Speer v. M. K. & T. Rly. Co.

Jurisdiction in Indian Territory; Presumption; Practice; Error. In an action by a brakeman against a railroad company to recover damages sustained while engaged in running a train through the negligence of the company, an objection to the introduction of any testimony was sustained on the ground that the petition, which averred that the injury was done in the Indian country south of Kansas, contained no allegation that either plaintiff or defendant had license or legal authority to enter that country, or engage in the running of railroad trains through it, or that there was any law in force within its limits, either giving a cause of action for such a wrong or prescribing a rule of damage. Held, Error; that there is no presumption that a party is a wrong-doer because of entering into any state or territory of the United States or engaging therein in any ordinarily lawful occupation; the presumption is the reverse. That if we take judicial notice of the laws and treaties of the United States designed to secure to the Indians the occupation of this country, we find special reservation of a right to license the construction of a railroad through it, and from the long continuance of the defendants in running this railroad, we' are to presume that they have received such license. That as the act complained of is one which both by the common and the civil law, as well as by the dictates of natural justice, entitles the injured party to compensation, we are to presume that the laws in force within that locality are so like ours as to give a right to relief; or perhaps it were better to say that no law has been enacted in that jurisdiction which countenances such a wrong, or permits it to go unredressed.

Error from, Labette Distriet Court. Action by Speer, against the Missouri, Kansas & Texas Railway Company and the Union Trust Company, of New York, to recover damages for personal injuries received by him while in the service of the railroad company. Trial at the November Term, 1879, of the district court," and judgment for the defendants. New trial denied, and the plaintiff brings the case here. The opinion contains a sufficient statement of the facts. The petition stated a cause of action against the defendant companies. (8 Kas. 642; 9 id. 620; 11 id. 83; 14 id. 524; 18 id. 59; 19 id. 267; 20 id. 515 ; also, 26 Yt. 717.) The district court ruled adversely to the plaintiff in error, because the petition does not state what the. law relative to such a case as is stated in the petition was at the time when, and the place where, the injuries were received. We submit that it was not necessary to do so. This court will, as that court should have done, take judicial notice that the common law on such subjects was in force there; and if not, then that this court will, and said district court should, have presumed the law of that place was the same as the law of Kansas on similar subjects. (13Kas. 107,113; 15id.285; 23N.Y.475; 5 id. 452; 81 Pa. St. 464; Tyler on Usury, 85, 86; 31 N. J. 309; 18 Kas. 58.) When employers are liable for not taking proper precautions to guard against injuries to persons in their employ, see 44 Cal. 187; 74 N. C. 734; 38 Iowa, 592; 110 Mass. 260, 262; 117 Mass. 318; 60 Mo. 160; 55 111. 492; 61 111. 162; 18 Kas. 66.) The place where the injury happened was in that part of the country south of Kansas which was once a part of the province of Louisiana while it belonged to France and Spain, alternately, during which time the civil law was in force therein. The civil law as to such questions as those involved in this cáse, in relation to the duties and obligations of an employer towards a servant, in the matter of furnishing safe material and competent co-servants, superior servants, is, as we understand it, similar to the common law. (Wharton on Negligence, §§ 22, 23, 720.) The province of Louisiana was ceded to the United States in 1803, (8 U. S. Stat. at Large, 200,) and was by the act of Congress of March 26, 1804, divided into two territories — all thereof south of the 33d degree of north latitude being called Orleans, (2 U. S. Stat. at Large, 283, § 1,) and all north of that degree, the district of Louisiana. (Id. 287, § 12.) The governor and judges of Louisiana were authorized to pass laws, etc., (id., §12,) and the laws previously in force were to continue in force, etc. (Id., §13.) By the act of March 3, 1805, said district of Louisiana was made into the territory of Louisiana, with the same boundaries, (2 U. S. Stat. at Large, 331, § 1,) and the laws therein were continued in force, etc., (id. 332, § 9); and by the act of June 4, 1812, the name of said territory was changed to be