UNITED STATES v. FOX.

ERROR to the Court of Appeals of the State of New York.

In February, 1870, Charles Fox, of the city of New York, died possessed of certain personal and real property situated in the State of New York. By his last will and testament, he devised and bequeathed the whole property, after the payment of his debts, to the government of the United States, for the purpose of assisting to discharge the debt created by the war of the Rebellion. By the government of the United States, the body politic, the nation known as the United States was meant. Upon the petition of the District Attorney of the United States, the will was presented for probate before the Surrogate of the city and county of New York. The infant heirs of the deceased contested the will. The Surrogate decreed that the will was inoperative and void as a devise of real estate; that the United States could not lawfully take and hold the real estate as devisee under the will, in trust or otherwise, and that it descended to the heirs-at-law. He at the same time decided that the will was valid and operative as to the personal estate of the testator, and that the United States was the sole legatee; and accordingly admitted the testament to probate as a will of personal estate only. On appeal from the Surrogate, this decree was affirmed by the Supreme Court, and afterwards by the Court of Appeals of the State. The case was then brought here.

Mr. Assistant Attorney-General Smith for the United States.

1. Though there is in the Federal Constitution no express delegation of power to accept a devise, it is submitted that the power of acquiring property for public purposes in any part of the country, by all the usual methods known to the law, is an essential attribute of the sovereignty of the United States, without which it cannot efficiently exercise its functions. There is no distinction in this respect between real and personal property, or between devises and conveyances. If a State can forbid the government taking by devise, is may forbid its taking by grant.

Marshall, C. J., in his opinion in United States v. Maurice, 2 Brock. 109, answered the objection that the United States could enter into no contract not previously directed by statute: 'The United States is a government, and consequently a body politic and corporate, capable of attaining the objects for which it was created by the means which are necessary for their attainment. This great corporation was ordained and established by the American people, and endowed by them with great powers for important purposes. It powers are unquestionably limited; but while within those limits, it is as perfect a government as any other, having all the faculties and properties belonging to a government, with a perfect right to use them freely, in order to accomplish the objects of its institutions. It will certainly require no argument to prove that one of the means by which some of these objects are to be accomplished is contract; the government, therefore, is capable of contr cting, and its contracts may be made in the name of the United States.'

This court indicated its assent to these propositions in United States v. Tingey, 5 Pet. 128, where it held, 'Upon full consideration of the subject, we are of opinion that the United States have such a capacity to enter into contracts. It is, in our opinion, an incident to the general right of sovereignty,' &c. It had long before been decided, that, without legislative authority first obtained, suit might be maintained by the United States upon such a contract. 'It would be strange to deny to them a right which is secured to every citizen of the United States.' Dugan v. United States, 3 Wheat. 181; Cotton v. United States, 11 How. 231. Upon judgments recovered in such suits it is an everyday occurrence for the United States to seize, hold, and sell land. United States v. Bradley, 10 Pet. 359; United States v. Lynn, 15 id. 311. In 1870, referring to United States v. Tingey, this court said: 'The decision was put upon the ground that the government had the capacity to make the contract; that the United States were a body politic, and that, as incident to the general right of sovereignty, it was competent to enter into any contract not prohibited by law, and found to be expedient in the just exercise of the powers confided to it by the Constitution. Dugan v. United States, 3 Wheat. 172, was referred to as sustaining this proposition. It was remarked, that a different principle would involve a denial to the general and the State governments of the ordinary rights of sovereignty.' United States v. Hodson, 10 Wall. 407.

Except as involved in the power to borrow money and purchase sites for public works, the power to make contracts is not expressly given by the Constitution, nor is it, in these decisions, placed upon any particular provision of that instrument, but is implied from the existence of a sovereignty to which it is necessarily incident.

There is no express grant of power to take land for public uses by right of eminent domain. For more than three-quarters of our national existence it was exercised only through the assent and agency of the several States. But, though long dormant, it has always existed, and is implied in the very idea of sovereignty. Kohl v. United States, 91 U. S. 371 et seq.

