ginia, which extended, by virtue of these trea- | to locate his warrant on the island, but surely ties, to the middle of the bed of the Mississippi river. It follows, therefore, that if Wolf Is land, in 1763, or in 1820, or at any intermediate period between these dates, was east of this line, the jurisdiction of Kentucky rightfully attached to it. If the river has subsequently turned its course, and now runs east of the island, the status of the parties to this controversy is not altered by it, for the channel which the river abandoned remains, as before, the boundary between the states, and the island does not, in consequence of this action of the water, change its owner. Heffter, p. 143, § 66; Caratheodéry Du Droit Inter. p. 62. That Virginia claimed the ownership of the island as early as 1782 is very certain, for at that date the arable land on it was entered in the proper office of Virginia as vacant land lying within the territorial limits of the state, 402*] although it seems the entry was never surveyed or carried into a grant. And that Kentucky is now, and has been for many years prior to the commencement of this suit, in the actual and exclusive possession of the island, exercising the rights of sovereignty over it, is beyond dispute. The island lies opposite to and forms part of Hickman county, one of the counties of the state, and the lands embraced in it were, in May, 1837, surveyed under state authority, and have since then been sold and conveyed to the purchasers by the same authority. The people residing on it have paid taxes and exercised the elective franchise according to the laws of the state. In 1851, a resident of the island was elected to represent the county in the general assembly, and served in that capacity. And as early as 1828, a minor living there with one Samuel Scott, was bound an apprentice to him by the proper court having jurisdiction of such subjects. This possession, fully established by acts like these, has never been disturbed. If Missouri has claimed the island to be within her boundaries, she has made no attempt to subject the people living there to her laws, or to require of them the performance of any duty belonging to the citizens of a state. Nor has there been any effort on her part to occupy the island, or to exercise jurisdiction over it. If there were proof that the island, by legislation, had been included in the limits of New Madrid county, then the service of a writ in 1820, on the solitary settler there, by the sheriff of the county, would be an exercise of sovereign power on the part of the state. But in the absence of this proof, there is nothing to connect the state with the transaction, or from which an inference can be drawn that the sheriff was authorized to go on the island with his process. And for the same reason, it is hard to see how the fact, conceding it to be true, that a person occupying the position of a circuit judge of Missouri, once lived on the island (when or how long we are not informed), tends to show that the state intended to take possession of it. These things may prove that, in the opinion of the judge and sheriff, the island belonged to 403*] Missouri, but they do not go further and put the state in any better position than she was, if they had not occurred. And so with the location of the New Madrid claim in 1821. He, doubtless, believed he had authority the state cannot claim that she acquired any right by this proceeding. There is, therefore, nothing in this record which shows that Kentucky has not maintained, for a long course of years, exclusive possession and jurisdiction over this territory and the people who inhabit it. It remains to be seen whether she shall remain in possession and continue to exercise this jurisdiction, or whether she shall give way to Missouri. The case is certainly not without its difficulties, but we think these difficulties can be removed by a fair examination of the testimony, and the right of the contestants. properly determined. The evidence to be considered consists of the testimony of living witnesses, the physical changes and indications at and above the island, and the maps and books produced by the complainant. In a controversy of this nature, where state pride is more or less involved, it is hardly to be expected that the witnesses would all agree in their testimony. And as this conflict does exist, it is necessary to consider the evidence somewhat in detail, in order to justify the conclusions we have reached concerning it. There are eight witnesses called for the complainant, who testify confidently, that the main channel of the Mississippi river was always east of Wolf island, and one of them (Swon), an experienced river man, who navigated the river from 1821 to 1851, in all stages of water, says there are no indications that the main channel was ever on the west side. Only three of them knew the river prior to 1820, and they were engaged in the business of flat boating, which is hardly ever undertaken in a low stage of water. There is nothing to show that any one of them ever made a personal examination of the channels and surrounding objects at this point, and there is a