Opinion of the Court.

From the very beginning of our existence as a nation, the reward of military service has been treated as a national object and a public use, to which the national domain might justly and lawfully be applied. As new States have been successively formed out of the territory of the United States, and admitted into the Union, the acts of admission have reserved, for the making of public highways and other public uses of the State, a twentieth part of the net proceeds of public lands lying within the State, and afterwards sold by the United States. But public lands taken up on military land warrants issued under general laws, passed for the national object of encouraging and rewarding military service, and not limited to any particular State, have no more been regarded as lands sold, for any portion of the value of which the national government should account to the State in which the lands are actually taken up, than lands reserved and used for forts, arsenals or light-houses.

Some reliance is placed by the petitioners upon the acts of Congress of August 14th, 1848, ch. 180, and March 22d, 1852, ch. 19, by which military land warrants are made assignable, and are also made receivable, either from the original grantee or from his assignee, in payment for public lands, at the rate of one dollar and twenty-five cents per acre. But the promise of the United States is made to the soldier at the time of his entering the service, and the grant, in execution of that promise, is made when the warrant is issued to him, and in consideration of services then already performed. At that time, no particular land is transferred to him, nor even the State designated in which the land shall be. The selection of the land, which first determines the State where it is to be taken up, is the act, not of the government, but of the holder of the warrant. The government receives no new consideration, and makes no new promise or grant, when the warrant is assigned by the soldier, or when it is actually located by himself or his assignee, and the land and the State in which it lies thereby for the first time designated; and never, at any stage of the transaction, receives into the treasury any money from any person.

The fact that the registers and receivers of the land office, performing services in locating military bounty land warrants,

Opinion of the Court.

are authorized by § 2 of the act of 1852 to demand and receive for their services, from the assignees or holders of such warrants, the same compensation "to which they are entitled by law for sales of the public lands for cash, at the rate of one dollar and twenty-five cents per acre," has no tendency to show that the United States, under their agreement to pay to the State five per cent. of the net proceeds of lands sold by Congress, are bound to pay five per cent. on the value of lands which they have never sold, and for which they have received no money.

The acts of March 2d, 1855, ch. 139, and March 3d, 1857, ch. 104, requiring five per cent. to be paid to the States on the value of lands included in reservations under treaties with Indian tribes, had reference only to lands reserved to the Indians by stipulations in such treaties. The fact that the words "as in case of other sales" are used in speaking of lands reserved for that purpose, and have never been so applied to lands disposed of in satisfaction of military land warrants, appears to us, so far as it has any bearing, to imply an intention to exclude the latter from the class of lands sold, rather than to include them in this class.

That class of decisions of which United States v. Watkins, 97 U. S. 219, is an example, in which, under an act of Congress, providing that in case lands within territory ceded to the United States, claimed under grants previously made by foreign governments and since confirmed, should be sold by the United States before the confirmation, or could not be surveyed and located, the claimant should be entitled to so much public land in lieu thereof, it was held that lands granted by the United States to settlers thereon were included, rests upon the reasons that the claimant had been deprived of so much of his private property by the act of the United States, and that the statutes in pari materia used the words "sold or disposed of." Neither of those reasons is applicable to the cases before us.

The conclusion to which the court is brought, upon a consideration of the language of the statutes relied on, and of the nature of the subjects to which they refer, accords with the contemporaneous and uniform construction given to them by

Dissenting Opinion: Miller, Field, JJ.

the executive officers charged with the duty of putting them in force. If the court had a doubt of the true meaning of their provisions, this practical construction would be entitled to great weight. Edwards v. Darby, 12 Wheat. 206; United States v. State Bank of North Carolina, 6 Pet. 29; United States v. McDaniel, 7 Pet. 1; Surgett v. Lapice, 8 How. 48; Smythe v. Fiske, 23 Wall. 374; United States v. Moore, 95 U. S. 760; United States v. Pugh, 99 U. S. 265; Swift Co. v. United States, 105 U. S. 691, 695.

The petitioners failing to prove any lawful claim against the United States, it becomes unnecessary to determine the further question, discussed at the bar, whether the writ of mandamus is an appropriate remedy in such cases.

Petitions dismissed.

MR. JUSTICE MILLER, with whom concurred MR. JUSTICE FIELD, 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

Dissenting Opinion: Miller, Field, JJ.

contract. Taking the case of the State of Iowa, the sixth section of the act for her admission, 5 Statutes, 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:

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'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, other purpose, for the term of three years from and after the dates of the patents respectively.

or any

"Approved March 3d, 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

Dissenting Opinion: Miller, Field, JJ.

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 five 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 that 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 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 9th section of that act, 9 Stat. 125, authorizes the soldier to receive, at his option, a land warrant for one hundred and sixty acres, to be located on any public lands, or