Trustees for Vincennes University v. State of Indiana.

which it reserved from sale a township in each one of three districts, to be located by the Secretary of the Treasury, for the use of a seminary of learning. In 1806, the Secretary of the Treasury located a particular township in the Vincennes district, for the use of that district; and when, in 1806. the territorial government incorporated a "Board of Trustees of the Vincennes University," the grant made in 1804 attached to this Board, although, for the two preceding years, there had been no grantee in existence.

Under the ordinance of 1787, made applicable to Indiana by an act of Congress, the territorial government of Indiana had power to pass this act of incorporation. The language of the act of Congress, by which Indiana was admitted into the Union, did not vest the above township in the legislature of the State.

The Board of Trustees of the University was not a public corporation, and had no political powers. The donation of land for its support was like a donation by & private individual; and the legislature of the State could not rightfully exercise any power by which the trust was defeated.

THIS case was brought up from the Supreme Court of the State of Indiana, by a writ of error, issued under the 25th section of the Judiciary Act.

The manner in which the case arose, and the laws relating to it, are stated in the opinion of the court.

It was argued by Mr. Judah, with whom was Mr. Dunham, for the plaintiffs in error, and Mr. O. H. Smith, for the State of Indiana.

The counsel for the plaintiff in error contended:

1. That the effect of the reservation in the act of Congress passed in 1804, was a grant.

The defendant, and Judge Smith, of the Supreme Court of Indiana, assert that this is not a grant, because there was not a grantee in esse; and that the reservation could only become effectual to pass the title by an appropriation, to be made by Congress, or under its authority.

In Wilcox v. Jackson, (13 Peters, 498,) this court, at page 512, define "appropriation" as follows: "That is nothing more nor less than setting apart the thing for some particular use." And afterwards, in the same case, (page 513,) the court say: "But we go further, and say, that, whensoever a tract of land shall once have been legally appropriated to any purpose, from that moment, the land thus appropriated 1 ecomes severed from the mass of public lands, and that no subsequent law, or proclamation, or sale, would be construed to embrace it, or operate upon it, although no reservation was made of it."

Was the Gibson township so appropriated? It was reserved for a special purpose. It was located in pursuance to the reservation. Was there any thing more necessary to set it apart for the particular use?

But, say the counsel for the State and Judge Smith, though

Trustees for Vincennes University v. State of Indiana.

appropriated, it was not granted, because there was no grantee in esse.

If, as a general rule, it is true, that there cannot be a grant without a grantee in esse, it is as true that there are exceptions.

A grant, in case of a charity, or of the dedication of land to a public use, is good without a grantee in esse. Town of Paulet v. Clark, 9 Cr. 292; Beaty v. Kurtz, 2 Pet. 566; Cincinnati v. White, 6 Pet. 435; and in Vidal v. Girard's Executors, 2 How. 127; at pages 192, 193, it is stated, that donations given to the establishment of colleges, &c., are charities in the sense of the common law.

2. That the territorial legislature had the power to apply to use the township appropriated by Congress, and did apply it by the act of incorporation.

The counsel for the State of Indiana made the following points:

First. The complainants have no such corporate existence as would authorize and empower them to suc. 2 B. A. 482, note a, last edition; and see the extracts from their records in evidence.

Second. The suit is barred by the statute of limitations. R. S. 1843, pp. 795, 799; Act of 1845-6, explanatory of Rev. Stat.

Third. The suit is barred by twenty years adverse possession, as the State, and those claiming under the State, by purchase and lease, had held adversely more than twenty years before any suit was brought by the University to recover the possession, even if the former actions which were dismissed could aid this suit, which is denied.

Fourth. The case does not come within the principles of an executory devise, and would not avail the complainants even if it were an executory devise. 17 Serg, & Rawle, 88; 5 H. & J. 392; 9 Ohio, 203; 12. Mass. 537; 16 Pick. 107; 3 Pet. 101; 4 Dana, 355; 3 Pet. 146; 9 Ves. 399; 9 Mass. 419; 7 Ves. 69; 9 Ves. 399; 10 Ves. 522.

Fifth. The act of Congress of 1804, was a mere reservation from sale, to be afterwards appropriated to educational purposes, and neither vested the same in the complainants, nor divested the United States of the legal title. P. L. L. 104; 2 McLean R. 416; P. L. L. 2d part, 69; 1 Johns. R. 303; 9 Johns. R. 74; Wright's Ohio R. 144.

Sixth. The case does not embrace the principles of a dedication to public or pious uses, so as to sustain this claim. 2 Pet. 566; 6 Pet. 431, 498; 6 Paige, 639; 6 Wend. 667; 4 Paige, 510; 7 Ohio, 219.

Trustees for Vincennes University v. State of Indiana.

Seventh. The act of Congress of 1816, vested the legal title to these lands in the State of Indiana, as a trustee, with power to direct to what object or institution, being "a seminary of learning," the trust fund shall be applied; and the State, having designated the State University, at Bloomington, as the "seminary of learning" to which the trust fund shall go, the complainants have no claim whatever, either in law or equity, against the State, the trustee of the fund. See act of Congress of 1816, act of 1818, and the several acts for the admission of the other new States into the Union.

Eighth. The doctrines of estoppel, in their most rigid application, can only permit the complainants to retain what they have already received, and for this the State will not contend.

Ninth. In any and all events, the funds were public funds, and the legislature of the State had competent authority to change their direction to any other seminary of learning at will. Had the funds been the private funds of the complainants, and had they been vested with them, there might have been some pretext for the assumption, that the acts of the Indiana legislature, endowing the State University, were unconstitutional. 4 Wheat. 430; 4 Pet. Con. Rep. 536.

Mr. Justice McLEAN delivered the opinion of the court. u This case is before us on a writ of error to the Supreme Court of the State of Indiana, under the 25th section of the Judiciary Act of 1789.

The bill was filed under an act of the legislature of Indiana, of 1846, which authorized the trustees of the Vincennes University to file a bill in chancery, in the nature of an act of disseisin against the State, to try their right to the seminary township in Gibson county. The facts stated in the bill are substantially as follows:

The Indiana Territory was organized by the act of Congress. of the 7th of May, 1800, with the powers to legislate given by the ordinance of 1787. On the 26th of March, 1804, an act of Congress was passed, for the survey and disposal of the public lands, by which three land districts were established, and an entire township in each was reserved for the use of a seminary of learning, to be located by the Secretary of the Treasury. The boundaries of the Vincennes land district were the same as designated in a late treaty with the Wabash Indians. The Secretary of the Treasury, by letter of the 10th of October, 1806, located township No. 2 south range, No. 11 west, in Gibson county, for the use of a seminary in that district.

The act of the 29th November, 1806, and the supplement thereto, passed the 17th of September, 1807, established the

Trustees for Vincennes University v. State of Indiana. Vincennes University, and incorporated the same by the name of "The Board of Trustees of the Vincennes University." The corporation was duly organized at Vincennes, on the 6th of December, 1806, under the act, and has since continued. The second section of the act of incorporation, after reciting the seminary lands under the act of Congress, provided, "that the trustees, in their corporate capacity, or a majority of them, should be legally authorized to sell, transfer, convey, and dispose of any quantity, not exceeding four thousand acres, of said land, for the purpose of putting into immediate use the said university; and to have on rent the remaining part of said township to the best advantage, for the use of said public school or university."

In virtue of the above acts, the complainants became possessed of the said township of land, and so continued during the territorial government. The same rights and powers in the corporation, as they existed under the territorial government, were secured by the 1st section of the 12th article of the constitution of Indiana. Between the years 1806 and 1820, complainants sold 4,000 acres of the land, and rented a part of the residue. A college building was constructed by them at Vincennes.

On the 22d January, 1820, a joint resolution of the legislature of Indiana was approved, appointing a superintendent for the seminary township, with power to rent the improved lands, to collect the rents, and to account to the State. And, on the 2d of January, 1822, the legislature appointed commissioners to sell the lands in that township. This seems to have been done, on the assumption that the board of trustees had expired through their own negligence. The lands were sold, and the money received was paid into the State Treasury. A part of the consideration money on this sale had not been collected when this bill was filed.

The complainants pray that an account may be taken of the proceeds, and interest of the sales of the lands and the rents received by the state; and that the same may be paid to the complainants, &e.

The defendant's answer denies the equity of the bill, and relies upon the statute of limitations. It also denies that the territorial government had any power to incorporate the plaintiffs; that the title remained in the United States, it never having been appropriated to any special grantee; that under the act of Congress of the 19th of April, 1816, for the admission of the State of Indiana into the Union, the title to the land in question became vested in the State.

The act of Congress, which organized the territory of Indiana, provided, that so much of the ordinance of 1787 for the government of the territory of the United States north-west of the

Trustees for Vincennes University v. State of Indiana.

Ohio River, as relates to the generally assembly therein, and prescribes the powers thereof, shall be in force, and operate in the Indiana Territory, &c. The ordinance declares, "that the Governor and Judges, or a majority of them, shall adopt and publish in the district, such laws of the original States, criminal and civil, as may be necessary, and best suited to the circumstances of the district, and report them to Congress, from time to time; which laws shall be in force in the district until the organization of the general assembly therein, unless disapproved of by Congress." Provision is made in the ordinance for the appointment of a legislative council, and it is then provided, that "the Governor, legislative council, and house of representatives, shall have authority to make laws, in all cases, for the good government of the district, not repugnant to the principles and articles in this ordinance."

Under the ordinance, the legislature of the territory was vested with general legislative powers, restricted only by the articles contained in that instrument. It had power to grant an act of incorporation, with all the functions necessary to effectuate its objects. There can be no question, therefore, that the corporate powers vested in the plaintiffs, by the legislature of the territory, were legitimately conferred. And these powers were not affected, and could not be affected by the constitution of the State. It provided that "all rights, contracts, and claims, both as respects individuals and bodies corporate, shall continue as if no change had taken place in this government."

If the Board of Trustees, by a failure to elect when vacancies occurred, or through any other means, became reduced to a less number than was authorized to act by the charter, the corporation was not thereby dissolved. In such a case, its franchises would be suspended only, until its functions were restored by legislative action. This was done by the act of the legislature of the 17th of February, 1838. In that act the territorial act of incorporation is recognized, the existence of six of the trustees admitted, the vacancies supplied, and the board, thus constituted, was organized.. If, therefore, the corporation by non user had become liable to a judicial process of forfeiture, after this act, such a procedure could not be instituted.

The proviso in the act of 1838, could only operate, so as to secure any rights which the State might be supposed to have, in the Gibson township.

The reservations for the seminaries of learning and for schools, are made in the same terms, and in some respects, must rest on the same principles. In all the Western States, north of the Ohio, similar reserves for schools and seminaries of learning have been made. In the case of Wilcox v. Jackson, (13 Peters,