The plaintiff, a corporation organized under the laws of Kansas, was in 1880, and has ever since been, the owner of a railroad in the reservation of the United States in that state, known as the 'Fort Leavenworth Military Reservation.' In that year its track, right of way, franchises, road-bed, telegraph line, and instruments connected therewith, on the reservation, were assessed by the board of assessors of the state, and a tax of $394.40 levied thereon, which was paid by the railroad company under protest, in order to prevent a sale of the property. The present action is brought to recover back the money thus paid, on the ground that the property, being entirely within the reservation, was exempt from assessment and taxation by the state.
The land constituting the reservation was part of the territory acquired in 1803 by cession from France, and, until the formation of the state of Kansas, and her admission into the Union, the United States possessed the rights of a proprietor, and had political dominion and sovereignty over it. For many years before that admission it had been reserved from sale by the properauthorities of the United States for military purposes, and occupied by them as a military post. The jurisdiction of the United States over it during this time was necessarily paramount. But in 1861 Kansas was admitted into the Union upon an equal footing with the original states; that is, with the same rights of political dominion and sovereignty, subject like them only to the constitution of the United States. Congress might undoubtedly, upon such admission, have stipulated for retention of the political authority, dominion, and legislative power of the United States over the reservation, so long as it should be used for military purposes by the government; that is, it could have excepted the place from the jurisdiction of Kansas, as one needed for the uses of the general government. But from some cause, inadvertence perhaps, or overconfidence that a recession of such jurisdiction could be had whenever desired, no such stipulation or exception was made. The United States, therefore, retained, after the admission of the state, only the rights of an ordinary proprietor; except as an instrument for the execution of the powers of the general government, that part of the tract, which was actually used for a fort or military post, was beyond such control of the state, by taxation or otherwise, as would defeat its use for those purposes. So far as the land constituting the reservation was not used for military purposes, the possession of the United States was only that of an individual proprietor. The state could have exercised, with reference to it, the same authority and jurisdiction which she could have exercised over similar property held by private parties. This defect in the jurisdiction of the United States was called to the attention of the government in 1872. In April of that year the secretary of war addressed a communication to the attorney general, inclosing papers touching the reservation, and submitting for his official opinion the questions, whether, under the constitution, the reservation of the land for a site as a military post and for public buildings took it out of the operation of the law of March 3, 1859, (11 St. 430,) and, if so, what action would be required on the part of the executive or congress to restore the land to the exclusive jurisdiction of the United States. The attorney general replied that the act admitting Kansas as a state into the Union had the effect to withdraw from federal jurisdiction all the territory within the boundaries of the new state, excepting only that of the Indians having treaties with the United States, which provided that without their consent such territory should not be subject to state jurisdiction, and the reservation was not within this exception; and that to restore the federal jurisdiction over the land included in the reservation, it would be necessary to obtain from the state of Kansas a cession of jurisdiction, which he had no doubt would, upon application, be readily granted by the state legislature. 14 Op. Attys. Gen. 33. It does not appear from the record before us that such application was ever made; but, on the twenty-second of February, 1875, the legislature of the state passed an act entitled 'An act to cede jurisdiction to the United States over the territory of the Fort Leavenworth military reservation,' the first section of which is as follows: