[190] Mr. Frederick Weigel and Peter Adrian, | of North Brunswick and Monroe, in the for defendants in error. A special law may be repealed by a general one by express words or necessary implication. Slate v. Blake, 35 N. J. L. 208; S. C. 36 N. J. L. 442; State v. Comr. of R. R. Taxation, 37 N. J. L. 228; State v. Mills, 34 N. J. L. 180; State v. Williamson, 44 N. J. L. 165, 46 N. J. L. 204. County of Middlesex, were set off and estab- Property dedicated to charity is not subject Louisville v. Com. 1 Duv. (Ky.) 295, 298, 299. ture. Cooley, Const. Lim. 3d ed. §§ 192, 193, 235; 1 Dill. Mun. Corp. 3d ed §§ 54, 62; Piqua Branch of Bk. of Ohio v. Knoop, 57 U. S. 16 How. 369, 380 (14: 977, 981); U. S. v. Balt. & O. R. Co. 84 U. S. 17 Wall. 322 (21:597); Sloan v. State, 8 Blackf. 361; People v. Morris, 13 Wend. 325; Jersey City v. Jersey City & B. R. Co. 20 N. J. Eq. 360; Philadelphia v. Fox, 64 Pa. 169; Montpelier v. East Montpelier, 29 Vt. 12; Richland Co. v. Lawrence Co. 12 Ill. 8; People v. Chicago, 51 Ill. 18; State v. St. Louis Co. Ct. 34 Mo. 546, 549; Louisville v. Louisville University, 15 B. Mon. (Ky.) 645; East Hartford v. Hartford Bridge Co. 51 U. S. 10 How. 511, 541 (13: 518, 531); Richmond v. Richmond & D. R. Co. 21 Gratt. 604; Warner v. Beers, 23 Wend. 103, 126; Purdy v. People, 4 Hill, 391; Gifford v. Livingston, 2 Denio, 380. The delegation of such legislative authority to said township was not such a contract as would prevent future legislation upon the The poor farm of the original Township of North Brunswick was situate within the limits of what remained of the Township of North Brunswick, after the setting off of the Townships of East Brunswick and New Brunswick, as aforesaid. By a special Act of the Legislature aproved March 15, 1861 (Laws of 1861, chap. 170, p. 507), the said Township of New Brunswick and the City of New Brunswick were declared to be one corporate body under the name of "The Corporation of the City of New Brunswick," and the said corporation was made subject to all the liabilities of the inhabitants of the Township of New Brunswick. The poor farm and the personal property thereon were never divided between the Townships of North Brunswick and East Brunswick and the corporation of the City of New Brunswick, but the townships agreed to sell and couvey their interests in the same to said corporation. By a special Act of the Legislature, approved February 18, 1862 (Laws of 1862, chap. 37, p. 52), the township committees of North Brunswick and East Brunswick were authorized to convey all the interests of the said townships in said farm and the personal property thereon to the said corporation; and it was thereby further enacted that the said poor farm and the personal property thereon should be at all times thereafter liable and subject to taxation by the Township of North Brunswick so long as it should be embraced in the limits of said township. By virtue of the authority thereby given, the township commitees of said townships sold and conveyed said farm and the personal property thereon to said corporation by deed of conveyance bearing date March 27, 1862. The said corporation of the City of New Brunswick entered into possession of said farm and the personal property thereon under the contract expressed in said deed of conveyance, and is still in possession of the same; and the said farm is still within the limits of the Township of North Brunswick. [191] This is a writ of error to the Supreme Court of the State of New Jersey. The case arose on a writ of certiorari issued by that court at the instance of the Mayor and Common Council of the City of New Brunswick, to review an as- The said farm and property have been duly sessment for taxation made by the Township assessed by the Township of North Brunswick [192] of North Brunswick, and a levy made by the each year since said sale and conveyance; and collector of that Township, against a farm the taxes so assessed have been paid by the known as the "poor farm," and personal prop-corporation of the City of New Brunswick erty thereon, situated in the Township of to the Township of North Brunswick, up to North Brunswick, and owned by the Mayor and Common Council of the City of New Brunswick. The case arose on the foliowing facts, which were agreed upon by the counsel for the respective parties: By a special Act of the Legislature of New Jersey, approved February 28, 1860 (Laws of 1800, chap. 67, p. 162), parts of the Townships and including the year 1877, when further pay. This certiorari brings up the assessment for [193] on are liable and subject to taxation by said Township of North Brunswick. The deed of March 27, 1862, which contains a copy of the Act approved February 18, 1862, is set forth in the margin.* It was agreed between the attorney for the plaintiff in the certiorari and the attorney for [194] the defendant, that the sole question to be discussed in the Supreme Court of New Jersey was whether the poor farm, situated in the Township of North Brunswick, and owned by the City of New Brunswick, was exempt from taxation; and that the poor farm referred to, the buildings thereon, and the furniture and fixtures therein, were used exclusively for charitable purposes by the City of New Brunswick, the owner thereof. [195] The questions considered by the Supreme Court of New Jersey were: (1) whether the 2d section of the Act approved February 18, 1862, was repealed by the general tax law of the State, approved April 11, 1866 (Revised Laws, 1150), the 5th section of which enacted that the property of the cities of the State, and all buildings used exclusively for charitable purposes, with the land whereon the same are erected, and which may be necessary for the fair enjoyment thereof, and the furniture and personal property used therein, shall be exempt from taxation; and the 32d section of which, after repealing certain Acts named, repealed all other Acts or parts of Acts, whether special or local or otherwise, inconsistent with the provisions of the Act of 1866, except one Act approved in 1864 and such special or local Acts as had been approved since 1862; (2) whether, if the Legislature had, by the Act of April 11, 1866, declared its purpose to repeal the 2d section of the Act of February 18, 1862, such purpose could be constitutionally enforced. *Deed from James C. Edmonds, William Dunham, Abm. L. Van Liew, Ellsworth Farmer, and James H.Webb, township committee of the Township of North Brunswick, and John Griggs, John Culver, Charles P. Blew, and Joseph H. Bloodgood, township committee of the Township of East Brunswick, to the corporation of the City of New Brunswick. This indenture, made this 27th day of March, in the year of our Lord one thousand eight hundred and sixty-two, between James C. Edmonds, William Dunham, Abraham L. Van Liew, Ellsworth Farmer, and James H. Webb, township committee of the Township of North Brunswick, John Griggs, John Culver, Charles P. Blew, and Joseph H. Bloodgood, a majority of the township committee of the Township of East Brunswick, in the County of Middlesex and State of New Jersey, of the first part, and the corporation of the City of New Brunswick, in the State of New Jersey, of the second part, witnesseth: That the said party of the first part, for and in consideration of the sum of two thousand six hundred and eleven dollars and thirteen cents, lawful money of the United States of America, to them, the said party of the first part, in hand well and truly paid by the said party of the second part at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, and the said party of the first part, being fully satisfied, contented, and paid, have granted, bargained, and sold, and by these presents do grant, bargain sell, convey, and confirm, to the said party of the second part and to their successors and assigns forever, all that certain farm and tract of land and premises known as the poor farm, situate, lying, and being in the Township of North Brunswick, in the County of Middlesex and State of New Jersey, 'butted and bounded as follows: Beginning at the southeasterly corner of a lot of land of Thomas Van Deursen on George's road, thence running along said Van Deursen's line north seventy-one degrees and The supreme court held in State v. Williamson, 44 N. J. L. (15 Vroom) 165: (1) that the declaration in the general Law of 1866 that all Acts and parts of Acts, whether special or local or otherwise, inconsistent with its provisions, were repealed, abrogated the provisious in the prior special Act of 1862 for the taxation of the poor farm and the personal property thereon by the Township of North Brunswick, because such provision in the Act of 1862 was inconsistent with the provision in the Act of 1866 exempting from taxation all property of the cities of the State and all property used exclusively for charitable purposes; (2) that the Legislature could constitutionally repeal the power of taxing the poor farm and the personal property thereon, given by the Act of 1862 to the Township of North Brunswick. The court decided that the provisions of the two statutes could not stand together, and that it was impossible to give full effect to the language of the repealing provision of the Act of 1866 and keep in operation the second section of the Act of 1862. It also decided that the provision of the second section of the Act of 1862 did not become, by reason of the subsequent conveyance of March 27, 1862, to the corporation of the City of New Brunswick, a contract between that corporation and the Township of North Brunswick, the obligation of which the Legislature was forbidden to impair; that one Legislature could not confer upon a township a power of taxation which a subsequent Legislature could not revoke against the objection of the township; that the power of a Legislature over a corporation created for the purposes of local government was supreme; that no contract with such a corporation arose from the delegation to it of taxing authority, citing Tinsman v. Belvidere twenty-five minutes west twenty-three chains to another corner of said Van Deursen's land; thence along his land north eighteen degrees and twentyfive minutes east five chains and ten links to Mill lane; thence along Mill lane north seventy-one degrees and thirty minutes west ten chains and fifteen links; thence still along Mill lane north sixty-two degrees thirty minutes west two chains and sixty links to a corner of land formerly of David Freeman; thence along the line of said land south forty-four degrees twenty-five minutes west thirty chains and twenty-five links; thence south sixty-two degrees and five minutes east thirty-one chains and fifty links to a corner of Belcher's land; thence north forty-four degrees and thirty minutes east ninety-six links to another corner of Belcher's land; thence south along the line of Belcher's land forty-three degrees and thirty minutes east thirty chains to George's road; thence along said road north twenty-six degrees fifteen minutes east three chains and eighty-five links; thence still along said road north three degrees thirty minutes east nine chains; thence still along said road north five degrees east seven chains and sixty-five links; thence still along said road north two degrees thirty minutes west six chains; thence still along said road north fi ee degrees thirty minutes west seven chains thirty-ave links; thence still along said road north sixteen degrees east two chains and eight links; thence still along said road north thirty degrees forty-five minutes east six chains and eight links, to the place of beginning; containing one hundred and forty-one acres. The above described farm and premises are conveyed by the parties of the first part aforesaid by virtue of the power and authority in them vested by the Act of the Legislature of the State of New Jersey entitled "An Act to Authorize the Township Committees of the Township of North Brunswick and East Brunswick, in the County of Middlesex, to Convey to the Corporation of the City of New Brunswick, the Poor Farm in the Town [196] [197] Del. R. Co. (2 Dutcher) 26 N. J. L. 148; Mayor v. Jersey City & B. R. Co. (5 C. E. Green) 20 N. J. Eq. 360, and Rader v. Southeasterly Road Dist. (7 Vroom) 36 N. J. L. 273, and that the power of taxation was not in any sense the private property of the municipality, but was peculiarly a public and governmental power, and must, as such, be at all times susceptible of repeal or modification, according to legislative discretion, so far as the mere right of the township to exercise it was concerned. The judgment of the supreme court was that the assessment of taxes should be set aside. The collector of the township removed the case, by a writ of error, to the court of errors and appeals of the State, which affirmed the judgment, in an opinion (Williamson v. State 46 N. J. L. 17 Vroom. 204) adopting the reasons given by the supreme court. The case having been remitted to the supreme court, the collector has brought it here by a writ of error to that court. On the question as to the effect of the Act of 1866, in repealing the 2d section of the Act of 1862, we concur with the highest court of New Jersey, that the provisions of the two statutes cannot stand together, and that it is impossible to give full effect to the language of the repealing provision of the Act of 1866, and keep in operation the 2d section of the Act of 1862. We must therefore hold, as the state court held, that the 2d section of the Act of 1862 was repealed by the Act of 1866. This leaves open only the consideration of the question as to whether the 2d section of the Act of 1862 created a contract, the obligaship of North Brunswick, Together With all the Personal Property on said Farm," passed 18th February, A. D. 1862, a copy of which is hereto annexed and taken as part of this deed: "An Act to authorize the township committees of the Township of North Brunswick and East Brunswick, in the County of Middlesex, to convey to the corporation of the City of New Brunswick the poor farm in the Township of North Brunswick, together with all the personal property on said farm. "Whereas, by an Act of the Legislature, passed February twenty-eight, Anno Domini one thousand eight hundred and sixty, the then Township of North Brunswick was divided into the Townships of North Brunswick, East Brunswick, and New Brunswick, and the town committees of said townships were authorized and required to divide the real and personal property of the Township of North Brunswick between the new Townships of North Brunswick, East Brunswick, and New Brunswick; and whereas the poor farm, which is situate in the limits of the present Township of North Brunswick, and which belonged to the former Township of North Brunswick, and the personal property thereon, has never been divided, but is owned and held in common by the said Townships of North Brunswick, East Brunswick and the corporation of the City of New Brunswick, which said corporation has, by an Act of the Legislature, passed March fifteenth, Anno Domini one thousand eight hundred and sixty-one, succeeded to, and become invested with, and entitled to, all the rights and property of the said Township of New Brunswick; and whereas such ownership and holding in common is found inconvenient and injurious; and whereas the said Townships of North Brunswick and East Brunswick have agreed with the corporation of the City of New Brunswick to convey and sell to the said corporation of the City of New Brunswick all their and each of their right, title, interest and estate in the said poor farm and personal property thereon, for the sum of two thousand six hundred and eleven dollars and thirteen cents, the value of the interest of those townships therein-therefore "1. BE IT ENACTED by the Senate and General As tion of which could not be constitutionally impaired by the repeal of such 2d section. It is contended for the collector, that the tax provided for by the 2d section of the Act of 1862 is in the nature of a ground rent, and of a right reserved by the Township of North Brunswick, out of the land conveyed by the deed of March, 1862; that the fee of the poor farm belonged to the township in its private and proprietary character; that the farm had been acquired by the taxation of the inhabitants of the township; that the Legislature could not deprive them of it without their consent; that the township was authorized by the Legislature to convey the farm to the corporation of the City of New Brunswick for the consideration, in part, of the right of the Township of North Brunswick to tax it so long as it should be embraced in the limits of that township; that, in taking the title, the City of New Brunswick agreed to pay to that township an annual sum to be determined in amount by the annual tax rate of that township, so long as the farm should remain under, and receive the benefit of, the municipal gov ernment of that township; that the right thus reserved, of levying and collecting such tax, became thereby vested in that township, and the amount of tax, when determined, became its private property; and that the case involves the question of the authority of the Legisla ture over the private property and vested rights of the township, and not the question of its authority over the public and governmental powers of the township. We concur in the views of the Court of Ersembly of the State of New Jersey, That the township committees of the Townships of North Bruns wick and East Brunswick, or a majority of each of the said town committees, be and they are hereby authorized and empowered to convey all the right, title, interest and estate of the said townships in the said poor farm, and the personal property thereon, to the said corporation of the City of New Bruns wick, for the sum aforesaid. 2. And be it enacted, That the said poor farm and the personal property thereon shall be at all times hereafter liable and subject to taxation by the said Township of North Brunswick so long as it is embraced in the limits of the said Township of North Brunswick. "3. And be it enacted, That any person sent from the corporation of the City of New Brunswick, or Township of East Brunswick, to the said poor farm, or any person born upon the said poor farm, shall not, by reason of any residence or being born on said farm, acquire a residence or settlement in the said Township of North Brunswick; the place of settlement of any person sent as aforesaid to the said poor farm, or born thereon, shall be determined in all cases without reference to their residence or being born on said poor farm. 4. And be it enacted, That this Act shall take effect immediately." Together with all and singular the buildings, improvements, rights, liberties, privileges, hereditaments, and appurtenances to the same belonging or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof,and every part and parcel thereof; and also all the estate, right, title, interest, use, possession, property, claim, and demand whatsoever, both in law and equity, of atoresaid Townships of North Brunswick and East Brunswick, to the said premises, and to every part and parcel thereof; to have and to hold the same to the said party of the second part, their successors and assigns, to the use of the party of the second part, their successors and assigns. In witness whereof the said parties of the first part have hereunto set their hands and seals the day and year first above written. [198] [199] of the 2d section, and the contention here rors and Appeals of New Jersey on this ques- ing is, therefore, whether the Legislature It is to be observed in the present case, that wick." So, also, the deed of March 27, 1862, recites as its consideration the sum of $2,611.13, paid by the corporation of the City of New Brunswick to the grantors. No other consideration is expressed. The Act of February 18, 1862, is incorporated in the deed, as the authority by virtue of which the grantors convey the property. It is not intended to suggest that, if the right of taxation had been named in the Act or in the deed as a part of the consideration for the conveyance, it would have made a different case; but reference is made to the actual provisions of the Act and the deed, solely for the purpose of showing that they evince no idea on the part of the Legislature, or of the parties to the conveyance, that the perpetual right of taxation, now asserted, formed any part of the consideration of the transaction. We are clearly of opinion that such a grant of the power of taxation, by the Legislature of a State, does not form such a contract between the State and the township as is within the protection of the provision of the Constitution of the United States which forbids the passage by a State of a law impairing the obligation of contracts. The conferring of such right of taxation is an exercise by the Legislature of a public and governmental power. It is the imparting to the township of a portion of the power belonging to the State, which it can lawfully impart to a subordinate munici pal corporation. But, from the very character of the power, it cannot be imparted in perpetuity, and is always subject to revocation, modification, and control by the legislative authorare uniform. 