author: Mr. Justice Wayne

text:
    The United States, Plaintiff, v. Hezekiah H. Gear, Defendant. The United States, Complainant, v. Hezekiah H. Gear, Defendant.
    The act of Congress .entitled “ An act to create additional land districts in the
    ._ states of Illinois- and Missouri, and in the territory north of the state Of Illinois,” approved-June 26th, 1834, does not require the President of the United States to cause to be offered for sale the public-lands containing lead mines • situated in -the-Iand.districts created by said act.
    • The said act does not require-the President to cause.said lands, containing-lead mines, to he sold, because the 6th section of the act of the 3d March, 1807, entitled !‘An act making provision fop the disposal of the public lands situated ■ between the United States military tract and the Connecticut reserve, and for other purposes,” is still in full force.
    The lands containing lead mines in the Indiana territory, or in that part of it made into new land districts by the act of the-26th June,' 1834, are not subject,under any of the pre-emption laws which have been passed by Congress, to a preemption by settlers upon the public lands.
    The 4th section of the act of 1834 does in no way. repeal any part.of the 6th section of the act of the 3d March, 1807, by which the lands containing lead mines were reserved for the future disposal of -the United States, by which grants for lead-mine tracts, discovered to he such before they may he bought from the United States, are declared to be fraudulent imd null, and which au thorized the President to lease any lead mine which had been, or might he, discovered in the Indiana territory, for a term not exceeding five years.'
    The land containing lead mines, in the districts made by the act'of 1834, áre not subject' to pre-emption and sale.under any of the existing laws of Congress.
    Digging lead-ore from the lead mines upon the public lands of the United States is such a waste as entitles the .United States to a writ of injunction to restrain it.
    These two cases came up from the Circuit .Court of the United States for the. district óf Illinois, and involved the right of Gear, the defendant, to a tract of land upon which there was a lead mine.. The first was an action of trespass^twe clausum fregit on the commbn law side of the .court;, and the-second a bill in chancery.,.with a prayer for an injunction to stay waste, on the equity side. The declaration charged Gear with having broke and entered the north half section 23, township 29 north, range 1 east, and the south half of fractional section 8, township 28 north, range 1 east, both being east of the fourth principal meridian, and then and there dug up the mineral lead orej. &c., &c-
    ' The "defendant filed six pleas, all .resting on the ground'that he had settled, resided on,, and occupied the land in question in the year .1827, and cultivated a part thereof,'and had ever since remained, continued, and still was'in the possession thereof, and was lawfully entitled to the pre-emption right to said quarter section; said premises ■ being subject to pre-emption- rights, and not yet offered for sale by the President’s proclamation; by reason whereof he, the defendant, dug-lead.ore, or mineral,-as he might lawfully do, &c., &c.
    .To these pleas the plaintiffs replied, in substance, that the quarter-section of land was, and always had been, the property of the plaintiffs ; that it contained a. valuable lead mine, the existence of which was well known-to the defendant before and at the time he settled upon the land, &c.
    To these replications the defendant demiurred generally, and the plaintiffs joined in the démurrer.
    The same'principles'Were. involved in'the chancery case, alleged, of course, in a different manner.
    When the cause -came, up for argument, in the court below, the judges were divided in opinion, and the questions duly certified to mis court. They are somewhat differently stated in- the two cases, and it is proper to mention both.
    In the chancery casé they are thus stated:
    1. Whether the-act of Congress, entitled “ An act to create additional -land districts in the states of Illinois, Missouri,.and the territory north of the state of Illinois,” approved June-26th, 1834, so far repeals the 5th section of the act of the 3d of March, 1807, entitled “An act making provision for the disposal of the public lands situated between the United States military tract and the Connecticut reserve, and for other purposes,” as to subject the lands mentioned in said act of June 26th, 1834, containing lead mines, to be entered and purchased by pre-emption under any of. the pre-emption laws of Congress ?
    2. Whether the said act (1834) requires the President of the United States to cause lands containing lead mines to be sold, or only authorizes him to do so in his discretion?
    3. Whether lands containing lead mines are subject to be held or purchased under any of the acts of Congress granting the rights of pre-emption to settlers upon the public lands ?
    4. Whether the digging lead ore from the lead mines upon the public lands of the United States is such a waste as entitles the United States to the allowance.of a writ of injunction'to restrain?
    In the common law case they are thus stated:
    1. Does the act of Congress, entitled “ An act to create additional land districts in the states of Illinois and Missouri, and in the territory north, of the state of Illinois,” approved June 26th, 1834, require the President of the United States to. cause to be offered for sale .the public lands situate in the land district created by said act, containing lead mines ?
    2. Does the said act require- the President to cause said lands, containing lead mines, to be sold, notwithstanding the 5th section of the'act of the 3d of March, 1807, entitled “An act making provisions for the disposal,of the public lands situated between the United States military tract and the Connecticut reserve, and for other purposes?”
    3. Are the said lands, containing lead ,mines, subject to preemption uqder any of the pre-emption laws which have been passed by Congress ?
    4. Does the 4th section of the said act of 1834 so far repeal the 5th section of the act of 1807, as to subject the public lands containing lead mines to be sold by the United States in the same manner as other public lands not containing lead mines?
    5. Are the said lands, containing lead mines, subject‘to preemption or sále under any of the existing laws of Congress? •
    The acts of Congress referred tó are the following
    On the' 3d of March, 1807, an act was passed, (1 Land Laws, 162,) by..the 5th section of which it was- enacted, “That the several lead mines in the Indiana territory, together with as many sections contiguous to each as shall be deemed necessary by the President of the United States, shall be reserved for .the future dis- • posal of the United States; and any grant which may hereafter be made- for ja tract of land containing a lead mine, which had been discovered previous to the purchase of such tract from the United States, shall be considered fraudulent and null. And the President of the United States shall be, and he is hereby, authorized to léase any lead mine which has been, or .may hereafter be, discovered in the Indiana territory, for a term not. exceeding five years.”

      At that time the land now included within the state of Illinois was part of the Indiana territory.
    In 1827, Gear', the defendant, entered upon the north half of section 23, township 29 north, óf range least, erected a house upon it, cultivated and occupied it.
    ■ On the 29th of May, 1830, Congress passed “An act to grant pre-emption rights to settlers on the public lands,” the first section of which was as follows:
    “That every settler or,occupant of the public land prior to the passage of this act, who is now in possession, and cultivated any párt thereof in the year 1829, shall be, and he is hereby, authorized to enter with the register of thé land-office for the district in which such lands may be, by legal subdivisions, any number of ¿eres, not more than one, hundred and sixty, of a quarter-section, to include his improvement, upon paying to the United States the then minimum price bf said land : Provided, however, that no entry or sale of any land shall be made, under the provisions of. this act, which shall have been reserved for the use of the United States, or either of the several states-in which any of the public lands'may be situated.”
    The 4th section declared, that the sale of .the public lands should not be delayed, nor should the. act be available for those who failed tcimake proof and payment, and concluded as follows:
    “-Nor shall the rights of pre-emption contemplated by this act extend to any land which is reserved "from sale by act of Congress?.or by order of the President, or which may have been' appropriated for any^purpose whatsoever.”
    The act was to remain in force for one year after its passage.
    On the 5th of April, 1832, Congress passed an “ act supplementary to the several laws for the .sale of the public lands,” which permitted the public lands to be purchased either in entire sections, half-sections, quarter-sections, half quarter-sections, or quarter quarter-sections, and contained three provisions, the third of which was as' follows:
    “Provided further, that all actual settlers, being house-keepers, upon the public land, shall have the right of pre-emption to enter, within six months after the passage of this act, not .exceeding the quantity, of one half quarter-section, under the provisions of this act, to include his or their improvements, under such regulations as have been, or may be, prescribed by the secretary of the Treasury,” &e.
    On the 14th of July,. 1832, Congress passed “An .act supplemental to. an act grabbing the right.of pre-emption to settlers on the public lands, approved on the 29th of- May, 1830,” which is too long to he ’ quoted. The purport of it was to extend to occupants and settlers the privilege' granted by the prior act until one year- after . the surveys had been made, or the land had bean attached to a particular land district.
    .On the 2d of March, 1833, an act was passed reviving that, of April 5th, Í832, extending the privileges granted by that act to the same period as those just mentioned, and placing the beneficiaries of the. two acts- of the 5th of April and 14th' of July upon the samé, .footing.
    In 1834, two acts were passed, one on the 19th and one on the 26th of June. That of the 19th' was to -revive the act to grant preemption rights to séttlers oh the public lands, approved May 29th, 1830,
    The 1st section declared, that every settler or occupant of the public lands prior to the passage of the act, who was then in possession, and cultivated any part thereof in the year 1833, should be entitled to áll the benefits and privileges provided by the act . of 29th May, 1830; which act was revived and continued1 in force for two years.
    The act,of the 26th June was entitled “An act to create additional land districts in the states of Illinois and Missouri, and in the territory north of the state of Illinois.”
    The 4th section enacted, “that.the President shall be authorized, .as soon1 as. the survey shall have been completed, to cause to be offered, for sale, in the manner, prescribed by law, aÚ the lands lying in said land districts, at the land-offices in the respective districts in which the land so" offered is embraced, reserving only section 16, in each township, the tract reserved for the village Galena, such other tracts as have been granted-to individuals and the state of Illinois, and such reservations as the President shall deem necessary to retain for military posts, any law of .Congress heretofore existing to thé contrary- notiyithstanding.”
    On the 22d of June, 1838, an act was. passed, the title of which was “ An act to grant pre-emption rights to settlers on the public lands.” It enacted that every actual settler of the public lands, being the head of a family* of over twenty-one'years of age, who was in possession .and a house-keeper, by personal residence thereon at the ■ timé of the passage of the act and for four months next preceding, should be entitled to all the' benefits and privileges of-the act of May 29th, 1830; which-act was thereby revived and continued in force for two years* . It contained a number df pfovision's, one- of which was, that it should not be so construed as to give a right of pre-emption to any land specially occupied or reserved for town-lots or other purposes by authority of the United States.
    ■ By the act of the 1st June, 1840, the above act was continued in force until thé 22d óf June, 1842, subject to the exceptions therein contained.
    On the 4th of September, 1841, an act was passed entitled “ An act to 'appropriate the proceeds of the sales of the public lands, and to grant-pre-emption rights.”
    The 10th section granted pre-emption rights to actual settlers, with several limitations and exceptions, two of which were as follows, viz.:

