An act was passed by the legislature in 1840 by which certain
lands held under conveyances from the President and Trustees of the
Ohio University at Athens were directed to be assessed and taxed
for county and state purposes. A bill was filed by the purchasers
of the land against the tax collector praying that he should be
perpetually enjoined from enforcing the payment of the taxes
because the lands had been exempted by a statute of Ohio of 1804,
which the bill alleged entered into the conditions of sale under
which the complainants held the land. It was insisted that the act
of 1840 violates the contract with the purchasers and is void,
being contrary to the clause of the Constitution of the United
States which prohibits the states from passing any law violating
the obligation of contracts. The Supreme Court of Ohio dismissed
the bill of the complainants. The ordinance of 1787, by which a
large section of country in Ohio was sold to a company, gave two
complete townships of land for the purposes of a university. In
1804, an act of the Legislature of Ohio established the university
on the foundation of the fund granted by Congress, and vested the
land in the corporation of the university. The act directed the
manner in which the land was to be leased, reserving rent to the
corporation, and the seventeenth section directed that the land
appropriated and vested by the act, should be exempted from all
state taxes. In 1826, the legislature authorized all the university
land not encumbered with leases, or which had not been reentered by
the trustees of the university, or to which they had regained their
title, to be sold in fee simple for the benefit of the university.
The complainants purchased the land held by them under this
statute, and took deeds in fee, no exemption from taxes being
contained in the statute or in their deeds.
Held that, the
lands having been purchased under the act of 1826 and not being
held under the act of 1804, were subject to taxation. All the
purchasers held under the act of 1826 and cannot go behind it, and
their lands are subject, like other persons', to be taxed by the
state.
The case of
State of New Jersey v.
Wilson, 7 Cranch 164, cited and affirmed. In that
case, the land had for a sufficient consideration been given by the
state to a certain Indian tribe, and was declared to be forever
exempt from taxes. The Indians, with the consent of the state, sold
the land, and the purchaser of the Indian title obtained the land
with the exemption from taxes granted by the state.
In order to give this Court jurisdiction under the twenty-fifth
section of the Judiciary Act of 1784, which authorizes the removal
of a case by writ of error or appeal from the highest court of a
state to the Supreme Court of the United States in certain cases,
it must appear on the record itself to be one of cases enumerated
in that section, and nothing out of the record certified to this
Court can be taken into consideration. This must be shown
First, either by express averment or by necessary intendment in
the pleadings in the case or
Secondly, by the directions given by the court, and stated in
the exceptions or
Thirdly, when the proceedings are according to the law of
Louisiana, by the statement of facts and of the decision as is
usually made in such cases by the court, or
Page 41 U. S. 282
Fourthly, it must be entered on the record of the proceedings of
the appellate court, in cases where the record shows that such a
point may have arisen and been decided, that it was in fact raised
and decided, and this entry must appear to have been made by order
of the court or by the presiding judge by order of the court and
certified by the clerk as part of the record in the state court,
or
Fifthly, in proceedings in equity, it may be stated in the body
of the final decree of the state court from which the appeal is
taken to this Court, or
Sixthly, it must appear from the record that the question was
necessarily involved in the decision and that the state court could
not have given the judgment or decree which they passed without
deciding it.
A bill was filed in the Court of Common Pleas of the County of
Athens, in the State of Ohio, by Thomas Armstrong and others
stating that they were seized in fee of certain lands purchased by
them from the president and trustees of the Ohio University in
pursuance of the provisions of an Act of the Assembly of the State
of Ohio entitled "an act authorizing the trustees of the Ohio
University to dispose of certain lands," passed February 4, 1826.
The lands were situated within the two townships granted by
Congress, within the bounds of the Ohio Company's purchase, for the
endowment of a university. By the 17th section of the Act of the
Assembly of Ohio passed February, 1804, entitled, "an act
establishing a University in the town of Athens," it is declared
"that the lands in the two townships aforesaid, with the buildings
which are or may be erected thereon, shall be forever exempt from
all state taxes." The bill asserted that the lands were purchased
from the president and trustees of the University in the full faith
and confidence that the same would remain forever and exempt from
all taxes for state purposes.
