Joshua T. Bradley, appellant, v. Zophar Case, Commissioner of School Lands for Clinton County, appellee, 3 Scam. 585

Semple, Justice, delivered the opinion of the Court: This was an action on a promissory note. The facts, as they appear on the record, show that the note was given for the purchase of a part of

section numbered sixteen, in township number one north, range number five west of the third principal meridian, in the county of Clinton, sold by the appellee, as school commissioner of Clinton county, under and by authority of

an act of the legislature of the State of Illinois, authorizing the sale of the sixteenth section. The Circuit Court gave judgment for the plaintiff below, for the amount of the note, and 20 per cent, interest thereon. To reverse this judgment, the case is now brought to this Court by appeal. It is insisted on the part of the appellant, that the legislature had no power to order a sale of the sixteenth section; that the purchaser acquired no title by virtue of such sale, and that, consequently, there was no consideration for the note.

This Court is of opinion that the legislature had full power and authority to authorize a sale of the land, and that, consequently, there was a good and valuable consideration for the note. The act of the 22d January, 1829, provides, that whenever the assent of the General Government should be obtained, and on the petition of nine-tenths of the inhabitants of any township, the school commissioner should proceed to sell the lands contained in

section number sixteen, or other lands selected in lieu thereof, for school purposes, in such township.

The act of the 15th February, 1831, prpvides, “ That the county commissioners’ court of each and every organized county, shall, at any regular term, proceed to select and appoint the commissioner for the county, and require bond, or bonds, as stipulated in the act of the 22d January, 1829, to which this is an amendment; and that all other provisions and stipulations in said act shall be carried into effect, sales made, and patents issued, as fully as if Government had assented to the sale ; and that the sales made as aforesaid, shall be valid, provided that no land shall be sold, unless petitioned for, as pointed out in the act hereby amended, by three-fourths of the white male inhabitants in the township, over twenty-one years of age ; and provided also, that no sale of such lands shall be made in any township, unless the same contains, at least, fifty white inhabitants.” The act of the 12th January, 1833, authorized the lands aforesaid to be sold on a credit of one, two, and three years, &c.

These acts fully authorize the sale of the sixteenth

section in certain townships; and that, for a part of which, the note in question was given, was one of them. But it is contended that the State legislature had no power or authority to pass any law authorizing the sale of sections sixteen; that the inhabitants of the several townships, in which such lands are situated, acquire a vested right in them, for the purposes specified in the acts of Congress, and that no subsequent legislation would divert that right. The several acts of the State legislature, authorizing the sales, are said to be entirely void, and that this Court is bound to treat them as a nullity, in the decision of this question. When the validity of

an act of the State legislature is called in question, and especially when it is contended that it is void, because it conflicts with

an act of Congress, it is proper to enquire into the sources from whence the two governments derive their powers. This is a matter of great importance. It is a question of law, as well as of politics. If a law of a State, and a law of the United States conflict, it does not necessarily follow that the law of the State must yield. There is no subserviency, no inferiority on the part of the State Government, which would render the State law void. On the contrary, the act of Congress might be void, and that of the State valid. The Government of the United States is one of delegated powers, derived from the States.

That Government can do nothing, the power to do which is not expressly delegated, or necessarily implied from the powers delegated. These powers are, and ought to be, for general purposes, relating to the whole Union. When acting within these powers, the acts of Congress are necessarily paramount to any State law, because each State has yielded that power, by a compact with the other States, which compact can-' not be violated, without a violation of good faith.

But as the powers not delegated are reserved to,the State, it follows, that as a State is sovereign, and unlimited in its legislative acts, it can pass any law whatever, that is not prohibited by the Constitution of the United States, or of this State. It is, therefore, never necessary to enquire whether a State legislature possesses the power to do

an act or not. The enquiry should be, is the act prohibited ? If not prohibited, the power necessarily exists among those general, universal, and absolute powers, which every government must have to make laws for the regulation of society, and the disposition of every thing belonging to, or connected with the State. The ordinance passed 20th May, 1785, is relied on as first vesting the right in the several townships to the sixteenth section.

