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Trustces for Vincennes University v. State of Indiana.

498) this court held, that a reservation set apart the thing reserved for some particular use; and that " whensoever a tract of land shall once have been legally appropriated to any purpose, it becomes separated from the public lands."

In the States where school lands have been reserved, the legis. latures have enacted laws to carry out and effectuate the benign policy of the general government. Special authority has been given to individuals elected, in the respective townships, to lease the lands, sue for rents, &c., exercising, to some extent, corpo. rate powers. The citizens within the township are the beneficiaries of the charity. The title to these lands has never been considered as vested in the State; and it has no inherent power to sell them, or appropriate them to any other purpose than for the benefit of schools. For the exercise of the charity under the laws, the title is in the township. No patent has been issued by the Federal government, in such cases, as it has not been considered necessary. For the sale of school lands, the consent of Congress has been obtained, as that changes the character of the fund.

The title to the seminary lands, it is contended, did not vest in complainants, as they are not named in the reservation, and had no existence for two years asterwards.

This question is not to be decided, on the principles which apply to an ordinary grant, from one individual to another.

The title partakes of the nature of an executory devise, or a dedication of property to public use. In the case of Inglis v. The Sailors' Snug Harbor, (3 Peters, 126,) this court say, “ What objection can there be to this as a valid executory devise, which is such a disposition of lands, that thereby no estate vests at the death of the devisor, but only on some future contingency?" If the words, “ reserved for the use of a seminary of learning,” were indorsed on a town plat when made, there is no doubt that the title would vest in a corporation created afterwards for the establishment and government of such an institution. If it be reserved for the public use, the title would vest in the public, so soon as a public should exist in the town. Trustees of the McIntyre Poor School v. The Zanesville Canal Company, 9 Ohio Rep. 203; Cincinnati v. The Lessee of White, 6 Peters, Rep. 435; Barclay et al. v. Howell's Lessee, 6 Peters, Rep. 498; New Orleans v. the United States, 10 Peters, Rep. 662.

Land, at common law, may be granted to pious uses, before there is a granee in existence competent to take it; and in the mean time, the fee will be in abeyance. The Town of Pawlet v. Clark et al. 9 Cranch, 292; Witman v. Lex, 17 Serg. & Rawle, 88.

" When a corporation is to be brought into existence by some

Trustees for Vincennes University v. State of Indiana. future acts of the corporators, the franchises remain in abeyance, until such acts are done; and when the corporation is brought into life, the franchises instantaneously attach to it. There is no difference between the case of a grant of lan! or franchises to an existing corporation, and a grant to a corporation brought into life for the very purpose of receiving the grant. As soon as it is in esse, and the franchise and property become vested and executed in it, it is as much an executed contract, as if its prior existence had been established for a century.” Dartmouth College v. Woodward, 4 Wheat. 518.

There was no uncertainty in this appropriation. The township was designated, and the purpose stated, for which it was reserved. And there can be no doubt, from the authorities, that the right vested, so soon as a capacity was given to the corporation to receive it; prior to this it remained in the federal government. This is the settled doctrine on that subject.

If; on general principles, the title to this township cannot be considered as vested in the State of Indiana, it is contended it so vested by the provision in the sixth section of the act of the 19th of April, 1816, which admitted the State into the Union. The provision is, “That one entire township, which shall be designated by the President of the United States, in addition to the one heretofore reserved for that purpose, shall be reserved for the use of a seminary of learning, and vested in the legislature of the said State, to be appropriated solely to the use of such seminary by the said legislature.”

The words of the act seem to be so clear as to admit of but one construction. A township, in addition to the one formerly reserved, is appropriated and vested in the legislature. The former township is only referred to, to show that the one then appropriated was in addition to it. The Gibson township had before been appropriated. A part of it had bern sold, and a part was held under leases. Whether we regard the words used, or their grammatical arrangement, the intention of Congress seems to be clearly expressed.

In the act of the 18th of April, 1818, for the admission into the Union, of the State of Illinois, a different phraseology is used in giving an additional township to the State. « That thirty-six sections, or one entire township, shall be designated by the President of the United States, together with the one heretofore reserved for that purpose, shall be reserved for the use of a seminary of learning, and vested in the legislature of the State, &c. Here both townships are as clearly vested in the State, as that one only is vested under the act admitting Indiana into the Union.

By this latter act, the Gibson Township Seminary was recog. nized, and its present government sanctioned.

Trustees for Vincennes University v. State of Indiana.

It is argued that this is a public corporation, and that, consequently, the legislature of Indiana have a right to modify its charter, or abolish it, at its discretion. If the position assumed be sustainable the consequence stated will not be controverted.

In the case of Dartmouth College v. Woodward, (4 Wheat. 629,) Chief Justice Marshall says: “If the act of incorporation be a grant of political power, if it create a civil institution to be employed in the administration of the government, or if the. funds of the college be public property, or if the State of New Hampshire, as a government, be alone interested in its transactions, the subject is one in which the legislature of the State may act, according to its own judgment, unrestrained by any limitation of its power, imposed by the Constitution of the United States.” Again, he says, (634,) “ So far as respects its funds, it is a private corporation. Do its objects stamp on it a different character? Are the trustees and professors public officers, invested with any portion of political power, partaking in any degree in the administration of civil government, and performing duties which flow from the sovereign authority?" He continues : “ The character of civil institutions does not grow out of their incorporation, but out of the manner in which they are formed, and the objects for which they are created." “ The right to change them is not founded on their being incorporated, but on their being the instruments of government, created for its purposes.” “ The trustees are not public officers, nor is it a civil institution, participating in the administration of the government; but a charity school, or a seminary of education, incorporated for the preservation of its property, and the perpetual application of that property to the objects of its creation."

