the desired authority, but with the proviso that the consent of the various townships should first be secured and that the proceeds arising from this fund should be distributed to the townships in proportion to the amount received from the sale of their lands.86

With the enabling act of Colorado in 1875 Congress for the first time in a grant of school lands imposed an express restriction on the power of sale. A public sale with a minimum price of two and a half dollars an acre was required.87 All the states admitted since that time, except Utah, have been subjected to some restriction as to the mode of disposing of their land. The six that entered the Union in 1889 and 1890, like Colorado, were required to sell their school lands at public sales. The minimum price per acre was fixed at ten dollars.88 In the enabling act of Oklahoma there was substituted for the requirement of a minimum price a provision for the appraisal of the land by disinterested persons not residents of the county in which the land is located. No bid for less than the appraised value can be accepted and no mineral lands can be sold before January 1, 1915. Arizona and New Mexico were subjected to requirements fixing the notice to be given, and the place and manner of sale. The minimum price was put at three dollars per acre for the more arid land west of a certain meridian in New Mexico, five dollars for land east of this meridian, and twenty-five dollars for land capable of irrigation under the statutes of Congress. It was also provided that no mortgage or incumbrance of state land should be valid under any circumstances and that credit should not be given without ample security. In case of sale, legal title does not pass from the state until the purchase price has been paid in full.90

90

89

We have seen that prior to 1836 the school lands were granted either directly to the townships or to the state for the use of the townships. This form of grant in itself was a very important limitation on the power of the state. In many cases Congress has specifically required that the proceeds of the school lands should go to the various townships." The result has been either separate funds with local management, as in Louisiana,92 Missouri, Illinois, and Mississippi, obviously an unfair and unsafe system; or, as in Indiana, Ohio, and Alabama, a single fund, managed by the state, but with the proceeds distributed to the townships, not pro rata, but according to the returns brought by their land, a system equally unfair and

93

94

96

97

95

98

86 Laws of the United States, 7: 434, 587; 8: 108; 10: 432. Ohio was authorized to sell in 1826, Alabama in 1827, Indiana in 1828, and Illinois, Arkansas, Louisiana, and Tennessee in 1843.

87 Statutes at Large, 18: 476.

88 Ibid., 25: 679; 26: 216-217, 223-224.

89 Ibid., 34: 273-274.

90 Ibid., 36: 563-564, 574-575.

91 Ibid., 7: 434, 587; 8: 108; 10: 432,

92 Swift, Public Permanent Common School Funds in the United States, 281.

93 Ibid., 321-323.

94 Ibid., 257.

95 Ibid., 327.

96 Ibid., 261.

97 Ibid., 368. 98 Ibid., 210.

unnecessarily complicated. Only two of the nine states that received their school land for their townships consolidated the proceeds as a single fund: Florida," in 1848, after her townships had been given an opportunity, but had failed to organize to care for the lands, and Arkansas,100 in 1899, after receiving special authority from Congress. 101 The income is distributed to the counties on the basis of school population or average attendance.

The limitation considered, however, was not a restriction on the state in regard to the purpose for which the common school fund should be applied, but only in regard to the manner of distribution. Such a limitation, however, in a general way, was contained in the provision that the lands should be for the use of "schools," "common schools," or "public schools." Further than this Congress did not go until 1889, when it required of North Dakota, South Dakota, Montana, and Washington, that the schools receiving the benefit of the fund should always remain under state control, and that no part of the fund should be devoted to the support of denominational schools.102 Equivalent conditions were imposed upon Idaho,103 Wyoming," Utah,105 Oklahoma,106 Arizona, and New Mexico.107

104

The early land grants made no provision for the permanence of the school funds. It was left to the states or to the local divisions to determine whether the principal as well as the proceeds should go to the support of the schools; and unfortunately most of the early states have long ago exhausted all or a large portion of their endowment. Not till 1875 did Congress learn wisdom from the mistakes of its beneficiaries. In the grant of that year to Colorado it provided that the proceeds derived from the sale of the school lands should constitute a permanent fund, only the interest of which might be used for the support of schools.108 Every state subsequently admitted is subject to the same limitation.109

In the enabling act of Dakota, Montana, and Washington, Congress for the first time inserted a provision as to the mode of investment of the school funds. The requirement, however, was merely to the effect that the funds should be "safely invested."110 In such a general form it was not of much value. The next step in the direction of national control was taken in 1910, by requiring the school funds, as well as the other land funds of Arizona and New Mexico, to be invested by the state treasurer in safe interest-bearing securities approved by two state officers, the governor and the secretary of

105 Ibid., 28: 110.

106 Ibid., 34: 273.

107 ibid., 30: 485; 36: 563, 574.

108 Ibid., 18. 476.

109 Ibid., 25: 680; 26: 216, 223; 28: 110; 34: 274; 36: 563, 573-574.

110 Ibid., 25: 680.

state, and by requiring the state treasurer to provide "sufficient bonds conditioned for the faithful performance of his duties."111

It must now be apparent that in all of the matters considered above progress has been in the direction of greater national control over the school lands, particularly during the last four decades. The question immediately arises, what has the federal government done to enforce its requirements? And the answer is, nothing. Many a state has diverted the proceeds of its lands from their purpose, but Congress has taken no action. Indeed, it is only the last enabling act that contains a provision looking toward the enforcement of the requirements. That measure makes it the duty of the attorney general of the United States to enforce the provisions of the act pertaining to the disposition of the lands and the proceeds thereof.112 This is a very significant requirement. It may compel the Supreme Court to settle the much-mooted question as to the power of the United States to enforce conditions of this character. One thing is certain; it can not take back the land even if some condition is violated. These grants are not grants upon condition in the technical sense in which the common law uses the term, that is, in the sense that actual title does not pass.113 This being so, it is very difficult to see what the national government could do in the event that a state should fail to live up to its agreement.

