State of Lowa v. McFarland State of Illinois/Opinion of the Court

by Horace Gray

United States Supreme Court

110 U.S. 471

State of Lowa  v.  McFarland State of Illinois

The first question argued in each of these cases may be shortly stated thus: Is the state, under the compact made with it by congress at the time of its admission into the Union, by which 'five per cent. of the net proceeds' of public lands lying within the state, and 'sold by congress' after such admission, shall be reserved and appropriated for the benefit of the state, entitled to a percentage on the value of lands not sold by the United States for cash, but disposed of by the United States in satisfaction of military landwarrants? This question is rendered important by the large sums of money involved, and by the fact that similar stipulations are contained in acts passed by congress relating to 17 other western or southern states, beginning with section 7 of the act of April 30, 1802, c. 40, for the admission of the state of Ohio into the Union. 2 St. 175. Upon full consideration of the question, with the aid of the able arguments of counsel, the court is of opinion that lands disposed of by the United States in satisfaction of military land-warrants are not sold, within the meaning of the statutes upon which the petitioners rely. A sale, in the ordinary sense of the word, is a transfer of property for a fixed price in money or its equivalent. When property or money is transferred or paid as a compensation for service, the property or money may be said to be the price of the service; but it can hardly be said that the service is the price of the property or money, or that the property or money is sold to the person performing the service. Nor can it be said that the pay of an officer or soldier in the army or navy is sold to him by the government in consideration of a price paid by him. Land or money, other than current salary or pay, granted by the government to a person entering the military or naval service of the country, has always been called a bounty; and while it is by no means a gratuity, because the promise to grant is one of the considerations for which the soldier or sailor enters the service, yet it is clearly distinguishable from salary or pay measured by the time of service. For example, it was held by Lord MANSFIELD and the court of king's bench, in 1784, that though the master of an apprentice was entitled by the act of parliament of 2 & 3 Anne, c. 6, § 17, to the wages of his apprentice enlisting into the navy, yet the apprentice's share of prize money belonged to himself, and not to his master, because it was not wages, but the bounty of the crown. Carsan v. Watts, 3 Doug. 350; Eades v. Vandeput, 4 Doug. 1. Upon like grounds it has been held that bounty money paid by the United States, or by a state, city, or town, upon the enlistment of a minor as a soldier, during the recent war, belonged to him, and not to his father or master. Banks v. Conant, 14 Allen, 497; Kelly v. Sprout, 97 Mass. 169. See, also, Alexander v. Wellington, 2 Russ. & M. 35, 56, 64.

The learned counsel for the state of Iowa referred to Gen. Washington's circular letter of June 8, 1783, to the governors of the states, and especially to the passage in which he insisted that the half pay and commutation promised by the congress of the confederation to the officers of the army during the war of the revolution, 'should be viewed, as it really was, a reasonable compensation offered by congress, at a time when they had nothing else to give, to the officers of the army for services then to be performed; it was the only means to prevent a total dereliction of the service; it was a part of their hire; I may be allowed to say, it was the price of their blood and your independency; it is therefore more than a common debt; it is a debt of honor; it can never be considered as a pension or gratuity, nor be canceled until it is fairly discharged.' But in the very next paragraph he spoke of 'the bounties many of the soldiers have received,' 'besides the donation of lands.' The question before us is not whether the promise by the government of a bounty in land or money to persons entering the military service is a contract for valuable consideration, but whether, when carried into effect, it constitutes a sale by the government; and it is quite clear that land granted by way of reward for military services has never been treated, in the legislation of the United States upon the subject, as sold, but has always been considered as analogous to money paid in a gross sum by way of bounty. By the resolution of September 16, 1776, the congress of the confederation resolved that 'twenty dollars be given as a bounty' to each non-commissioned officer and private soldier enlisting to serve during the war, and that 'congress make provision for granting lands' to officers and soldiers in certain proportions; 'such lands to be provided by the United States,' and any necessary expenses in procuring them to be paid and borne by the United States in the same proportion as the other expenses of the war. 2 Jour. Cong. 357.