In the same case, Mr. Justice Story says: “ Public corpora. tions are generally esteemed such as exist for public political purposes only, such as towns, cities, parishes and counties; and, in many respects, they are so, although they involve some private interests; but, strictly speaking, public corporations are such only as are founded by the government for public purposes, where the whole interests belong to the government.”

The seminary township in question, was not a donation from the State, but from the United States. It was reserved and designated out of the public lands, before they were offered for sale, and consequently so munificent an endowment for a literary institution must have increased the value of the public lands, in that part of the State, and made them more desirable. And this consideration, no doubt, induced Congress to have designated, for seminary purposes, a township of land in each land district. Every purchaser of the public lands, in each dis

Trustees for Vincennes University v. State of Indiana.

trict, acquired an interest in the reservation. And if these reservations had been judiciously managed, they would have constituted a fund, at this time, of at least two hundred thousand dollars each. This would have afforded the means of educating, in each land district, as many students, free of charge, as would ordinarily desire classical instruction. Such an advantage was too obvious to be overlooked, or not to be appreciated, by the purchasers of the public lands in these districts.

The legislative power of the Territory and State, in advanc. ing the public interests, was bound to afford all the facilities necessary to carry out and secure the benign objects of .Congress, in making these township reservations. This was done by a wise and liberal act, in regard to the Gibson township. The corporators were vested with all the necessary powers to carry out the trust.

And for the purposes of the trust, the title became vested in them, as soon as they acquired a capacity to receive it. This corporation had no political powers, and could, ir: no legal sense, be considered as officers of the State. They were not appointed by the State. Their perpetuity depended upon

the exercise of their own functions; and they were no niore responsible for the performance of their duties, than other corporations established by the State to execute private trusts.

So far as regards the trust confided to the complainants, there is nothing which, by construction, can make it a public corporation. The donation in no sense proceeded from the State. It was made by the Federal government, and is no more subject to State power, than if it had been given by an individual for the same purpose. An act of incorporation being necessary, would not be withheld to give effect to a private donation of land, for the purpose of establishing a literary institution. Its benefits would be enjoyed by the public generally, but this would not make it a public corporation.

The complainants, by accepting and exercising their corporate powers, acquired certain rights, and made certain contracts, which could not be impaired by the legislature. They constituted an eleemosynary corporation, in which the State has no property, and can exercise no power to defeat the trust. But this has been done by the legislature, not only by appointing an agent to collect the funds due to the corporation, and paying them into the State treasury; but, by selling the lands, they have diverted the fund, for the preservation and management of which, the corporation was instituted. This was an extraordinary proceeding, and was wholly without authority. The result is, that the complainants are stript of their powers, and the University which they established, with the sanction of the legislature, is left without revenue.

VOL. XIV.

24

Trustees for Vincennes University v. State of Indiana.

The dismissal of the bill, in this case, by the Supreme Court of the State of Indiana, was erroneous, and it is hereby reversed; and the cause is transmitted to that court for further proceedings.

Mr. Chief Justice TANEY, Mr. Justice CATRON, and Mr. Justice DANIEL dissented.

Mr. Chief Justice TANEY.
I dissent from the opinion of the court.

I do not prop? re to enter fully into the argument of the case, because I concur entirely in the opinion of the Supreme Court of the State, which is set out at large in the record; and shall therefore briefly state the principles upon which my own opinion is founded.

1. It must be admitted that the State court had no jurisdiction in this case beyond that which the law of the State authorized it to exercise. And in revising their judgment, our jurisdiction is equally limited. The law, under which this suit was brought, authorized the Board of Trustees of the Vincennes University, to file a bill in chancery against the State, in the nature of an action of disseisin, for the purpose of trying the right of the trustees to the lands in question.

The trustees, therefore, are not entitled to a decree in their favor, unless they can show a legal title to the lands, such as . would enable them to maintain the common-law writ of entry, sur dişseisin, that is, they must be seised of the lands in feesimple.

2. Indiana was created a separate territory, and its powers and rights, as a territorial government, defined by the act of 1800. This act certainly gave no power over the public lands, for it has no seference to that subject. It merely establishes the territorial government.

The act of 1804, under which the lands in question were reserved for the use of a seminary of learning, has no reference to the powers or duties of the territorial government, in relation to the lands reserved, or to any thing else. It merely provides for the sale of the public lands in the territory, reserving from sale this and other portions of them. But it does not transfer them to the territorial government which was then in existence. It retains them. I do not see how these laws, taken separately or together, can be construed to give the territorial government

right to dispose of them in any way, or divest the tiile which the United States held; and which this law directed to be retained.

3. This reservation from sale, as well as the reservation of the

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