135 F. 947 (8th Cir. 1905), 2,147, Buster v. Wright

Docket Nº:2,147.
Citation:135 F. 947
Party Name:BUSTER et al. v. WRIGHT, United States Indian Inspector, et al.
Case Date:March 07, 1905
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 947

135 F. 947 (8th Cir. 1905)

BUSTER et al.

v.

WRIGHT, United States Indian Inspector, et al.

No. 2,147.

United States Court of Appeals, Eighth Circuit.

March 7, 1905

Syllabus by the Court

The permit tax of the Creek Nation is the annual price fixed by its laws for the privilege of conducting business within its borders which it offers to noncitizens. The payment of the tax conditions the exercise of the privilege; but the latter, and hence the former, is optional with each noncitizen.

Prior to the Creek agreement of March 1, 1901, this tax was valid, and the Secretary of the Interior, the Indian inspector, and Indian agent had authority to enforce the laws which prescribed it.

The duty of enforcing laws is primarily imposed upon executive officers. Such officers charged with the duty of enforcing an injunctive law may prevent, without other writ or process than the law itself and their commissions of office, and it is their first duty to prevent, its violation where they can do so without infringing the rights of those who threaten to break it, and no man has any personal or property right to violate a valid law. It is only when executive officers renounce or fail to discharge their primary duty in such a case that an appeal to the courts to enforce such a law may be successfully made.

The rule of an executive department may be due process of law. A lawful rule made by the chief of an executive department to which the enforcement of a law is intrusted, which appoints a subordinate for the purpose, and imposes upon him the duty of enforcing the law, is sufficient process of law to authorize him to prevent its violation in cases where he can do so without infringing upon any personal or property right of those who threaten to break it.

The legal effect of the laws of the Creek Nation prescribing permit taxes is to prohibit noncitizens from conducting business in that nation without paying them.

The Secretary of the Interior and his subordinates, the Indian inspector and Indian agent, may lawfully close the business of noncitizens within that nation who refuse to pay their permit taxes, and prevent the continuance of that business until they are paid, for the purpose of preventing the continuous violation of those laws.

Neither the Creek agreement ratified by the United States March 1, 1901 (chapter 676, 31 Stat. 861, 866, Secs. 10-16), nor the establishment of town sites within the territory of that nation, nor the sale of lots therein to occupants who were not citizens of that nation, nor the organization of towns and cities thereon, withdraws such town sites, lots, their purchasers or occupants, from the territorial or governmental jurisdiction of the Creek Nation, or exempts them from its laws, or withdraws them from the jurisdiction and authority of the Secretary of the Interior and his subordinates to close the unlawful business of those noncitizens who refuse to pay their permit taxes, for the purpose of preventing the continued violation of the laws which prescribe them.

The provision of the act of May 27, 1902 (chapter 888, 32 Stat. 259), which prohibits the deportation of persons in lawful possession of land in any town site in any town or city in the Indian Territory, was not intended to and it did not repeal or annul the permit laws of the Creek Nation, nor withdraw from the Secretary of the Interior and his subordinates their authority to close the business of noncitizens who refuse to pay their permit taxes, in order to prevent the continuance of a violation of those laws.

The former decision and decree of the Court of Appeals of the Indian Territory, which was not then reviewable because it was not final, is not the law of the case in this court upon an appeal from a subsequent final decree, which first presents to this court for review all the proceedings of the case from its inception.

Where a former decision of an inferior court erroneously reverses the dismissal of a bill upon a demurrer to it, and, after answer, upon the same facts, the final decree of the same court affirms such a dismissal, that decree should not be reversed, because it is in legal effect the decree which should have been affirmed upon the demurrer to the bill. A right decree for a wrong reason is not reversible.

