Although the states cannot tax the constitutional functions of the federal government, they may assess its real estate within the limits of the state. Thus, although a state cannot tax the federal mint or custom houses, yet it may tax the ground on which they stand, unless exempted by state authority. Such is the well-settled doctrine of the supreme court of the United States. In 1838, Judge McLean, of the supreme court of the United States, made the following decision:
"It is true, the United States held the proprietary right under the act of cession, and also the right of sovereignty until the state government was established; but the mere proprietary right, if it exists, gives no right of sovereignty. The United States may own land within a state, but political jurisdiction does not follow this ownership. Where jurisdiction is necessary, as for forts and arsenals, a cession of it is obtained from the state. Even the lands of the United States within the state are exempted from taxation by compact."
By the recent decision of the supreme court of the United States, so justly favorable to the rights and interest of the new states, especially those formed out of the territory acquired, like Kansas, since the adoption of the constitution, it is clear that the ownership of the public lands of such territory is viewed by the court exclusively as a proprietary right, carrying with it no political power or right of eminent domain, and affecting in no way the exercise of any of the soveereign attributes of state authority. When Kansas becomes a state, with all the attributes of state sovereignty coëxtensive with her limits, among these must be the taxing power, which is an inherent element of state authority. I do not dispute the title of the government to the public lands of Kansas, but I do say this right is that of an owner only, and that, when Kansas becomes a state, the public lands are subject to taxation by state authority, like those of any individual proprietor, unless that power is relinquished by the state in the ordinance, assuming the form of a compact, by which the state is admitted into the Union.
This relinquishment of the taxing power as to the public lands, so important to the general government, and which has heretofore been exacted by congress on their own terms from all the new states, is deeply injurious to a state, depriving her almost entirely of the principal recourse of a new state by taxation to support her government. Now that this question is conclusively settled by the supreme court of the United States, as a consequence of their recent decision, it is proper for the state, in making this relinquishment of the right to tax the public lands, to annex the conditions on which she consents to such exemption. This should be done in the constitution upon terms just to Kansas and to the federal government.
Should Kansas relinquish the right of taxing the public lands for an equivalent, she should, in my judgment, although sustained by irresistible conclusions from the decision of the supreme court of the United States, and sound constitutional views of state rights, place the question in its strongest form, by asking nothing more than has been granted to the other new states, including the grants for education, railroads, etc. She will thus give the highest proof that
