
    School Commissioners vs. The State.
    1. Where the State, in violation of a trust, ordered a sale of school lands, and the lands were sold under the law, and the sale subsequently set aside on the grounds of the invalidity of the law directing such sale. It is held, (the action being authorized by law,) that the State was liable, not for the amount of rents received, but for the amount the lands would have rented for.
    2. Where a suit was commenced under the act of 1835, ch. 30, authorizing the recovery of a specific amount of damages against the State, a subsequent statute directing a different rule of damages would not impair or change the state of right existing at the institution of the suit.
    In 1825, the legislature of the State directed the sale of lands reserved for the use of schools, and portions of them were sold. The Supreme Court of the State declared the law unconstitutional and invalid. In 1S36, the legislature passed an act, authorizing suit to be brought against the Treasurer of the State, for the purpose of ascertaining what sums the School Commissioners are entitled to as rents and profits of lands, of which they had been for a time dispossessed by the operation of the act of 1825. The court was directed “to hear evidence of the rents and profits, and interest thereupon, and after allowingthe State all just credits for repairs, improvements, and other necessary expenses, to give judgment accordingly.” This judgment the Treasurer-was authorized to satisfy.
    Under this act suit was brought in the Circuit Court of Franklin county, against the State by the Commissioners of the Bean’s creek tract of land, in Franklin county, and process served on the Treasurer and Attorney General.
    During the pending of this suit, an act was passed to amend the act of 1835, which provided, that claimants under the act of 1835, should “recover judgment against the State for the amount received by the State for the rents of said land and no more;” and that the act of 1835, so far as it conflicts with this act should be repealed, and that it should not operate upon judg • ments already recovered under the provisions of that act.
    The following decree was entered:
    “This day came as well the complainants by their counsel as the Attorney General, who represented the State, and if appearing to the court, that the Treasurer and Attorney General have been served with process and a copy of the complainant’s bill, and they not having answered said bill according to law, the said bill is taken as confessed against the State. Whereupon the said bill, being read and heard, together with argument of counsel on both sides, on consideration whereof, it is the opinion of the court, that the complainants are entitled to receive from the State the actual amount of rents collected and received by the State for the tract of school land in the bill mentioned, during the time the State has possession thereof, and rented the same out according to the provisions of the act of 1838, ch. 158, and not to the value of the rents as provided by the act of 1835, it being competent for the legislature, in the opinion of the court, to repeal or modify the act of 1835, by a subsequent legislative provision, as to the amount or mode of compensation. It is therefore decreed and ordered by the court, that the Clerk of this Court take and state an account between the parties, showing the amount of rents received by the State, for the said tract ,of school land, during the time the State had possession thereof, and report the same to the next court; all other matters being reserved until the coming of said report.”
    
      The complainants having failed to introduce proof of the amount of their claim, the bill was dismissed*
    The complainants appealed.
    
      Taul, for complainants.
    
      Attorney General, for the State.
   Turley, J.

delivered the opinion of the court.

This is a suit on behalf of the School Commissioners, of the Bean’s creek tract of land, in Franklin county, against the State. The act of 1835, ch. 30, gives the action for the rents and profits of the school lands, which the legislature, in violation of the trust reposed in it by the General Government, had diverted from the purposes for which they had been given. That it was right and proper that the State should pay for this, the amount of damages sustained by the school districts, no one doubts. But the legislature thought proper in 183S to modify the provisions of the act of 1835, by a statute ch. 158, which directs, that the State shall be responsible, only for the amount of rents and profits actually received from said school lands, and not for what might have been received, and under this statute the complainants lost their rent, because they declined an investigation of their case under the act of 183S, and they now prosecute an appeal to this court.

The question for our consideration is, whether the State is responsible for the rents and profits which might have been received for the tract of land which forms the subject of this controversy, or only for the amount that was actually received; and we can have no doubt, but that it is what might have been received, because the State having thought proper, in violation of a trust, to take these lands out of the hands of those who were entitled to them, upon every principle of justice it ought to pay what they would have rented for.

The act of 1835 gives the action, and so far it is not repealed by the act of 1838, and the suit was brought before the passage of the act of 1838. The Commissioners then having the right to sue, this court will give them the appropriate damages against the State, which will be what the land would have rented for under proper management. This the Circuit Judge refused to do, and the case will, therefore, be reversed, and remanded for further proceedings, according to the principles of this opinion.  