      “No lands included in any reservation by any treaty, law, or.pro-clamationof the President of the United States, or reserved for salines or for other purposes,” and “no lands on-which are situated any known salines or mines, shall be liable to entry under and by virtue of the provisions of this act.”

      Nelson, attorney-general,- for the United-States.
    Hardin, for. the defendant.
    . Nelson. The early acts of Congress upon the subject áre all stated in Mr. Gilpin’s argument, 14 Peters, 529. The act of 1807 reserves all lead mines. If that, act is still in force the case is clearly within it, because the replication avers the, existence of a lead mine on this tract of land, and'it is not controverted. If the case is withdrawn from the operation of that act,, it must be through the effect of some one of the pre-emption laws. Let us;inquire. ■ '
    ■By the act of 1830, 1 Lhnd.Laws, ’473, 474, chap. 401, there is no right of pre-emption in lands reserved from sale.
    That of 1832 cannot apply, because there is nothing in the record to. show that the defendant made an application for this land, and thus brought himself within the provisions of the act.
    That of 1834 merely revived the act of 1830. Of course the same restriction Was continued; aiid by.that of 1838 it was continued for two years longer.
    By the act of 1841, Session Acts, p. 26, chap. 16, section 10, no land. is. to be entered on which lead mines are. '
    In'- no act is there a pre-emption right varying from that given by that of 183Ó, except in the law of 1832, which says if shall be subject to such'.conditions as the secretary of-.tfre Treasury should.impose. But, in making these conditions, it was his duty to conform to the .settled policy of the country.
    These acts - may then be laid- aside, as having no bearing on the case. The, one under which the controversy - arises is that, passed in 1834. At ibis session, two acts were passed,, viz.: 1834, chap. 467’, passed on 19th June; 1834,'chap. 527, passed on 26th June,
    - The 4th section of .the latter act is the clause to which the-attention of the court should be • directed. It authorizes the President to offer for sale the lands therein mentioned, with certain exceptions; and it is contended, on the pqrt of the. defendant, that lead mines are not named in the exceptions, and that, consequently, the right of pre-emption accrued.
    . The question is, does this act repeal that of 1807-, and authorize ■ the President to sell without regard to the restrictions imposed upon him by the act of 1807?. I think .not; because,
    1. The act of -1834 was not designed to bear upon that of 1807. It had a different object in view, professing to establish land-offices. There were two iaws passed at that session, one- seven days after the other. The> one first passed provided for pre-emptions, and reserved. lead mines. Is it probable that these provisions would be repealed by a law passed- a few days afterwards, and purporting to regulate an entirely different matter?
    2. In every subsequent act, of 1838,1840, 1841, there is the same reservation as in 1830, which is a strong legislative exposition of the meaning of Congress. In the distribution law, it is repeated; and the practice of the executive department has always been to refuse to grant such lands.
    3. There is another legislative interpretation. In 1842 (chap. 190) an act was passed, including Wisconsin in the act of 1834. Those who had entered lead mines, were indemnified, and allowed to enter other lands, provided they did not violate the act of 1830.
    4. By the section of 1834 under consideration,, the President might offer the lands for sale, but it was not incumbent on him to do ' so. 'He had a discretionary power, which carried with it the right to refuse to sell them at the minimum price of one dollar and twenty-five Cents per acre. See opinion of Attorney-General Butler, 2 Land Laws, 127,-128. ■
    In. 14 Peters, 526, the court has decided' this question. In that case' the contract for leasing was made after 1834. It is true, that the act was. not noticed in the argument, but this shows the opinion to have been then, that the act had nothing to do with the subject. It was argued by Mr. Benton upon a different ground.
    But suppose that tire President was authorized to sell these lands. How does thé right of pre-emption follow? This is a matter regulated by Congress only. Does-the act of 1834 give a right of entry, before the lands are offered at public sale? The act of 1830 might have thrown open all lands, then in the market, to pre-emption rights; but it does not follow that that of 1834 did so, too.-
    As to the propriety of granting an injunction in the equity case, on the ground that the bill alleges, that the injury will be irreparable, see 2' Lánd Laws, T7; 3 Wheat. 131; 2-Story’s Eq. 207, 208; Dewey on Injunctions, 137, 183,. 184, 112.

      Hardin, for defendant.
    ■The act of 1807 reserved lead mines from sale, but left them subject to the future action of Congress. They were riot appropriated to any particular purpose: no.plan was adopted'for their subsequent government. All that was done by that act was to say, that at some time thereafter Congress would conáder what course should be taken with regard to them... They were, therefore, just as much open to the legislation of Congress as any other portion of the public .lands. If an appropriation of them had been made, to take immediate effect, the case would have been different; for there is a distinction between reservation and appropriation. Grants made by executive officers were declared void; "but this was not intended to guide future congressional action. By the act of 1830, pre-emption rights are-given in the broadest sense, except where lands are reserved for the United States. But they were often reserved for canals, light-houses, &c. As long as the/act of 1807 was in force, we admit, that the act of 1830 did not give a right of pre-emption to the land in question, because it was reserved from sale. But the act of April 5th, 1832, permits quarter quarter-sections to be entered, and extends the privilege to all house-keepers, who had settled on the public lands, in the broadest possible terms. The defendant’s plea shows him to havé' been entitled to claim it. ‘ There was no reservation in the act. It has been said, by'the attorney-general, that no settlement could be made on lands which had not been offered for sale, and that the secretary of the Treasury must prescribe regulations. But the very term implies a recognition of a settlement thus made. What is it ? Pre-emption: a right to purchase before the day of public sale. Before the passage of such a law, a settler was an intruder; but after-wards, he had. an estate upon condition. And if he complied with the act, he fulfilled, the condition, and the estate became absolute. It has been called a gift. But if so, it was a gift under a legislative grant, which, in effect, vests' the title, of which a subsequent patent is only the evidence.. 2 Kent, 255; 4 Peters, 408, 422; 2 Howard, 316, 344,
    Being so, it was not in the power of the President or any executive officer to take it away.
    If we look to results, they are all in our favour. The object of Congress, in making the original reservation, was to prevent monopoly, but not the general settlement of the country. The tearing system has not paid expenses, and it injures the land. The secretary of War has, for many years, recommended that the lead mines should be sold; and we say, that Congress has ordered it, but ihat the Pre* sident has improperly withheld them from sale.
    By the act of 26th June, 1834, the. President w.as authorized to sell the public lands with certain reservations, and these are not within the reservations. But the attorney-general says, that the President was only authorized to sell; that it was a matter within his discretion. Be it so. This removes them from the list of reservations; and being no longer reserved, the pre-emption law of the 19th Juñe comes in and operates upon them. What construction must be. given to the word “authorized?” We say, it makes it the duty of the President to sell.
    It is not only used so in the act of 26th June, 1834, but in all acts in which Congress directs or authorizes land to be sold by order of' the President. As in these acts: February 17th, 1818, sect. 3, Land laws, 294; March 3d, 1823, sect. 10, Land Laws, 364; July 14th, 1832, sect. 2, Land Laws, 511; July 7th, 1838, sect. 1, Land-Laws, 578; March 3d, 1815, sect. 5, Land Laws, 260; May 6th, 1812,. sect. 1, Land Laws, 214.
    Congress never does order the President in imperative terms. -The language is courteous; but it-is a ministerial act to proclaim the lands for sale. Grignon v. Astor, 2 Howard, 344. ■
    Thjs-power- can be exercised.by othe- officers than the President; and in) the following cases other subordinate, officers are authorized,. alias directed, to make sales, &c.: secretary of War, March 3d, 1803, sect. 2, Land. Laws, 99; secretary of Treasury-, March 3d, 1825, sect. 1, Land Laws, 403; registers and receivers, April 27th, 1816,-seet. 1, Land Laws, 274'; April 30th, 1810, sect. 1, Land Laws, 176;.“proper officer,” May 13th; 1800, sect. 1, Land Láws, 78; “commissioners,” July 14th, 1832, sect. 2, Land Laws, 510. See also, acts 23dAugust, 1842, sect. 2, Acts,. 124; 4th August, 1842, sect. 1, Acts,- 83; 10th May,. 1842, sect. l, Acts, 14.
    These lead-mine lands being authorized to be sold, without any reservation, and no power . existing in the President to reserve them fromsale,1 more than any .other public lands, so much! óf the law of 1807^ as' “ reserved them for the future disposal of the United States,” was necessarily repealed by. the act of 1834. The reservation .being taken ofí^ they become subject to rights of occupancy, as other lands, and settlers acquiring rights to.pre-emption,by virtue of pre-émptión laws,, cannot be divested of these rights by the refusal of the President to proclaim them fórjale,
    If the pre-emption laws, passed prior to the act of 1834, did'not give the defendant a right or pre-emption, the pre-emption law. ef 1838 did. This act makes no mention of reserving lead mines. It ■is provided, in this, act, .that it shall not extend “ to any land specially occupied or reserved for town lots, or other purposes, by .authority of the United, States.”
    These lead-mine lands were not occupied or reserved for. any purpose by the United States. They were, in .1807, reserved from sale for future disposal; but nowhere, are they appropriated,or reserved ■■ for the use of the government, to dig.mineral,.or other- specialise.. The object of the .original .-reservation was to delay the sale until Congress should determine what disposition should be made of them. By the law of 1834, and the various .pre-emption laws, Congress has authorized their sale and disposal; and they are not, consequently,, within the meaning of any reservation or appropriation mentioned in the subsequent pre-emption laws..
    On all public lands, authorized to be sold, citizens are permitted and encouraged,, by the pre-emption laws, to go On' them and improve them. . To do .so, they must erect houses .break up the natural meadow, and fell trees. These are all acts of waste, according to the common law.
    The old acts of Congress against waste, and to punish for. trespasses, in cutting timberj &c., are inconsistent with these-pre-emption laws, andthe rights and privileges'grantéd to occupants under them ; consequently, they are repealed by the pre-emption laws subsequently passed. Neither action can therefore be sustained.

      Nelson, in reply and conclusion.
    The question' of a general reservation does not arise in the case. The replication sets out, that defendant knew that mines were on the land; and by his demurrer he admits that he knew it. The act of 1807 reserves mines, and declares, that all grants of them shall be considered fraudulent and null. Under this act.alone, the .defendant would have been a trespasser, even if he had obtained a grant of the land.
    It has been said, that the district attorney had no right to bring suit without the authority of an act of Congress. But the Constitution -makes it the duty of the President to see that all laws are executed, and the power to sue results from the nature of things.
    The act of 1830 is the ‘first and general pre-emption law; and no law, now- in force, is inconsistent with this. It says that its provisions do not apply tó lands which were reserved from sale; but the act of 1807'had already reserved these lands.
    The act of April, 1832, has no application. It was not designed as a pre-emption law, but to allow smaller subdivisions than had tieen before tolerated. The claim here is not for one of these subdivisions, but an entire quarter-section. But the privilege granted by the act of 183.2 is confined to half quarter-sections, and extends to no. larger amount.
    The act of July, 1832, merely gave an extension of time;
    ■ The act of 1834 appears to be the chief reliance of-the defendant. We admit, that if the .court think that this act grants the lands, the plaintiff is not entitled to maintain this suit. But it does not profess to be a pre-emption act. It is to create additional land-districts. It authorizes the- President tp do certain, things in the manner prescribed by law. But a pre-emptioner can only claim under an act of Congress, and this'act does not give him power, to enter, which is expressly prohibited by the act of 1830. It does not follow that any pre-emptioner may take up lands as soon as their sale is authorized;- No statute gives him such a right. The question' is, what was the intention of Congress in passing this law? The answer must be sought in the act itself, and in the circumstance that, seven ¿ays before, a regular pre-emption law had been passed.
    The act of 1838 contains many reservations, and it is argued that mines are not included within them. But the general phrase, “for other purposes,” will include mines; anilbesides, it professed to revive the 'act of 1830, with all its reservations.
   Mr. Justice Wayne

delivered the opinion of the court.

From the foregoing statement of all the acts of Congress having any bearing on the subject before us, we think it obvious it was not intended to subject lead-mine lands in the districts made by the act of the ,26th June, 1834, to -sale as other public lands are sold, or to make them liable to a pre-emption by settlers.

The argument in support of a contrary conclusion is, that the reservations'in the fourth section' of that act, with the authority given to the President to sell all the' lands in the districts, any law of Congress heretofore existing to the contrary, notwithstanding, exclude lead-mine tracts in those districts from the operation of the act of the 3d of March, 1807. At most, the language of the fourth section of the act of 1834 imparts only an authority to the President to sell, given in the same way as it has been conferred upon him in other acts providing for the sale of the public lands. Then the question occurs, whether the section of an act, in general terms to sell, (certain reservations excepted,) without any reference to a previous act, which declares that lead mines in the Indiana Territory shall be reserved for the future disposal of the United States, is so far a repeal of the latter, that lead-mine lairds in apart of that territory are subjected to sale as other public lands are. Why should Congress, without certain words showing an intention to depart from the policy which had governed its legislation in respect to lead-mine lands in the whole of the Indiana Territory, from 1807 to 1834, be supposed to have meant to exempt a portion of the lead-mine lands in that territory from that policy, in art act,..the whole purview of which was to create additional land-sale districts? Besides, the reservations in the fourth section of the act of 1834, except the tract for the village of Galena, are no more than the reaffirmance of some of the provisions of other statutes respecting reservations made or to be made out of the public lands in other districts; and cannot, therefore, be considered as an enumeration in connection with the general power to sell all lands, any law of Congress heretofore existing to the. contrary notwithstanding, repealing another act, providing for a reservation of a particular class of lands within the same land-district to which the act of 1834 applies. . Th e reservations in the fourth section of the act of 1834 are limitations upon the authority to sell,) and not an enlargement of the general power of the President to sell lands, which, by law, he never had a power to sell; which have always been prohibited by law from being sold, and which never have been sold, except under the authority of a special statute, such.as that of the 3d March, 1829, 1 Land Laws, 457, .which authorized the President to cause the reserved lead mines in the state of Missouri to be sold. In 'looking at-that act, no one can fail to observe the care taken by the government to preserve its property m the lead-mine lands, or to come to the conclusion that the reservations of them can only be released by special legislation upon the subject-matter of such reservations. Authority, then, to sell all lands in the districts made by the act of 1834, though coupled with the concluding words of the fourth section, can only mean all lands not prohibited by law from being sold, or which have been reserved from sale, by force of law. The propriety of this interpretation of that section is more manifest, when it is considered, if a contrary interpretation is given, that' the lead-mine lands in one district of the same territory would be liable to sale and pre-emption, and those in another párt of it-would not be. Can any one possible reason be suggested to sustain even the slightest intention upon the part of Congress, when it was passing the act of 1834, to make such differences in respect to lands within the same locality, as have just been mentioned ? Could 'Congress have meant to say, under a power to sell, that it would be lawful to sell in the new land district what it was unlawful to sell in other land districts of the same territory of which .the new land district was also a part ? And that settlers upon the public lands within the new district should havé^a right of pre-emption in lead-mine tracts, which settlers upon other lands within the same territory, but not within the new land district, could not have ? The mere fact of a new land district having been made out of a part of the territory in which the lead-mine lands had been reserved, with the authority to the President to sell all lands in the new district, can have no effect to lessen the force of the original reservation. In truth, the acts of 1834 and 1807 do not present a case of conflict in the sepse in which statutes do, when, from some expression in a later act, it may seem that something was intended to be excepted from the force of the former, or to operate as a partial repeal of it. The rule is, that a perpetual statute, (which all statutes are unless limited to a particular time,) until repealed by an act professing to repeal it, or by a clause or section of another act directly bearing in terms upon the particular matter of the first act, notwithstanding an implication to the contrary may be raised by a general law which embraces the subject-matter, is considered still to be th°e law in force as to the particulars of the subject-matter legislated upon. Thus in this case, all lands within the district mean-lands in which there are, and in which there are not, minerals or lead mines; but a power to-sell all lands, given in a law subsequent to another law expressly reserving lead-mine lands from sale, cannot be said to be a power to sell the reserved lands when they are not named, or to repeal the reservation. In this case there are two acts before us, in no way connected, except in both being parts of the public land system. Both can be acted upon without any interference of the provisions of the last 'with those of the first — each per- • forming its distinct'functions within the sphere as Congress designed they should do. But further, that the act of 1834 was not intended as a repeal of the act of 1807, in regard to lead mines, so as to grant a right of pre-emption in them to settlers, is manifest from the fact that an act was passed only seven days before it, reviving an act to grant pre-emption rights to settlers on the public lands, which excludes settlers from- the right of pre-emption in any land reserved from sale .by act of Congress. Thus reasserting, then, what had-been uniformly a part of every pre-emption law before, and what has been a limitation upon the right Of pre-emption in every act for that purpose since. We do not think it necessary to pursue the subject farther, except to say that the view we have here taken of the act of 1834, in respect to lands containing lead mines, and the right of pre-emption in them, is coincident with the opinion given by this' court in-the case of Wilcox v. Jackson, 13 Peters, 513. That case was well and most carefully considered, and expressed, in the deliberate language of this court. We.determined, then, the point being directly in the cause, that the act of 1834 had relation to a sale of lands in the manner prescribed by law^ at public auction, and that a right of pre-emption was governed by other laws. The court said, “ the very act of 19th June, 1834, under which this claim is made, was passed but one week before the one of which we are now speaking, (meaning the act of 26th June, 1834.,) thus showing that the provisions of the.one were not intended to. have any effect upon the subject-matter on which the other operated.” We see no reason to change what was then the view of the court. On the' contrary, there is much in this case to confirm it. Let it' be certified, therefore, to the judges of the Circuit Court of the United States for the district of Illinois, that this court is of the opinion that the act’of Congress, entitled “An act to create additional land-districts in the states of Illinois and Missouri, and. in the territory north of-the state of Illinois,” approved June 26^ 1834, does not require the President of the United States to cause to be' offered for sale the public lands containing lead mines situated in tbe land districts created by'said act. 2d. That the said act does not require.>the President to cause said lands, containing lead mines, to be sold, because the 5th section of the act of tile 3d March, 1807, entitled""^ An'act making provision for the disposal of the public lands, situated between the United States military tract and the Connecticut reserve, and for other purr poses,” is still in full force.

• To the third question We reply, that the lands containing lead mines in the Indiana Territory, or in- that part of it made into new land-districts by the act of the 26th June, 1834, are not subject, under any of the pre-emption- laws which have been passed by Congress, to a pre-emption by settlers upon the public lands.

To the 4th question, we reply that the 4th section of the act of 1834*”does in no way repeal any part of the 5th section of the act of the 3d of March, 1807, by which the lands containing lead mines' were reserved for the future disposal of the United States, by which grants for lead-mine tracts, discovered to be such before they maybe bought from the United States, are declared to be fraudulent and null, and which authorized the President to lease any lead mine which had been, or might be, discovered in the Indiana Territory, for a term' not exceeding five ytears.

To the 5th question we reply, that-the land containing lead mines in the districts made by the act of 1834, are not subject to pre-emp? 'tion and sale under any of the existing laws of Congress.

The foregoing answers apply also to the points upon whipfa. the judges were divided in opinion upon the bill in- chancery, betwéeh .the United States and the defendant Gear, except the fourth question.■ certified in that case; and to that we reply; that digging lead ore from the lead mines upon the public lands in the United States, is such a waste as entitles the United .States to a writ of injunction,to restrain it.

[For the dissenting opinion of Mr. Justice McLean, see App. p.789.]


source: Caselaw Access Project

author: Mr. Justice. WAYNE

license: Public Domain

text:
    Samuel Gordon, Plaintiff in error, v. The Appeal Tax Court. James Cheston, Plaintiff in error, v. The Appeal Tax Court.
    The charter of a hank is ¿'franchise, which is not taxable, as such, if a price has been paid for it, which the legislature accepted. - But the corporate property of the bank'is separable from the franchise,and may be tkxed, unless there is a special agreement to the contrary.
    The legislature of Maryland, in 1821, continued the charters of several banks to' 1845, upon condition/that they would.make a road and pay a- school tax. This would have exempted their franchise, but not their property, from taxation.
    But another clause hr the law. provided, that upon any of the' aforesaid banks accepting of and complying with the terms and conditions of the act,-the faith of the state was pledged not to impose'.any-further tax or burden upon them during the continuance of their charter's under the act.
    ■ This was a contract relating to something beyond the.franchise, and exempted. tha'stockholders from a tax levied upon them as individuals, according to the amount of their stock.
    These were kindred cases; -brought up by writ of error from the Court of Appeals of the state of Maryland, under the 25th section of the Judiciary Act of 1789.
    The first case depended upon the constitutionality of a tax imposed by the legislature of Maryland in 1841, it being alleged to bein' violation of a contract made by the legislature in 1821; and, the second depended upon the same circumstance, with .the addition that .the plaintiff in error was-entitled tp the benefit of the same contract, by virtue.of an act of the-General Assembly, passed in 1834. ■
    The facts in the case were these:—
    ' At November.session, .1804, the legislature of Maryland incorpo- • rated the Union Bank of Maryland. Samuel Gordon, the plaintiff in error in the first casé, was, at the institution, of the suit below,',a stockholder in this bank. No bonus was required to be-paid to the state, but five thousand shares-were reserved for the use and' benefit of the state of Maryland, to .be subscribed for by the state, when desired by the -legislature thereof. The charter was to last until 1816.
    At the session of 1812. the legi§latu're„passedjmact, entitled “An act to incorporate a company to -make a turnpike road leading to Cumberland, and for the extension of the charters of the several banks in'this state, and for other purposes.’’ It proposed to extend the charters of the banks to 1835, upon condition, that they would subscribe for as much stock as would raise a fijnd necessary and suf- ' ficient to finish and complete the road, and upon the further condition, should bind themselves' to pay into the Treasury the sum of $20,000 for each and every year that the charters should continue ¡ the fund being pledged for the support of common schools.
    The.12th section was as follows:
    “ That Upon any of the banks in this state complying with the conditions of this act, the' faith of the state is hereby pledged not to impose any further tax or bonus on the said banks during the continuation of their charters under this act.”
    This act was not accepted by any of the banks.
    At the session of 1813, the legislature passed another act, which wa's entitled a- supplement to the aforegoing. The 1st section incorporated a company to make, the road. The second was as follows: “'And for the purpose of raising á fund to make and complete said road: Be it enacted, That the charters-of the.several banks, &c., shall be, and they are hereby continued and extended to the 1st day of January, 1835, and to the end of the session of the General Assembly next thereafter, upon condition of the said several banks subscribing, in proportion to their respective' capitals actually paid in at the time of such subscriptions, for as much stock as is necessary and sufficient to finish and complete said road,” &c., &e.
    The 7th section enacted, that every bank should pay annually into the Treasury-the sum of twenty cents on every hundred dollars - of the capital stock actually paid in; and if this were neglected for six months after it was due, the bank so neglecting should forfeit its charter.
    The 8th section continued the charters.of such banks as complied with the act until 1835.
    The 11th section ran thus: “ That upon any of the aforesaid banks accepting of and- complying with the terms and conditions of this act, the faith of the state is hereby pledged not to impose any further tax or burden upon them during the'continuance of -their charters under this - act; and in case of the acceptance of and compliance with the provisions of this act by the several banks hereby required' to make the aforementioned road, the faith of the state is further solemnly pledged. to the several existing banks in the city of Baltimore, not to grant a charter of incorporation to any other banking institution to be established in the city or precincts, of Baltimore before the 1st day of January, 1835.”
    At the session of 1815, an act was passed, “ declaring the continuation and extension .pi the charters of the several banks therein mentioned.” It recited,-that several banks, and amongst them the Union Bank, had accepted the act of 1813, and then declared, that their charters were extended to 1835.'

