⚫704

⚫703

language of the act is the same in both cases, and there is nothing whatever to show that as to one it meant one thing, and as to the other something else. The evident purpose of this section was to give the state the power, immediately on the discovery of a fraud, to demand of the company "payment of the bonds, "—that is, payment of an amount of money equal to that called for by the bonds, and a remedy at once against the company and its implicated stockholders for the enforcement of such a payment in case it was not voluntarily made. The money when collected was to be set apart and invested “as a sinking fund for the payment of the bonds" by the state.

By section 14 it was made the duty of the governor to appoint an agent for the state, to attend all sales, made either under section 6 or section 13, to protect the interest of the state, and, if necessary for that purpose, to buy the road or property in the name of the state. If bought, it was to be put in the hands of a receiver to manage and run in the way provided in section 5, until the next meeting of the general assembly. The receiver was to settle his accounts with the comptroller semi-annually, but no directions were given in relation to the manner in which the net earnings were to be used in case of a sale under section 6. He was to take possession of "the said road and property and use the same as provided for in the fifth section," and, on the settlement of his accounts with the comptroller, the balances remaining in his hands would necessarily go into the treasury, there to be dealt with as the general assembly should direct. If a purchase was made by the state under section 13, the presumption would be that the earnings must go into the sinking fund, as such was the provision made for the proceeds of a sale to another purchaser; but all that would necessarily be under the control of the general assembly when it met.

Having thus gone over the other sections, we are prepared to consider section 12, in its bearing on the question which is now under discussion. This section reserves to the state in express terms the right to enact "all such laws as may be deemed necessary to protect the interest of the state, and to secure the state against all loss in consequence of the issuance of bonds under the provisions of this act, but in such manner as not to impair the vested rights of the stockholders of the companies." This reservation includes, and was undoubtedly intended to include, full power in the state, as against every one except stockholders, to do whatever might be deemed necessary by the legislature, with the lien reserved for the security of the obligations assumed by the companies. Nothing is said about bondholders. It will, of course, be conceded that if bondholders actually had any vested right or interest as against the state in the security created by the statute, nothing could be done under this section by the state to impair that right. But the same was probably true of stockholders, and the special care taken to preserve the rights of stockholders, without referring to bondholders at all, raises a strong presumption that it was never intended to vest in them any right which would interfere in the remotest degree with the free exercise of all the power of the state to deal with the borrowing companies in reference to the bonds and the security created therefor, just as might, under any circumstances that should arise, be deemed most for the interest of the state and the companies, they being the only parties to the contract of the companies that were to be at all interested in what was to be done. As has been seen, the bonds to be issued were on their face to bind only the state. At that time repudiation of state faith was not thought of. No purchaser of state bonds ever asked whether anything else than the faith of a state was pledged for their payment promptly at maturity. Repudiation was looked upon as dishonorable, and something that would never occur. Security to the state against loss by the loans of its bonds which were provided for must, therefore, be presumed to have been the sole purpose of the liens which were to be created on the issue of the bonds. Bondholders were never thought of in this connection, for they had

the security of the faith of the state, and could not have been supposed to look for anything else. Hence this reservation of power by the state was made broad enough to allow the state to deal with the securities which were taken from the companies at its own discretion, and in any way that might be deemed just. No such power could be exercised if the bondholders held an interest in the securities adverse to the state. Under these circumstances this section is to be looked upon as excluding any such possible intent, and operating as a standing notice to all who might, from time to time, become the holders of any of the lent bonds that the payment of the bonds, and the interest thereon, which the several companies bound themselves for, was to be made to the state, and not to them, and that the security which was taken by the state was for the performance of this obligation, and might be dealt with by the state in any manner its own legislature should direct or provide. This reservation of power is entirely inconsistent with the idea of a debt from the company to the bondholders on account of the bonds; and, if there could have been any doubt on this subject without section 12, there certainly is none with it.

This disposes of all the cases; for the state, in the exercise of its legislative discretion, has released each of the companies whose property is involved in these suits from all its obligations growing out of the original loans, and has canceled the liens created for their security. The companies have either voluntarily paid their debts to the satisfaction of the state, or the state has foreclosed the lien which was reserved, and sold the property, free of that incumbrance, either to the present defendants or to those under whom they claim. Some reliance was placed, in the argument for the bondholders, upon the legislative history of the passage of the act of 1852, which showed an offer and rejection of certain proposed amendments, and also upon the construction which had been put on the act by certain state officers of high authority in the administration of the public affairs; but we have deemed it unneces sary to add to the length of this opinion by particular reference to that branch of the argument, because, as we think, the statute contains within itself unmistakable evidence of its meaning. The same is true of the reference which has been made to other statutes of Tennessee, and to statutes of the states and of the United States upon the same general subject. This statute differs in its phraseology from some, and perhaps all, of the others, but its own language furnishes all the aid which is required for its true interpretation. The decree in each of the cases is affirmed.

MATTHEWS and BLATCHFORD, JJ., took no part in these decisions.

