No state has power to tax the property of the United States
within its limits.
Where Congress has prescribed conditions upon which portions of
the public domain may be alienated, and has provided that upon the
performance of the conditions, a patent shall issue to the donee or
purchaser, and all such conditions have been complied with, and the
tract to be alienated is distinctly defined, and nothing remains
but to issue the patent, then the donee or purchaser is to be
treated as the beneficial owner of the land, holding it as his own
property, subject to state and local taxation; but when an official
executive act prescribed by law remains to be done before the tract
can be distinctly defined and before a patent can issue, the legal
and equitable titles remain in the United States, and the land is
not subject to local taxation.
The act of the Secretary of the Interior in approving the
selection of indemnity lands by a railroad land grant company to
supply deficiencies in selections within the place limits is
judicial, and until it is done, the company has no equitable right
in the selected tracts, and this rule is not affected by the fact
that such a refusal was given under a mistake of law, and was
subsequently withdrawn and an assent given.
A mere dictum in an opinion, not essential to the decision, is
not authoritative and binding.
In April, 1884, the plaintiff in this suit, the Wisconsin
Central Railroad Company, a corporation created under the laws of
Wisconsin, was the owner of certain lands situated in the Town of
Worcester, in the County of Price, in that state, and had a patent
for them from the state bearing date on the 25th of February, 1884,
upon which taxes had, in the year 1883, been assessed by that
county, although, as claimed by the plaintiff, the title to a part
of these lands was at that time in the United States, and to the
remainder of them in the State of Wisconsin. Upon a claim that the
lands were thus exempt from taxation, the plaintiff, in April,
1884, brought the present suit in a circuit court of the state to
obtain its judgment
Page 133 U. S. 497
that the state taxes were illegal and to enjoin proceedings for
their enforcement.
The facts out of which this claim that the lands were exempt
from taxation arose are briefly these:
On the 5th of May, 1864, Congress passed an act making a grant
of lands to the State of Wisconsin to aid in the construction of
three distinct lines of railway between certain designated points.
13 Stat. 66. One of these lines is now held by the plaintiff. The
grant in aid of it is in the third section of the act, the language
of which is as follows:
"That there be, and is hereby, granted to the State of
Wisconsin, for the purpose of aiding in the construction of a
railroad from Portage City, Berlin, Doty's Island, or Fond du Lac,
as said state may determine, in a northwestern direction, to
Bayfield, and thence to Superior, on Lake Superior, every alternate
section of public land designated by odd numbers, for ten sections
in width on each side of said road, upon the same terms and
conditions as are contained in the act granting lands to said state
to aid in the construction of railroads in said state, approved
June three, eighteen hundred and fifty-six. But in case it shall
appear that the United States have, when the line or route of said
road is definitely fixed, sold, reserved, or otherwise disposed of,
any sections or parts thereof granted as aforesaid, or that the
right of preemption or homestead has attached to the same, that it
shall be lawful for any agent or agents of said state, appointed by
the governor thereof, to select, subject to the approval of the
Secretary of the Interior, from the lands of the United States
nearest to the tier of sections above specified, as much public
land in alternate sections, or parts of sections, as shall be equal
to such lands as the United States have sold or otherwise
appropriated, or to which the right of preemption or homestead has
attached as aforesaid, which lands (thus selected in lieu of those
sold, and to which the right of preemption or homestead has
attached as aforesaid, together with sections and parts of sections
designated by odd numbers as aforesaid, and appropriated as
aforesaid) shall be held by said state, or by the company to which
she may transfer the same, for the
Page 133 U. S. 498
use and purpose aforesaid,
provided that the lands to
be so located shall in no case be further than twenty miles from
the line of said road."