This does not mean, however, that these conditions are without substantial effect. Coupled as they are with a donation they carry a moral weight that must have some influence. But here is the really significant point. The more important requirements are generally incorporated in the first state constitutions and thus unquestionably become binding upon the state govern

ment.

111 Ibid., 36: 564, 575.

112 Ibid., 564-565, 575.

113 Schneider v. Hutchinson, 35 Oregon, 253, 258.

CHAPTER III

FEDERAL LAND GRANTS FOR THE SUPPORT OF UNIVERSITIES

We have noted that at the time when the early American statesmen were shaping the policy of the national government in regard to the support of higher education, Virginia, Georgia, Maryland, Pennsylvania, New York, Vermont, and New Hampshire had recently entered upon a policy of land grants for the support of colleges and universities, while in Massachusetts and Connecticut this system was century-old and thoroughly established.

A delegate from one of these states first suggested to Congress the expediency of reserving part of the western lands for the support of higher education. In 1783, in moving the acceptance by Congress of the cession of lands by Virginia, Colonel Bland of that state proposed that out of every one hundred thousand acres there should be reserved for the use of the United States ten thousand, the profits of which should be devoted to the payment of the civil list of the United States, the erection of frontier forts, the founding of seminaries of learning, and the surplus, if any, to the building and equipping of a navy. It is worthy of remark that Virginia had used public land for all of these purposes except the last. The exact attitude of Congress toward this proposition we have no means of determining, for the matter was referred to a committee and never came to a vote.2

But this we may say with certainty: there was in Congress at this time no general interest in the matter of federal land grants for the support of higher education, for when the Ordinance of 1785 was under consideration and land reservations for various purposes were proposed, no man suggested that public land should be devoted to the encouragement of universities. The influence which was to establish this policy came, not from within the national legislature, but from without. In the preceding chapter reference was made to the organization of the Ohio Company. The promoters of the new movement were interested in the western lands, not merely as a profitable investment, but as a home for themselves and their children, for many of them were planning to remove to the newer New England west

1 Bancroft, History of the Formation of the Constitution of the United States, appendix, 312-313; Journals of Congress, 8: 199. George Bancroft, on page 312 of the appendix of the work referred to, states that Bland's motion was made on June fifth. This is evidently not the correct date, for in the Journals of Congress for June 4, 1783, vol. 8: p. 199, there appears the following statement: "The committee, to whom was referred a motion of Mr. Bland for accepting the cession of territory made by the legislature of the commonwealth of Virginia

2 Journals of Congress, 8: 199.

report, etc."

of the Alleghanies. Many of them were college-bred men. They were about to place a barrier between themselves and the cultural advantages of the East. Under the circumstances we should expect them to seek to acquire the means wherewith to create new centers of culture within reach of their prospective homes. Moreover, they knew that the venture on which they were embarking would be successful from the financial point of view just to the extent to which they could make the new region attractive to possible emigrants from the northern states, men to whom educational advantages would be certain to appeal.

Of the three directors, Rufus Putnam, Samuel Parsons, and Manasseh Cutler, the first had been a member of the Massachusetts legislature when it added to the land endowment of Harvard University; the second was a graduate of this very University; and all were residents of one or the other of the two states that for a long time had followed the policy of making land grants for the support of their great educational institutions.

Only one of these men, however, appears to have taken an active part in securing a land grant for a university as a condition of the purchase which the company was negotiating. In connection with the study of the school lands we have seen how Manasseh Cutler, as agent of the Ohio Company in the purchase of land from Congress, demanded the donation of four townships within the area to be purchased, for the support of a university, and, finally, after meeting a great deal of opposition, succeeded in wringing from Congress a grant of half this amount.

If we may trust the memory of the central figure in this transaction when, in a letter to his son thirty-one years later, he comments upon the part he bore at the time of the application to Congress for the purchase, it was Cutler alone who had "an idea of asking for such grants." His assistant in the negotiation, however, Sargent, another man trained at the land-endowed university of Massachusetts, is given credit for having extended his cordial aid in surmounting the difficulties in the way."

As noted in a former chapter, this was the first step toward the inauguration of a federal policy of granting lands for the support of universities. While the immediate reason for the grant was the insistent demand of Cutler and the pressing financial necessities of Congress, of which he took advantage in driving his bargain, surely we may say that back of these immediate circumstances, suggesting the plan to Cutler and making it seem not altogether new and revolutionary to the members of Congress, was the almost universal prevalence of land grants for some purpose, as well as the dedication of public land to this particular purpose by the majority of the states.

The second grant of United States land for the promotion of higher

8 Cutler, Life, Journals, and Correspondence of Manasseh Cutler, 1: 191-192.

4 Ibid., 2: 321.