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that the grants made by North Carolina and Tennessee, under which the defendant claimed, were not rightfully made, because they were originally beyond her territorial boundary; and that the grant under which the claimants claim was rightfully made, because it was within the territorial boundary of Virginia.' And again: If the states of North Carolina and Tennessee could not rightfully grant the land in question, and the states of Virginia and Kentucky could, the invalidity of the grants of the former arises, not from any violation of the obligation of the grant, but from an intrinsic defect of title in the states.""

The case of Poole v. Fleeger, 11 Pet. 185, quoted by Chief Justice TANEY, is much to the purpose. The northern boundary of North Carolina (including Tennessee) was fixed by the charter of 1665, and by the constitutions of that state and Virginia, adopted in 1776, on the parallel of 36 deg. 30 min. north latitude. In 1779 an attempted survey of the line was made by commissioners of the two states, who failed to agree; but a line run by Dr. Walker, one of the commissioners, was practically used as the boundary of jurisdiction. It was afterwards found to be too far north by several miles, and a line was run on the true parallel by Prof. Matthews, of Transylvania University. Tennessee laid out her counties, and exercised all sovereign jurisdiction, up to the Walker line, and both North Carolina and Tennessee made grants of land up to that line, and north of the true parallel. On the other hand, Kentucky made grants south of that line, and up to Matthews' line. In 1820, Kentucky and Tennessee agreed to adopt Walker's line as the boundary of the two states; but it was stipulated that all private rights and interests of land between the two lines, theretofore derived from either state, should be considered as rightfully emanating therefrom; but all vacant and unappropriated lands within those limits were declared to belong to Kentucky, and subject to her disposal. No provision was made for cases of conflicting grants of the same land made by Virginia or Kentucky, on one side, and by North Carolina or Tennessee, on the other. The case before the court was one of that kind, the plaintiffs claiming under a Virginia warrant, and a grant made by Kentucky in pursuance thereof in 1796; the defendants claiming the same land under North Carolina grants made in 1786, 1792, 1797, and Tennessee grants of subsequent years; and the lands in controversy being situated between the two lines before mentioned. This court held that the parallel of 36 deg. 30 min. was always the true line until altered by agreement of the two states in 1820; and that the grants made by North Carolina and Tennessee north of that line were void; and that the Virginia and Kentucky grants were good, notwithstanding the actual occupation of the disputed territory by Tennessee. The adoption of Walker's line in 1820 was held to have changed the true and original boundary only for the purpose of future jurisdiction. Evidence of the previous exercise of jurisdiction by Tennessee up to Walker's line was not allowed to affect the question of title, although the defendants proved that North Carolina and Tennessee had claimed to Walker's line as the true line from the time it was run to the time of the treaty or agreement of 1820; that the county lines of Tennessee were Walker's line on the north; that in her legislative, judicial, and military capacity Tennessee always claimed possession and acted up to said line as the northern boundary of the state; that process was executed, criminal acts were punished, taxes were paid, militia was enrolled, and all other acts done in subordination to the laws and government of Tennessee up to that line; and corresponding jurisdiction was exercised by Kentucky to the same line on the other side.

Here was a case of mistaken boundary, and when the error was discovered the states concerned agreed to adopt it as the permanent political boundary for the future; conceding, on both sides, that it was not the true original boundary. Mr. Justice STORY, delivering the opinion of the court, said: "Although, in the compact, Walker's line is agreed to be in future the bound

ary between the two states, it is not so established as having been for the past the true and rightful boundary; on the contrary, the compact admits the fact to be the other way. While the compact cedes to Tennessee the jurisdiction up to Walker's line, it cedes to Kentucky all the unappropriated lands north of the latitude of 36° 30' north." Then, after further remarks of the same purport, follows the passage quoted by Chief Justice TANEY, to the effect that the grants of North Carolina and Tennessee were not rightfully made, because they were originally beyond their territorial boundary.

The case of Poole v. Fleeger covers the case now under consideration. It was a case of disputed boundary, and Tennessee exercised sovereign jurisdiction de facto up to a certain line, (Walker's,) which she claimed to be the true boundary line, and made grants of land to that line, just as Georgia did in the present case to Watson's line. Walker's line, like Watson's, was found not to be the true line, and the grants made by Tennessee were found to be for lands in territory belonging to Kentucky; just as the grants of Georgia, next to Watson's line, were found to be for lands in the territory belonging to the United States and Florida. This court decided that the Tennessee grants were void, notwithstanding the exercise of sovereign jurisdiction de facto by that state over the territory in dispute when the grants were made. If that decision was correct, the grant made by Georgia of the land in controversy must be held to be invalid for the same reason. The only difference between the cases is that Kentucky and Tennessee adopted the erroneous line as their permanent boundary, though recognizing the fact that it was not the true original line; while, in the present case, Georgia and Florida adopted the nearest practical approach to the true line as their permanent boundary. This difference does not affect the question, except to make the present case the stronger of the two.

The only authority cited by the supreme court of Florida for the proposition that a government de facto can make a valid grant is a dictum of Mr. Justice BALDWIN, in delivering the opinion of the court in the case of Rhode Island v. Massachusetts, 12 Pet. 748. The question there was whether the people whose lands would be affected by the change of state line involved in that case ought to be made parties to the suit. Justice BALDWIN says: "It is said that the people inhabiting the disputed territory ought to be made parties, as their rights are affected. It might with the same reason be objected that a treaty or compact settling boundary required the assent of the people to make it valid, and that a decree under the ninth article of confederation was void, as the authority to make it was derived from the legislative power only. The same objection was overruled in Penn v. Baltimore; and in Poole v. Fleeger, this court declared that an agreement between states, consented to by congress, bound the citizens of each state." Thus far, the reasoning of the court was unanswerable. Settlements of boundary_belong to the sovereign power, and cannot be questioned by individuals. But the learned justice proceeds to lay down what he supposes to be two principles of the law of nations, which were entirely unnecessary to the decision of the question of parties which he was considering. He says: "There are two principles of the law of nations which would protect them [private citizens] in their property: (1) That grants by a government de facto, of parts of a disputed territory in its possession, are valid against the state which had the right, (12 Wheat. 600, 601;) (2) that when a territory is acquired by treaty, session, or even conquest, the rights of the inhabitants to property are respected and sacre 1, (8 Wheat. 589,)" etc. This is the passage quoted and relied on by the supreme court of Florida. The second of these propositions is in accordance with what we have already stated to be the received rule of international law; but the first is opposed to the cases which we have already cited in relation to Spanish grants in Mississippi and West Florida, and to the case of Poole v. Fleeger. As to the authority referred to, (12 Wheat. 600, 601,) it

is a mere dictum of Mr. Justice TRIMBLE in De la Croix v. Chamberlain, clearly inconsistent with the decision made at the same term in Henderson v. Poindexter's Lessee, and with all the subsequent decisions above referred to; and as Mr. Justice CATRON, in a manuscript note upon this part of Justice BALDWIN's opinion, justly remarks: "No such question was raised in that case, and Poole v. Fleeger is certainly to the contrary."

We think that the decision of the supreme court of Florida is erroneous in deciding against the title of the plaintiff in error. That title is claimed under a grant from the United States of land acquired by treaty with Spain, identified as such by the former treaty of limits, and the proceedings of the commissioners appointed to carry out that treaty. The decision of the supreme court of Florida, in effect, is, either that the land was not embraced in the treaty of cession, or, if it was, that the possession of Georgia gave a superior right. We think it clear that the land was embraced in the treaty, and that the possession of Georgia did not give a superior right. The judgment is therefore reversed, and the cause remanded, with instructions to proceed according to law, in conformity with this opinion.

A point was made in the brief of counsel for defendants in error which was not raised in the courts below, and cannot, as now presented, be properly passed upon by us; namely, that the register had no power under the state law to make the bargain with McCall and Stripling for the sale of the land at the time he issued his certificate to them. This is a question of state law, and involves an issue of fact, and, if deemed important, may be raised on a new trial of the cause, which will necessarily be awarded as a consequence of the reversal of the judgment.

Judgment reversed.

UNITED STATES v. STATE OF LOUISIANA.

(October 24, 1887.)

1. CLAIMS AGAINST UNITED STATES-ACTION BY STATE AGAINST UNITED STATES. The court of claims has jurisdiction of an action by a state against the United States for a demand arising upon an act of congress.

2. SAME-CLAIM OF STATE-LIMITATION.

The action of a state in the court of claims to recover moneys received by the United States from sales of swamp lands granted to the state by the act of September 28, 1850, is not barred by the statute of limitations until six years after the amount is ascertained from proots of the sales, before the commissioner of the general land-office.

3. TAXATION-FEDERAL DIRECT TAX-LIABILITY OF SWAMP LANDS.

The direct tax laid by the act of August 5, 1861, did not create any liability on the part of the states, in which the lands taxed were situated, to pay the tax. (Syllabus by the Court.)

Appeal from the Court of Claims.

Atty. Gen. Garland, for appellant. Wm. E. Earle, for appellee.

FIELD, J. This action was brought in the court of claims by the state of Louisiana against the United States, to recover two demands, amounting in the aggregate to the sum of $71,385.83. The first of these demands arises upon the act of congress of February 20, 1811, "to enable the people of the territory of Orleans to form a constitution and state government," the fifth section of which declared that 5 per cent. of the net proceeds of the sales of lands of the United States, within her limits, after the first day of January next ensuing, should be applied to laying out and constructing public roads and levees in the state, as its legislature might direct. 2 St. 641, c. 21. Pursuant to the authority thus conferred, the people of the territory of Orleans, represented in a convention called for that purpose, formed themselves into a state, by the name of Louisiana, and adopted a constitution unv.8s.c.-2

der which the state was admitted into the Union. The 5 per cent. of the net proceeds of sales of lands of the United States, made between July 1, 1882, and June 30, 1886, and due to the state by the United States, as found by the commissioner of the general land-office, amounted to $47,530.79. The second of these demands arises upon the act of congress of September 28, 1850, "to enable the state of Arkansas and other states to reclaim the swamp lands within their limits," (9 St. 519, c. 84,) and the act of March 2, 1855, "for the relief of purchasers and locators of swamp and overflowed lands," (10 St. 634, c. 147.) The act of September 28, 1850, granted to the states then in the Union all the swamp and overflowed lands, made unfit thereby for cultivation, within their limits, which at the time remained unsold. The second section made it the duty of the secretary of the interior, as soon as practicable after the passage of the act, to prepare a list of the lands described, and transmit the same to the governor of the state, and at his request to cause a patent to be issued therefor. It would seem that this duty was not discharged; and, notwithstanding the grant was one in præsenti, many of the lands falling within the designation of swamp and overflowed lands were sold to other parties by the United States. The act of March 2, 1855, was designed to correct, among other things, the wrong thus done to the state. It provided that, upon due proof of such sales, by the authorized agent of the state, before the commissioner of the general land-office, the purchase money of the lands should be paid over to the state. Such proof was not made, but equivalent proof was submitted to the commissioner as to the character of the lands from the field-notes of the surveyor general of the state. This mode of proof was accepted by the commissioner in other cases as early as 1850. The amount found in this way by the commissioner on the thirtieth of June. 1885, to be due to the state from the United States, on account of sales of swamp lands to individuals, made prior to March 3, 1857, was $23,855.04.

