# State of Lowa v. McFarland State of Illinois

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## Dissenting Opinion

    Miller
United States Supreme Court
110 U.S. 471
State of Lowa v. McFarland State of Illinois
These are petitions filed in this court by each of the states of Iowa and Illinois, at the relation of its governor, relying upon the provision of an act of congress relating to its admission into the Union, by which it was agreed that 'five per cent. of the net proceeds' of lands lying within the state, and afterwards 'sold by congress,' should be appropriated for certain public uses of the state; contending that the state was thereby entitled to 5 per cent. of the value, computed at the rate of $1.25 per acre of lands disposed of by congress in satisfaction of military land warrants, and praying for a writ of mandamus to the commissioner of the general land-office, to compel him, in accordance with section 456 of the Revised Statutes, to state an account between the United States and the state, for the purpose of ascertaining the sum of money so due to the state, and to transmit the account to the comptroller of the treasury for his examination and action, to the end that that sum might be allowed and paid by the United States.
The provisions of the acts of congress, on which the petitioners rely, are as follows: The sixth section of the act of congress of March 3, 1845, c. 76, supplemental to the act of the same day by which the state of Iowa was admitted into the Union, contained, among the propositions offered to the legislature of the state for its acceptance or rejection, and which, if accepted under the authority conferred on the legislature by the convention which framed the constitution of the state, should be obligatory upon the United States, the following:
'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 that 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 state, county, township, or any other purpose, for the term of three years from and after the date of the patents, respectively.' 5 St. 790.
The sixth section of the act of congress of April 18, 1818, c. 67, to enable the people of the Illinois territory to form a constitution and state government, and for the admission of the state of Illinois into the Union, contained, among the propositions offered to the convention of the territory, and which, if accepted by the convention, should be obligatory upon the United States, the following: 'Third. That five per cent. of the net proceeds of the lands lying within such state, and which shall be sold by congress from and after the first day of January, one thousand eight hundred and nineteen, after deducting all expenses incident to the same, shall be reserved for the purposes following, viz., two-fifths to be disbursed, under the direction of congress, in making roads leading to the state, the residue to be appropriated, by the legislature of the state, for the encouragement of learning, of which one-sixth part shall be exclusively bestowed on a college or university: provided always, that the four foregoing propositions, herein offered, are on the conditions that the convention of the said state shall provide, by an ordinance, irrevocable without the consent of the United States, that every and each tract of land sold by the United States from and after the first day of January, one thousand eight hundred and nineteen, shall remain exempt from any tax laid by order or under any authority of the state, whether for state, county or township, or any other purpose whatever, for the term of five years from and after the day of sale; and further, 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, as aforesaid, from all taxes, for the term of three years from and after the date of the patents respectively; and that all the lands belonging to citizens of the United States, residing without the said state, shall never be taxed higher than lands belonging to persons residing therein.' 3 St. 430, 431.
By the act of congress of March 2, 1855, c. 139, entitled 'An act to settle certain accounts between the United States and the State of Alabama,' it was enacted as follows: 'That the commissioner of the general land-office be, and he is hereby, required to state an account between the United States and the state of Alabama, for the purpose of ascertaining what sum or sums of money are due to said state, heretofore unsettled, under the sixth section of the act of March second, eighteen hundred and nineteen, for the admission of Alabama into the Union; and that he be required to include in said account the several reservations under the various treaties with the Chickasaw, Choctaw, and Creek Indians within the limits of Alabama, and allow and pay to said state five per centum thereon, as in case of other sales.' 10 St. 630.
By the act of June 3, 1857, c. 104, entitled 'An act to settle certain accounts between the United states and the state of Mississippi and other states,' it was enacted as follows:
'Section 1. That the commissioner of the general land-office be, and he is hereby, required to state an account between the United States and the state of Mississippi, for the purpose of ascertaining what sum or sums of money are due to said state, heretofore unsettled, on account of the public lands in said state, and upon the same principle of allowance and settlement as prescribed in the 'Act to settle certain accounts between the United States and the state of Alabama,' approved the second March, eighteen hundred and fiftyfive; and that he be required to include in said account the several reservations under the various treaties with the Chickasaw and Choctaw Indians, within the limits of Mississippi, and allow and pay to the said state five per centum thereon, as in case of other sales, estimating the lands at the value of one dollar and twenty-five cents per acre.
'Sec. 2. That the said commissioner shall also state an account between the United States and each of the other states upon the same principles, and shall allow and pay to each state such amount as shall thus be found due, estimating all lands and permanent reservations at one dollar and twenty-five cents per acre.' 11 St. 200.
Each petition alleged that the state had accepted the propositions, and faithfully kept and performed on its part the conditions set forth in the act of admission; that, prior to the dates of the passage of the acts of 1855 and 1857 respectively, the 5 per cent. on the cash sales of the public lands lying within the states of Alabama and Mississippi had been regularly and periodically paid to those states respectively, so that at those dates there were no unsettled accounts, growing out of the 5 per cent. clause of the acts for the admission of those states into the Union, except for lands entered and purchased with military land warrants; and that by the act of 1857 it was the duty of the commissioner of the general land-office, when required to do so, to state an account between the United States and each state upon the same principles of allowance as prescribed in the act of 1855, and by that act it was his duty, upon proper application, to state such an account for the purpose of ascertaining what sum or sums of money, theretofore unsettled under the act for the admission of the state into the Union, were due to it on account of lands lying within the state, disposed of by the United States for, or in the satisfaction and redemption of, military land warrants issued by the United States for military services. Each petition further alleged that the government of the United States, in disposing of the public lands by sale in this and other western states, adopted two methods,-one for cash; the other for the redemption of its outstanding military warrants or obligations, calling for a specific quantity of land, issued to the soldiers who had enlisted and served in the different wars of the country, under statutes enacted in advance of their enlistments, and as a compensation for their military services. Each petition suggested that by the act of August 14, 1848, c. 180, (9St. 332,) military land warrants were made receivable, at the rate of $1.25 per acre for the number of acres therein contained, in payment for any of the public lands subject to private entry; and that by the act of March 22, 1852, c. 19, (10 St. 3,) all military land warrants theretofore and thereafter issued were made assignable by the persons to whom they were issued, and also made receivable from their assignees, at the rate aforesaid per acre, in payment for any of the public lands located and taken up under the pre-emption laws of the United States. Each petition further alleged that the 5 per cent. had been allowed and paid to the petitioner, at stated and proper periods, on sales for cash, but had been withheld on lands located and purchased with military land warrants; that the sum so withheld amounted to $881,006.60 in the case of Iowa, and $595,853.31 in the case of Illinois; that the respondent, though formally requested, had refused to state an account as prayed for; and that the duty of stating such an account was purely 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, 11 different settlements had been made in the general land-office for the percentage due to the state, convering 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 19 states interested in the statutory provision under consideration; that on September 7, 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: 'DEPARTMENT OF THE INTERIOR, September 20th, 1858.
'In reply to your letter of the seventh 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, 33 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 15 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.
S. Shellabarger, A. G. Thurman, W. M. Evarts, R. P. Lowe, and W. W. Wilshire, for petitioners.
Sol. Gen. Phillips, for respondent.
GRAY, J.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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