States; that said lands and others were withheld from the state and the plaintiff by the secretary of the interior, and thereby the issue of patents therefor by the United States was delayed; that the plaintiff did not in any manner cause the delay, but, on the contrary, was diligent and persistent in its efforts to procure the patents; that the delay in their issue was caused entirely by the government of the United States and the general land-office, against the protest of both the plaintiff and the state, and in spite of continued and unintermitted efforts made by both to obtain their issue by the interior department. * (6) That the lands described had at the time the taxes were levied and assessed thereon, in 1883, been selected as lands to which said land grant applied, but said selections had not been approved by the secretary of the interior, and had not been certified to the state, or in any manner identified as lands for which the plaintiff would eventually receive patents, but, on the contrary, the secretary of the interior refused to recognize the right of the state to the lands, or to approve the selections made.

As conclusions of law, the court found, in effect: (1) That it was not the intent and meaning of the act of congress that said lands should be subject to taxation until they had been earned by the plaintiff and patented by the United States; that while they had been in truth earned by the plaintiff before they were assessed for taxation, yet the plaintiff's right to the same, and to patents therefor, had been denied by the secretary of the interior; that the plaintiff could not exercise control over them until it should be determined whether it was entitled to receive patents for them as part of the lands granted. (2) That the lands were "a float" as long as the plaintiff's right thereto was not admitted and recognized by the secretary of the interior, but denied and disputed by him, and patents therefor withheld by him against the will and request of the plaintiff, and hence during such time the lands were not subject to taxation by the state. (3) That said lands were not subject to taxation in 1883, and that the taxes levied and assessed thereon for that year were illegal and void, for the reason that said lands were then exempt from taxation. (4) That said tax was a cloud upon the plaintiff's title to said lands, and it was therefore entitled to the relief prayed for in the complaint.

Upon these findings, judgment in favor of the plaintiff, perpetually restraining the defendants from collecting said taxes, was entered. The defendants appealed to the supreme court of the state, by which the judgment below was reversed, and the cause remanded to the circuit court, with directions to dismiss the complaint. To review this latter judgment, the cause is brought to this court on writ of error.

Edwin H. Abbot and Louis D. Brandies, for plaintiff in error. Willis Hand, M. Barry, and J. C. Spooner, for defendants in

error.

Mr. Justice FIELD, after stating the facts as above, delivered the opinion of the court.

It is familiar law that a state has no power to tax the property of the United States within its limits. This exemption of their property from state taxationand by state taxation we mean any taxation by authority of the state, whether it be strictly for state purposes or for mere local and special objects-is founded upon that principle which inheres in every independent government, that it must be free from any such interference of another government as may tend to destroy its powers or impair their efficiency. If the property of the United States could be subjected to taxation by the state, the object and extent of the taxation would be subject to the state's discretion. It might extend to buildings and other property essential to the discharge of the ordinary business of the national government, and in the enforcement of the tax those buildings might be taken from the possession and use of the United States. The constitution vests in congress the power" to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States." And this implies an exclusion of all other authority over the property which could interfere with this right or obstruct its exercise. Van Brocklin v. State, 117 U. S. 151, 168, 6 Sup. Ct. Rep. 670. This doctrine of exemption from taxation of the property of the United States, so far as lands are concerned, is in express terms affirmed in the constitution of Wisconsin, which ordains that the state "shall never interfere with the primary disposal of the soil within the same by the United States, nor with any regulations congress may find necessary for securing the title in such soil to bona fide purchasers thereof, and no tax shall be imposed on land the property of the United States." Const. 1848, art. 2, § 2.

