CHAPTER V

THE PUBLIC BUILDING LANDS

From our study of colonial land grants we are familiar with the fact that in several of the colonies community land was given as sites for public buildings, such as churches, schools, and court-houses. The first federal land grants for public buildings were devoted to the same purpose. They were intended for capitol grounds. While it is impossible to trace the origin of the federal policy to the colonial precedents and while it is not improbable that there may be no well-defined connection, it is very likely that there were men in the Congress of 1816, when the first grant of this character was made, who were familiar with the colonial practice.

Indiana was the first state to receive this grant. Four sections of land were given, "for the purpose of fixing their seat of government thereon," Like the school, the university, and the salt spring grants, this grant was one of the considerations for the agreement on the part of the state not to tax United States land for five years after the day of sale.1

Every public land state except Ohio and Louisiana has received a grant of land for public buildings. But the purpose of the grant has been changed in one important respect. The first five states, Indiana, Mississippi, Illinois, Alabama, and Missouri, received the grant in its original form, for a seat of government. Thereafter most of the new states received the grant, not for a seat of government, but to defray the cost of erecting the public buildings. The transition began in 1824, when the territory of Florida received one quarter-section of land for the "seat of government" but with authority to sell a portion of the grant in order to raise funds for public buildings. In 1827 another quarter-section was given, the first grant solely for a building fund. Two years later six more were added, four of these for the same purpose and two for the use of the future state. In 1831 ten sections were granted to the territory of Arkansas to erect a public building at Little Rock. In 1836, when the territory became a state, five additional sections were given for the same purpose. The last grant for the original purpose

In its original form the extent of the grant for a seat of government was limited by its purpose, generally to four sections, or four square miles, but varying in amount from two sections to Mississippi' to eight sections to the state of Florida.10 When the purpose of the grant was changed the amount was gradually increased. Arkansas11 and Michigan12 each received five sections at the time of their admission to the Union in 1836. This was increased to ten sections for Wisconsin 13 in 1846; twenty, for Nevada1 and Nebraska 15 in 1864; and fifty, for Colorado 16 in 1875. After 1875 the amount of the grant has remained at fifty sections with the exception that Utah, owing to the arid character of its unappropriated lands, was given a double grant, and that the grant to Oklahoma took another form.

In 1893, by proclamation of President Cleveland, the Pawnee Indian Reservation, the Cherokee Outlet, and the Tonkawa Indian Reservation were opened to settlement, subject to certain reservations. Among these was one of section thirty-three in each township" for public buildings.18 This reservation was confirmed by Congress the next year.1 The land thus reserved was granted to Oklahoma when it entered the Union in 1906.20 It amounts to 274,228 acres and is the largest of the public building grants.

In 1864, in addition to the usual grants for public buildings, Congress began to give land for state penitentiaries. Nevada" received twenty sections and Nebraska fifty.22 In 1875 Colorado 23 received fifty sections for the same purpose. Two of the states admitted in 1889, Montana and South Dakota, instead of a land grant, each received the buildings and grounds of a United States penitentiary. The other two, Washington and North Dakota, each received an appropriation of thirty thousand dollars for penitentiary buildings. Of the six states admitted after 1889 the first three received penitentiary buildings," and the last two, land grants for this purpose.25 Oklahoma is the only state admitted during the last half-century for which there has been no provision of this kind. The grants to New Mexico and Arizona, however, strictly speaking, are not public building grants, for they were given in place of the swamp, salt spring, and internal improvement lands.

Ibid., 6: 374. 10 Ibid., 10: 767. 11 Ibid., 9: 394.

12 Ibid., 396.

13 Statutes at Large, 9: 58.

14 Ibid., 13: 32.

15 Ibid., 49.

16 Ibid., 18: 475.

17 Except in a few townships where section thirty-three had been disposed of for other uses.

18 Statutes at Large, 28: 1229.

19 Ibid., 71.

20 Ibid., 34: 273.

21 Ibid., 13: 32.

22 Ibid., 49.

23 Ibid., 18: 475.

24 Ibid., 26: 216, 223; 28: 110. Idaho and Wyoming received both penitentiary buildings and

land grants.