      At the session of 1821 ¿-another act was passed, entitled “An act to incorporate a company to make a turnpike road from Boonsborough to Hagerstown, and for the extension of the charters of the several banks in the city of Baltimore, and for other purposes.” The preamble was as follows: “ Whereas it is to the interest of the state that a turnpike road should be made, leading from Boonsborough to Hagerstown, in Washington county, and it is represented to the legislature, that the banks hereinafter mentioned are willing to make the same, if an extension of their several'charters be granted to them, as they were heretofore extended by an act entitled a supplement to the act entitled, an act to incorporate a company to make a turnpike road, leading to Cumberland, and for the extension of the charters of the several banks in the city of Baltimore, aid for other purposes, passed at December session, 1813: Therefore, Be it enacted,” &c.
    The 1st section incorporated a company to make the road.
    The 2d section was as follows: “And for the purpose of raising a fund to make and complete said road, Be it enacted, That, the charters of the several banks aforesaid shall be, and they are hereby, continued and extended to the 1st day of January.; 1845, upon condition of the said several banks subscribing, in proportion to their respective capitals actually paid in at the time of such subscriptions, for.as much slock as is necessary and sufficient-to finish and complete said road,” &c.
    The 6th section was as follows: “ That if the said company shall not commence the making of the said turnpike road within two years from the passage of this, act, and shall not complete the same in four years thereafter, the right of the said company to the said road shall revert to the state of Maryland, and the charters of the said banks are hereby declared not to be continued or extended by virtue of this act.”
    The 7th section enacted, that the banks should annually pay to the treasurer the sum of twenty cents on every hundred dollars of the capital stock of each bank actually paid in; and in case of neglect, the bank was to forfeit its charter.
    The 8th section renewed and cQptinued the charters of the complying banks until 1845 and the- session of the General Assembly next thereafter.
    The 11th section was as follows: “That upon any of the aforesaid banks accepting of and complying with the terms and condi-' tions of this act, the faith of tire state is hereby pledged not to impose any further tax or burden upon them during the continuance of their charters under this act; and in case of the acceptance of and compliance with the provisions of this act by the several banks hereby required to make the aforementioned road, the faith of the state is further pledged,-to the aforesaid banks in the city of Baltimore, not to grant a charter of incorporation to any other banking institution to be established in the city or precincts of Baltimore before the 1st day of January, 1845.”

      The 12th section was as follows: “That the'said banks, specified in the 7th section of this act,.should they elect so to do, shall be, and they are hereby, exempt from the payment of the annual tax hereby imposed, upon condition of their paying to the treasurer of the Western Shore of Maryland,- on or before the 1st day of January,-1823, the sum of $100,000, to be appropriated in the maimer here•in before provided for.”
    The Union Bank, as was admitted in the court below, duly accepted and complied with the terms and conditions of this'act of 1821.
    At the session of the legislature of December, 1834, an act was passed (chap. 274) to “ extend the charters of several banks in the city of Baltimore,” by which, amongst other enactments, the charters of the'Union Bank was extended to the end of the year 1859. It introduced some new provisions into the charter, required the payment of the school tax and a proportionate share of $75,000; but contained no stipulation like that of the 11th section of the act of 1821.
    At the session of. December, 1835, the Farmers’ and.Planters’ Bank was incorporated. It was required to pay a bonus and school: tax, but the charter contained no exemption- from taxation.
    At the same session, viz., December, 1835, an act (chap. 142) was passed, reciting that whereas, by the 11th section of the act of 1821, the faith of the state was pledged not to impose any further tax or burden upon certain banks, and it was equitable that other banks should stand on equal footing, and enacting that the faith of the state was pledged not to impose any further or other tax on banks incorporated since the year ■ 1821- than -might be -imposed on the banks which had complied with the terms of that act. ,.'
    .. The 3d section was as follows: “And be it enacted, That in the said act of 1821, it was not, nor is it now, the intention of the General Assembly of Maryland, to exempt from taxation and equitable contribution to the common burdens for state purposes, the property, stock, or dividends severally held in or derived from any bank in this state, by any person or persons whatever; - but that the true intent and- meaning of the pledge given by ,the said act of Assembly was, to- limit the taxation Upon the franchises only of the banks therein mentioned.”
    In April, 1841, an act was passed “for the general valuation and assessment of property in this state, and -to provide a tax .’to pay the . debts of the state.” It. directed, amongst other things, that “ all stocks or shares owned by residents of this state in any bank, institution, or company incorporated in. any ojher state or territory: all stocks • or shares in any bank, institution, or company incorporated by this state,” &c., should be.assessed, and a tax imposed upon this and all .other species of property, of twenty cents, or one-fifth of one per cent, on every hundred dollars of assessable property. It also provided for an Appeal Tax Court, whose decisions should be car-, ried to the Court of Appeals.

      In the trial of the 'cause in the Court of Appeals, the following agreement was filed:—
    “It is agreed, that the appellant banks, to wit, the Union Bank of Marylánd, the Bank of Baltimore, the Mechanics’ Bank of Baltimore, the Commercial and Farmers’ Bank of Baltimore, the Marine Bank of Baltimore, and the Farmers’ and Merchants’ Bank.of Baltimore, commonly called the old banks, were chartered previous to the year 1821; and that the new banks, to wit,.the Merchants’ Bank of Baltimore, the Farmers’ and Planters’ Bank of Baltimore, the Citizens’ Bank of Baltimore, and the Western Bank of Baltimore, were chartered since the year 1830; the respective periods of the incorporation of all the aforegoing banks appearing by reference to their charters.
    “It is admitted, that the old banks have duly accepted and complied with the terms and conditions of the act of 1821, chap. 131, the manner of which acceptance appears by the paper marked A, herewith filed; and have also accepted and complied with the provisions'of the act of 1834, chap. 274: and it is also admitted, that taxes have always, since the incorporation of said banks, been levied and assessed upon their real and personal property in .all the cities and counties of this state, in the same mann'er as upon'property of the same kind belonging to individuals, and that said taxes have always been paid by said banks up to this time. And it is further admitted, that said banks did not, at the time of the enactment of the act of 1841, chap. 23, nor have they at any time since, paid or redeemed their notes or other obligations in specie.”
    The Court of Appeals decided, that the tax imposed by the act of 1841 was not a violation of the contract between the state and the banks, which was effected under the act of 1821, and to review this opinion the writ of error was brought.

      Meredith and Dulany, for the plaintiffs in error.

      Nelson, attorney-general, and Steele, for the defendants.
    In the case of Samuel Gordon, the counsel for the plaintiff in error contended,
    1. That the Union Bank of Maryland having accepted of and complied with the terms and conditions of the act of 1821, chap. 131, a contract was created by the 11th section thereof, on the part of the state, “not to impose any further tax or burden upon said bank during' the continuance of its charter under the 8th section of said act; and that this exemption from taxation extended to all the property of said bank, real and personal.
    2. That the 1st and 45th sections of the act of 1841, chap. -23, imposed upon the said bank “a further tax and burden,” in violation of the said contract, and was therefore void as against the provisions of the Constitution of the United States.
    And in the case of James Cheston, plaintiff in error, v. the Appeal Tax Court, who’was a stockholder in the Farmers’ and Planters’ Bank of Baltimore, one of the new banks chartered since 1830, the. counsel for said Cheston contended,
    That if the aforesaid assessment law of 1841, so far as it imposes a further tax upon the stockholders of the old banks, should be declared void for its repugnance to the Constitution of the United States, then, that it is equally void, so far as it imposes an additional tax upon James Cheston, a stockholder of one of the new banks, as it thereby deprives the new banks of the immunity from further taxation granted to them by the 1st section of the act of 1835, chap. 142, which immunity is itself a franchise, granted for a valuable consideration, and cannot, therefore, be taken away.

