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, 731, the court, speaking of a previous decision, said: "The reason of this is that, as no vested right can attach to the lands 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 preëmption. 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, 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, 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 Men-docino Lighthouse Site, 14 Opinions Att'ys Gen. 50, Portage Land Grant, Ib. 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; 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.

SAYLES v. DAVIS.

22 Wisconsin, 225. 1867.

APPEAL from the Circuit Court for Rock County.

Action by the holder of a tax deed of land, to bar the original owner, under secs. 35 et seq., chap. 22, Laws of 1859. The deed was executed April 11, 1863, upon a sale made in 1860 for the taxes of 1859. A judgment for plaintiff having been reversed by this court (20 Wis. 302), on the ground that the record did not show proof of service of summons duly made, the plaintiff, after the cause was remitted, filed due proof of service and took judgment without notice. to the defendant. Defendant then obtained an order on plaintiff to show cause why the judgment should not be vacated, and leave given to answer. It appeared from the papers used at the hearing, that the summons and complaint were duly served on defendant personally, May 3d, 1864; that judgment was entered September 16, 1864, defendant not having answered or appeared; and that on the 18th of December, 1865, plaintiff was notified of the retainer of counsel by defendant for the purpose of prosecuting an appeal from the judgment. The proposed answer alleges that plaintiff's tax deed was defective when made and recorded, for want of a revenue stamp; and that before any stamp was affixed, defendant had deposited with the proper officer the sum necessary to redeem the land; that in November, 1863, a deed of the premises had been executed to defendant by the county treasurer, upon a sale for the taxes of 1858; and that the tax sale under which plaintiff claims was wholly void, "for the reason that the requirements of law, in the assessing and collecting of the taxes of the year 1859, were disregarded in many essential particulars, and especially by reason of the neglect of the county treasurer in not properly giving notices of the proposed sale of said land for delinquent tax, and in omitting to give notice in one

public newspaper of all the lands in Rock county upon which taxes were delinquent for the year 1859; and also by reason of the neglect of said clerk in failing to advertise, as required by law, the time when the period allowed by law to redeem from the tax sales for the delinquent taxes of 1859 would expire; and the said proceedings in the attempted collection of said taxes for 1859, and in the execution of the said instrument to said Sayles, were in other respects informal and insufficient to support the title in said lands claimed by said. Sayles," etc. The motion papers included an affidavit of merits.

The order to show cause was discharged, with costs; and from this decision the defendant appealed.

DIXON, C. J.

We

As to the omission to affix an internal revenue stamp to the tax deed under which the plaintiff claims, we think such stamp was unnecessary. The deed was executed before the passage and publication of the act of our State Legislature Laws of 1863, chap. 159. are of opinion that Congress possesses no constitutional power, without the assent of the States, to tax the means or instruments devised by the States for the purpose of collecting their own revenues; and for our reasons in the support of this conclusion, we refer to the opinion of this court in the case of Jones v. The Estate of Keep, 19 Wis. 389. If the writs and judicial proceedings in the courts of the State cannot be taxed by Congress, it requires no argument to show that the proceedings of the State to collect its own revenue cannot be so taxed. "The power to tax involves the power to destroy ; and the power to destroy may defeat and render useless the power to create." The functions of government exercised in the levying and collection of its taxes are more vitally important to its existence and independence than any other. Without the free and unobstructed exercise of such power no State can exist, and all sovereignty and independence are at an end. We cannot but regard this as an obvious departure from the spirit and requirements of our Federal Costitution, and contrary to the intention of the convention which framed, and of the States which ratified it.

The tax deed of the defendant, executed upon a sale made prior to that to the plaintiff, conveys no title as against the plaintiff. A valid sale and conveyance under a junior assessment cuts off all former titles or liens. Jarvis v. Peck, 19 Wis. 74. The words "subject, however, to all unpaid taxes and charges," in sec. 25, chap. 22, Laws of 1859, have reference only to such unpaid taxes and charges as may have accrued subsequently to the sale on which the deed is issued.

The other grounds of irregularity relied upon to impeach the deed to the plaintiff are not specifically stated in the answer, as required by law. Laws of 1859, chap. 22, sec. 38; Wakeley v. Nicholas, 16 Wis. 588. The "many essential particulars" in which "the requirements of law in the assessing, levying, and collecting of the taxes of the year 1859, were disregarded," are not pointed out at all

by the answer; nor is it stated how or in what manner the county treasurer was negligent "in not properly giving notice of the proposed sale of the said land for delinquent tax." The averment of the treasurer's neglect "in omitting to give notice in one public newspaper of all the lands in Rock County upon which taxes were delinquent for the year 1859," is a negative pregnant, and tenders an immaterial issue. It is not material to the validity of the plaintiff's deed, whether all the lands in Rock County were advertised or not. It is enough that the proper notice was published as to the lands which were conveyed to him. And the averment that the deed is void by reason of the neglect of the clerk "in failing to advertise, as required by law, the time when the period allowed by law to redeem from the tax sales for the delinquent taxes of 1859, would expire," is equally faulty. The question is, in what particular or particulars did the clerk fail "to advertise as required by law;" and this must be answered by the pleading, and the specific objections pointed out.

