[Swan & Billups v. Lindsey.] * * and in the direction of the Mobile and Ohio railroad, with a view to connect with the said Mobile and Ohio railroad;. that alternate sections of the public lands, to the same extent, and in the same manner, and upon the same limitations and restrictions in every respect, shall be, and is hereby made, to aid in the construction of the roads in said State mentioned in this act: Provided, that the lands hereby granted to said State for the purpose of constructing a railroad from the north-east to the south-western portion of said State, lying north-west of Elyton, shall be assigned to such road as may be designated by the legislature of said State." The act approved April 10th, 1869, entitled "An act to renew certain grants of land to the State of Alabama," enacts as follows: "That so much of the grant of lands made to the State of Alabama by the act of Congress approved June 3d, 1856, entitled," &c., "as were granted to assist in the building of railroads from near Gadsden to some point on the Alabama. and Mississippi State line, in a direction to the Mobile and Ohio railroad, with a view to connect with the said Mobile and Ohio railroad,' and 'from Gadsden to connect with the Georgia and Tennessee and Tennessee line of railroads, through Chattooga, Wills, and Lookout valleys,' is hereby revived and renewed, subject to all the conditions and restrictions contained in the act referred to; and subject to the further limitation, that if either of the said railroads is not completed within three years from the passage of this act, no further sale shall be made for the benefit of such railroad, and the lands unsold shall revert to the United States: Provided, that the lands granted by the act hereby revived, except mineral lands, shall be sold to actual settlers only in quantities not greater than one quarter-section to any one purchaser, and for a price not exceeding two dollars and fifty cents per acre."-U. S. Statutes at large, vol. 16, pp. 45-6. The Wills Valley Railroad Company was chartered by an act of the General Assembly approved February 3d, 1852; and by the 3d section of its charter it was enacted, "that said railroad shall extend from some convenient point on the Alabama and Tennessee rivers railroad, at or near the farm of James Hampton; thence the most practicable route, through the county of DeKalb, to the Georgia line, in a direction to intersect the Georgia and Tennessee railroad, at some convenient point in Lookout valley."-Sess. Acts 1851-2, pp. 178-83. The North-East and South-West Alabama Railroad Company was incorporated by an act of the General Assembly approved December 12th, 1853, in which the route of its road was described as running from some point on the boundary line between Alabama and Mississippi in the direction of Marion, [Swan & Billups v. Lindsey.] Lauderdale county, Mississippi, or the point of intersection of the Southern railroad with the Mobile and Ohio railroad, through the corporate limits of Eutaw, Tuskaloosa, and Elyton, "and thence in a north-easterly direction, to connect with some one or more of the railroads leading to Knoxville, Tennessee, or as near the points and course here designated as is consistent with the general route here indicated."-Sess. Acts 1853-4, pp. 270-80. The "Joint Resolutions designating the application of certain lands granted by Congress to the State of Alabama," which were approved on the 30th January, 1858, are in these words: "Whereas, the Congress of the United States, by a certain act approved the 3d day of June, 1856, made a grant of public lands to the State of Alabama, to aid in the construction of the North-East and South-West railroad, from near Gadsden, to some point on the Alabama and Mississippi State line in the direction of the Mobile and Ohio railroad, with a view to connect with said Mobile and Ohio railroad; and whereas, it is provided in said act, that the lands thereby granted to said State, for the purpose of constructing a railroad from the north-east to the south-west portion of said State, lying southwest of Elyton, shall be assigned to such road as may be designated by the legislature of said State: Therefore-SEC. 1. Be it enacted," &c., "that, in pursuance of the power in them vested by said act, they hereby designate the North-East and South-West Alabama railroad, running south-west from Elyton, by way of Tuskaloosa, Eutaw, and Livingston, and connecting with the Mobile and Ohio railroad at Meridian, as the road to which the lands granted by said act, lying south-west of Elyton, shall be assigned, and to aid in the construction of which said lands shall be held under the provisions of the act of Congress aforesaid." SEC. 2. "That the lands, rights and privileges, granted to and conferred upon the State of Alabama by the act of Congress aforesaid, to aid in the construction of certain railroads, be, and the same are hereby accepted, upon the terms, conditions and restrictions therein provided." SEC. 3. "That so much of the said lands, interest, rights and privileges, as are or may be granted and conferred, in pursuance of said act of Congress, to aid in the construction of the North-East and South-Western railroad, from near Gadsden to some point on the Alabama and Mississippi State line, in the direction of the Mobile and Ohio railroad, with a view to connect with the said Mobile and Ohio railroad, are hereby disposed of, granted to, and conferred upon the North-East and South-West Alabama Railroad Company, a body corporate existing under the laws of the State of Alabama; to be used and applied by said company upon the terms, conditions and restrictions, in said act of Con [Swan & Billups v. Lindsey.] gress contained." SEC. 4. "That so much of the said lands, interest, rights and powers, and privileges, as are or may be granted and conferred, in pursuance of the said act of Congress, to aid in the construction of a railroad from Gadsden to connect with the Georgia and Tennessee line of railroads, through Chattooga, Wills, and Lookout valleys, are hereby disposed of, granted to, and conferred upon the Wills Valley Railroad Company, a body corporate existing under the laws of Alabama; to be used and applied by said company upon the terms, conditions, and under the restrictions in said act of Congress contained. Provided, that nothing in these joint resolutions contained, nor the passage and approval of the same first in point of time, shall be construed to give the road to which the land is hereby appropriated any preference, where its claims to lands come in conflict with the claims of any other road provided for in said act of Congress."-Sess. Acts 1857-8, pp. 430-31. On the 6th October, 1868, an act of the General Assembly was approved, authorizing the consolidation of the South-East and North-West Alabama Railroad Company and the Wills Valley Railroad Company into a new corporation, to be known as the Alabama and Chattanooga Railroad Company; and declaring that said new corporation "shall be entitled to all the functions, rights, privileges and immunities granted or pertaining to either" of the consolidated companies, "or to both of them, either by the laws of this State, or of other States, or of the United States," "and shall be invested with all the property of every description, real, personal and mixed, including ** lands improved and unimproved," &c.-Sess. Acts of 1868, pp. 207-09. The Alabama and Chattanooga Railroad Company having been organized under the provisions of this act, another act was passed for its benefit, approved on the 11th February, 1870, entitled "An act to loan the credit of the State of Alabama to the Alabama and Chattanooga Railroad Company, for the purpose of expediting the construction of the railroad of said company within the State of Alabama;" under the provisions of which act, the State issued its bonds to the amount of $2,000,000 in favor of the railroad company, receiving in exchange the first-mortgage bonds of the company to the same amount, on all its lands and property.-Sess. Acts of 1869-70, pp. 89-92. The mortgage executed by the company to secure the payment of these bonds, dated March 2d, 1870, is the mortgage referred to in the 3d paragraph of the admitted facts, supra. The said railroad company afterwards became bankrupt, and the State became the purchaser of all its assets at a sale made under a decree of the Bankrupt Court. On the settlement of the State's indebtedness pursuant to the terms of the act approved February 23d, 1876, known as the "Debt Settle [Swan & Billups v. Lindsey.] ment Act" (Sess. Acts 1875-6, pp. 130-49), the holders of the bonds issued by the State in aid of this railroad company having surrendered them, in exchange for the new bonds authorized by said act to be issued, a deed was executed by the Governor, in the name of the State, on the 8th February, 1877, by which he assigned and conveyed to John Swann, as trustee selected by the bondholders, and John A. Billups, trustee appointed on behalf of the State, all the lands and property of every kind which the State held and claimed under the mortgage of the railroad company, and under its purchase at the sale in bankruptcy, to be held and applied by them for the benefit of the holders of the new bonds; and the trustees were authorized to sell the lands, and, after paying ten per cent. of the proceeds of sale into the State treasury, to distribute the residue pro rata among the holders of the new bonds. This is the deed under which title is asserted by said Swann and Billups in this suit. "Upon the foregoing agreed facts, the court charged the jury, that they must find for the defendant; to which charge the plaintiffs duly excepted," and they now assign it as error. RICE & WILEY, for appellants.