Rutherford v. Greene

• Decision Date: 04 March 1817
• Citation: Rutherford v. Greene, 15 U.S. 196, 2 Wheat. 196, 4 L.Ed. 218 (1817)
• Parties: RUTHERFORD v. GREENE'S heirs
• Court: U.S. Supreme Court

15 U.S. 196

2 Wheat. 196

4 L.Ed. 218

RUTHERFORD v. GREENE'S heirs.

March 4, 1817

THIS was a bill in chancery, filed in the circuit court for the district of Tennessee, by the appellant, against the heirs of the late Major-General Greene.

Feb. 24th.

The cause was argued by Mr. Campbell and Mr. Harper, for the appellant, and by Mr. Law and Mr. Jones, for the appellees.

Mr. Chief Justice MARSHALL delivered the opinion of the court.

As this case depends entirely on the validity of Greene's title, the court will notice only so much of the record as respects that title.

In the year 1777 the state of North Carolina opened a land-office, for the purpose of selling all the vacant lands east of a line described in the act.

In the year 1780 an act passed, reserving a certain tract of country for the officers and soldiers of the line of that state.

This act is lost.

In the year 1782 an act passed, 'for the relief of the officers and soldiers in the continental line, and for other purposes therein mentioned.' This act gives certain specified quantities of land to the officers and soldiers; then the 7th section commences thus: 'And, whereas, in May, 1780, an act passed at Newburn, reserving a certain tract of country to be appropriated to the aforesaid purposes, and it being represented to this present assembly, that sundry families had, before the passing the said act, settled on the said tract of country, Be it enacted,' &c. The section then proceeds to grant 640 acres of land to each family which had so settled. The 8th section appoints commissioners to lay off, in one or more tracts, the land allotted to the officers and soldiers. The 10th section enacts, 'that 25,000 acres of land shall be allotted for, and given to, Major-General Nathaniel Greene, his heirs and assigns, within the bounds of the lands reserved for the use of the army, to be laid off by the aforesaid commissioners, as a mark of the high sense this state entertains of the extraordinary services of that brave and gallant officer.'

This is the foundation of the title of the appellees.

On the part of the appellant it is contended, that these words give nothing. They are in the future, not in the present tense; and indicate an intention to give in future, but create no present obligation on the state, nor present interest in General Greene.

The court thinks differently. The words are words of absolute donation, not indeed of any specific land, but of 25,000 acres in the territory set apart for the officers and soldiers.

'Be it enacted, that 25,000 acres of land shall be alloted for and given to Major-General Nathaniel Greene.' Persons had been appointed in a previous section to make particular allotments for individuals, out of this large territory reserved, and the words of this section contain a positive mandate to them to set apart 25,000 acres for General Greene. As the act was to be performed in future, the words directing it are necessarily in the future tense. 'Twenty-five thousand acres of land shall be allotted for, and given to, Major-General Nathaniel Greene.' Given when? The answer is unavoidable—when they shall be allotted. Given how? Not by any future act;—for it is not the practice of legislation to enact, that a law shall be passed by some future legislature:—but given by force of this act.

It has been said, that, to make this an operative gift, the words 'are hereby' should have been inserted before the word 'given;' so as to read, 'shall be allotted for, and are hereby given to,' &c. Were it even true that these words would make the gift more explicit, which is not admitted, it surely cannot be necessary now to say, that the validity of a legislative act depends, in no degree, on its containing the technical terms usual in a conveyance. Nothing can be more apparent than the intention of the legislature to order their commissioners to make the allotment, and to give the land when allotted to General Greene.

The 11th section authorizes the commissioners to appoint surveyors, for the purpose of surveying the lands given by the preceding sections of the law.

In pursuance of the directions of this act, the commissioners allotted 25,000 acres of land to General Greene, and caused the tract to be surveyed. The survey was returned to the office of the legislature, on the 11th of March, in the year 1783. The allotment and survey marked out the land given by the act of 1782, and separated it from the general mass liable to appropriation by others. The general gift of 25,000 acres, lying in the territory reserved for the officers and soldiers of the line of North Carolina, had now become a particular gift of the 25,000 acres, contained in this survey.

Against this conclusion has been urged that article in the constitution of North Carolina which directs that there should be a seal of the state to be kept by the governor, and affixed to all grants. This legislative act, it is said, cannot amount to a grant, since it wants a formality required by the constitution.

This provision of the constitution is so obviously intended for the completion and authentication of an instrument, attesting a title previously created by law, which instrument is so obviously the mere evidence of prior legal appropriation, and not the act of original appropriation itself, that the court would certainly have thought it unnecessary to advert to it, had not the argument been urged repeatedly, and with much earnestness, by counsel of the highest respectability.

After urging that these lands were not positively granted to General Greene, the counsel for the appellant proceeded to argue that it was in the power of the legislature to retract its promise, and that the legislature had retracted it.

Before attempting the difficult task of describing the limits of the legislative power in cases where those limits are not fixed by a written constitution, the court will proceed to inquire whether the government of North Carolina has, in fact, revoked its promise, or recalled its gift.

At a session, begun on the 12th of April, 1783, the assembly passed 'an act for opening the land office,' thereby extending the line describing the country in which lands might be entered so far west as to comprehend the territory reserved for the officers and soldiers of the North Carolina line.

The 11th section of this act contains a proviso saving from entry the lands within the bounds reserved for the officers and soldiers.

At the same session an act was passed 'to amend the act for the relief of the officers and soldiers of the continental line, and for...