But it is insisted that there is a difference between a cash and
a donation entry -- that the one may be complete when the money is
paid, but the other is not perfected until it is confirmed by the
General Land Office and the patent issued,
That Congress has the entire control of the public lands, can
dispose of them for money, or donate them to individuals or classes
of persons, cannot be questioned. If the law on the subject is
complied with, and the entry conforms to it, it is difficult to see
why the right to tax does not attach as well to the donation as to
the cash entry. In either case when the entry is made and
certificate given the particular land is segregated from the mass
of public lands becomes private property. In the one case the entry
is complete when the money is paid; in the other when the required
proofs are furnished. In neither can the patent be withheld if the
original entry was lawful.
The power to tax exists as soon as the ownership is changed, and
this is effected when the entry is made on the terms and in the
modes allowed by law. If this were not so, those who, through the
bounty of Congress, get a title to the soil, without money, would
enjoy higher privileges and be placed on a better footing than the
great body of persons who, by the invitation of the government,
purchase lands with money. Such a discrimination could never have
been contemplated by Congress.
These principles are well illustrated in the case at bar.
Page 71 U. S. 220
The heirs of Harrell, by means of the Cherokee treaty, had a
claim to two quarter sections of land in Arkansas. If they
furnished proof to the register and receiver of the proper land
office of the settlement and removal of their father, and it was
accepted and the claim allowed, then they had an equal right to
purchase the lands in question with this claim as with money. The
claim was allowed, the selections made, and a certificate of entry
given, and it was their duty to see that the taxes were paid. It is
true, that the entry might be set aside at Washington, but this
condition attaches to all entries of the public lands.
They took upon themselves the risk of confirmation, and periled
their title when they suffered the lands to be sold for nonpayment
of taxes. It does not appear from the record why the patent was so
long delayed, but the claim was finally approved on the original
proofs, and the patent, when issued, related back to the original
entry. The lands were, therefore, under the laws of the state,
properly chargeable with taxes from the date of the first entry in
1830.
The judgment of the Supreme Court of Arkansas is
Affirmed.
*
44 U. S. 3 How.
441, 450 [argument of counsel -- omitted].