The bill further represented that notwithstanding the
declaration contained in the Act of February 18, 1804, in pursuance
of the provisions of an Act of the Assembly of Ohio passed on 21
March, 1840, entitled "an Act to amend an act authorizing the
trustees of the Ohio University to dispose of certain lands, passed
February 4, 1826," the several tracts of land belonging to the
complainants had been appraised by the Assessor of Athens County
and placed on the duplicate for taxation by the auditor of the
county, and taxes for state and county purposes had been assessed
on the said lands. The tax duplicates had been placed
Page 41 U. S. 283
in the hands of a collector, and they had been called upon to
pay the same. The bill prayed for an answer and for a perpetual
injunction from further proceedings to collect the said taxes, and
for further and other relief.
By the Ordinance of Congress of 1787, under which a large body
of land was sold to a company, two townships of land were reserved
for the purposes of a university, and in 1804, the Legislature of
Ohio established a university at Athens, appropriating to it these
two townships of land. By this act, the land was to be leased out
for ninety-nine years, the rents to be paid to the University, and
the land was declared to be exempted from all state taxes. In 1826,
the Legislature of Ohio authorized all the land belonging to the
University to be sold in fee simple, and nothing was stated in this
act exempting the land to be sold from taxes. The appellants
purchased the land from the University sold under the authority of
this law.
The Treasurer of Athens County appeared and answered the bill,
and admitted all the facts stated in it, and also that he intended
to collect the taxes assessed on the land, asserting that he had a
right to do so by virtue of an Act of the General Assembly of Ohio
passed 21 March, 1840, in connection with other general laws of
Ohio defining the duties of treasurer, which said act and other
further acts he set up as a defense to the complainant's bill.
At the October term of the court of common pleas, the injunction
which had been granted on the filing of this bill was made
perpetual. The defendant appealed to the supreme court, and the
decree of the court of common pleas was, at the December term 1840,
reversed, and the complainants were adjudged to pay costs.
In the record of the proceedings of the Supreme Court of Ohio
was the following certificate:
"I do hereby certify that in the above-named case there was
drawn in question the validity of the statute of the State of Ohio,
passed on 21 March 1840, entitled 'An act to amend the act
authorizing the trustees of the Ohio University to dispose of
certain lands,' passed July 4, 1826, on the ground that it was
repugnant to the Constitution of the United States, and
Page 41 U. S. 284
that the decision of the court was in favor of the validity of
said statute."
"EBEN LANE"
"Chief Judge of the Supreme Court of Ohio"
From the decree of the supreme court of Ohio, the complainants
appealed to the Supreme Court of the United States.
CATRON, JUSTICE, delivered the opinion of the Court.
This is a writ of error from a state court, and it has become
the duty of this Court, before proceeding to examine the merits of
the controversy, to determine whether jurisdiction over it is
conferred by the 25th section of the Judiciary Act of 1789. It is
true, no question upon that subject was raised in the argument
presented for the appellant (the respondent having no counsel), but
it has been the uniform practice of this Court in every case of
this description to ascertain in the first instance
Page 41 U. S. 285
whether the record presented a case in which we were authorized
by law to revise the judgment or decree of a state court. And this
question has so often arisen, and parties have been so frequently
subjected to unnecessary expense in bringing causes here in which a
writ of error or appeal to this Court would not lie, that we have
thought this a fit occasion to state the principles upon which the
court have constantly acted, and which may now be regarded as the
law of the court.
In order to give this Court jurisdiction, under the 25th section
of the act of 1789, it must appear on the record itself to be one
of the cases enumerated in that section, and nothing out of the
record certified to this Court can be taken into consideration.
This must be shown first, either by express averment or by
necessary intendment in the pleadings in the case.
Or secondly, by the direction given by the court and stated in
the exception.
Or thirdly, when the proceeding is according to the law of
Louisiana, by the statement of facts, and of the decision, as
usually made in such cases by the court.
Or fourthly, it must be entered on the record of the proceedings
in the appellate court, in cases where the record shows that such a
point may have arisen and been decided, that it was in fact raised
and decided, and this entry must appear to have been made by the
order of the court or by the presiding judge, by order of the
court, and certified by the clerk as a part of the record in the
state court.
Or fifthly, in proceedings in equity, it may be stated in the
body of the final decree of the state court from which the appeal
is taken to this Court.
Or sixthly, it must appear from the record that the question was
necessarily involved in the decision and that the state court could
not have given the judgment or decree which they passed without
deciding it.
