
    The Fort Leavenworth Railroad Company v. Percival G. Lowe, as Sheriff, &c.
    
    Military Reservation, Tax on Property Within. The state of Kansas has power and authority to tax railroad property belonging to a private corporation, situated exclusively within the boundaries of the Fort Leavenworth military reservation.
    
      Error from Leavenworth District Court.
    
    Action brought by the Railroad Company against Lowe, as sheriff of Leavenworth county, to recover certain taxes, amounting to $420.30, paid under protest August 24, 1881. At the December Term, 1881, the court sustained a general demurrer to plaintiff’s petition, and gave defendant judgment for costs. The plaintiff brings the case here. The facts appear in the opinion.
    
      
      H. W. Ide, for plaintiff in error:
    Acts of a nature similar to ch. 66, Laws of 1875, with a proviso reserving to the state the right to serve civil and criminal process within the ceded territory, have frequently been passed by the several states, and it seems to have been generally conceded that such a proviso, or condition, is effectual to preserv.e such right; but this proviso is sustained upon the ground of a sort of comity between the state and the general government, and not as leaving in the state any sovereignty or jurisdiction over the place. An officer of the state, while serving process within the ceded territory, is to-be considered as quoad hoe, an officer of the.United States. (1 Kent’s Com. 430.) Other authorities uphold such a proviso-upon the same ground.
    But the other proviso is of altogether a different nature, and raises questions that have been before the courts in only two or three instances to my knowledge, and then not as directly and squarely as in this ease. Concede that prior to-the passage by the legislature of the act'above quoted, the sovereignty and jurisdiction of the state were supreme and absolute over this military reservation: its use as a military post did not impair the authority of the state in the least. To this effect all the authorities are unanimous. (4 Kas. 49; 8 Mass. 72; 1 Mete. 581; 17 Johns. 225; 1 McLean, 234; 2 Mason, 60; 5 id. 356; 4 Dill. 380; 19 Ohio St. 306; 37 Wis. 379; 1 Kent’s Com. 430; Cooley’s Const. Lim. 125, 127, 176, 284; 2 Story on Const. 1224-1227.)
    If the act of the legislature is to be upheld, must it be sustained in its entirety? I claim it must be considered as valid, but divested of the saving clause which attempts to reserve to the state the sovereign right of taxation. It is asserted by some that the act is a nullity in all its parts, because it is an effort by the legislature to cede away the sovereignty of the state over part of its territory, and that this is not within the power of any legislature. It is a sufficient answer to this objection to say that the constitution of the United States, which is the supreme law of the land, confers on the legislature of every state in the Union the power to do this very thing.
    Ch. 66, Laws of 1875, must be sustained so far as to cede-supreme and exclusive jurisdiction to the United States; but. the saving clause referred to must be rejected. This proposition I place upon the familiar principle that upholds a private grant containing a condition that is illegal, or repugnant-to the terms of the grant, and that likewise sustains the body of a law which contains a saving clause inconsistent with the main provisions of the act. (4 Kent’s Com. 131; 1 id. 462;. 4 Sim. 141: 10 Eng. L. & Eq. 139; 17 Ark. 483; 30 Miss. 694; 24 Mo. 170; 2 Sneed, 512; 36 Pa. St. 407; 25 Conn. 242; 4 Gray, 348; 8 Paige, 398; 6 N.Y. 467; Plowden, 565; Dwarris, 513; 8 Taunt. 13; 10 Mod. 155; 2 And. 192; 4 Zab. 80; 23 Me. 360; 1 Coke, 47a.)
    If the tax was illegal, its payment was involuntary, and it ought to be recovered. (16 Kas. 587.)
    
