dissenting.
I dissent from the above opinion. The grant is to the State, for the use of the inhabitants of each township, not to the Legislature. The State is either the people, or the government, and the Legislature have no right to assume to be either. It is but one department of the government, and may be the agent of the State for the objects and duties expressed in the Constitution, and nothing more. The State is the trustee, and by its convention in forming the Constitution, has expressly limited the power of the Legislature to be exercised over the 16th section, to the taking of such measures as may be necessary to preserve it from “ waste or damage,” and to the proper application of the funds which may arise from the use of such lands in strict conformity to the objects of the grant. This assuredly gives no power to sell, but on the contrary, by strong implication, denies the power.
And if the Legislature were the State, or the grant had been expressly to the Legislature, still as trustee, it would have no power to sell, the use is to the inhabitants in common, and by what principle shall three out of four commissioners be permitted to exclude or control the fourth in the disposition of the common use ? o'r why should those who may claim the use to-day and by removal lose the right to claim it to-morrow, be permitted- to anticipate defeat or control the use of those who may become entitled to-morrow ? In looking at the objects of the grant, the character and condition of the thing granted, and the mode and manner in which it should be used and enjoyed, I feel clear that the Legislature have no authority to sell.