The seventh section enacted
"That whenever the companies to which this grant is made or to
which the same may be transferred shall have completed twenty
consecutive miles of any portion of said railroads, supplied with
all necessary drains, culverts, viaducts, crossings, sidings,
bridges, turn-outs, watering places, depots, equipments, furniture,
and all other appurtenances of a first-class railroad, patents
shall issue conveying the right and title to said lands to the said
company entitled thereto, on each side of the road, so far as the
same is completed, and coterminous with said completed section, not
exceeding the amount aforesaid, and patents shall in like manner
issue as each twenty miles of said road is completed,
provided,
however, that no patents shall issue for any of said lands
unless there shall be presented to the Secretary of the Interior a
statement, verified on oath or affirmation by the president of said
company, and certified by the Governor of the State of Wisconsin,
that such twenty miles have been completed in the manner required
by this act, and setting forth with certainty the points where such
twenty miles begin and where the same end, which oath shall be
taken before a judge of a court of record of the United
States."
The ninth section declared
"That if said road mentioned in the third section aforesaid is
not completed within ten years from the time of the passage of this
act, as provided herein, no further patents shall be issued to said
company for said lands, and no further sale shall be made, and the
lands unsold shall revert to the United States."
By the Act of Congress of April 9, 1874, the time for the
completion of the road and for the reversion of the lands was
extended to December 31, 1876. 18 Stat. 28, c. 82.
All the lands embraced by § 3 of the act of 1864 were granted in
1866 by the State of Wisconsin to the Portage and Lake Superior
Railroad Company, and to the Winnebago and Superior Railroad
Company, respectively, companies which had been incorporated under
the laws of that state.
Page 133 U. S. 499
Private and Local Laws of Wisconsin of 1866, c. 314, § 8; c.
362, § 9. In 1869, the consolidation of these two companies, under
the name of the "Portage, Winnebago and Superior Railroad Company,"
was authorized by the state, and in 1871 the name of the
consolidated company was changed to the "Wisconsin Central Railroad
Company," the plaintiff in this suit.
The Portage, Winnebago and Superior Railroad Company duly filed
the location of its road from Stevens' Point to Bayfield on October
7, 1869, and in December following, the Commissioner of the General
Land Office withdrew from sale, preemption, and homestead entry the
odd-numbered sections of land within the twenty-miles limit along
the line of the location. The road was built in sections of twenty
miles each. Section six and portions of sections five and seven
fell within Price County. Section five was completed in February,
1874, section six in December, 1876, and section seven in June,
1877. The whole number of acres in the odd-numbered sections along
the line of the railroad within the ten-mile limits, was
1,377,383.93. Of this number, 789,622 acres had been disposed of by
the United States before the Act of May 5, 1864, was passed, and
161,695.53 were disposed of after its passage, and before the line
of the road was located in October, 1869.
The plaintiff, the Wisconsin Central Railroad Company, received
from the United States, prior to November 16, 1877, patents for the
240,363.54 acres within the place limits -- that is, within ten
miles on either side of the line of the road as located, and
patents for 203,459.62 acres within the indemnity limits -- that
is, between ten and twenty miles of the line of the road. On
January 9, 1878, the company received from the United States a
patent for 162,622.89 acres, and on August 10, 1878, a patent for
29,398.51 acres, both of these patents covering land within the
place limits. No other patents were issued by the United States to
the company previous to the commencement of this suit, and the
patents issued did not include the land upon which the taxes were
assessed, to restrain the collection of which the suit is brought.
Of the lands in question, eleven parcels, of forty acres each, lay
within
Page 133 U. S. 500
the place limits. The remainder of the lands lay within the
indemnity limits. A list of selections of lands within the place
limits claimed by the company on a count of the sixth section of
the road from Stevens' Point to Bayfield was filed in the local
land office on December 5, 1876. They included, among other lands,
the eleven forties mentioned. A list of selections of land within
the indemnity limits claimed by the company on account of the same
section of railway was filed in that office on the 9th and 15th of
December, 1876. They included the remainder of the lands referred
to in the complaint. Repeated demands were made by the railroad
company, from the time these lists were filed until after the trial
of this cause, for patents covering the lands referred to, but no
patents were granted for any of them. A full statement of the
efforts to secure patents is given in the testimony of the
vice-president and general legal manager of the company.
It appears from this statement, the accuracy of which is not
questioned in any particular, that up to the time of the decision
of this Court in
Leavenworth, Lawrence & Galveston Railroad
v. United States, 92 U. S. 733, which
was rendered in April, 1876, it had been the practice of the Land
Department to allow grantees by the United States of land to aid in
the construction of railroads, whose grants were similar in their
terms to the one under consideration here, to take land from the
indemnity limits in lieu of lands sold or otherwise disposed of by
the United States prior to the passage of the act, and of lands to
which a preemption or homestead right had previously attached; but
that this practice was subsequently changed in consequence of the
language of the Court in that case, and its supposed decision that
indemnity could be allowed only for such lands as were sold or
reserved or otherwise disposed of or to which the right of
preemption or homestead had attached between the passage of the act
and the time the line or route of the road was definitely
fixed.
The Commissioner of the General Land Office, in a letter
addressed to the Secretary of the Interior under date of November
16, 1877, contained in the record, stated that this practice had
existed since the inauguration of the railroad land
Page 133 U. S. 501
grant system, but that it would appear from the decision in
question that the practice was erroneous; that indemnity could only
be allowed for lands sold or disposed of after the passage of the
granting act; and, applying that rule to the grant under
consideration, the company had received patents for 41,820.09 acres
in excess of the indemnity authorized. The Secretary of the
Interior, in answer to this letter, under date of December 26,
1877, referred to the decision of the Supreme Court and held, in
pursuance of it, that lands sold or disposed of by the United
States prior to the passage of the act granting lands to the State
of Wisconsin were excepted from the operation of the grant, and
that indemnity could not be obtained for the lands thus lost,
citing from the opinion of the Court to show that such was its
decision. The Secretary concluded by stating that, in accordance
with that rule, the company had already received 41,820.09 acres in
excess of what it was entitled to, and instructed the commissioner
to call upon the company to relinquish its claim to that quantity
of land, in order that it might be restored to the public domain.
Repeated efforts were afterwards made by the agents of the company
to induce the Secretary of the Interior to change his views upon
that point, but without success. Accordingly, no selections of
indemnity lands for lands lost from the grant within the place
limits along the line of the constructed road known as section six
were ever approved by him, and no patents of the United States were
issued for such lands, or for any lands within the place limits
along that section, until after this suit was commenced.
Having failed to secure any patent from the United States, the
plaintiff made application in February, 1884, to the State of
Wisconsin for a patent, and on the 25th of that month, a patent by
the state was issued to it, embracing the lands mentioned in the
complaint. When application was thus made to the officials of the
state, a careful examination was had by them of the selections in
order to determine whether any of the parcels were swamp lands.
There was no controversy concerning the facts of the case, and
the trial court found substantially as follows:
1. That the lands described in the complaint were all wild,
Page 133 U. S. 502
unoccupied, and unimproved, and situated in the Town of
Worcester, in the County of Price, and were a portion of the lands
granted to the state by the third section of the Act of Congress of
May 5, 1864, for the purpose of constructing what is now the
plaintiff's railroad.
2. That eleven forties of the land described were situated
within the ten-mile limits of said grant, and all the rest within
the indemnity limits, and all in odd-numbered sections.
3. That all of said lands were assessed in that town in 1883,
and put on the tax roll, and the amount of tax carried out against
each respective piece, but were not against to the plaintiff by
name, or to anyone else, or to "unknown owners," and that none of
the real estate included in the assessment roll for that year was
assessed to the owners thereof; that a warrant was attached to said
tax roll, and the roll, with said warrant attached, placed in the
hands of the town treasurer for collection; that the taxes were
unpaid thereon, and the town treasurer returned the same to the
county treasurer as delinquent.
4. That on the 25th of February, 1884, the plaintiff received a
patent from the state for all said lands, and thereby acquired the
absolute title in fee to the same; that until then the plaintiff
could get no title to the lands, and had no right to sell or convey
the same; that until they were segregated and identified, and the
grant applied thereto, the grant was "a float."