      M. A. Low, and J. D. Shafer, also for plaintiff in error:
    It seems very clear that the state jurisdiction is extinguished by the consent to the purchase, or to the ownership of the premises by the United States for the purposes enumerated in the constitution, and that congress has no power to add to or take from that consent, or to give it any force or vitality not given by the constitution itself In other words, the power granted to congress to exercise exclusive legislation in such cases, like its other enumerated powers, was surrendered to it by the states by the adoption of the constitution, and cannot be delegated to congress by itself by a legislative act. If it has exclusive power to legislate, it does not matter whether it chooses to execute that power or not to execute it. The power being exclusive, “in all cases whatsoever,” the state cannot assert either concurrent or partial legislative jurisdiction upon any pretext whatsoever. (92 U. S. 259; 95 id. 471.)
    The reservation in the act of 1875 is void, because inconsistent with the grant. It has sometimes been said that when a proviso in an act is repugnant to the purview of the act, the proviso must stand and be held to be a repeal of the purview; while the uniform holding is that a saving clause, performing the same office as a proviso, and only differing in form, must, when repugnant to the grant, be rejected. But the better rule is, that in either case the purview should be retained, and the repugnant proviso, or saving clause, rejected. (3 Wall. Jr. 252; 23 Me. 369; 1 Kent’s Com. 463; Potter’s Dwarris, 118. See also 10 Pet. 471; Comyn’s Digest, title, Conditions, A 2;' Bouvier’s Law Diet., Proviso.)
    
    The payment was involuntary, and ought to be recovered. (16 Kas. 587. See also 8 Kas. 431, 436; 37 Mo. 281; 12 Wall. 209; 26 Mich. 118.)
    
      W. A. Johnston, attorney general, for defendant in error.
    The first proviso in the act of 1875, viz., the right to serve state process within the limits of the ceded territory, has been repeatedly held to be not inconsistent with the sole and exclusive jurisdiction of the United States over such territory. (8 Mass. 72; 17 Pick. 298j 1 Mete. 583 — and, in fact, nearly all the authorities bearing on this question.) So far, then, as the main enactment with this saving clause is concerned, the cession in the act may be said to be absolute. A. reference, however, to the foregoing decisions will show that the second saving clause involves the retention of such an element of sovereignty as is inconsistent with exclusive legislation of congress over the territóiy sought to be ceded. In all these cases the property of those residing permanently within such ceded territory is exempt from state or local taxation. The uniformity of this' rule, as established by all courts that have passed on this question, would leave no room to doubt that a cession by a state, to be effectual, must be one whereby it disclothes itself of all power and right to levy and collect taxes within the ceded territory.
    It was an open and notorious fact, that at the time the legislature of Kansas was memorialized to enact the law of 1875, there was upon the reservation a large amount of railroad property; and further, that there abutted upon this reservation a costly iron bridge, spanning the Missouri river. This property was unquestionably within the jurisdiction of the state of Kansas to tax. The right of the railroad company to construct its road over this reservation involved the right to place thereon a large amount of other property, such as machine shops, round-houses, etc. There was, therefore, practically no limit to the increase of the value of property which might be placed upon this reservation and obtain sanctuary from the tax gatherer, provided the cession of the legislature was absolute. The legislature of Kansas, therefore, was not asked to yield up the intangible and comparatively unimportant gift of mere territorial jurisdiction; but it was asked to make a free-will gift to the United States of considerable revenue which would be very largely increased in the future.
    The property of the United States placed upon that reservation was no more subject to taxation before the cession, even though absolute when made, than afterward. The cession involved the sacrifice of no material rights so far as the United States itself was concerned, but in respect to such private corporations as had by congressional license the right to go upon and hold property upon the reservation as quasi joint tenants of the United States, the state was asked to make an important sacrifice, when the request of absolute cession would necessarily, if fully complied with, destroy her right to levy and collect taxes upon the property of these corporations. Upon this question, see 2 Mason, 66, and 1 Mete. (Mass.) 583.
    
