
    STATE OF INDIANA v. THE UNITED STATES.
    [No. 16677.
    Decided November 9, 1891.]
    
      On the Proofs.
    
    This case grows out of the statutory compact between the United States and Ohio, Indiana, and other States when they entered the Union, whereby the one agreed to reserve 2 per cent of the net proceeds of the public lands sold in each and apply that fund to the making of a road leading to the State in consideration of the other suspending taxation on the land sold for five years, and out of the subsequent statutes and proceedings of the United States íd performing their part of the compact by the construction of the National or Cumberland Road.
    I. The Act 19i/i April, 1816 (3 Stat. D., p. 289), admitting Indiana to the Union, contained a compact that the United States should reserve 2 per cent of the net proceeds of the public lands within the State and apply that fund “to the making of a road or roads leading to said State." This bound the defendants to expend the fund for that purpose,’but not to complete and maintain a road at their own cost.
    II. The Act 3d March, 1857 (11 Stat. L., p. 200), required the Commissioner of the General Land Office to state an account between the United States and Mississippi and other States, and to “ allow and 
      
      pay to each State such amount as shall thus be found due, estimating all lands and permanent reservations at §1.25per acre.” This entitled each State, including indiana, to the balance found due, but not to the whole of the 2 per cent fund irrespective of the expenditures made foy a road “ leading to said State.”
    
    III. The Act 2d March, 1855 (10 Stat. L., p. 630), requiring the Commissioner of the Land Office to state an account bet ween the United States and Alabama, established no principle which when extended to the other States would compel the United States to expend or pay the 2 per cent fund a second time.
    IY. The construction of the national road from Cumberland westward was in accordance with the obligation of the act 1816 to apply the 2 per cent fund to “ the making of a road or roads leading to said State” of Indiana; and the appropriation acts directing the expenditure to lie charged to the 2 per cont fund were a proper application of the fund to its intended purpose.
    V. Where a statute directs a public officer to state an account and allow and pay the amount found due, his allowance is either the award of an arbitrator or the accounting of a ministerial officer. If the former, his jurisdiction is exclusive, and an action will lie only on his award; if the latter, the statute of limitations will run from the time the statutory claim accrues irrespective of the accounting.
    
      The Reporters’ statement of the case:
    The following are the facts of the case as found by the court:
    I. After the admission of the State of Indiana to the Union the Cumberland or iNational Road was completed from Cumberland to Wheeling; and under the provisions of the Acts of May 15, 1820, and March 3, 1825, there was laid out and located a continuance of the road from the right bank of the Ohio River, opposite Wheeling, through the States of Ohio, Indiana, Illinois, to the seat of government in the State of Missouri. It was graded, bridged, and made a public road and highway from the Ohio River, opposite Wheeling, Ya., to its western terminus, and upon it was transported the Government mail, and it was opened to and used by the public. "But this was not accomplished until after tollgat.es had been erected and tolls imposed by the States of Ohio and Yirginia pursuant to the Acts 2d March, 1831, and 2d March, 1833.
    II. In 3872 the Commissioner of the General Land Office stated the account annexed to and forming part of these findings, and the amount of $0,380.85 by him allowed to the State of Indiana has been paid to the claimant, though the claimant did not accept it as a final settlement of the demands. But it does not appear, either from the said account or from the evidence in tlie case, what part of the expenditures upon the National road was properly chargeable “ to making a road to the said State,” nor does it appear what proportion of such expenditures for making- a road to the said State of Indiana was properly chargeable to the States of Ohio, Illinois, and Missouri.
    III. The account referred to in the preceding finding was allowed and certified by the Comptroller of the Treasury, but the questions now involved in this suit were reserved by the Comptroller for future consideration, as appears by the certificates attached to said account, hereinafter set forth. In 1873 the Secretary of the Treasury made an order that the account be reexamined, which is likewise annexed to these findings; and on the 17th October, 1889, the claimant, by the governor of the State, made a formal d jtnand upon the Commissioner of the General Land Office to state an account between the United States and the Stale of Indiana in accordance with the Act 3d March, 1857. No further account than that above refeired to has been stated by the Commissioner of the Land Office.
    IY. The following are the account, certificates of the Comptroller and order of the Secretary of the Treasury referred to in the preceding findings:
    “ Department op ti-ie Inferior,
    “ General Land Oppioe,
    “ December 4, 1872.
    “ Sir : Pursuant to the requirement of 2d sec. of the act of Congress approved 3rd March, 1857, entitled ‘An act to settle certain accounts between the United States and the State of Mississippi and other States, I have examined an ac. between the United States and the State of Indiana for the five per cent accruing under act of 19th April, 1810, upon the net proceeds of the sales of the public lands to 31st December, 1871, and under act of 3rd March, 1857, upon the cash value of lands within her limits embraced by permanent Indian reservations, and find that there is due to said State as follows, viz:
    Amount of balance duo her 31st December, 1856, per report No. 13457, on ao. of 3 per oent fund, as per certificate of tlie Register of tlie Treasury dated 1st July, 1872. $47.12
    Amount of 2 per cent on $20,6/8,430.71, the not proceeds of the salps of tlie public lands from the 1st December, >816, to 31st December, 1856, inclusive, as shown by the several adjustments of the 3 per cent ac. specified in statement A, hereto annexed... 413,568.61
    
      [Noth. — In consequence of tlio expenses incident to the sale of the public lands in Indiana from the 1st January, 181)7, to the 31st December, 1850, inclusive, having been in excess of the gross receipts, nothing has accrued to the State during that period, as shown by statement C.]
    Amount of 5 per centum on $126,674.52, the cash value of 101,339.62 acres, at $1.25 per acre, of lands situated within the limits of Indiana embraced by permanent Indian reservations, as per statement B. $6,333.
    419,949.46
    as will appear from the certificates of the Register of the Treasury and statement hereto annexed. By reference to the third article of the sixth section of the Act of 19 April, 1816 (3 Stat. L., p. 289, ch. 57)it will be seen that two-fiftlis of the 5 per cent, accruing upon sales of the public lands in Indiana were to be reserved and applied, under the direction of Congress, to the making of a road or roads leading to said State; and by statement D, hereto annexed, it will be seen that the pro rata of the sums from time appropriated for the construction of the Cumberland Road, which by law were to be replaced in the Treasury out of the 5 per cent accruing in Ohio, Indiana, Illinois, and Missouri, would more than absorb the entire amount of the 2 per cent which has accrued upon the sales of lands in Indiana. Hence, in the absence of special legislation authorizing the 2 'per cent to be paid over, there would appear to be at present nothing payable to Indiana except $47.12, the balance due her the 31st December, 1S56, on the 3 per cent account, and $6,333.73, being the 5 per cent on $126,674.52, the cash value, at $1.25 per acre, of 101,339.62 acres of land within the limits of the State embraced by permanent Indian reservations, which, pursuant to the ruling of the Comptroller in the case of the account for Illinois, the former is entitled to under act of 3d March, 1857. In consequence of the expenses incident to the sales of the public lands from 1st January, 1857, to 31st December, 1871, inclusive, being in excess of the receipts, nothing accrued to Indiana during that period.
    “Willis DbumMONd,
    “ Commissioner.
    
    “ Hon. E. W. Tayler,
    “ First Comptroller, U. 8. TreasuryP
    
    “ Exhibit D.
    
      “Statement, exhibiting the dates of certain acts of Congress malting appropriations for the construction of the Cumberland Hoad.
    
    
      “Class No. One. — By the terms of the acts making the appropriations embraced in this class the sums thereby appropriated are to be replaced in the Treasury o.ut of the fund, two per cent, reserved tor laying out and malting roads to the States of Ohio, Indiana, and Illinois, by virtue of the acts admitting said States iuto the Union, viz:
    
      
    
    
      “Class No. 2. — By the terms of the acts making the appropriations embraced in this class the sums thereby appropriated were to be replaced in the Treasury out of the fund, two per cent, reserved for laying out and making roads under direction of Congress, to the States of Ohio, Indiana, Illinois, and Missouri, pursuant to the acts admitting the said States into the Union, viz:
    
      
    
    “Treasury Department,
    “ Comptroller’s Office.
    
    “ I admit and certify tbe above balance of $6,380.85 this 25th day of January, 1873. Payable to Thomas A. Hendricks, governor of the State, at Indianapolis, Indiana, $47.12 from the 3 per .cent fund, and the residue, $6.333.73, from the 5 per cent fund.
    “War. Hemphill Jones,
    
      “Acting. Comptroller.
    
    “John Allison, Esq.,
    “Register, etcP
    
    
      Reporters’ statement of tlio case.
    “First Comptroller’s Office,
    
      “February 12th, 1873.
    “Under the re-reference of this report by the Secretary of the Treasury, and in accordance with his request indorsed on these papers, the preceding certificate of the Acting Comptroller is hereby set aside and vacated, and the account will be held for further consideration as if such certificate had not been made.
    “E. W. Tayler,
    “ Comptroller.”
    “John Allison, Esq.,
    
      “Register of the Treasury.¶
    
    “Treasury Department,
    “ Comptroller’s Office,
    “ 5th Feby., 1874.
    “ On further consideration I now re-affirm the decision and certificate of the Acting Comptroller, dated 25 January, 1873, as to the sum of $6,380.85, which is to be paid as therein stated; but all questions as to the further claim made by the State are reserved for future consideration. The sum certified to be paid to the Hon. Thos. A. Hendricks, Governor of Indiana, at Indianapolis. '
    “E. W. Tayler,
    “ Comptroller.”
    “Treasury Department,
    
      “February 10,1873.
    “Sir: In pursuance of the authority given to the Secretary of the Treasury by the proviso to the act of March 30,1868 (15 Statutes, page 54), I have to request that the account stated between the United States and the State of Indiana by report No. 23447 of the General Land Office, certified by the Acting Comptroller, January 25,1873, be re-examined by the Comptroller, and such action taken thereon as he may now deem proper. This request is made because, as I am informed, the sta ement of the account in said report and the certificate of the same conflicts with a former decision of the Comptroller, to which he adheres. The questions presented, as I learn, are peuding in Congress, and 1 deem it proper to await legislative action before a final disposition be made of the claims of the State.
    “Geo. S. Boutwell,
    “ Secretary.
    
    “(J. A. S.)
    “E. W. Tayler, Esq.,
    
      11 First Comptroller.”
    
      
      Mr. William E. Earle (with whom were Messrs. L. T. Miehener and William B. Hard) for the claimant:
    After reviewing the history of the legislation in relation to the provisions as to the public lands in Ohio, and then in Indiana, in connection with the history of similar provisions in the States of Alabama and Mississippi, Mr. Earle called attention to the fact that whilst the building of the Cumberland Eoad or National Turnpike was incidentally connected with this case, it was an incident merely. The long delay in the construction of that enterprise and the fact that in various ways it became involved in party politics had so delayed the work, that the general introduction of steam and the building of railroads superseded the importance and desirability of completing it. The compact with Ohio was to build a road through the State of Ohio and to the Indiana line, connecting with the navigable waters flowing into the Atlantic Ocean. The compact with Indiana was practically to the same purpose, as it was to build a road to Indiana connecting with the same waters in the east. So that it was practically two compacts on the part of the United States with these separate States to do one and the same thing. The money expended in building the road in Indiana, whatever it might have been, was not in anywise a fulfillment of any part of the compact with Indiana, but that was done under subsequent compacts with the States of Illinois and Missouri. Instead of completing the road to Indiana in accordanee with the compact, the United States had turned over to Maryland, Virginia, and Pennsylvania, within which by far the largest amount of money had been expended and which States had contributed nothing towards the expense of construction, the portions of the road in them respectively, with the privilege of collecting tolls thereon. Subsequently all work upon the road and all purpose of completing it were entirely abandoned, and .thus of carrying out the obligation.
    In consequence of this changed condition of affairs,' the United States having reserved 2 per cent out of the 5 per cent to which Indiana by common consent, with all new States of that time, were entitled out of the public lands sold within their borders, there was a solemn obligation resting upon Congress, which it fully recognized, to do something towards making this good to the State of Indiana, especially as, in consideration of this 2 per cent reserved to be expended on the “National Hoad,” the United States had in the compact secured an exemption from any taxation of all public lauds sold in the State of Indiana for five years after their sale, and the lands of the United States had thus been brought into greater demand and were more marketable.
    Under the compacts by which Alabama and Mississippi were admitted there were similar provisions for the construction of public roads leading to these States, as to the new States of Ohio and Indiana, and that by the sixteenth and seventeenth sections of the act of 1841 Congress had remitted to these States the 2 per cent reserved from them, and authorized them to expend it upon railroads leading to said States without requiring them to account to the Secretary of the Treasury for the manner of expending it, which under the decision of the Supreme Court is equivalent to an absolute release of the fund. Fourteen years thereafter, to wit, in 1855, Congress passed an act requiring the Commissioner of the General Land Office to state an account with Alabama, and pay over to it such sums as should be due on account of this 2 per cent fund. And sixteen years after the passage of the act of 1841, to wit, in 1857, Congress passed an act requiring the Commissioner of the General Land Office to state an account with the State of Mississippi “upon the same principles,” and to include all Indian reservations therein, rating them at $1.25 per acre. In the second section of this act there was an express condition that he should also state a similar account with all other States in similar condition upon the same principles.
    There were no other States at the time of the passage of this act of 1857 to which this second section could apply except the States of Ohio, Indiana, Illinois, and Missouri, and necessarily they were the “ other States” referred to in the language of the act requiring the Commissioner of the General Land Uffice to state “ an account between the United States and each of the other States upon the same principles.” This act therefore, as is expressly shown by the petition filed in the case, is the basis of this action. By a well-settled rule of construction the sixteenth and seventeenth sections of the act of 1841 and the act of 1855, as well as the first section of the act of 1857, are to be read and construed in pari materia with the second section of the act of 1857, and become incorporated into it as part of tbe law applicable to the State of Indiana.
    The right of the petitioner became vested upon the passage of the act of 1857, and this right essentially involved a trust on the-part of the United States; because when one party, whether an individual, a corporation, or government, is bound to do a particular thing for the interest of another the law raises^a trust; or where the transactions between the parties are such that a legal duty is devolved upon one for the benefit of another the law implies a trust. The United States had sold these lands in Indiana and bad the records of those saies, and its officers alone knew how much had been sold, how much had been realized therefrom, and how much the expenses of the sales had been (for it was 2 per cent upon the net proceeds), and it alone had the whole data and machinery in its own possession and control by which the account could be stated, and by the act of Congress this duty was devolved upon one of the United States’ own officials.
    Being a trust fund, it is unaffected by the statute of limitations until the trust is repudiated. It is not competent and is not within the power of any save the Congress of the United States, representing its political power, to repudiate a trust which it by legislation has created. (State of Louisiana v. United States, 123 U. S. B., 37; United States v. Taylor, 104 U. S. B., 222.)
    Bo laches can be imputed to Indiana. She has continuously and persistently urged the execution of this trust. The action of said commissioner on December 4,1872, rejecting this claim was vacated and set aside by the First Comptroller of the Treasury on February 12, 1873, under an order of reference to him by the Secretary of the Treasury dated February 10,1873. The matter was under advisement in the Department until February 5,1874, when the First Comptroller of the Treasury reaffirmed the decision and certificate of the Acting Comptroller dated January 25,1873, as to one claim embraced therein which was ordered to be paid as therein stated. But the questions as to this particular claim for the 2 per cent fund “ made by the State are reserved for future consideration,” and the questions involved in the trust now being prosecuted were held under consideration by the agents and officers of the trustee from that date until, on specific application and demand made by the governor and State officers of Indiana, on October 3, 1889, it was refused by the Commissioner of the General Land Office. This refusal put the statute iu motion, and until that date it was dormant.
    
      Mr. W. J. Rannells (with whom was Mr. Assistant Attorney-General Cotton) for the defendants.
    I. The petition of the claimant does not state a cause oí action. The followingfacts and propositions are deducible from it.
    
      First. That the 2 per cent fund was reserved to the control of Congress, was interstate in character, and could be applied anywhere toward the construction of a road or roads which Congress would direct that led to or toward Indiana.
    