      Bulany, for the plaintiffs in error,
    said, that he would not stop to
    cite authorities to show, that the law was void, if it impaired the obligation of a contract, but .would refer to two cases which were analogous to the present: 7 Cranch, 154; 4 Peters, 561.
    He then entered into a detailed examination of the charter of the Union Bank with 'its several supplements, and asked the court to compare the 11th section of the act of 1821 with the act of 1841, and he thought it would be found, that the latter took away what the former gave. It was admitted, that there was an exemption of some kind in the act of 1821, and the only question in the case was, what kind of exemption was it ?
    In Dwarris pn Statutes, 51, 9 Law Library, it was said, that every word of a statute must have its effect; that it was better to observe what the legislature said than what they are supposed to have meant. Apply this to the paragraph, coupled with the doctrine that in Maryland property is not taxed, but persons are. 1 Maxcy’s Laws, 12, Declaration of Rights, article 13, shows this. The exemption was then a pledge given to a person, viz., the bank. Why should it be limited, as contended for by the opposite side, to an exoneration of the franchise merely from taxation? The construction ought to be in favour of the banks, because it was the intention of the legislature to invite them to accept the law. If you narrow it down now, it is not the spirit in which the offer was made. It is easy to see what that spirit was. The two objects of promoting internal improvement and fostering public schools were great public objects, and it was very desirable to encourage them without resorting to direct taxation. The banks were the invited party, and the act was to be laid before the stockholders for approval or rejection. Of course, the terms would be closely looked at. The proposition was, that no “ further” tax should be imposed. The word “ further” refers to. the preceding section, in which the tax for the road and schools is provided. It is true, that the act of 1841 imposed a tax upon the property; but the tax for road and schools fell upon the very same property, and, as it happened, was of just the same amount. A further tax of the same character was meant. The object to which the money is to be applied makes no difference in the character of the tax. The clause is clear in itself, and we are not to look to the preamble, as a guide to intention, unless there is some ambiguity. Dwarris on Stat. 19. And if we look to the preamble, it will not enlighten us, because it only refers to the road, without saying any thing about schools. If the exemption related only to the franchise, it was worth nothing, because whether the tax should be laid on the franchise or the property of the bank, the same people would pay it in either case. The legislature could have derived the same amount by taxing property as if they taxed the franchise; and to hold, that they were at liberty to do so, of course, renders the-exemption of the franchise worthless. There are two decisions upon similar words: 2 Harrison, 78, 79, 80; .7 Dana, 342.
    True, the banks have heretofore paid taxes upon their real property, but the amount was trifling, and the stock was not taxed as now. Besides, their consent does not furnish a rule by which we are to construe the law.
    It is said, on the other side, that the contract of exemption was made with the b'ank and not the stockholders-; and by the act of 1841 only the latter are taxed. But what is a corporation ? Only the union of certain persons, with power to sue, &c. 4 Peters, 552; Angelí & Ames on Corp. 1, 3, 5.
    The name is only the legislative baptism of the. stockholders. Natural persons are the substratum of the corporation; they receive all its benefits. They pay the taxes, and yet we are told, that a contract for the benefit of the corporation does not reach them. They were the persons who accepted Hie law in a general meeting, and not the bank, actihg- as a corporation. What is the difference between taxing them in the gross and taxing them individually ?-
    As -to the case of Cheston. He is a stockholder of the Farmers’, and' Planters’ Bank, one of w’hat are called the new banks, chartered in 1836. The act of March, 1836, chap. 142, puts these on the same footing with the old banks. The 3d section, it is true, says that the exemption relates only to franchises; but the legislature had no right to deprive, by law, the banks of a benefit which they had already acquired under a contract. . And the words “without violation,” &c., show that the legislature did not intend to take away any such benefit. '
    The tax of 1844 clashes with the exemption. It is laid on every thing which constitutes the property of the bank, because in a schedule every thing, even the franchise, goes to make up the aggregate value of the stock, and the tax is laid on the cash value of the stock. By the 17th section, the assessors are directed to value it at the market price. But the market price is governed by the value of all the different species of property held by the bank, including even the franchise, because a purchaser looks at all these, when about to invest, ft is impossible to separate that portion of the tax which falls upon the franchise, and as the legislature has covered the whole, the entire tax.' must fall.

      Sieekj for the defendants in error,
    contended,
    1. That the contract between the State of Maryland and' the Union Bank- of Maryland, created by the act of. 1821, chap. 131, and continued by-the act of 1834, .chap. 274, exempted from-taxation,. not the property -of said bank,- nor the shares of its stock in.the hands of individual stockholders, but its .corporate franchises, and their exercise during the continuance of its charter.
    2. That- the tax imposed by the act of 1841, chap.. 23, being a tax upoiuthe shares of stock owned by individual stockholders, was not a violation of the cpntract between the state and the bank, and was, therefore, not unconstitutional.
    In the case of James Che'ston, a tax was imposed, and assessed under the same act of 1841, chap.. 23, on the shares of stock owned by the plaintiff in-érror in the Farmers5 and Planters’ Bank of Baltimore — á bank chartered sinee 1830, and not included in the provisions of the aot of 1821, chap-. 131, and the act'of 1834, chap. 274.
    In this case, the cou tsel for the defendant in error contended,
    That the plaintiff in. error was entitled to no immunity from taxation upon his shares of stock in said Farmers’ and Planters’ Bank of Baltimore, either under the acts of Assembly, herein before mentioned, or under the act of 1835, chap. 142.
    Mr. Steele said, the Appeal Tax Court is the nominal defendant only1; the red one is the state of Maryland. The act of 1841, chap. 33, is a generd tax upon-all property; not on banks alone, but every species of property.- The Court of Appedsv decided that it did not conflict with the act of 1821. Is it not a rule that this court will adopt a state’s construction of its own.laws?
    In this case it is not correct to construe the contract favourably to the banks. On the-contrary, the rule is to construe strictly-any provision which imposes a limit upon the taxing power. 4 Peters, 503, Prov. Bank v. Billings. 11 Peters, 546 — 548, carries the rule still further.
    Such a rule is.necessary to protect the community from, improvident legislation. Another rule is, that where there are two' constructions, that one is adopted which will produce, the least injury. It has been said that our construction, exempting franchises only, renders the whole nugatory, because the franchises would -have been safe from taxation without such exemption. But not so. Being the creatures of law, they áre peculiarly appropriate for the táxing power. 4 Wheat. 699; 12 Mass. 252 ; 4 Petprs, 526.
    A charter makes á bank a person to carry on a business; but it must be carried on in the same way that other persons do. Suppose a pre-existing law had taxed banks, would a subsequent charter have been exempt? 'No — because the laws would not conflict with each other. Nor do they conflict when the .charter is passed first. ■
    It has been said that the exemption is clear. But the section’ itself, refers to the preceding part of the law, and the legislature, twice, ’ ■in 1835 and 1841-, put the same construction on it that we do. The 7tji section and all preceding ones provide for an extension of charters. It was right to exempt the franchises, because the legislature was dealing with that subject; but why should 'they go beyond that, and-exempt private property to an extent that they werenot aviare of? The staté was not in want of money, nor was there a motive in the banks to purchase such an exemption as that contended for. No. one then anticipated-'what has since come to pass. Taxes were,,light,', and always paid.. The aet of 1813 contains the same clause, when there did not exist any system of taxation. Up to 1841, the state had never taxed bank stock or chóses m action, and the taxes upon’ real or other property-did not amount to the fourth part of 20 cents.’ A proposition,-therefore, to exempt stock which-had never been taxed at all, upon the payment of four times the amount which other property paid, would have been considéred á strange one. The tax ,of 20 cents must have been imposed upon the franchise. The compensation for extending the charters was that the banks would make the road, and for future, exemption of-the franchise was that they should pay 20 cents towards the school fund. The word “further” means another tax like that one; and if the tax imposed was upon. the franchise, a further one upon the same thing was all-that was intended to be prohibited.
    Look at the cotemporaneous exposition of the law by both parties. County and city taxes were paid by the banks; and. not- only so, but a small state tax, levied in 1822 upon- reál property, was paid by thém also. Other banks were incorporated in 1833,1834, and 1835, which pay the 20 cents,- without any thing being granted except'the charter.’ The act of 1835 gives.the new. banks an exemption upon, the franchise, and nothing more. In the . casé in ,2 Harrison, the words were “further or other taxi” Exemptions have.been strictly construed., 11 Johns. 77; 8 Term R. 416. .The penalty for not paying the-20 cénts, shows upon what the tax was imposed, for it provides that the charter shall cease if the tax is not paid. It was Ítherefore a bonus for the charter. ,Y:
    But suppose that the contract was made as contended for by the other side. By. their own showing, it was made with the bank as a person, and the individual stockholdérs cannbt.avail themselves of it. If the corporation were to purchase a hoúse, one of- the members could not claim an-interest in the purchase. They have an interest -which is distinct from that of the-corporation, because they may-sue it, or sue each other. If the contract here be not to taX the bank, it is not equivalent to an agreem'ent not to tax the stockholders. The difference is shown by. supposing the tax to be laid before the bank commenced operations, and laid afterwards. In the first case, it would diminish the capital of the bank, but in the latter it would not If the individual stockholders can claim the benefit of the exemption, they must also be liable to the state for the payment of the tax which' is the price of the exemption. But if Samuel Gordon were sued for the 20 cents stipulated in the act, no one can suppose that he would be bound to pay it. The difference between taxing banks and stockholders is shown in 1 Nott & McCord, 527; 4 Wheat.-436;' 2 Peters, 459; 2 Bayly, 654, 672, 683. -
    ■ Who pays the tax of 1841 ? If the bank does not, there is no violation of the' contract with the bank, and the bank does not, in fact, pay it.
    As to Cheston’s case and the new banks, it has been said that .they are on the same footing as the old. The best reply to this is to read the law. The legislature expressly say, that they intend to exempt only the franchises.

