preservation of public order, and the protection of persons and property, throughout its limits, except where it has ceded exclusive jurisdiction to the United States. The rights of local sovereignty, including the title in lands held in trust for municipal uses, and in the shores of navigable waters below high water mark, vest in the State, and not in the United States. New Orleans v. United States, 10 How. 662, 737; Pollard v. Hagan, 3 How. 212; Goodtitle v. Kibbe, 9 How. 471; Poe v. Beebe, 13 How. 25; Barney v. Keokuk, 94 U. S. 324. But public and unoccupied lands, to which the United States have acquired title, either by deeds of cession from other States, or by treaty with a foreign country, Congress, under the power conferred upon it by the Constitution, “to dispose of and make all needful rules and regulations respecting the territory or other property of the United States,” has the exclusive right to control and dispose of, as it has with regard to other property of the United States; and no State can interfere with this right, or embarrass its exercise. United States v. Gratiot, 14 Pet. 526; Pollard v. Hagan, 3 How. 212; Irvine n . Marshall, 20 How. 558, 563; Gibson v. Chouteau, above cited.

In Me Goon v. Scales, 9 Wall. 23, part of the public lands in Wisconsin being claimed under a sale for State taxes, this court, speaking by Mr. Justice Miller, said: “The answer to this is, that the land was then owned by the United States, and was not subject to State taxation.” 9 Wall. 27. No reference was made to any act of Congress, or compact with the State; but the fact that the land was then owned by the United States was given as the only and conclusive reason why it could not be taxed by the State. So in Tucker v. Ferguson, 22 Wall. 527, in which it was decided that public lands in Michigan, granted by act of Congress to the State, to be held by the State to aid in the construction of a railroad, could not be taxed by the State, Mr. Justice Swayne, delivering judgment, said: “ Upon general principles, she could not tax the lands while the title remained in the United States, nor while she held them as the trustee of the United States, p. 169which, in the view of the law, was the same thing.” 22 Wall. 572.

In Commonwealth v. Young, decided in 1818, a person employed by the President of the United States, with the p. 170authority of Congress, to sell by public auction land in Pittsburgh, owned by the United States, was indicted and fined for so sell me1 it, because he had not been licensed as an auctioneer under the statutes of the State. It was found by special verdict that the. title to the land under the late proprietary of Pennsylvania was vested in fee simple in the United States; that the United States had erected a fort thereon, which had been used as a barrack, military depot, and place of defence, but had been disused as such a short time before the sale; and that the State had never ceded its jurisdiction over it to the Federal government. By the act of Congress of August 2, 1813, ch. 48, the President had been authorized to cause this land to be sold, and the proceeds of the sale were “ appropriated, under the direction of the President, to the erection of arsenals, armories and laboratories.” 3 Stat. 75. The ground of the decision, as assigned by the court, was that the United States held this lot as an individual, and therefore “ the lot was subject to taxation for State purposes, to the laws directing the mode of alienation, and, in short, every other State regulation that could operate on the property of an individual.” 1 Hall’s Journal of Jurisprudence, 50; Brightly, 306. Of that decision it is perhaps enough to say that, even if the manner of transferring the property might lawfully be regulated by the State, it does not appear to us to follow that the State might take it by taxation; the decision was made before the judgment of this court in McCulloch v. Maryland ; and the subsequent judgment of the Supreme Court of Pennsylvania in Commissioners v. Dobbins, 7 Watts, 513, sustaining the validity of a county tax upon the salary of an officer of the United States, was reversed by this court. Dobbins v. Erie County Commissioners, 16 Pet. 435.

On the other hand, the necessary exemption of all the property of the United States from State taxation has been recognized by the highest courts of Illinois, California and Kansas, in the cases already cited; and by those of Virginia, Connecticut, Iowa and Wisconsin. Western Union Telegraph Co., v. p. 171Richmond, 26 Grattan, 1, 30; Andrew n . Auditor, 28 Grattan, 115, 124; West Hartford v. Water Commissioners, 44 Conn. 360, 368; Chicago, Rock Island <& Pacific Railroad n . Davenport, 51 Iowa, 451, 454; Wisconsin Central Railroad v. Taylor County, 52 Wisconsin, 37, 51, 52.

An examination of the existing statutes of the several States (cited in the margin *) shows this result: In at least twenty- p. 172six States, namely, Massachusetts, Connecticut, New Jersey, Delaware, Maryland, South Carolina, Vermont, Maine, Ohio, Indiana, Michigan, Wisconsin, Iowa, Kansas, Nebraska, Minnesota, Alabama, Mississippi, Louisiana, Arkansas, Texas, Florida, West Virginia, California, Oregon and Nevada, all property of the United States is expressly exempted from taxatioji. In Rhode Island, New York, Illinois and Missouri, “ all

The division of opinion here in those cases was evidently the reason for the guarded form in which the general doctrine was stated, while those cases were pending, by Mr. Justice Woodbury in United States v. Am.es, 1 Woodb. & Min. 76, 85, and presently afterwards by Mr. Justice Grier in United States v. Weise, 2 Wall. Jr. 72, and by Mr. Crittenden, as Attorney General, in 5 Opinions of Attorneys General, 316, as well as by Mr. Justice McLean, when, in delivering the judgment of this court upholding the validity of a State law taxing all money or exchange brokers, he said: “ The taxing power of a State is one of its attributes of sovereignty. And where there has been no compact with the Federal government, or cession of jurisdiction for the purposes specified in the Constitution, this power reaches all the property and business within the State, which are not properly denominated the means of the general government.” Nathan n . Louisiana, 8 How. 73, 82. Somewhat similar language was used by Mr. Justice Clifford in later cases, in which it did not become necessary to define what could properly be considered as “ means of the general government. Society for Savings v. Coite, 6 Wall. 594, 605; State Tonnage Tax Cases, 12 Wall. 204, 224; Ward v. Maryland, 12 p. 177Wall. 418, 427; Transportation Co. v. 'Wheeling, 99 U. S. 273, 279.

vol . cxvu—12 p. 178a tax upon the salaries of judicial officers of a State, for reasons similar to those on which it had been held in Dobbins v. Die County Commissioners, 16 Pet. 435, that a State could not tax the salaries of officers of the United States. Mr. Justice Nelson, in delivering judgment, said: “ The general government, and the States, although both exist within the same territorial limits, are separate and distinct sovereignties, acting separately and independently of each other, within their respective spheres. The former in its appropriate sphere is supreme; but the States, within the limits of their powers not granted, or, in the language of the Tenth Amendment, ‘ reserved,’ are as independent of the general government as that government within its sphere is independent of the States.” 11 Wall. 124.

The latest utterance of this court upon this subject is in a case decided at the present term, in which Mr. Justice Bradley, delivering the judgment of the whole court, upon a question of the extent of the taxing power of a State, said : “We take it to be a point settled beyond all contradiction or question, that p. 179a State has jurisdiction of all persons and things within its territory which do not belong to some other jurisdiction, such as the representatives of foreign governments, with their houses and effects, and property belonging to or in the use of the government of the United States.” Coe v. Errol, 116 U. S. 517, 524.

The United States acquired the title to all the land now in question under the express authority of acts of Congress, and by proceedings the validity of which is clearly established by a series of decisions of this court. Acts of June 7, 1862, ch. 98, § 7,12 Stat. 423; June 8, 1872, ch. 337, § 4, 17 Stat. 331, and February 8, 1875, ch. 36, § 26, 18 Stat. 313; Bennett v. Hunter, 9 Wall. 326; De Treville v. Smalls, 98 IT. S. 517; Keely v. Sanders, 99 U. S. 441; United States v. Taylor, 104 U. S. 216; United States v. Lawton, 110 U. S. 146. The imposition of direct taxes upon the land by those acts of Congress was a lawful exercise of the power conferred by the Constitution to lay and collect taxes. The provisions authorizing the United States to sell the land for nonpayment of the taxes assessed thereon, and to purchase the land for the amount of the taxes if no one would bid a higher price, were necessary and proper means for carrying into effect the power to lay and collect the taxes; and so were the provisions authorizing the United States afterwards to sell the land, to apply the proceeds to the payment of the taxes, and to hold any surplus for the benefit of the former owner. While the United States owned the land struck off to them for the amount of the taxes because no one would pay more for it, and until it was sold by the United States for a greater price, or was redeemed by the former owner, the United States held the entire title as security for the payment of the taxes; and it could not be known how much, if anything, beyond the amount of the taxes the land was worth. To allow land, lawfully held by the United States as security for the payment of taxes assessed by and due to them, to be assessed and sold for State taxes, would tend to create-a conflict between the officers of the two governments, to deprive the United States of a title lawfully acquired under express acts of Congress, and to defeat the exercise of the constitutional power to lay and collect taxes, to pay the debts and p. 180provide for the common defence and general welfare of the United States.