# Cook County v. Calumet & C. Canal Dock Company/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
United States Supreme Court
138 U.S. 635
Cook County v. Calumet & C. Canal Dock Company
The rule is settled that, to give this court jurisdiction of a writ of error to a state court, it must appear affirmatively, not only that a federal question was presented for decision by the highest court of the state having jurisdiction, but that its decision was necessary to the determination of the cause, and that it was actually decided, or that the judgment as rendered could not have been given without deciding it. De Saussure v. Gaillard, 127 U.S. 216, 8 Sup. Ct. Rep. 1053; Johnson v. Risk, 137 U.S. 300, ante, 111. Tested by this rule, this writ of error cannot be sustained. The supreme court of Illinois held that title passed to that state by the act of congress, and that the plaintiff established a prima facie right to recover; but that as the state, in granting the lands to the countics, had the undoubted power to provide that purchasers who had bought and paid for the lands should be protected in their several purchases, and had so provided by its act of 1852, and this land had been 'sold by the United States' to Egan after September 28, 1850, within the meaning of that act, no title passed to the county. The judgment of the state court proceeded wholly upon the construction of the terms and conditions of the grant of the state to the county by the act of 1852, and as amended by the act of 1854, and the validity of those enactments was not drawn in question. The effect claimed by counsel as attributable to the act of congress of 1850, as operating as a grant in praesenti to the state of Illinois, was given to it by the supreme court, and the confirmatory act of congress of March 3, 1857, did not enter into the decision of the case, because under the conclusion reached there was no title in plaintiff to be confirmed. There was no decision against a claim or title asserted under the United States, but simply that the county did not obtain title under the grant of the state; that the act of 1852 imposed a positive duty on the county to transfer such title as it acquired to the purchaser from the United States; and that, where lands had been bought in good faith from the United States, the title to such lands did not become vested in the county, but passed to the purchaser under his entry. This construction by the state court of the laws of the state is controlling in the premises. gormley v. Clark, 134 U.S. 338, 348, 10 Sup. Ct. Rep. 554, and cases cited. It is said that as Cook county was under township organization law in 1852, and hence under the government of a board of supervisors, and not of county courts, it had no special legislative authority to dispose of swamp lands until the passage of the act of March 4, 1854, (Sess. Laws 1854, p. 184,) imparting that power, and that therefore the second section of the act of 1852 did not apply to that county. While this point does not seem to have been presented to the state court, yet, if the state did not intend to transfer title to the lands that had been entered from the United States, as was held by the court, the mere want of power to convey, which was at the next session of the general assembly supplied, would not require a different construction to the contrary of such intention. As the acts of congress referred to in the first and second errors assigned did not purport to vest title to swamp lands in Cook or any other county, and the court only passed upon the alleged grant by the state, we are unable to perceive that any federal question was, in this regard, necessarily or in fact decided.
It is further assigned for error that the supreme court sustained 'the trial court in the admission of improper testimony, to-wit, the register and receiver's certificate to the land in question, dated October 20, 1853, the same being illegal, and also because the same was canceled August 10, 1855, the subsequent chain of defendant's title resting upon said canceled certificate.' And the argument is that the validity of an authority exercised under the United States, namely, the action of the land deparmen t, was drawn in question, and that the decision was against its validity, because against the validity of the alleged cancellation. The trial court was not requested to hold the entry void because of cancellation; and we think the plaintiff's objection to the admission of the certificate in evidence, and its request for a ruling that the Egan entry was canceled, and that such cancellation, 'in the absence of any facts or evidence showing the circumstances which led to its cancellation, must be presumed to have been based upon sufficient facts to authorize it,' did not draw the validity of the authority of the department in question within section 709, Rev. St., upon which section our jurisdiction rests. The validity of a statute is not drawn in question every time rights claimed under such statute are controverted, nor is the validity of an authority every time an act done by such authority is disputed. The validity of the authority here was not primarily denied, and the denial made the subject of direct inquiry. U.S. v. Lynch, 137 U.S. 280, ante, 114; Railroad Co. v. Hopkins, 130 U.S. 210, 9 Sup. Ct. Rep. 503. The court may have concluded that the transaction as shown by the memoranda was a substitution by Egan, with the consent of the officers of the land department, of warrant No. 101,043 for the original warrant No. 2,495, which for some erasure was suspended; and that the alleged cancellation was not a cancellation of the purchase