      Nelson, attorney-general, on same side.
    There are two propositions to be examined:
    1. The nature of .the contract of 1821.
    2. Whether the act of 1821 was in force at'all in 1841.
    1. We admit there was a contract in 1821, and that it is protected by this court. But what is its nature and extent? The original charter of the Union Bank contained no exemption, and, therefore, according to the doctrine in the Providence Bank v. Billings, the state could tax it. The charter was passed in 1804, and contained no clause imposing a school-tax. But'this might have-■been, imposed at any time after the charter, without asking the consent of the bank. The only point upon which the assent of the bank was required, in any subsequent legislation, was that its charter should be continued. It was to expire in 1816. In 1812 an act was passed proposing to extend the charter on certain conditions, but these were not accepted. In 1813 another,. act was passed extending the charter to. 1st January, 1835, which was accepted. <
    (Mr. Nelson here went into a detailed examination of the several acts.) All the acts show that the legislature had in view the making of the road, and the banks -the extension of their charters. The pledge not to incorporate any other banks shows that it was only the franchise which was intended to be protected. The contract was made with the banks as such. They were the contracting party in their corporate capacity. What does the act of 1841 do ? It imposes no tax on the capital' stock of any bank, but on individual interests. No bank is plaintiff in error here, complaining of. a violated contract. The 9th section of the act directs the mode of making the assessment, which was upon the stock in the hands of individuals at its cash value. But this is not the same with its nominal value, which would have been the guide if the bank had been taxed. As laid, it is nothing more than an income tax, and cannot a 'legislature lay that without regard to the source from which revenue comes ? The distinction between a tax upon, a bank, as such, and a tax upon its property, is clearly recognised in the case of McCulloch v State of Maryland, where the court say that .one may be taxed but not the .other. The identity between a bank and its. stockholders is shown not to exjst, when we consider that the bank, as a corporation, could not become one of its own stockholders. Application had to be made to the legislature for permission for-the bank to purchase its'own stock. It is true, as said on the other side,.that the act of 1821 was accepted by the stockholders in general meeting, but this was a corporate act, and not one proceeding from individual interests. If it had been the latter, whence would the majority have derived the right to bind the minority.
    2. The act of 1834, .chap. 274, was accepted by the Union Bank, and by virtue of it the Charter was extended to 1859. The acceptance of this new law is a merger of the old, and in the new there is no limitation of the power to tax.

      Meredith, for plaintiffs in error,
    in reply and conclusion.
    .Let us.inquire,
    1. What was the nature and character of the contract?
    2. Has it been impaired ?
    Mr. Meredith reviewed the charter of the Union Bank and its supplements, and said, that in 1821,. some years before the .charter was to expire, the legislature was desirous of making a road. It was á fact of universal notoriety that turnpike roads were not pro- ■ fitable. Individuals could not be persuaded to subscribe and make this one. . The cost to the Union Bank was $161,000, nearly .ten., per cent.-upon a capital of $1,800,000. It is conceded that for. this the state has relinquished a portion of. the. power of taxation; but then it is said to be only a partial exemption. We agree that .to make out-a total exemption, the language must be so strong, as-to leave no reasonable doubt; and we say it is so., What are the words ? “ Notio impose any further tax or burden on the. banks.” There are'two important words: “ any” and “ further.” What .is the meaning of “any?” In its popular acceptation it would include all kinds of taxes in whatever form they might be- laid. According to lexicographers, the word is of unusual and' indefinite signification. “ Any” tax inust mean “ every tax,” of every nature or description whatsoever.' Then there is the word “further,” which refers to something which has been done before and addi- . tional. The other side wish to limit the meaning to an addition of tire ¡same, nature; but no -dictionary or example can be found to justify this-restriction.

      (Mr. Meredith here read from' Richardson’s Dictionary, title ^Further.) The two words together are as comprehensive as language could.be used. They are quite' as strong as' those used-in 2 Harrison. ' In the act of 1835, when the legislature intended to put the 'new banks upon a footing, with the old, they say “ further or other” in the 3d section. In a preceding section, the worth are the same as those in 182Í, which shows that they were supposed to be equivalent. "The case cited from 11 Johnson, was not that of"a tax; it was an assessment for opening a'street; and the casein 8 T. R. was decided on two grounds: 1. That the property didnot belong to the occupier, and 2, That the statute had been repealed. Neither case .is in point. In South Carolina, seven out of eight banks are exempted' under a clause exempting, banks-from taxation. The case in Nott & McCord -decided that words of exemption did hot extend to the franchise only, but all taxation.
    If the words-of a statute are plain and definite, it is dangerous-to depart, &c. Dwarris on Stát. 3.Law "Lib. 48.
    If the construction of the other side'be given to the'achof 1821, the, 11th section is of no use; because, -without it the franchise would have been safe from taxation. In the cases of 12 Mass, and .4 Peters, the right was maintained, it is true, to impose a tax on •existing banks, but' in neither case was there a relinquishment of the taxing power,^express or implied, except'from the mere granting of the charter. "We. may concede the authority of both.- But here the banks paid'a high p;;ice for their renewed charters, and'the legislature could not have taxed' the franchise any further. If so, the operation of the 11th section must be extended beyond the "franchise.
    ■ (Mr. Meredith then entered-into "a critical examination of the acts of 1812 and 1<?13, and argued that the first act was not accepted," because it .did hot go as far in. protecting the banks as that of 1813; and that the latter would have been" rejected if it had not been sup-pose.d to exempt them entirely from taxation.)
   Mr. Justice. WAYNE

delivered the opinion of the court.

• The. question raised in this case by the agreed statement of facts upon the record, is, Does-the act of Maryland of 1841, chap. 23, so fax as.it .imposes-a tax-upon the shares of stock- held by stockholders 'in the ■ Union Bank of Maryland and the other banks mentioned in the statement, impair the obligation of a contract ?

The banks are classified -in .-that statement as the old and the new banks. The old are those which were chartered previous to the" year 1821; the new, those which were chartered .after the year 1830.

Their exemption from the: tax- imposed by‘the act of 184J is claimed under the acts of Maryland of 1821, chap. 131, and that of the 19th March. 1835, chap. 274, called the act of the session 'of 1834:'

. It is admitted that-the old banks accepted and have complied with the terms and conditions of the act of 1821; .that they also accepted •and have complied with the provisions of the act of 1834; and that taxes have always, since the incorporation of the banks, been assessed and levied upon, their real and personal property in all the cities and counties of the state, in the same manner as upon property, of - the same kind belonging to individuals, and that they have always been paid by the banks up to this time'.

The question, however, which this court is called upon to decide, and to which our decision will be donfined, isj Are the shareholders in the old and the new banks liable to be .taxed, under the act of 1841, on account of the stock which they own in the banks ?' '

. The statement given-by the reporter of the acts of the legislature of Maryland, by which the -charters of the banks have been extended at different times, makes it- unnecessary to refer to them in detail here.

Aré the old banks in Baltimore and their stockholders exempted from further- taxation during the continuance of their charters under the act of 182.1,..chap.-131, by force-of the 11th section of that act? C.an' the old- banks, after the -year 1845, th¡¿ time to which their chan ters'were .extended .by .the act of 1821 j-and.the new banks, claim' any exemption from' taxation under the act of 1834, chap. 274, un-léss-'it be a-tax upon their-franchise .of banking ?

It appears, from-the acts of 1812, 1813, and-1821, th t the legislatures .which passed them had. in view the construction of the Cumberland and Boqnsborough.turnpike roads, and the establishment of a school-fund.- That they designed to accomplish those objects by making some of the banks construct the roads, and all of them contributors to the school fund, as the price for their charters; A round sum, pr-an. annual charge,-with or without reference to capital stock, may be' asked by a legislature for such a-franchise. It may be more convenient-to-the banks to have such a consideration or bonus distributed' through- the years of their, corporate existence, than to- pay its equivalent .in advance. - This option-was given to'the old banks. Being so given, it is conclusive that the legislature intended the annual tax-or charge upon' the capital stocks of the banks to be the bonus, or .price,- or- part of the price as to some of them, that they were .to.pay for the :prolongation of their-franchise of banking. When the banks accepted the acts, by -choosing to pay the annual chárge instead óf the stipulated alternative, it is plain that- they thought so too', and that they understood in- that way the contract between' themselves and the state. Either was a condition, to be. accepted, and complied with befoi e the charters were to be extended, Such a contract is a limitation upon the taxing power of the legislature making it, ¿nd upon .succeeding legislatures, to impose any further tax upon the franchise. • But why, when bought, as it becomes property, may it not be taxed, as land is taxed which has bought from the • state, was repeatedly asked in the course of argument? The reason is, that every one buys land, subject in own apprehension to the great law of necessity, that we must contribute'from it and all of our property, something to maintain, the But a franchise for banking, when bought, the price is paid-the use of the privilege whilst-it lasts, and any tax upon it would substantially be an addition to • the price. ■ But whether the bonus the franchise is paid by an annual tax upon the capital, stock, or any other way, it is in the discretion of die legislature to tax the. capital stock as an aggregate, according to its actual value, or the stockholders on account of their separate ownership of it, Or the dividends in the aggregate, or the- stockholders on account of their portions, of them. The limitation and. the power to tax, as both have' been just expressed, was substantially conceded by counsel .-both side's of this, cause. We- did- not understand the counsel for appellants as contending,-that the.shareholders in. the old banks' rkere exempted' from the tax imposed upon them' on account of their stock,.except by the force of the 11th section of the act of 1821. Their argument was; though the franchise might .be t-axed separate from the stock of a hank, whether the annual tax paid, by the-banks upon their capital stock was a tax upon their franchises or not, that banks were-exempted from further taxation; the. old banks by force of the 11th section of the statute, of 1821’, ;ánd all of .the banks Baltimore by force of the act of 1834. - The argument of jhe counsel for the defendant in error was, that the annual tax paid -by banks was a tax upon-their franchises, and that the-11th section did not give-to the .stockholders any exemption from being taxed as persons- On account of their, stock'. ■ Whether or not the exemption given -by that section is extended to' the- old and the new banks in virtue of the act of 1834, is another question,-to which a separate answer must be given, in the course of this Opinion-.