5. That the plaintiff's right to the lands was in dispute
between the state and the United States; that said lands and others
were withheld from the state and the plaintiff by the Secretary of
the Interior, and thereby the issue of patents therefor by the
United States was delayed; that the plaintiff did not in any manner
cause the delay, but, on the contrary, was diligent and persistent
in its efforts to procure the patents; that the delay in their
issue was caused entirely by the government of the United States
and the General Land Office, against the protest of both the
plaintiff and the state and in spite of continued and unintermitted
efforts made by both to obtain their issue by the Interior
Department.
Page 133 U. S. 503
6. That the lands described had at the time the taxes were
levied and assessed thereon, in 1883, been selected as lands to
which said land grant applied, but said selections had not been
approved by the Secretary of the Interior, and had not been
certified to the state or in any manner identified as lands for
which the plaintiff would eventually receive patents, but, on the
contrary, the Secretary of the Interior refused to recognize the
right of the state to the lands, or to approve the selections
made.
As conclusions of law, the court found in effect:
1. That it was not the intent and meaning of the act of Congress
that said lands should be subject to taxation until they had been
earned by the plaintiff and patented by the United States; that
while they had been in truth earned by the plaintiff before they
were assessed for taxation, yet the plaintiff's right to the same,
and to patents therefor, had been denied by the Secretary of the
Interior; that the plaintiff could not exercise control over them
until it should be determined whether it was entitled to receive
patents for them as part of the lands granted.
2. That the lands were "a float" as long as the plaintiff's
right thereto was not admitted and recognized by the Secretary of
the Interior, but denied and disputed by him, and patents therefor
withheld by him against the will and request of the plaintiff, and
hence during such time the lands were not subject to taxation by
the state.
3. That said lands were not subject to taxation in 1883, and
that the taxes levied and assessed thereon for that year were
illegal and void for the reason that said lands were then exempt
from taxation.
4. That said tax was a cloud upon the plaintiff's title to said
lands, and it was therefore entitled to the relief prayed for in
the complaint.
Upon these findings, judgment in favor of the plaintiff
perpetually restraining the defendants from collecting said taxes
was entered. The defendants appealed to the supreme court of the
state, by which the judgment below was reversed and the cause
remanded to the circuit court with directions to
Page 133 U. S. 504
dismiss the complaint. To review this latter judgment, the cause
is brought to this Court on writ of error.
MR. JUSTICE FIELD, after stating the facts as above, delivered
the opinion of the Court.
It is familiar law that a state has no power to tax the property
of the United States within its limits. This exemption of their
property from state taxation -- and by state taxation, we mean any
taxation by authority of the state, whether it be strictly for
state purposes or for mere local and special objects -- is founded
upon that principle which inheres in every independent government
that it must be free from any such interference of another
government as may tend to destroy its powers or impair their
efficiency. If the property of the United States could be subjected
to taxation by the state, the object and extent of the taxation
would be subject to the state's discretion. It might extend to
buildings and other property essential to the discharge of the
ordinary business of the national government, and in the
enforcement of the tax, those buildings might be taken from the
possession and use of the United States. The Constitution vests in
Congress the power "to dispose of and make all needful rules and
regulations respecting the territory or other property belonging to
the United States." And this implies an exclusion of all other
authority over the property which could interfere with this right
or obstruct its exercise.
Van Brocklin v. State of
Tennessee, 117 U. S. 151,
117 U. S.
168.
This doctrine of exemption from taxation of the property of the
United States, so far as lands are concerned, is in express
Page 133 U. S. 505
terms affirmed in the Constitution of Wisconsin, which ordains
that the state
"shall never interfere with the primary disposal of the soil
within the same by the United States, nor with any regulations
Congress may find necessary for securing the title in such soil to
bona fide purchasers thereof, and no tax shall be imposed
on land the property of the United States."
Constitution of 1848, Art. II, sec. 2.
It follows that all the public domain of the United States
within the State of Wisconsin was in 1883 exempt from state
taxation. Usually the possession of the legal title by the
government determines both the fact and the right of ownership.