the territory of Missouri, with the same boundaries. (2 U. S. Stat. at Large, 743.) And the laws in force in said territory of Louisiana were to continue in force, etc. (Id. 747, § 16.) While the aforesaid part of the country south of Kansas was part of that territory of Missouri, the legislature thereof, in pursuance of § 4 of the last above-mentioned act, adopted and put in force the common law of England, substantially as it is now in this state. (Territorial Laws of Mo. 436, § 1, act of January 19, 1816.) By the act of March 2,1819, Arkansas territory was erected out of that part of the territory of Missouri, so as to include the part of said country south of Kansas, where plaintiff was injured; (3 U. S. Stat. at Large, 493, § 1;) and the laws continued in force. (Id. 495, § 10.) Eor the enabling act to admit Arkansas, etc., passed June 15,1836, see 5 U. S. Stat. at Large, 50. By reference to the treaty, 22d of February, 1819, with Spain, (8 U. S. Stat. at Large, 254, etc., art. 3,) it will be seen that the place of injury was conceded to belong to the United States, and therefore, of course, to be within the territory of Missouri when the common, law was adopted therein in 1816, as is shown by said territorial act of 1816, and as that law —that is, the common law — thus, in 1816, became the law of the whole of the territory of Missouri, including the part thereof where plaintiff was afterward injured, as stated in his petition, it follows that the common law still remains there in force, (Stout v. Keyes, 2 Doug., Mich., 184, 189,) because the presumption is, that the law continues as it was, in the absence of any showing to the contrary; and as Labette county, as well as where this court is, was, with the place of injury, and the now states of Missouri and Arkansas, when said act of 1816 was adopted, all parts and parcels of one and the same territory, the laws of which were operative in 1816 throughout the whole of the then territory of Missouri, it follows that this court, as well as said Labette district court, should take judicial notice of the act of 1816, whereby the common law was so put in force and became the law of the land where said place of injury occurred. Of course, a court takes judicial notice of all laws which . have been operative here and were enacted by any civil government acting under authority of the United States and of the territorial boundaries of such civil government while this part of this state was part thereof, and therefore we ask that said judgment aud decision be reversed, and a new trial granted. It does not appear in the petition that either plaintiff or defendants had any license or legal authority to be or to do business within the Indian country, or that a cause of action ever arose or had any legal existence there, or that the law' (if any existed therein) furnished the plaintiff any remedy or rule of damage. This court will, as the court below did, take judicial notice that the sovereignty of all that country south of Kansas and north of Texas, and lying between the western line of Arkansas and the 100th degree of longitude, west, and known as the Indian country, is vested exclusively in the United States, and that such country has been, and still is, by the treaty and law-making powers of the United States, dedicated and granted to the Indians residing therein as their place of abode; that no law, whether civil or' common, except that made by the law-making power of the United States, has any force or operation therein affecting non-inhabitants thereof; that no court has been established or exists therein, having jurisdiction over or taking cognizance of any matter arising therein, not criminal, respecting any person not an Indian or a member of an Indian tribe; and that no such jurisdiction has been accorded to any court outside the limits of such country, unless one of the parties be an inhabitant of said Indian country and the other an inhabitant outside thereof,, as plaintiff or defendant: and, as to this, exclusive original jurisdiction is given to the nearest United States district court. (Seventh art. of treaty between U. S. and Cherokee Nation of Indians, concluded July 19, 1866, proclaimed Aug. 11, 1866; 14 U. S. Stat. at Large, 785; Rev. Stat. of U. S., §§1839, 1840, 2114; and generally, ch. 4, p. 373.) If the plaintiff was, at the time his alleged injuries occurred, a member of an Indian tribe, residing in the Indian country, and the defendants not inhabitants thereof, then, under the seventh article of the above-mentioned treaty, the nearest United States district court has original exclusive jurisdiction —the place where plaintiff’s injuries occurred being within the