It follows that all the public domain of the United States within the state of Wisconsin was in 1883 exempt from state taxation. Usually the possession of the legal title by the government determines both the fact and the right of ownership. There is, however, an exception to this doctrine with respect to the public domain, which is as well settled as the doctrine itself; and that is, that where congress has prescribed the conditions upon which portions of that domain may be alienated, and provided that upon the performance of the conditions a patent of the United States shall issue to the donee or purchaser, and all such conditions are com| plied with, the land alienated being distinctly defined, it only remaining for the government to issue its patent, and until such issue holding the legal title in trust for him, who in the mean time is not excluded from the use of the property,-in other words, when the government has ceased to hold any such right or interest in the property as to justify it in withholding a patent from the donee or purchaser, and it does not exclude him from the use of the property,-then the donee or purchaser will be treated as the beneficial owner of the land, and the same be held subject to taxation as his property. This exception to the general doctrine is founded upon the principle that he who has the

right to property, and is not excluded from its enjoyment, shall not be permitted to use the legal title of the government to avoid his just share of state taxation. Thus in Carroll v. Safford, 3 How. 441, 460, the complainant had entered certain lands belonging to the United States, in the local land-office, paid for them the required price, and received from the office a land certificate. Patents were issued for them, but, before their issue, the lands were asIsessed for taxation and sold for the taxes. The question whether they were subject to taxtion by the state after their entry, and before the patents were issued, was answered in the affirmative. Said the court: "When the land was purchased and paid for, it was no longer the property of the United States, but of the purchaser. He held for it a final certificate, which could no more be canceled by the United States than a patent. And again: "It is said the fee is not in the purchaser, but in the United States, until the patent shall be issued. This is so, technically, at law, but not in equity. The land in the hands of the purchaser is real estate, descends to his heirs, and does not go to his executors or administrators." And again: "Lands which have been sold by the United States can in no sense be called the property of the United States. They are no more the property of the United States than lands patented. So far as the rights of the purchaser are considered, they are protected under the patent certificate as fully as under the patent. Suppose the officers of the government had sold a tract of land, received the purchase money, and issued a patent certificate. Can it be contended that they could sell it again, and convey a good title? They could no more do this than they could sell land a second time which had been previously patented. When sold, the government, until the patent shall issue, holds the mere legal title for the land in trust for the purchaser; and any second purchaser would take the land charged with the trust." In Witherspoon v Duncan, 4 Wall. 210, 218, a similar question arose, and was in like manner answered. Said the court: "In no just sense can lands be said to be public lands after they have been entered at the land-office, and a certificate of entry obtained. If public lands before the entry, after it they are private property. If subject to sale, the government has no power to revoke the entry and withhold the patent. A second sale, if the first was authorized by law, confers no right on the buyer, and is a void act. And again: "The contract of purchase is complete when the certificate of entry is executed and delivered, and thereafter the land ceases to be a part of the public domain. The government agrees to make proper conveyance as soon as it can, and in the mean time*holds the naked legal fee in trust for the purchaser, who has the equitable title." See, also, Railway Co. v. Prescott, 16 Wall. 603, 608; Railway Co. v. McShane, 22 Wall. 444, 461.

In the light of these decisions, it will be necessary, in order to determine the liability of the property held by the plaintiff to taxation in 1883, to consider the nature

and extent of its interest in the property at that time acquired under the grant of congress of May, 1864, and by its subsequent construction of the road. Numerous grants of land were made by congress between 1860 and 1880, to aid in the construction of railroads,-some directly to incorporated companies, others to different states; the lands to be by them transferred to companies by whom the construction of the roads might be undertaken. The different acts making these grants were similar in their general provisions, and so many of them have been, at different times, before this court for consideration that little can be said of their purport and meaning, the title they transfer, and the conditions upon which the lands could be used and disposed of, which has not already and repeatedly been said in its decisions. Each grant gave a specified quantity of lands, designated by sections along the route of the proposed road, with the exception of such as might, when the line of the road should be definitely fixed, have been disposed of or reserved by the government, or to which a pre-emption or homestead right might then have attached. For these excepted sections, which otherwise would have been taken from those designated along the line of the road, other lands beyond those sections within a specified distance were allowed to be selected. The title conferred was a present one, so as to insure the donation for the construction of the road proposed against any revocation by congress, except for non-performance of the work within the period designated, accompanied, however, with such restrictions upon the use and disposal of the lands as to prevent their diversion from the purposes of the grant. It was the practice of the land department, as shown by the evidence in this record, up to the decision of Leavenworth, etc., R. Co. v. U. S., 92 U. S.*733, (in April, 1876,) to allow de-* ficiencies in the quantity of land intended to be granted, arising from sales or other disposition made before the date of the grant, as well as those made subsequently, and those arising from the attachment of preemption or homestead rights, to be supplied from lands lying beyond the original sections, within what were termed the "indemnity limits. This practice was held in Railroad Co. v. Barney, 113 U. S. 618, 625, 5 Sup. Ct. Rep. 606, to have been correct. As the court there said: "The policy of the gov ernment was to keep the public lands open at all times to sale and pre-emption, and thus encourage the settlement of the country, and, at the same time, to advance such settlement by liberal donations to aid in the construction of railways. The acts of congress, in effect, said: 'We give to the state certain lands to aid in the construction of railways lying along their respective routes, provided they are not already disposed of, or the rights of settlers under the laws of the United States have not already attached to them, or they may not be disposed of or such rights may not have attached when the routes are finally determined. If at that time it be found that of the lands designated any have been disposed of, or rights of settlers have attached to them, other equivalent lands

