Wallace v. Parker/Opinion of the Court

This is a writ of error to a decree pronounced by the supreme court of the state of Ohio, sitting in and for the county of Brown, in a case in which the defendant in error was plaintiff. The case must therefore be brought within the twenty-fifth section of the judicial act, or this court cannot take jurisdiction of it.

The plaintiff in error alleges that the construction of an act of congress was drawn in question on the trial, and that the decision was against the title set up under the act; and also, that the construction of a state law was drawn in question, as being contrary to an act of congress, and the decision was in favour of the party claiming under the state law.

Josiah Parker obtained a land warrant from the land office of Virginia, for his services in the Virginia line, on continental establishment. The defendant in error having located the warrant on lands in the military reserve, and received a patent therefor, instituted a suit in chancery against the plaintiff in error, who held the same land under a prior grant, and obtained a decree for a conveyance. This court cannot examine the general merits of the decree. Our inquiries are in this case limited to the question, whether the record shows that an act of congress has been misconstrued, to the injury of the plaintiff in error, or the title of the defendant in error has been sustained by a law of a state which is repugnant to a law of the United States. Both questions depend on the construction of the act by which Virginia ceded the territory she claimed northwest of the river Ohio to the United States, of the resolution accepting the deed of cession, and of the acts of congress prolonging the time for completing titles to lands within the Virginia military reservation.

The dees of cession was executed by the members of congress, then representing the state of Virginia, on the 1st of March 1784; in virtue of a power conferred on them by the act of cession, which act it recites. One of the conditions on which the cession is made, is, 1 Laws U.S. p. 474, 'that in case the quantity of good lands on the southeast side of the Ohio,' 'which have been reserved by law, for the Virginia troops or continental establishment, should' '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 Sciota and Little Miamis, on the northwest side of the river Ohio, in such proportions as have been engaged to them by the laws of Virginia.'

The deed was accepted by congress according to its terms. The act of cession to which the deed refers was passed on the 20th of December 1783.

In his answer to an amended bill filed by the plaintiff in the state court, the defendant says 'that if the complainant's entry does contain that certainty and precision which the law requires, in order to constitute a valid entry, yet the complainant has no equitable claim to the lands in question, because, first, said entry is based upon a resolution warrant, which is not protected by any act of congress; and cannot, therefore, be a foundation on which to base a valid entry.' The warrant to which the anwer refers is in the usual form, and does not purport to have been issued in virtue of a resolution. But the warrant did in fact issue on a resolution which appears in the proceedings in the cause.

It appears that Colonel Josiah Parker presented a petition to the general assembly of Virginia, in which he stated himself to have served two years and ten months in the Virginia line or continental establishment, after which he resigned his commission as a colonel in the army. That since his resignation he had been called into service as colonel, commanding a corps of militia, during every invasion of the state. He prays that the assembly will grant him a colonel's allowance of lands. This petition was referred to a committee, whose report stated the facts, and concluded with the following resolution. 'Resolved, that the petition of the said Josiah Parker, praying that he may be allowed the bounty in lands, by law given to a colonel in the continental line, is reasonable. This resolution was approved by the senate, and was passed the 20th of November 1783.

In March 1807, congress passed an act, extending the time for locating Virginia military land warrants, which enacts 'that the officers and soldiers of the Virginia line or continental establishment, their heirs or assigns, entitled to bounty lands within the tract reserved by Virginia, between the little Miami and Sciota rivers, for satisfying the legal bounties to her officers and soldiers upon continental establishment, shall be allowed a further time,' &c. This act was continued by subsequent acts, so as to be in force when the survey was made under which the complainant in the state court obtained his decree. Does the act cover his case?

We think it extends to every case which comes within the reservation made by Virginia in her act of cession. The deficiency of good lands on the southeast of the river Ohio, having been admitted by congress, the inquiry is, whether the warrant granted to Josiah Parker is among those for which the reserve on the northwestern side of that river was made?

The resolution grants the land to Josiah Parker as a colonel in the continental line. At the time it was passed, Virginia possessed the territory in which it was located in absolute sovereignty. The deed of cession had not been executed, nor had the act been passed by which that deed was authorised. Congress, by accepting the cession, admitted the right to make it, and that right has never since been drawn into question.

The resolution then gave to Josiah Parker all the right it purported to give. What was that? 'The bounty in lands by law given to a colonel in the continental line.' By this resolution Josiah Parker was placed by the state of Virginia on precisely the same footing with a colonel who claimed under the act which had previously been passed. Had the cession never been made, no distinction could have been taken between them. The officer by whom the warrant was issued, perceived no distinction, and the warrant is expressed to be 'for his services for three years as a colonel in the Virginia continental line.' To discover what services the legislature received as an equivalent for two months of this time, services performed at the head of corps of militia, we must look at the petition and the report of the committee.

But the legislature at that time possessed the same power to bestow their bounty on an officer who had performed the services stated in Colonel Parker's petition, and in the report of the committee, as on one who had completed his three years in the continental line. They possessed the same power to bestow that bounty on an individual in the form of a resolution, as on their officers, generally, in the form of an act. The one conferred the same rights as the other, and was equally obligatory on the state. Had the lands been retained by Virginia, no distinction could have been made between these claims, and it is impossible to perceive any reason why she should have distinguished between them in the reservation contained in her act of cession. Do the words of the act set up this distinction?

They are 'that in case the quantity of good land on the southeast side of the Ohio, which have been allowed by law for the Virginia troops upon continental establishment, should,' 'prove insufficient for their legal bounties, the deficiency should be made up,' &c.

It cannot be doubted that Colonel Parker's warrant might have been located on the land 'reserved by law on the southeast side of the Ohio, for the Virginia troops upon continental establishment.'

This reservation is made in general terms. It is not connected with the allotment of specific quantities for specific services. Provisions were afterwards made for this subject, and those provisions varied at different times. At one time, service was required during the war; by another act three years service entitled the officer to his bounty, and an increased bounty was allowed for those who had served six years and upwards. Officers who resigned after serving three years, were entitled to the bounty by an act which was passed so late as the year 1782. Particular resolutions were passed afterwards, in favour of officers who were deemed by the legislature to have performed services as meritorious as if they had remained in the regular army for three years. All these warrants were equally entitled to be satisfied out of the land 'reserved by law on the southeast side of the Ohio for the Virginia troops on continental establishment.' They were equally 'legal bounties,' equally bounties 'which had been engaged to them by the laws of Virginia,' before her cession of the territory northwest of the Ohio; for a resolution receiving the assent of both houses, is a law as operative as an act of assembly.

If, then, under the laws of Ohio, we may consider the petition of Colonel Parker and the report of the committee as part of the record in this cause, the court of Ohio does not appear to us to have misconstrued the act of cession or any act of congress.

The decree of the supreme court of the state of Ohio sitting in and for the county of Brown is affirmed with costs.

This cause came on to be heard on the transcript of the record, from the supreme court of the state of Ohio, setting in and for the county of Brown, and was argued by counsel; on consideration whereof, it is ordered, adjudged and decreed by this Court, that the judgment and decree of the said supreme court in this cause be, and the same is hereby affirmed, with costs.