      Wm. Dill, also for defendant in' error:
    The intent of the legislature, as clearly expressed in this bill, is to reserve to the state the right to tax.property on this reservation. If such a grant as this cannot be accepted by the United States government under the 8th section of article one of the federal constitution, then this act is a nullity. Before the passage of this act the state government (it is not questioned) had a general jurisdiction over this military reservation. But the only valuable right it had was the right to tax property thereon. Its only right, therefore, that was-worth conferring upon the general government, is the very one which in the bill it retains to itself. It seems very clear,, therefore, that although the expression “exclusive jurisdiction” is used in the grant, it was really not the intention to-grant exclusive jurisdiction. We see no reason why this bill-should be so construed as to defeat the purpose of the legislature, so clearly manifested in it.
    As to the question of voluntary payment, we say that the decision of the district court was right, if the theory of the-plaintiff, that its property was absolutely untaxable, be correct, for there was no compulsion on the plaintiff to pay. For, while it is true there was a tax warrant in the hands of the sheriff, still this paper was without authority of law and void, in the plaintiff’s theory of the case, and was only levied upon real estate, if the plaintiff’s property was not in the taxing jurisdiction of the state.
   The opinion of the court was delivered by

Valentine, J.:

The main, if not the sole question involved in this controversy is, whether the state of Kansas, as an act of sovereignty, or in the exercise of a mere license or privilege, conferred upon it by the general government of the United States, may tax railroad property belonging to a private corporation, situated exclusively within the boundaries of the Fort Leavenworth military reservation, in Kansas.

The territory now known as the Fort Leavenworth military reservation is a portion of that vast territory which in 1803 was ceded by France to the government of the United States, and the territory now constituting such military reservation has belonged to the government of the United-States ever since the said cesssion from France; and from that time up to January 29, 1861, the general government of the United States has had the sole and exclusive dominion and control over it, not only as the proprietor and owner of the soil, but also as the sovereign and supreme ruler of the country. But on January 29, 1861, the government of the United States parted with its exclusive jurisdiction over it, and conferred jurisdiction, sovereignty and dominion over the same upon the state of Kansas. In other words, on January 29, 1861, the general government admitted the state of Kansas into the Union as a sovereign and independent state; and by such admission the sovereignty over this military reservation was transferred from the general government to the state of Kansas. This is admitted by all panties. Of course, the general government, in admitting Kansas into the Union, might have excepted this military reservation from the boundaries of the state, if it had so chosen; but it did not so choose. It might have reserved to itself the absolute sovereignty and dominion over this military reservation, if it had so chosen; but it did no so choose. It admitted Kansas into the Union upon the same footing as the original states, and by such admission placed this military reservation within the unquestioned sovereignty and dominion of the state of Kansas. Of course, the general government still retained and now retains the ownership of the soil; it still has the right to use the territory as a military post, or to dispose of it in any other manner which it may see fit; and its right to so use the- territory or to dispose of it does not conflict with any provision of either the federal constitution or the state constitution, or with the unquestioned and rightful sovereignty and jurisdiction of the state of Kansas. The federal government has continued to use such territory as a military post up to the present time.

From January 29, 1861, up to February 22,1875, it is admitted that the sovereignty and jurisdiction of the state of Kansas over the military reservation was complete, and precisely the same as it was over every other portion of the territory of Kansas; and the state had the right to tax any property found on such territory which it could legally have taxed if the property had been found anywhere else within the boundaries of the state. But on February 22, 1875, the legislature of the state of Kansas passed the following act, to wit:

“Sec. 1. 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 Port 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 of 1875, p. 95; Comp. Laws of 1879, p. 515.)

