Baker v. Hammett

• Decision Date: 13 March 1909
• Docket Number: Case Number: 119
• Parties: BAKER v. HAMMETT et al.
• Court: Oklahoma Supreme Court

1909 OK 71

100 P. 1114

23 Okla. 480

BAKER v. HAMMETT et al.

Case Number: 119

Supreme Court of Oklahoma

Decided: March 13, 1909

Syllabus

¶0 1. INDIANS -- Creek Supplemental Agreement -- Treaties -- Time of Taking Effect. August 8, 1902, the date of the proclamation of the President making public announcement of the ratification of the Creek National Council of Act June 30, 1902 (Act June 30, 1902, c. 1323, 32 Stat. 500), commonly known as the "Creek Supplemental Agreement," was the date when the provisions thereof became binding on the United States, the Creek Nation, and all persons affected thereby.

2. TIME -- Computation. Except where a different intention is manifest, the general rule is that, in computing time from after a certain day or date, the first day is to be excluded and the last included to complete the period.

3. WORDS AND PHRASES -- "Form." The word "form," in its literal and restricted sense, generally means exclusive, but it may be used in a connection that means inclusive. In construing it, therefore, courts will take into consideration the context and subject-matter, and construe it to mean either inclusive or exclusive, accordingly as it is influenced by its connection.

4. INDIANS -- Lands -- Alienation -- Removal of Restrictions. The act above referred to provides that citizens shall not alienate the lands allotted to them before the expiration of five years from the date of its approval, to-wit, August 8, 1902. A deed was made on August 8, 1907. Held title was conveyed thereby -- following Taylor v. Brown, 147 U.S. 640, 13 S. Ct. 549, 37 L. Ed. 313.

5. APPEAL AND ERROR -- Error Appearing on Face of Record -- Exceptions and Motion for New Trial Unnecessary. Where an error in judgment appears on the face of the record proper, this court will consider and correct the same, although no motion for new trial was filed, and no exception taken thereto in the trial court.

Error from the United States Court for the Western District of the Indian Territory.

Action by J. N. Baker against Ellis H. Hammett and others, copartners, trading as the Coweta Realty Company. Judgment for defendants, and plaintiff brings error. Reversed and remanded.

Williams & Williams, for plaintiff in error.

Roach & Bradley, for defendants in error.

DUNN, J.

¶1 This action was brought in the United States Court for the Western District of the Indian Territory at Muskogee by plaintiff in error against the defendants in error for the purpose of canceling certain conveyances alleged to be clouds on his title to the W. 1/2 of the S.E. 1/4 and the S.E. 1/4 of the S.E. 1/4 of section 35, township 18 N., range 16 E.; the land being the surplus allotment of a mixed-blood citizen of the Creek Nation. Both plaintiff and defendants hold conveyances from the said allottee, and the answer contained a cross-complaint asking for the cancellation of the deeds held by plaintiff. The conveyance executed to the parties were in the following order. (1) To the defendants in error, July 1, 1907. (2) To the plaintiff in error, July 9, 1907. (3) To the defendant in error, July 27, 1907. (4) To the plaintiff in error, August 8, 1907. (5) To the defendant in error, August 9, 1907. (6) To the plaintiff in error, August 8, 1907. The question presented requires the determination by us of the date on which the Creek supplemental agreement took effect. The court below found for the defendants in error, who were defendants below, and plaintiff appealed, and the case is now before us for consideration.

¶2 The act involved is entitled "An act to ratify and confirm a supplemental agreement with the Creek tribe of Indians, and for other purposes, approved June 30th, 1902." Act June 30, 1902, c. 1323, 32 Stat. 500. The portions of it which are material to this controversy are as follows:

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that the following supplemental agreement, submitted by certain commissioners of the Creek tribe of Indians, as herein amended, is hereby ratified and confirmed on the part of the United States, and the same shall be of full force and effect if ratified by the Creek tribal council on or before the first day of September, nineteen hundred and two, which said supplemental agreement is, as follows:

