City of Corinth v. Robertson ex rel. Alcorn County Chickasaw School Fund , 125 Miss. 31 ( 1921 )

Smith, C. J.,

delivered the opinion of the court.

The revenue agent exhibited an original bill in the court below for the use of the county of Alcorn against the city of Corinth by which he seeks to recover from the city several thousand dollars alleged to have been received by the .city since 1892 from the interest on the Chickasaw school fund for the use of its separate school district in excess of its rightful share thereof. A demurrer to the bill was overruled.

The Chickasaw school fund was obtained by the state from the sale of the land set apart to the state of Mississippi for the use of schools within the territory ceded to the United States by the Chickasaw Indians and in which territory the county of Alcorn, in which is the city of Corinth, is situated. The city of Corinth was formed into a separate school district in 1892. The interest on this fund fixed by section 212 of the present state Constitution at six per centum per annum is applied .by the state to the support of public schools in the Chickasaw territory under the provisions of chapter 56, Laws of 1856.

The contention of the revenue agent is that under the act of Congress by which the land was set apart to the state the interest on this fund should be equally divided among the townships in the territory ceded to the United .States by the Chickasaw Indians, and not as provided in chapter 56 of the Laws of 1856, and/that, because of this alleged violation of its trust by the state, the city of Corinth has received for the maintenance of its separate school district more than its share of this interest which sum the revenue agent seeks to recover for the county for the use of public schools in the townships therein other than the township in which the city of Corinth is situated.

In order that the ground of the revenue agent’s contention may be properly understood, it will be necessary to examine the various laws and treaties under which the sections No. 16, and the land from which the fund here in question was derived, were set apart by the United States to the state.of Mississippi for school purposes.

The territory ceded to the United States by the Chickasaw Indians was formerly a part of and was ceded by the state of Georgia to the United States in 1802 by Articles of Cession and Agreement, the fifth section of the first article of which provides:

“That the territory thus ceded shall form a state, and be admitted as such into the Union, as soon as it shall contain sixty thousand free inhabitants, or at an earlier period if Congress shall think it expedient, on the same conditions and restrictions, with the same privileges, and in the same manner as if provided in the ordinance of Congress of the.thirteenth day of July, one thousand seven hundred and eighty-seven, for the government of the western territory of the United States; which ordinance shall, in all its parts, extend to the territory contained in the present act of cession, that article only excepted which forbids slavery.” Mississippi Code of 1823, p. 504; Mississippi Code of 1857, p. 646.

Article 3 of the Ordinance of July 13, 1787, referred to in the Articles of Cession and Agreement, is as follows:

“Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged. The utmost good faith shall always be observed towards the Indians; their lands and property shall never be taken from them without their consent; and, in their property, rights, and liberty, they shall never be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity, shall, from time to time,- be made for preventing wrongs being done to them, and for preserving peace and friendship with them.” ’ Laws of the United States, Resolutions of Congress under the Confederation, etc., Relating to the Public Lands, p. 360.

The territory so ceded, together with territory south of it, was afterwards, with the consent of the state of Georgia, formed into the states of Alabama and Mississippi.

On the 3d day of March, 1803, Congress enacted a statute entitled:

“An act regulating the grants of land, and providing for the disposal of the lands of the United States south of the state of Tennessee.”

Wbicb act, after providing for the disposition of a portion of the land therein dealt with, continues in sections 10,11, and 12, as follows:

“That a surveyor of the lands of the United States, south of the state of Tennessee, shall be appointed, whose duty it shall be ... to cause the lands above mentioned, to which the titles of the Indian tribes, have been extm-guished [italics supplied], to be surveyed and divided in the manner hereafter directed.

“ . . . The said surveyor shall also cause all the other lands of the United States, in the Mississippi territory, to which the Indian title has been extinguished [italics supplied], to be surveyed as far as practicable, into townships, and subdivided into half sections, in the manner provided for the surveying of the lands of the United States, situate northwest o,f the river Ohio, and above the mouth of the Kentucky river. . . .

