River v. Morris

1. Cherokee Neutral Lands; Date of Patent; When Lands subject to Taxation. By contract with the Secretary of the Interior, Mr. James F. Joy became the purchaser of a tract in southeastern Kansas, known as the. Cherokee Neutral Lands.15 By the terms of that contract lands were patented as paid for. Having paid for and received patents for a portion of these lands, in March 1869 Mr. Joy assigned his contract to the plaintiff in error. On the 8th of August, 1870, the plaintiff paid the balance of the purchase-money, and on the 2d of November, 1870, received a patent for the remainder of said lands. Held, That these lands paid for on the 8th of August, and patented on the 2d of November, 1870, were not subject to taxation for the year 1870. 2. Lands Granted in Aid of Railroads ; When Lands subject to Taxation On the 25th of July, 1866, Congress .passed an act entitled “An act granting lands to the state of Kansas to aid in the construction of the Kansas and Neosho Valley railroad, and its extensions to Red river.” By the terms of this act, upon the certificate of the Governor of Kansas that any ten consecutive miles of this railroad had been completed, patents were to issue directly to the K. & N. V. Railroad Co. for the lands opposite such completed section, and so for each successive section. No action on the part of the state was in terms called for. The said railroad company, now the Mo. R., Ft. S. & Gulf Railroad Co., as required, formally accepted the grant with its terms and conditions. Prior to 1870 it had complied with all the terms and conditions of the grant required to be performed by it. The state of Kansas took no action in reference to this matter until March, 1871, when the legislature passed a joint resolution formally accepting the grant. No patents had issued for certain of the lands within this grant in Bourbon county up to April 21st, 1871; held, that they were nevertheless subject to taxation for the year 1870.

Error from Bourbon District Court. Injunction brought by the Railroad Company, to restrain the collection of alleged illegal taxes. The facts are fully stated in the opinion, infra. The district court, (E.M.H., judge- pro tern., presiding,) at the December Term 1871, re•fused the perpetual injunction prayed for, and gave judgment against the Railroad Company for costs. Said company brings the caáe here on error. 1. The decision of the supreme court of the United States in the case of The Kansas Indians, 5 Wallace, 737, being decisive of the question of exemption from taxation of all lands owned by Indians whose tribal organization was preserved, leaves the only question for solution here to be, whether the legal and equitable title to the lands were in the United States, or the Cherokee tribe of Indians, or in both, at the time of the levy of this tax, or whether the complete equitable title had passed to the plaintiff. It is a matter of history, and familiar to every member of this court, that the “Cherokee Neutral Lands” are a part of the “Louisiana Purchase,” acquired by the United States from the French Eepublic by the treaty of April 30th, 1803, and that, by the second article of the treaty of December 29th, 1835, between the United States and the Cherokee Nation, these lands were ceded to said nation. (7 U. S. Statutes at Large, 478.) By the provisions of this treaty of cession to the Cherokees, the United States government renewed its pledge and guaranty of protection, contained in former treaties with the Cherokee Nation, and also stipulated that these ceded lands should never be included within the territorial limits or jurisdiction of any state or territory, without the consent of said Indians. Afterward, and in August, 1866, another treaty was made and proclaimed between the United States and the Cherokees, the first paragraph of the 17th article of which is as follows: “Art. 17. The Cherokee Nation hereby cedes, in trust, to the United States the tract of land in the state of Kansas, which was sold to the Cherokees by the United States under the provisions of the 2d article of the treaty of 1835, and .also that strip of the land ceded to the nation by the 4th article of said treaty, which is included in the state of Kansas; and the Cherokees consent that said lands may be included in the limits and jurisdiction of said state.” (14 U. S. Stat. at Large, 799.) Counsel for defendant in error, as we understand, admits that the lands were exempt from taxation under the treaty of 1835, but he asserts that they were so exempt only in pursuance of that provision of said treaty which stipulated that the lands should never be included in the limits or jurisdiction of any state or territory, without the consent of the Indians. From this he deduces the proposition, that consent that the lands be included in the limits and jurisdiction of the state of Kansas having been given by the Indians in the l^th article of the treaty of 1866, above quoted, from that time they were subject to taxation. . We claim that these lands were exempted from taxation by the treaty of 1835, and from any other interference of state or territorial authority, not alone because of the stipulation above referred to, but because they were ceded under the assured protection of the government, and for the purpose of a home for themselves and their descendants, to a nation of Indians which, at the time, kept up, and ever since has preserved its tribal organization; a tribe which has always been recognized by the political and judicial departments of the government as a state, capable of making treaties, managing its own affairs, and subject only to the control of the government of the United States. “ The acts of our government plainly recognize the Cherokee Nation as a state, and the courts are bound by these acts.” 5 Peters, 15. And see cases of The Kansas Indians, 5 Wallace, 537; The Wea Indians, 5 Wal., 757; The Miamis, 5 Wal., 760; The New York Indians, 7 Wal., 761. And in Comm’rs of Douglas Co. v. Union Paeifio Ply. Co., 5 Kas., 615, this court decided, that, “as long as the title to land, lying within an Indian reserve, remained in the United States, or in the Indians, or in both, the land is not taxable by the state.” The lands .in question in that case were parcel of certain lands ceded by the Delaware tribe of Indians to the United States by the treaty of 1854. Nowhere in that treaty is there any provision exempting the lands so ceded from taxation, nor any provision that they should never be included within the limits or jurisdiction of any state without the consent of the Indians. And see McCracken v.- Todd, 1 Kas., 148. 2. The plaintiff in error claims that the clause above quoted from the 17th article of the treaty of 1866 had the effect simply of including the lands in question within the territorial boundaries of the state of Kansas, and in no other respect changed the relative rights of the Indians and said state. The language used in the treaty admits of no other or different construction. The word “jurisdiction ” is evidently used, not as descriptive of the power of, or right of exercise of authority by the state, but of the territory to which such power and authority extend. Had the intention been to subject the lands to the jurisdiction of the state, how easy, appropriate, and free from all doubt as to meaning, to have said that they consented that said lands might be included in the limits, and subject to the jurisdiction of the state of Kansas. Again: The object of the Cherokees in ceding these lands to the United States, in trust, was, as article 17 óf the treaty plainly indicates and provides, to have them sold and the proceeds applied to the use of the Indians. It is evident that no purchaser could have been found for them, and it is also evident that the United States government would never have consented to a sale of these lands, except possibly to some other tribe of Indians, unless they were, or could be, included -in some state or territory. Under the stipulation in the Treaty of 1835, the provisions of the act organizing the territory, and the act of admission of the state of Kansas into the Union, these lands never could have been included in the limits of said state, until the Cherokees should signify their assent to the president of the United States to be so included. Hence the necessity for the clause of assent in the 17th article of the Treaty of 1866. No such necessity existed for any consent on the part of the Indians that these lands should be'subject to the laws and jurisdiction of said state. So soon as the same were sold and paid for, and the title of the Indians and the United States government extinguished, these lands became freed from the control of the Federal Government, and at once became .subject to the laws of the state of Kansas, and liable to taxation. Whenever the supreme court of the United States has been called upon to construe treaties between the government and Indian tribes, it has always adopted rules of interpretation favorable to the Indians; (6 Peters, 582; 5 Wal., 760;) hence there can be no doubt whatever but that our construction must be sustained. No one will seriously claim that it was the intention of the Cherokees, in making this treaty, to subject these lands to the jurisdiction and laws of the state of Kansas, and consequently to a liability to taxation. By consenting that they might be included within the boundaries of the state, they did what was absolutely essential to accomplish the object they had in view in making the cession of these lands to the United States, to-wit, a sale at the price specified in the treaty. A further consent that the land should be subject to the laws of the state in nowise aided the accomplishment of this object, because, as we have shown, so soon as they should be sold and paid for, and the rights of the Indians extinguished, precisely this result would be accomplished. Nor could such consent have been of any advantage whatever to the Indians. On the contrary, it would have been greatly to their pecuniary prejudice. No one could tell when these lands would be sold. In fact, they were not sold till about two years had elapsed after the making of this treaty. They might not have been sold for years, and in the meantime the Indians, in order to save their lands from sale for taxes, would have been required to pay a large sum of money annually to the state of Kansas, and for what consideration ? Absolutely none. 3. Under the provisions of the contract between the Secretary of the Interior and Mr. Joy, (it is apparent from the agreed statement of facts in this case,) that, at the time of the levy and assessment of the tax in question, the plaintiff in error, assignee of Mr. Joy, had neither the legal nor equitable title to that portion of the neutral lands situate in Bourbon county. The legal title was in the United States, and the equitable in the Cherokees. The plaintiff in error had “a mere contingent, conditional, and inchoate equity,” liable to be forfeited by its failure to pay for the same according to the terms of the contract of purchase. In the language of Mr. Justice Valentine, in Parker v. Winsor, 5 Kas., 373, “The legal title has not passed, because the patent has not yet been issued, and the equitable title has not passed, because it has not yet been paid for, and because it is clearly the intention of the parties, as indicated,in the treaty, that such title shall not pass until the land is fully paid for.” And again, in Douglas Gownty v. TJ. P. Ply. Go., 5 Kas., 623, the same Justice says: “The legal title to land never passes until the legal evidence of such title is executed, and the equitable title probably never passes until everything has been done so that the land cannot be forfeited.” It would be difficult to frame a contract in which “time” should be made more of its essence, than in the one under which these lands were purchased, or one in which the rights of the Indians could have been more carefully guarded. No right of possession was given to the purchaser, thus avoiding the acquiring of an equity by the making of improvements upon the lands. Equally was the claim of an equity, based upon part payment, guarded against, by providing that whenever the sum of $50,000 or more of principal should be paid, the government would set off and patent to the purchaser a number of acres corresponding to the number of dollars so paid. As appears from the agreed statement of facts, this provision of the contract was faithfully observed • so that, at the time of the levy of the tax in question, the government had not received one single dollar from the purchaser, for which it had not conveyed to him a corresponding acre of these lands. 4. The lands mentioned in the second cause of action of the petition, at the time of the levy of the tax against them, were the property of the United States, and as such exempt from taxation by the state of Kansas. These lands are parcel of a grant by the United States to the state of Kansas, for the use of the plaintiff in error, by an act of Congress, entitled “An act granting lands to the state of Kansas to aid in the construction of the Kansas & Neosho Valley Railroad and its extensions to Red river,” approved July 25th, 1866. By this act certain conditions were imposed upon plaintiff in error. One provided for a formal acceptance of the terms and conditions of the grant by the railroad company within one year; another prescribed the kind of road that should be built; and another, that the railroad company should not dispose of or incumber the lands so granted under the provisions of said act. It is admitted that plaintiff in error, (then the Kansas & Neosho Valley Railroad Company,) at the time of the levy of the tax against these lands, had complied with all of the conditions of the grant on its part to be performed. It is also admitted that the state at that time had not accepted and did not accept such grant until the 2d of March, 1871, when a formal resolution was passed by the legislature of the state accepting the same. We claim that, notwithstanding such compliance on the part of the plaintiff in error with all of the conditions of this grant, no such complete, equitable title to the lands in question had passed to it at the time of the levy of this tax, as to entitle it to a conveyance by the United States of the legal title, but that this equitable title, as well as the legal, still remained in the United States — because, 1st, there had been no acceptance of the grant by the state of Kansas. This grant was made directly to the state of Kansas, for the use of the plaintiff in error, thus constituting'the state the trustee, and the railroad company the cestui que trust. In all deeds or grants, made directly to a trustee for the use of another, there must be some sort of an acceptance by the trustee in order to make such deed or grant operative; and no presumption of acceptance can obtain where the state is named as trustee unless there has been some action of its legislative department, through which alone the state can act, indicating at least a knowledge on- their part of the terms and conditions of such deed or grant. 2d, Th'e United States, in prohibiting the railroad company from disposing of or incumbering these lands until the patent should be given it under the provisions of the grant, clearly and unmistakably show, that it was their intention that no interest whatever in these lands should pass to the railroad company until these patents had been executed, but that the entire-equitable, as well as the legal, title should remain in the United States. At the time of the levy of this tax, no patent for any of these lands had been made, and hence no such interest in them had passed from the United States to the railroad company as to render them liable to taxation by the state. Act of Admission, § 2, subdiv. 6; 5 Kas., 362, 615. 1. The entire equitable and beneficial interest and title to said neutral lands were at the time of the levy of taxes thereon for 1870, and since the year 1868 had been, vested in the plaintiff in error, or its grantor, James F. Joy. Plaintiff in error contends that said lands were exempted from taxation by the Organic Act and Act of Admission until the consent of the Indians should be obtained, and that the consent given in the 17th article of the treaty of 1866 “had the effect simply of including these lands in the boundaries, and making them subject to the process of the courts of the state of Kansas.” Is this a fair deduction? The second proviso of the Organic Act provides that nothing in said act shall be construed “to include any territory, which by treaty with any Indian, tribe is not, without the consent of said tribe, to be included within the territorial limits or jurisdiction of any state or territory, but all such territory shall be excepted out of the boundaries and constitute no part of the territory of Kansas, until said tribe shall signify their assent to the president of the United States to be included within the said territory of Kansas.” (Gen. Stat. 1868, p. 26.) In § 1 of the Act of Admission (Gen. Stat., 67,) the identical words are used as above quoted, with the exception that the word “state” is substituted for “territory,” and the word “such” for “any.” This then is the law, if any there be, under which these lands are exempted from taxation, because they are not included within the territorial limits or jurisdiction of the state of Kansas. What is the language used in the treaty which the plaintiff in error claims had the effect simply of including these lands within the boundaries of the state and making them subject to the process of the courts thereof? In article 17 of the treaty of August 11, 1866, are these words, “And the Clierokees consent that said lands may be included in the limits and jurisdiction of the said state.” If the excluding of these lands from the limits and jurisdiction of the state, prohibits the state from taxing the same, until consent is given by the Indians, then consent given by said Indians that said lands may be included in the limits and jurisdiction of the state, removes the prohibition. But the treaty of 1866 not only removed the prohibition imposed by the Organic Act, and the Act of Admission, but it went further; it made the United States the trustee of the Cherokee Nation for the sale of said lands, and authorized the Secretary of the Interior, acting for the United States, “ to sell such lands to the highest bidder.” It is admitted in the agreed statement of facts, “that in pursuance of the provisions of said article 17 of said treaty, as amended by the United States Senate, and of a supplemental article thereto, ratified June 6th, 1868, James F. Joy, on the 8th of June 1868, entered into a contract, in wilting, with O. H. Browning, then Secretary of the Interior Department of the.United States for ’the purchase of said lands; that on or about the first day of March 1869, said James F. Joy assigned and conveyed to the plaintiff all of his right, title and interest in and to said contract of the date of June 8th, 1868.” Did not the contract of James F. Joy with the Secretary of the Interior confer an equitable title upon said Joy ? If not, what office did the contract perform ? It is not claimed that there were any special conditions incorporated in said contract, and-the presumption is that the contract was such as is usual for the sale of land; and in fact, the contract itself shows that no conditions were imposed, that it was an ordinary contract for the sale of land, in which the grantor uses the words “agrees to sell and hereby doth sell,” etc. It is a well-settled principie, that equity considers, where land is sold on credit, and the deed is to be made when the purchase-money is paid, that the land at the time of the purchase becomes the vendee’s, and the purchase-money the vendor’s; that the vendor becomes the trustee of the vendee with respect to the land, and the vendee the trustee of the vendor with respect to the purchase-money. (2 Johns., 595; 6 Barb., 481; 7 Ohio, 2d pt., 73-81; Washburn on Beal Prop., 424, 426.) In the case of Parker v. Winsor, 5 Kas., 369, cited by plaintiff, the treaty under which the sale, to the U. P. Bly. Co., was made provides that “none of said lands shall be subject to taxation, until the patents have been issued therefor;” but in the treaty under which the sale was made in the case at bar, “ the Cherokees consent that said lands may be included in the limits and jurisdiction of the said state.” In Parker v. Winsor, the court says, “but in this case, neither the legal nor equitable title has passed; the legal title has not passed, because the patent has not yet been issued; and the equitable title has not passed, because it has not yet been paid for, and because it is clearly the intention of the parties, as indicated in the treaty, that such title shall not pass until the land is fully paid for.” And the same principle was decided in Comm’rs of Douglas Co. v. U. P. Ply. Co., 5 Kas., 615. In the case at bar there is no such intention expressed or implied, and no such conditions imposed. If the equitable title did not pass because of the provisions of that treaty and the intention of the parties that it should not pass, then by a parity of reasoning, in the case at bar, when no such intention and no such provisions exist the equitable title did pass. 2. As to the taxes sought to be enjoined in the second count in plaintiff’s petition, their validity would seem to be settled by the agreed statement of facts. It is true, that the act granting the lands to the plaintiff in error did impose some conditions upon said railroad company, but it is agreed that said1 plaintiff in error had, at the time of said levy, “complied with all the conditions of said grant, on its part to be performed,” leaving nothing but the naked legal title in the United States. The plaintiff company then had accepted the grant within one year after the passage of. said act, and prior to July 25th, 1867; and upon the acceptance thereof the equitable title 'passed to the plaintiff in error. There is no provision which makes it necessary that the state of Kansas should accept the trust.