
    Bentley v. Barton.
    Where the United States appropriated section number sixteen in every township * * * for the use of schools in such township, and vésted the same in the legislature of the state “in trust for the use aforesaid, and for no other use, intent, or purpose whatever,” in an action by a country treasurer against a lessee of such lands, who held a lease for ninety-nine years, renewable forever, whose lands were taxed under section 2733, Rev. Stats, as the property of the lessee, to enforce the payment of the taxes so assessed, Held :
    
    1. That in the absence of a provision in the terms of acceptance of such lands by the state, that they should be forever free from taxation, they are taxable after sale or lease by the state, as other lands in the state.
    2. That section 2733 Revised Statutes, provided for the taxation of such lands held under such lease as the property of the lessee.
    Error to the District Court of Columbiana County.
    The plaintiff in error, William G. Bentley, treasurer of Columbiana. county, brought his action against Henry Barton, defendant in error, alleging that there stood charged on the duplicate of taxes for that county for the year 1880, the sum of $9.23 against eighty-three acres of land in section sixteen of Elkrun township, in the name of Henry Barton, and prayed that in case said taxes were not paid by a day to be fixed by the court, the lands should be sold to satisfy such taxes.
    The defendant answered: that the tract of land described in the petition in'this case, is a part of section sixteen, in Elkrun township, Columbiana county, Ohio; that said section sixteen was, by act of the congress of the United States, set aside for the use of schools in said township ; that said section, so set aside, was accepted by the people of Ohio for the use and support of schools in said township, the title thereof being vested in the legislature of said state, in trust for said purpose; that, in pursuance of the several acts of the legislature-of said state, ordering and authorizing the leasing of said section sixteen, the township trustees of said original surveyed township of Elkrun, on the 28th day of April, 1821, by a written lease, duly executed, acknowledged and delivered, leased to Alexander Rodgers, the northeast quarter of said section sixteen, of which the tract described in petition is a part, at the. rate of six per cent, on the appraised value thereof, said appraised value being six dollars ($6.00) per acre, to be paid into the treasury of the school funds of the money arising from said section sixteen, for the use of the inhabitants of said township for school purposes, for the full term and period of ninety-nine years from said date of said lease, renewable forever, subject to a re-valuation of said real estate at the end of thirty-three years from said date of said lease, and at the end of each thirty-three years during said term of said lease, according to the true intent and meaning of the act of the legislature ordering and authorizing said lease; that said Alexander Rodgers accepted said lease of said real estate, and under it entered into possession of the same; that said Alexander Rodgers and his grantees and assigns have ever since continued in possession of said real estate, and have fully paid said rental and performed their part under said lease; that the defendant is a grantee and assignee of said Alexander Rodgers, holding possession of said tract, in the petition described, under and by virtue of said lease; that the rental of six per cent, on the valuation, and re-valuation, has been and still is paid into the school funds of said township, and has been and still is wholly and exclusively applied for the use and support of the schools of said township for the free education of the school youth therein without charge; that said real estate described in the petition in this case, is exempt from taxation, and has been, and is wrongfully placed on the tax duplicate of said county, and has been and is wrongfully taxed thereon; that said taxes sued for in the petition in this case are general taxes for state, county, township, and other purposes, and that there is nothing lawfully due from the defendant to the treasurer of said county, or to said county, for taxes on said tract of land.
    To this answer the plaintiff demurred generally. The court sustained the demurrer, and thereupon gave judgment for the plaintiff. This judgment was reversed by the district court. A petition in error is brought here to reverse the judgment of the district court.
    
      R. W. Tayler, for plaintiff in error.
    
      J. W. & H. Morrison, for defendant in error.
   McCauley, J.

By section 7, of an act of congress approved April 30, 1802, entitled “An act to provide for the government of the territory northwest of the river Ohio,” 1 Chase Statutes, 70, it was provided: “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. First. That the section number sixteen in every township * * * shall be granted to the inhabitants’ of such township for the use of schools.” This proposition was accepted by the convention assembled to form a constitution for the state of Ohio, with the modification thereof to be assented to by congress, that all lands appropriated for the use of schools shall be vested in the legislature of this state, in trust for said purpose. This modification was afterwards assented to by congress. Act of March 3, 1803, Chase Statute, 72.

The answer in the court below sets forth the nature of the defendant’s title and the mode provided by law for taxing the property. Section 2733, Rev. Stat., which is a re-enactment of a former statute, provides that:

“ Lands held under a lease for a term exceeding fourteen years, belonging to the state or to any religious, scientific, or benevolent society, or institution, whether incorporated or unincorporated, and school and ministerial lands, shall be considered, for all purposes of taxation, as the property of the persons so holding the same, and shall be assessed in their names.”

The defendant in error insists first, that under the statutes the taxation of his lands is not provided for; and second, that if the statutes do provide for the taxation of the land, they are unconstitutional and invalid. The lands of the defendant are school lands and held under a valid lease for ninety-nine years, renewable forever. This clearly brings the property within the provisions of section 2733 above. This section applies only to lands held under a lease, and describes two kinds of property, that belonging to the state or to any religious, scientific or benevolent society, and school and ministerial lands. It could not apply to school and ministerial lands belonging to the state, before the same had been leased or sold. It must therefore apply to lands, the legal title to which is in the state, but which have been leased for a term greater than fourteen years. The lands were properly assessed for taxes under this section, if they are taxable at all.

Are the lands taxable ? They were appropriated by the United States to the inhabitants of each township for the use of schools, and the title thereto was vested in the legislature of the state “for the use aforesaid, and for no other usé, intent or purpose,” and were accepted by the state “ upon the trust aforesaid.” The state, in accepting the lands upon this trust, impliedly agreed that they or the rents and profits or proceeds of the sale thereof, should be applied to the use of schools in the several townships; and in the absence of a provision in the terms of acceptance that they should be forever free from taxation, after the lands were leased or sold, and the proceeds applied to the use upon which they were held by the state, the trust by which they were affected was fully executed; and when the land became private property it was subject to taxation as any other private property in the state.

It is insisted that the taxation of these lands would appropriate them to a purpose other than the support of schools, -and the state being under the obligation not to appropriate them to any other purpose, the lands are not taxable. This argument is at fault in assuming that the taxation of the lands would appropriate them to a purpose other than the support of schools. The taxation of property is in no proper sense an appropriation of it to any purpose. In a general sense it is nothing more than the exercise of that attribute of sovereignty by which the state provides the means of self preservation. The trust upon which the lands were accepted did not affect them after, they were leased or sold by the state, but was thereby transferred to the fund arising from the lease or sale — directing and defining the only use or purpose to which such fund should be applied.

Judgment reversed.  