COM. OF PENNSYLVANIA v. MCKISSICK
4 U.S. 292 (1803)

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U.S. Supreme Court

COM. OF PENNSYLVANIA v. MCKISSICK, 4 U.S. 292 (1803)

4 U.S. 292 (Dall.)

Commonwealth
v.
McKissick et al.

Supreme Court of Pennsylvania.

December Term, 1803

ON the 15th of March 1802, a rule was obtained upon the receiver- general, which was afterwards extended to the secretary of the land-office, to show cause why a mandamus should not issue, commanding them to receive a certain certificate, in payment for city lots, located by the late Thomas Billington.

The application for the rule, was founded upon an act of the General Assembly, passed on the 9th of March 1796, (4 vol. p. 16. Dall. edit.) which contains the following enacting clause:

Sect. 1. 'Be it enacted, &c. That it shall and may be lawful for the Board of Property, and they are hereby enjoined and required, to proceed upon the reports of the Commissioners appointed by the act passed the twenty-eighth day of March, one thousand seven hundred and eighty-seven, entituled 'An Act for ascertaining and confirming to certain persons, called Connecticut Claimants, the lands by them claimed within the county of Luzerne,' which have been filed in the office of the Secretary, and ascertain, as nearly as they can, from the documents so placed in the Secretary's office, and from such further evidence as they may deem necessary, and

Page 4 U.S. 292, 293

which shall be produced to them, what sum or sums ought, on the principles of the aforesaid law, to be allowed to the respective owners; and the Receiver-General shall thereupon deliver a certificate of such sum or sums to the respective owners and enter a credit in his books, for the same, which may be transferred to any person, and passed as credit, either in taking out new warrants in any part of the state where vacant land may be found, or paying arrearages on former grants: Provided nevertheless, That the value of the land, for which such certificates are so to be delivered to the aforesaid claimants, shall not be estimated otherwise than if the same had been made by the Board of Property immediately after the report of the aforesaid Commissioners, in pursuance of the law herein before mentioned: And provided further, That the claimants, who are by this act intended to be compensated, shall, at the time of receiving the certificates aforesaid, release to the commonwealth their respective claims to the lands, for which they shall receive compensation.'

Thomas Billington purchased several certificates, which had been issued under the authority of this act, and tendered them in payment, for warrants to be located on certain lots in the city of Philadelphia, which he alleged to be 'vacant land.' The legislature having granted all the unappropriated city lots to the inspectors of the prison of Philadelphia, for public uses, the inspectors employed counsel, to oppose the rule for issuing a mandamus.

Accordingly, Dallas, in showing cause against the rule, stated two points, for the consideration of the Court: 1st. Whether upon a just construction of the act of March 1796, and acts in pari materia, the right of location could apply to land within the boundaries of the city of Philadelphia. And 2d. Whether, in the strictest sense of interpretation, city lots could be regarded as vacant land.

The act of March 1796 is ingrafted upon the act of the 28th of March 1787, usually called 'the confirming law.' 4 State Laws, 274. (old edit.) which, however, had been repealed by the act of the 1st of April 1790. 2 State Laws, 786. Dall. edit. It was expressly intended to entitle those Pennsylvania claimants, who had complied with the terms of the confirming law, 'while 'the said law was in existence, to the benefits of the same.' Preamble, 4 State Laws, 16. Dall. edit. What, then, were the benefits conferred on Pennsylvania claimants by the confirming law. A right to an equivalent, for the land they surrendered, which might be taken 'either in the old, or new purchase, at the option of the claimant.' 4 vol. State Laws, 274. s. 9. (old edit.) And the act of March 1796 did not profess to enlarge, nor has it, in terms, enlarged the right thus conferred. Besides, the act

Page 4 U.S. 292, 294

of March 1796, evidently restricts the location, under the Wyoming certificates, to those lands, for which the land-officers were previously authorised to grant warrants; and no authority was ever given to the land- officers to sell city lots, till the act of the 5th of April 1797. 4 vol. 165. Dall. edit.

Here, Dallas was stopped by the COURT, who declared, that they could not conjecture upon what ground the rule was tenable; and desired to hear the opposite counsel. Ingersoll and Rawle, however, acknowledged, that they saw the subject in a point of view different from that, in which it was presented, when they made the motion; and declined any further argument.

By the COURT:

Let the rule be discharged.

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