Frazee v. Spokane County

• Decision Date: 28 July 1902
• Court: Washington Supreme Court
• Parties: FRAZEE et al. v. SPOKANE COUNTY et al.

69 P. 779

29 Wash. 278

FRAZEE et al. v. SPOKANE COUNTY et al.

Supreme Court of Washington

July 28, 1902

Appeal from superior court, Spokane county; Geo. W. Belt, Judge.

Action by Gregorie Frazee and wife against Spokane county and its treasurer. Judgment for plaintiffs. Defendants appeal. Affirmed.

Horace Kimball and Miles Poindexter, for appellants.

Graves & Graves, for respondents.

HADLEY J.

This action was brought by respondents against appellants to remove a cloud of taxes heretofore levied against respondents' real estate, to cancel certificates of delinquency already issued thereon, and to enjoin the levy and collection of taxes against said land for the year 1901. The complaint alleges that respondents are husband and wife that they are Indians, formerly members of the Spokane tribe but previous to the entry and patent hereinafter mentioned they severed their tribal relations, and have never since resumed them; that on or about March 6, 1883, they settled upon and made entry of certain described lands situate in Spokane county under the provisions of the homestead act of congress of 1862; that thereafter, on May 31, 1890, they made proof of their compliance with the provisions of the homestead laws, and made payment for such lands as is required by said laws, and on said date received the final certificate of the receiver of the land office that they had fully complied with the provisions of the law that thereafter, on December 11, 1891, a patent was issued to them, and at all times since said date they have been, and now are, living upon said land, and cultivating it as their home; that they earned their lands and made final proof of their right thereto under and by virtue of the provisions of the act of congress of July 4, 1884, entitled 'An act making appropriations for the current and contingent expenses of the Indian department, and for fulfilling treaty stipulations with various Indian tribes for the year ending June 30, 1885, and for other purposes,' and particularly under paragraph 5 thereof, which paragraph is as follows: 'That such Indians as may be now located on public lands, or as may, under the direction of the secretary of the interior, or otherwise, hereafter, so locate may avail themselves of the provisions of the homestead laws as fully and to the same extent as may now be done by citizens of the United States; and to aid such Indians in making selections of homesteads and necessary proofs at the proper land offices, one thousand dollars, or so much thereof as may be necessary, is hereby appropriated, but no fees or commissions shall be charged on account of said entries or proofs. All patents therefor shall be of legal effect, and declare that the United States does and will hold the lands thus entered for the period of twenty five years, in trust for the sole use and benefit of the Indian by whom such entry shall have been made, or in case of his decease, of his widow and heirs according to the laws of the state or territory where such land is located, and that at the expiration of said period the United States shall convey the same by patent to said Indian, or his widow and heirs as aforesaid, in fee, discharged of said trust and free of all charge or incumbrance whatsoever;' that nevertheless, in disregard of the rights of respondents under and by virtue of said laws, the executive officers of the United States purported to issue to them a patent for the lands under and by virtue of the provisions of the act of congress of January 18, 1881, relating to transactions with the Winnebago Indians of Wisconsin, and did not issue to them a patent as is provided in the act of 1884 above mentioned. Allegations are also made to the effect that the taxing officers of Spokane county have levied taxes against the lands, that certificates of delinquency therefor are held by defendant Witherspoon, and that the officers are threatening to levy taxes for the year 1901, which, if carried out on the tax rolls, will appear as an apparent lien against the lands. It is also alleged that prior to the commencement of this suit the respondents applied to the department of justice of the United States for the district of Washington for the institution of a suit to cancel said taxes, or that the United States would join with respondents in a suit to cancel them, but their request was denied. Appellants demurred generally to the foregoing complaint, and the demurrer was by the court overruled, to which appellants excepted. Thereupon an answer was filed, and thereafter respondents moved for judgment as prayed upon the pleadings, which motion was granted. After the granting of the motion, appellants made application for leave to amend their answer, which was denied. They then moved to vacate the judgment rendered on the pleadings, and for a new trial, which was also denied, and they have appealed to this court.

