Jan. Term, given to it when used in merely private conveyances, none such was here intended. 1860. Ross V. SUPERVISORS COUNTY. The selection by the governor was but one step towards the execution of the compact, and availed nothing unless it was met by the approval of the President. Clearly it was worthless as an evidence of title, after the President had refused, which must be presumed after a silence of six years, from 1849 to 1855. There was, therefore, at that time, not the slightest foundation for any right or title to this particular tract of land, either in the state, the improvement company, or the respondent. The United States were at liberty to grant it to others, or retain the title at their pleasure. There were no considerations of public faith to prevent them from doing either. The President, by his refusal to approve, had absolved them from all such obligations, and, in effect, requested the governor to select elsewhere, as he might have done. How, then, this undefined interest or equity, which the majority of the court seem to suppose was at that time vested in the respondent, arose, is more than I can see. It certainly did not exist with the consent of the United States, who alone could create it. It was the interest of every mere trespasser upon the public domain-neither more nor lessand if that makes the lands of the United States taxable, the decision of the majority is correct; otherwise, in my judgment, it is not. It is stated as evidence of title in the respondent, that he believed the improvement company were the owners, and applied to them to purchase, paid the price, and received a duplicate for the land. To this position the opinion furnishes its own answer. We sit here to decide the law as we find it, and not as the parties or others may have supposed it to be. If the erroneous recitals of the legislature in a memorial to congress cannot conclude us, surely the mistaken belief of a private individual ought not to do so. spondent acquired no interest, until congress saw fit to give it to him, and his belief did not affect the question. The re It is also said that the act or confirmation of congress in Jan. Term, 1860. Ross V. OUTAGAMIE 1858, related back to the selections of 1849. This is not sustained by a fair construction of its language. As has been already observed, congress did not attempt to ratify the selections, but to validate the title of the purchasers of SUPERVISORS such lands as had then been sold, or contracted to be sold, COUNTY. by the state or its assigns, not exceeding the quantity to which the state was entitled under the grant. If there were any lands selected, but not sold or contracted to be sold, as to them no title passed. The selections were considered as not in conformity with law, and congress seem studiously to have avoided their confirmation. The President had refused to approve them, and it was as if they had never been made. They were mentioned, it is true, but only as descriptive of the lands conveyed, the title to which was transferred directly to the purchasers. There was nothing, therefore, to which the title of the purchasers could relate, and the act only purports to declare it to be valid at that time. It was, in all respects, a fresh grant, and in no way retrospective in its operation. But further than this, I am satisfied that the doctrine of relation cannot be applied to a case like the present. A tax, to be valid, must be so at the time it is laid and the land sold. The whole proceeding has relation to that time, and the right to tax must then exist. If the land be not then taxable, subsequent events cannot make it so, or cure the imperfection. The supreme court, speaking of the effect of a conveyance of land for taxes, in the case of Carroll vs. Safford, 3 How., 462, cited by the court, say: "It cannot, however, convey a better title to the land sold for taxes, than the owner of such land, to whom it stands charged, possessed at the time the taxes constituted a lien, or when the land was sold." There was no power of taxation, and the respondent had no title when this land was sold. The deed, therefore, can only operate as a cloud upon the title which he has since acquired. Again, it is said that because lands may be rightfully taxed after entry and before the emanation of the patent, the taxation in this case was proper. Enough has already been said to show that there is no analogy between the cases. Jan. Term, Where land has been entered, the courts hold, in the cases 1860. MCKAY V. OUTAGAMIE COUNTY. cited, that it is no longer the property of the United States, but of the purchaser. They say that he has purchased and SUPERVISORS paid for it, and holds a final certificate, which can no more be cancelled by the United States than a patent; and that in this respect there is no difference between a certificate holder and a patentee. The question therefore is not whether the government may not, technically speaking, have been possessed of the fee, but who was the substantial owner. I have endeavored to show that the United States had a perfect title to the tract in question, and if I have succeeded, those