Page:Harvard Law Review Volume 32.djvu/759

NOTES 723 without regard to the will of Idaho, which we must assume on this record to authorize the levy if it is not protected by an act of Congress occupy- ing a paramount place." ^^ Authority, such as it is, is against this view.^^ The exemption could conceivably be enforced in one of two ways: first, as a qualification of the grant, or secondly, as legislation. The courts in giving it effect did not clearly comprehend the problem. They all point to the situation before the patent issues. Judge Dillon said: "It will be observed that Congress does not attempt to exempt the land from debts contracted after the patent has issued. . . . Before the title has thus passed, Con- gress, under its power to dispose of the public lands, may prescrilDe the terms and conditions upon which the disposition shall be made. . . ." " This and similar language from other courts is indicative of the weakness of their position. They apparently consider this exemption as a quali- fication of the grant,^^ and this possibility has been buried by Mr. Justice Holmes beneath the granite of unimpeachable reasoning, without so much as a requiescat in pace from the majority of the court. Can the exemption take effect as legislation? We must really look at the situation after the patent has divested the United States of title, when the levy is attempted. That is the time when the congressional enactment is to shield the land. If, at this date, Congress can control the alienability of the land for debts contracted prior to the patent, why not for debts contracted, say, within two years after the patent? The date of issue of the patent is not, in the fortunes of the settler, the turn- ing point at which he ceases to need protection from his creditors. The Federal Constitution provides: "The Congress shall have power to dis- pose of and make all needful rules and regulations respecting the terri- tory or other property belonging to the United States." ^^ Ours is a territorial scheme of government. It has been frequently asserted that the United States, in holding land within a state, has nothing in the nature of municipal sovereignty.^^ It must stand as a private proprietor, ^ Per Holmes, J., in Ruddy v. Rossi, note 2, supra. It is regrettable that the opinion of the court, written by Mr. Justice McReynolds, did not consider more particularly this argument. " Sorrels v. Self, 43 Ark. 451 (1884); Miller v. Little, 47 Cal. 348 (1874); Russell v. Lowth, 21 Minn. 167 (1874); Gile v. Hallock, 2,2> Wis. 523 (1873); Seymour v. Sanders, 3 DiU. (Fed.) 437 (1874)- " Per Dillon, J., in Seymour v. Sanders, 3 Dill. (Fed.) 437, 442 (1874). Much the same language appears in Sorrels v. Self, 43 Ark. 451, 454 (1884). " "To deny to Congress the power to make a vahd and effective contract of this character with the homestead claimant would materially abridge its power of dis- posal. . . ." Per Crockett, J., in Miller v. Little, 47 Cal. 348, 351 (1874). "Indeed, the exemption created by the act of Congress has never been looked upon as a homestead exempt at all. It is in the nature of a condition attached to the grant, in virtue of the power of the Federal government relating to the primary disposal of the soil, rather than in virtue of any poHce power vested in the government." Per Rudkin, J., in Ritzville Hardware Co. v. Bennington, 50 Wash, iii, 96 Pac. 826 (1908). This case, holding that the rule, exempting for a reasonable time the proceeds from the sale of a homestead exempt under the state laws, does not include the proceeds from the sale of a federal homestead, is most illiuninating. " Art. IV, § 3, par. 2. " Pollard's Lessee v. Hagan, 3 How. (U. S.) 212 (1845); Omaechevarria v. Idaho, 246 U. S. 343 (191 7); United States v. Railroad Bridge Co., 27 Fed. Cas. 686 (1855). See Camfield v. United States, 167 U. S. 518 (1897); Jones v. Florida C. & P. R. Co.,