The act of Virginia of December 20, 1783, to cede the Northwest Territory to the United States, and the deed of cession of March 1, 1784, were upon the following conditions: That the territory so ceded should be laid out and formed into states, to be admitted members of the federal Union. That 'a quantity, not exceeding one hundred and fifty thousand acres of land, promised by this state, shall be allowed and granted' to Gen. George Rogers Clarke, and his officers and soldiers. 'That in case the quantity of good lands on the southeast side of the Ohio, upon the waters of Cumberland river, and between the Green river and Tennessee river, which have been reserved by law for the Virginia troops upon continental establishment, should, from the North Carolina line bearing in further upon the Cumberland lands than was expected, prove insufficient for their legal bounties, the deficiency should be made up to the said troops in good lands, to be laid off between the rivers Scioto and Little Miami, on the north-west side of the river Ohio, in such proportions as have been engaged to them by the laws of Virginia. That all the lands within the territory so ceded to the United States, and not reserved for or appropriated to any of the before-mentioned purposes, or disposed of in bounties to the officers and soldiers of the American army, shall be considered as a common fund for the use and benefit of such of the United States as have become or shall become members of the confederation or federal alliance of the said states.' 1 Const. & Chart. 427, 428.

The acts of congress under the constitution, containing grants of land or money to soldiers, have habitually and repeatedly spoken of them as bounties, using the words 'bounty of three months' pay and one hundred and sixty acres of land;' 'military bounty lands;' 'military land bounties;' 'bounty in money and land;' 'money bounty;' 'bounty of one hundred and sixty acres of land;' 'bounty in land;' 'bounty right;' 'bounty land;' and 'military land bounty.' Acts of December 24, 1881, c. 10, § 2; January 11, 1812, c. 14, § 12; May 6, 1812, c. 77; December 12, 1812, c. 4, § 3, (2 St. 669, 673, 729, 788;) January 28, 1814, c. 9, § 2; February 10, 1814, c. 11, § 4; December 10, 1814, c. 10, §§ 3-5, (3 St. 96, 97, 147;) February 11, 1847, c. 8, § 9; September 28, 1850, c. 85, (9 St. 125, 520.) See, also, Lessee of French v. Spencer, 21 How. 228; Maxwell v. Moore, 22 How. 185. They have never spoken of such grants of lands as sales, or of the lands granted as sold.

The very provisions of the acts for the admission of the states of Illinois and Iowa into the Union, which are the foundation of the claims now urged, clearly mark the distinction between lands sold for money and bounty lands granted for military services. In the Illinois act the agreement on the part of the United States is that 'five per cent. of the net proceeds of the lands lying within such state, and which shall be sold by congress,' 'shall be reserved,' part 'to be disbursed,' under the direction of congress, in making roads leading to the state, and the rest 'to be appropriated,' by the legislature of the state, for the encouragement of learning. And among the conditions to be performed on the part of the state are-First, 'that every and each tract of land sold by the United States' shall remain exempt from all state taxation for 'five years from and after* the day of sale;' second, 'that the bounty lands granted or hereafter to be granted for military services during the late war shall, while they continue to be held by the patentees or their heirs,' be exempt from state taxation for 'three years from and after the date of the patents respectively.' To hold that 'lands sold by congress' included 'bounty lands granted for military services' would make these two conditions contradictory of each other; for 'every and each tract of land sold by the United States' was to be absolutely exempt from state taxation for five years, whereas military bounty lands were to be exempt only while held by the patentees or their heirs, and not exceeding three years. The Iowa act manifests the same distinction; for, while it omits the provision exempting 'lands sold by the United States' from state taxation, it retains the provision exempting from taxation 'bounty lands granted for military services;' and it emphasizes the meaning of the leading clause of the proposition by inserting therein the words 'of sales,' so as to read 'five per cent. of the net proceeds of sales of all public lands lying within the said state, which have been or shall be sold by congress from and after the admission of said state, after deducting all the expenses incident to the same, shall be appropriated for making public roads and canals within the said state, as the legislature may direct.' When each of these acts speaks of lands 'sold by congress,' 'five per cent. of the net proceeds' of which shall be reserved, and be 'disbursed' or 'appropriate' for the benefit of the state in which the land lies, it evidently has in view sales in the ordinary sense, from which the United States receive proceeds, in the shape of money payable into the treasury, out of which the 5 per cent. may be reserved and paid to the state; and does not intend to include lands promised and granted by the United States as a reward for military service, for which nothing is received into the treasury. The question depends upon the terms in which the compact between the United States and each state is expressed, and not upon any supposed equity extending those terms to meaning. meaning.