It does not appear that this act of the legislature was passed at the solicitation, or even at the suggestion, of any officer or officers of the United States; but even if it had been, still such solicitation or suggestion would have been absolutely and utterly nugatory for all legal purposes, unless it came from some officer or officers exercising the sovereign power and authority of the general government. Neither does it appear that this act of the legislature has ever been accepted by the government of the United States. It is true that the plaintiff’s petition alleges that the government has accepted all the rights and privileges attempted to be conferred by such act. But “neither presumptions of law nor matters of which judicial notice is taken, need be stated in the pleading.” (Civil Code, §130.) And if the same should be-stated, whether correctly or incorrectly, the statement amounts to nothing. The transference of sovereign jurisdiction from one government to another, whether done by the supreme legislative power or the supreme executive power of the two governments, or by both of such powers combined, is a matter of such transcendent importance, and of such great public concern, that the courts of each government should take judicial notice thereof. And hence an allegation in a pleading of the facts of such transference amounts to nothing. It is also true, that the general government occupies this military reservation as a military post; but this it has done for fifty years, and without the slightest reference to the said act of the legislature of Kansas. An acceptance of an act of the legislature of a state, (such an act as the one in controversy,) probably requires an act of congress, or at least an executive proclamation. But if, however, we should say that presumptions are sufficient, and say that presumably the general government has accepted this act of the legislature of Kansas, because beneficial to it, or for any other reason, then we should also say that, in all fairness and justice to the people of the state of Kansas, the general government has accepted the act in its very letter and spirit, with all its exceptions and limitations, with all its saving clauses and reservations. But it is said that the general government cannot accept the act in any such manner; and §8, article 1, of the constitution of the United States, is interposed as a conclusive argument that no such acceptance can take place. Such § 8, article 1, of the constitution, so far as it is necessary to quote it, reads as follows:

“Sec. 8. The 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.”

Now this section of the constitution does not seem to be applicable to the present case. It provides that “the 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,” etc. Now, (1) “The congress” has never chosen “to exercise exclusive legislation” over the, military reservation in question. On the contrary, it has chosen not to do so; for it admitted Kansas into the Union with such reservation, and thereby gave to the state of Kansas the unquestioned power to exercise legislation and jurisdiction over such military reservation; and congress has never changed its will or intention, in this respect. (2) The territory occupied as a military post has never been “purchased by the consent of the legislature of the state in which the same” is. situated. (3) Nor has the legislature of Kansas ever consented that “the congress” of the United States, or any other body of men, or officer or officers of the United States, shall “exercise exclusive legislation” or exclusive jurisdiction, over said military reservation. The supposed exclusive jurisdiction that the legislature of Kansas ceded to the general government, was a jurisdiction with exceptions and limitations, and with reservations to the state of Kansas; and hence it was not a general or exclusive jurisdiction that was so ceded. It will therefore be seen that, unless this provision of the constitution of the United States is stretched much beyond its literal terms, it cannot be made to cover the present case, or to oust the state of Kansas from exercising the jurisdiction which it reserved to itself, or to prevent it from exercising the power of taxation upon railroad property belonging to private corporations, situated on the said military reservation.

It is not claimed that the constitution of Kansas authorizes any cession or transfer of jurisdiction over any of the territory of Kansas. No power to abandon sovereignty or to abdicate government can be found in the constitution of Kansas. If any such power exists, it must be found in said § 8, art. 1, of the federal constitution, but that section does not meet the present case. The legislature has not consented to any purchase in the present case, nor has it consented to abandon-jurisdiction to tax railroad property on the Fort Leavenworth military reservation. Nor has congress consented to exercise exclusive legislation ovér such military reservation. But, in ordér to make said section apply to the present case, it is proposed to change its terms in the following material respects, to wit: Instead of allowing the section to read as it now does, that “the congress shall have power to exercise exclusive legislation over all places purchased by the consent of the legislature of the state,” etc., it is proposed to change it so that it shall read as follows: “The general government shall have power to exercise, and in all ■cases shall (whether it consents or not) exercise exclusive jurisdiction over all places where the exercise of any portion oj ¿uch jurisdiction has been consented to by the legislature oi the state,” etc.

Now if the constitution of the United States is embodied in such elastic terms that it may be so stretched and changed as to cover cases wholly beyond and outside of its express terms, may it not also be so stretched and changed as to do •exact justice and carry out the will and intention of the contracting parties under it? The stretch in the latter case is certainly not greater than that in the former.

