By the Court,
Cole, J.
Tbe leading question which we have to consider in this case is, had the respondent, at the time the land mentioned in the pleadings was taxed, an interest or estate therein, which was liable to taxation by the laws of this state ? This is understood to be a question of considerable public interest, on account of its bearing upon the legality of a large amount of taxes which have been levied upon lands similarly situated, in counties lying along the line of the Fox and Wisconsin improvement.
The tract is a part of one of the even sections, within the limits of the grant made by congress to the state, by the act of August 8th, 1846. It is well known that the governor, upon the acceptance of the grant by the state, and in its behalf, selected, under the provisions of the act, the unsold lands in the odd numbered sections within the limits of the grant, as those which the state would take under the act aforesaid, and that this selection was approved by the general government. In June, 1849,' the governor also, under the act approved March 2d, 1849, (9 U. S. S. at large, p. 352,) which authorized him to select the same quantity of other lands, in lieu of the odd numbered sections which had been sold by the United States subsequent to the act of 1846, selected, among other lands, the tract mentioned in the complaint in this case. The next legislation by congress upon the subject, was the passage of the law of June 9th, 1858, (11 U. S. S. at large, p. 313,) the first .section of which declared, “ that so much of the even numbered sections of land selected by the state of Wisconsin in the month of June, in the year eighteen hundred and forty-nine, to satisfy the quantity of land due said state under the act of congress of August, eighteen hundred and forty-six, granting land in aid of the improvement of the Fox and Wisconsin rivers, as have been sold or contracted to be sold, by said state or its assigns, under the laws thereof, are hereby confirmed to said state as [35]*35parts of said grant, and the title of the purchasers declared to be valid, as though the said selections had been made conformity with law; provided,” &c.
On the 25th of December, 1854, the respondent applied to the Eox and Wisconsin Kiver Improvement Company, to which the state had assigned its interest in the grant, to purchase the tract at $1.25 per acre, by virtue of a settlement in his own right, made on said land in the year 1849, proved up his right to the same according to the provisions of the charter of the company, and to the satisfaction of the officers thereof, paid the company two hundred dollars, and took a duplicate receipt, and after the passage of the act of June, 1858, received a deed of the land from the company. The land was assessed for taxes for 1855, and .was forfeited, and the complaint was filed to set aside the tax certificates given upon the sale, as constituting a cloud upon the title, and to restrain the officer from giving a tax deed, &c.
The ground upon which the respondent relies to sustain his complaint is, that the land was not rightfully subject'to taxation in 1855, nor until after the passage of the act of 1858, since, up to that time, the title to the same was in the United States. We think this position unsound, and that it cannot be successfully maintained. Sections 1 and'2 of c'hap. 15, B.. S., read: “All property, real and personal, within this state, not expressly exempted therefrom, shall be subject to taxation in the manner provided by law.
“ Eeal property shall, for the purposes of taxation, be construed to include the land itself, and all buildings, fixtures and other improvements thereon, and all mines, minerals, quarries and fossils in and under the same; and the terms ‘land’ and ‘real estate,’ when used in 'this chapter, shall be construed, as having the same meaning as the term ‘ real property.’ ”
Had the respondent such an interest or estate in the land in 1855, as to be subject to taxation within the intent and meaning of these provisions of law? That he himself believed that he had, at that time, some valuable beneficial interest in the land, his conduct in reference to the same most conclusively shows. Else why did he prove his settlement [36]*36upon this land in 1849, and claim the right to purchase the same of the company at $1.25 per acre? Why did he give the improvement company two bundled dollars, and take a receipt which read that this sum was in “ full for the northeast quarter section No. 30, township 21 north, of range No. 17 east, containing 160 acres — hundredths, at the rate •of $1,25 per acre, subject to any valid right of pre-emption?” Does this not show that he then supposed he was bargaining for some valuable interest in that property ? Does it hot show that he in fact purchased all the interest of the company in the same, whatever that interest was, legal or equitable, inchoate or perfect ? There is but one answer to be given to these interrogatories. The respondent unquestionably then supposed that he was securing, or had secured, some valuable right or interest in the quarter section. Was he mistaken in this idea? We think not. Undoubtedly he then had but an inchoate and imperfect title. The perfect legal title, the fee, had not passed out of the United States. But that he had a valuable present right and interest in the land, an interest that the laws of the state recognized and protected, an interest that congress subsequently confirmed and made absolute, by declaring the respondents’ title thereto “ to be valid as though the said selections .had been made in conformity to law,” cannot be denied. Was this interest or estate subject to taxation? In other words, was it “ real property,” “ land,” “ real estate,” within the meaning of sections one and two of chapter 15 ? If so, the legislature has declared it subject to taxation, unless expressly exempted therefrom.