remarkable absence of facts to sustain their opinions. It is also noticeable, in connection with this evidence, that none of the witnesses (Hunter may be an exception) *ever lived in the vicinity of [*404 the island, or remained there any length of time, and that all the knowledge any of them acquired of the state of the river was obtained by passing up or down it at different times, either on flat-boats or steamboats. Notwithstanding they swear positively that the channel was always east of the island, yet Watson says it changed for about three years, and Ranney testifies that on one occasion, when the main channel was divided into three parts, the deepest water for a short time in the fall of the year was found on the west of the island, and steamboats passed on that side. But they do not prove a deficiency of water at any time in the Missouri channel, or that any boat, from that or any other cause, was ever hindered in any attempt to run it. It is undoubtedly true that the Kentucky channel, when the river was full, for many years has afforded a safe passage for boats, because at such a time, if the obstructions were not submerged they could be avoided, and navigators would take it, as it was five miles the shortest. And passing the river only occasionally, and without any knowledge of where the volume of water flowed when the river was low, they would naturally conclude it was the main channel. It is equally true that now it is the main highway for the busi ness of the river; but the point to be deter mined is: was it so as far back as 1763, or even 1820? If in the investigation of such an inquiry, positive certainty is not attainable, yet the evidence furnished by the defendant affords a reasonable solution of it. And, at any rate, it greatly outweighs the evidence on the other side, and in such a case the party in possession has the better right. The proof on behalf of the defendant consists of the testimony of twenty-seven witnesses. Many of them have been acquainted with the river from an early period in this century, and quite a number have spent their lives near their disputed territory and, therefore, had better opportunities for observing the condition of the river at this point than the witnesses for the complainant, who only passed there occasionally. Nearly all of them are old men, and there is no diversity of opinion between them concerning the location 405*] *of the main channel of the Mississippi river at Wolf island. All who testify on the subject-there are only a few who do notagree that until a comparatively recent period it ran west of the island, and to fortify their opinions they describe the state of the respective channel at different times, and tell what was done by themselves or others about the navigation of the river. They concur in saying that in early times it was difficult for flatboats, even in the highest stage of water, to get into the Kentucky chute, owing to the current running towards the Missouri side, and that if they succeded in doing it, the navigation was obstructed on account of the narrow and crooked condition of the stream, which was filled with tow-heads, sandbars, driftwood, and rack heaps. One of the witnesses, in describing the appearance of this chute in 1804, states that it looked like lowlands, with cottonwood and cypress on it, and that there was only a narrow channel close to the island; all the other space to the Kentucky shore, now open water, was then covered with large cottonwood timber. And there is no one who speaks of a scarcity of water in the Missouri channel, until after Captain Shreve operated in this locality with his snag boats, which had the effect of opening and deepening the Kentucky channel, so that it has now become the navigable stream. Judge Underwood says that in 1820 the west channel was between four and five hundred yards wider than the east one, and must have discharged nearly double the quantity of water. And one witness testifies that the east channel was formerly so narrow that two steamers could not pass in it abreast. It would seem, therefore, that the condition of this channel, as told by these witnesses, was proof enough that the main channel was west of the island; but this is not all the proof on the subject. Russell, who was appointed superintendent of river improvements in 1842, and knew the island since 1814, and spent five months there in 1819, swears that in descending the river in 1830 or 1831 he sounded the Kentucky channel and, not finding water enough in it by two or three feet to float his boat, was compelled to go down on the Missouri side, where there was nine or ten feet of water. To the same effect is the evidence of Holton, who, in 1828, being unable to get up the east channel with a steamer drawing upwards of six feet of water, went over to the Missouri side and passed through without any trouble. And, three years later, Peebles saw three or four steamers attempt to run up the Kentucky channel, and failing to get through, back out and easily ascend the other. Christopher, who ran the river from 1824 to 1861, on one occasion could not pass the bar at the foot of the Kentucky chute with a boat drawing