      Second. The control of this fund was absolute in Congress and remained with it forever until voluntarily relinquished by it, and this it has not done.
    
      Third. That an analysis of the Acts of 1816 and 1841m connection with those of 1855 and 1857 will show (a) that Congress oidy intended to relinquish its control of the 2 per cent fund so far as the States of Alabama and Mississippi were concerned; (b) that said fund was tobe handed over to the control of those States upon the performance of certain specified conditions; (c) that the original end'•sought to be accomplished by (he use of said fund was rigidly held in view by Congress in specifying the purposes for which said fund was to be used.
    
      Fourth. That even on the theory that the conduct of Congress was such in its management of the fund for the benefit of Indiana that that State has a right to assert a claim against the defendant as such trustee, yet to sustain an action for said fund there should be an allegation in the petition that Indiana had expended a sum equal to the sum prayed for on a road or highway leading to or toward said State of an interstate character, or at least had a clearly projected plan for such road which would require the expenditure of a sum equal to or greater than the amount claimed. This fund was stamped with an inflexible purpose. The defendant, without legislative permission, was powerless to divert it. Can this court by its judgment divert it ? If a judgment as prayed for is given, the logical effect is to do so. The benefit to be derived from this fund was primarily to the United States and but to incidentally benefit the claimant.
    
      
      Fifth. There is no sufficient allegation of a breach of the alleged contract set out in claimant’s petition. The claimant, after having admitted that the Cumberland Eoad was projected through the State of Indiana, and that the work had been begun thereon, and consequently money expended thereon, it fails to allege that said fund was not duly expended by the defendant.
    II. The compact between the defendant and claimant did not create the relation of trustee and cestui que trust, because the fund to be expended by Congress was one in which the claimant was not solely interested, but was only interested in common with the other States from which the road came upon which the expenditures were to be made. Maryland, Pennsylvania, and Virginia were equally interested. The 2 per cent fund was reserved for their benefit, and as much belonged to them as it did to the claimant.
    2. If the relation of trustee and cestui que trust subsists between the defendant and claimants, it is one implied from the language of the acts enabling them to enter the Union, and if it is true the defendant has failed to expend the 2 per cent fund according to the terms of said compact, and that therefore the claimants, and each of them, became entitled upon such failure to the money accruing from said fund, the action of each of the claimants nevertheless is barred by the statute of limitations, the right of action in each case having accrued more than six years prior to the commencement of the same in this court. (Rev. Stat., 1069.)
    (See reports from the Department of the Interior and from the Treasury Department.)
    All trusts arising by operation of law, whether implied, resulting, or constructive, are subject to the statute. (Rev. Stat., sec. 1069 ; Perry on Trusts, sec. 865; Wilmerding v. Beess, 33 Conn., 77; Haynic v. Mall, 5 Hump., 290.)
    3. If the trust created by the compact between claimant and defendant is an express trust, is it withdrawn from the operation of the statute of limitations %
    
    All express trusts are not subject to that rule. First. It will be contended that this rule only obtains in those classed as technical and continuing trusts which alone are cognizable in eqtiity, and that claimants’ cases can not be classed as either a technical or continuing trust. The claimant brings his action at law.
    
      (Woodon Limitations, 414, and note citing numerous authorities: Van Rhyn v. Vincent, 1 McCal. Ch., 310; Kane v. Blood-good., 7 Johns. Ch. 89, 109).
    4. But the doctrine that the statute of limitations will never bar an express trust in equity is subject to exceptions, and the authorities subjoined are relied upon and are conclusive as the facts present themselves in these cases.
    The reports from the Interior and Treasury Departments evidence a condition ■ of affairs absolutely incompatible with the idea that defendant was claiming to hold the 2 per cent fund as and for the claimant State. They show the defendant was for twenty years before the commencement of this action claiming every dollar of that fund as its own, to reimburse it for expenditures as it claimed were lawfully made on behalf of the claimant .States.
    
      Sollee v. Graft (7 Rich. S. C.' Ch. Repts., 34) cited and made a part of the text in Tiffany and Bullard on trusts, 716 ; The United States v. Taylor (104 U. S. R.) ; a very important case ; Kane v. Bloodgood (7 Johns. Ch. 90); Oliver v. Platt (3 How., 335); Railroad v. Robinson (35 O. S., 483); Bacon v. Rives (106 U. S. R., 99); Baker v. Whiting (3 Sum., 486); Angelí on Limitations, sec. 174; Davis v. Coburn (123 Miss., 377); Spiedel v. Henrico (120 U. S. R., 377); Farnam v. Brooks (1 Pick., 242). The court say in this case: “ The statute of limitations therefore operates with us ex vigore suo in equity as well as at law, and not by the discretion of the court.” (49 Iowa, 251.)
    5. If the construction of the act of March 3, 1857, is as claimed by the claimants, they, from the moment of the approval of that act, became entitled to demand and receive payment of the 2 per cent fund. The trust was practically brought to a close by this act. Congress ceased to have further control of it. It became a money demand on the Treasury of the United States, and if the Commissioner of the Land Office did not within a reasonable time make the statement of account required by that act, they could at least, after the organization of this court in 1863, have brought their action here to recover, without waiting longer on the Commissioner. Their failure to do so was their own fault, for which no excuse in the way of disability has been or can be urged.
    But if action upon the part of the Commissioner of the Land Office was necessary before the claimant’s rights would accrue to said fund, then this was bad almost 20 years prior to tbe beginning of this suit. (Taylor’s Case, 104 U. S. R., 216.)
    III. — 1. Tbe scope of tbe obligation assumed by tbe defendant with regard to tbe 2 per cent fund was that Congress should apply it toward tbe construction of a public road to or into tbe State of Indiana, and that by tbe word “ road,” as used in tbe third clause of tbe sixth section of tbe Indiana enabling act, meant nothing more than a general public road or passageway through tbe country for tbe use of tbe people. That tbe National Road, known as tbe Cumberland Road, was not only duly surveyed, laid out, and located continuously from Cumberland, Md., to and through that. State, but tbe same was graded and bridged throughout said State, and used as a public highway to, into, through, and beyond tbe western boundary for tbe transportation of mails and for tbe use of tbe public for all purposes. That $700,000 more than tbe amount realized from tbe net proceeds of tbe sales of public lands of Indiana were applied by Congress to tbe construction of said road after it bad been constructed to its eastern boundary.
    Tbe reports from tbe Interior Department and vol. I Roads and Canals, pp. 671, 672, 838, 848 abundantly show these facts:
    2. Tbe construction of tbe acts of March 2, 1855, and March 3, 1857, as claimed by tbe plaintiff, would have tbe effect to repeal by implication tbe third clause of section '6 of tbe act admitting Indiana into tbe Union, and all of tbe numerous statutes which provided for tbe reimbursement of appropriations made for the construction of tbe Cumberland Road from tbe 2 per cent fund. To warrant such a construction it must inevitably follow from tbe language of those acts and be incapable of any other. There are others far more satisfactory. Tbe most natural one is, that a new basis of accounting was given by those acts to tbe States of Alabama and Mississippi, which by sections 16 and 17 of tbe act of September 4,1841, bad previously been given tbe whole of tbe 2 per cent fund derived from the sales of lands of these States respectively, and that was, that the Indian reservation should be accounted as land sales at tbe rate of $1.25 per acre.
    “ Upon the same principles,” if it bad any meaning, simply meant that all tbe other States should be placed upon tbe same footing by accounting for all Indian reservations within the boundary of each of them in the same way. But there is another very satisfactory construction to be given those acts. By the terms of the act of March 5, 1857, the Commissioner of the General Land Office was required to state an account for tiie purpose of ascertaining what sum of money teas due Mississippi. In stating that account it would be expected that all moneys paid on account of the 2 per cent fund or any expenditures to be charged to that fund made by the United States should appear upon the debit side against that State, and that at the end of the account would appear the balance, if any, due said State for it will be remembered that sixteen years had elapsed since the act of 1841 giving to it the disposal of said fund. The second section of the act of 1857' simply gave to each of the other States a like accounting, the only object of which was to ascertain and pay over the sum found due the State. To And the sum due, it therefore became absolutely necessary to charge the State with all expenditures on behalf of said fund, and that the unrepealed scores of statutes which directed a reimbursement from the fund were never intended to be disturbed by this act.
    A careful perusal of the act of 1841 ought to set at rest all doubt about this being the true exposition of the act of 1857. Its policy, which was to parcel out the net proceeds of the public lands among all the States with due regard to equality; the handing over to the States of Alabama and Mississippi the 2 per cent fund to be applied to purposes of a kindred character with that originally intended: and the careful direction that the disbursements made upon the Qumberland Road should remain chargeable upon the 2 per cent fund provided by the compacts with the several States make plain the obscure language of the second section of the act of 1857.
    