(114 U. S. 525)

FORT LEAVENWORTH R. Co. v. Lowe, Sheriff, etc.

(May 4, 1885.)

PROPERTY CEDED TO UNITED STATES BY A STATE-FORT LEAVENWORTH MILITARY RES

ERVATION.

The saving clause in the act of the legislature of Kansas (Laws Kan. 1875, p. 95,) ceding to the United States jurisdiction over the territory embraced in the Fort Leavenworth Military Reservation, is sufficient to empower the state to collect taxes upon railroad property within the territorial limits of such reservation; the cession having been made in a manner other than that which, by constitutional intendment, would invest the general governinent with sole and complete jurisdiction, notwithstanding any saving clause in the act of cession.

In Error to the Supreme Court of the State of Kansas.

Thos. F. Withrow, M. A. Low, and E. E. Cook, for plaintiff in error. Hallett Phillips, for defendant in error.

W.

FIELD, J. The plaintiff, a corporation organized under the laws of Kansas,

⚫526

was in 1880, and has ever since been, the owner of a railroad in the reservation of the United States in that state, known as the "Fort Leavenworth Military Reservation." In that year its track, right of way, franchises, road-bed, telegraph line, and instruments connected therewith, on the reservation, were assessed by the board of assessors of the state, and a tax of $394.40 levied thereon, which was paid by the railroad company under protest, in order to prevent a sale of the property. The present action is brought to recover back the money thus paid, on the ground that the property, being entirely within the reservation, was exempt from assessment and taxation by the state.

The land constituting the reservation was part of the territory acquired in 1803 by cession from France, and, until the formation of the state of Kansas, and her admission into the Union, the United States possessed the rights of a proprietor, and had political dominion and sovereignty over it. For many years before that admission it had been reserved from sale by the proper authorities of the United States for military purposes, and occupied by them as a military post. The jurisdiction of the United States over it during this time was necessarily paramount. But in 1861 Kansas was admitted into the Union upon an equal footing with the original states; that is, with the same rights of political dominion and sovereignty, subject like them only to the constitution of the United States. Congress might undoubtedly, upon such admission, have stipulated for retention of the political authority, dominion, and legislative power of the United States over the reservation, so long as it should be used for military purposes by the government; that is, it could have excepted the place from the jurisdiction of Kansas, as one needed for the uses of the general government. But from some cause, inadvertence perhaps, or overconfidence that a recession of such jurisdiction could be had whenever desired, no such stipulation or exception was made. The United States, therefore, retained, after the admission of the state, only the rights of an ordinary proprietor; except as an instrument for the execution of the powers of the general government, that part of the tract, which was actually used for a fort or military post, was beyond such control of the state, by taxation or otherwise, as would defeat its use for those purposes. So far as the land constituting the reservation was not used for military purposes, the possession of the United States was only that of an individual proprietor. The state could have exercised, with reference to it, the same authority and jurisdiction which she could have exercised over similar property held by private parties. This defect in the jurisdiction of the United States was called to the attention of the government in 1872. In April of that year the secretary of war addressed a communication to the attorney general, inclosing papers touching the reservation, and submitting for his official opinion the questions, whether, under the constitution, the reservation of the land for a site as a military post and for public buildings took it out of the operation of the law of March 3, 1859, (11 St. 430,) and, if so, what action would be required on the part of the executive or congress to restore the land to the exclusive juris. diction of the United States. The attorney general replied that the act admitting Kansas as a state into the Union had the effect to withdraw from federal jurisdiction all the territory within the boundaries of the new state, excepting only that of the Indians having treaties with the United States, which provided that without their consent such territory should not be subject to state jurisdiction, and the reservation was not within this exception; and that to restore the federal jurisdiction over the land included in the reservation, it would be necessary to obtain from the state of Kansas a cession of jurisdiction, which he had no doubt would, upon application, be readily granted by the state legislature. 14 Op. Attys. Gen. 33. It does not appear from the record before us that such application was ever made; but, on the twenty-second of February, 1875, the legislature of the state passed an act entitled "An act to cede jurisdiction to the United States over the territory

of the Fort Leavenworth military reservation," the first section of which is as follows:

"That exclusive jurisdiction be, and the same is hereby, ceded to the United States over and within all the territory owned by the United States, and included within the limits of the United States military reservation known as the Fort Leavenworth Reservation' in said state, as declared from time to time by the president of the United States, saving, however, to the said state the right to serve civil or criminal process within said reservation, in suits or prosecutions for or on account of rights acquired, obligations incurred, or crimes committed in said state, but outside of said cession and reservation; and saving further to said state the right to tax railroad, bridge, and other corporations, their franchises and property, on said reservation." Laws Kan. 1875, p. 95.