twelve feet of water, and was compelled to change to the other side, and got up without any difficulty; and there are other Other witnesses corroborate this testimony, witnesses who testify to the inability of boats and unite in saying that in early times, at an to pass east of the island, and to their [*407 ordinary stage of water, it was impossible to safe passage west of it. Indeed, the concurrent take the Kentucky channel at all, on account testimony of all the persons engaged in the of these obstructions, while the Missouri chan- navigation of the river is, that they could never nel was wide, deep and unobstructed. And safely go east of the island, unless in high one of them expresses the opinion that in low water, and that they uniformly took the west water anyone could have got to the island from channel in dry seasons; and the flat-boat men, the Kentucky shore without wetting his feet, in early times, even in high water, were freby crossing the small streams on the driftwood.quently compelled to uncouple their boats in But we are not left to conjecture on this point, for Ramsey, an old inhabitant of the country. swears that on one occasion he walked over from the Kentucky side to the island, nearly all the way on dry land, and the residue on driftwood, and noticed while on the island, that there was plenty of water in the Missouri channel. Can it be possible tnat such a stream at this time was the main channel of the Mississippi river? Although the Kentucky channel, from natural causes, had improved in 1825, still in the fow water of that year it did not have a depth of over two and a half feet nor a width 406*] exceeding one hundred and fifty yards. while steamboats passed through the Missouri channel without any difficulty. The witness who testifies to this state of things, at that time, had his attention especially called to the # In order to descend the Kentucky channel, and But there is additional proof growing out of certain physical facts connected with this locality which we will proceed to consider. Is lands are formed in the Mississippi river by ac cretions produced by the deposit at a particular place of the soil and sand constantly floating in it, and by the river cutting a new channel through the mainland on one or the other of its shores. The inquiry naturally suggests itself: of which class is Wolf island? If the latter, then the further inquiry whether it was detached from Missouri or Kentucky. The evidence applicable to this subject tends strong ly to show that the island is not the result of accretions, but was once a part of the mainland of Kentucky. Islands formed by accretions are, in river phraseology, called made land, while those produced by the other process necessarily are of primitive formation. It is easy to distinguish them on account of the difference in their soil and timber. 408*] *It has been found by observation and experience that primitive soil produces trees chiefly of the hard wood varieties, while the timber growing on land of secondary formation the effect of accretions is principally cottonwood. Wolf island is of large area, containing about fifteen thousand acres of land, and, with the exception of some narrow accretions on its shores, is primitive land, and has the primitive forest growing on it. On the high land of the island there are the largest poplar, chinquapin, oak and blackjack trees growing, and primitive soil only has the constituent elements to produce such timber. But this is not all, for trees of like kind and size are found on the Kentucky side, on what is called the second bottom, near the foot of the Iron Banks, which is about two feet higher than the bottom on which Columbus is located. There are no such trees on the Missouri shore. Those found there are of a different kind and much smaller growth. Besides this, the highland on the island is on the same level with the second bottom on the Kentucky side, while it is four or five feet higher than the land on the Missouri side opposite the island and above it. In this state of the case, it would seem clear that this second bottom and island were once parts of the same table of land and, at some remote period, were separated by the formation of the east channel. In the nature of things, it is impossible to tell when this occurred, nor is it necessary to decide that question. for, by the memory of living witnesses, we are enabled to determine that the east channel, or cut off, as it should be called, was not the main channel down to 1820. Toney's point, have operated to straighten the banks above the island on the Kentucky side, to bring the water closer to them and, as a consequence, to cast it into the east channel. And that before these projecting points were removed and the accretions made at Town creek, the water was thrown towards the Missouri side. This was necessarily so, as can readily be seen by an inspection of the map. In the original condition of the river, the current must have been carried from the Missouri point to the Iron Banks opposite, and rebounded from them across to the Missouri side, so as to carry the channel west of Wolf island. And it is equally clear that the