The opinion of the court was delivered by
Collamer, J.
The most delicate and most important duty ever to be discharged by. the judiciary, is to pronounce upon the validity of an act of the legislature; a co-ordinate branch of the government. While it is clear that such may [638]*638be its duty, yet it is generally clear that no act should be pronounced unconstitutional and void, upon any considerations • of its impolicy or inexpediency, nor from any mere speculative, fanciful or doubtful incongruity with the constitution, but only on the most clear and unquestionable grounds.
In the present case both parties insist on the exercise of this power, by the court. On the part of the Lyndon School, it is insisted, that the grant to the Peacham School was unauthorized, and impaired the obligation of a contract, being in violation of the charter of the township of Lyndon ; and on the other hand, on the part of the Peacham school, it is insisted, that the act granting the lands to the Lyndon school was a violation of the previous grant of those lands to the Peacham school, and, therefore, unconstitutional and void. This seems to present a dilemma in which the court cannot avoid pronouncing an act of the legislature void.
By the grant to the Lyndon shool in 1836, it is provided “ if the supreme court shall hereafter adjudge this act to u be unconstitutional” — “ said trustees shall have no claim “ on the state for damages, but shall take this act at their “ own risk.” The legislature have, in effect, referred the question to the court and its opinion thereon. These two considerations relieve the discharge of this important duty, on this occasion, from much of its ordinary embarrassment and responsibility, arising from a conflict of power and opinion between the legislative and judiciary departments of the government.
The charier of the town of Lyndon was granted to sixty four proprietors, named ; each to take one seventieth part and, as is the expression of the charter, “ which together with the six following seventieth parts, reserved to the several uses in manner following, include the whole tract or township” — “ to wit, one seventieth part for the use of a college, one seventieth part for the use of county grammar schools, within said state.” &c., “ which two seventieth parts for the use of a seminary or college, and for the use of county grammar schools, as aforesaid, and the improvements, rents, interests and profits arising thereupon, shall be under the control, order, direction and disposal of the General Assembly of said state forever.”
By this charter, each proprietor took one seventieth part [639]*639of the township and this was his whole interest. The said . two seventieth parts never vested in him, or in them coilectively, to hold in trust or otherwise. Those rights remained with the legislature and were at its entire disposal, except that the charter contained a declaratory covenant or plighted public faith that they should only be appropriated for the uses and purposes mentioned and to which, by the charter-, they were sequestered and dedicated. That, under such a charter, the proprietors took only the one seventieth part was decided in Pawlet v. Clark, 9 Cranch, 292.
Over these two rights, the legislature had an absolute and entire control and'-disposal, for the uses and purposes for which they were reserved. Of the one for the use of grammar schools, it had the power to grant it to any one or more, and upon such limitations and conditions as the legislature chose to express, or without any condition whatever, in which case it would have only the implied condition that the use must ever be applied to the purpose of the grant. In relation to the other rights which were reserved in the charter, its provisions were entirely different. They “ shall, together with their improvements,” &c., “ be unalienably appropriated for the uses and purposes for which they are respectively assigned,” being uses entirely for the benefit of the inhabitants of the town, “ under the charge, direction and disposal of the selectmen of said town, in trust, to and for the use of said town forever.” Here, most clearly, the selectmen were to have a trust estate, for the town, and the lands were so to remain, unalienably, forever.
The power of the legislature being thus entire and absolute over these two first mentioned rights, for the purposes for which they were sequestered, we are next to inquire how this power has been exercised. In 1795, the legislature passed an act creating a corporation under the style of “ the Trustees of the Caledonia county Grammar School,” for the purpose of sustaining a grammer school at Peacham. In the preamble of that act they say, they are induced to this by the consideration, that Peacham is a suitable place, and by the memorial of the inhabitants giving assurance that they would make liberal donations, if the school could be then established and the trustees be authorized to hold and lease the lands sequestered in the different towns in the county for [640]*640the purpose. The act, after creating the corporation, proceeds to grant the lands in these words, “ and the said trustees are hereby fully empowered to hold and lease the lands lying within said county, granted for the use and benefit of a county grammar school, with such donations in land or other property as may hereafter, in any wise, be made for the use and benefit of said institution.” The act further provides that unless the inhabitants of Peacham fulfilled their assurances, and conveyed to the trustees the estate they had promised, they were to take nothing by the act; and the case finds they did so fulfil. The act then provides that any future legislature may, at any time, make an equal distribution of the avails of the county Grammar School lands among all the counties in the state.
