« AnteriorContinuar »
Statement of Facts.
ministerial and mandatory in its character, leaving no room for the exercise of his own judgment and discretion in its performance.
Upon each of these petitions a rule to show cause was granted at the last term. The Commissioner of the General Land Office at this term filed an answer, in the nature of a return to each rule, admitting that upon the facts stated in the petition, as modified and explained by the facts set forth below, he refused to state the account prayed for, and alleging that the grounds of his refusal were these :
First. That neither the act of Congress relating to the admission of the State into the Union, nor the acts of 1855 and 1857, authorized the State to claim a percentage upon public lands disposed of by the United States to the holders of bounty land warrants.
Second. That the meaning of those statutes had been established, as between the parties, by the contemporaneous and continuous construction thereof by the General Land Office and the State in numerous and important transactions, each of which suggested a question, if one existed, as to their construction.
In the case of the State of Iowa, the answer alleged that between August, 1848, and July, 1858, eleven different settlements had been made in the General Land Office for the percentage due to the State, covering in all the sum of $580,710.49, in none of which was the present claim suggested, although from time to time during that period large amounts of the public lands lying within the State had been disposed of by the United States to the holders of such warrants; that this contemporaneous practical construction had governed all transactions with the nineteen States interested in the statutory pro vision under consideration; that on September 7th, 1858, the State of Iowa made a formal demand upon the Secretary of the Interior as the official superior of the then Commissioner of the General Land Office, to be allowed the percentage now claimed ; and that its demand was refused, for the reason stated by the Secretary in the following letter to the Governor of Iowa:
Statement of Facts.
“Department of the Interior, September 20th, 1858. “In reply to your letter of the 7th instant, in relation to the application for an allowance of five per centum, claimed to be due the State of Iowa on military land warrant locations, I have the honor to state that, in my opinion, the act of 1847, to which you refer, is a bounty land act, and that no distinction can properly be made between locations made under it and those made under other bounty land laws. The location of warrants issued under the act of 1847 is not considered as constituting a sale of the public lands, as contemplated by the act admitting Iowa into the Union. That act appropriated five per cent. of the net proceeds of sales of all public lands for making public roads and canals within the State. There being no net proceeds accruing from locations by military land warrants, the allowance of five per centum on such locations cannot be regarded as having been appropriated or provided for by law.
“J. THOMPSON, Secretary. “ Governor R. P. Lowe, Iowa.
The answer in the case of the State of Iowa further alleged that this was the only demand ever made by the State of Iowa, or by any other State, upon the Secretary of the Interior or upon the Commissioner of the General Land Office, in accordance with the claim now set up; and that the State of Iowa had ever since practically acquiesced in the construction suggested by the Secretary of the Interior, and had confined its efforts to applications to Congress for a change in the statutes.
In the case of the State of Illinois, the answer alleged that from November, 1830, to September, 1863, thirty-three different settlements had been made, covering in all the sum of $711,744.82, and of which that made in 1863, for $1,565.80, was for Indian reservations only, in none of which was the present claim suggested, although from time to time during fifteen or more years of that period large amounts of the public lands lying within the State were disposed of by the United States to holders of bounty land warrants.
Each answer concluded by denying that the petitioner, in any view of the case, was entitled to a writ of mandamus.
Opinion of the Court.
Mr. Allen G. Thurinan, Mr. William M. Evarts, Mr. Samuel Shallabarger, Mr. R. P. Lowe and Mr. W.W. Wiltshire for petitioners.
Mr. M. L. Woods on behalf of the State of Alabama, also by leave of court filed a brief for the petition.
Mr. Solicitor-General opposing.
MR. JUSTICE GRAY delivered the opinion of the court. After stating the facts in the foregoing language, he continued :
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 land warrants ?
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 seventeen other western or southern States, beginning with $ 7 of the act of April 30th, 1802, ch. 40, for the admission of the State of Ohio into the Union. 2 Stat. 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 Opinion of the Court.
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 it 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, ch. 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. Co nant, 14 Allen, 497; Kelly v. Sprout, 97 Mass. 169. See also Alexander v. Wellington, 2 Russ. & Myl. 35, 56, 64.
The learned counsel for the State of Iowa referred to General Washington's Circular Letter of June 8th, 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 of 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 cancelled 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." Opinion of the Court.
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 16th, 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 Journals of Congress, 357.
The act of Virginia of December 20th, 1783, to cede the Northwest Territory to the United States, and the deed of cession of March 1st, 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 General 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 northwest 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,