We are not aware of any other mode in which the judgment or
decree of a state court can lawfully be brought before us, and we
have stated them particularly in order to prevent, in future, the
difficulties and discrepancies which have so often arisen on this
subject.
Page 41 U. S. 286
In the case now before us, the presiding judge of the Supreme
Court of Ohio has certified on the record that the validity of a
statute of the state was drawn in question on the ground that it
was repugnant to the Constitution of the United States, and that
the decision was in favor of the validity of said statute, and this
certificate of the judge is certified by the clerk as a part of the
record. We presume that the certificate of the presiding judge was
made by the authority of the court, and as this bill and answer
show that such a point might have arisen, and this certificate on
the record states that it did arise and was decided; the case comes
within the fourth clause above mentioned, and this Court must take
jurisdiction and examine whether the point so certified was
rightfully decided.
An act of the Legislature of Ohio, passed in 1840, ordered
certain lands held by the complainants to be assessed and taxed.
The defendant was the tax collector. The bill prays he be
perpetually enjoined from enforcing the payment of the tax because
the lands had been exempted by a statute of Ohio of 1804, which
entered into the conditions of sale under which the complainants
held. Therefore, it is insisted, the act of 1840 violates the
contract of purchase, and is void, being contrary to that clause of
the Constitution of the United States which prohibits the states
from passing any law violating the obligation of contracts. This is
the only question presented by the record that we can examine, as
the 25th section carefully restricts this Court to specified cases
of jurisdiction, beyond which we have no power to go into the
cause.
There are six complainants, each setting up a distinct title;
they sue jointly, and for the six only, and not for themselves and
others equally assessed, as in
Attorney General v. Helin,
2 Sim. & Stu. 67, and similar cases, referred to in Story's
Equity Plead. § 114, 123. The Supreme Court of Ohio having
entertained jurisdiction; this Court must do so likewise. The
question of misjoinder is not open to us for revision.
The immediate deeds in fee, from the trustees of the Ohio
University to complainants, are not set forth in the pleadings. We
take it, however, that they contain no condition exempting the
lands from taxation, as the bill is founded on the assumption that
the 17th section of the act of 1804 entered into the
Page 41 U. S. 287
contract and imposed the exemption on the state. Whether such an
inference arises in favor of the complainants depends on the
construction of an ordinance of Congress and the several acts of
the Legislature of Ohio, passed in regard to these university
lands.
By the ordinance of 1787, 1 Laws U.S. 573, a sale of a large
section of country was authorized to be made to a company of
individuals, from which is reserved:
"Not more than two complete townships to be given perpetually,
for the purposes of a university, to be laid off by the purchasers,
as near the center as may be, so that the same shall be of good
land, to be applied to the intended object by the Legislature of
the state."
Ohio came into the Union as a state in 1802. In 1804 (Ohio Land
Laws 226), an act was passed, establishing a university on the
foundation of the fund secured by Congress, to be situated on the
reserved lands, being townships eight and nine. The lands were
vested in the corporation, consisting of the president and
trustees, "for the sole use, benefit and support of the university
forever."
They were authorized to rent out the lands in separate tracts of
not less than eighty acres or more than two hundred and forty acres
on a valuation of commissioners, at a yearly rent of six percentum
per annum on the estimated value, for ninety years, renewable
forever, and from time to time a re-valuation was to take place, to
which the subsequent rents were to correspond; with this addition,
sec. 12,
"That the said corporation shall have power to demand a further
yearly rent on said lands and tenements not exceeding the amount of
tax imposed on property of like description by the state, which
rents shall be paid at such time and place, to such person, and
collected in such manner, as the corporation shall direct."
The 17th section declares
"That the lands in the two townships, appropriated and vested as
aforesaid, with the buildings which are or may be erected thereon,
shall forever be exempted from all state taxes."
Thus the matter stood until 1826, when the legislature
authorized the board of trustees of the university to sell and
convey in fee -- simple (1) all the lands situate in the college
townships, which were not encumbered with outstanding leases; (2)
such of said lands as had been reentered by the board, for a
breach
Page 41 U. S. 288
of the conditions of the leases or where this encumbrance had
been or might be otherwise removed; (3) to convey in fee to the
lessees, respectively, on the payment of such sum of money as would
yield at an interest of six percentum per annum on the sum which
was yearly reserved in the lease.
Pursuant to this statute, the complainants purchased and took
deeds in fee, no exemption from state taxation being contained in
the statute under which they took title or in their deeds.