25 Ibid., 36: 562, 573.

The amount of public building lands received by each of the states and the time and purpose of the grant is shown by the following table :26

This makes a total of a little more than half a million acres.

20 Laws of the United States; Statutes at Large; House Miscellaneous Documents, 33 Congress, 2 session, no. 18, 4, C. S., 514; Executive Documents, 33 Congress, 1 session, no. 52, 2, C. S., 721.

As long as the public building lands were intended for capitol grounds, the selection of the lands was left to the state legislature. To this statement there are exceptions. The lands granted to the state of Alabama in 1819 and to the territory of Florida in 1829 were designated by Congress.27 Up to 1889 the precedent established by the character of the original grant was followed in all cases except Florida, Minnesota, Oregon, and Kansas,28 where the selection of the lands was left to the governor. After 1889 the method of selecting the public building lands has been the same as for the selection of university lands, which has been explained elsewhere.

While the grant for public buildings retained its original form the lands given were not intended for sale. This follows from the purpose of the grant.

After the form of the grant was changed there was no limitation on the power to lease or to sell, before 1890, when Idaho and Wyoming were forbidden to dispose of their lands for less than ten dollars an acre.2o Utah received her grant four years later subject to no limitations.80 The subsequent history of this grant in regard to the matter of leasing and sale is the same as that for the university lands.

The grant being given for public buildings, it follows that the proceeds derived from the sale of the lands should be devoted to this purpose. In one case, however, Congress has given authority to devote the fund to other objects. In 1862 Iowa was authorized to make such disposition of the lands as it might deem for the best interests of the state.31

For the investment and safeguarding of the proceeds derived from the sale of the public building lands provision was made for the first time in 1910, by the enabling act of Arizona and New Mexico.

27 Laws of the United States, 6: 384; 8: 215.

28 Statutes at Large, 11: 167, 384; 12: 127; Laws of the United States, 7: 275.

29 Ibid., 26: 217, 224.

30 Ibid., 28: 109-110.

81 lbid., 12: 536.

CHAPTER VI

THE FIVE PER CENT FUND

Every public land state in the Union has received a portion of the net proceeds derived from the sale of the federal lands within its borders, generally five per cent. The resulting fund has come to bear the name of the five per cent fund or the three per cent fund.

The five per cent fund was originally devoted to the construction of roads "leading from the navigable waters emptying into the Atlantic, to the Ohio, to the said state, and through the same; such roads to be laid out under the authority of Congress, with the consent of the several states through which the road" should "pass." Why was the fund devoted to this particular purpose? There were two reasons, one commercial, the other political.

After the Revolution hard times in the states on the Atlantic seaboard and the fertility of the vacant lands beyond the mountain barrier turned the tide of emigration westward. By 1790 the population of Tennessee had reached 35,000, that of Kentucky, 73,000, and that of Ohio, ten years later, 45,000. The emigrants had found their way to the West over a road cut through the forests of western Pennsylvania by General Forbes on his march to the capture of Fort Duquesne or over the more southerly route followed by Braddock's army the year before or over the Wilderness Road, I still farther south.2

These roads, however, were little more than trails, inadequate for travel and almost useless for commercial intercourse. But with this economic isolation there followed political disagreement between the East and the West, which in one locality culminated in the Whiskey Insurrection of 1794.

Such was the commercial and political situation when Albert Gallatin came to the head of the treasury department in 1801. Himself a resident of western Pennsylvania, the region of the Whiskey Insurrection, he was well acquainted with frontier conditions. In a later chapter further reference will be made to the part he played in securing the appropriation of part of the proceeds from the sale of public lands for the construction of roads. From the following observations in a letter to the chairman of the committee on the admission of Ohio into the Union, it is clear that the two considerations referred to above were in his mind. He remarked: "The roads will be as beneficial to the parts of the Atlantic States, through which they are to pass, and nearly as much to a considerable portion of the Union, as to

1 Laws of the United States, 3: 498.

2 Young, The Cumberland Road, 11-12.