There is, however, an exception to this doctrine with respect to
the public domain which is as well settled as the doctrine itself,
and that is that where Congress has prescribed the conditions upon
which portions of that domain may be alienated, and provided that
upon the performance of the conditions, a patent of the United
States shall issue to the donee or purchaser, and all such
conditions are complied with, the land alienated being distinctly
defined, it only remaining for the government to issue its patent,
and until such issue, holding the legal title in trust for him, who
in the meantime is not excluded from the use of the property -- in
other words, when the government has ceased to hold any such right
or interest in the property as to justify it in withholding a
patent from the donee or purchaser, and it does not exclude him
from the use of the property -- then the donee or purchaser will be
treated as the beneficial owner of the land, and the same be held
subject to taxation as his property. This exception to the general
doctrine is founded upon the principle that he who has the right to
property, and is not excluded from its enjoyment, shall not be
permitted to use the legal title of the government to avoid his
just share of state taxation.
Thus, in
Carroll v.
Safford, 3 How. 441,
44 U. S. 460,
the complainant had entered certain lands belonging to the United
States in the local land office, paid for them the required price,
and received from the office a land certificate. Patents were
issued for them, but, before their issue, the lands were assessed
for taxation and sold for the taxes. The question whether
Page 133 U. S. 506
they were subject to taxation by the state after their entry and
before the patents were issued was answered in the affirmative.
Said the court:
"When the land was purchased and paid for, it was no longer the
property of the United States, but of the purchaser. He held for it
a final certificate, which could no more be cancelled by the United
States than a patent."
And again:
"It is said the fee is not in the purchaser, but in the United
States, until the patent shall be issued. This is so, technically
at law, but not in equity. The land in the hands of the purchaser
is real estate, descends to his heirs, and does not go to his
executors or administrators"
And again:
"Lands which have been sold by the United States can in no sense
be called the property of the United States. They are no more the
property of the United States than lands patented. So far as the
rights of the purchaser are considered, they are protected under
the patent certificate as fully as under the patent. Suppose the
officers of the government had sold a tract of land, received the
purchase money, and issued a patent certificate. Can it be
contended that they could sell it again, and convey a good title?
They could no more do this than they could sell land a second time
which had been previously patented. When sold, the government,
until the patent shall issue, holds the mere legal title for the
land in trust for the purchaser, and any second purchaser would
take the land charged with the trust."
In
Witherspoon v.
Duncan, 4 Wall. 210,
71 U. S. 218, a
similar question arose, and was in like manner answered. Said the
Court:
"In no just sense can lands be said to be public lands after
they have been entered at the land office and a certificate of
entry obtained. If public lands before the entry, after it, they
are private property. If subject to sale, the government has no
power to revoke the entry and withhold the patent. A second sale,
if the first was authorized by law, confers no right on the buyer,
and is a void act."
And again:
"The contract of purchase is complete when the certificate of
entry is executed and delivered, and thereafter the land ceases to
be a part of the public domain. The government agrees to make
proper conveyance as soon as it can, and in the meantime
Page 133 U. S. 507
holds the naked legal fee in trust for the purchaser, who has
the equitable title."
See also Railway Co. v.
Prescott, 16 Wall. 603,
83 U. S. 608;
Railway Co. v.
McShane, 22 Wall. 444,
89 U. S.
461.
In the light of these decisions, it will be necessary, in order
to determine the liability of the property held by the plaintiff to
taxation in 1883, to consider the nature and extent of its interest
in the property at that time acquired under the grant of Congress
of May, 1864, and by its subsequent construction of the road.
Numerous grants of land were made by Congress between 1860 and
1880, to aid in the construction of railroads, some directly to
incorporated companies, others to different states, the lands to be
by them transferred to companies by whom the construction of the
roads might be undertaken. The different acts making these grants
were similar in their general provisions, and so many of them have
been at different times before this Court for consideration that
little can be said of their purport and meaning, the title they
transfer, and the conditions upon which the lands could be used and
disposed of which has not already and repeatedly been said in its
decisions. Each grant gave a specified quantity of lands,
designated by sections along the route of the proposed road, with
the exception of such as might, when the line of the road should be
definitely fixed, have been disposed of or reserved by the
government, or to which a preemption or homestead right might then
have attached. For these excepted sections, which otherwise would
have been taken from those designated along the line of the road,
other lands beyond those sections within a specified distance were
allowed to be selected. The title conferred was a present one, so
as to insure the donation for the construction of the road proposed
against any revocation by Congress except for nonperformance of the
work within the period designated, accompanied, however, with such
restrictions upon the use and disposal of the lands as to prevent
their diversion from the purposes of the grant. It was the practice
of the Land Department, as shown by the evidence in this record, up
to the decision of
Leavenworth, Lawrence &
Galveston Railroad v. United States, 92 U.S.