1 Dill. Mun. Corp. 3d ed. §§ 61, 63, and cases there cited; Cooley, Const, Lim. 3d ed. *192, *193, *237, and cases there cited; East Hartford v. Hartford Bridge Co. 51 U. S. 10 How. 511, 534 [13: 518, 528]; State Bank v. Knoop, 57 U. S. 16 How. 369, 380 [14: 977, [200] 981]; United States v. Baltimore & O. R. Co. 84 Ü. S. 17 Wall. 322, 329 [21:597, 600]; Phil adelphia v. Fox, 64 Pa. 169; Jersey City v. Jer. sey City & B. R. Co. 20 N. J. Eq. (5 C. E. Green), 360; Police Jury v. Shreveport, 5 La. Ann. 661, 665; State v. St. Louis Co. Court, 34 Mo. 546, 552; People v. Morris, 13 Wend. 325, 331; Warner v. Beers, 23 Wend. 103, 126; Richmond v. Richmond & D. R. Co. 21 Gratt. 604, 613; Richland County v. Lawrence County, 12 Ill. 8; Trustees of Schools v. Tatman, 13 Ill. 27, 30; Gutzweller v. People, 14 Ill. 142; Sangamon County v. Springfield, 63 Ill. 66, 71. In the present case, the 2d section of the Act of February 18, 1862, has no more force than if the words "at all times hereafter" had been omitted; and the section is to be construed as if it only temporarily conferred the right of taxation on the township, subject to be recalled at the pleasure of the Legislature. There is The true principle involved in the case is, no element of private property in the right of whether the power of taxation on the part of taxation conferred upon a municipal corporaa municipal corporation is private property, tion. Property acquired by paying for it with or a vested right of property, in its hands, money raised by taxation is property. The which, when once conferred upon it by an legislation in question does not affect or interAct of the Legislature, cannot be subse- fere with any such property. The poor farm quently modified or repealed. Even without and the personal property thereon are not the the special provision of the 2d section of the property of the Township of North Brunswick, Act of February 18, 1862, it is to be presumed but are the property of the corporation of the that the poor farm and the personal property City of New Brunswick. Nor is there anythereon would, while situated in the Township thing violative of any provision of the Constituof North Brunswick, be subject to taxation by tion of the United States in the enactment of the that township, unless exempted from such tax- Legislature of New Jersey, that the property in ation on the ground of a charitable use. The question shall be exempt from taxation because special question in this case arises, therefore, it is used exclusively for charitable purposes. solely out of the use of the words in the 2d sec-The long recognized and universally prevalent tion, "at all times hereafter." The provision policy of making such exemption is a warrant for saying that the 2d section of the Act of Feb-1 Feburary, 1870, one Oscar Traver settled upon [232] LIZZIE BUXTON ET AL., Plffs. in Err., Angeles, which embraced the land in contro v. HATTIE L. TRAVER ET AL. (See S. C. Reporter's ed. 232-237.) Right of preemption—occupation of land-settled upon, improved the land and erected a rights of heirs. 1. A person cannot acquire, by his occupation only of unsurveyed lands of the United States, a right of preemption to them under the laws of the United States. 2. Where nothing was done by an occupant of public land, beyond his occupancy, and his death occurred two years before the surveys were made, the privilege of purchasing the land was not acquired by bim so as to be available to his heirs. versy, until July 1st, 1879; that at the time of his 3. Section 2269 of the Revised Statutes does not [No. 211.] 1889. IN ERROR to the Supreme Court of the The facts are stated in the opinion. Messrs. A. L. Rhodes, A. T. Britton, Before a person will be permitted to call in question the proceedings through which another has obtained a patent for public lands, he must show in himself all the conditions necessary to entitle him to preempt. Burrell v. Haw, 40 Cal. 377; Page v. Hobbs, 27 Cal. 483; People v. Jackson, 24 Cal. 630; Megerle v. Ashe, 33 Cal. 74. Mr. Justice Field delivered the opinion of [233] the court: This was a suit to charge the defendant Hattie L. Traver as trustee for the plaintiffs, of an undivided half interest in certain lands in San Bernardino County, California, and was commenced in one of the superior courts of the State. To the complaint the defendants demurred; the demurrer was sustained, and judgment entered that the suit be dismissed. On appeal to the supreme court of the State the judgment was affirmed; and the case is brought to this court on writ of error. The complaint alleges that on the 2d of Office at Los Angeles, a preemption declara- The entire claim and contention of the plaint- |