It does not appear that there was any serious contest in the court of claims, either as to the validity or the amount of these demands; but it was objected that the demand arising upon the acts of September 28, 1850, and of March 2, 1855, was barred by the statute of limitations, and that both demands were set off by the unpaid balance of the direct tax levied under the act of August 5, 1861, (12 St. 292,) which was apportioned to the state of Louisiana. The first comptroller of the treasury had at different times previous to the commencement of this action admitted and certified that the sums claimed were due to the state on account of the 5 per cent. net proceeds of sales of the public lands, and on account of sales of swamp lands within the state purchased by individuals; but had directed the amounts to be credited to the state on account upon the claim of the United States against her for the unpaid portion of the direct tax mentioned.

It was also objected in the court of claims, and the objection is renewed here, that that court had no jurisdiction, under the constitution and laws of the United States, to hear and determine a cause in which the state is a party in a suit against the United States. This objection, therefore, must first be examined; for, if well taken, it will be unnecessary to consider the other questions presented.

The constitution declares that "the judicial power of the United States shall be vested in one supreme court, and such inferior courts as congress may from time to time ordain and establish;" and "that the judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the United States, and treaties made or which shall be made under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state claiming lands under grants

of different states; and between a state, or the citizens thereof, and foreign states, citizens, or subjects." This clause was modified by the eleventh amendment, declaring that "the judicial power shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state."

As thus modified, the clause prescribes the limits of the judicial power of the courts of the United States. The action before us, being one in which the United States have consented to be sued, falls within those designated to which the judicial power extends; for, as already stated, both of the demands in controversy arise under laws of the United States. Congress has brought it within the jurisdiction of the court of claims by the express terms of the statute defining the powers of that tribunal, unless the fact that a state is the petitioner draws it within the original jurisdiction of the supreme court. The same article of the constitution which defines the extent of the judicial power of the courts of the United States declares that "in all cases affecting ambassadors, other public ministers, and consuls, and those in which a state shall be a party, the supreme court shall have original jurisdiction; in all the other cases the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the congress shall make." Although the original jurisdiction of the supreme court where a state is a party, as thus appears, is not in terms made exclusive, there were some differences of opinion among the earlier judges of this court whether this exclusive character did not follow from a proper construction of the article. In a recent case (Ames v. Kansas, 111 U. S. 449, 4 Supt. Ct. Rep. 437,) this question was very fully examined, and the conclusion reached that the original jurisdiction of the supreme court, in cases where a state is a party, is not made exclusive by the constitution, and that it is competent for congress to authorize suits by a state to be brought in the inferior courts of the United States. In that case, it is true, the action was commenced by the state in one of her own courts, and, on motion of the defendant, was removed to the circuit court of the United States, and the question was as to the validity of this removal. The case having arisen under the laws of the United States, it was one of the class which could be thus removed, if the circuit court could take jurisdiction of an action in which the state was a party. It was held that the circuit court could take jurisdiction of an action of that character, and the removal was sustained. The judiciary act of 1789, it is true, declares that "the supreme court shall have exclusive jurisdiction of all controversies of a civil nature where a state is a party, except between a state and its citizens, or between a state and citizens of other states, or aliens, in which latter cases it shall have original, but not exclusive, jurisdiction." This clause, however, cannot have any application to suits against the United States, for such suits were not then authorized by any law of congress. There could, then, be no controversies of a civil nature against the United States cognizable by any court where a state was a party. The act of March 2, 1875, in extending the jurisdiction of the circuit court to all cases arising under the constitution or laws of the United States, does not exclude any parties from being plaintiffs. Whether the state could thereafter prosecute the United States upon any demand in the circuit court or the court of claims depended only upon the consent of the United States, they not being amenable to suit except by such consent. Having consented to be sued in the court of claims upon any claim founded upon a law of congress, there is no more reason why the jurisdiction of the court should not be exercised when a state is a party than when a private person is the suitor. The statute makes no exception of this kind, and, this court can create none.

The statute of limitations does not seem to us to have any application to the demand arising upon the swamp-land acts. The act of 1850 contemplates

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