The only errors assigned are upon the order overruling the demurrer and upon the order granting judgment upon the pleadings. The latter assignment was not discussed in appellants' opening brief, and, although discussed in respondents' brief, is barely referred to in appellants' reply brief. Appellants' counsel evidently adopted the view that the real controversy here is involved in the order overruling the demurrer. In this view we concur, and will confine ourselves to a discussion of that subject, without occupying the necessary space to discuss the other subject. We may say in passing, however, that, as we view the matter, if the complaint states a cause of action, then we think the answer does not tender any issue thereunder.

It is averred in the complaint and is conceded by appellants that the executive officers of the United States erroneously stated in the patent to respondents that it was issued under and by virtue of the provisions of the act of congress of January 18, 1881. The error is manifest, since that act relates only to transactions with the Winnebago Indians of Wisconsin, and respondents are of a different tribe. Under the provisions of that act, the patents contain a limitation that the lands patented shall be exempt from taxation of any character and shall remain inalienable for the period of 20 years. Such a limitation in a patent issued to an Indian of the Coeur d'Alene tribe was held void in U.S. v. Saunders (C. C.) 96 F. 268, and for the reasons there assigned the limitation stated in the respondents' patent is also void.

Appellants contend that the patent shall be given full force and effect as it reads without the void clause, and that there exist no limitations against taxation or alienation; while respondents' position is that, since they are Indians, the patent should have contained the limitation provided by the act of congress of July 4, 1884 (23 Stat. 76; 1 Supp. Rev. St. U.S. [2d Ed.] 450), heretofore quoted, as set out in the complaint. The above statute, it will be observed, provides for the issuance of two patents,--one when a person entitled to it under the act shall have consummated his right, and which shall declare a trust under which the United States shall hold the land for the period of 25 years for the sole use and benefit of the patentee and his heirs, and another shall be issued at the expiration of 25 years, conveying the whole title, discharged of the trust and of all charge or incumbrance whatsoever. Respondents urge that they were entitled to receive the patent containing the above limitations, under which they could rely upon receiving a perfect title at the end of 25 years, unincumbered and unaffected by the acts of themselves or others, and, further, that they have not lost the privilege conferred upon them by the act through the action of the officers of the land department in issuing a patent other than that which they were entitled to receive. The power to declare the manner of disposing of public lands, and of fixing limitations affecting the title thereto, lies with congress. U.S. v. Gratiot, 14 Pet. 526, 10 L.Ed. 573; Bagnell v. Broderick, 13 Pet. 436, 10 L.Ed. 235; U.S. v. Fitzgerald, 15 Pet. 407, 10 L.Ed. 785; Emblen v. Land Co. (C. C.) 94 F. 710; U.S. v. Tichenor (C. C.) 12 F. 415. It follows that no officer of the government has power to dispose of public lands without authority of congress, and he cannot waive the conditions and limitations provided by congress to attend the conveyance of such lands. Deffeback v. Hawke, 115 U.S. 392, 6 S.Ct. 95, 29 L.Ed. 423; Davis v. Weibbold, 139 U.S. 507, 11 S.Ct. 628, 35 L.Ed. 238. In Taylor v. Brown (Dak.) 40 N.W. 525, a patent had been issued to a Sioux Indian who had abandoned his tribal relations, and who had earned his lands under an act of congress of 1875 (18 Stat. 420), which made the land inalienable for a period of five years. The patent did not show that he was an Indian, and contained no limitation on alienation. The court held that the act of the executive officers in issuing the patent without words of limitation could not affect the limitation prescribed by congress, and that purchasers from the patentee were chargeable with knowledge of the limitations imposed upon his title by the act of congress. The decision was rendered by a territorial court, but it was cited with approval in Eells v. Ross, 12 C. C. A. 205, 64 F. 417. The case was also appealed to the supreme court of the United States ( Taylor v. Brown, 147 U.S. 640, 13 S.Ct. 549, 37 L.Ed. 313), and, although the proposition was not discussed, yet the judgment was affirmed, and the correctness of the ruling at least impliedly recognized. If, then, respondents were originally entitled to a patent under the provisions of the act of July 4, 1884, they are now entitled to the privileges and protection afforded them by that law.

App...