"This agreement by and between the United States, entered into in its behalf by the Commission to the Five Civilized Tribes, Henry L. Dawes, Tams Bixby, Thomas B. Needles, and Clifton R. Breckenridge, duly appointed and authorized thereunto, and the Muskogee (or Creek) Tribe of Indians, in Indian Territory, entered into in behalf of the said tribe by Pleasant Porter, principal chief, Roley McIntosh, Thomas W. Perryman, Amos McIntosh, and David M. Hodge, commissioners duly appointed and authorized thereunto, witnesseth, that in consideration of the mutual undertakings herein contained it is agreed as follows. * * *

"(16) Lands allotted to citizens shall not in any manner whatever or at any time be encumbered, taken, or sold to secure or satisfy any debt or obligation nor be alienated by the allottee or his heirs before the expiration of five years from the date of the approval of this supplemental agreement. * * *

"(21) This agreement shall be binding upon the United States and the Creek Nation, and upon all persons affected thereby when it shall have been ratified by Congress and the Creek National Council, and the fact of such ratification shall have been proclaimed as hereinafter provided.

"(22) The principal chief, as soon as practicable after the ratification of this agreement by Congress, shall call an extra session of the Creek National Council and submit this agreement, as ratified by Congress to such council for its consideration, and if the agreement be ratified by the National Council, as provided in the Constitution of the tribe, the principal chief shall transmit to the President of the United States a certified copy of the act of the council ratifying the agreement, and thereupon the President shall issue his proclamation making public announcement of such ratification, thenceforward all the provisions of this agreement shall have the force and effect of law.

"Approved June 30, 1902."

¶3 Counsel for defendants in error strenuously insist and argue that the controlling date of approval was June 30, 1902, and that the five-year period of restriction upon the power of the citizens of the Creek Nation to alienate their lands began to run on that date. This argument is based upon section 16, which provides, as we see, that "lands allotted to citizens shall not * * * be alienated by the allottee or his heirs before the expiration of five years from the date of the approval of this supplemental agreement." And that if the word "approval," as contained in this section, did not apply to the date when Congress approved the act, it did relate to the date when the same was approved by the Creek National Council, to wit, July 26, 1902. They insist, however, that defendants in error are entitled to prevail, even should this court find that the correct date was neither of these, but was August 8, 1902, at which time the President issued his proclamation making public announcement of the ratification of the agreement. Counsel for plaintiff in error take the position and argue that the restrictions upon the alienation of this land by their client's grantor were removed on the 7th day of August, 1907, and not before, and that when the deed was executed by the allottee to him on August 8, 1907, it conveyed to him the full legal title; that this was the earliest date that the allottee could convey such title; and that, after having made his conveyance, the one made and delivered to the defendants in error on the day following, to wit, August 9, 1907, conveyed no title. The foregoing succinctly states the contentions of the parties to the controversy. We are not able to agree with counsel for defendants in error on either of the first two propositions--either that the date of June 30, 1902, or July 26, 1902, was the date from which the five-year period should be computed.

¶4 Close scanning of the enacting clause, taken in conjunction with sections 21 and 22, presents, it seems to us, the provisions which must be held to be controlling. Stripping each of these of the verbiage not necessary to be considered for our present purpose, they would then read substantially as follows:

"The following supplemental agreement shall be binding upon the United States and the Creek Nation and upon all persons affected thereby when it shall have been ratified by Congress and the Creek National Council, and the fact of such ratification shall have been proclaimed: * * * if the agreement be ratified by the (Creek) National Council * * * the President shall issue his proclamation making public announcement of such ratification, thenceforward all the provisions of this agreement shall have the force and effect of law."

¶5 From this language it will be noted that the act on the part of the United States was passed subject to and became binding only, after the happening of two contingencies: First, its ratification by the Creek National Council; second, the public announcement thereof by proclamation by the President of the United States. Congress, no doubt, had the power to make as conditions precedent to its validity, binding force and effect the two conditions above named. This being true, until these concurred, in our judgment the act was not binding upon the United States or the Creek Nation, and no one was affected thereby.

¶6 Counsel for defendants in error insist that the word "approval," as used in section 16, must be given some force and effect distinguishable from the word "ratified," as used in sections 21 and 22. On this we are likewise not able to agree with counsel. There is nothing in our judgment in the act itself or in the context and relationship in which the two words are...