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where it was sought, as here, to shut off such proof by the conclusive effect of the deed itself. Ewart v. Davis, 76 Mo. 135. It is not apparent that there is anything in the points ruled in De Treville v. Smalls, 98 U. S. 517, in conflict with what is here held; for neither the statute there construed, nor those of the states cited, extended to or undertook to assert the position that the deed itself should conclude all inquiry as to whether the property at the time of the sale was subject to the summary process for taxes. In other words, the statute did not declare an ex parte deed valid where there was a lack of power to sell in the mode pursued. For, as said by the court in the De Treville Case: "It [the deed] may be regular in form and in the mode of its conduct, but it cannot be valid, unless authorized by law." Vide Marsh v. Fulton Co., 10 Wall. 683, 684; Railroad Co. v. Parks, 32 Ark. 131; Radcliffe v. Scruggs, 46 Ark. 96.

If, however, our conclusion as to the validity of the tax-deed be untenable, there is another obstacle in the way of plaintiff's recovery, which we think is unsurmountable. On the 31st day of January, 1870, the state of Missouri by legislative enactment (Laws Mo. 1870, p. 355) gave its consent to the purchase of this property by the United States. The essential provisions of this act are, in substance, as follows:

(1) The consent of the state is given to the purchase by the United States of a piece of land in Kansas City, not exceeding one acre in quantity, on which to erect a building for the accommodation, &c., of the United States courts, post-office, internal revenue, and other government offices. (2) Jurisdiction is given to the United States over this land when purchased, so long as it shall use the same, subject to the right of entry by the state authorities for the purpose of executing civil and criminal process.

Then follows section 4:

"The jurisdiction hereby ceded shall not vest until the United States shall have acquired the title to the land by purchase or grant, and so long as the said land shall remain the property of the United States, when acquired as aforesaid, and no longer, the same shall be and continue exonerated from all taxes, assessments, and other charges which may be levied or imposed under the authority of the state."

So the sovereign-the local state government-consented to this purchase by the superior government before it was made, and covenanted on its part that, when the United States should acquire the title of the owner, the jurisdiction of the state should cease over the property, and that of the United States should attach, with the single reservation of the right of entry for service of legal process. Then follows the covenant of assurance that, whenever the state obtained such property by purchase or grant, the property thenceforth should be forever "exonerated from all taxes, assessments, and other charges, which may be levied or imposed under the authority of the state." The taxing power is the attribute of sovereignty, and the exercise of the highest jurisdiction. As it is a power to be exercised or forborne at the will of the sovereign having jurisdiction, it follows logically that the sovereign may cede away such right, and release the burden. And when the grant has been accepted by the general government, and the conditions of the purchase have been fully v.39F.no.16-57

performed, such grant becomes a solemn compact, which the general government would not permit the state to violate. The term "exonerated" was, presumably, employed in its ordinary acceptation: "to be relieved of as a charge; to be discharged or exempted." Be the contention of plaintiff's counsel correct, that the lien of the city government on this property, so far as the owner and all other persons were concerned, attached on the 1st day of January, 1879, yet under the city charter (section 4, art. 6) the fiscal year begins on the third Monday in April, which in 1879 was the 21st day of April. The assessment is made between the 1st day of January and the third Monday of April, and is delivered to the council at its first meeting of the fiscal year. The council then by ordinance proceeds "to levy taxes for the fiscal year." A copy of this, with the assessment books, is delivered to the auditor, who then extends the taxes, and delivers the tax-book to the collector on the 1st day of May. Sections 20, 21. From which it is manifest that the taxes for the year 1879 were not levied until after the 9th day of April, and after the United States had acquired title to the property by purchase. The mere fact that the property owned on the 1st day of January became liable to taxes for that fiscal year would not avail for the purpose of taxation, without an assessment and levy. Taxes not assessed or levied can never become an effectual lien. Heine v. Commissioners, 19 Wall. 659; Greenough v. Coal Co., 74 Pa. St. 486-500; Black, TaxTitles, § 43. The state, by the act of cession, covenanted, in effect, that when the government should purchase this property it would not thereafter make any levy; and if the state itself had proceeded as did the city to make a levy for the purpose of taxation, after the 9th day of April, 1879, this property would have been exonerated therefrom. The municipal corporation of Kansas City is an integral part of the state. It is but an adjunct of the state power, to aid in carrying out the ends of government. It is therefore no less an action taken by the state when done through the agency of a subordinate municipal corporation. When the superior sovereignty ceded away its right and jurisdiction to make this levy and sale, it necessarily negatived and withdrew the power of its inferior, existing by its consent, and acting as one of its governmental instruments, to do that which itself could not. Cooley, Tax'n, (2d Ed.) 82-84; U. S. v. Railroad Co., 17 Wall. 328, 329; O'Donnell v. Bailey, 24 Miss. 386-388; Van Brocklin v. State of Tennessee, 117 U. S. 178, 6 Sup. Ct. Rep. 670.