“That all the lands aforesaid, not otherwise disposed of, or excepted by virtue of the preceding sections of this act, shall, with the exception of the section number sixteen, which shall be reserved in each township for the support of schools within the same, ... be offered for sale,” etc.

2 Stat. at Large, 229; Mississippi Code of 1828, p. 511; Mississippi Code of 1857, p. 647.

On April 21, 1806, Congress enacted a statute (2 Stat. 400) amending or supplementing the Act of March 3, 1803, the sixth section of which provides:

“Whenever the section number sixteen shall fall upon land already granted, by virtue of any act of Congress, or claimed by virtue of a British grant, the secretary of the treasury shall locate another section in lieu thereof, for the use of schools, which location shall be made in the same township, if there be any other vacant section therein, and otherwise, in an adjoining township.” Code of 1823, p. 518; Code of 1857, p. 657.

The title of'the Choctaw Indians to the land in the Mississippi territory occupied by them was extinguished in September, 1880, by tbe treaty of Dancing Eabbit Creek by which the United States ceded to the Choctaw nation— “A tract of country, west of the Mississippi river, in fee simple to them and their descendants, to inure to them while they shall exist as a nation and live on it,” etc.

And the Choctaws ceded to the United States — “The entire country they own and possess east of the Mississippi river.” Mississippi Code of 1857, p. 707.

The title of the Chickasaw Indians to the land in the Mississippi territory occupied by them was extinguished in October, 1832, by the treaty of the Pontotoc Creek by which the Chickasaw nation ceded — “to the United States all the land which they own on the east side of the Mississippi river, including all the country where they at present live and occupy.”

And the United States agreed to sell all of the land thereby ceded to it, and — “As a full compensation to the Chickasaw nation, for the country thus ceded, the United States agree to pay over to the Chickasaw nation all the money arising from the sale of the land,” etc. Mississippi Code of 1857, p. 714.

One of the results of the treaty between the United States and the Chickasaw Indians was that the sixteenth sections situated in the land theretofore occupied by the Chickasaw Indians never became available to the state of Mississippi for school purposes.

On July 4, 1836, Congress enacted a statute entitled:

“An act to carry into effect, in the states of Alabama and Mississippi, the existing compacts with those states in regard to the five per cent, fund, and the school reservations.”

Section 2 of which provides:

“That there shall be reserved from sale, in the state of Mississippi, a quantity of land, equal to one thirty-sixth part of the land ceded by said Chickasaws as aforesaid, within said state of Mississippi, which land shall be selected under the direction of the Secretary of the Treasury, in sections, or half sections, or quarter sections, out of any public lands remaining unsold, that shall have been offered at public sale within either of the land districts in said state of Mississippi, contiguous to said lands within said state, so ceded by the Chickasaws as aforesaid; which lands, when so selected as aforesaid, the same shall vest in the state of Mississippi, for the use of schools within said territory in said state, so ceded as aforesaid by the Chickasaws; and said lands, thus selected, shall be holden b.v the same tenure, and upon the same terms and conditions, in all respects, as the said state now holds the lands heretofore reserved for the use of schools in said state.” Mississippi Code of 1857, p. 682; 5 U. S. Stats. at Large, p. 116. 9

On May 19,1852, Congress enacted a statute .“to authorize the legislature of the state of Mississippi to sell the lands heretofore appropriated for the use of schools in that state, and to ratify and approve the sales already made,” which,reads as follows:

“That the legislature of the state of Mississippi shall be, and is hereby authorized to sell and convey in fee-simple, or lease, for a terms of years, as the said legislature may deem best, 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 said sales, as said legislature may direct, 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 use, or purpose whatsoever: Provided, said lands or any part thereof, shall, in no case, be sold or leased without the consent of the inhabitants of such township or district to be obtained in such manner as the legislature of said state may by law direct; and provided further, that in all cases, the money arising from the sales of lands within a particular township and district, shall be appropriated to the use of schools within that township and district. ...

