Opinion of the Court.

dispute was in fact swamp land, for the purpose of contradicting and invalidating the Department's certification thereof to the State and the latter's patent to the canal company."

These decisions give much greater weight to the action of the Land Department in certifying the lands in dispute under the railroad grant of 1856, than was done by the judgment below.

The Emigrant Company lays much stress upon that clause of the railroad act of 1856 exempting from its operation all lands previously reserved by the United States for any purpose. And upon this foundation it rests the contention that no lands embraced by the Swamp Land act of 1850 could, under any circumstances, be withdrawn by the Land Department from its operation, and certified to the State under the railroad act of 1856. This contention assumes that the lands in controversy were, within the meaning of the act of 1850, swamp and overflowed lands. But that fact was to be determined, in the first instance, by the Secretary of the Interior. It belonged to him, primarily, to identify all lands that were to go to the State under the act of 1850. When he made such identification, then, and not before, the State was entitled to a patent, and "on such patent" the fee-simple title vested in the State. The State's title was at the outset an inchoate one, and did not become perfect, as of the date of the act, until a patent was issued.

But it is equally clear that when the Secretary of the Interior certified in 1858 that the lands in controversy inured to the State under the railroad act of 1856, he, in effect, decided that they were not embraced by the Swamp Land act of 1850. This, perhaps, furnishes an explanation not only of the fact that no action was taken upon the report filed in the General Land Office in 1860 showing that the agent of Calhoun County had selected these lands as swamp and overflowed lands, but of the further fact that, so far as this record discloses, the attention of the Secretary of the Interior was never directly called by the county to any claim by it, under the act of 1850, to the lands certified under the railroad act of 1856. Nor does it appear that the American Emigrant Company,

Opinion of the Court.

whose original contract with the county was made in 1861, ever questioned before the Land Department the validity of the Secretary's certification in 1858 of these lands as passing to the State under the act of 1856, or asserted a claim to them, until it brought this suit in 1877, nearly twenty years after that officer certified them to the State under the railroad act. And it is significant that this action of the Interior Department does not seem ever to have been called in question by the State.

The case then is this: In 1858, the Secretary of the Interior decided that the lands in controversy inured to the State under the railroad act of 1856, and, if that decision was correct, then they were not reserved from the operation of that act by the Swamp Land act of 1850. The State was entitled to the lands either under the act of 1850 or under that of 1856. It was open to it, before accepting the lands under the railroad act, to insist that they passed, under the act of 1850, as swamp and overflowed lands. No such claim was made. The State

-the party primarily interested, and with whom the Land Department directly dealt-accepted the lands under the act of 1856, and, therefore, not as inuring to it as swamp and overflowed lands within the meaning of the act of 1850, and, as just stated, has never repudiated its action of 1858, nor sought to have reopened the question necessarily involved in the action of the Secretary when he certified the lands to the State under the act of 1856.

It would seem that, upon every principle of justice, the action of the Secretary of the Interior in certifying these lands to the State under the act of 1856 should not be disturbed. The fact that his certification was made subject "to any valid interfering rights which may exist to any of the tracts" embraced in his certificate does not affect this conclusion. That reservation could not have referred to any rights which the State acquired or could have asserted under some other act of Congress than that of 1856. Certainly, it was not intended. by the Interior Department to certify the lands under the railroad act of 1856 subject to the right of the State, while holding them under that certificate, to claim them under some other and prior act. The action of the Department in 1858

Opinion of the Court.

was intended to be final, as between the United States and the State, in respect of the lands then certified as railroad lands. If the State considered the lands to be covered by the Swamp Land act, its duty was to surrender the certificate issued to it under the railroad act. It could not take them under one act, and while holding them under that act pass to one of its counties the right to assert an interest in them under another and different act.