Hitherto it seems to have gone without question that if, after a city had taken steps looking to the enforcement of a tax, the state legislature passed an act exempting such property from taxation, it put an end to the right of the city to proceed. Van Brocklin v. State of Tennessee, supra, 175, 176. Moreover, section 8, art. 1, of the federal constitution declares:

**

"Congress shall have power to exercise exclusive legislation in all cases whatsoever * * 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 act of congress admitting the state of Missouri into the federal Union (section 4) "provided that no tax shall be imposed on lands or property of the United States." Congress authorized the secretary of the treasury to purchase this property for such needful buildings. 20 St. U. S. 39. Such buildings as were erected by the government on this lot are "needful" in the sense of the constitution, as they are a necessary means "employed by the government in executing its sovereign powers." Fagan v. Chicago, 84 Ill. 227. The moment, therefore, the government acquired this property, its jurisdiction over it became absolute and exclusive, except in the particular of the reservation expressed in the act of cession by the state legislature; and by the very law of the state's creation and admission into the federal Union its power to impose to levy-a tax on this property, ceased,―died,-because by the purchase it became "lands or property of the United States." If the right of the state or its subordinate municipality be conceded to proceed to enforce by levy and sale a tax after the acquisition of the title by the government, the legal sequence would logically follow that the state could enter upon this territory, over which it had ceded jurisdiction to the United States, and oust the government officers, its judges, and ministerial officers, and deliver over the property to the purchaser, which is precisely what was sought to be accomplished by the institution of this action in the state court. This might produce serious embarrassments and complications, as it is calculated to obstruct the operations of the general government. Such ill-omened results the constitution designed to obviate by freeing such "needful" property, after acquisition of title by the United States, from state jurisdiction, process, or interruption, which might interfere with its full enjoyment for government purposes. Railroad Co. v. Lowe, 114 U. S. 525, 5 Sup. Ct. Rep. 995; Van Brocklin v. State of Tennessee, 117 U. S. 151, 6 Sup. Ct. Rep. 670.

Since writing the foregoing opinion my attention has been called to an opinion of Judge BREWER, of this circuit, delivered at Little Rock, Ark., in Martin v. House, ante, 694. The manuscript opinion is before me. The view expressed by me herein is not only entertained by Judge BREWER, but he applied the principle to the instance of a judgment creditor who had obtained his judgment lien on the property in the state court before acquisition of title by the government for the purpose of a custom-house, etc. The short statute of limitation prescribed by the city charter for bringing actions of ejectment against such tax purchaser, after deed obtained, it is scarcely needful to say, can have no application to this contention. In the first place, the provision applies only where the tax purchaser is in possession, and the action is brought "against" him. Spurlock v. Dougherty, 81 Mo. 171-182; McReynolds v. Longenberger, 57 Pa. St. 13-29. Such statutes of limitation do not run against the government. Nor can it be tolerated that the state legislature could enforce an act which required the general government to bring a possessory action for the recovery of property of which it was already possessed under the protection of constitutional authority. It follows that the issues are found for the defendants. Judgment accordingly.

UNITED STATES v. SCOTT et al.

(Circuit Court, N. D. California. September 23, 1889.)

PUBLIC LANDS-CUTTING TIMBER-PAYMENT FOR LAND.

A party prosecuted for cutting timber on the public lands under section 2461, Rev. St., is only relieved from the criminal prosecution and liabilities provided for in said section 2461 by payment of $2.50 per acre for the land on which it is cut, in pursuance of the provisions of the act of 1878, (1 Supp. Rev. St. p. 329, § 5;) he is not relieved from his civil common-law liability to the United States as owner of the land for the value of the timber cut.

(Syllabus by the Court.)

At Law.

J. T. Carey, U. S. Atty., for plaintiffs.

J. J. Scrivner and R. T. Devlin, for defendants.

Before SAWYER, Circuit Judge, and SABIN, District Judge.