“That sales heretofore made by the authority of the legislature of the state of Mississippi of lands reserved and appropriated as aforesaid, are hereby ratified and approved in tlie same manner and to the same extent, at if this act bad been in force at the time of said sales.”

10 Stat. at Large, p. 6; Mississippi Code of 1857, p. 696.

The land set apart to the state by the Act of Congress of July 4, 1836, was sold and the money received therefor was paid into the state treasury under the provisions of chapter 3, Mississippi Laws of 1848, the fifth section of which provides that the money so received shall be paid into the treasury, and “shall be a charge upon the state of Mississippi, to be held in trust by said state for the use of schools in the Chickasaw cession, and to be applied to that purpose as hereafter to be provided by law.”

In 1856 the state legislature enacted a statute, chapter 56, Laws of 1856, the third and tenth sections of which provide:

“That the secretary of state is hereby required to make out and furnish to the auditor of public accounts, a calculation, based on the area of territory in the Chickasaw purchase, of the proportionate amount of interest due to each of said counties; and it is hereby made the duty of said auditor to issue his warrant on the state treasurer for the said proportionate amount, upon application to him by said county treasurer, in person, or attorney in fact, accompanied with satisfactory proof that said county treasurer has fully complied with the requirements of this act. . . .

“That the interest moneys in each county shall be held subject to the order of the board of school commissioners of such county, which is hereby authorized to expend the same in accordance to the existing laws, or laws that may be hereafter passed, applicable to the respective counties of the Chickasaw purchase, ,in relation to common schools.”

Since the enactment of this statute the interest on this fund has been remitted to the county treasurers in accordance with its provisions except that the memoranda on which the auditor apportions it to the counties is now furnished him by the Land Commissioner. The statutes (Hemingway’s Code, section 7387) in force when and since the Corinth separate school district was formed provide that the county common school fund shall be divided between the separate school districts of a county and that portion of a county not included in separate school districts on the basis of the number of educable children in each, and that—

“The county treasurer shall . . . pay over to the treasurer of a municipality in his county which is a separate school district, all money to which the spearate school district may be entitled; and the treasurer of each municipality which is a separate school district, shall perform like duties as are devolved on county treasurers, as far as applicable in reference to money for the support of schools.”

The interest here in question, as we understand the allegations of the bill, was disposed of by the state, county, and municipal treasurers in accordance with the foregoing provisions of the statutes.

The contention of the revenue agent as set forth in the bill of complaint is that—

“It was the intention of the Congress of the United States that the lands so selected and reserved for the use of the schools in the Chickasaw Cession and the interest arising from the fund realized from the sale of said lands should be distributed pro rata to the townships and fractional parts of a township being- in said Cession, that such distribution should be made upon the basis that the ratio of the area of each township, or fractional part of a township, bears to the total area of said cession in said state, to the end that each toAvnship or fractional part should have an amount equal in proportion to its area for the usé of schools therein, and thus bring about and produce as nearly an equal and uniform development and settlement of all parts of said Chickasaw Cession, and that the state of Mississippi so holds said fund in trust for the use of the schools, as aforesaid, and upon the terms and conditions aforesaid.”

In support of this contention it is said that the Ordinance of July 13, 1787, incorporated by reference into the Articles of Cession and Agreement, by which the state of Georgia ceded, her western territory to the United States, reserved the sections No. 16 therein for the use of schools in the townships wherein they are situated, and that the United States violated this agreement with the state of Georgia when it sold the sections No. 16 in the Chickasaw territory pursuant to the treaty with the Chickasaw Indians, and, in order to right the wrong thereby done, Congress set apart to the state of Mississippi, by the Act of July 4, 1836, an area of land equal to the area of all of the sections No. 16 in the Chickasaw territory “for the use of schools within said territory” to be holden by the state “upon the same terms and conditions, in all respects, as the said state now holds the lands heretofore reserved for the use of schools in said state,” which act, when construed in the light of the wrong thereby sought to be righted, must be held to have reserved the land for the use of the schools in all the townships in the Chickasaw territory, each township to share equally therein with each of the other townships.