boundaries of the Cherokee nation of Indians. (7 U. S. Stat. at Large, 311.) If he had no license or legal authority to be or to do business within the Indian territory, or if neither plaintiff nor defendants had any such license or authority, then the contract of service between them was in violation of the above treaty, and void. (27th art. of same treaty.) This treaty further provides, that all persons not in the military service of the United States, not citizens of the -Cherokee nation, are prohibited from coming into -the territory or remaining in the same, with certain exceptions, which do not help the plaintiff or parties to this suit. (27th art. of same treaty.) The courts will give no man a remedy when founded upon •or made in contemplation of the violation of law or a treaty. (14 Mass. 322; 5 Johns. 327; 4 Pet. 410; 22 Yt. 184.) The treaties and laws of the United States contemplate the Indian ■territory as completely separated from that of the states, and provide that all intercourse with the inhabitants thereof shall be carried on exclusively by the United States government. ( Worcester v. State of Georgia, 6 Pet. 515.) In this country, appropriated by the United States to the civilization and settlement of the various tribes of Indians located therein and hedged about with non-intercourse laws, and in which the only rule of legal action is that enacted by the Indian councils, under the authority and supervision of the United States, .and which is made applicable to the lawful inhabitants thereof, there is no ground for the assertion that the court below should have presumed, or that this court will presume, that either the common law of England, or the civil law of France, or the laws of Spain, are in force or have any operation therein. This court, in Furrow v. Chapin, 13 Kas. 113, says: “We are not bound to presume that the common law prevails everywhere or anywhere outside of Kansas.” The courts of this state have no power to send process into the Indian territory. The attendance of witnesses at court cannot be compelled therefrom. The taking of testimony by deposition or commission cannot be enforced therein, and in view of these matters, the courts of this state are asked to afford redress, and apply the laws thereof in cases of tort occurring in that country whenever and wherever sued in this state. Let this be the established rule, and the courts on the border would be flooded with such cases. The territories of the United States must be under the dominion thereof, or be without any government, as they are not subject to the jurisdiction of any state. (1 Kent’s Com. 423 and 474.) It is confidently assumed, since the constitutional and lawful powers exercising rightful authority in the Indian' country have established no rule of damage, and have failed to provide any redress or remedy in cases like this, that the plaintiff cannot move into the state of Kansas, and claim a right to damages under our law. A cause of action must have a legal existence at the time and place where the injury occurred, and that locality or sovereignty must furnish the rule of damage and the remedy. They do not exist in expectancy, nr lie in abeyance, dependent on their enforcement upon the amotion of the injured party to a state or sovereignty where ■such rule and remedy do exist, had the cause of action arisen therein. If there is no right to recoverffbr an alleged injury in the state or sovereignty where committed, there can be none in any other state or sovereignty. (19 Law R. 329; Whit-ford v. Panama R. R. Co., 3 Bosw. 67; 23 N. Y. 465, 471; Wharton on Conflict of Laws, §§477,479, and note 707; 117 Mass. 109; 5 Wall, 307; 7 id. 193.) It matters not what law impressed the land where the plaintiff’s injury happened by the enactment of the territorial government of Missouri in 1816. The courts will officially notice that seven states have since been organized and admitted into the Union out of this territory, and that the Indian country wherein the said injuries occurred has been since carved out of it, and set apart for the exclusive use and occupancy of the Indians located therein, without any local government except that above indicated, and that the intercourse laws of the United States applicable thereto give neither the plaintiff nor defendants any right, leave' or license to enter and do business therein, and without which, such acts are.in contravention of law. -It follows, that unless the petition shows such right, leave or license, and that unless the law in force therein afforded a remedy for the plaintiff’s wrongs, it did not state facts sufficient to constitute a cause of action, and the judgment below should be affirmed.