Section 9 of the chapter which prescribes the rules to be ■observed in the construction of statutes, unless such construction would be inconsistent with the manifest intent of the legislature, reads as follows: “ The words ‘ land’ or 1 lands,’ and the words ‘ real estate’ and ‘ real property,’ shall be construed to include lands, tenements and hereditaments, and all rights thereto and interest therein.” Ohap. 4, R. S., 1850. The words “real property,” “land,” “real estate,” as used in sections one and two of chapter 15, it is clear, were intended to have the same sense and meaning as it is declared in sec. ¡9, chap 4, these words shall be construed and deemed to have. [37]*37That the respondent had a right to this tract of land assessed for taxes, and an interest therein, is, we think, most demonstrably clear and certain.
The circuit court held, because the legal title to the land was in the United States at and before the assessment and laying of the tax, that therefore the state could not rightfully impose any tax upon it. We have assumed all along that the fee did not pass out of the United States until the passage of the act of June, 1858, and such we think was the case. But it by no means follows that the state did not acquire a right to and an interest in this land, when the governor selected it under and by virtue of the act of March 2d, 1849. The governor was authorized by that act to select the same quantity of other lands to make up for the deficiency in the amount due the state by the act of 1846. He selected this tract. His selections were, however, subject to the approval of the President. For some reason, the President did not approve of his selections. If he had, the grant would have become operative, and the title in fee would have vested in the state. In 1858 congress did away with the necessity for this approval of the President, by confirming the title to these selections, in the state, or in the purchasers from the state.
But it was insisted by the counsel for the respondent, that the state, or the improvement company, or1 its assigns, acquired no right or title whatever to the lands selected by the governor, until the passage of the act of 1858; and that the right and title to these lands remained perfect in the general government up to that time. This, however, we deem an erroneous view of the effect of the legislation of congress upon this subject, and an entire misapprehension of the intent and object of the act of 1858. For clearly, that act goes upon the assumption, that some right dr interest in such lands had been acquired by the state, and sold, or contracted to be sold, by’said state or its assigns, and then proceeds to confirm that right, and declare the title of the purchasers valid. The title thus confirmed related back to the selections of 1849. It appears to us that this is the true and correct construction of the act of 1858.
[38]*38But again, is it true that tbe state cannot impose a tax upon any land while tbe fee to tbe. same is in tbe United States ? It is conceded that so long as tbe land remains a part of tbe public .domain of tbe general government, it is not subject to taxation. For if tbe state would otherwise bave bad tbe right to impose a tax upon land, tbe property of tbe United States, this right is expressly relinquished by sec. 2, art. 2, of tbe constitution. But bow is it with respect to. lands purchased by an individual of tbe general government? Are they not subject to taxatiob in this state until tbe patent issues ? As a general rule, as soon as tbe public land is purchased and paid for, it becomes tbe property of tbe purchaser, and is sold and conveyed before it is patented. Tbe receiver’s receipt, or certificate of purchase, is made evidence of title'by statute. Now, if tbe land is not liable to be taxed until tbe fee passes out of tbe general government, and becomes vested in tbe purchaser, tbe owner only needs to neglect or avoid calling for tbe patent, and be may thus, through all time, avoid tbe payment of taxes. In tbe absence of all authority upon tbe question, I should be slow in adopting such a conclusion, but tbe following cases show that this is not tbe law: Carroll vs. Safford, 3 How. U. S., 441; Astrom vs. Hammond, 3 McLean, 107; Carroll vs. Perry, 4 id., 25; Gwynne vs. Niswanger, 15 Ohio R., 367.
But it was further insisted that tbe legislature, by tbe memorial to congress, approved March 1st, 1854, expressly declared that tbe land was not subject to taxation, and it is contended that this declaration is conclusive upon tbe question. Had tbe legislature attempted to give a construction to chapter 15, R. S., 1850, and to determine what property by that layi was subject to taxation, such construction might bave been entitled to some consideration; but this it did not do. Tbe attention of tbe members of tbe legislature was probably not generally called to tbe language of that memorial, and when we consider tbe manner in which such tilings are passed, it is not too much to say, that they are not entitled to any weight with a court upon a question of this nature. - Certainly tbe expression in that memorial, that tbe lands therein referred to “ are not subject to taxation for any [39]*39purpose whatever,” cannot be binding upon our judgment, when we are clearly of the opinion that the law is
These observations, it is believed, sufficiently dispose of all questions necessary to be noticed.
The judgment of the circuit court must be reversed, and the cause remanded for further proceedings in accordance with this decision.
Dixoisr, C. J.
The majority of the court concede that the legal title to the land in question, was, at the time of the supposed levy and assessment of the tax, in the government of the United States, but they say that it was affected by an interest or trust in favor of the respondent, which made it taxable. How that interest or trust arose, or what was its exact nature or extent, is not very clearly and accurately explained. It is also conceded, as I understand the opinion, that if the title was at that time unaffected by any such interest or trust, then the land could' not have been taxed. This, in my judgment, was its precise condition, and, therefore, I think the levy and assessment were void.
It is not claimed that any title or interest in the even numbered sections passed to the state by virtue of the act of August 8th, 1846, and of the selection made by the governor under its provisions. By the express language of the grant, the alternate sections were reserved to the United States, and after the governor had selected the odd-numbered sections, the title to the even-numbered ones, of which the land in question was a part, became, so far as that act was concerned, unalterably fixed in them. There can, therefore, be no doubt that the United States remained the absolute and unqualified owner down to the passage of the act of March 2d, 1849. That act assumed not only this absolute and unqualified ownership, but also the right of the United States to confirm entries of the odd-numbered sections, made subsequent to the passage of the act above referred to. It reads: “ That all land entries made in the Green Bay land district, in the State of Wisconsin, upon the odd-numbered sections of the Fox and Wisconsin Biver reservation, in said [40]*40state, subsequent- to tbe passage of an act entitled ‘ An act to grant a certain quantity of land to aid in tbe improvement of tbe Eox and Wisconsin Rivers, and connect the same by canal, in tbe Territory of Wisconsin,’ approved on tbe eighth day of August, eighteen hundred and forty-six, be, and tbe same are hereby declared to be good and valid as though said act had not been passed: Provided, nevertheless, that the governor of said state is hereby authorized to select the same quantity of other lands in lieu thereof; subject, however, to the approval of the President of the United States.”
The object of its enactment was twofold — to establish the titles of settlers, who had made entries of the odd-numbered sections, and to provide a method for supplying the deficiency thus occasioned, by selections to be made elsewhere. The power of the governor, under the previous act, having been already exhausted by a choice of alternate sections, according to its terms, it was considered, and no doubt correctly, that without this further authority, he could not select elsewhere, and thus the grant would remain in part unexe-cuted. This authority was, however, expressly made subject to the approval of the President. The act of approval was voluntary. The President could give or withhold his assent at his pleasure; and if he refused, there was no power to compel him. The grant itself being in the nature of a mere gratuity or gift, and the United States the granting power, it is clear that congress could impose such conditions and restrictions as to its effect, and the manner of its execution, as it ■ saw fit. One of those conditions was, that the President should approve the selections to be made by the governor. Both selection and approval were made necessary to give the state a vested interest in any specific tract of land. Without either, the grant was, as yet, unexecuted; and there would, in my opinion, be as much propriety in saying that a specific interest in the land in question passed to the state, and through the state to the improvement company, without selection, as without approval.