From the very beginning of our existence as a nation, the reward of military service has been treated as a national object and a public use, to which the national domain might justly and lawfully be applied. As new states have been successively formed out of the territory of the United States and admitted into the Union, the acts of admission have reserved, for the making of public highways and other public uses of the state, a twentieth part of the net proceeds of public lands lying within the state, and afterwards sold by the United States. But public lands taken up on military land-warrants issued under general laws, passed for the national object of encouraging and rewarding military service, and not limited to any particular state, have no more been regarded as lands sold, for any portion of the value of which the national government should account to the state in which the lands are actually taken up, than lands reserved and used for forts, arsenals, or light-houses.

Some reliance is placed by the petitioners upon the acts of congress of August 14, 1848, c. 180, and March 22, 1852, c. 19, by which military land-warrants are made assignable, and are also made receivable, either from the original grantee or from his assignee, in payment for public lands, at the rate of $1.25 per acre. But the promise of the United States is made to the soldier at the time of his entering the service, and the grant, in execution of that promise, is made when the warrant is issued to him, and in consideration of services then already performed. At that time no particular land is transferred to him, nor even the state designated in which the land shall be. The selection of the land, which first determines the state where it is to be taken up, is the act, not of the government, but of the holder of the warrant. The government receives no new consideration, and makes no new promise or grant, when the warrant is assigned by the soldier, or when it is actually located by himself or his assignee, and the land and the state in which it lies thereby for the first time designated; and never, at any stage of the transaction, receives into the treasury any money from any person. The fact that the registers and receivers of the land-office, performing services in locating military bounty land warrants, are authorized by section 2 of the act of 1852 to demand and receive for their services, from the assignees or holders of such warrants, the same compensation 'to which they are entitled by law for sales of the public lands for cash, at the rate of one dollar and twenty-five cents per acre,' has no tendency to show that the United States, under their agreement to pay to the state 5 per cent. of the net proceeds of lands sold by congress, are bound to pay 5 per cent. on the value of lands which they have never sold, and for which they have received no money. The acts of March 2, 1855, c. 139, and March 3, 1857, c. 104, requiring 5 per cent. to be paid to the states on the value of lands included in reservations under treaties with the Indian tribes, had reference only to lands reserved to the Indians by stipulations in such treaties. The fact that the words 'as in case of other sales' are used in speaking of lands reserved for that purpose, and have never been so applied to lands disposed of in satisfaction of military land-warrants, appears to us, so far as it has any bearing, to imply an intention to exclude the latter from the class of lands sold, rather than to include them in this class.

That class of decisions of which U.S. v. Watkins, 97 U.S. 219, is an example, in which, under an act of congress providing that in case lands within territory ceded to the United States, claimed under grants previously made by foreign governments and since confirmed, should be sold by the United States before the confirmation, or could not be surveyed and located, the claimant should be entitled to so much public land in lieu thereof, it was held that lands granted by the United States to settlers thereon were included, rests upon the reasons that the claimant had been deprived of so much of his private property by the act of the United States, and that the statutes in pari materia used the words 'sold or disposed of.' Neither of those reasons is applicable to the cases before us.

The conclusion to which the court is brought, upon a consideration of the language of the statutes relied on, and of the nature of the subjects to which they refer, accords with the contemporaneous and uniform construction given to them by the executive officers charged with the duty of putting them in force. If the court had a doubt of the true meaning of their provisions, this practical construction would be entitled to great weight. Edwards' Lessee v. Darby, 12 Wheat. 206; U.S. v. State Bank of North Carolina, 6 Pet. 29; U.S. v. MacDaniel, 7 Pet. 1; Surgett v. Lapice, 8 How. 48; Smythe v. Fiske, 23 Wall. 374; U.S. v. Moore, 95 U.S. 760; U.S. v. Pugh, 99 U.S. 265; Swift Co. v. U.S. 105 U.S. 691, 695.

The petitioners failing to prove any lawful claim against the United States, it becomes unnecessary to determine the further question, discussed at the bar, whether the writ of mandamus is an appropriate remedy in such cases.

Petitions dismissed.

Notes