such survey, and that the fee title could be divested only by payment of such lien. Since the fee title, coupled with an actual interest in the land, remained in the general government, the territory of Dakota was powerless to tax such land. It is true that by territorial statute the property of the United States was expressly exempted from taxation; but said statute was unnecessary, as the organic act of the territory forbade the taxation by the territory of the property of the Unted States, and the power cannot exist in a state to tax the property of the United States, even in the absence of all special provisions. McCulloch v. Maryland, 4 Wheat. 316; Van Brocklin v. Anderson, 117 U.S. 151,6 Sup. Ct. Rep. 670; Tucker v. Ferguson, 22 Wall. 527; People v. U. S., 93 Ill. 30.
Respondent claims that as to all matters of procedure, the rule of caveat emptor applies to tax-sale purchasers, but that it goes no further; that such purchaser is under no duty to inquire into the facts giving original jurisdiction to impose the tax; and that a taxing municipality should refund, in a case like this, when it has received money to which it had not only no legal right, but to which the territory was powerless to give it a legal right. On the argument this distinction impressed us, but upon full investigation we fail to find any direct support for it, either in authority or reason. The taxing powers of a state are plenary, and extend to all property within its jurisdiction not specially exempt. Prima facie, all property within any given county is taxable. The statute says, (§ 1541, Comp. Laws:) “All property, * * * except such property as is hereinafter expressly exempted, shall be subject to taxation.” The organic act of the territory of Dakota (§ 12) says: “The legislative power shall extend to all rightful subjects of legislation not inconsistent with the constitution and laws of the United States; but * * * no tax shall be imposed upon the property of the United States.” Clearly, this is a limitation—an exception to the general power. Taxation is a rule; freedom from taxation is the exception. Whoever would claim immunity must bring himself within the exception. He cannot make a prima facie case for recovery by simply alleging that he has been taxed. Butler v. Supervisors, 26 Mich. 22; Robertson v. Com-
