519

The position of the counsel of the United States in the court below, as we understand it, was substantially this: That the power vested in the federal government to take private property for the public uses of the United States is, in its nature, exclusive, and its exercise by any state is therefore prohibited as completely as though the prohibition were expressed in terms; that the power cannot, therefore, be delegated to the state of Wisconsin; that the ascertainment of the compensation is involved in the exercise of the power as a necessary part of it, inasmuch as there can be no lawful taking until compensation is made; and that the act of congress transferring to the state board and state court the function of ascertaining the value of the property taken and the amount of compensation to be made, is therefore invalid. There is, in this position, an assumption that the ascertainment of the amount of compensation to be made is an essential element of the power of appropriation; but such is not the case. The power to take private property for public uses, generally termed the right of eminent domain, belongs to every independent government. It is an incident of sovereignty, and, as said in Boom Co. v. Patterson, requires no constitutional recognition. 98 U. S. 406. The provision found in the fifth amendment to the federal constitution, and in the constitutions of the several states, for just compensa tion for the property taken, is merely a limitation upon the use of the power. It is no part of the power itself, but a condition upon which the power may be exercised. It is undoubtedly true that the power of appropriating private property to public uses vested in the general government-its right of eminent domain, which Vattel defines to be the right of disposing, in case of necessity and for the public safety, of all the wealth of the country-cannot be transferred to a state any more than its other sovereign attributes; and that, when the use to which the property taken is applied is public, the propriety or expediency of the appropriation cannot be called in question by any other authority. But there is no reason why the compensation to be made may not be ascertained by any appropriate tribunal capable of estimating the value of the property. There is nothing in the nature of the matter to be determined which calls for the establishment of any special tribunal by the appropriating power. The proceeding for the ascertainment of the value of the property and consequent compensation to be made, is merely an inquisition to establish a particular fact as a preliminary to the actual taking; and it may be prosecuted before commissioners or special boards or the courts, with or without the intervention of a jury, as the legislative power may designate. All that is required is that it shall be conducted in some fair and just manner, with opportunity to the owners of the property to present evidence as to its value, and to be heard. thereon. Whether the tribunal shall be created directly by an act of congress, or one already established by the states shall be adopted for the occasion, is a mere matter of legislative discretion. Undoubt

edly it was the purpose of the constitution to establish a general goverment independent of, and in some respects superior to, that of the state governments-one which could enforce its own laws through its own officers and tribunals; and this purpose was accomplished. That government can create all the officers and tribunals required for the execution of its powers. Upon this point there can be no question. Kohl v. U. S. 91 U. S. 367. Yet from the time of its establishment that government has been in the habit of using, with the consent of the states, their officers, tribunals, and institutions as its agents. Their use has not been deemed violative of any principle or as in any manner derogating from the sovereign authority of the federal government; but as a matter of convenience and as tending to a great saving of expense.

The use of the courts of the states in applying the rules of naturalization prescribed by congress, the exercise at one time by state justices of the peace of the power of committing magistrates for violations of federal law, and the use of state penitentiaries for the confinement of convicts under such laws, are instances of the employment of state tribunals and state institutions in the execution of powers of the general government. At different times various duties have been imposed by acts of congress on state tribunals; they have been invested with jurisdiction in civil suits, and over complaints and prosecutions for fines, penalties, and forfeitures arising under laws of the United States. 1 Kent, 400. And though the jurisdiction thus conferred could not be enforced against the consent of the states, yet, when its exercise was not incompatible with state duties, and the states made no objection to it, the decisions rendered by the state tribunals were upheld. Whatever question might arise as to such delegation of authority, we can see none where the inquiry relates to an incidental fact, not involving in its ascertainment the exercise of any sovereign attribute. Almost, if not quite, from the first year of its existence, it has been the practice of the general government, when necessary, to take private property for public uses, to resort to state boards and tribunals to ascertain the value of the property, and hence the compensation to be made. Burt v. Merchants' Ins. Co. 106 Mass. 362. In recent statutes such resort is expressly prescribed. For example, on the third of March, 1879, an act was passed for improving a part of Tennessee river, which provided that, whenever it became necessary to take private property, "the price to be paid shall be determined, and the title and jurisdiction procured, in the manner prescribed by the laws of the state of Alabama." And, on the fourteenth of June, 1880, an act was passed making an appropriation for constructing reservoirs on the head-waters of the Mississippi, with a provision that "injuries occasioned to individuals by the overflow of their lands shall be ascertained and determined by agreement, or in accordance with the laws of Minnesota." These are but examples of many instances of legislation where resort is had to local boards or

tribunals to ascertain particular facts by which the general government may be guided in its action. Whatever assent may be necessary to the validity of the proceedings against the United States, owing to their general immunity from process, is given by such legislation.

The provisions of the act of 1875, with reference to the property overflowed by dams constructed in the improvement of the navigation of Fox and Wisconsin rivers, that the compensation to be made shall be ascertained in the mode and manner prescribed by the laws of the state, and that in any proceedings to ascertain such compensation the interests of the United States shall be represented by the department of justice, constitutes a sufficient waiver of the immunity. The legislation amounts to a consent to such proceedings as the state laws authorize for the condemnation of property in which the United States are interested. In the present case the overflow of the property for which compensation was asked was caused while the property was held by the canal company, before its acquisition, in 1872, by the United States; and the legislation is, in legal effect, little more than a declaration that the United States will pay the compensation which may be awarded by officers of the state in proceedings taken in accordance with its laws. In any aspect in which the legislation can be viewed, we see no objection to it arising out of the independent or sovereign character of the government of the United States. Judgment affirmed.

(109 U. S. 621)

BOARD CO. COM'RS OF THE COUNTY OF CHEROKEE, State of Kansas, v.

WILSON.

