United States v. Gear. 3 H. lead mines are not named in the section as authorized to be sold, but they are not reserved from sale by it, and the authority to sell all other lands not reserved in the section necessarily includes them. Now how are these two laws to stand together. The one reserves the lands for the future disposal of congress, and the other disposes of them. Can effect be given to both of these laws? Can we say that this repugnancy does not necessarily repeal the act of 1807? A negative answer to this inquiry would add, as I think, a new principle to the construction of statutes. Instead of fol lowing the rule on this subject which is obvious, sensible, and just, we should involve ourselves in the mysteries and uncertainties of the alchemist. It is said congress did not intend to dispose of the lead mines and the lands adjacent thereto by the act in question. To this I answer, that I have no other mode of ascertaining the intention of congress except by the plain and unequivocal language which they have used in the solemn form of law. Whether the lead mines were valuable or not, is not a matter of any importance in regard to a right construction of the act. We cannot go out of the law to ascertain what is meant by it. If it were proper to investigate the policy of reserving lead mines, salt springs, and mill seats, for the benefit of the United States, it would not be difficult to show that they had not been a source of revenue to the United States. In most instances, it is believed, if not in all, the expenses of superintendencies have absorbed the profits. The case of Brown and Wife v. Clements et al., decided at the present term, 3 How. 650, has a strong bearing upon the principles involved in this case. It is contended that the main point in this case was decided in Wilcox v. Jackson, 13 Pet. 509. In my judgment, that decision has no bearing on the present question. Beaubean in that case set up a preemption right to the tract of land in controversy, having obtained from the register and receiver of the proper land-office a certificate sanctioning his right. But the government showed that the land had been reserved for a military post in 1804, and was occupied as such until, in 1812, during the late war, the fort was taken by the enemy and the troops were massacred. It was reoccupied in 1816, and from that time the government continued to occupy it for a military post, as a trading establishment with the Indians, and also for a light-house, which had been built upon the ground at an expenditure of $5,000. This possession was continued by the government up to the time the preemption was claimed. But in addition to these facts, the 4th section of the act United States v. Gear. 3 H. of 1834 specially reserved from sale such places "as the President shall deem necessary for military posts." So that here was not only an express reservation of the land from sale, in the above section, but a reservation in fact was shown of more than thirty years, and a continued possession by the government. Now, is there any similarity, as to the legal points, in the two cases? I can see none. It is true that Mr. Justice Barbour says: "We do not consider this law, (the act of 26th of June, 1834,) as applying at all to the case. That has relation to a sale of lands in the manner prescribed by general law at public auction, whilst the claim to the land in question is founded on a right of preemption, and governed by different laws. The very act of the 19th of June, 1834, under which this claim is made, was passed but one week before the one of which we are now speaking, thus showing that the provisions of the one were not intended to have any effect upon the subject-matter on which the other operated. But we go further, and say, that whensoever a tract of land shall have been once legally appropriated to any purpose, from that moment the land appropriated becomes severed from the mass of public lands; and that no subsequent law, or proclamation, or sale, would be construed to embrace it, or to operate upon it, although no reservation were made of it." But one of the points above stated was necessary to a decision of the case. The tract in question was reserved for a military post; and such reserves, by the 4th section of the act of 26th of June, 1834, were excepted from the lands to be sold. Now, the reservation was fully proved by the evidence, and that, under the above section, ended the controversy. The remark, that the above act had no application to the case, was correct in the sense only that it had no application to affect injuriously the title of the government, and that, it is presumed, was the sense in which it was used by the judge. It is strictly true, as stated, that the preemption right set up was assumed to be derived under a different law. But the statement, that the above act of 26th of June, 1834, could have no effect upon the Preemption Act which was passed on the 19th of the same. month, was not in the case, was unauthorized, and is wholly unsustainable. It was not in the case, because the 4th section of the act of the 26th did reserve the land. No court can deliberately say, that an act which is wholly repugnant to a preceding act, does not repeal it. And it can be of no importance whether the preceding act had been passed seven days or seven years before the last act; the effect is the same. There can be no doubt, that when a tract of land is appro Gordon v. Appeal Tax Court. 