      The Attorney■ General of Illinois, Mr. George Hunt, and Mr.. Robert A. Howard were heard in the similar case of the State of Illinois while the present case was under advisement; and a written argument was also filed by the Attorney-General of Ohio, Mr. David K. Watson.
    
   Nott, J.,

delivered tlie opinion of the court:

This is an action brought by the State of Indiana to recover certain proceeds of the public lands pledged and set apart for its benefit, as is alleged, by the organic act for its admission to the Union. The facts are chiefly facts of which the court can take judicial notice, excepting the amounts of certain receipts, payments, and expenditures, and those amounts are practically undisputed, being shown by the accounts of the Land Office and Treasury Department. The questions in the case, therefore, are substantially questions of law, and they will be better understood by segregating them within certain chronological periods.

1. The first period extends from the admission of Ohio in 1802 to the admission of Indiana in 1816.

The Act 30th April, 1802 (2 Stat.. L., p. 173, § 7), to enable the people of Ohio to form a constitution and State government and for the admission of such State into the Union, contained the following provision:

“ That the following propositions be, and the same are hereby offered to the convention of the eastern State of the said territory, when formed, for their free acceptance or rejection, which, if accepted by the convention, shall be obligatory upon the United States. * * * Third. That one-twentieth part of the net proceeds of the lands lying within the said State sold by Congress, from and after the thirtieth day of June next, after deducting all expenses incident to the same, shall be applied to the laying out and making public roads, leading from the navigable waters emptying into the Atlantic, to the Ohio, to the said State, and through the same, such roads to be laid out under the authority of Congress, with the consent of the several States through which the road shall pass: Provided always, That the three 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 Congress, from and after the thirtieth day of June next, shall be and remain exempt from any tax laid by order or under authority of the State, whether for State, county, township or any other purpose whatever, for the term of five years from and after the day of sale (section 7).”

This proposition was accepted by the convention of Ohio, and the State entered the Union, having thus given and received the prescribed pledge. The next year this “one-twentieth part,” or five per cent, of the net proceeds of lands which might be sold within the State was divided; three per cent of the proceeds was to be paid directly to the State, to be, however, applied to the laying out, opening, and making of roads within its borders (Act 2d March, 1803,2 Stat. L., p. 225). From that time on the “one-twentieth part” of the proceeds remained thus divided, and these two divisions of it have been familiarly known as the “ 3 per cent fund ” and the “ 2 per cent fund ; ” the former being disbursed by the State, the latter remaining in the custody and under the control of the General Government.

In 1806 Congress passed an act for the building of the National Eoad from Cumberland to the Ohio through the States-of Maryland, Pennsylvania, and Virginia (Act 2ith March, 1806,2 Stat. L., 357). Thirty thousand dollars was appropriated, to be paid out of the 2 per cent fund, or, if that was not sufficient, out of any money.in the Treasury not otherwise appropriated. But to the latter alternative was attached the condition that money paid out of the public funds should be reimbursed out of the 2 per cent fund as it might accrue. At the time of this $30,000 appropriation there was in the Treasury to the credit of the 2 per cent fund $12,652.

In 1808 the ( instruction of the road was begun, and between that time and the admission of the State of Indiana there was appropriated for that purpose, including the $30,000 previously appropriated, $710,000, as shown by the following table:

Act of Marcli 24,1806 (vol. n, Stat. L.). $30,000
Act of February 14, 1810 (vol. n, Stat. L., p. 555). 60, 000
Act of Marcia 3, 1811 (vol. n, Stat. L., p. (¡61). 50,000
Act of May 6, 1812 (vol. n, Stat. L., p. 730) . 30, UOO
Act of March 3, 1813 (vol. n, Stat. L., p. 829). 140,000
Act of February 14, 1815 (vol. ni, Stat. L., p. 20G). 100,000
Act of April 16) 1816 (vol m, Stat. L., p.282;. 300,000-
Total. 710,000

All of these appropriations were for the building of a road to the State of Ohio, and every act provided in substance that money paid out of the public funds should be reimbursed from the 2 per cent fund.

At this time the expenditures upon the National Boad were largely in excess of the moneys credited to the 2 per cent fund, which in 1825 amounted to only $200,000. Such was the condition of affairs when Congress passed the act_ for the admission of Indiana to the Union.

2. The second period extends from the admission of Indiana, in 1816, to the abandonment of the National Road in 1835.

The act for the admission of Indiana to the Union, the Act lWi April, 1816 (3 Stat. L., p. 289), like the Ohio act, proffers to the State the one-twentieth part of the proceeds of the public lands, and upon the same condition, that lands sold by the United States should be exempt from State taxation for a period of five years. The proposition differs from that of the Ohio acts, 1802, 1803, in only one particular, that it does not refer to “ navigable.waters emptying into the Atlantic” as the eastern terminus of the road, but simply declares that two-fifths of the one-twentieth part, that is-to say, the 2 per cent fund, “ shall be reserved ” and applied “ to the making of a road or roads leading to said State under the direction of Congress.” The language of the act is as follows:

“ Third. That 5 per cent of the net proceeds of the lands lying within said Territory, whicn shall be sold by Congress from and after the 1st day of December next, after deducting all expenses incident to the same, shall be rese'ved for the making of public roads and canals, of which three-fifths shall be applied to those objects within the said State, under the direction of the legislature thereof and two-fifths to the making of a road or roads leading to said State, under the direction of Congress.
‘‘Fourth. That one entire township which shall be designated by the President of the United States, in addition to the one heretofore reserved * * * for the use of a seminary of learning, * * * to be appropriated solely to the use of such seminary by the said legislature.
“Fifth. That four sections of land be * * * granted to the said State, for the purpose of fixing their seat of government thereon, which four sections shall * * * be located at any time, in such township and range, as the legislature aforesaid may select.
“That the five foregoing provisions, herein offered, are on conditions that the convention of said State shall provide by ordinance irrevocable, without the consent of the United Stages, that every and each tract of land sold by the United States, from and after the 1st day of December next, shall be and remain exempt from any tax, laid by order or under any authority of the State, whether for State, county, or township, or any other purposes whatever, for the term of five years, from and ■ after the day of sale.”.

Subsequent to tbe admission of Indiana tbe States of Illinois, Missouri, Alabama, and Mississippi came into tbe Union, and each State entered into an agreement with regard to tbe public lands that might be sold within its territory which was identical in terms with the foregoing statute so far as it relates to the two per cent fund; and indeed the only variation in the disposition of the “ one-twentieth part ” of the proceeds of the public lands was that in the State of Illinois the three per cent fund was to be applied to the encouragement of learning within the State instead of to the making of roads. * In 1818 Congress appropriated money for completing the National Eoad between Cumberland and Wheeling (Act 14th April, 1818, 3 Stat. L., p. 42G), and in 1820 began a series of enactments and appropriations for tbe construction o fthe road from the Oliio to the Mississippi through the States of Ohio, Indiana, and Illinois (Act 15th May, 1820, 3 Stat. L., 604). These acts are thus analyzed by the counsel for the State of Illinois, Mr. Howard, in another case:

“After the admission of Missouri the appropriations are limited and restricted in different and curious manners. Commencing with the act of March 3, 1825, and going on regularly, March 25,1826, March 2, 1827, March 19,1828, Maxell 2, 1829 (two acts), and May 31,1830, the provisions are that the moneys shall be replaced out of the two per cent funds of Ohio, Indiana, Illinois, and Missouri. Then follows a series of acts, viz, March 2, 1831, March 3,1832, June 24, 1831, March 3, 1835, in which the moneys are to be replaced out of the reserved funds of Ohio, Indiana, and Illinois, not mentioning Missouri. Then on July 2,1830, the moneys were to be replaced out of the reserved funds of the four States, including Missouri again. Then come the last acts, March 3, 1837, and May 25, 1838, which provide that the several sums appropriated should be replaced by the States, respectively, out of the fund reserved for each. We have thus live kinds of appropriations — first, generally out of moneys in the Treasury not otherwise appropriated ; second, charged to the State of Ohio fund; third, charged to the fund ol the States of Ohio, Indiana, and Illinois; fourth, charged to the fund of Ohio, Indiana, Illinois, and Missouri; filth, charged to the fund of the State in which work was done. Some of these come within the terms of the original compacts; some do not.”