It appears to us there can be no possible doubt of the intent of the legislature, as expressed in this act. It creates an aggregate corporation. It makes to that corporation a grant which unquestionably was intended to include the land in controversy, and included that or none. This grant being to an aggregate corporation, having perpetual succession, required no words of perpetuity, and was as unconditional and as absolute and of the same effect,as a grant to a man and his heirs and assigns forever. It is obvious that such, at the time, was the understanding of all concerned. The legislature annexed to the grant the express provision that a future legislature might distribute the avails of all such lands among the several counties ; thereby clearly showing they understood that, by the grant, they parted with all control of the lands, except what they expressly reserved. The trustees so understood it, for they proceeded to make durable leases of the land. It must be it was so intended to be understood by the memorialists, as the case finds they made the promised endowments or grants, which could not have been expected, if it was understood the grant was subject to being immediately revoked.
In 1831, the legislature incorporated a second county Grammar School in Caledonia county, at Lyndon. In 1836 an act was passed, authorizing the trustees of this second school to take possession of the Grammar School lands in Lyndon, and certain other towns in the county, and to hold the same ; and if the same had been leased, the tenants [641]*641Were to attorn to these trustees.
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The opinion of the court was delivered by
Collamer, J.
The most delicate and most important duty ever to be discharged by. the judiciary, is to pronounce upon the validity of an act of the legislature; a co-ordinate branch of the government. While it is clear that such may [638]*638be its duty, yet it is generally clear that no act should be pronounced unconstitutional and void, upon any considerations • of its impolicy or inexpediency, nor from any mere speculative, fanciful or doubtful incongruity with the constitution, but only on the most clear and unquestionable grounds.
In the present case both parties insist on the exercise of this power, by the court. On the part of the Lyndon School, it is insisted, that the grant to the Peacham School was unauthorized, and impaired the obligation of a contract, being in violation of the charter of the township of Lyndon ; and on the other hand, on the part of the Peacham school, it is insisted, that the act granting the lands to the Lyndon school was a violation of the previous grant of those lands to the Peacham school, and, therefore, unconstitutional and void. This seems to present a dilemma in which the court cannot avoid pronouncing an act of the legislature void.
By the grant to the Lyndon shool in 1836, it is provided “ if the supreme court shall hereafter adjudge this act to u be unconstitutional” — “ said trustees shall have no claim “ on the state for damages, but shall take this act at their “ own risk.” The legislature have, in effect, referred the question to the court and its opinion thereon. These two considerations relieve the discharge of this important duty, on this occasion, from much of its ordinary embarrassment and responsibility, arising from a conflict of power and opinion between the legislative and judiciary departments of the government.
The charier of the town of Lyndon was granted to sixty four proprietors, named ; each to take one seventieth part and, as is the expression of the charter, “ which together with the six following seventieth parts, reserved to the several uses in manner following, include the whole tract or township” — “ to wit, one seventieth part for the use of a college, one seventieth part for the use of county grammar schools, within said state.” &c., “ which two seventieth parts for the use of a seminary or college, and for the use of county grammar schools, as aforesaid, and the improvements, rents, interests and profits arising thereupon, shall be under the control, order, direction and disposal of the General Assembly of said state forever.”
By this charter, each proprietor took one seventieth part [639]*639of the township and this was his whole interest. The said . two seventieth parts never vested in him, or in them coilectively, to hold in trust or otherwise. Those rights remained with the legislature and were at its entire disposal, except that the charter contained a declaratory covenant or plighted public faith that they should only be appropriated for the uses and purposes mentioned and to which, by the charter-, they were sequestered and dedicated. That, under such a charter, the proprietors took only the one seventieth part was decided in Pawlet v. Clark, 9 Cranch, 292.
Over these two rights, the legislature had an absolute and entire control and'-disposal, for the uses and purposes for which they were reserved. Of the one for the use of grammar schools, it had the power to grant it to any one or more, and upon such limitations and conditions as the legislature chose to express, or without any condition whatever, in which case it would have only the implied condition that the use must ever be applied to the purpose of the grant. In relation to the other rights which were reserved in the charter, its provisions were entirely different. They “ shall, together with their improvements,” &c., “ be unalienably appropriated for the uses and purposes for which they are respectively assigned,” being uses entirely for the benefit of the inhabitants of the town, “ under the charge, direction and disposal of the selectmen of said town, in trust, to and for the use of said town forever.” Here, most clearly, the selectmen were to have a trust estate, for the town, and the lands were so to remain, unalienably, forever.
