Thomas v. Gay Gay v. Thomas

• Decision Date: 21 February 1898
• Docket Number: Nos. 287 and 439,s. 287 and 439
• Citation: 18 S.Ct. 340,42 L.Ed. 740,169 U.S. 264
• Parties: THOMAS et al., County Com'rs, v. GAY et al. GAY et al. v. THOMAS et al., County Com'rs
• Court: U.S. Supreme Court

169 U.S. 264

18 S.Ct. 340

42 L.Ed. 740

THOMAS et al., County Com'rs,

v GAY et al.

GAY et al.

v. THOMAS et al., County Com'rs.

Nos. 287 and 439.

February 21, 1898.

These are cross appeals from the supreme court of the territory of Oklahoma. 46 Pac. 578. The facts, as stated in the opinion of the court below, were as follows:

The appellants are nonresidents of the territory of Oklahoma, and owners of large herds of cattle that were kept and grazed, during a portion of the year 1895, in parts of the Osage Indian reservation in this territory

The appellees are the board of county commissioners, treasurer, and sheriff of Kay county, Oklahoma territory.

On the third Monday in February, 1894, the supreme court of the territory of Oklahoma, by an order entered on the journals of said court, attached to said county of Kay, for judicial purposes, all the Kaw or Kansas Indian reservation and all of the Osage Indian reservation north of the township line dividing townships 25 and 26 N. All of said reservations so attached to said Kay county for judicial purposes by such order are without the boundaries of said Kay county as established by the governor, and are not within the boundaries of any organized county of this territory. Said territory so attached to said county of Kay for judicial purposes is comprised wholly of lands owned and occupied by Indian tribes, and consists principally of wild, unimpro ed, and unallotted lands used for grazing purposes. That plaintiffs in error during the year 1895, and during the month of April of said year, drove, transported, and shipped to the ranges and pastures in that part of said Osage Indian reservation attached to said Kay county for judicial purposes, as aforesaid, large herds and numbers of cattle, which were taken to said reservation in pursuance and by virtue and authority of certain leases to plaintiffs in error for grazing purposes made by the Osage tribal government under the supervision of the agent in charge of said tribe, and upon the ratification and approval of the commissioner of Indian affairs and of the secretary of the interior, and said cattle of said plaintiffs in error were on the 1st day of May kept and grazed on that part of said Indian reservation attached to said Kay county for judicial purposes, as aforesaid.

By an act approved March 5, 1895, the legislative assembly of the territory of Oklahoma amended Section 13, art. 2, c. 70, St. Okl., relating to revenue, so that the same reads as follows: 'That when any cattle are kept or grazed or any other personal property is situated in any unorganized county, district or reservation of this territory, such property shall be subject to taxation in the organized county to which said county, district or reservation is attached for judicial purposes;' and authorized the board of county commissioners of the organized county or counties to which such unorganized county, district, or reservation is attached to appoint a special assessor each year, whose duty it should be to assess such property, and conferred upon such special assessor all the powers and required him to perform all the duties of a township assessor. The assessor so provided for was required to begin and perform his duties between the 1st day of April and the 25th day of May of each year, and to complete his duties and return his tax lists on or before June 1st, and the property therein authorized to be assessed, it was provided, should be valued as of May 1st, each year.

In pursuance of the provisions of said act, the county commissioners of said Kay county did duly appoint a special assessor for the year 1895 to assess such cattle as were kept and grazed, and any other personal property situated in the unorganized country and parts of Indian reservations attached to said Kay county for judicial purposes, and said special assessor did, by virtue of said appointment, assess all the personal property in the territory so attached to the county of Kay for judicial purposes, including all of the cattle of the said appellants kept and grazed in said reservation on the 1st day of May, 1895. The said special assessor assessed the property of these appellants so located on said territory attached to said county of Kay for judicial purposes, as aforesaid, and returned the same upon an assessment roll at the total valuation of $760,469. That thereafter the said sum was, by the clerk of said county, carried into the aggregate assessment for said county, and by him certified to the auditor of the territory. That the territorial board of equalization, in acting upon the various assessments of the various counties as certified to said board, raised the aggregate valuation of the property returned for taxation upon the tax rolls of said county of Kay 35 per cent., and the county clerk for said county carried out the raised valuation so certified to him by said territorial board of equalization against the property of these appellants, and made the aggregate valuation of such property $1,026,634. Thereafter the territorial board of equalization levied and duly certified to the county clerk of the county of Kay tax levies for territorial purposes for the year 1895 as follows: General revenue, three mills on the dollar; university fund, one-half mill on the dollar; normal school fund, one-half mill on the dollar; bond interest fund, one-half mill on the dollar; board of education fund, one-half mill on the dollar.