In 1822 the road had been finished from Cumberland to Wheeling, 132 miles, at a cost of nearly $20,000 a mile, and was in process ot construction through the State of Ohio. Congress were then face to face with the fact that a great highway, covered by endless wagon trains, which passed over it ceaselessly day and night, required superintendence, repairs, and constant expenditures. Tbe public at large were unwilling to maintain at what was then deemed great expense a free road for the benefit of a few States. The remedy of the time was to impose tolls upon the traffic of a road. Accordingly a bill passed both Houses for the erection of tollgates and the imposition of tolls, but it was vetoed by President Monroe, because he doubted the constitutional power of Congress to impose tolls within the territory of a State.

The action of the President left the Government and people •of the United States in the unpleasant position of owning a road (with the consent of the several States through which it ran) upon which they could constitutionally expend money to any amount, but from which they could not constitutionally derive anything. Notwithstanding this constitutional light upon the subject, the people at large were not willing to continue the policy of expenditure, aiid a policy of abandonment necessarily set in.

That policy gradually took form and effect in the provisions of numerous statutes, the general purpose of which was that the Government should complete the National Road from the Ohio to the capital of Missouri, but that as fast as completed it should be surrendered to the States through whi. h it ran. The following are the statutes referred to:

Act of March 2, 1829 (vol. IV, stat. L., pp. 351, 352).
Act of March 3, 1829 (vol. iv, stat. L., pp. 363, 364).
Act of May 31, 1830 (vol. IV, stat. L., pp. 427, 428).
Act of March 2, 1831 (vol. iv, stat. L., p. 469).
Act of March 2, 1831 vol. iv, stat.L., pp. 483,486).
Act of March 2, 1833 (vol. iv, stat. L., p. 605).
Act ol June 24, 1835 (vol, IV, stat-. L., pp. 680,681).
Act of March 3, 1835 (vol. IV, stat. L., p. 772).
Act amendatory (vol. IV, stat. 1.., p.772).
Act of July 2, 1836 vol. v, stat. L., pp. 71, 72).
Act of March 3, 1837 (vol. v, stat. L., pp. 195, 196).
Act of May 25, 1838 (vol. v, stat. L., p. 228).
Act of September 4, 1841 (vol. v, stat. L., p.457).
Act of August 11, 1848 (vol. ix, stat. L., p. 283).
Act of January 20, 1853 (vol. x, stat. L., p. 152).
Act of May 9, 1856 (vol. XI, stat. L., p. 7).

But so far as the present cause of action is involved, which relates to the supposed obligation of the Government to build a road “leading to said State” of Indiana, it is sufficient to say that before such a road was completed Congress, by the Act 2d March, 1831 (4 Stat. L., pp. 483, 486), authorized the State of Ohio to assume control of a portion of it and to erect toll gates thereon, and by the Act 2d March, 1833 (ib., p. 655), granted similar powers to the State of Virginia; that, on the completion of the road in the States of Maryland, Pennsylvania, and Virginia, Congress surrendered it to those States by the Act 2Uh June, 1834 (ib., p. 680); and that by the Act 3d March, 1835 (ib., p. 772), appropriations were provided for the completion of the road in the States of Ohio, Indiana, and Illinois, and for repairs on the road east of the Ohio, but the act forbade that the money so appropriated for repairs should be expended until the road east of the Ohio had been surrendered to and accepted by the States through which it passes.

Finally, it is to be said that the appropriations continued after the recessions to the different States until the road was completed across the State of Ohio and to the State of Indiana; that it was not equal in construction or quality to the road east of the Ohio, but nevertheless had been graded, bridged, and made a public highway; and that its cost exceeded all of the moneys which the Government has received from the 2 per cent funds of all the States which have thus contributed to its construction.

3. The third period extends from the abandonment of the National Koad as a national work, in 1831,1833, and 1835, to the final legislation of Congress in regard to the 2 per cent. fund.

There are but three acts of Congress in this period which can affect the rights of the present claimant. The first of these is the Act Ath September, 1841 (5 Stat. L., p. 453, §§ 1, 16, 17), ‘■‘An act to appropriate the proceeds of the sales of the public lands, and to grant preemption rights.” It provides for the distribution of the proceeds of the public lands among the States and Territories of the Union, with a special reservation in favor of some of them, among which is Indiana, but nevertheless with this proviso:

“ That the sum so allowed to the said States, respectively, shall be in nowise affected or diminished on account of any sums which have been heretofore, or shall be hereafter, applied to the construction or continuance of the Cumberland Koad, but that the disbursements for the said road shall remain, as heretofore, chargeable onthe two per centum fund provided for by compacts with several of the said States.”

After many other provisions of a general nature the statute proceeds to deal specially with the cases of Alabama and Mississippi by the following enactments:

“Sec. 16. And be it further enacted, That the two per cent, of the net proceeds of the land sold, or that may hereafter be sold, by the United States in the State of Mississippi, since the first day of December, eighteen hundred and seventeen, and by the act entitled ‘An act to enable the people of the western part of the Mississippi Territory to form a constitution and State government, and for the admission of such State into the Union on an equal footing with the original States,’ and all acts supplemental thereto reserved for the making of a road or roads leading to said State, be, and the same is hereby relinquished to the State of Mississippi, payable in two equal installments; the first to be paid on the first of May, eighteen hundred and forty-two, and the other on the first of May, eighteen hundred and forty-three, so far as the same may then have accrued, and quarterly, as the same may accrue, after said period : Provided, That the legislature of said State shall first pass an a.ct, declaring their acceptance of said relinquishment in full of said fund, accrued and accruing, and also embracing a provision, to be unalterable without the consent of Congress, that the whole of said two per cent, fund shall be faithfully applied to the construction of a railroad, leading from Brandon, in the State of Mississippi, to the eastern boundary of said State, in the direction, as near as may be, of the towns of trelma, Cahaba, and Montgomery, in the State of Alabama.
“Seo. 17. And be it further enacted, That the two per cent, of the. net proceeds of the lands sold by the United States, in the State of Alabama, since the first day of September, eighteen hundred and nineteen, and reserved by the act. entitled ‘An act to enable the people of the Alabama Territory to form a constitution and State government and for the admission of such State into the Union on an equal footing with the original States,’ for the making of a road or roads leading to the said State, be, and the same is hereby, relinquished to the said State of Alabama, payable in two equal installments, the first to be paid on the first day of May, eighteen hundred and forty-two, and the other ou the first day of May, eighteen hundred and forty-three, so far as the same may then have accrued, and quarterly, as the same may thereafter accrue: Provided, That the legislature of said State shall first pass an act, declaring their acceptance of said relinquishment, and also embracing a provision, to be unalterable without the consent of Congress, that the whole of said two per cent, fund shall be faithfully applied, under the direction of the legislature of Alabama, to the connection, by some means of internal improvement, of the navigable waters of the bay of Mobile with the Tennessee River, and to the construction of a continuous line of internal improvements from a point on the Chattahoochee River, oppositeWest Point, in Georgia, across the State of Alabama, iñ a direction to Jackson in the State of Mississippi.”

The second statute in this period is the Act 2d March, 1855 (10 Stat. L., p. 630), which directs the Commissioner of the Land Office to state an account of the one-twentieth part or five per cent, fund with the State of Alabama, and requires him to include in it the lauds appropriated for Indian reservations.

The.third and last statute is the Act 2d March, 1857 (11 Stat. L., p. 20.0), which directs the Commissioner to state an account with the State of Mississippi “ upon the same principles of allowances and settlement,” and also (by a subsequent section) to state an account with “ each of the other States upon the same principles’1'1 and “ allow and pay to each State such amount as shall thus he found due, estimating all lands and permanent reservations at $1.25 per acre?