changes which have occurred within this century have straightened the river and turned the channel to the east of the island. Can there be any need of further evidence to sustain the long-continued possession of Kentucky to the island, and are not the witnesses who swear that in their time the main channel of the Mississippi river ran west of Wolf island abundantly fortified? But it is said the maps of the early explorers of the river and the reports of travelers prove the channel always to have been east of the island. The answer to this is, that evidence of this character is mere hearsay as to facts within the memory of witnesses, and if this consideration does not exclude all the books and maps since 1800, it certainly renders them of little value in the determination of the question in dispute. If such evidence differs from that of living witnesses based on facts, the latter is to be preferred. Can there be a doubt that it would be wrong in principle to dispossess a party of property on the mere statements-not sworn to-of travelers and explorers, when living witnesses, testifying under oath and subject to cross-examination, and the physical facts of the case, contradict them? But it is claimed the books and maps which antedate human testimony establish the right of Missouri to this island. If this be so, there is recent authority for saying they are * unreliable. In 1861, Captain Hum- [*411 phreys and Lieutenant Abbott, of the corps of topographical engineers, submitted to the proper bureau of the War Department a report based on actual surveys and investigations, upon the physics and hydraulics of the Mississippi river, which they were directed to make by Congress. In speaking on the subject of the changes in the river (p. 104), they say: "These changes have been constantly going on since the settlement of the country, but the old If the testimony already noticed be not maps and records are so defective that it is imenough to prove this, there is the additional possible to determine much about those which evidence furnished by the changes which the occurred prior to 1800. In the face of this reriver has accomplished in the neighborhood of port, authorized by the government and prethe island, within the recollection of many in-pared with great learning and industry, how telligent persons. These changes are impor tant, and are shown on the map [ante, 117], of H. G. Black, which is proved to be a correct representation both of the present and original position of the island, the river, and its banks. The effect of the evidence on this subject is, 410*] that the filling up at the mouth of Town creek, the washing away of the point above on the Missouri side, the abrasion of the Iron Banks, and the partial destruction of can we allow the books and maps published prior to this century to have any weight in the decision of this controversy? Without pursuing the investigation further, on full consideration of all the evidence in the case, we are satisfied that the state of Missouri has no just claim to the possession of Wolf island. It is, therefore, ordered that the bill be dismissed. 113*] *JAMES BUFFINGTON, late Collector of Internal Revenue, Plff. in Err., v. JOSEPH M. DAY. (See S. C. 11 Wall. 113-129.) Congress cannot tax judge's salary. Congress cannot, under the Constitution of the United States, impose a tax upon the salary of a judicial officer of a state. IN [No. 329.] Argued Feb. 3, 1871. Decided Apr. 3, 1871. ERROR to the Circuit Court of the United States for the District of Massachusetts. The history and facts of the case are fully stated by the court. Messrs. A. T. Akerman, Atty. Gen., and John C. Ropes, Asst. Atty. of the U. S. for the Dist. of Mass., for plaintiff in error: In the exercise of its granted powers, the Federal government is supreme. Under the general power of taxation, every man and everything throughout the country (exports excepted), are subject to taxation in the discretion of Congress; provided that the power be exercised for the purposes declared in the Constitution, and not for unauthorized purposes; and that the conditions of its exercise, prescribed in the Constitution, uniformity, etc., be complied with. What was granted to the Federal government was the power of taxation for certain purposes the common debts, the common defense, the general welfare-for none of which were the particular states bound any longer to provide. The idea was, not to exempt certain classes of persons or objects from their share of the public burdens; to exempt a judge of probate, for instance, from his share of the tax necessary to meet the interest on the public debt, or support the Army and Navy; but merely to lay these public duties on the general government instead of the states. With the duties went also the power to discharge them. By the Constitution, the general government took the exclusive right to tax imports, and shared with the state the exclusive rights of taxation retained by them. Nobody was to be exempted; nobody was to be taxed any more than he had been before. It was simply a change of the sovereign charged with the public duty, and who was, therefore, clothed with the