Page 133 U. S. 508
733, to allow deficiencies in the quantity of land intended to
be granted, arising from sales or other disposition made before the
date of the grant, as well as those made subsequently, and those
arising from the attachment of preemption or homestead rights, to
be supplied from lands lying beyond the original sections within
what were termed the "indemnity limits." This practice was held in
Winona & St. Peter Railroad Co. v. Barney,
113 U. S. 618,
113 U. S. 625,
to have been correct. As the Court there said:
"The policy of the government was to keep the public lands open
at all times to sale and preemption, and thus encourage the
settlement of the country, and at the same time to advance such
settlement by liberal donations to aid in the construction of
railways. The acts of Congress in effect said:"
"We give to the state certain lands to aid in the construction
of railways lying along their respective routes, provided they are
not already disposed of, or the rights of settlers under the laws
of the United States have not already attached to them, or they may
not be disposed of or such rights may not have attached when the
routes are finally determined. If at that time it be found that of
the lands designated any have been disposed of, or rights of
settlers have attached to them, other equivalent lands may be
selected in their place, within certain prescribed limits."
"The encouragement to settlement by aid for the construction of
railways was not intended to interfere with the policy of
encouraging such settlement by sales of the land or the grant of
preemption rights."
The Court accordingly held that the indemnity clause covered
losses from the grant by reason of sales and the attachment of
preemption rights previous to the date of the act, as well as by
reason of sales and the attachment of preemption rights between
that date and the final determination of the route of the road.
After the decision of the Court in the
Leavenworth
case, the Land Department changed its practice and refused to allow
the deficiencies arising from sales or other disposition made or
from the attachment of preemption or homestead rights before the
date of the act to be made up from selections within the indemnity
limits. But that decision did not warrant the change. The question
in that case was not for what deficiencies
Page 133 U. S. 509
indemnity could be had, but what lands could be taken for
deficiencies which existed. If what was then said indicated that
deficiencies which could be supplied were limited to such as might
arise after the passage of the act, it was a mere dictum, not
essential to the decision and therefore not authoritative and
binding. The refusal of the Land Department, therefore, to allow
the deficiencies arising in the sections within the place limits in
this case to be supplied by selections from the indemnity lands and
to issue patents of the United States for them was erroneous.
The question now arises as to how far this refusal affected the
legal or equitable title of the company to the lands taxed in 1883,
for which it only obtained a patent in 1884. The lands taxed
amounted to eleven parcels of forty acres each, lying within the
original sections named in the grant -- that is, within the
ten-miles limit from the line of the road -- and the remainder were
within the indemnity limits. Neither were allowed, because, by
excluding the deficiencies arising before the date of the grant
from indemnity, the whole amount of the lands granted had already
been patented. So far as the eleven parcels of forty acres each are
concerned, the right of the plaintiff to them, and to a patent for
them, had, as early as 1877, become complete under the terms of the
granting act. The line of the railroad had been definitely fixed on
the 7th of October, 1869, and the three twenty-mile sections,
numbers five, six, and seven, were all completed in June, 1877, and
supplied with the buildings and appurtenances specified in the act
to entitle the company to a patent for them from the United States.
The title conferred by the grant was necessarily an imperfect one
because, until the lands were identified by the definite location
of the road, it could not be known what specific lands would be
embraced in the sections named. The grant was therefore, until such
location, a float. But when the route of the road was definitely
fixed, the sections granted became susceptible of identification,
and the title attached to them and took effect as of the date of
the grant, so as to cut off all intervening claims.