TJnder the statute last cited the Commissioner of the General Land Office stated an account in 1872 and allowed a balance of $0,380.85, which was paid to the claimant. But it is proper to add that the claimant did not accept that amount as a final settlement, and that the Comptroller of the Treasury, when admitting and certifying the balance allowed by the Commissioner, expressly “ reserved for future consideration ” the questions which are now presented by this suit. In 1889 the governor of Indiana made a formal demand upon the Commissioner to state an account in accordance with the Act 1857, but the Commissioner has rested upon the account previously stated. Many other statutes and proceedings and facts were cited or adverted to by counsel on one side or the other in the progress of the argument, but in the view of the case taken by the court, the foregoing, it is believed, are all which bear directly upon the questions to be decided.

The position inatained by the counsel for the claimant, as understood by the court, may be summarized in the following propositions:

(1) That the two per cent fund created by the Indiana Act, 1816, was irrevocably pledged to an expressed purpose, and the purpose could not be modified or abandoned without the consent of the State.

(2) That tbe release from State taxation of lands which the Government might thereafter sell constituted a goo 1 and valuable consideration.

(3) That the Indiana Act must be read in pari materia with tbe Ohio Act, and so read they bound the Government to construct a road from navigable waters on the Atlantic coast to the State line, and of the quality and excellence precribed by law for the road then in process of construction.

(4) That such a road has never been constructed, Cumberland, the eastern terminus not being on navigable waters, and the road west of the Ohio not coming up to the standard prescribed by law for the section between Cumberland and Wheeling.

(5) That the abandonment of the road as a natural highway, its surrender to the several States through which it passes, and the permission given to some of the States to erect tollgates and exact tolls constituted a breach of the compact, rendering the Government liable to the State for all of the moneys reserved for the two per cent fund.

And, finally, that the Act 1857 was intended to accomplish this restitution, or at least to operate retroactively so far as to place “ the other States ” on a footing with Alabama and Mississippi as effectually as if they had been included in the Act 1841, at the same time, in effect, creating a trust, which relieved the claim from the operation of the statute of limitations. These positions have been maintained with great ability, not only by the learned counsel in this case, but by the counsel in the kindred cases of Ohio and Illinois, and they have been fortified by a comprehensive review of many statutes and decisions, of many legislative resolutions and reports, and the opinions of eminent statesmen and well-known lawyers and jurists.

But the position of the claimant will perhaps be more accurately and tersely defined by an extract from the petition:

“ The defendant agreed to pay your petitioner 3 per cent of the 5 per eent of the net proceeds of the sale of lands, and to expend the remaining 2 per cent, thereof in the making of a road or roads leading to the said State, under the direction of Congress.”

And by an extract from tbe claimant’s proposed findings of fact:

“The 5 per cent fund was the property of the individual States, and Congress but the trustee to direct the expenditure of two parts of it to an express object — ‘ the making of a public road leading to the State’ of Indiana.”

And by an extract from the opinion of an eminent lawyer, Ex-Attorney-General Cushing:

“Itis plain to see that Congress, by enacting the laws in question, did, in effect, as we have previously shown, solemnly recognize and proclaim its abandonment of all claim to these trust funds, and the surrender thereof to the respective States.”

The first question which the court designs to consider is the responsibility of the Government under the Act 3816, audits consequent liability to the claimant at the time when the Act 1857 was passed. In this inquiry we shall assume that the claiiflaint’s position is correct; that the ‘2 per cent fund “ was the property of the individual States, and Congress but the trustee to direct the expenditure.”

Conceding substantially all of the minor positions taken by the claimant; conceding that the Act 1816 created an irrevocable compact, obligatory upon the Government, and supported by a good and valid consideration ; conceding that the road contemplated was to run from navigable waters on the Atlantic coast, and that Cumberland was not a proper terminus within the intent of the compact; conceding that the Government abandoned the undertaking before completion, and surrendered the unfinished road to the different States in which it was situated, and authorized them to assume the management of it, and impose tolls upon interstate traffic over it; conceding all of these things, it does not follow that there was such a perversion of the trust as to make the Government liable for the moneys which it received or to entitle the State to recover them to its own use.

The Government did not agree, through the medium of these statutes, to build and complete a road from one point to another at its own cost and charge in consideration of the renunciation of taxation and of the moneys reserved from the sales of public lands. If there had been such an agreement there would have been no trust. The compact would have been a simple contract to do a specific thing for a specific consideration, and the amount which one contracting party might acquire from the sales of its own lands would not concern the other. If there be a trust in this case, it is simply to receive and disburse the money of the other party; i. e., the money of the ces-tui que trust; and if there be any responsibility attached to such a trust, it is merely to disburse the money in reasonable time, honestly, disinterestedly, and for the declared purposes of the trust.

If the Government by the Act 1816 agreed to do more than this — if it agreed for a valuable consideration to do a specific thing and did not, its failure to perform was a plain breach of contract, and the claimant in 1857 was only a contractor, seeking damages for the breach. What, then, was it that the Government agreed to do? It agreed that “ five per cent of the net proceeds of the lands lying within the said territory” should be “ reserved,” and that much of the agreement has confessedly been performed. It agreed that three-fifths of this five per cent should be paid to the State, and that obligation has been discharged. It also agreed thattwo-fifths should be u applied to the malting of a road,” and if there be any trust it is in the application of that money to that purpose.

That purpose was a public highway which should connect certain of the inland States with the Atlantic seaboard. Manifestly such a road could not be begun and finished by one operation from end to end. Manifestly there had to be a beginning long before there could be a completion. In the absence of specific instructions in the terms of a trust, to say nothing of the provision that this should be done “ under the direction of Congress, ” the trustee would be invested with all needful discretion. Whether the road should be begun at the eastern terminus and built westward, whether it should be begun at the western terminus and built eastward, or whether it should be built by intermediate sections where it was most needed, were questions iuevitably involving discretion, and upon which the discretion of a trustee could be properly exercised.

All that a trustee would be bound to do in such a case would be to expend the trust fund without unreasonable delay, according to his best judgment, for the good of the cestui que trust, Cumberland may not have been a proper terminus for the National Road within ilie intent of the trust as defined in the Ohio Act (1802), but the section between Cumberland and Wheeling certainly was within the contemplation of the statute, and if it absorbed all of the trust fund properly applicable thereto, assuredly that discharged the trustee. Not until it appears that the Government has. money in its Treasury which should have been “applied” to the object of the trust, or until it appears that its expenditures of the fund were a perversion of the trust, can it be held accountable as a trustee. A trustee can not be held responsible because a trust fails to accomplish all that was hoped or promised.

The court can perceive no perversion of the trust in the manner in which the National Road was laid out; and, on the contrary, the manner in which the work was prosecuted through the States of Maryland, Yirginia, and Ohio, so far as the facts are known to the court, seems to have been a sound exercise of a reasonable discretion.

Neither can the court regard the methods adopted for maintaining the road after it was constructed by its surrender to to the different States through which it passed as an illegal abandonment of the trust, negativing everything that had been done, and rendering the Government liable for everything that if had received.

The statutes which contemplated the construction of a national road did not provide for its maintenance after its completion. They may have created a trust founded upon a valuable consideration, but they certainly did not require the trustee to maintain a free road at its own, the trustee’s, cost. The funds derived from the sale of public lands in Indiana and other designated States merely contributed toward the cost of building the road: yet, if it had been built wholly by those funds, the discretion would still have remained in Congress of determining whether it was so far national, was so much for the general welfare, that it should be kept free at the public expense, or whether it should be maintained, as most thoroughfares were at that day, by imposing tolls upon those who used it.

If the road had been built entirely out of these so-called trust funds, and Congress had then sold it to the highest bidder for more than ithad cost, the trustee makingmouey out of the trust, and had authorized that bidder in turn to charge exorbitant tolls and make more money out of it, a question would be presented wbicli is not now involved. Here the trustee made nothing out of the trust; the road to be useful had to he maintained; there was no fund wherewith to maintain it; there was no obligation to maintain a free road'; the cost of keeping a much-traveled road in order was well known to be a large percentage of its prime cost, and Congress assuredly, without a breach of faith, might make the proper State governments the custodians of the road and authorize them to maintain it by the customary expedient of imposing tolls.