The question here presented differs from that decided by this court, under the original act, in the case of Veeder vs. [41]*41Guppey, 3 Wis., 502. Under that act, the interest of the state was fixed and certain. The quantity of land to which the state was entitled, as compared with the entire tract from which selection was to he made, was clearly ascertained. It was each alternate section, or one-half the entire tract. Its location and boundaries were accurately defined. It was three sections in width on each side of the Fox river, and the lakes through which it passes, from its mouth to the point where th’e canal should enter the same, and on each side of the canal from one river to the other. Under the act we are now considering, these things were not so. The interest of the state was indefinite and uncertain. The amount of land to which it was entitled, as compared with that from which it was to be chosen, was entirely undefined, and depended for ascertainment upon the investigation of a question of fact, namely, the number of acres of the odd-numbered sections which had been entered at the land office. Its location was not fixed. It might have been selected near the point of junction with the canal, or midway along the river, or near its mouth, according to the extent of the deficiency and various other influencing circumstances. The rights of the state not being ascertained by the law, the selection by the governor and approval by the President, were not mere acts of partition, but of conveyance, and were in-dispensible to the transfer to the state of any specific title. There were, therefore, very material reasons for reserving this power of approval to the President, and why the title should not pass until his assent, or that • of congress, should be given.,
The grant which had, upon partition, resulted in a transfer to the state of the odd-numbered sections, was, by reason of the entries of a portion of them, partially defeated; and the combined operation of the two acts was to give the governor, subject to the approval of the President, the right to select from the even-numbered sections still belonging to the United States, a sufficient quantity of land to make up the deficit. This was not a right to any particular parcels or sections, but a right generally to have that quantity of land out of the even-numbered sections within the reserva[42]*42tion, to be selected with tbe assent of the President. It was _ a right which rested in compact, merely, and depended for its execution upon the political authorities of both governments. Until that was done, there was nothing of which the courts or taxing officers of the state could take cognizance as the specific ■ subject of the grant. It could not be marked out or defined. Prior to such execution, the government of the United States was at liberty to make such disposition of the lands as it pleased; and if, instead of confirming the tract in question to the state and its assigns, it had, on the 9th of June, 1858, transferred it to another; or if, up to the present time, it had entirely refused to dispose of it, can there be any doubt that the tax must have been held void ? I will almost hazard the assertion, that if the case had been like either of these, even my brethren would have had some, doubts as to its legality. Is the case now presented, in reality different ? If the title were still in the United States, as it was in 1855, when the tax was assessed, would it change the legal aspects of the case, could the court know that three years hence it would be transferred to the state and those claiming under it ? It seems clear to me that it would not, and that such considerations should have no influence upon the question. And yet such is the effect which has been given to the act of congress passed three years after the tax was levied. Upon the same principle, it is difficult to perceive why all the lands of the United States, within the reservation, were not taxable, on the supposition that they might some time become the property of the state or its assigns. This, I insist, is a gross and palpable error, which has its origin in overlooking the fact that, for 'all practical purposes, the United States were still invested with the complete and absolute title and dominion of all the lands, subject, it is .true, to the compact,which, though it bound the public 'faith, was practically inoperative, because, until executed by the political authorities, it had no object to which it could attach. The claim of the state was like those general reservations sometimes found in cessions of land by the Indian tribes; or the rights of the states to the 'sixteenth sections for the use of schools ; which, until [43]*43location or survey, are ineffectual to convey any specific interest. See Gaines vs. Nicholson, 9 How. (U.S.), 356; and Cooper vs. Roberts, 18 id., 173.
. Tire selections of the governor under the act of 1849,were, as we are informed, made in that year. They were never approved by the President. From that time until 1858, running through a period of two entire administrations, and a portion of a third, the President steadily refused to sanction them. On the 9th of June, 1858, congress, in part, adjusted the matter, not by ratifying the selections, but by declaring the title of the purchasers “ to be as valid as though the said selections had been made in conformity to law: Pro-videdThat nothing contained in this act shall be construed to increase the quantity of land to which the state is entitled under the grant aforesaid: And provided further, That a schedule, duly certified by the governor, of the lands sold, or contracted to be sold, prior to the passage of tins act, shall be filed in the General Land Office within six months from the date of this act.” The act is entitled “An act for the relief of certain settlers on the public lands in the state of Wisconsin.”