The question as to the right of the plaintiff to recover back the taxes paid depends upon the validity and effect of the last saving clause in this act. As we have said, there is no evidence before us that any application was made by the United States for this legislation, but, as it conferred a benefit, the acceptance of the act is to be presumed in the absence of any dissent on their part. The contention of the plaintiff is that the act of cession operated under the constitution to vest in the United States exclusive jurisdiction over the reservation, and that the last saving clause, being inconsistent with that result, is to be rejected. The constitution provides that "congress shall have power to exercise exclusive legislation in all cases whatsoever over such district (not exceeding ten miles square) as may, by cession of particular states and the acceptance of congress, become the seat of the government of the United States, and to exercise like authority over all places purchased 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." Article 1, § 8.

The necessity of complete jurisdiction over the place which should be se-a lected as the seat of government was obvious to the framers of the constitution. Unless it were conferred, the deliberations of congress might, in times of excitement, be exposed to interruptions without adequate means of protection; its members, and the officers of the government, be subjected to insult and intimidation, and the public archives be in danger of destruction. The Federalist, in support of this clause in the constitution, in addition to these reasons, urged that "a dependence of the members of the general government on the state comprehending the seat of the government for protection in the exercise of their duty, might bring on the national councils an imputation of awe or influence, equally dishonorable to the government and dissatisfactory to the other members of the confederacy." No. 43.

At

The necessity of supreme legislative authority over the seat of government was forcibly impressed upon the members of the constitutional convention by occurrences which took place near the close of the revolutionary war. that time, while congress was in session in Philadelphia, it was surrounded and insulted by a body of mutineers of the continental army. In giving an account of this proceeding, Mr. Rawle, in his Treatise on the Constitution, says of the action of congress: "It applied to the executive authority of Pennsylvania for defense; but, under the ill-conceived constitution of the state at that time, the executive power was vested in a council, consisting of thirteen members, and they possessed or exhibited so little energy, and such apparent intimidation, that the congress indignantly removed to New Jersey, whose inhabitants welcomed it with promises of defending it. It remained for some time at Princeton without being again insulted, till, for the sake of greater convenience, it adjourned to Annapolis. The general dissatisfaction with the proceedings of the executive authority of Pennsylvania, and the degrading spectacle of a fugitive congress, suggested the remedial provisions now under con

089.

*531

sideration." Rawle, 113. Of this proceeding Mr. Justice STORY remarks: "If such a lesson could have been lost upon the people, it would have been as humiliating to their intelligence as it would have been offensive to their honor." 2 Comm. Const. § 1219.

Upon the second part of the clause in question, giving power to "exercise like authority,"—that is, of exclusive legislation "over all places purchased 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," the Federalist observes that the necessity of this authority is not less evident. "The public money expended on such places," it adds, "and the public property deposited in them, require that they should be exempt from the authority of the particular state. Nor would it be proper for the places on which the security of the entire Union may depend, to be in any degree dependent on a particular member of it. All objections and scruples are here also obviated by requiring the concurrence of the states concerned in every such establishment." "The power," says Mr. Justice STORY, repeating the substance of Mr. Madison's language, "is wholly unexceptionable, since it can only be exercised at the will of the state, and therefore it is placed beyond all reasonable scruple." This power of exclusive legislation is to be exercised, as thus seen, over places purchased, by consent of the legislatures of the states in which they are situated, for the specific purposes enumerated. It would seem to have been the opinion of the framers of the constitution that, without the consent of the states, the new government would not be able to acquire lands within them; and therefore it was provided that when it might require such lands for the erection of forts and other buildings for the defense of the country, or the discharge of other duties devolving upon it, and the consent of the states in which they were situated was obtained for their acquisition, such consent should carry with it political dominion and legislative authority over them. Purchase with such consent was the only mode then thought of for the acquisition by the general government of title to lands in the states. Since the adoption of the constitution this view has not generally prevailed. Such consent has not always been obtained, nor supposed necessary, for the purchase by the general government of lands within the states. If any doubt has ever existed as to its power thus to acquire lands within the states, it has not had sufficient strength to create any effective dissent from the general opinion. The consent of the states to the purchase of lands within them for the special purposes named, is, however, essential, under the constitution, to the transfer to the general government, with the title, of political jurisdiction and dominion. Where lands are acquired without such consent, the possession of the United States, unless political jurisdiction be ceded to them in some other way, is simply that of an ordinary proprietor. The property in that case, unless used as a means to carry out the purposes of the government, is subject to the legislative authority and control of the states equally with the property of private individuals.

But not only by direct purchase have the United States been able to acquire lands they needed without the consent of the states, but it has been held that they possess the right of eminent domain within the states, using those terms, not as expressing the ultimate dominion, or title to property, but as indicating the right to take private property for public uses when needed to execute the powers conferred by the constitution; and that the general government is not dependent upon the caprice of individuals, or the will of state legislatures, in the acquisition of such lands as may be required for the full and effective exercise of its powers. This doctrine was authoritatively declared in Kohl v. U. S. 91 U.S. 367. All the judges of the court agreed in the possession by the general government of this right, although there was a difference of opinion whether provision for the exercise of the right had been made n that case. The court, after observing that lands in the states are needed