By the exercise of the right of eminent domain land is taken for public uses. If this result can be lawfully secured by a process in invitum, it would certainly seem that the United States might also accept land when voluntarily donated or devised. Its power to take and hold land, in order to secure, liquidate, or compromise debts due to it, had been recognized by legislation and judicial decision ever since the early days of the Republic. The validity of the statutes giving priority to such debts is inferred from the clause relating to the payment of the public debt, because this is an appropriate means of accomplishing this object. United States v. Fisher, 2 Cranch, 396; Metropolitan Bank v. Van Dyck, 27 N. Y. 437. The act of July 11, 1798, c. 72, § 15, 1 Stat. 594, gives a lien upon the real estate of public debtors, provides for the sale of it, and defeats the lien of prior judgment creditors. Thelusson v. Smith, 2 Wheat. 396; United States v. Duncan, 4 McLean, 607, and 12 Ill. 223; United States v. Mechanics' Bank, Gilpin, 51. A similar royal prerogative in England 'goes back as far as the period of legal memory.' Giles v. Grover, 9 Bing. 128, 192; Hoke v. Henderson, 3 Dev. (N. C.) 17.

Thus we see that the government may, with the strong hand, not only take land to erect forts and buildings thereon, but to obtain payment of its dues. Neilson v. Lagow, 12 How. 98-108.

It not only secures lands by right of eminent domain, by conveyance, by levy and sale under execution, but may also, by conquest or by proceedings in confiscation, acquire them without the assent f the State where they lie. Titus v. United States, 20 Wall. 483; United States v. Huckabee, 16 id. 434; United Insurance Company v. United States, 6 id. 759. Its power to take and hold lands, either by gift, contract, or force, is not derived from, nor can it be defeated by, State legislation.

Mr. James Flynn, contra.

1. New York is a sovereign State (4 Cranch, 209; 3 Cow. 686), and the original owner of the land within her limits. N. Y. Const., art. 1, sect. 11. Except in cases where jurisdiction is ceded, she has the sovereign and only right to make laws relating to that land (47 N. Y. 467; 4 McLean, 230; 19 Wall. 676; 17 Johns. 225; 20 How. 558; 5 Pet. 398; 1 Wood. & M. 76-80; 1 Kent, Com. 430); and she has never surrendered the regulation and control of its transmission, by will or devise. 52 N. Y. 534.

The validity of a devise, and the capacity or incapacity to devise, depend upon and are governed by the statutes and judicial decisions of the State within which the land is situate. Story on Conflict of Laws, sects. 465-474; McCormick v. Sullivant, 10 Wheat. 192; United States v. Crosby, 7 Cranch, 115; Kerr v. Moon, 9 Wheat. 565; Boyce v. City of St. Louis, 29 Barb. 650; White v. Howard, 46 N. Y. 144; Levy v. Levy, 33 id. 123, 136, 137; Aicardi v. The State, 19 Wall. 635.

The statute under consideration regulates the transmission of lands in New York, and in effect declares that they shall be devised only to such natural persons as are by law capable of holding by devise, or to such corporations as the State has expressly authorized, by charter or by statute, to take by devise. Holmes v. Mead, 52 N. Y. 340. In this case, the only question was as to the meaning of the statute; and it is well settled that this court will follow the construction given to State statutes by the courts of a State where the title to real property is involved. 13 Wall. 306.

2. The United States cannot take by devise. It exists under and by virtue of a written constitution. It has certain specified powers, and such others as are necessary to carry into effect those expressly granted. All other powers are reserved to the States respectively or to the people. U. S. Const., amend. 10; Story on the Const., sect. 1238; 1 Kent, Com. 251-254. Among its enumerated powers is not that of taking by devise. If it exists, it exists by implication. The experience of a century in peace and war has demonstrated that the government can exist without the power to take by devise, and that the right so to take is not necessary to carry into effect any express power. 1 Kent, Com. 254; Story on the Const., sect. 1239.

But if the power to take may be implied, there is no act of Congress authorizing it. That of May 1, 1820, Rev. Stat., sect. 3736, enacts that 'No land shall be purchased on account of the United States, except under a law authorizing such purchase.'

3. The United States has no common law. 8 Pet. 658. The appellant assumes, however, that certain common-law prerogatives of the king inhere in the United States, and for that reason are not affected by the statutes of New York.

There is no analogy between the position thus assumed and the principle that 'the king is not bound by any act of Parliament, unless he be named therein by special and particular words.' This principle only extends to the sovereign by or under whom the law was enacted. 3 Keyes, 125.

New York is sovereign, except where she has surrendered her sovereignty to the United States. The latter is sovereign for specific purposes; each within its proper sphere is independent of the other. 21 How. 506. The United States claims not by virtue of its own laws, but under a will made in professed pursuance of, and depending for its validity upon, the laws of another sovereignty; and it is as much bound by those laws as any foreign state or nation would be, under the same circumstances. Fox v. Ohio, 5 How. 410; Mayor of New York v. Mil , 11 Pet. 102; Barker v. The People, 3 Cow. 686.

MR JUSTICE FIELD, after stating the case, delivered the opinion of the court.