Schulenberg v.
Harriman, 21 Wall. 44,
88 U. S. 60;
Leavenworth etc., Railroad v.
United States, 92 U.S.
Page 133 U. S. 510
733,
92 U. S. 741;
Missouri, Kansas & Texas Railroad Co. v. Kansas Pacific
Railroad Co., 97 U. S. 491,
97 U. S. 496;
Railway Co. v. Baldwin, 103 U. S. 426,
103 U. S. 429.
The road having been built as early as June, 1887, and supplied, as
required, with the appurtenances specified, the company was
entitled to have the restrictions upon the use of the land
released. It had then, to the eleven forty-acre parcels which were
capable of identification, an indefeasible right or title; it
matters not which term be used. The subsequent issue of the patents
by the United States was not essential to the right of the company
to those parcels, although in many respects they would have been of
great service to it. They would have served to identify the lands
as coterminous with the road completed; they would have been
evidence that the grantee had complied with the conditions of the
grant, and to that extent that the grant was relieved of
possibility of forfeiture for breach of them; they would have
obviated the necessity of any other evidence of the grantee's right
to the lands, and they would have been evidence that the lands were
subject to the disposal of the railroad company, with the consent
of the government. They would have been in these respects deeds of
further assurance of the patentee's title, and therefore a source
of quiet and peace to it in its possessions.
There are many instances in the reports where such effect as is
here stated has been given to patents authorized or directed to be
issued to parties, notwithstanding they had previously received a
legislative grant of the premises, or their title had been already
confirmed.
In Langdeau v.
Hanes, 21 Wall. 521,
88 U. S. 529,
we have one of that kind. There this Court said:
"In the legislation of Congress, a patent has a double
operation. It is a conveyance by the government, when the
government has any interest to convey; but where it is issued upon
the confirmation of a claim of a previously existing title, it is
documentary evidence, having the dignity of a record, of the
existence of that title, or of such equities respecting the claim
as justify its recognition and confirmation. The instrument is not
the less efficacious as evidence of previously existing rights
because it also embodies words of release or transfer
Page 133 U. S. 511
from the government."
We are of opinion, therefore, that these eleven forty-acre
parcels were in 1883 subject to taxation by the State of Wisconsin.
The lands had become the property of the railroad company, and
there was nothing to hinder their use and enjoyment. For that
purpose, it is immaterial whether it be held that the company then
had a legal and indefeasible title to the lands or merely an
equitable title to them, to be subsequently perfected by patents
from the government.
But as to the remainder of the lands taxed, which fell within
the indemnity limits, the case is different. For such lands, no
title could pass to the company not only until the selections were
made by the agents of the state appointed by the governor, but
until such selections were approved by the Secretary of the
Interior. The agent of the state made the selections, and they had
been properly authenticated and forwarded to the Secretary of the
Interior. But that officer never approved of them. Nor can such
approval be inferred from his not formally rejecting them. He
refused, as already stated, to issue to the company any patents for
any more lands, insisting that it had already received over 40,000
acres too much, and he directed the Commissioner of the General
Land Office to require the company to restore this excess to the
government. The approval of the Commissioner of the General Land
Office was essential to the efficacy of the selections, and to give
to the company any title to the lands selected. His action in that
matter was not ministerial, but judicial. He was required to
determine, in the first place, whether there were any deficiencies
in the land granted to the company which were to be supplied from
indemnity lands, and in the second place whether the particular
indemnity lands selected could be properly taken for those
deficiencies. In order to reach a proper conclusion on these two
questions, he had also to inquire and determine whether any lands
in the place limits had been previously disposed of by the
government, or whether any preemption or homestead rights had
attached before the line of the road was definitely fixed. There
could be no indemnity unless a loss was established. And in
determining whether a particular selection could be
Page 133 U. S. 512
taken as indemnity for the losses sustained, he was obliged to
inquire into the condition of those indemnity lands, and determine
whether or not any portion of them had been appropriated for any
other purpose, and, if so, what portion had been thus appropriated,
and what portion still remained. This action of the Commissioner of
the Secretary was required not merely as supervisory of the action
of the agent of the state, but for the protection of the United
States against an improper appropriation of their lands. Until the
selections were approved, there were no selections in fact -- only
preliminary proceedings taken for that purpose -- and the indemnity
lands remained unaffected in their title. Until then, the lands
which might be taken as indemnity were incapable of identification;
the proposed selections remained the property of the United States.