As the answer shows no defence to the action of the plaintiff, it follows that the Circuit Court was right in rejecting the defendant's application to be let in under section 38, chap. 125, R. S. To authorize the granting of relief under that section, upon answer, a valid and meritorious defence must be shown.

Order affirmed.1

1 In MOORE v. QUIRK, 105 Mass. 49 (1870), it was contended that the record of a mortgage was invalid for want of a revenue stamp under the provisions of the Internal Revenue Act of 1866, ch. 184, sec. 9, which provided that no instrument should be recorded until stamped and that such instrument not stamped should be void. The court (per GRAY, J.) disposed of the objections to the mortgage as follows:

243.

"1. The want of the stamp required by the Internal Revenue Act of the United States did not affect the validity of the mortgage, in the absence of evidence tending to show that the stamp had been omitted with intent to defraud the revenue. U.S. St. 1866, c. 184, sec. 9; 14 U. S. Sts. at Large, 142-144. Green v. Holway, 101 Mass. Campbell. Wilcox, 10 Wall. 421. The plaintiff does not appear to have asked that any question of such fraudulent intent should be submitted to the jury. "2. The mortgage was recorded as required by the Statutes of the Commonwealth. Gen. Sts. c. 151, secs. 1, 3. The clause of the Internal Revenue Act, which provides that instruments not stamped as therein required shall not be recorded, cannot be construed as prohibiting the performance by the officers of the Commonwealth of the duties imposed upon them by its statutes, but must be limited in interpretation and effect to records required or authorized by Acts of Congress, for the same reasons upon which the prohibition in the same clause against giving unstamped instruments in evidence in any court has been decided to be applicable to the Federal Courts only, and not to extend to the State Courts. Carpenter v. Snelling, 97 Mass. 452; Green v. Holway, 101 Mass. 243; People v. Gates, 43 N. Y. 40; Clemens v. Conrad, 19 Mich. 170."

In WARREN v. PAUL, 22 Ind. 276 (1864), the question was as to the validity of the provision of the Internal Revenue Act of 1864 requiring writs of State Courts to be stamped and the court (per PERKINS, J.) used the following language: —

"State governments, as we have seen, are to exist with judicial tribunals of their own. This is manifest all the way through the Constitution. This being so, those tribunals must not be subject to be encroached upon or controlled by Congress. This would be incompatible with their free existence. It was held when Congress

c. For Public Purpose.

LOAN ASSOCIATION v. TOPEKA

20 Wallace, 655. 1874.

[PLAINTIFF brought action in the United States Circuit Court for Kansas against the City of Topeka on coupons for interest attached to bonds of the city issued in pursuance of the provisions of a State statute. Judgment being given for defendant on demurrer, plaintiff took a writ of error.]

MR. JUSTICE MILLER delivered the opinion of the court.

We find ample reason to sustain the demurrer on the second ground on which it is argued by counsel and sustained by the Circuit Court.

That proposition is that the act authorizes the towns and other municipalities to which it applies, by issuing bonds or loaning their credit, to take the property of the citizen under the guise of taxation to pay these bonds, and use it in aid of the enterprises of others which are not of a public character, thus perverting the right of taxation, which can only be exercised for a public use, to the aid of individual interests and personal purposes of profit and gain.

The proposition as thus broadly stated is not new, nor is the question which it raises difficult of solution.

If these municipal corporations, which are in fact subdivisions. of the State, and which for many reasons are vested with quasi legislative powers, have a fund or other property out of which they can pay the debts which they contract, without resort to taxation, it may be within the power of the Legislature of the State to authorize them to use it in aid of projects strictly private or personal, but which would in a secondary manner contribute to the public good; or where there is property or money vested in a corporation of the kind for a particular use, as public worship or charity, the Legislature may pass laws authorizing them to make contracts in reference to this property, and incur debts payable from that source.

But such instances are few and exceptional, and the proposition is a very broad one, that debts contracted by municipal corporations must be paid, if paid at all, out of taxes which they may lawfully created a United States bank, and is now decided when the United States has given bonds for borrowed money, that as Congress had rights to create such fiscal agents and issue such bonds, it would be incompatible with the full and free enjoyment of those rights to allow that the States might tax the bank or bonds; because, if the right to so tax them was conceded, the States might exercise the right to the destruction of congressional power. The argument applies with full force to the exemption of State governments from federal legislative interference."