The words of the ordinance that relate to the subject are these: “ There shall be reserved the lot number sixteen, of every township, for the maintenance of public schools within the said township; also, one third part of all gold, silver, lead, and copper mines, to be sold, or otherwise disposed of, as Congress shall hereafter direct.” The object of passing this ordinance was, as stated in the title of the ordinance, “to ascertain the mode of disposing of lands in the Western Territory.” The reservation of the lot number sixteen, and of the mines, was a mere direction as to what should be sold, and what should not be sold.

By a strict construction of the sentence, as it stands in the ordinance, the words “to be sold, or otherwise disposed of, as Congress shall hereafter direct,” might be applied to the reservation of the lot number sixteen, as well as to the mines. This construction would leave the entire reservation under the control of Congress. But suppose that the reservation of the sixteenth section, was, by the ordinance, a distinct reservation from that of the mines ?. yet I cannot conceive it to be possible that

an act of Congress reserving certain.lands from sale, for a particular purpose, should be such a law as could not be altered, or modified, by the same power that made it. It was not a compact with any other power, government, or person whatever. Neither the passage nor repeal of it was required or prohibited, by any Constitution or paramount law.

There was no Government of the State, or Territory, nor any inhabitants of the township, to take the lands for the use of schools, as specified in the ordinance, and the Government of the United States itself had, at that time, but an imperfect and doubtful state of existence. The ordinance does not import on its face, to be a compact. The term compact necessarily implies parties consenting on both sides. Congress could not make a compact, unless there had been a State, or other corporation, or person capable of agreeing to, or dissenting.

This State could not, at that time, consent to such a compact, and it has never since consented. To suppose that such an ordinance, made at such a time, and under such circumstances, could have such binding powers, as to fix in persons, not then in existence, a vested and irrevocable right to lands, is, in my opinion, utterly untenable. The true foundation of the right of the State to

section sixteen in every township, is to be found in the act of Congress, entitled “An Act to enable the people of the Illinois Territory to form a Constitution and State Government, and for the admission of suck State into the Union, on an equal footing with the original States.” Approved 18th April, 1818. That act, among other things, provides, “ That

section numbered sixteen, in every township, and when such

section has been sold, or otherwise disposed of, other lands equivalent thereto, and as contiguous as may be, shall be granted to the State, for the use of the inhabitants of such township, for the use of schools.” This was one of the propositions offered to the Convention of the said Territory of Illinois, when formed, for their free acceptance or rejection; which, if accepted by the Convention, “shall be obligatory upon the United States, and the said State.” The act then goes on to make three other propositions : one giving to the State certain salt springs; another giving 5 per cent, on the net proceeds of the sales of public lands ; and, lastly, one entire township of land, &c.

These propositions were subject to conditions as follows : Vrovided always, that the four foregoing propositions, herein offered, are on the conditions, that the Convention of the said State shall provide, by an ordinance irrevocable, without the consent of the United States, that every and each tract of land sold by the United States, from and after the first day of January, 1819, shall remain exempt from any tax laid by order, or under any authority of the State, whether for State, county, or township, or any other purpose whatever, for the term of five years from and after the day of sale; and further, that the bounty lands granted, or hereafter to be granted, for military services during the late war, shall, while they continue to be. held by the patentees, or their heirs, remain exempt as aforesaid, from all taxes, for the term of three years from and after the date of the patents, respectively; and that all the lands belonging to the citizens of the United States, residing without the said State, shall never be taxed higher than lands belonging to persons residing therein.” These propositions, with the foregoing conditions, were accepted by the Convention that formed our Constitution, and a solemn ordinance passed by said Convention, made irrevocable without the consent of the United States, binding this State not to violate the conditions attached to the said propositions.

Here was a valid and binding compact, made by two governments capable of contracting; there was a thing to be contracted for; there was a good and valuable consideration passing between the parties, and neither could retract without the consent of the other. To this compact, then, we must look for the power and authority of the State to hold, or to sell and convey the lands referred to. It is not denied that the State is, by the compact, vested with the legal title to the lands.

It is said, however, that the land is vested in trust for certain purposes specified in the compact; that the State is a mere trustee, and that the inhabitants of the township are the cestui que use; that all the incidents arising out of an application of the rules of the common law to trust estates, or estates donated for charitable purposes, are to be applied to the lands held by this compact. I can never agree to this doctrine. I consider the State as a purchaser of the lands, for a valuable consideration.

Previous to the formation of the State Government, the Government of the United States had an undoubted right to the lands. Had the State Government been formed without any restriction, it would have had, by virtue of its sovereignty, all the rights of any other sovereign State, to all intents and purposes.

It would, by law, have levied taxes on all the property within its limits; as well the lands sold by the United States, before the expiration of five years from the day of sale, as all lands, or other property, owned by any person, or body corporate, or any other government whatever, having lands or other property, in the State. It would, moreover, if thought expedient or just to do so, have taxed the lands of those residing out of the State, higher than the lands of those residing within the State.

This right of discriminating between citizens of the State, and foreigners, has been, and is now exercised by nearly all the governments of the earth. These rights of sovereignty, the State has, so far as the terms of the compact goes, and no farther, surrendered and relinquished, as a consideration paid for the right to hold these school lands. The Government of the United States is not, and never was, a donor for charitable purposes, as contended for in the argument. If there be any donor, it is the State. I think the State has paid dearly for the land.

She has given, as an equivalent,. two important rights of sovereignty; that of taxing the lands sold by Congress, and that of levying a discriminating tax on non residents. The insertion of the words, in the grant from the United States to the State of Illinois, that the lands granted were to be applied to the use of schools, does not make the United States Government the donor for that purpose, or give that Government any right whatever to control the lands thus vested in the State.

The State purchased the lands for a valuable consideration, for a certain purpose, and it now rests with the State to determine in what manner the lands can be best applied to the objects and purposes for which they were bought. Good faith will always require the State to apply the said lands to the purposes of education; and there is no doubt but that it will be done.

But suppose, for a moment, the doctrine urged in the argument of this cause to be correct; that the Government of the United States is the donor; that the State holds the legal title in trust, for the use of the inhabitants of the township, for the use of schools, does it follow that the sales, as made by authority of the State, are void, and vest no title in the purchasers ? In order to test this question, let us see to what it would lead. If the inhabitants collectively take the use in this case, they must take as corporators, and not in individual right.

They must take for the purpose of maintaining schools within the township, and not for their own private use, or for any purpose other than that specified. Indeed, the inhabitants of the township must be considered, by virtue of the grant above, as becoming a corporation, for the purpose of managing that particular grant, or the grant cannot otherwise be used. According to the act of the State legislature, no school lands belonging to a township, can be sold, unless three-fourths of the white male inhabitants thereof shall give their consent, by petitioning for the sale of such lands.

How, under these circumstances, are the lands to be managed, either to be sold, leased, or rented, or in any other manner used for any purpose whatever ? How is the will of the inhabitants to be ascertained ? It must be done by the consent of a majority, or not at all. The will of a majority of any aggregate corporation, is supposed to be the will of the whole, unless, by the act of its creation, some other mode of ascertaining such will is provided for. If this were not so, the whole object of the corporation would be defeated.

In this case, if we could suppose that the grant for the use of the township was vested in the inhabitants severally, or even jointly, as individuals, and not in an aggregate, or corporate capacity, the right thus vested would be transferable. It would not be divested by one of such inhabitants removing from the township, but- would follow him wherever he went. It would descend to his heirs. It could be sold by him. He could have partition, &c. This would be absurd, in relation to the school lands.

The result, therefore, must be, that each of the inhabitants takes his right by virtue of his residence, or domicil in the township; and, of consequence, he must take as a corporator, and not as a joint, or several owner of private or individual property. This corporate capacity of the townships, if it has any, may derive its existence from the very nature of the grant made to it, from the necessity of the case, and the utter impossibility of its being turned to the use intended, in any other way than by a united will of some sort.

Supposing, then, that the inhabitants of the townships are the sole owners of the use, and that they hold as corporators or as inhabitants, and not as tenants in common, then they have,' by their own consent, expressed by three-fourths of them petitioning for a sale of the lands, agreed to the sale, and thus, on the principles contended for in the argument, the sale is valid, and the title vested in the purchaser, by the acts of both the trustee and the cestui que use.

I have said thus much, in order to show, that on the supposition that the inhabitants of the townships take the use, they can never claim any benefit from it, unless it be in a corporate capacity, implied from the nature of the use, or from legislative aid; and I have shown that if they can act as a corporation, they have acted in this case, and agreed to the sale of the lands. But why is.it that the whole management of the school lands in Illinois, is not the proper subject of State legislation ? There is surely nothing in the Constitution of the United States, or of this State, that prohibits it.

There is nothing in the nature of the subject matter that renders it incompatible with the general powers of the legislature to manage and make rules and regulations for the government of the people of the State, and disposing of the property belonging to the State. Suppose that there is a moral obligation, binding on the State, if you please, to appropriate the sections numbered sixteen to the use of schools, where is the power that can prescribe, or that has prescribed, the manner in which this appropriation shall be made ?

If the act of Congress, which, being agreed to by the State Convention, formed the compact between this State and the General Government, had provided that the lands aforesaid should not be sold, or had made any specific provision, as to the manner in which they should be disposed of, then the question would have been settled.

But that compact only provides, in general terms, that the lands “ shall be granted to the State for the use of the inhabitants of such townships, for the use of schools.” Whether they shall be leased for a term of years, rented annually, or sold, and the proceeds in either case applied according to the compact, to the use of schools, appears to me to be a proper subject of State legislation. The sale of the lands not being prohibited by the compact, is of itself sufficient to authorize the legislature to exercise its general powers, to sell any lands that belongs to the State, by purchase or otherwise.

I think there are other strong reasons for supposing that it was the intention of the parties to the compact, that they should be sold. The whole tendency of all the acts of Congress, and all State legislation, has been to sell all the Government lands, and not that either the General or State Governments should be, or remain, large land holders, and those who cultivated those lands, mere tenants. The cession of Virginia requires that all the lands should be sold. The lands reserved by Congress, containing salt springs, &e., made by Congress, have been from time to time sold.

The genius of our people, and the nature of our free institutions, demand that lands should not be sold in large quantities by the Government, to the exclusion of private ownership. It is a part of the history of this country, that the great object of every one emigrating to the western country, is to acquire lands, by purchase, for himself and his children, in perpetuity; not to rent, or lease them, but to own them in fee simple. The greater number of persons interested in the soil, the more independent will the great mass of them be in the exercise of their rights as freemen.

Whenever any large proportion of a state or nation stands in the relation of landlord and tenant, there can be but little independence. There is but little difference in the effects of this system, whether the lands are owned by the Government, and managed by public officers, or owned by individual wealthy landlords. In either case, the people are tenants, and more or less subservient.

So long, then, as it is the obvious policy of the Government to encourage the individual ownership of lands, and when we see that such has been and was at the time of making the compact aforesaid, the universal wish and desire of every one who emigrates; when we see that no one will rent land if it is in his power to purchase, and that Government rented lands scarcely ever produce any thing, how can it be supposed that the parties to the compact, intended (in the absence of an express provision to that effect, or words implying perpetuity,) that the lands should never be sold, or become private property?

Can it be supposed that the parties to that compact intended that the lands should be sold without any immediate proceeds, merely for the benefit of posterity ? Is not the present generation as much entitled to the proceeds of those lands, as the generation to come ? Is there really not some preference due to the present generation ? Those who have undergone the hardships of settling a wilderness, should rather be preferred than postponed. He who was born on the day of the making of this compact, if he be now living, has been four years a voter in Illinois.

What benefit has he received from the fund appropriated to schools ? I undertake to say none. This matter has been now postponed for twenty-five years. How much longer shall it be postponed ? Shall another generation pass away, before the lands are applied to the uses and purposes intended by the compact ? These considerations are, in my opinion, proper for investigation here. They form a part of the history of the country.

They throw light on the compact itself, and show conclusively, that the true construction to be given to the compact, is, that the lands were to be leased, or sold, as the State legislature, the sole manager of them, should think most beneficial to the people of the country. So far as the errors assigned depend on the want of consideration for the note, they have entirely failed. The Circuit Court, in this respect, decided correctly. It appears, however, from the record, that the Circuit Court gave judgment for 20 per cent, interest on the note.

The statute only provides for the payment of 20 per cent, interest on money loaned, and not upon a note given for the purchase of land. We cannot extend this statute farther than the words of it plainly show was the intention of the legislature. For this error the judgment of the Circuit Court is reversed with costs, and judgment rendered in this Court for the amount due on the note, calculating interest at the rate of 10 per cent.