There is no foundation in fact for the charge that the United States violated its agreement with the state of Georgia in selling the sections No. 16 in the Chickasaw territory, or that the state of Mississippi is violating its trust in distributing in accordance with chapter 56, Laws of 1856, the interest on the fund derived from the sale of the land set apart to it by the Act of Congress of July 4, 1836, for use of schools in the Chickasaw territory.

Neither the Articles of Cession and Agreement by which Georgia ceded her western territory to the United States, nor the Ordinance of Congress of July 13, 1787, for the government of the western territory of the United States therein referred to, set apart‘any land whatever for the use of schools, the only reference to schools in either of them and the only obligation assumed by the United States in this connection is that contained in article 3 of the Ordinance that—

“Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” Laws of the United States, Resolutions of Congress under the Confederation, etc.., Relating to the Public Lands, p. 360.

The setting apart of the sections No. 16 in each township for the use of schools within the township was initiated by the Ordinance of May 20, 1785, for “disposing of lands in the western territory,” Laws of the United States, Resolutions of Congress under the Confederation, etc., Relating to Public Lands, p. 349, and thereafter became the government’s settled policy, so that when it came to comply with its agreement with the state of Georgia it did set apart, by the Act of March 3, 1803, each section No. 16 in the territory ceded to it by that state for the use of schools in the townships, but it was expressly provided therein that the land should be surveyed and the townships and sections thereby located when the title of the Indian tribes thereto should be extinguished. By this statute the state acquired the right to each sixteenth section in the designated territory, when, but not until, the Indians’ right of occupancy was extinguished and the section had been surveyed as provided by law. Gaines v. Nicholson, 9 How. 356, 13 L. Ed. 173; Cooper v. Roberts, 18 How. 173, 15 L. Ed. 338; Beecher v. Wetherby, 95 U. S. 517, 24 L. Ed. 440.

Not only is it expressly provided in the Ordinance of July 13, 1787, referred to in the Articles of Cession and Agreement by which the state of Georgia ceded the western territory to the United States, that “the utmost good faith shall always be observed toward the Indians; their lands and property shall never be taken from them without their consent,” but such had then become and thereafter continued to be the government’s settled policy in dealing with the Indians in accordance with which not only the acts of Congress here in question, but all other acts of Congress under which the public lands were disposed of, made the sale thereof, or the reservation of parts thereof for the use of schools, dependent upon the extin-guishment of the title of the Indians thereto, so that in its treaty with the Chickasaw Indians the United States, instead of violating its agreement with Georgia, complied both with the letter and the spirit thereof.

Whether the sixteenth sections were donated to the state of Mississippi by the state of Georgia, as was said to be the case in Jones v. Madison County, 72 Miss. 778, 18 So. 87, or whether they were donated to the state by the United States pursuant to its general policy for the support of schools and its agreement with the state of Georgia, as seems to be the fact, it is true that the land from which the fund here in question was derived was given to the state by the United “States in lieu of the sections No. 16 which did not become available to the state because of the treaty with the Chickasaw Indians, nevertheless thé terms of the trust upon which the land was given must be gathered from the act of Congress of July 4, 1836, by which the grant was made, from which it appears that the grant was “for the use of schools within said territory in said state, so ceded as aforesaid by the Chickasaws,” without any provision that any particular portion thereof or its proceeds should be devoted to the use of schools in any particular portiqn of the territory for the use of schools within which the land was granted. The provision in the act that the land “shall be holden by the same tenure and upon the same terms and conditions, in all respects, as the said state now holds the lands heretofore reserved for the use of schools in said state,” refers, not to the territory within which the land should be used for school purposes, but to the terms and conditions on which the land should be held by the state for the use of schools within the designated territory.