and entry, but of the location under the suspended warrant; and that although the official order of substitution was not made by the commissioner until 1883, yet that it was manifest from the in dorsements that it had been made, in fact, in 1855. At all events, it ruled that the entry by Egan, and the receipt and retention by the United States of the money and warrant delivered by him in payment therefor, was a sale by the United States of the land to Egan. Certainly, the plaintiff did not specially set up or claim any title by reason of the alleged cancellation, and the court rendered no decision against a title so specially set up or claimed. Chappell v. Bradshaw, 128 U.S. 132, 9 Sup. Ct. Rep. 40. In Neilson v. Lagow, 7 How. 772, 775, the plaintiff claimed land under an authority exercised by the secretary of the treasury in behalf of the United States, and the decision was against the validity of the authority thus exercised; and such was the case in Lytle v. Arkansas, 22 How. 193. The claim of title here was under the act of the legislature of Illinois, and the question arising on Egan's entry and purchase of the land was as to whether the land had been sold by the United States within the intent and meaning of the act of June 22, 1852. The supreme court did indeed say, in relation to this matter, that the commissioner had no authority to vacate the entry, and that any order that he might have made did not affect the rights of Egan, and cited to the proposition the case of Brill v. Stiles, 35 Ill. 305, where it was held 'that the mere fact that an entry has been declared void by the commissioner of the general land-office does not have the effect of vacating the entry.' In other words, the court was of opinion that the commissioner could not, without notice and arbitrarily, deprive a person of land lawfully entered and paid for, as was ruled in Cornelius v. Kessel, 128 U.S. 456, 461, 9 Sup. Ct. Rep. 122. But the expression of this view, in construing the language of the state statute, was not a decision against a title specially set up or claimed under an authority exercised under the United States, nor against the validity of such an authority.
It is, however, earnestly urged that the supreme court erred 'in holding that under the act of June 22, 1852, of said state, said land was conveyed to said Cook county upon a condition, and not absolutely, the action of said court in holding that the act of March 4, 1854, of said state, tiansferred said title of Cook county in said land to William B. Egan and his ssi gns, impaired the obligation of the contract in said act of 1852, whereby said land was conveyed to said Cook county.' This contention, as we understand it, is that although the county was merely a public corporation, and held the swamp lands for public purposes as an agency of the state, yet the act of 1852 was a contract between the state and the county, which the state could not by subsequent legislation change; and that the act of March 4, 1854, impaired the obligation of the grant to the plaintiff in the prior act. We cannot find that this question was raised in the trial court or in the supreme court, nor do we understand that the supreme court held, as asserted, that the act of 1854 transferred the title of Cook county to Egan. It was the act of 1852 that the court proceeded upon; and the act of 1854, relating to the manner in which the conditions imposed by the act of 1852 should be given effect, added nothing to those conditions, and was not treated by the court as controlling the question of title. And it would be sufficient to dispose of the contention that no such point was raised in the state court.
As to the admission in evidence of the certificate to Bunn and the patent to Bowen, the trial court made no findings as to this entry, and the decision of the expressed on the face of the act, of nor do the other assignments of error require any observations. These swamp lands were granted to the several states in which they were situated for the purpose, pose, expressed on the face of the act, of enabling them to construct the necessary levees and drains to reclaim them; and the language of the proviso to the second section was 'that the proceeds of said lands, whether from sale or by direct appropriation in kind, shall be applied exclusively, as far as necessary, to the purpose of reclaiming said lands by means of the levees and drains aforesaid.' We have repeatedly held that the state had full power of disposition of the lands, and that the application of the proceeds to the purposes of the grant rested upon the good faith of the state, which might exercise its discretion as to their disposal. Mills Co. v. Railroad Cos., 107 U.S. 557, 566, 2 Sup. Ct. Rep. 654; U.S. v. Louisiana, 127 U.S. 182, 187, 8 Sup. Ct. Rep. 1047. The acts of the general assembly of the state of Illinois were in entire harmony with the acts of congress, and the intention of the legislation was, as the supreme court of Illinois held, to protect the title of purchasers from the United States, after the passage of the act of September 28, 1850, which took effect as a grant in praesenti, while it was sought by the Illinois acts to secure to the counties the right to receive the consideration for the lands, as well as to the purchasers the title of the state. We have carefully considered the record in the light of the elaborate arguments of counsel for plaintiff in error, but are constrained to hold that we have no jurisdiction to review the judgment of the state court, and the writ of error will therefore be dismissed.

## Notes

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