We suppose that the general government in cases like this •can take just what the state proposes to give it, and nothing more. It is not necessary that the general government should have exclusive jurisdiction over military reservations, for from 1861 to 1875 the general government did not have any such exclusive jurisdiction over the military reservation in question; but the sovereign jurisdiction over such reservation during all that time was wholly within the state of Kansas; and yet no serious inconvenience was experienced because of such want of jurisdiction in the federal government. But it is said that the general government cannot accept partial jurisdiction ; that it must have all, or none. Now if this be true, then we should think that it has not received any jurisdiction, but that the entire jurisdiction over.the reservation still remains in the state of Kansas. But why should it be so, as claimed? If congress has the power (mark the words, “the congress shall have power,”) to accept the entire jurisdiction over the ceded territory, why may it not accept a portion of such jurisdiction? And if the legislature has the power to cede away the whole of the jurisdiction of the state, over any portion of the territory of the state, why may it not cede away a portion of such jurisdiction? The whole always includes all its parts. It would seem that any legislative body that has the power to do or accept the whole of a thing, should have the power to do or accept a portion of such thing. Where all power can be conferred upon a legislative body, what insuperable objection can there be to conferring a portion of such power upon such body? But, as before stated, if the general government cannot, and has not, taken a portion only of the jurisdiction over the Fort Leavenworth military reservation, then we do not think that it has taken anything, and the attempted cession by the legislature of Kansas is a nullity.

It would seem, under § 8, article 1, of the federal constitution, that congress should take some action before jurisdiction can pass from the state to the federal government; for the legislature of the state certainly cannot, of its own volition, cut off territory from the state, and force it into the jurisdiction of the federal government, against the consent of congress, or else place such territory beyond the operation of all law, and outside of all jurisdiction. The legislature may act — it may propose a cession of territory; but the territory intended to be ceded will remain within the jurisdiction of' the state until congress acts, and until congress consents that the territory shall pass into the jurisdiction of the federal government. It takes two parties to make a contract; and it takes the action of both the state government and the federal government, before jurisdiction can be transferred from the state government to the federal government; and,, so far as is shown in the present case, only one party has acted — the state of Kansas. So far as is shown in the pres- . entcase, “the congress” has not yet shown a willingness “to exercise exclusive legislation ” over the ceded territory; but as we have before said, the last act of congress upon the subject shows an unwillingness on the part of congress to exercise such exclusive legislation or jurisdiction over .such territory. The act of the legislature in the present case is not like a contract, executed or otherwise, where one of the parties has expended a large amount of labor or money, which he must lose unless the con tract is enforced, for in the present case nothing has been done because of such act of the legislature; the general government has not parted with anything, nor has it changed its condition because of such act. Besides, the thing proposed to be ceded by such act of the legislature is unimportant to the state of Kansas, in- comparison with the thing intended to be retained. The state of Kansas had no power, prior to the passage of the act, nor has it had since, to tax the military reservation, or anything belonging to the United States thereon; but it had the power to tax the vast amount of railroad and bridge property which was then, and is now, situated upon said military reservation. Hence the thing attempted to be ceded by the legislature of Kansas had but little importance to the state of Kansas, in comparison with the thing intended to be retained by the legislature; and for this reason, if no other, it should not be held that all jurisdiction passed from the state of Kansas, without its consent. If, under said section of the federal constitution, it must be held either that all jurisdiction passed from the state of Kansas, or that nothing passed, then it certainly should be held that nothing passed.

"We think that the state of Kansas has power and authority to tax railroad property belonging to a private corporation situated exclusively within the boundaries of the Fort Leavenworth military reservation, and this, is all we now wish to decide. We do not desire to decide specifically just what the civil and political status of the Fort Leavenworth military reservation is; or what it may be in the future, if the congress of the United States shall take action upon the aforementioned act of the legislature of Kansas. But in any event we should think that the state of Kansas should have power to tax the property aforementioned. To say that it should not have such power is to deprive the state of Kansas of such power and jurisdiction not only without its consent, but against its consent; and we can scarcely think that the constitution of the United States, will authorize or even tolerate any such thing.

The authorities will be found cited in counsel’s briefs. We would, however, cite: In re O’Connor, 37 Wis. 379; United States v. Cornell, 2 Mason, 60, 66.

The judgment of the court below will be affirmed.

All the Justices concurring.  