The Act of Congress of May 19, 1852, authorizing the state to sell the land reserved therein for the use of schools, can have no effect upon the terms of the trust under which the state held the land from which the fund here in question was derived, for two reasons: First, when the act was passed the state’s title to the land had fully vested so that it was then beyond the power of Congress to change the terms of the grant and the state had full power to dispose of the lands without the consent of Congress. Cooper v. Roberts, 18 How. 173, 15 L. Ed. 338; Jones v. Madison County, 72 Miss. 778, 18 So. 87. Second, the act simply provides that the money arising from the sale of the lands shall be used for the support of schools within the territory for the support of schools in which the land was originally reserved.

But if we should be mistaken as to this, the result here would be the same, for in administering the trust the state must act through its legislature, and in so doing “assumes the same measure of responsibility that pertains to it in the exercise of its law-making power. No other mode can be suggested in which a state can manage a fund for charitable uses. It must by statute derive the machinery to carry out the object. If the agent or officer of the state,' acting under the law, disobeys its injunctions, transcends his powers, or refuses altogether to act then it is'in the jurisdiction of the judicial department to restrain his illegal acts and compel him to conform to the law.” State v. Vicksburg, etc., R. Co., 51 Miss. 361. But when the agent or officer of the state charged by its laws with the duty of administering the trust, administers it in accordance with such laws, he cannot be called in question for so doing and is not personally liable to the cestui que trust for any diversion of the trust fund which may result because of his having disposed of it as he was directed by law so to do. The state in administering a trust acts in its sovereign capacity, and the acts of its administrative officers in so far as they obey its commands are the acts of tbe state for which it alone is responsible unless the Constitution should provide otherwise.

The treasurer of the city of Corinth in receiving and disbursing the interest on the fund here in question, which was paid over to him by the treasurer of Alcorn county for the use of the Corinth separate school district, acted simply as the state’s agent, and since he complied with the law in making the disbursement he cannot be held liable for any diversion of the interest on the fund which may have resulted from the method adopted by the state for administering the trust. The city of Corinth for the same reason cannot be held liable therefor assuming for the sake of the argument that a municipality constituting a separate school district is liable for the misuse of common school funds by its officials charged by law with the management thereof.

Whether or not an injunction would lie to prevent the state’s agent from disposing of trust funds of which the state is the trustee in violation of the terms of the trust, though in accordance with the laws adopted by the legislature for administering the trust, is not before us and is not intended to be here decided, though necessarily included in the further observations now to be made.

Another question presented by this record, a decision of which is not necessary for the final disposition of this ease1 and which is referred to only that it may not appear to have been inferentially decided by what has heretofore been said, is: Can the state’s administration of the trust be called in question in one of its courts and the court’s judgment as to the obligation assumed by the state in accepting the trust, and as to how that obligation should be discharged, be substituted for the judgment of the state’s legislature? In which connection the cases of which the following are a type will be of interest: State v. Vicksburg, etc., R. Co., 51 Miss. 361; Cooper v. Roberts, 18 How. 173, 15 L. Ed. 338; Mills County v. Burlington, etc., R. Co., 107 U. S. 557, 2 Sup. Ct. 654, 27 L. Ed. 578; County of Cook v. Calumet, etc., Dock Co., 138 U. S. 635, 11 Sup. Ct. 435, 34 L. Ed. 1110; Morton v. Grenada Academies, 8 Smedes & M. 773; Davis v. Indiana, 94 U. S. 792, 24 L. Ed. 320.

In Cooper v. Roberts, supra, tbe court in deciding that a state has the right to sell the sixteenth sections reserved for the use of its schools without the consent of Congress used this significant language:

“The trusts created by these compacts relate to a subject certainly of universal interest, but of municipal concern, over which the power of the state is plenary and exclusive. In the present instance, the grant is to the state directly, without limitation of its power, though there is a sacred obligation imposed on its public faith.”

It follows from the foregoing.views that the demurrer to the bill of complaint should have been sustained.

The decree of the court below will be reversed, the demurrer sustained, and the cause dismissed.

Reversed.