tions, and they nad been properly authenticated and forwarded to the secretary of the interior. But that officer never approved of them. Nor can such approval be inferred from his not formally rejecting them. He refused, as already stated, to issue to the company any patents for any more lands, insisting that it had already received over 40,000 acres too much, and he directed the commissioner of the general land-office to require the company to restore this excess to the government. The approval of the secretary was essential to the efficacy of the selections, and to give to the company any title to the lands selected. His action in that matter was not ministerial, but judicial. He was required to determine, in the first place, whether there were any deficiencies in the land granted to the company which were to be supplied from indemnity lands; and, in the second place, whether the particular indemnity lands selected could be properly taken for those deficiencies. In order to reach a proper conclusion on these two questions, he had also to inquire and determine whether any lands in the place limits had been previously disposed of by the government, or whether any pre-emption or homestead rights had attached before the line of the road was definitely fixed. There could be no indemnity unless a loss a was established. And, in determining whether a particular selection could be taken as indemnity for the losses sustained, he was obliged to inquire into the condition of those indemnity lands, and determine whether or not any portion of them had been appropriated for any other purpose, and, if so, what portion had been thus appropriated, and what portion still remained. This action of the secretary was required, not merely as supervisory of the action of the agent of the state, but for the protection of the United States against an improper appropriation of their lands. Until the selections were approved there were no selections in fact, only preliminary proceedings taken for that purpose, and the indemnity lands remained unaffected in their title. Until then, the lands which might be taken as indemnity were incapable of identification; the proposed selections remained the property of the United States. The government was, indeed, under a promise to give the company indemnity lands in lieu of what might be lost by the causes mentioned. But such promise passed no title, and, until it was executed, created no legal interest which could be enforced in the courts. The doctrine that until selection made no title vests in any indemnity lands, has been recognized in several decisions of this court. Thus in Ryan v. Railroad Co., 99 U. S., 382, 386, in considering a grant of land by congress, in aid of the construction of a railroad, similar in its general features to the one in this case, the court said: "Under this statute, when the road was located and the maps were 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 se lection had been approved by the secretary. In St. Paul R. Co. v. Winona R. Co., 112 U. S. 720, 731, 5 Sup. Ct. Rep. 334, 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 pre-emption. It may be still longer before a selection is made to supply this loss. In Sioux City R. Co. v. Chicago Ry. Co., 117 U. S. 406, 408, 6 Sup. Ct. Rep. 790, 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. Railroad Co., 117 U. S. 228, 232, 6 Sup. Ct. Rep. 654, 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 attorney generals 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 Mendocino Light-House Site, 14 Ops. Atty. Gen. 50; Portage Land Grant, Id. 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 re

manded, 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 11 parcels, of 40 acres each. And it is so ordered.

(133 U. S. 587)

LOUISVILLE, N. O. & T. RY. Co. v. STATE OF MISSISSIPPI.1

(March 3, 1890.)

CONSTITUTIONAL LAW-INTERSTATE COMMERCEACCOMMODATIONS FOR PASSENGERS.