3 H. priated for a military post, or for any other permanent object, it becomes separated from the mass of the public lands, and need not be specially reserved in the President's proclamation for the sale of lands in the same district. And the illustration of Mr. Justice Barbour shows his meaning." Thus, in the act of 26th June, 1834," he says, "there is expressly reserved from sale the land granted to individuals and the State of Illinois." "If such lands were sold," says the judge, "could the purchasers hold them? Certainly they could not. Having been previously granted by the United States, the second grant would be void." But what is the case now under consideration? There was no appropriation of the lead mines, of a permanent character, which separated them from the mass of the public lands. "They were reserved for the future disposal, by the United States." And, as has been shown, the act of the 26th June, 1834, authorized the President to sell them. This, then, if there be any meaning in language, was a disposal of them within the act of 1807, by which they were reserved. There seems to be an impression that preëmption rights are without merit, and that the acts under which they arise should receive a strict construction. In my judgment, the acts granting these rights are remedial in their nature and policy, and should be so construed as to effectuate the intention of congress. It is a right arising under the statute, and must, of course, be brought within it. But the policy of the statute was a benign one, and it was founded upon a meritorious consideration. That legislation which tends to make every citizen a freeholder, cannot be unwise or impolitic. This opinion has been submitted to Mr. Justice Story, and Mr. Justice M'Kinley, who have authorized me to say that it coincides with their own views on the subject. 11 H. 229. 3h 1331 lb 446 8w3438 13*2376 SAMUEL GORDON, Plaintiff in Error, v. THE APPEAL TAX COURT. 3 H. 133. 4wa 259 Where the legislature of a State accepted from banking corporations a bonus, as a consideration for the franchise granted, and pledged the faith of the State "not to impose any further tax or burden upon them, during the continuance of their charters under this act," -Held, that a tax upon the stockholders, by reason of their stock, was a violation of this contract, and the tax was illegal. 21a498 95 687 95 694 115 665 116 328 But the exemption lasted only during the continuance of the charters under that act; and when extended without any such promise, the power to tax revived. Gordon v. Appeal Tax Court. 3 H. ERROR to the court of appeals of the State of Maryland. In 1841, the legislature of Maryland passed a tax law, which, among other things, directed that "all stocks or shares, owned by residents of this State, in any bank incorporated by this State," should be assessed. It was alleged, in the first case, that this act impaired the obligation of a contract made by the State, by an act passed in 1821, which, after reciting that it is the interest of the State to have a turnpike road, which is therein described, and that certain banks are willing to make the same if their charters can be extended, incorporates a company to make the road, extends the charters of the banks upon condition of their subscribing to the necessary stock, in proportion to their respective capitals, provides that the banks shall annually pay, to the treasurer of the State, twenty cents on every hundred dollars of capital paid in; and, then, in the 11th section, the terms of which are given in the opinion of the court, makes the promise relied on by the plaintiff, Gordon. The 12th section enabled the banks to commute the annual tax by paying a round sum. It was agreed, the bank in which Gordon held stock, complied with the conditions prescribed by this act. In the other case, the banks in which the plaintiff, Cheston, held stock, having been incorporated after the act of 1821, and also the charters of the other banks having been extended, the benefit of the contract, made by that law of 1821, was claimed by virtue of an act passed in December, 1834, * to "extend the char- [* 136 ] ters of several banks in the city of Baltimore," by which, amongst other enactments, the charter 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. *The court of appeals decided that the tax imposed by [* 137 ] 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. *WAYNE, J., delivered the opinion of the court. [* 144 ] The question raised in this case by the agreed statement of facts upon the record, is: Does the act of Maryland of 1841, c. 23, so Gordon v. Appeal Tax Court. 3 H. far 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 1841 is claimed under the acts of Maryland of 1821, c. 131, and that of the 19th March, 1835, c. 274, called the act of the session of 1834. [* 145] *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 confined, is, 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. Are the old banks in Baltimore and their stockholders exempted from further taxation during the continuance of their charters under the act of 1821, c. 131, by force of the 11th section of that act? Can the old banks, after the year 1845, the time to which their charters were extended by the act of 1821, and the new banks, claim any exemption from taxation under the act of 1834, c. 274, unless it be a tax upon their franchise of banking? It appears, from the acts of 1812, 1813, and 1821, that the legis latures, which passed them, had in view the construction of the Cumberland and Boonsborough 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, or 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 |