The power of the legislature being thus entire and absolute over these two first mentioned rights, for the purposes for which they were sequestered, we are next to inquire how this power has been exercised. In 1795, the legislature passed an act creating a corporation under the style of “ the Trustees of the Caledonia county Grammar School,” for the purpose of sustaining a grammer school at Peacham. In the preamble of that act they say, they are induced to this by the consideration, that Peacham is a suitable place, and by the memorial of the inhabitants giving assurance that they would make liberal donations, if the school could be then established and the trustees be authorized to hold and lease the lands sequestered in the different towns in the county for [640]*640the purpose. The act, after creating the corporation, proceeds to grant the lands in these words, “ and the said trustees are hereby fully empowered to hold and lease the lands lying within said county, granted for the use and benefit of a county grammar school, with such donations in land or other property as may hereafter, in any wise, be made for the use and benefit of said institution.” The act further provides that unless the inhabitants of Peacham fulfilled their assurances, and conveyed to the trustees the estate they had promised, they were to take nothing by the act; and the case finds they did so fulfil. The act then provides that any future legislature may, at any time, make an equal distribution of the avails of the county Grammar School lands among all the counties in the state.
It appears to us there can be no possible doubt of the intent of the legislature, as expressed in this act. It creates an aggregate corporation. It makes to that corporation a grant which unquestionably was intended to include the land in controversy, and included that or none. This grant being to an aggregate corporation, having perpetual succession, required no words of perpetuity, and was as unconditional and as absolute and of the same effect,as a grant to a man and his heirs and assigns forever. It is obvious that such, at the time, was the understanding of all concerned. The legislature annexed to the grant the express provision that a future legislature might distribute the avails of all such lands among the several counties ; thereby clearly showing they understood that, by the grant, they parted with all control of the lands, except what they expressly reserved. The trustees so understood it, for they proceeded to make durable leases of the land. It must be it was so intended to be understood by the memorialists, as the case finds they made the promised endowments or grants, which could not have been expected, if it was understood the grant was subject to being immediately revoked.
In 1831, the legislature incorporated a second county Grammar School in Caledonia county, at Lyndon. In 1836 an act was passed, authorizing the trustees of this second school to take possession of the Grammar School lands in Lyndon, and certain other towns in the county, and to hold the same ; and if the same had been leased, the tenants [641]*641Were to attorn to these trustees. Was this act contrary to the constitution of the United States ? Did it impair the obligation of any contract ?
As the supreme court of the United States is the tribunal of dernier resort in all questions of this nature, we should govern ourselves by their decisions. That the trustees of a college, grammar-school or seminary of learning is such a corporation as cannot, without, their own consent, be modified, vacated or controlled by act of the legislature, as* may be done with counties, towns or other municipal or civil corporations, is fully decided in Trustees of Dartmouth College v. Woodward, 4 Wheaton, 518. That a grant of land, by a state legislature, vests a title indefeasable by the state, and is a contract which the state has no power to impair|by subsequent legislation, is fully settled in the case of Fletcher v. Peck, 6 Cranch, 87. That the grant was made for the purpose of public instruction, religious or literary, no more subjects it to subsequent legislative control, than if made forlprivate use, was fully decided in Terrett et al. v. Taylor et at. 9 Cranch, 43. There is to this case the additional circumstance that it was made on a pecuniary consideration, as, by the terms of the grant, the inhabitants were to make certain conveyances to be entitled to its benefits. All the lands in Vermont, granted by charters from its Governor, under the authority of the legislature, are held by the same tenure, and not greater, nor more inviolable than that by which the plaintiffs hold theirs; and it cannot be considered that our citizens hold their farms at the mere will and pleasure of the legislature. The act of 1836 was, then, an act impairing the obligation of a contract, was contrary to the constitution of the United States, and void.
The decision in Trustees of Orange county Grammar School v. Dodge, Brayton, R. 223, is not an authority in point, on the present question. In that case, like the present, the grant authorized the legislature to make subsequent distribution of the rents of the lands among the several counties. The legislature assigned afterwards a part of the lands granted, to the county Grammar School in the then newly formed county of Washington, being the lands in those towns set off from the county of Orange. The reasons for the decision of the court are not given, but might [642]*642have been these : The power of equal distribution, among all the counties, was in the legislature : Of the mode of effecting this, the legislature must be the arbiter: They might have been satisfied that such equal distribution would be produced by the grant they made to Washington county, and therefore, the new grant was a good exercise of the power expressly reserved in the grant. In the present case, the new grant is to a school in the same county, and by no possibility could it have been authorized by the reservation in the Peacham grant.
It appears by the case that the defendant entered upon the land under the plaintiffs, and was tenant to them. The defendant could not deny or compel the plaintiffs to prove their corporate capacity, under the plea of Not Guilty. 3 Peters’ R. 408. 5 Vt. R. 93. Therefore, proof of the organization and proceedings of the plaintiffs was of no importance. Nor could the defendant, being a tenant, be permitted to object to the formality of the lease under which he held.
Judgment affirmed.