Neither can the court regard the appropriations for the National Road as an inoperative application of the trust funds to their legitimate object. A trustee in such a case would not be bound to keep the trust moneys in a separate parcel and pay them out eo nomine as he received them; the advancing of money before it was received was no injury to the cestui que trtist nor advantage to the trustee;-and the directions in the appropriation acts that this appropriation and that appropriation be paid out of any money not otherwise appropriated, but be charged as a payment on account of the 2 per cent fund, was a mere matter of bookkeeping. As legislation, the appropriation acts expressed the legislative intent that the avails of the public lands — the 2 per cent fund — should be applied to that object and in that way. The object was avowedly the one for which the trust, if any, was created; the method was one which could not injure the cestui que trust nor benefit the trustee, and which effected the purpose of the trust in the most direct manner. Whether there are still funds in the Treasury derived from the sales of public lands in Indiana which have not been applied to the object of the trust is another question, which will now be considered.

The Government, as has been said, was not bound to build the National Road out of public funds, and can not be deemed to have misapplied the moneys which it received in trust by the methods of construction and maintenance which it adopted; but, at the same time, a trustee can not throw half a dozen trusts into hodge podge and set up a general defense against his liability in each. The object here was a common one — the building of a road; but not altogether a common one, for a State was only interested in the application of the 2 per cent fund toward a road east of its own boundary line, and was not responsible for what bad been built or done before it entered the Union. The compact with the Government was prospective, not retroactive, that the 2 per- cent fund should thereafter be 11 applied” 11 to the malcing of a road.” Each State was entitled to have all of its 2 per cent fund invested in the road, irrespective of what others were doing or had done; and if the Government mingled the trust funds, each State is entitled now, under the Act 1857, to its due proportion of whatever balance may remain unexpended. The Government could not receive $100,000 from Ohio, $100,000 from Indiana, and $100,000 from Illinois without expending $300,000 on the road. From 1802 to 1816 Ohio had been the only party to the arrangement, and during that period the Government had expended much more upon the road than it had received from the sale of lands within the State; but the moneys received from Indiana lands can not now be applied upon that deficiency. The State of Indiana was entitled to have all of the 2 per cent fund derived from lands within its borders expended, not for the payment of old debts or the making good of an overdrawn account, but for the construction of a road! The account to be stated must begin when that State entered the Union.

From the time when Ohio and Indiana became joint contributors to the common object, the question for an accountant is whether the joint contributions exceeded the expenditures of the Government. As each new State came into the arrangement, its contributions, would in like manner swell the responsibility of the Government and be taken into the account until the road reached the State line, i. e., until a road was made “ leading to the said State.” Then the account so far as Indiana was concerned would stop, and the road constructed westward of its eastern line would be chargeable only to the States toward which it led. Chronologically the account must open when a State entered the Union, geographically it must close when the road arrived at its boundary line. Such an account will involve an accounting with all the States; for while the Government has advanced much more than it has received, yet nevertheless it is possible that there is one or more States whose 2 per cent fund was larger than the expenditures properly chargeable to it.

No such account was presented by either party upon the argument, and it is too involved to be framed by the court from an inspection of tbe statements of tbe Land Office; but at tbe same time tbe court must infer, from tbe concessions of counsel and tbe returns of tbe Land Office and Treasury Department, that tbe expenditures exceeded tbe receipts in all cases, and that if a proper account were made up no surplus would appear in which tbe State of Indiana would be entitled to participate by virtue of the original trust as defined in tbe organic act.

The ultimate question before tbe court, accordingly, is whether tbe State of Indiana acquired a new right to these proceeds of tbe public lands by virtue of tbe final legislation of Congress ; or, stated more specifically, whether tbe intent of tbe Act 1857 was, that an account should be stated de novo, in which all of tbe credits to tbe State from tbe 2 per cent fund should remain, and all of tbe debits for expenditures made by direction of tbe various appropriation acts be expunged ?

There is no obligation in the case, moral, legal, or equitable, leading tbe court toward this as tbe true intent of the legislative action. Tbe government bad done all that it bad agreed to do and more; and bad tbe right to continue to apply tbe 2 per cent moneys upon its own advances until it should fully reimburse itself. But Congress also had the power to wind up this business of road-building, to close tbe account, to carry tbe deficit to profit and loss, and relinquish tbe diminished avails of tbe public lands to tbe States directly interested in them, or to make a gift of all that bad been received since the States entered tbe Union without an obligation legal or equitable to do so. Whether tbe relinquishment should date from one day or another, from 1816 or from 1857, was equally within tbe power of Congress, and alone by Congress could be determined.

Tbe first renunciation by tbe Government of its right to control and disburse the 2 per cent fund was by tbe Act September 4, 1841 (5 Stat. L., p. 4.53, §§ 16,17). The counsel for tbe United States has contended that this was not a relinquishment of the fund to tbe States named in the act in their own right, but that they were merely substituted as custodians of tbe fund upon certain conditions, which were that they should agree to expend it in designated improvements of a public nature. This is conceded, but it is averred in reply, that nevertheless the Government relinquished its right to repayment of advances from that fund and that the relinquishment was irrevocable. The relinquishment, however, was only to the States of Alabama and Mississippi, and the statute did not extend directly or by implication to the other States. There may have been reasons why this favor should have been extended exclusively to those two States, such as their greater need, that they had received less benefit from the public expenditures than the other States, and the like, and such reasons can not be questioned here; they are legislative, not judicial.

In 1855 a dispute apparently had arisen between the State of Alabama and the General Land Office as to the proceeds of the public lands; and it appeared that the Govern ment, instead of selling all of the public lands within that State, had appropriated portions of them to its own uses and purposes by ceding them as Indian reservations. Accordingly the Act 2d March, 1855“(10 Stat. L., p. 630) was passed, which required the Commissioner of the Land Office to state an account between the Government and the State of Alabama, and uto include in said account the several reservations under the various treaties with the Ohickasaws, Ohoctaws, and Greek Indians within the limits of Alabama.” No “ principle” for stating such an account is prescribed by the act, unless it be the declaration that Indian reservations shall be regarded as sales and credited to the State in the account.

Such was the state of the case when the final statute was passed, the Act 3d March, 1857 (11 Stat. L., p. 200). Its primary purpose was to extend to the State of Mississippi the additional favor which had been extended to Alabama by the statute of the preceding Congress. So far it was clear and consistent, for Alabama and Mississippi stood upon precisely the same footing under the Act 1841, and in the tact that large quantities of the public lands within their territorial limits had been ceded to the Chickasaw and Choctaw Indians. The first section of the act accordingly provided :

“That the Commissioner of the General Land Office be and he is hereby required to state an account between the United States and the State of Mississippi, for the purpose of ascertaining what sum or sums of money are due to said State, heretofore unsettled, on account of the public lands in said State, and upon the same principles of allowance and settlement as prescribed in the “Act to settle certain accounts between the United States and the State of Alabama,” approved the 2d March, 1855; and that he be required to include in said account the several reservations under the various treaties with the Chickasaw and Choctaw Indians within the limits of Mississippi, and allow and pay to said State 5 per centum thereon, as in case of other sales, estimating the lands at the value of one dollar and tweuty-ñve cents per acre.”

JBnt the words uand other States” were added to the title, and a second section was appended to the enactment. It is in these words:

“ Sec. 2. And be it further enacted, That the said Commissioner shall also state an account between the United States and each of the other States upon the same principles, and shall allow and pay to each State such amount as shall thus be found due, estimating all lands and permanent reservations at one dollar and twenty-five cents per acre.”

This second section, therefore, in the use of the words “upon the same principles,” refers to the first, and the first in the same manner refers to the Act 1855; and the Act 1855 specifies no “principle” for the statement of an account other than that the reservations ceded to Indians should become an item of credit to the State; and neither statute indicates an intent to prescribe any other change in the account, or to create a new liability on the part of the United States by revoking all the charges for moneys advanced which had been expressly ordered, not by the Laud Office or the accounting officers, but by nearly all the appropriation acts authorizing expenditures upon the National Hoad.