Are those in this action who claim under the State and under the act of 1850 in any better condition than the State? Can they be heard to question the action of the Land Department in 1858, if the State is estopped from so doing? We have seen that the county of Calhoun made a written agreement in 1861 with the American Emigrant Company relating to swamp and overflowed lands. But if no such agreement had been made, would the county be heard to say that the Land Department erred, as matter of fact, when, in 1858, it decided that these lands passed to the State under the railroad act? Would the creature of the State be permitted to say what its creator was estopped from saying? The county of Calhoun is a mere political subdivision of the State, created for the State's convenience, and to aid in carrying out, within a limited territory, the policy of the State. Its local government can have no will contrary to the will of the State, and it is subject to the paramount authority of the State, in respect as well of its acts as of its property and revenue held for public purposes. The State made it, and could, in its discretion, unmake it, and administer such property and revenue through other instrumentalities. Jefferson County v. Ford, 4 Greene, (Iowa) 367, 370; Soper v. Henry County, 26 Iowa, 264, 267; Maryland v. Baltimore & Ohio Railroad, 3 How. 534, 550; United States v. Railroad, 17 Wall. 322, 329; Hamilton County Commissioners v. Mighels, 7 Ohio St. 109, 118; Askew v. Hale County, 54 Alabama, 639, 640; 1 Dillon's Mun. Corp. §§ 22-23, 54-71 inclusive and authorities there cited; Angel & Ames on Corp. § 31.

It would seem to be clear that the relations of the county and the State are such that the action of the latter in accept

Opinion of the Court.

ing the lands in controversy under the railroad act was binding upon the county of Calhoun, as one of the governmental agencies of the State; and that the county could not, after such acceptance, claim these lands as swamp and overflowed lands, or, by assuming to dispose of them as lands of that character, pass to the purchaser the right to raise a question. which, in view of its subordination to the State, it was estopped from raising. We are of opinion that the plaintiff could not, by any agreement made with the county in 1861 or afterwards, acquire any greater rights, or better position, in respect of these lands, than the county itself had after the certification of them in 1858 as lands inuring to the State under the railroad act of 1856.

When the equities of the respective parties are considered, the view we have expressed is much strengthened by the circumstance that the defendants and those under whom they claim, or some of them, have paid taxes upon these lands ever since 1862, that is, for fifteen years before the înstitution of this suit in 1877.

We are of opinion that the Supreme Court of Iowa did not give proper effect to the action of the Interior Department in 1858. It should have been adjudged that, so far as the lands in controversy are concerned, the plaintiffs claiming under the county of Calhoun and the State, as well as under the act of 1850, were concluded by the act of the Secretary of the Interior when he certified such lands as inuring to the State under the railroad act of 1856, and by the act of the State in accepting and retaining the lands under that act; consequently, the suit should have been dismissed for want of equity, with costs to the respective defendants.

The judgment is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.

VOL. CLXIV-37

Syllabus.

COVINGTON AND LEXINGTON TURNPIKE ROAD COMPANY v. SANDFORD.

ERROR TO THE COURT OF APPEALS OF THE STATE OF KENTUCKY.

The legislature of Kentucky, by an act passed in 1834, created the Covington and Lexington Turnpike Road Company with authority to construct a turnpike from Covington to Lexington. Que section prescribed the rates of tolls which might be exacted; another provided “that if at the expiration of five years after the said road has been completed, it shall appear that the annual net dividends for the two years next preceding of said company, upon the capital stock expended upon said road and its repairs, shall have exceeded the average of fourteen per cent per annum thereof, then and in that case, the legislature reserves to itself the right, upon the fact being made known, to reduce the rates of toll, so that it shall give that amount of dividends per annum, and no more." In 1851 two new corporations were created out of the one created by the act of 1834, one to own and control a part of the road, and the other the remaining part, and each of the new companies was to possess and retain "all the powers, rights and capacities in severalty granted by the act of incorporation, and the amendments thereto, to the original company." In 1865 an act was passed reducing the tolls to be collected on the Covington and Lexington turnpike. In 1890 another act was passed largely reducing still further the tolls which might be exacted. Held, (1) That the new corporations created out of the old one did not acquire the immunity and exemption granted by the act of 1834 to the original company from legislative control as to the extent of dividends it might earn;

(2) That the statute of Kentucky passed February 14, 1856, reserving to the legislature the power to amend or repeal at will charters granted by it, had no application to charters granted prior to that date;

(3) That an exemption or immunity from taxation is never sustained unless it has been given in language clearly and unmistakably evincing a purpose to grant such immunity or exemption; (4) That corporations are persons within the meaning of the constitutional provisions forbidding the deprivation of property without due process of law as well as a denial of the equal protection of the laws;

(5) That the principle is reaffirmed that courts have the power to inquire whether a body of rates prescribed by a legislature is unjust and unreasonable and such as to work a practical destruction of rights