SAWYER, J., (SABIN, District Judge, dissenting.) This is an action to recover twenty-six thousand and odd dollars, the value of lumber manufactured from timber cut on the public lands of the United States, described in the complaint. The third defense set out is, that, after the cutting of said timber, and manufacturing of it into lumber, the defendants were indicted for the offense of cutting the same timber under section 2461 of the Revised Statutes of the United States; that after said indictment, the defendants paid into the court in which it was pending, the sum of two dollars and fifty cents per acre for all lands upon which said timber had been cut, and were, thereby, "relieved from further prosecution and liability therefor," in pursuance of section 5 of the act of June 3, 1878, entitled "An act for the sale of timber lands in the states of California, Oregon and Nevada, and in Washington Territories." 1 Supp. Rev. St. 329. The United States moves to strike out this defense, as constituting no valid answer to the suit, and as being, therefore, irrelevant. On the part of the defendant it is claimed, that section 5 covers not only all criminal prosecutions, and relieves them "from further prosecutions and liability therefor," incurred under section 2461, Rev. St., but, that, it exonerates and relieves them from all civil liability for the lumber cut, or for its value. The United States, on the other hand, claim, that they are only relieved from the penal liabilities incurred under said section 2461, and the question thus raised is the one to be now determined. Section 2461 makes it an offense against the United States to cut and destroy or remove timber from the public lands in the way alleged in the complaint; and provides, that, "any person so cutting timber," shall pay a fine not less than triple the value of the trees cut, or timber so destroyed, or removed, and shall be imprisoned not exceeding 12 months. There is, therefore, a criminal liability created which is to be prosecuted and punished by indictment-the penalty being both fine and imprisonment. Now what is the subject-matter of section 5 of the act of 1878? Manifestly, by the terms of the statute, persons prosecuted and the liabilities for which they

are prosecuted, "for violating section two thousand four hundred and sixty-one." They are to be relieved from "further prosecution and liability," under said former section. It would be a strained construction, to extend the section to other civil rights of the United States, not specifically, or at all, mentioned. The subject-matter of the provision seems, manifestly, limited to prosecutions under section 2461. When the timber is once severed from the land, it ceases to be a part of the realty, and becomes personal property, having no further relation to the realty whatever. But the title to the personal property is still in the United States. The property becomes subject to the laws that govern personal property. The relation of the parties to the property becomes changed. Under the case of Wooden-Ware Co. v. U. S., 106 U. S. 432, 1 Sup. Ct. Rep. 398, the United States can replevy the lumber or timber, wherever found, and if it cannot be found, and the cutting was knowingly and willfully done, recover the full value of the lumber, or timber, with the enhanced value by reason of its manufacture, and carrying to market. Suppose in the case of timber cut prior to the act of 1878, in violation of section 2461, the United States had recovered the lumber or timber made, or its enhanced value in an action of replevin, I apprehend, that this would not have relieved the parties from the criminal liability and prosecution under the statute. The latter was an additional liability created for the protection of the timber on the public lands. So, also, if the proceedings were reversed, and a conviction had, and punishment executed under the statute, I apprehend, that the party would not thereby be relieved from his civil liability, under the general law of the land, wholly independent of the statute. The United States would still own the lumber. The two liabilities are entirely independent of each other. They have no relation whatever to each other. So also, if since the passage of the act of 1878, the United States under the rule established in Wooden-Ware Co. v. U. S. should recover the lumber or timber, or its enhanced value after carried to market, this, I take it, would not, even now, relieve the party cutting it from prosecution criminally under section 2461, Rev. St. If he should upon such subsequent prosecution, pay into court two dollars and fifty cents per acre as provided by section 5 of the act of 1878, it would hardly be contended, I think, that he would be entitled to a credit for the amount already recovered by the United States for the value of the lumber. The value of the lumber recovered would, doubtless, in many cases, be ten times the amount of two dollars and a half per acre for the land on which it had been cut. If he would be entitled to a credit to the amount of two dollars and a half per acre, it would be upon the principle that the government authorizes him to buy all the timber there was on the land before it was denuded after having been detected in his offense, and upon that theory the government when seeking to convict him should. refund the full amount of its recovery in the civil suit, over the sum of two dollars and a half per acre. On this hypothesis, it would be a great advantage, instead of an inconvenience to the offender to be prosecuted criminally instead of civilly. There is little land I apprehend, that is worth being denuded of its timber, at all, for lumber or timber, upon

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