Rice v. Railroad Company/Dissent Nelson
Mr. Justice NELSON.

I cannot agree to the judgment of the court in this case. The fundamental error of the opinion, I think, consists in not distinguishing between public and private legislative grants. The former concern government-are grants of political power, or of rights of property, connected with the exercise of political power for public purposes, in which no individual or corporate body can set up a vested interest, any more than a public functionary can set up a vested or private interest in his office. These are grants that may be altered, modified, or repealed, at the will of the Legislature. Examples of this description of grants are the erection of towns and the incorporation of cities and villages, to which are delegated a portion of the political power of the Government, to be administered within their limits and jurisdiction. Private legislative grants are subject to very different considerations. These are grants of rights of property, lands, or franchises, which may be made to individuals or corporate bodies, to towns, counties, States, or Territories, and in which the grantee may have private beneficial interests. Examples are, the grant of lands to a town for the founding of a school, or of a church, or for the benefit of the poor of the town. The grantee in all such cases takes a beneficial interest in the grant, as the representative of the persons for whose benefit it is made. The town has an interest in the encouragement and support of schools, in the education of the people under its charge, in the support and maintenance of religion and religious institutions, and in the maintenance of the poor. It is well settled in this court that grants of this description, when made by the Legislature of a State, cannot be recalled; and we do not perceive any reason why the inviolability of the same class of grants should be less when made by the legislative power of the General Government. Congress has made many grants of lands to States and Territories for the same or kindred objects; for the founding of seminaries of learning; for building common roads, railroads, and canals; for reclaiming marsh lands, clearing obstructions from rivers, and other like objects. Now, can it be said that the States and Territories have no beneficial interest in these grants, or that they hold them as the mere agents of the General Government, or as naked trustees, and that they may be recalled at pleasure? I think not; certainly this is not the language of the court in respect to similar grants made by the States to public corporate bodies such as town and cities. If this be the sound construction of this class of grants, and the one to be hereafter adopted and applied, I do not see that any effect is to be given to them until the lands granted have been sold and conveyed to purchasers. They might take a valid title under the power of sale contained in the grant. But even then, the State or Territory would derive no benefit from the grant after the sale; for, if they hold the lands as public agents or naked trustees for the General Government, as has been argued, the purchase money would belong to it and might be reclaimed. Certainly, if the States and Territories are the mere agents of the General Government in the grants mentioned, the money would belong to the principal. Indeed, upon the doctrine contended for, I do not see how the sixteenth section in every township of the public lands which is reserved to it for common schools can be held by in indefeasible title. The use for which the grant is made in that instance is as much a public one as a grant of land to the town to build a canal, a turnpike, or railroad. And if a public use of this description deprives the town of any beneficial interest in the grant, then Congress may reclaim this sixteenth section if unsold, and, if sold, the purchase money.

It has been strongly insisted, that the grant in question rests upon different principles from one in which the title to the lands has vested directly in the State or Territory upon the passage of the law. The 3d section provides that the lands hereby granted, &c., shall be subject to the disposal of the Legislature of the Territory for the purpose mentioned. The 4th section: The lands hereby granted, &c., shall be disposed of by the Territory in the following manner: No title shall vest in said Territory, nor shall any patent issue for any part of the land, until a continuous length of twenty miles of said road shall be completed; and when the Secretary of the Interior shall be satisfied that any twenty miles has been made, a patent shall issue for a quantity of land not exceeding one hundred and twenty sections, and so on, until the road is finished. And then ten years is given for the completion of the road.

This is a conditional grant, the condition particularly specified in this fourth section. The condition is, the construction of twenty miles of the road, when one hundred and twenty sections are to be conveyed, and so on. The idea seems to be, that a conditional grant of this description may be revoked, but not one absolute in its terms. I am not aware of any such distinction. Certainly none is to be found in the common law. At common law or in equity a conditional grant is just as obligatory and indefeasible between the parties as one that is absolute. The grant carries with it not only the right, but the obligation, of the grantee to fulfil the condition; and until the failure to fulfil, the obligation is complete and the grant irrevocable.

It would be singular if the grantor, by availing himself of his own wrong in not waiting for the performance of the condition, could defeat the grant. Certainly it cannot be maintained, that the grant of land on condition is no grant until the condition is performed. And, if so, then why not as effectual and binding as an absolute grant, until default in the condition?

But there is another equally satisfactory answer to this ground for revoking the grant. The provision relied on, instead of furnishing evidence of an intent not to make a binding grant to the Territory, leads to a contrary conclusion. Its object cannot be mistaken. It was to secure the application of the lands or the proceeds of them to the construction of the road. The act had before declared that the lands granted should be disposed of by the Territory only as the work progressed, and in furtherance of this purpose, and to prevent any failure of it, provided that no title should vest or patent issue except from time to time as twenty miles of the road were completed. The argument that this provision indicates an intention on the part of Congress not to vest any beneficial interest in the Territory in the lands seems to me to be founded on a misapprehension of its purport and effect, which was simply to secure the accomplishment of the purposes of the grant.

Then, as to the difference between this grant and the numerous others of a similar description, which it is said are subject to a different interpretation. I have examined several of them. The present one is a copy of the others mutatis mutandis, with one exception, and that is, instead of withholding the title to the lands till the twenty miles of the road are completed, the act forbids the sale of them till the condition is fulfilled. In the one instance, on satisfying the Secretary of the Interior that the twenty miles have been constructed, the patent issues for the several sections specified; in the other, on satisfying him that the work has been done, he gives to the State or Territory an authority to sell. The different provisions prescribe a different mode of securing the application of the lands to the purposes of the grant. This is the object and only object of each of them; and so far as this distinction goes, other grants of this description will be entitled to the benefit of it in case of an attempt to revoke them.

Mr. Justice WAYNE concurred in the dissent expressed by Mr. Justice Nelson, and added, as a further reason against the judgment of the court, that after this grant was made, more than a million of dollars was subscribed upon the faith of it to the railroad corporation.