Act Miss. March 2, 1888, providing that "all railroads carrying passengers in this state, other than street railroads, shall provide equal, but separate, accommodation for the white and colored races, by providing two or more passenger-cars for each passenger train, or by dividing the passengercars by a partition so as to secure separate accommodations," since it operates only on the carriage of passengers from one point to another within the state, is not an interference with interstate commerce. HARLAN and BRADLEY, JJ., dissenting.

In error to the supreme court of the state of Mississippi.

The Louisville, New Orleans & Texas Railway Company was indicted for neglecting to provide separate accommodations on its trains for white and colored persons, as required by act of March 2, 1888. From a judgment of conviction, defendant appealed to the supreme court, where the judgment was affirmed. 6 South. Rep. 203. Defendant brings error.

W. P. Harris, for plaintiff in error. T. M. Miller, Atty. Gen. Miss., for defendant in error.

BREWER, J. The question presented is as to the validity of an act passed by the legislature of the state of Mississippi on the 2d of March, 1888. That act is as follows: "Section 1. Be it enacted, that all railroads carrying passengers in this state, other than street railroads, shall provide equal, but separate, accommodation for the white and colored races, by providing two or more passenger-cars for each passenger train, or by dividing the passengercars by a partition so as to secure separate accommodations. Sec. 2. That the conductors of such passenger trains shall have power, and are hereby required, to assign each passenger to the car or the compartment of a car, when it is divided by a partition, used for the race to which said passenger belongs, and that, should any passenger refuse to occupy the car to which he or she is assigned by such conductor, said conductor shall have power to refuse to carry such passenger on his train, and neither he nor the railroad company shall be liable for any damages in any court in this state. Sec. 3. That all railroad companies that shall refuse or neglect, within sixty days after the approval of this act, to comply with the requirements of section one of this act, shall be deemed guilty of a misdemeanor, and shall, upon conviction in a court of competent jurisdiction, be fined not more than five hundred dollars; and any conductor that shall neglect to, or refuse to, carry out the provisions of this act, shall, upon convic'Affirming 6 South. Rep. 203.

The plaintiff in error was indicted for a violation of that statute. A conviction in the trial court was sustained in the supreme court, and from its judgment this? case is here on error. The question is whether the act is a regulation of interstate commerce, and therefore beyond the power of the state; and the cases of Hall v. De Cuir, 95 U. S. 485, and Railroad Co. v. Illinois, 118 U. S. 557, 7 Sup. Ct. Rep. 4, are specially relied on by plaintiff in error. It will be observed that this indictment was against the company for the violation of section 1, in not providing separate accommodations for the two races, and not against a conductor for a violation of section 2, in failing to assign each passenger to his separate compartment. It will also be observed that this is not a civil action brought by an individual, to recover damages for being compelled to occupy one particular compartment, or prevented from riding on the train; and hence there is no question of personal insult, or alleged violation of personal rights. The question is limited to the power of the state to compel railroad companies to provide, within the state, separate accommodations for the two races. Whether such accommodation is to be a matter of choice or compulsion, does not enter into this case. The case of Hall v. De Cuir, supra, was a civil action to recover damages from the owner of a steam-boat for refusing to the plaintiff, a person of color, accommodations in the cabin specially set apart for white persons; and the validity of a statute of the state of Louisiana prohibiting discrimination on account of color, and giving a right of action to the party injured for the violation thereof, was a question for consideration. The steam-boat was engaged in interstate commerce, but the plaintiff only sought transportation from one point to another in the state. This court held that statute,so far as applicable to the facts in that case, to be invalid. That decision is invoked here, but there is this marked difference: The supreme court of the state of Louisiana held that the act applied to interstate carriers, and required them, when they came within the limits of the state, to receive colored passengers into the cabin set apart for white persons. This court, accepting that construction as conclusive, held that the act was a regulation of interstate commerce, and therefore beyond the power of the state. The chief justice, speaking for the court, said: "For the purposes of this case, we must treat the act of Louisiana of February 23, 1869, as requiring those engaged in interstate commerce to give all persons traveling in that state, upon the public conveyances employed in such business, equal rights and privileges in all parts of the conveyance, without distinction or discrimination or account of race or color. Such was the construction given to that act in the courts below, and it is conclusive upon us as the construction of a state law by the