-1. Congress may grant public lands to aid or secure the construction of railroads, or to accomplish any other purpose beneficial to the public, upon such terms and conditions as Congress may choose to insert in the grant.-United States v. Hall, 98 U. S. R. 351; Schulenberg v. Harriman, 21 Wallace, 59; Farnsworth v. M. & P. Railroad Co., 92 U. S. 65. Under such a grant, the terms, conditions and restrictions imposed, constitute the supreme law governing the property granted.-Cases cited. 2. The act of Congress of June 3d, 1856, involved in this case, is a grant of public lands to the State of Alabama, "for the purpose of aiding in the construction" of the railroads therein referred to, among which are the two railroads now consolidated into the Alabama and Chattanooga Railroad Company; and the essential conditions and restrictions of the grant are contained in the second proviso of the first section, and in the third and fourth sections. These provisions declare, that the lands granted "shall be exclusively applied in the construction of that road for and on account of which such lands are hereby granted, and shall be disposed of only as the work progresses, and the same shall be applied to no other purpose whatsoever;" that the lands "shall be subject to the disposal of the legislature, for the purposes aforesaid and no other;" and that the lands hereby granted "shall be disposed of by said State only in the manner following"-viz., that one hundred and twenty sections, included in a continuous length of twenty miles of the road, "may be sold;" that similar quantities, in [Swan & Billups v. Lindsey.] cluded in similar continuous portions, "may be sold" from time to time, on the certificate of the Governor to the Secretary of the Interior, as the work is finished, "until said roads are completed; and if any of said roads is not completed within ten years, no further sale shall be made, and the lands unsold shall revert to the United States." Under this grant, the legal title to the lands sued for was vested in the State of Alabama, as trustee, so soon as the particular railroad, in aid of which the grant was made, was definitely located.-Schulenberg v. Harriman, 21 Wallace, 44; Farnsworth v. M. & P. Railroad Co. 92 U. S. 49. Besides this legal title, the State had a restricted power of sale; but this power was not coupled with any interest in or to the lands, and the manner in which the power of sale should be exerised, as prescribed by the fourth section, continued imperative until the construction and completion of the railroad. "No conveyance in violation of the terms of this act, the road not having been constructed, could pass title to the company."-21 Wallace, 59; 2 Otto, 65; 101 U. S. 665. The word sale, or sold, has a fixed legal meaning, which must be given to it here.- Williamson v. Berry, 8 Howard, 544; Gunter v. Leckey, 30 Ala. 591. 3. The joint resolutions of January 30th, 1858, can not be construed and considered as a sale of the lands to the railroad company. Neither of the railroads was then constructed, nor was twenty continuous miles of either road completed. The trust was then executory, and the State could not sell and convey any title. As a conveyance, these resolutions were at that time in direct contravention of the act of Congress, and were, to that extent, inoperative and void.-Smith on Statutes, $667; 2 Perry on Trusts, $$ 783, 785, 779, 769, 768, note 6; 11 Vesey, 482, note 2; 6 Otto, 316; Pettit v. Pettit, 32 Ala. 288; 2 Sugden on Powers, 507, 456, 479, mar.; Hardy v. Br. Bank, 15 Ala. 730; Scipio v. Wright, 101 U. S. 675. These resolutions are void also, as a conveyance, for uncertainty. Deloach v. State Bank, 27 Ala. 437; Burrall v. Jacot, 1 Barb. S. C. 165. 4. The statute of limitations does not run against the State, nor against the United States.- United States v. Hoar, 2 Mason, 312 Swearingen v. United States, 11 Gill & J. 373; Iverson & Robinson v. Dubose, 27 Ala. 418; Farley v. Smith, 39 Ala. 38. On this point, the case of Miller v. The State, 38 Ala. 600, is not applicable; for, here, the State had not executed the trust, and was not a mere nominal party holding for the use and benefit of another; nor could the trust be executed while the road was not completed, until all the lands were exhausted by successive sales. That event never occurred before May, 1871; and until that time the title remained in the |