Having thus directed the Commissioner of the Land Office to state an account and instructed him as to the principle upon which he should proceed, the Act 1857 commands “ and [he] shall allow and pay to each State such amount as shall thus be found due.” Finally, it adds to the foregoing instruction and mandate another, “ estimating all lands and permanent reservations [instead of reservations for the Chickasaw and Choctaw Indians] atone dollar and twenty-fire cents per acre.”

Up to this time the States referred to as “ each of the other States” had had no legal right to an accounting; for the administration of the fund rested exclusively with the Government, and these States were not entitled to recover or receive the money which such an accounting might show to the credit of the fund still unexpended for the purposes of the trust.

• The Act. 1857, therefore, seems to the court to have accomplished three things: 1st, by directing the Commissioner of the Land Office to state an account it provided a remedy, such as it was, for the several States, which, moreover, was the only remedy within their reach, this court not then having power to adjudicate claims; 2d, it created a new liability on the part of the Government, by making the permanent reservation of the public lands equivalent to a sale, and the Government a purchaser at the usual price per acre; 3d, it created a new or statutory right of action, by making the cestui que trust a beneficiary at law, in authorizing the States to receive directly the money which theretofore had been held in trust for their benefit.

It is not thought by the court that this statute did more, or that it could have been intended to do more. Tbe advantages which the States of Alabama and Mississippi acquired over “the other States” was not by virtue of the Act 1857, nor by virtue of the Act 1855, but by virtue of the Act 1841, which changed the relations of the parties and substituted those States as trustee, giving them a legal right to the custody of the fund under certain specified conditions, which have never been extended to the other States.

There is no “ principle” indicated in the Act 1855 which could possibly operate upon such expenditures for the National Eoad as had become charges against the 2 per centfund under the authority of the appropriation acts. The sole benefit which the beneficiary, the State of Alabama, acquired by virtue of that statute was a credit for the lands taken for Indian reservations. The same thing is true of the Act 1857 when applied to the State of Mississippi. That State derived no benefit from that statute beyond the credited item of Indian lands. It therefore seems impossible that the “ principle ” which gave nothing to Alabama and Mississippi but a new item of credit for Indian reservations, could confer, when extended to “ the other States,” another and distinct benefit upon them, and, by r^:ro-active operation, practically work a repeal of all the legislation which had made the appropriations for the National Eoad a charge upon the 2 per cent fund.

If it was so intended by Congress, there should have been added to the second section the words, “And the Commissioner shall also allow and pay to each State two per cent of the net proceeds of the public lands since such State entered the. Union, notwithstanding the various provisions of law which direct that snob two per cent shall be applied to the construction of the National Boad or to the reimbursement of the Government for moneys advanced for that project.” The judiciary can not import such a provision into a statute by inference or interpretation. To state an account implies a statement of debits and credits. To command a public officer “ to state an account” and pay “such amount as shall thus he found due,” is a very different thing from making a gift to the other party ex gratia of all the moneys that happen to appear on one side of it.

As it is'possible that a balance may be due to the claimant on a proper accounting, we proceed to the consideration of a question which has been elaborately argued, the question of the statute of limitations.

As has been said, the only remedy which the States possessed in 1857 was the authority conferred on the Commissioner of the General Land Office to state an account and pay over the balance which he might find to be due. In 1863 Congress provided another remedy, an action in this court. If the accounting of the Commissioner of the Land Office was not essential, or a prerequisite to a right of action, the claim accrued as soon as the Act 1857 was- passed, and accruing then, necessarily became barred by the statute of limitations on the 3d March, 18(56 (12 Stat. L., p. 765, § 10). If, on the contrary, the accounting of the Commissioner was a prerequisite to an action in this court, and no claim existed on which an action could be brought until his account was stated, and he load.11 allowed” and •“ found due” a certain “ amount,” .then, from the nature of things, his proceeding was judicial, and his jurisdiction exclusive, and the “ amount ” which he might “ allow ” was an award, and the only action which could be maintained would be an action upon it for the “ amount” u found due.”

Either of these alternatives is fatal to the claimant’s case, if that case rests on the Act 1857. The trust was then at an end; the State of Indiana was then authorized and empowered to act on its own behalf and in its own right; a new cause of action was then created and a newright of action given. We can perceive no reason why the action could not have been brought as well in 1861 as in 1889, unless it be the reason that the court did not have jurisdiction of the claim; and if the court did not then have jurisdiction of the claim, it was be'cause an exclusive jurisdiction was vested in tbe Commissioner of the Land Office.

In the earlier part of this decision we have considered the case as if a trust existed, but it is by no means clear that the agreement or compact between the Government and the State of Indiana, as declared by the act of admission, amplified by the Act 1S57, constituted a trust which would take the claim out of the operation of the statute of limitations within the intent of the leading case of Kane v. Bloodgood (7 Johns. Ch. R., 69) and the case most relied upon, Irene Taylor (104 U. S. R., 216).

The money termed a trust fund was not money of the State of Indiana confided to the Government for a-purpose, nor was it money of a third person paid to the Goverment for the use and benefit of the State. On the contrary, the 2 per cent fund was always the money of the Government, derived from the sale of its own property, and the statute creating the fund was in terms but an agreement that the Government should expend a designated, though indeterminate, amount of its own money in the construction of a public work more or less beneficial to the other party.

The State of Indiana never had an exclusive interest in the fund or in the work which was the purpose and object of the trust. Theroad to be constructed — the road “leadingtothesaid State” — would not lie within its territory; the State would not be entitled to rents, issues, or profits therefrom; the utmost legal interest which could be possessed in the thing itself was a right of free transit for its citizens and agents; a right which would be shared by all the world. If the purposes of the trust had been fully carried out, and a road had been completed from Baltimore to Indiana, according to the extremest view of the obligation resting on the Government, the State as a body corporate would not have had therein the shadow of a property right. The trust has been ascribed to the Act 1S57, but an agreement to pay money does not make the amount specified the money of the other party, and a gift of money, though by statute, does not pass a property in it till the money be paid. In the case of Mrs. Taylor (supra) the realty which was sold was her property, and the surplus which was in the Treasury was her money, and the statutory declaration that the Government would bold it until demanded by tbe owner necessarily created a trust.

In speaking of tbe Act 1841, and tbe course pursued by Congress in relation to tbe States of Alabama and Mississippi, tbe court bas spoken in tbis opinion upon tbe assumption that tbe condition of tbe 2 per .cent fund in those States was substantially tbe same as that of “tbe other States” referred to in tbe Act 1857. The argument pressed upon tbe court was that tbe public land laws are to be read in pari materia; that it bas never been tbe policy of Congress to grant exceptional favors to single States and deny them to others in like circumstances; that by tbe Act 1841 there was inaugurated a policy of restitution, and by tbe Act 1857 tbis policy was extended to all “ tbe other States ” which in like manner bad been entitled to tbe percentage of the public land sales erroneously or improperly expended on an unfinished road; and that (tupon the same principles” which governed tbe restitution of tbe fund to Alabama and Mississippi, it must be restored to tbe other States. But as a matter of fact tbe cases are not parallel, and “the same principles” which govern tbe payments to Alabama and Mississippi are fatal to a recovery in this suit. Tbe difference between tbe two classes of States is that the fund of Alabama and Mississippi was never expended on their behalf, and no appropriations were ever made chargeable against it. Tbe payment under tbe Act 1841 was payment for tbe first time. They were then entitled to have tbe fund expended ; not to expend it themselves, but to have it expended; their right to that was unquestioned, for Congress had never assumed to expend it, or made an expenditure chargeable against it. Tbe acts 1841, 1855,- 1857 repealed no statute by implication, and did nothing more than carry out for the first time tbe obligation assumed by the General Government when the two States were admitted to the Union, and no principle embodied in those statutes by any possible construction would compel tbe Government to pay or expend for those States tbe 2 per cent fund a second time. By tbe fact that tbe Government bad expended nothing on their behalf when tbe acts 1841, 1855, 1857 were passecl tbe analogy between them and “ tbe other States ” is destroyed.

Tbe judgment of tbe court is that tbe petition be dismissed.  