(December 17, 1883.)

LAWS OF KANSAS-TOWNSHIP BONDS-FAILURE TO LEVY TAXES-MANDAMUS.

Under the several acts of the legislature of Kansas, providing for the payment of township bonds, the board of county commissioners of any county are not relieved, by a vacancy in the office of township trustee of any township therein, from the duty imposed upon them by the statute of levying and collecting taxes in such township, to meet its bonded indebtedness. The commissioners may be compelled by mandamus to perform their duty.

In error to the Circuit Court of the United States for the District of Kansas.

Wallace Pratt, for plaintiff in error.

Jas. S. Botsford and Jos. Shippen, for defendant in error.

WAITE, C. J. On the eleventh of June, 1881, William C. Wilson, the defendant in error, recovered a judgment in the circuit court of the United States for the district of Kansas, against the township of

Salamanca, Cherokee county, for $48,920.31. At that time the office of trustee of the township was vacant, and it has not been filled since. On the twenty-fourth of July, 1882, Wilson sued out of the same court an alternative writ of mandamus, returnable on the ninth of October, 1882, requiring the board of county commissioners of the county "to forthwith levy upon the "taxable property

in said township a tax sufficient in amount for the payment of the judgment and cause the same to be certified to the county clerk of said county," and requiring the clerk of the county "to extend said tax forthwith on the tax books of said county and deliver the same with said tax so levied and extended thereon to the county treasurer of said county;" and the county treasurer forthwith, after the tax books shall have been delivered to him by the clerk, "to proceed to collect said taxes and pay the same, when so collected, to said William C. Wilson, in payment of said judgment, interest, and costs," or show cause why they had not so done. This writ was served on the individual members of the board of county commissioners, and on the clerk and treasurer of the county, on the twenty-sixth of July. On the twenty-seventh of November, 1882, the respondents filed a motion to quash the writ, and on this motion raised two questions, to-wit: (1) Whether the writ was not sued out prematurely; and, (2) whether, under the statutes of Kansas, the county commissioners could legally do that which the writ sought to coerce them into doing. Before this motion was disposed of, the individual members of the board of county commissioners filed an answer, and, after the testimony was closed, Wilson moved for a peremptory writ. Upon the hearing of this motion and the motion to quash, the judges holding the court were divided in opinion on the following questions: (1) Whether said motions respectively should be sustained or overruled; (2) whether it is the legal duty of the board of county commissioners of Cherokee, under the statutes of the state of Kansas, to levy the tax as commanded by the alternative writ of mandamus herein, for the payment of the judgment of the relator against Salamanca township, in said county, based upon interest coupons detached from bonds issued by said township to pay shares of capital stock in a railroad company, which bonds were voted under the act of the general assembly of the state of Kansas, entitled "An act to enable municipal townships to subscribe for stock in any railroad and to provide payment of the same," approved February 25, 1870, and issued September 1, 1872, under the act of said general assembly, entitled "An act to authorize counties, incorporated cities, and municipal townships to issue bonds for the purpose of building bridges, aiding in the construction of railroads, water-powers, or other works of internal improvement, and providing for the registration of such bonds, and the repeal of all laws in conflict therewith," approved March 2, 1872. The circuit judge was of opinion that the motion to quash should

be overruled, and that for the peremptory writ granted. A judgment awarding the writ was thereupon entered, and the questions as to which the difference of opinion arose were duly certified. The case is now here on a writ of error for an answer to these questions.

The act of February 25, 1870, authorized the township to subscribe to the capital stock of the Memphis, Carthage & Northwestern Railroad Company, and to issue bonds to pay the subscription. That was settled by the judgment against the township, on account of which the mandamus is asked.

Every township in Kansas is a body corporate and politic. Section 1, (5965,) Dassler's Comp. Laws, 977. The trustee is the principal officer of the township, and his duty is, among other things,section 22, (5988,) Dassler's Comp. Laws, 980,-to "superintend all the pecuniary concerns of his township," and, at the July session. of the board of county commissioners, annually, with the advice and consent of the board, to levy a tax on the property of the citizens of the township, for township, road, and other purposes, and report the same to the county clerk for entry on the tax roll, "but, in a failure of such trustee and commissioners to concur, then the board of county commissioners shall levy such township, road, and other taxes." The board of county commissioners are required by law to meet in regular session on the first Monday in July of each year. Section 13, (1397,) Dassler's Comp. Laws, 274. They must also meet on the first Monday in August in each year, to estimate and determine the amount of money to be raised by tax for all county purposes, and all other taxes which they shall be required by law to levy. Section 83, (5886,) Dassler's Comp. Laws, 956. The county clerk must make up the taxlist immediately after the first Monday in August, and deliver it to the treasurer for collection on or before the first Monday in November. Section 84, Dassler's Comp. Laws.

Section 6 of the act of February 25, 1870, under which the bonds involved in this proceeding were issued, is as follows:

"Sec. 6. Whenever any bonds shall be issued in pursuance of the foregoing provision, it shall be the duty of the board of county commissioners annually to proceed to levy and collect a tax on all the taxable property in such township sufficient to pay the interest on such bonds as the same becomes due, and to create a sinking fund sufficient to pay said bonds at maturity; and such tax shall be collected in cash or the coupons of such bonds which may be due; and such tax shall be collected as county and township taxes are collected, and paid out by the treasurer, on presentation of the coupons or bonds, when due; and the county clerk, treasurer, and other officers who may be required to do any act under the foregoing provisions, shall be entitled to the same fees as are allowed by law for similar services, and liable to the same fines and penalties for non-compliance."

The act of March 2, 1872, referred to in the second question certified, was repealed, so far as it affects this case, by the act of March 9, 1874, (Sess. Laws 1874, p. 41,) sections 7 and 13 of which are as follows: