Stuart, J.
Appeal from an order of injunction restraining the auditor, treasurer, and board of commissioners of Franklin county, from distributing the income of a certain school fund, alleged to belong to the appellee.
The fund in controversy is the proceeds of the sale of the sixteenth section in Springfield township. It is claimed that by the act of congress of April 19, 1816, that section was granted in every township “to the inhabitants thereof, for the use of schools.” The school law of 1852 treats the township fund as the property of the state, and its income subject to her disposal, for the use of the common school system. The complaint is that the defendants are about to execute the law, and thereby divert the income of the Springfield township fund, amounting to 7,423 dollars and 36 cents, from the use of the inhabitants of that township, to the support of schools elsewhere.»
The prayer of the complaint is, that the defendants be enjoined, &c.
A temporary injunction was granted, agreeably to the prayer of the complaint. From that decision this appeal is prosecuted.
There are no technical objections raised by counsel on either side. Under the rules of Court, we are thus relieved from taking judicial notice of any formal defects which may exist. We therefore proceed, at once, to the principal matter in controversy.
[85]*85The act of the legislature, the validity of which is thus questioned, enumerates the several funds which are to be consolidated under the denomination of the “common school fund.” First in the list of consolidated funds, is the congressional township fund.
Prior to 1852, a separate account was kept with each township. R. S. 1843, p. 254. The income of the fund arising out of the sale of the sixteenth section was expended for the use of schools within the township. Thus the inhabitants of each township enjoyed the income of their own particular fund.
The school law of 1852 contemplates an entire change. Civil townships, with different boundaries, are substituted for congressional townships. There is no longer to be any congressional township fund recognized. All the separate funds, the township, surplus revenue, saline, bank tax, &c., are united. The fund of each township is thus commingled with those of other townships, and with other school funds. Pamphlet School Law, notes, p. 26. The income arising from the consolidated fund is to be distributed ratably throughout the state for the support of common schools.
In brief, the law diverts the proceeds of the sixteenth section from the use of schools in the congressional township where the land was situated, to the use of the school system of the state at large.
And the only question raised is, Was it competent for the state so to divert the township fund?
The appellants claim that the title to the sixteenth section was vested in the state; and that it is her right to expend the income of the fund upon such system of common schools as she may deem best adapted to diffuse the blessings of education among all classes.
The appellees insist that this diversion of the township fund is in conflict with the acts of congress, and in violation of the constitution of the United States.
Counsel on both sides seem to take it for granted that the school law is in accordance with the constitution of the state. The same view of the harmony between the [86]*86law and the constitution prevailed, of course, with the majority of the legislature that passed the act. Many of the leading men who moulded the school law had been prominent members of the constitutional convention. The same opinion seems also to have prevailed in the assembly of 1853. Pamphlet School Law, p. 34.
If this opinion be correct, the question now raised on the school law arises on the constitution itself. To show with what warrant the impression of the accord between the law and constitution is so generally entertained, the eighth article of the latter, and the corresponding sections of the former, are inserted in note 1 at the end of this opinion.
It is not our province to trace the idea of diverting the township fund to its origin; nor to inquire through what channels, legislative or constitutional, that sentiment seemed to run, further than may be useful to elucidate the pending question.
The subject seems to have been broached as early as the session of 1848-9; House Journal, p. 319; and perhaps even earlier. It was also agitated in the constitutional convention. At the session of 1851-2, it came to maturity in the form of the act now under consideration.
If the first four sections of article eight (see note 1) stood alone, qualified only by the clause quoted from section twenty-two of article four, the Court would be divided as to whether the constitution itself did not consolidate, and thus divert, the township fund. But the difficulty seems to be removed by a subsequent section. The seventh section of article eight, whatever its history, or for whatever purpose introduced, enjoins that “All trust funds, held by the state, shall remain inviolate, and be faithfully and exclusively applied to the purposes for which the trust was created.”
On the subject of education, the constitution of 1816, and that of 1851, declare, that education, generally diffused, is essential to a free government. In both its encouragement is enjoined as a duty on the general assembly. The difference seems to be, that the new constitution gives [87]*87unity to the school funds, and contemplates a uniform system of common schools as a state institution, under an official head. Section 8, article 8, quoted in note 1. It is tacitly assumed, that the wealth of the state should educate the children of the state.
Hence any enactment which the wisdom of the legislature might devise, to carry out that policy, should receive the favorable consideration of the Courts, unless it clearly conflict with laws of higher obligation. Fletcher v. Peck, 6 Cranch 87.—-Newell v. The People, 3 Selden 9.
Bringing the school law of 1852 to the test of the seventh section of the eighth article of the constitution, let us inquire, what was the purpose for which the congressional township fund was created?
That question must be answered, primarily, by the terms of the grant. When congress granted the sixteenth section, it is to be presumed the purpose of the grant was expressed. Accordingly, the sixth section of the act of April 19, 1816, “to enable the people of the Indicma territory to form a constitution,” &c., makes the following, among other propositions, which, “if accepted, shall be obligatory upon the United States,” viz., “that the section numbered sixteen, in every township, and when such section has been sold, granted or disposed of, other lands equivalent thereto and most contiguous to the same, shall be grmted to the inhabitants of such township for the use of schools.” The act is published at length in the revised statutes. 1 R. S. 93.
It is matter of history that these propositions were accepted on the part of the people of Indiana, by a solemn ordinance of their constitutional convention. 1 R. S. 95.
In construing language so plain, the only mystery is, how it could ever have given rise to any doubt. With the terms of the grant in view, the very statement of the question seems equivalent to a decision. Had the legislature passed an act consolidating the property of A. and J5., diverting it from their exclusive use, and providing for the ratable distribution of its income amongst A., B., C. and D., the case would not be as strong as this. Yet the un[88]*88soundness of such legislation, as violating fundamental principles, would not admit of doubt. Every one could see, at a glance, its vicious tendency and dangerous assumptions. That the inhabitants of the respective townships were quasi corporations, called into artificial existence by the legislature, and strangled by the same power when their funds were wanted, does not seem either to distinguish the case nor justify the act. The ingenious hypothesis of counsel does not blunt the force of the illustration.
But the great importance of any question affecting so many .interests and persons, putting in issue the constitutional action of the legislature, and involving the unity of a school system so elaborate, and claimed to be so complete, demands an extended and careful consideration.
Prior acts of congress throw an additional light on the intention of the grant. The ordinance of May 20,1785, “to ascertain the mode of disposing of lands in the western territory,” provided, that “there should be reserved the lot number sixteen of every township, for the maintenance of public schools within the said township.”
The act of March 26,1804, maldng provision for the disposal of the public lands in the Indiana territory, (sec. 6), provides that “the section numbered sixteen in every township,” &c., “ shall be reserved for the use of schools within the same.”
Then follows the grant of April 19,1816, supra, to the inhabitants for the use of schools.
It is not necessary to pause on the single word in the grant which alone tends to give limits and locality to the munificence of congress. That word is inhabitants. It is used in the first section of the act of April 19,1816, supra, thus: “Be it enacted,” &e., “that the inhabitcmts of the territory of Indiana be and they are hereby authorized to form for themselves a constitution and state government,” &c. Here it defines and limits the right of forming a constitution, &c., to those who inhabit the Indiana territory. It excludes, ex vi termini, from participation in the rights conferred by the act, all inhabiting beyond those limits. So. in the sixth section it is also a term of exclusion. [89]*89Those living beyond the limits of the township are ex-eluded from sharing the income of the sixteenth section or its proceeds. The word inhabitants, as there used, is of itself sufficiently potent to confine the expenditure of the fund for the use of schools within and for the township.
The intention of congress is further illustrated by subsequent legislation on kindred subjects, wherein it is observable the word inhabitmts occurs uniformly and with an obvious purpose.
On the admission of Illinois by the act of April 18, 1818, and Missouri by the act of March 6,1820, a similar grant was made for the same purpose in somewhat different terms, viz., that “ section sixteen in every township,” &c., “should be granted to the state for the use of the inhabitants for the use of schools.”
The act of congress of March 2,1819, for the admission of Alabama, contains the same propositions made to Indiana. The grant of the sixteenth section is also in the same terms, viz., to the inhabitants, for the use of schools.
Similar grants have been made in,all the new states; but these are selected because the grants have received construction in the state Courts.
In 1827, the legislature of Indiana applied to congress to extend to the general assembly the power to sell the school lands. The congressional response, passed May, 1828, is couched in these remarkable words:
“ That the legislature of the state of Indiana, shall be and is hereby authorized to sell and convey in fee simple, all or any part of the lands heretofore reserved and appropriated by congress for the use of schools within said state, and to invest the money arising from the sale thereof in some productive fund, the proceeds of which shall be forever applied, under the direction of said legislature, for the use and support of schools, within the several townships and districts of country for which they were originally reserved and set apart, and for no other pwpose whatsoever. Provided, said land or any part thereof shall in no case be sold, without the consent of the inhabitants of such township or district, to be obtained in such manner a,s the legis[90]*90lature of said state shall by law direct. And provided, alS0) that in the apportionment of the proceeds of said fund, each township and district aforesaid shall be entitled to such part thereof, and no more, as shall have accrued fi'om the sum or sums of money arising from the sale of the school land, belonging to such township or district.” Vide note 2.
The original impression seems to have been that the lands should be leased, and the rents and profits applied to the use of schools. The policy was to provide a school fund for every locality of six miles, which should be permanent and perpetual. So it seems to have been understood both by congress and the general assembly. R. S. 1824, p. 380. Hence the necessity of obtaining the sanction of congress to the proposed change in the character of the trust.
In this light, the act of May, 1828, is to be taken in pari materia with other acts on the same subject. Though passed at different sessions of congress, yet as they all relate to the same subject-matter, they are to be taken and construed together as one act. The whole form a body of law from which the purpose of the grant is to be deduced. Smith on Statutory and Constitutional Construction, 751.
Thus in 1785 and in 1804, the sixteenth section is reserved in each township for the use of schools within the same. In 1816, it is granted to the inhabitants of such township for the use of schools. In 1828, the sixteenth section may be sold with the consent of the inhabitants. It is further provided, as indicative of the original purpose of the grant, that the proceeds be forever applied for the use of schools within the several townships and districts of country for which they icere originally set apart, and for no other purpose whatever. The several acts for the admission of Illinois, Alabama and Missouri, further illustrate collaterally the purpose of the grant. In all those enactments the language is clear and explicit. The purpose of congress in granting the sixteenth section is for the benefit of the inhabitants of the township in which the section is located. Whether the grant be to the state for the use of [91]*91the inhabitants, or directly to the inhabitants, is, for the present, immaterial. The point of inquiry is the intention and purpose of the grant. In every instance, to whomsoever granted, it is dedicated to a particular use, for the benefit of particular persons. That use is the schools of the township; and the persons to be benefited, the inhabitants of the township in which the lands are situated.
Historically, these several acts indicate the settled policy of the government since the period of the first reservation of the sixteenth section in 1785.
If, as counsel contend, the acts prior to 1816 be regarded only as an intimation of future policy; the act of 1816 the completion of that policy; and the act of 1828 simply nugatory; still the latter act, as a legislative exposition of what had been done, would seem to leave nothing wanting to demonstrate the settled purpose of congress in first reserving and subsequently granting the sixteenth section. The grant for the schools and the inhabitants of the township exclusively, stands unimpaired, and even fortified by that construction.
The purpose of the grant is still further elucidated by the second proposition in the sixth section of the act of April, 1816, supra. The salt springs out of which the saline fund arose, is granted to the state, for the use of the people thereof. This occurs in the very next sentence after the grant of the sixteenth section; clearly intending to distinguish between the inhabitants of the townships respectively, in the one grant, and the people of the state at large, in the other.
The obvious policy of such a grant may be suggested as an auxiliary consideration in favor of this construction. It was to encourage the settlement of all parts of the state, and thus secure the speedy disposal of the public lands. The same policy has since added the pre-emption laws. A supplemental and higher consideration was, no doubt, the diffusion of knowledge among the people, by laying the basis of a school fund uniformly, every six miles, throughout the state.
It will not be pretended that the sale of the school sec[92]*92tion, with the consent of the inhabitants, under the direction of the legislature and the sanction of congress, changed the purpose of the grant. The terms upon which congress authorized the sale are too explicit to leave room for mistake. Act of May, 1828, supra. Instead of a trust estate, it became, by the sale, “trust funds.” It is in this light that the new constitution (s. 7, art. 8, quoted in note 1, infra,) contemplates them as trust funds; and enjoins on the general assembly their faithful and exclusive application to the “purposes for which the trust was created.”
Such being the history and purpose of the grant on the part of the United States, it is pertinent to inquire, in the next place, how the grant has been treated by the state of Indiana,
The convention that framed the constitution of 1816, for themselves and their posterity, accepted the propositions of congress. Among these propositions, we have seen, was the grant of the sixteenth section. They were accepted in the very terms of the grant, without any qualification whatever. 1 E. S. 95. This solemn ordinance would alone seem sufficient. It is consecrated by adherence to its terms for a period far beyond the generation that gave it birth. The men of that day seemed to have no idea that its solemn obligations would ever sit lightly on their posterity. There is no allusion to any such contingency. They made no provision for weighing fanciful considerations of expediency against the plighted public faith. To them belongs the honor of enjoining upon the general assembly “to provide by law for a general system of education, ascending in regular gradation from toionship schools to a state university, wherein tuition shall be gratis and equally open to all.” Constitution of 1816, art. 9, s. 2.
Under this constitution and the laws made in pursuance of it, the school system was managed up to the taking effect of the school law of 1852.
The practical exposition of the grant by the state government for a period of over thirty-six years, can not fail to have its weight. During all that time.the school section and the township fund arising from the sale of it, were [93]*93administered for the use of schools within the township, in accordance with the universal understanding of the terms of the grant. The purpose of the grant was repeatedly recognized by the assembly, often in the very language of the grant itself.
"Without stopping to analyze all the state legislation on the subject, a few instances must suffice. Thus in January, 1828, the proceeds of the sale of the sixteenth section are directly recognized as “ a school fund, to be forever applied to the use of the inhabitants of the respective townships in the support of schools therein,” &c. A similar recognition is made in the school laws of 1831,1833 and 1838. Further, the faith of the state is repeatedly pledged to the inhabitants of each township for the preservation of such of the funds belonging thereto as are controlled by the state, and for the payment of the annual interest thereon to the townships properly entitled to receive the same. R. S. 1831, p. 468.—Acts of 1833, p. 88.—R. S. 1838, p. 522.
From that period up to the session of the assembly of 1851-2, though the subject of diverting the fund was agitated, as we have seen, the whole tenor of legislation is a continued recognition of the rights of the inhabitants to the exclusive use of the congressional township fund. R. S. 1843, c. 13, art. 8, p. 253.--Id., p. 261.
Even as late as 1849, when many radical changes were introduced in the mode of administering the trust, the township fund remained unimpaired. The legislature carefully guarded against any misconstruction as to the integrity of the fund. It is done in these memorable words, evincing a full knowledge of the history and purpose of the grant, as well as a just appreciation of the sacredness of the trust. “ Provided, that nothing herein contained shall be so construed as to divert the fund commonly called the congressional township fund, or any part thereof, from the objects and purposes for which it was created by congress.” Gen. Laws 1849, p. 125.
That recognition alone, thirty-three years after the grant, might, it should seem, suffice. Such intelligent appreciation of a public duty, in the administration of a public [94]*94trust, is grateful to contemplate. It outweighs a world of visionary theories which would place any fancied expediency above the public faith; or inaugurate a new era in education by an act which it is not easy to distinguish from a breach of public trust.
The executive officers of the government, under all the phases of the school law, recognized, within their proper spheres, the rights of the inhabitants to the income of the township fund.
Even the Courts added the weight of their authority in the same direction. “ The grant,” says judge Sullivan, “by the act of congress of 1816, of the sixteenth section, is not to the state, but to the inhabitmts of the township in which the section lies.” The State v. Newton, 5 Blackf. 455.
So in Missouri. In The State v. Dent, though the grant was to “the state, for the use of the inhabitants, for the use of schools,” yet her own Courts regard the state as a mere trustee for the inhabitants. 18 Missouri R. 313. So, also, the same Court in Butler v. Chariton County Court, 13 id. 112.
A question somewhat similar came before the Supreme Court of Ohio in relation to what is called the “ministerial sections.” In the sale of lands by the United States to the Ohio Land Compmy, and to one Symmes, section sixteen in every township was reserved for the use of schools, and section twenty-nine for the use of religion in the township. The sections thus reserved for religious purposes were denominated the “ministerial sections.” It was held that the fund derived from the sale of the “ministerial sections” was intended for the support of religion in the township in which the section was located; cmd could not be diverted to my other purpose, or for the support of religion in any other place. The State v. The Trustees, &c., 11 Ohio R. 24.
In Morton v. The Granada Academy, it was held, that the school sections numbered sixteen are trust property for the benefit of the whole township in which they are situated; and that the legislature has no power to divert them from that purpose. 8 Smedes and Marsh. 773.
[95]*95We are cited by the appellants to several decisions of the Supreme Court of Illinois for a different purpose, in regard to which we would be slow to admit the doctrine to the extent it is there pressed. But these very decisions are directly in point on the question we are now considering, viz., the power of the legislature to divert the fund. In Bush v. Shipman, it is held, that though the grant is to the state for the use of the inhabitants, &c., yet as a matter of good faith the effects of the township should be secured for the use of those for whom they were donated. 4 Scam. 186.
Long v. Brown is also cited to a point, (the title,) in which it is opposed by the authority of our own Court in 5 Blackf. 455, supra, and directly overruled in the Vincennes University case, 14 How. 268. But on the point we are now considering, it is good authority, and consistent with the case in Howard. It is there declared that the sixteenth section is held by the state in perpetuity for the use and benefit of the inhabitants of the proper township. 6 Alabama R. (New Series) 622.
On the same point, judge McLean: “ The citizens within the township are the beneficiaries of the charity. The title to these lands has never been considered in the state; and it has no inherent right to 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.” The Trustees of the Vincennes University v. The State of Indiana, 14 How. 268.
The dissenting opinion of Taney, C. J., does not favor the diversion of the fund. “ The reservation of the school sections undoubtedly dedicated them to the uses for which they were reserved; and they can not be appropriated by the state to any other purpose. But congress alone has the power to designate the body by whom the trust should be administered.” 14 How., supra.
So that whether the one opinion or the other be adopted, the result is the same. Both agree that the fund can not be appropriated by the state to any other purpose; that [96]*96the trustee has no power to divert it from the specific purposes for which the trust was created.
The supervision exercised by the legislature over the township fund is but an implied necessity sanctioned by congress. It extends only to protecting and administering, not diverting, the fund.
It but remains to inquire, Does the school law of 1852 faithfully and exclusively apply that fund to the purposes for which it was created? We are clearly of opinion that it does not. The operation of the law is to distribute to the people of the state at large a school fund created for the exclusive use of the inhabitants of Springfield township.
' To that extent the law is in violation of the seventh section of article eight of the constitution, and therefore void.
We have not been careful to inquire how far the school law of 1852 may conflict with the constitution of the United States. It is sufficient that it conflicts with the state constitution. The laws of congress have therefore been examined solely with a view to ascertain the intention of the grant.
It is urged that in most of the townships there were not at the time any inhabitants. But at common law, land may be granted to- pious uses before there is a grantee in existence competent to take. 14 How., supra.—The Presbyterian Church, &c., v. Williams, 1 Ohio State R. 478. In the meantime, the fee will be in abeyance. Story, J., in The Town of Paulet v. Clark, 9 Cranch 292. These school lands donated to charitable uses fall within the same reason, and are governed by the same rule.
It is further insisted that the congressional townships were mere municipal corporations, existing at the will of the legislature; and that the act creating civil townships, with corporate powers, repealed by implication the former acts.
But even if this position were admitted, it is not perceived how it could inure to the benefit of the state, or give her any better right to divert the township fund. The [97]*97property of the deceased does not ordinarily fall to the party who gave the fatal blow. The artificial person ereated by the state may have been brought to an untimely end by the same- power. But the effects of the defunct corporation do not thereby escheat. The inhabitants still remain. They are “the beneficiaries of the charity.” The grant once made to the inhabitants can not be invalidated. It is a contract executed, which even the sovereign power can not revoke. Fletcher v. Peck, 6 Cranch 87.— Terrett v. Taylor, 9 Cranch 43.—The Town of Paulet v. Clark, 9 Cranch 295. Besides, by the act for the incorporation of congressional townships, the general assembly vested the lands, reserved by congress for the use of schools, in each congressional township, in the corporations thereof. R. S. 1824, p. 380. She is therefore within the rule in Cranch, supra, even if she ever had a shadow of title to dispose of.
Hence, admitting the demise of the corporations, the state is not entitled to the school fund; nor released from her duty as trustee to administer it faithfully and exclusively for the benefit of the inhabitants.
So far as these corporations may have been invested with political power or participated in the administration of municipal affairs, the position of the appellants is undoubtedly correct. The legislature could recall such power at pleasure. There is no vested right in corporate franchises created for public purposes. But so far as their corporate capacity related to the fund of which the inhabitants were the beneficiaries, it presents a very different question. To that extent they are, perhaps, embraced within the rule in the Dartmouth College case, 4 Wheat. 518. They would seem to be private corporations created to meet the terms of the grant. Acts of 1817, p. 104.— Acts of 1818, p. 301.—R. S. 1824, p. 379.—R. S. 1831, p. 463.—Acts of 1833, p. 78.—R. S. 1838, p. 509.—R. S. 1843, p. 306.
Since the state can not, in any event, divert the fund, if would not become her, if she could, to repeal the corporate powers of the inhabitants, and thus embarrass the administration of the school funds. She would not thus need[98]*98lessly compromise her dignity and good faith, by assuming a hostile and unnatural attitude to any portion of her citizens. She should rather confer on them increased facilities to administer their school funds efficiently.
J. D. Howland, for the appellants.
G. Holland, for the appellee.
It is urged in argument that the ruling indicated would be a deadly blow to the common school system of Indiana. We do not so regard it. We should be slow to believe that human ingenuity has been exhausted in the concoction of an unconstitutional enactment. However that may be, the responsibility does not lie with the judiciary. If the legislative department will impinge on the constitution, the duty of the Courts may be arduous and unpleasant, but it is a plain one, regardless of consequences.
As there are no disputed facts to be adjudicated, only the single question of law involved, we see no necessity for remanding the cause for further proceedings.
Per Curiam.
It is therefore ordered that the Franklin Circuit Court make the injunction granted in this cause perpetual.