The object of the incorporating act of 1804 was to regulate a
public fund, entrusted to the management of the state sovereignty,
so as best to accomplish the intention of the donor, the United
States. It was a matter of course, in the then state of the college
fund, to exempt it from taxes, in the hands of the trustees. The
lands brought no income, and could bear no tax, in their
uncultivated condition, until they passed into the hands of private
individuals. The tenants of the University for twenty years made
their own contracts, and were bound to pay the ordinary taxes
levied on the inhabitants of Ohio not into the state treasury, but
into that of the University. Every change in the general laws in
regard to the revenue bound them; as the value of real estate
increased, and taxes were imposed in addition to previous burdens,
to such an extent, the corporation of the University added to the
rent of its tenants. The lands not leased continued exempt from
taxation on the fair supposition that they brought no income, and
could bear no burdens.
The policy of the act of 1804 is too plain to admit of comment,
and its wisdom so manifest as to meet with instant sanction.
But what was the policy of the act of 1826? An entire change of
the fund from real estate to a capital in money, vested by loan in
the state treasury, was determined on by the corporation. Leave was
asked and granted by the legislature to sell the lands and convey
them in fee simple to purchasers, giving the tenants a preference
in cases where there were existing leases. As regarded the
management and nature of the fund to sustain the University, the
act of 1804 was to a great extent repealed; by that act the lessees
of the corporation were governed; their contracts were founded on
it; but with it the purchasers in fee had no concern, their
contracts originated in a different policy,
Page 41 U. S. 289
and are sanctioned by a different statute; the complainants
actually claim, and could only claim, by force of the act of 1826.
This act secured the payments of no taxes to the University as the
substitute of the state. It simply authorized the corporation to
sell, as an individual might sell, and the respective purchasers
took title as from an individual; they were strangers to the act of
1804, with the exception of those provided for by the third section
of the act 1826, the value of whose lands was to be governed by the
assessment of their rents under the former act, and who were
entitled to have deeds in fee on the payment of $100 for every six
dollars of annual rent assessed upon them, disregarding the taxes
they were bound by the act of 1804 to pay to the corporation. The
mode of ascertaining the value makes no difference; all the
purchasers hold under the act of 1826, and cannot go behind it, and
are subject, like other persons holding lands in fee, to be taxed
by the state.
The case relied on by the complainants as ruling this is that of
State of New Jersey v.
Wilson, 7 Cranch 164. In 1758, the Delaware tribe
of Indians agreed with the colonial government of New Jersey to
release to the latter all their lands in that colony south of the
River Raritan; the government purchased a tract of land on which
the Indians might reside, and stipulated, by a legislative act,
that this tract should not thereafter be subject to any tax. The
Delawares wished to emigrate and join the Stockbridge tribe in New
York. In 1801, the State of New Jersey, by a statute, authorized
them to sell their lands. This act of assembly contained no
exemption from the payment of taxes after the sale. In 1803, the
Indian tribe sold to Wilson and others, and the commissioners
appointed by order of the legislature conveyed, for and on behalf
of the Indians, to the purchasers. On the foregoing state of facts,
it was held by this Court that the purchasers, being in under the
first grant of 1758 to the Indian tribe, were equally entitled to
its benefits, and that no taxes could be levied on the land.
The soundness of the decision we think undoubted. The compact
with the Delaware tribe was for a cession to the government of a
large body of land; the consideration for the cession was a smaller
tract vested, in trust for them, in fee, and a further and very
material consideration was that the latter tract should never
Page 41 U. S. 290
be taxed by the government. The parties were competent thus to
contract, as no restriction was imposed on the colonial government,
and the consideration was ample for the exemption.
The condition attached to the land; so this Court held:
"The act authorizing the Indians to sell was a mere enabling
statute; the purchasers took from and under the Indian tribe, held
by virtue of the grant to them, and were, of course, entitled to
all the benefits of the contract. New Jersey had, therefore, no
more power to repeal that part of the grant which exempted the
lands from taxation than she had to repeal the entire contract, and
therefore her act of 1804, repealing the clause of exemption, was
void."
We think the case in Cranch compared with the one presented by
the record, is too dissimilar to require a particular comparison,
or further comment.
We concur with the Supreme Court of Ohio that the bill must be
dismissed, and so order.
Judgment affirmed.
