Opinion of the Court.

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 Constitutions and Charters, 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 24th, 1811, ch. 10, § 2; January 11th, 1812, ch. 14, § 12; May 6th, 1812, ch. 77; December 12th, 1812, ch. 4, § 3; 2 Stat. 669, 673, 729, 788; January 28th, 1814, ch. 9, § 2; February 10th, 1814, ch. 11, §4; December 10th, 1814, ch. 10, §§ 3-5; 3 Stat. 96, 97, 147; February 11th, 1847, ch. 8, 89; September 28th, 1850, ch. 85; 9 Stat. 125, 520. See also 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

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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 with 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 "appropriated" 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 five 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 cases not fairly embraced within their meaning.

Opinion of the Court.

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 14th, 1848, ch. 180, and March 22d, 1852, ch. 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 one dollar and twenty-five cents 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,

Opinion of the Court.

are authorized by § 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 five per cent. of the net proceeds of lands sold by Congress, are bound to pay five per cent. on the value of lands which they have never sold, and for which they have received no money.

The acts of March 2d, 1855, ch. 139, and March 3d, 1857, ch. 104, requiring five per cent. to be paid to the States on the value of lands included in reservations under treaties with 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 United States 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

Dissenting Opinion: Miller, Field, JJ.

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 v. Darby, 12 Wheat. 206; United States v. State Bank of North Carolina, 6 Pet. 29; United States v. McDaniel, 7 Pet. 1; Surgett v. Lapice, 8 How. 48; Smythe v. Fiske, 23 Wall. 374; United States v. Moore, 95 U. S. 760; United States v. Pugh, 99 U. S. 265; Swift Co. v. United States, 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.

MR. JUSTICE MILLER, with whom concurred MR. JUSTICE FIELD, dissenting.

I do not concur in the judgment of the court in this case, if that can be called a judgment in which the court, declining to consider the question of its jurisdiction, decides that if it had jurisdiction the petitioners make no case for relief.

I doubt very much whether this court has jurisdiction in a suit by a State to establish an obligation of the United States to pay to the State a sum of money, by compelling one of the auditing officers of the United States to state an account under the direction of the court according to a rule which the court may prescribe to him.

I discuss this matter no further, but to observe that if the court has no such jurisdiction its opinion is of no value beyond the force of its argument and the weight of character of the judges who concur in it.

The opinion concedes that the acts of Congress under which the States of Illinois and Iowa were admitted into the Union, and the acceptance of their provisions, are compacts. If any less sanctity is due to these provisions by calling the matter a compact instead of a contract it is not perceptible to me. It is not denied that the State and the United States were capable of contracting. It is not denied in the opinion that they did