Opinion of the Court.

Mr. Allen G. Thurman, Mr. William M. Evarts, Mr. Samuel Shallabarger, Mr. R. P. Lowe and Mr. W. W. Wiltshire for petitioners.

Mr. M. L. Woods on behalf of the State of Alabama, also by leave of court filed a brief for the petition.

Mr. Solicitor-General opposing.

MR. JUSTICE GRAY delivered the opinion of the court. After stating the facts in the foregoing language, he continued:

The first question argued in each of these cases may be shortly stated thus: Is the State, under the compact made with it by Congress at the time of its admission into the Union, by which "five per cent. of the net proceeds" of public lands lying within the State, and "sold by Congress" after such admission, shall be reserved and appropriated for the benefit of the State, entitled to a percentage on the value of lands, not sold by the United States for cash, but disposed of by the United States in satisfaction of military land warrants?

This question is rendered important by the large sums of money involved, and by the fact that similar stipulations are contained in acts passed by Congress relating to seventeen other western or southern States, beginning with § 7 of the act of April 30th, 1802, ch. 40, for the admission of the State of Ohio into the Union. 2 Stat. 175.

Upon full consideration of the question, with the aid of the able arguments of counsel, the court is of opinion that lands disposed of by the United States in satisfaction of military land warrants are not sold, within the meaning of the statutes upon which the petitioners rely.

A sale, in the ordinary sense of the word, is a transfer of property for a fixed price in money or its equivalent. When property or money is transferred or paid as a compensation for service, the property or money may be said to be the price of the service; but, it can hardly be said that the service is the price of the property or money, or that the property or money is sold to the person performing the service. Nor can it be said that the pay of an officer or soldier in the army or navy is

Opinion of the Court.

sold to him by the government in consideration of a price paid by him.

Land or money, other than current salary or pay, granted by the government to a person entering the military or naval service of the country, has always been called a bounty; and while it is by no means a gratuity, because the promise to grant it is one of the considerations for which the soldier or sailor enters the service, yet it is clearly distinguishable from salary or pay measured by the time of service. For example, it was held by Lord Mansfield and the Court of King's Bench in 1784, that though the master of an apprentice was entitled by the act of Parliament of 2 & 3 Anne, ch. 6, § 17, to the wages of his apprentice enlisting into the navy, yet the apprentice's share of prize money belonged to himself, and not to his master, because it was not wages, but the bounty of the crown. Carsan v. Watts, 3 Doug. 350; Eades v. Vandeput, 4 Doug. 1. Upon like grounds, it has been held that bounty money paid by the United States, or by a State, city or town, upon the enlistment of a minor as a soldier, during the recent war, belonged to him, and not to his father or master. Banks v. Conant, 14 Allen, 497; Kelly v. Sprout, 97 Mass. 169. See also Alexander v. Wellington, 2 Russ. & Myl. 35, 56, 64.

The learned counsel for the State of Iowa referred to General Washington's Circular Letter of June 8th, 1783, to the governors of the States, and especially to the passage in which he insisted that the half pay and commutation promised by the Congress of the Confederation to the officers of the army, during the war of the Revolution, "should be viewed, as it really was, a reasonable compensation offered by Congress, at a time when they had nothing else to give, to the officers of the army for services, then to be performed; it was the only means to prevent a total dereliction of the service; it was a part of their hire; I may be allowed to say, it was the price of their blood and of your independency; it is therefore more than a common debt; it is a debt of honor; it can never be considered as a pension or gratuity, nor be cancelled until it is fairly discharged." But in the very next paragraph he spoke of "the bounties many of the soldiers have received," "besides the donation of lands."

Opinion of the Court.

The question before us is not whether the promise by the government of a bounty in land or money to persons entering the military service is a contract for valuable consideration; but whether, when carried into effect, it constitutes a sale by the government; and it is quite clear that land granted by way of reward for military services has never been treated, in the legislation of the United States upon the subject, as sold, but has always been considered as analogous to money paid in a gross sum by way of bounty.

By the resolution of September 16th, 1776, the Congress of the Confederation resolved that "twenty dollars be given as a bounty" to each non-commissioned officer and private soldier enlisting to serve during the war, and that "Congress make provision for granting lands" to officers and soldiers in certain proportions; "such lands to be provided by the United States," and any necessary expenses in procuring them to be paid and borne by the United States in the same proportion as the other expenses of the war. 2 Journals of Congress, 357.

The act of Virginia of December 20th, 1783, to cede the Northwest Territory to the United States, and the deed of cession of March 1st, 1784, were upon the following conditions: That the Territory so ceded should be laid out and formed into States, to be admitted members of the Federal Union. That,

"A quantity, not exceeding one hundred and fifty thousand acres of land, promised by this State, shall be allowed and granted" to General George Rogers Clarke and his officers and soldiers. "That in case the quantity of good lands on the southeast side of the Ohio, upon the waters of Cumberland River, and between the Green River and Tennessee River, which have been reserved by law for the Virginia troops upon Continental establishment, should, from the North Carolina line bearing in further upon the Cumberland lands than was expected, 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 Scioto and Little Miami, on the northwest side of the river Ohio, in such proportions as have been engaged to them by the laws of Virginia. That all the lands within the territory so ceded to the United States, and not reserved for or appropriated to any of the before mentioned

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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Opinion of the Court.

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.