' Has' such Sn exemption' guage of the 11th section of the act of i 821 "is: “And be it enacted, That, upon any of the afpresai'd banks accepting'and complying with the terms ¿nd conditions of .this act,, the 'faith of the state is hereby pledged not to impose any further tax. or -burden upon them.during the continuance of their charters-under this act.”- This is the Jan-age of grave-deliberation, pledging the. faith of- the-state for some. purpose--some effectual purpose; - Was. that purpose the protection of the banks from what that legislature and succeeding^legislatures could-not do, if the banks accepted the actpor-from what they might do, m-the exercise Of the taxing power ?' --The ternas and conditions of - the act were,- that the banks should construct the road and pay annually a designated -charge upon their capital stocks, as the price for the prolongation of their franchise of banking.’ - The power ofthe-state to lay any-further tax- upon the franchise was exhausted. . That is the contract between the state-and the báhks. It follows, then, as a matter of course, when the legislature go out of. the contract, proposing to pledge its faith, if the banks shall accept the act, nOt to impose any further tax or burden upon them, that it must have meant by.those words an exemption from some.other tax than a further tax upon- the franchise of the banks. The-latter -was already provided-' against. ' To confine the pledge to any further tax upon thé franchise, surrenders thé whole, clause as a substantive enactment, to a supposed needless declaration o'f the legislature, that it would not do What it had stipulated by its contract .not to do.. The faith of states is .never pledged.but for some substantial eñd, within the-,, com-.potency of their legislative power; and It' is not for us to suppose-:that of Maryland was given in tiie -act of 1821, with a less grave intent. “ Not to impose any further- tax or -burden,” when used in. reference to some tax already imposed, means no pther tax besides .that to. which reference is made.- Those words, so usedy cannot-be limited by a refinement upon the etymology of the word “any,”:out of or beyond its. meaning in common discourse, to any like; and the ■ words “ any further tax,” used with relation to.some other tax, will, .by common consentías' it always'hás:been, be intended to- mean .any additional tax besides.that referred to,- aid' not- any further ■like tax. ...

Having determined: “that the clause in question was not meant as n pledge against further' taxation upon the franchises of thé banks, but. that it was a pledge against additional taxation, what is the extent of exemptionxgiven by it, or to what doés -it apply.?- Does it exempt -the respective capital, stocks of the banks, as an aggregate, and-the stockholders from.being taxed as persons on account of their stock ? We think it does-both. The aggregate .could not be taxed,. without its having the same effect upon the.part's, .that ajax-upon the parts,, would have upoh the whole. .Besides, the legislature, in proposing the- térras and conditions of the act, use the word “ banks’-’.' with reference' to the consent or acceptance of the act being'given by the stockholders,' according to a fundamental article of f heir charters: ■ The acceptance of the.act could only be made'by the-stockholders. They .did accept, and the state recognised it as the act of • the stockholders. It could not have been given;or been' recognised ih any other way. ■ True it is, when accepted and recognised, it became a contract with the banks. But' its becoming a. contract with the banks determines of itself nothing. We must look in.what eha-. racter, or by whose assent it was to- become a contradi'with the state, to ascertain the intention of the legislature in making the pledge, “that upon any of'the aforesaid banks accepting of ana complying with the terms and conditions of this act, the faith of the state is here* by pledged not to impose any further tax or burden upon them during-the continuance of their charters'under this act.”

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&*> ft glO CD CD Ph tí P» as-s*^ § § s-i ^ B-crq WfT3'a“ te*1 <3 aj cd hJ-S p ^ ° o'og, * b b «N-p <r p5>3 ^ P CR S' o' s' g,!?5^ tf?í§ a SS«3^ a- • co >-a ^ a* o 'o o ^ 8 Q.'^’g I-1 ° P^ 2 to <e S-' «• p.^ g o 2 > S ° Í3 á < >1 tí CD tí CD P- CD P*»» § ^ P- P p"1 other banks,-by the abt of 1813. The 11th sections in both acts are identical. In what spirit were, those acts offered to the acceptance' of the banks ? In what spirit was it that the banks viewed and accepted these acts? It was an unusual way of providing means for the construction of turnpike roads. The tolls might turn out to be enough to compensate them for the expenditures. They might not. Though the legislature thought the construction of the roads and paying the school-fund tax were no more than an adequate price for an extended franchise, it is very certain that the stockholders may have thought, that the incorporation of the banks into turnpike companies, with an obligation upon them to withdraw so much money from their business operations as was sufficient to finish the-roads, presented only a contingent possibility that they could be remunerated by tolls from the roads. When the act of 1821 was proposed, they had some experience of what had been the result of the construction of the Cumberland road. Is it not possible, then, that when the acts of 1813 and 1821 were in preparation, or as they were being enacted, that the 11th section was introduced as an inducement to the stockholders to accept those -acts ? Whether the tolls from the road have ever compensated the banks for the expenditure upon them, does not appear’- in the case. But it was natural that the stockholders, knowing as they did that a. tax upon-the franchises of the banks would not exempt them from other taxation, stipulated in both instances that-a provision should be introduced into the acts surrendering the state’s right to tax them further than ■they were about to be by those acts. In whatever way we examine the acts of 1813 and 1821, we are of opinion that it appears, from the 11th sections in those.acts, to have, been the intention of the legislatures which, passed them, to exempt the stockholders from taxatión as persons on account of the stock which they owned in the banks. This exemption, however, is limited to the old banks in Baltimore which were chartered before 182.1, during the continuance of their charter under the act of 1821. It is founded upon the 11th section of that act,- and it is our opinion that the act ' of 1841, chap. 23, in so far as it imposes a tax ilpon the stockholders in those banks, on account of their stock, does impair, the obligations ..of a contract, and is void by the 10th section of the 1st article of the Constitution of the United States.

The act of 1834 does not extend to the old or the new banks an exemption from the tax imposed by the act of 1841, chap. 23. It is an act to extend the charters of the several banks in Baltimore. The .second section.prescribes the-terms upon which the franchise for banking is extended. Those terms are the payment annually of twenty per cent, upon every hundred - dollars of the respective capitals of the-banks, and their proportional parts of $75,000, in two yearly instalments, computed from the passage of the act, according to the combined rates of their respective capitals paid in, and of the time for which their charters are respectively continued beyond the first day of January, 1845.

Upon a failure of any bank to pay either the annual charge or its proportional instalment, its charter is declared null and void. • The-annual charge and the instalment malee' the bonus to be paid by each bank for its continued franchise. It was urged for the old and the new banks, that, the annual tax which they were required to pay’ by the second -section of the act óf 1834 being upon their respective ■capitals, a tax -upon the stockholders on account of their stock-would-be equivalent to an increase of the price-which had been given for the franchise. The effect upon the stockholders.would be the same, as they pay both, but that is because they agreed- to pay an annual tax upon the capital stock, for their franchise., without any stipulation by the state that they were not to be taxed as stockholders, on account of their stock, as was the case in the. eleventh section of the act of 1821. The franchise is their corporate, property, which, like any other property, would be taxable,-if a price had not been paid for it, which the legislature accepted, as the consideration for allowing them to use the franchise during the continuance of their charters. '. The capital stock is -another property — corporately associated, for the purppse of banking — but in its parts is the individual property of the stockholders in the-proportions they may own them: Being their individual property, they may-be taxed for it, as they toay for any other property they may own.. This is not Only the case in Maryland. A franchise for banking is in every state of the unión recognised as property. The banking capital attached to the franchise is ánother property, owned in its parts by persons, corporate or natural, for which they are liable to be taxed, as they are for all other property, for the support of government.

We are of opinion that the stockholders in the old banks are exempt from the tax imposed by the act of 1841, chapter 23, during the continuance of their charters under the act of 1821, but that the stockholders in the old and -new banks are liable to be taxed by the act of 1841, or that they can claim no exemption under the act of 1834, by which„their charters were further extended.

The judgment of the Court of Appeals is therefore reversed, and the cause will be remanded, with directions to enter up a judgment for the plaintiff in error.