This is an appeal from a decree of the United States Court of Appeals for the Indian Territory, which affirmed a dismissal for want of equity of a suit brought by C. W. Buster and others, who were not citizens of the Creek Nation, to prevent J. George Wright, Indian inspector of the Indian Territory, J. Blair Shoenfelt, the Indian agent for the Union agency, Guy P. Cobb, the tax collector for the Creek Nation, and John West, Indian police, officers of the United States, from stopping the business of the complainants, and from reporting them for deportation from the Indian Territory unless they paid the taxes for the privilege of doing business within the Creek Nation prescribed by the laws of the Creeks. Their bill was filed on August 23, 1901. They alleged in it that they were merchants in the town of Wagoner; that the defendants had demanded of them payment of their permit taxes prescribed by the laws of the Creek Nation, and had threatened to close their places of business, and to report them to the Secretary of the Interior for removal from the territory, unless they paid them; that they had stocks of merchandise; that they would suffer irreparable injury if their places of business were closed; that by the terms of the Creek agreement of March 1, 1901, the lands within the corporate limits of the town of Wagoner had been set apart for a town site, had been surveyed, platted, and appraised; that they resided in this town; that they were the owners and occupants of the improvements in which they were doing business; that the land upon which these improvements were located had been appraised and listed

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to them for purchase, and that they intended to buy it. The prayer of their bill was for an injunction against the defendants to prevent the performance of the acts they threatened.

A demurrer to this bill was sustained, and the bill was dismissed. The decree of dismissal was reversed by the Court of Appeals of the Indian Territory, and the case was remanded for farther proceedings. Upon the filing of the mandate the defendants answered that in the year 1900 the national council of the Creek Nation passed an act which was approved by the President of the United States, and which provided that all persons who were not citizens of the Creek Nation who wished to engage in business therein should pay to the United States Indian agent at Union agency, for the benefit of the Creek tribe, the annual permit taxes which were there specified, quarterly in advance, except where those taxes were based upon the cost of goods offered for sale; that in the case of goods offered for sale the tax should

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be one-half of 1 per cent. of the first cost of all goods thus offered; that the Secretary of the Interior, on November 4, 1898, made and published certain rules regarding the collection of revenues in the Indian Territory, section 13 of which provided that it should be the duty of the Indian agent to collect, under the supervision of the United States Indian inspector for the Indian Territory, all rents, permits, revenues, and taxes of whatever kind or nature that might be due or payable to the Creek Nation; that the Attorney General of the United States had informed the secretary in September, 1900, that it was his duty to remove all persons from that nation who were members of classes forbidden by treaty or law, and who were without permit or license, and to close all business which required a license that was being carried on there without one; and that the defendants, under the act of Congress and the treaties of the United States, and pursuant to the regulations and direction of the Secretary of the Interior, were proceeding to prevent the complainants from continuing to carry on their business in the Creek Nation without paying the permit taxes required by the laws of that nation for the exercise of that privilege.

After the filing of this answer the parties stipulated that the averments of the bill were true, and the case was submitted to the trial court for decision upon the bill, the answer, and this stipulation. That court again dismissed the bill, and that decree of dismissal was affirmed upon appeal by the Court of Appeals of the Indian Territory. Buster v. Wright, 82 S.W. 855.

Napoleon B. Maxey, Thomas H. Owen, and William T. Hutchings, for appellants.

David P. Dyer, for appellees.

Before SANBORN, Circuit Judge, and PHILIPS and RINER, District Judges.

SANBORN, Circuit Judge, after stating the case as above, .

The permit tax of the Creek Nation, which is the subject of this controversy, is the annual price fixed by the act of its national council, which was approved by the President of the United States in the year 1900, for the privilege which it offers to those who are not citizens of its nation of trading within its borders. The payment of this tax is a mere condition of the exercise of this privilege. No noncitizen is required to exercise the privilege or to pay the tax. He may refrain from the one and he remains free from liability for the other. Thus, without entering upon an extended discussion or consideration of the question whether this charge is technically a license or a tax, the fact appears that it partakes far more of the nature of a license than of an ordinary tax, because it has the optional feature of the former and lacks the compulsory attribute of the latter.

Repeated decisions of the courts, numerous opinions of the Attorneys General, and the...

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