power to discharge that duty. It involved, simply, that the citizen, whether holding an office under the state or not, should pay to the United States those taxes necessary for the abovenamed purposes, which would otherwise have been paid to his state. The soundness of the above views is recognized whenever the United States repays to a particular state the money expended by that state for the public welfare, and which was originally raised by state taxation from the incomes of state officers among others. Nobody imagines that the state officers can claim exemption of their share of this tax from the state. Why should they not, therefore, pay it in the first instance to the United States? Again if the state officers are exempt from Federal taxation to the extent of their salaries, the effect of levying an income tax would be to raise their salaries as compared with the other citizens of the state. Besides it is to be remarked, that in thus subjecting the incomes of state officers to Federal taxation there is no violation of the funda-mental principle, that taxation and representation are to go together, as is the case wherea state taxes the operations of the government. of the United States. See remarks of Marshall, Ch. J. in McCulloch v. Maryland, 4 Wheat. 316, 435. These views derive additional confirmation by a consideration of their application to other similar cases. Take the banks, railroads, and other institutions of the states. Another section of the statute now under consideration, taxing the issues of state banks so excessively as to drivetheir notes out of circulation, has recently been held constitutional. It is true that the court. was divided on that case. Veazie Bk. v. Fenno, 8 Wall. 533, 19 L. ed. 482.. But the court was unanimous in the opinion that Congress can tax the property of the banks and of all other corporate bodies of a state, the same as that of individuals. Again; it is not pretended that the income of an individual derived exclusively from statestock, would be exempted from this incometax. Yet the courts have recognized a strong analogy between the taxation of the issues of a bank, of the office of an officer, and of stock as such. Is there not a similar analogy between income derived from the business of a. bank, from the dividends of the stock, and from the salary of the office! If one is tax-able, are not they all? Again; who are to be thus exempted from bearing all direct share in the maintenance of the national government? Is the exemption to be confined to judges of the state courts? Or are not governors, mayors of cities, all offi.. cers of the state and municipal, governments to be equally exempt? If not, why not? him? Again; suppose the defendant in error had been drafted into the Army under a general. prescription law, would his office have saved If it would, how far is this exemption to extend? Are justices of the peace exempt? And is it to be supAre aldermen exempt? posed for a moment that the number of per sons exempt in a particular state from military duty depends on the laws of that state? We are not speaking of a law drafting into the Army all probate judges; that would be a law which the court would probably consider as not aimed at legitimate purposes; but we are asking whether the fact of a man's holdinga commission as a state judge exempts him from serving in the United States Army in time of war. The principle may reasonably be deduced that the United States government, in the ex-ercise of its granted powers, can reach every man and every dollar in this country. The common defense and general welfare demand this. All the resources of each state were lia-ble to the full for these purposes to each state.. before acceding to the Constitution. Now they are all available, under the limits of the Con-stitution, for the general government. Is it any more an abridgment of the independence and sovereignty of a state to tax the agents of the people, than to tax the people themselves? All that we have contended for is the com mon liability of the state officers for their property. Taxation of the incomes of state officers, derived from their salaries, is exactly what the state does do; therefore, the right to do the same for certain objects was granted to the United States, under the general power of concurrent taxation. In the leading case of McCulloch v. Md. 4 Wheat. 316, the state undertook to tax the is sues of notes of a bank of the United States. The court held that this was a tax on the means used by the general government to execute one of its powers, and that the sover eignty of the state did not extend to those means. But the court said that the real estate of the bank, and the property of the citizens of the state in the bank, which are subject to the sovereignty of the state, were liable to state taxation. The same principles were reaffirmed in Osborn v. Bank, 9 Wheat. 