State of Lowa v. McFarland State of Illinois/Dissent Miller

MILLER, J., 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 contract. Taking the case of the state of Iowa, the sixth section of the act for her admission (5 St. 789) says that, in lieu of the propositions submitted to congress by the convention of the territory, which are rejected, the following propositions are hereby offered to the legislature of the state of Iowa, which, if accepted, shall be obligatory on the United States. They were accepted. The propositions were the result of a negotiation; of items accepted and others rejected in that negotiation. It was a fair bargain between competent parties. The fifth item of this contract is as follows:

'Fifth. That 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: provided, that the five foregoing propositions herein offered are on the condition that the legislature of the said state, by virtue of the powers conferred upon it by the convention which framed the constitution of the said state, shall provide by an ordinance, irrevocable without the consent of the United States, that the said state shall never interfere with the primary disposal of the soil within the same by the United States, nor with any regulations congress may find necessary for securing the title in such soil to the bona fide purchasers thereof; and that no tax shall be imposed on lands the property of the United States, and in no case shall non-resident proprietors be taxed higher than residents; and 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, remain exempt from any tax laid by order or under the authority of the state, whether for the state, county, or township, or any other purpose, for the term of three years from and after the dates of the patents respectively.

'Approved March 3, 1845'

The legal expression of this contract is that the state of Iowa has the right to tax all the lands of the government as soon as the government sells them. She may have other rights with regard to the disposal of these lands by the United States; as, for instance, in regard to title to aliens or corporations in perpetuity unacceptable to the state. Now, in consideration that she agrees to make no interference with the primary disposal of the soil or any regulations of congress for that purpose, that she will tax no non-resident in regard to said lands higher than she does residents, that she will impose no tax on the property of the United States, and no tax on lands granted for military services for three years after the dates of the patents, either for state, county, or township purposes, there shall be paid to the state 5 per cent, of the net proceeds of sales of all public lands lying within the state which have been or shall be sold by congress from and after the admission of the state.

The question raised here is whether the word 'sales' in this act of congress is limited to sales made for money, or whether lands used in payment for the services of her military and naval officers and soldiers are sold within the meaning of the statute. It seems probable that a false impression has been made by calling these latter bounties; and it is true in some cases where, after the service has been rendered, congress has granted lands as gratuity to the soldier or sailor, it is a bounty, and is not a sale in fact, or within the meaning of the statute. But the large body of these land-warrants were issued under statutes, which, in calling the men into service and in prescribing their compensation in advance, declared that for so many months' service they should, in addition to their monthly cash payment, receive so many acres of land, according to the length of their service. This was as much a part of the pay which the government agreed to make for his services as the cash payment. And to show that the government so considered it, a reference to the acts of 1847, to raise troops for the Mexican war, under which the largest part of the sales in Iowa was made, is all that is necessary. The ninth section of that act (9 St. 125) authorizes the soldier to receive, at his option, a land-warrant for 160 acres, to be located on any public lands or treasury scrip for $100; such scrip to be redeemable at the pleasure of, the government, and to bear interest at 6 per cent. per annum until paid. It was also enacted that those land-warrants should be received at the land-office in payment of any congressional subdivision of the public land at the rate of one dollar and a quarter per acre, the purchaser paying any balance above the value of the land-warrant in cash. 9 St. 332. And still later, it was enacted that a person having a pre-emption right to a tract of land should be entitled to use any such land-warrant in payment of the same, at the rate of $1.25 per acre. That they might be thus freely used in the purchase of the public lands, these warrants were by statute early made assignable, and it may be safely said that for years the largest part of the public lands sold by the land-offices were paid for by these land-warrants.

Blackstone defines a sale to be 'a transmutation of property from one man to another in consideration of some price.' 2 Bl. 446. And Kent says 'a sale is a contract for the transfer of property from one person to another for valuable consideration, and three things are requisite to its validity, viz., the thing sold, which is the object of the contract, the price, and the consent of the contracting parties.' 2 Kent, side p. 416. And though there is some controversy whether, in reference to personal property, the consideration is not to be paid in money, the use of the old phrase 'bargain and sale,' in regard to land, never required that the consideration should be exclusively a money payment. 2 Bouv. Law Dict. p. 494, cl. 6, 'Sale.'

But it surely was never contemplated in this compact between a state of the Union and the general government that if the government could dispose of her public lands, and secure their full price in other valuable considerations than money, that the state should thus be cheated out of the 5 per cent. of that value which she had a right to expect. The United States made these warrants the equivalent of money in purchase of these lands by the holders. They gave them the equivalent purchasing power of money and the quality of negotiability, and they gave the soldier the option of a treasury draft or a land-warrant when he had rendered the service. It is the merest quibble to say that where a man purchased a quarter section of the public lands with one of these warrants, the government had not sold him that land at a dollar and a quarter an acre.

No importance can be attached to the previous construction of the government. The amount in controversy attracted no attention until the location of the land-warrants for service in the Mexican war, and the lands in the territories were not subject to this 5 per cent. As early as 1858, when the locations under the Mexican war claims were thickest, Gov. Lowe of Iowa asserted this right in a letter to Mr. Thompson, secretary of the interior. This was immediately after the act of 1857, making it the duty of the land commissioner to state these accounts. The claim has been urged by that state ever since, except during the disastrous period of the civil war; and the senate of the United States passed a law recognizing the justice of the claim and that of other states, and ordering their payment during the last congress, but, on a motion to reconsider, it was tied up, and has not been acted on since.

I entertain no doubt of the legal as well as the moral obligation of the United States to pay to the states concerned the 5 per cent. on these sales which they have thus far withheld.

Mr. Justice FIELD concurs with me in this opinion.