The government was indeed under a promise to give the company
indemnity lands in lieu of what might be lost by the causes
mentioned. But such promise passed no title, and until it was
executed created no legal interest which could be enforced in the
courts. The doctrine that until selection made, no title vests in
any indemnity lands has been recognized in several decisions of
this Court. Thus, in
Ryan v. Railroad Co., 99 U. S.
382,
99 U. S. 386,
in considering a grant of land by Congress in aid of the
construction of a railroad similar in its general features to the
one in this case, the Court said:
"Under this statute, when the road was located and the maps were
made, the right of the company to the odd sections first named
became
ipso facto fixed and absolute. With respect to the
'lieu lands,' as they are called, the right was only a float, and
attached to no specific tracts until the selection was actually
made in the manner prescribed."
And again, speaking of a deficiency in the land granted, it
said:
"It was within the secondary or indemnity territory where that
deficiency was to be supplied. The railroad company had not and
could not have any claim to it until specially selected, as it was,
for that purpose."
The selection had been approved by the Secretary.
In
St. Paul &c. Railroad v. Winona &c.
Railroad, 112 U. S. 720,
112 U. S. 731,
the Court, speaking of a previous decision, said:
"The reason of this is that, as no vested right can attach to
the lands
Page 133 U. S. 513
in place -- the odd-numbered sections within six miles of each
side of the road -- until these sections are ascertained and
identified by a legal location of the line of the road, so, in
regard to the lands to be selected within a still larger limit,
their identification cannot be known until the selection is made.
It may be a long time after the line of the road is located before
it is ascertained how many sections or parts of sections within the
primary limits have been lost by sale or preemption. It may be
still longer before a selection is made to supply this loss."
In
Sioux City &c. Railroad v. Chicago &c.
Railway, 117 U. S. 406,
117 U. S. 408,
where the railroad grant as to indemnity lands was substantially
similar to the one in this case and one of the questions was as to
the title to the indemnity lands, the Court said:
"No title to indemnity lands was vested until a selection was
made by which they were pointed out and ascertained, and the
selection made approved by the Secretary of the Interior."
In
Barney v. Winona &c. Railroad, 117 U.
S. 228,
117 U. S. 232,
the Court said:
"In the construction of land grant acts in aid of railroads,
there is a well established distinction observed between 'granted
lands' and 'indemnity lands.' The former are those falling within
the limits specially designated, and the title to which attaches
when the lands are located by an approved and accepted survey of
the line of the road filed in the Land Department as of the date of
the act of Congress. The latter are those lands selected in lieu of
parcels lost by previous disposition or reservation for other
purposes, and the title to which accrues only from the time of
their selection."
The same view has been held by different Attorneys General of
the United States in their official communications to heads of the
departments, where selections of the public lands have been
granted, subject to the approval of the Secretary of the Interior,
Cape Mendocino Lighthouse Site, 14 Opinions Attys.Gen. 50;
Portage Land Grant, 14 Opinions Attys.Gen. 645, and such
has been the consistent practice of the Land Department. The
uniform language is that no title to indemnity lands becomes vested
in any company or in the state until the selections are made,
Page 133 U. S. 514
and they are not considered as made until they have been
approved, as provided by statute, by the Secretary of the
Interior.
It follows from these views that the indemnity lands described
in the complaint were not subject to taxation as the property of
the railroad company in 1883. The judgment of the Supreme Court of
Wisconsin must therefore be
Reversed and the cause remanded with directions to enter a
decree perpetually enjoining the collection of the taxes levied in
the year 1883 upon the indemnity lands and dismissing the complaint
as to the eleven parcels of forty acres each, and it is so
ordered.