Nothing can be plainer from the face of this act, the residue of which is quoted in the opinion of the court, than that the object of congress was not to aid the selections of the governor, which are asserted not to have been made “in conformity with law,” but to help the unfortunate settlers, who had entered upon the lands, made improvements, and paid the price to the state or the improvement company, under the mistaken belief that they were the owners, to a title which it was otherwise certain they could not obtain. It was an act of grace or favor to such supposed purchasers, of whom the respondent was one, and was not intended as a recognition of any previous rights or interests in the state or the improvement company. The existence of such rights or interests is expressly ignored; and it seems idle to emphasize the word “ confirmed,” when the very next lines, in the connection, negative the impression sought to be established by it, and show that whatever technical effect may be [44]*44given to it when used in merely private conveyances, none such, was Rere intended.
The selection by tbe governor was but one step towards the execution of the compact, and availed nothing unless it was met by the approval of the President. Clearly it was worthless as an evidence of title, after the President had refused, which must be presumed after a silence of six years, from 1849 to 1855. There was, therefore, at that time, not the slightest foundation for any right or title to ^ this particular tract.' of land, either in the state the improvement company, or the respondent. The United States were at liberty to grant it to others, or retain the title at their pleasure. There were no considerations of public faith to prevent them from doing either. The President, by his refusal to approve, had absolved them from all such obligations, and, in effect, requested the governor to select elsewhere, as he might have done. How, then, this undefined interest or equity, which the majority of the court seem to suppose was at that time vested in the respondent, arose, is more than I can see. It certainly did not exist with the consent of the United States, who alone could create it. It was the interest of every mere trespasser upon the public domain — neither more nor less— and if that makes the lands of the United States taxable, the decision of the majority is correct; otherwise, in my judgment, it is not.
It is stated as evidence of title in the respondent, that he believed the improvement company were the owners, and applied to them to purchase, paid the price, and received a duplicate for the land. To this position the opinion furnishes its own answer. "We sit here to decide the law as we find it, and not as the parties or others may have supposed it to be. If the erroneous recitals of the legislature in a memorial to congress cannot conclude us, surely the mistaken belief of a private individual ought not to do so. The respondent acquired no interest, until congress saw fit to give it to him, and his belief did not affect the question.
It is also said that the act or confirmation of congress in [45]*451858, related back' to the selections of 1849. This is not sustained by a fair construction of its language. As bas been already observed, congress did not attempt to ratify the selections, but to validate the title of the purchasers of such lands as had then been sold, or contracted to be sold, by the state or its assigns, not exceeding the quantity to which the state was entitled under the grant. If there were any lands selected, but not sold or contracted to be sold, as to them no title passed. The selections were considered as not in conformity with law, and congress seem studiously to have avoided then confirmation. The President had refused to approve them, and it wras as if they had never been made. They were mentioned, it ,is true, but only as descriptive of the lands conveyed, the title to which was transferred directly to the purchasers. There was nothing, therefore, to which the title of the purchasers could relate, and the act only pcuports to declare it to be valid at that time. It was, in all respects, a fresh grant, and in no way retrospective in its operation.
But further than this, I am satisfied that the doctrine of relation cannot be applied to a case like the present. A tax, to be valid, must be so at the time it is laid and the land sold. The whole proceeding has relation to that time, and the right to tax must then exist. If the land be not then taxable, subsequent events, cannot make it so, or cure the imperfection. ' The supreme court, speaking of the effect of a conveyance of land for taxes, in the case of Carroll vs. Safford, 3 How., 462, cited by the court, say: “It cannot, however, convey a better title to the land sold for taxes, than the owner of such land, to whom it stands charged, possessed at the time the taxes constituted a lien, or when the land was sold.” There was no power of taxation, and the respondent had no title when this land was sold. The deed, therefore, can only operate as a cloud upon the title which he has since acquired.
Again, it is said that because lands may be rightfully taxed after entry and before the emanation of the patent, the taxation in this case was proper. Enough has already been said to show that there is no analogy between the cases. [46]*46Where land has been entered, the courts hold, in the cases cited, that it is no longer the property of the United States, but of the purchaser. They say that he has purchased and paid for it, and holds a final certificate, which can no more be cancelled by the United States than a patent; and that in this respect there is no difference between a certificate holder and a patentee. The question therefore is not .whether the government may not, technically speaking, have been possessed of the fee, but who was the substantial owner.
I have endeavored to show that the United States had a perfect title to the tract in question, and if I have succeeded, those authorities are inapplicable.
Eor these reasons, I am of opinion that the judgment of the circuit court should be affirmed.
Judgment reversed.