738. In Weston v. Charleston, 2 Pet. 449, the city from whom the officer derives his appointment, or by another sovereign power to whom the first has delegated the right of taxation over all the objects of taxation in common with itself, for the benefit of both." This latter cause aptly describes the position taken by the plaintiff in error, in the case now under discussion. If we apply to the tax in question the test laid down by Chief Justice Marshall in McCulloch v. Md., if we measure the power of taxation by the extent of sovereignty, we find a distinct grant from the state to the United States, of sovereignty, and of the sovereign power of taxation over all the objects of taxation except exports, exclusive as regards imports, concurrent with the states as regards everything else. We find this defendant's income derived from his salary as judge of probate, regarded as a proper object of taxation by the state, and taxed as other property. The inference is unavoidable that it is equally taxable by the United States. the states requires that the same exemptions But if it be argued that the sovereignty of should be made from the taxation of the Unit tion of the states, in favor of the means used by the general government to execute its sovereign powers, we maintain: of Charleston undertook to tax six and seven per cent stock of the United States. The court said that this was a tax upon the contract sub-ed States, which have been made from the taxasisting between the United States and the individual; a tax on the power to borrow money on the credit of the United States, which was not within the sovereignty of the state. Two justices, Johnson and Thompson, dissented, on the ground that, in their judgment, the tax was not a tax on the contract, but only an income tax, and, as such, constitutional. In Bk. of Commerce v. N. Y. 2 Black, 620, 17 L. ed. 451, the court decided, on the authority of Weston v. Charleston, that a state cannot tax United States stock constituting a part of the property of a bank. The same principle was followed in the Bank Tax Case, 2 Wall. 200, 17 L. ed. 793. In the case of Dobbins v. Erie Co. 16 Pet. 435, the agreed statement of facts stated that the plaintiff had been rated and assessed with county taxes, as an officer of the United States, for his office, as such, valued at $500. And the statute of Pennsylvania authorized an assessment upon all officers and posts of profit. The court held that statute could not compre hend the offices of the United States. It is true that much of the reasoning in the opinion of Mr. Justice Wayne would be pertinent had the statute merely subjected the plaintiff's income to a tax in common with other incomes; but the point decided was as above stated; and fell precisely within the principles laid down in McCulloch v. Md. and followed in Weston v. Charleston, namely: that a state cannot tax the means used by the government of the Union to execute its powers. The court also held that no state could diminish, by taxation, the amount of the compensation paid by the United States to its officers; but that this principle could not serve also to exempt state officers from taxation by the United States, is more than intimated in the following sentence from the opinion of the court: "The officers execute their offices for the public good. This implies their right of reaping from thence the recompense the service they may render may deserve, without that recompense being in any way lessened, except by the sovereign power That it has never yet been held that a state cannot tax the income of an officer of the Fed eral government, as property. The tax in the case of Dobbins v. Erie Co. was a tax on the office; and though the court says that the salary of an officer of the United States cannot be diminished by the taxation of a state, yet it must be remembered that the question was not present in that form. That a state can tax the property, including the income derived from his salary, of an officer of the United States, in common with the property of all other citizens of the state, and not make it a tax on the oftice, has been thought legal by Thompson, J., in Weston v. Charleston, 2 Pet. 449, 483; and by the supreme judicial court of Massachusetts, in Melcher v. Boston, 9 Met. 73. But the conclusive answer to this argument is, that this court has already decided otherwise in Veazie v. Fenno, supra. This was a case almost parallel to McCulloch v. Md. 4 Wheat. 316, when the question was, whether a tax of ten per cent on the issues of a state bank was valid, and the court held that it was valid. It was there held that the United States could lawfully tax the operations of a state bank, even with the purpose of driving its issues of notes out of circulation. But to this point it is not necessary for us to go in the case before us. All the courts were agreed that the property of the banks and of all other incorporated institutions of the states could be taxed by the United States, the same as that of individuals. That is to say, that property, acquired under a grant from a state in the exercise of one of its sovereign powers, is subject to that uniform taxation which the Federal government can impose upon all the property in the country. That property, paid to an individual as an officer of a state by a state, in the exercise of its constitutional power to have such officers, is subject to the same taxation from the Federal government, is |