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The act of 1835 gives the action, and so far it is not repealed by the act of 1838, and the suit was brought before the passage of the act of 1838.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 *116to 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.