That the board of county commissioners for the county of Kay made the following levies for the year 1895: For salaries, five mills on the dollar; for contingent expenses, three mills on the dollar; for sinking fund, one and one-half mills on the dollar; for court expenses, two and one-half mills on the dollar; for county supplies, three mills on the dollar; for road and bridge fund, two mills on the dollar; for poor fund of said county, one mill on the dollar; for county school fund of said county, one mill on the dollar.

The county clerk of said county of Kay carried the valuation of the property of these plaintiffs in error upon the tax rolls of said county, and against the same extended the levies as aforesaid, and charged against the property of these plaintiffs in error in the aggregate the sum of $26,174.16.

Before these taxes became delinquent, plaintiffs in error began to remove or attempted to remove their respective property from the territory attached to Kay county for judicial purposes and beyond the limits of Oklahoma territory. The treasurer of said Kay county issued tax warrants for the several amounts of taxes levied against the property of each of said plaintiffs in error, and delivered the same to the sheriff of said county for execution. Said sheriff seized certain property of each of appellants by virtue of such tax warrants. The appellants filed their several petitions in the district court of Kay county, and, on application, obtained injunctions restraining the appellees from making any further attempt to collect such taxes. Afterwards, on motion, the several actions were consolidated into one. To the petition filed in such consolidated action the defendants in error filed a general demurrer. At the hearing, the district court sustained the demurrer in part and overruled it in part, holding that all of the levies made for territorial purposes and the county levy for court expenses were valid, and as to those levies the injunction was dissolved, and as to all of the other county levies such injunctions were made perpetual. From that part of the order and judgment of the court, dissolving the injunction as to the territorial taxes and the one county fund levy, plaintiffs appealed. From that part perpetuating the injunction as to all of the county levies, except that for court expenses, the defendants appealed and filed their cross petitions in error, and the case was taken to the supreme court of the territory. In that court the judgment of the district court was affirmed. Three of the four judges, who sat in the case, agreed in holding that the taxes levied for territorial and court expense funds were valid; two were of opinion that the balance of the taxes were unauthorized; one was of opinion that all the taxes were validly levied; and the fourth judge dissented in toto. From that judgment of the supreme court of the territory both parties appealed to this court.

Henry E. Asp and J. W. Shartel, for Gay & Reed and others.

J. F. King, for Thomas and others.

H. S. Cunningham, for territory of Oklahoma.

Mr. Justice SHIRAS, after stating the facts in the foregoing language, delivered the opinion of the court.

It is claimed that the legislative assembly of the territory of Oklahoma was without power to enact the law of March 5, 1895, providing for the taxing of cattle grazing upon the Indian reservations under leases granted by the Indians, because, both before and since the creation of said territory, exclusive jurisdiction over said Indians and their lands, and over all matters in any way affecting them, or in which they are interested, is in the United States.

It is, indeed, true that the lands in question, constituting the reservations of the Osage and Kansas Indians, are portions of lands previously granted by patent of the United States, in pursuance of the treaty of May 6, 1828 (7 Stat. 311), and of the treaty of December 29, 1835 (7 Stat. 478), to the Cherokee Nation of Indians, and that it was provi ed, in those treaties that the lands so granted should not, without the consent of the Indians, at any future time be 'included within the territorial limits or jurisdiction of any state or territory.'

In the subsequent treaty with the Cherokees of July 19, 1866 (14 Stat. 799, 804), it was stipulated that the United States might 'settle friendly Indians in any part of the Cherokee country west of the 96th degree, to be taken in a compact form, in quantity not exceeding 160 acres for each member of each of said...