Under the Act of Assembly of Virginia of October, 1783, for the
better locating and surveying the lands given to the officers and
soldiers on continental and state establishments, the State of
Virginia has no right to call upon the person who was appointed one
of the principal surveyors to account for the fees received by him
of one dollar for every hundred acres on delivering the warrants,
towards raising a fund for the purpose of supporting all contingent
expenses, the bill filed by the attorney general of the state to
compel an account, not sufficiently averring the want of any proper
private parties
in esse to claim it.
Quaere whether in such a case the assignees of the
warrants, or a part of them, suing in behalf of the whole, could
maintain a suit in equity for an account?
This was a bill in equity, filed by, and in the name of the
Attorney General of Virginia, under the authority of a Special Act
of the Legislature of that state passed on 15f February, 1813.
Page 21 U. S. 366
The bill charged that the Legislature of Virginia, by an act
passed in October session, 1783, among other things provided that
all persons holding officers' or soldiers' warrants by assignment
should pay down to the principal surveyor, at the time of the
delivery of such warrants, one dollar for every hundred acres
thereof, exclusive of the legal surveyor's fees, towards raising a
fund for the purpose of paying all contingent expenses, &c., as
will appear by reference to the act. That the deputations of
officers, in pursuance of the said act, appointed two principal
surveyors, one of whom was the defendant, and who immediately took
upon himself the duties of the office, and exacted, in virtue of
the act of 1783, from all the holders of the military warrants, the
one dollar per one hundred acres above provided for. That the
defendant had received a large sum of money in this way, and had
refused to account for the same to the complainant, and the agents
and attorneys appointed for this purpose under the act of 1813. It
further charged a misapplication of the money, and that the
deputations of officers, under the act of 1783, did appoint
superintendents, &c., but that most of them are long since
dead, and the survivors have declined to act for many years. It
proceeded to state the substance of the act of 1813, which
authorized Colonel John Watts, the surviving superintendent, agent
to settle with the defendant and to receive the moneys remaining
unappropriated in his hands, and if not paid, to sue for and
recover the same in the name of the Attorney General of Virginia,
and then charged
Page 21 U. S. 367
that the defendant refused to account with Watts and concluded
with a prayer for an account, discovery, and general relief. To
this bill the defendant demurred, and the Circuit Court of
Kentucky, upon argument of the demurrer, held it valid and
dismissed the bill. The cause was then brought by appeal to this
Court.
Page 21 U. S. 368
MR. JUSTICE STORY delivered the opinion of the Court, and after
stating the case, proceeded as follows:
Page 21 U. S. 369
The question in this case is whether the demurrer was well
taken. In support of the decree, two points are stated at the bar:
1st, that the plaintiff has not shown any interest in the subject,
entitling the State of Virginia to maintain the bill; 2d, that if
there was originally any resulting authority to the state to compel
an account, that power, by the erection of Kentucky into an
independent state, devolved on the latter state, the defendant
having been and still continuing to be a citizen of that state, and
that it was not competent for the Legislature of Virginia in 1813
to pass a law which should bind a citizen of Kentucky to account
for official duties which were not performed in virtue of any
appointment made by the government of Virginia.
It is unnecessary to consider the last objection, because we are
of opinion that the first is fatal to the bill. The act of 1783 for
the better locating and surveying the lands given to the officers
and soldiers on Continental and state establishments authorizes the
deputations of officers, therein named to appoint superintendents
in behalf of their respective lines for the purpose of surveying
the lands, and also to appoint two principal surveyors, and
contract with them for their fees, &c. The third section of the
act then provides
"That every person or persons holding officers' or soldiers'
warrants by assignment shall pay down to the principal surveyors at
the time of the delivering such warrant or warrants one dollar for
every hundred acres thereof, exclusive of the legal surveyor's
fees, towards raising a fund for the purpose
Page 21 U. S. 370
of supporting all contingent expenses, or, at the option of such
holder or holders, the same may be held up until the warrants of
all the original grantees have been surveyed, the said surveyors to
account for all the money so received to such person or persons as
the said deputations may direct."
This is the clause upon which the bill is founded. And it is
apparent that in terms it provides for an accountability not to the
state, but to persons to be appointed by the deputations of
officers, to those for whose benefit the fund was raised, and was
to be applied, and not to the state, which had no interest
whatsoever in it. Even then, if by the death of all the deputations
of officers without making any appointment the authority intended
by the act became incapable of being executed, there is no averment
in the bill to that effect; on the contrary, the bill does admit
that superintendents were appointed, of whom some are dead, and the
survivors decline to act. If, therefore, under any circumstances a
resulting power could arise to the state to enforce an account from
the want of any proper private parties
in esse to claim
it, such a case is not stated by the bill. Whether in such a case
the assignees of the warrants, or a part of them suing in behalf of
the whole, might not maintain a suit in equity for an account is
not for us now to determine. It is sufficient that the State of
Virginia, by the very terms of the act, has delegated to other
persons, whose existence is not denied, the authority to call the
surveyors to account.
Decree affirmed with costs.