authorities are inapplicable. For these reasons, I am of opinion that the judgment of the circuit court should be affirmed. Judgment reversed. June 4. MCKAY VS. THE BOARD OF SUPERVISORS OF THE COUNTY This case is similar in principle to that of Ross vs. The Board of Supervisors, &c., ante, p. 26, and is decided in the same manner. APPEAL from the Circuit Court of Outagamie County. The complaint was the same as in the case of Ross vs. The Board of Supervisors of Outagamie County, ante, p. 26, and a demurrer to the complaint was overruled, from which decision the appeal was taken. By the Court, COLE, J. In the case of Ross vs. The Board of Supervisors of Outagamie County, just decided, we held that a person purchasing a part of one of the even sections in the Fox and Wisconsin Improvement grant, acquired a right or interest therein, which was subject to taxation under the laws of this state, even before the passage of the act of congress of June 8th, 1858. We suppose that decision, in effect, disposes of this case. The order overruling the demurrer to the complaint filed herein, must be reversed, and the case remanded for further proceedings. DIXON, C. J., dissented, for the reasons assigned in his dissenting opinion in the case of Ross vs. The Supervisors of Outagamie County, ante, p. 26. Jan. Term, 1860. STATE ex rel. V. HASTINGS. STATE ex rel. REEDSBURG BANK VS. HASTINGS. By sections 4 and 5 of Article XI of the constitution of this state, there is a substantial reservation to the people themselves of all legislative power upon the subject of banks and banking. The clause in the constitution which requires that "the rule of taxation shall be uniform," is a limitation upou the legislature in the exercise of its general power to levy taxes, and not a restriction upon the people in the exercise of the power thus reserved. That portion of the banking law of this state which regulates the taxation of the capital stock of banks, is therefore not in violation of that clause in the constitution. APPLICATION for a Mandamus. The case will appear sufficiently from the opinion of the court. Geo. B. Smith, for relator. SU. Pinney, for respondent. By the Court, DIXON, C. J. This is an application for a March 6. mandamus to compel the respondent, who is treasurer of the state, to deliver to the relator, a corporation organized under the provisions of the law authorizing the business of banking, certain interest coupons attached to the state bonds deposited by the relator with the respondent as security for the redemption of its circulating notes. The proceeding is amicable in its nature, and designed to test the validity of that portion of the law which regulates the taxation of the capital stock of banks, and which is supposed to have been rendered doubtful by the decisions of this court in the cases of Knowl STATE ex rel. road Co., 11 Wis., 35. REEDSBURG BANK V. Jan. Term, ton vs. The Supervisors of Rock Co., 9 Wis., 410, and The At1860. torney General vs. The Winnebago Lake & Fox River PlankThose cases determine that the rule of uniformity prescribed by the constitution, requires that all HASTINGS. property taxed for the purposes of revenue, whether general or local, shall be taxed equally, according to its just and true value; and that no one species of property, from which such taxes may be collected, shall be taxed higher than any other species of equal value. The application sets forth, that the bank is the owner of thirty-four bonds issued by the state of Tennessee, and two issued by the state of Missouri, each for the sum of $1,000, drawing interest at the rate of six per cent. per annum, payable semi-annually, on the first days of January and July in each year, which it transferred to the respondent in trust, to secure the redemption of its circulating notes; that the semiannual instalments of interest are secured by coupons attached to each bond; that on the first day of January, 1860, there became due upon each bond the sum of thirty dollars in interest, amounting in all to ten hundred and eighty dollars, which can only be collected on presentation of the proper coupons; that on the 15th day of Febrnary following, the bank comptroller made and delivered to the bank his order in writing, directed to the respondent, requiring him to deliver the coupons to the bank; and that on the same day the order was presented to the respondent, who peremptorily refused to deliver the same, or either of them. The respondent, in his return, admits these allegations, but seeks to avoid them by averring that the capital stock of the bank is $50,000, upon which there became due and payable to him, as state treasurer, on the first day of January, a semi-annual tax of three-fourths of one per centum amounting to $375, which still remains unpaid; and that he' has a lien upon the coupons for the amount of the tax, together with the additional sum of $500, which has been forfeited by reason of its non-payment. To this the bank demurs, upon the ground that the statute (sec. 20, chap. 71, R.S.) is unconstitutional and void, within the principles established by the decisions above re |