Frazier v. Goddard

• Citation: 63 F. Supp. 696
• Decision Date: 27 October 1945
• Docket Number: No. 986.,986.
• Parties: FRAZIER et al. v. GODDARD et al.
• Court: U.S. District Court — Eastern District of Oklahoma

63 F. Supp. 696

FRAZIER et al. v. GODDARD et al.

No. 986.

District Court, E. D. Oklahoma.

October 27, 1945.

H. A. Ledbetter, of Ardmore, Okl., for plaintiffs.

Stephen A. George, of Ardmore, Okl., for defendant C. B. Goddard.

R. A. Howard, of Ardmore, Okl., for defendants Erlewine et al.

Marvin Shilling, Asst. U. S. Atty., of Muskogee, Okl., for the United States.

RICE, District Judge.

As this case progresses along its course, it becomes more difficult. The first judgment entered herein on January 19, 1944, after the opinion of the Circuit Court in United States v. D. B. Hellard, 10 Cir., 138 F.2d 985, was in favor of the defendants. After the decision of the Supreme Court in United States v. D. B. Hellard, 322 U.S. 363, 64 S.Ct. 985, 88 L.Ed. 1326, the Government filed in the Circuit Court a motion to reverse the judgment herein and remand to this Court for further proceedings not inconsistent with the opinion of the Supreme Court in the Hellard Case; which motion was granted by the Circuit Court. The mandate of the Circuit Court contains the following language: "It is now here ordered by the Court that said motion be and the same is hereby granted, and that said judgment of the United States District Court for the Eastern District of Oklahoma, in the above entitled, cause be and the same is hereby reversed and the cause be and the same is hereby remanded to the United States District Court for the Eastern District of Oklahoma for further proceedings not inconsistent with the opinion of the Supreme Court of the United States in its Case No. 648, October Term, 1943, United States of America, vs. D. B. Hellard (emphasis supplied) without prejudice to the right of appellees to have the trial court rule upon their contention that the presence of the Probate Attorney in the partition proceedings operated to bind the United States."

On May 8, 1945, after a hearing and after ruling adversely upon defendants' contention (made in the first trial but not ruled upon by the court) "that the presence of the Probate Attorney in the partition proceedings operated to bind the United States", judgment was entered herein in favor of plaintiffs and intervenor, United States of America. In doing so, the Court was endeavoring to proceed as directed, to-wit: "not inconsistent with the opinion of the Supreme Court" in the Hellard Case.

While motion for new trial was pending and on July 2, 1945, Congress passed and the President approved Public Law No. 116, 59 Stat. 313, 25 U.S.C.A. § 355 note, Section 3 of which is as follows: "That no order, judgment, or decree in partition made, entered, or rendered subsequent to the effective date of the Act of June 14, 1918 (40 Stat. 606), and prior to the effective date of this Act, and involving inherited restricted lands of enrolled and unenrolled members of the Five Civilized Tribes, shall be held null, void, invalid, or inoperative, nor shall any conveyance of any land pursuant to such order, judgment, or decree be held null, void, invalid, or inoperative because the United States was not a party to such order, judgment, or decree, or to any of the proceedings in connection therewith, or because the United States, its agents, or officers, or any of them, was not served with any notice or process in connection therewith, and all such orders, judgments, decrees, and conveyances, which are subject to attack solely by reason of any of the infirmities enumerated by this section, are hereby confirmed, approved, and declared valid." And the defendants now urge as an additional grounds for a new trial, said Act of Congress. The other matters urged for new trial are, in my judgment, not well taken, but the effect of this new law presents a wholly new and difficult problem.

The plaintiffs allege that Public Law No. 116 is not constitutional being contrary to the due process clause of the Fifth Amendment. In the event it is held to be constitutional, the mandate of the Circuit Court of Appeals presents a second problem for this Court.

First, is the Act of Congress valid or constitutional? A trial court is reluctant to say that any law enacted by Congress and approved by the President is unconstitutional. Such an act carries with it a presumption of constitutionality, and a heavy burden is upon him who asserts unconstitutionality to show that it is a violation of the Constitution. Bradley v. Richmond, 227 U.S. 477, 33 S.Ct. 318, 57 L.Ed. 603; Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L.Ed. 714, 13 L.R.A.,N.S., 932, 14 Ann.Cas. 764; Smeltzer v. St. Louis & S. F. R. Co., C.C.Ark., 158 F. 649.

Public Law No. 116 is in the nature of curative legislation. It is entitled "An Act to validate titles to certain lands conveyed by Indians of the Five Civilized Tribes * * * and to validate State court judgments in Oklahoma and judgments of the United States District Courts of the State of Oklahoma." Section 3 thereof was designed and intended to cure the defect occasioned by the failure to make the United States a party to a partition proceeding begun by full blood Indian heirs in the courts of Oklahoma. It was this failure that caused a reversal by the Supreme Court in United States of America v. Hellard. Such legislation is not unusual, and is generally sustained. W. P. McFaddin and McFaddin Executors v. Evans-Snider-Buel Co. et. al., 185 U.S. 505, 22 S.Ct. 758, 46 L.Ed. 1012; Rafferty v. Smith, Bell & Co., Ltd., 257 U.S. 226, 42 S.Ct. 71, 66 L.Ed. 208; United States v. Heinszen, 206 U.S. 370, 27 S.Ct. 742, 51 L.Ed. 1098, 11 Ann.Cas. 688; Chicago, R. I. & P. R. Co. v. Austin, 63 Okl. 169, 163 P. 517, L.R.A.1917D, 666; Scott v. Morris Nat. Bank, 109 Okl. 276, 235 P. 912; certiorari denied, 269 U.S. 646, 46 S.Ct. 487, 70 L.Ed. 1130; McIntosh v. Dill, 86 Okl. 1, 205 P. 917. The above authorities sustain the proposition that curative acts apply to pending proceedings and may be retroactive.

"Curative acts apply to pending proceedings. It is truly said that the bringing of a suit vests in a party no right to a particular decision, and his case must be determined on the law as it stands, not when the suit was brought, but when the judgment is rendered. It is no objection to a curative act that it validates what has previously been declared invalid in a judicial proceeding. The judgment may furnish the occasion for the act. Of course, the Legislature cannot annul or set aside the judgment of a court, but it can remove a defect on which the judgment proceeded."

2 Lewis' Sutherland, Stat.Const. 1237; Chicago, R. I. & P. R. Co. v. Austin, supra. See also Smallwood v. Gallardo, 275 U.S. 56, 48 S.Ct. 23, 72 L.Ed. 152; Home Savings & Loan Ass'n v. Plass, 9 Cir., 57 F. 2d 117; Brown v. Truscott, Tex.Com.App., 34 S.W.2d 837.

Congress by legislation may cure any defect in proceedings occasioned by a failure to take some step, which it might have dispensed with by prior statute. See Cooley on Constitutional Limitations, 3d Ed., 371. Mr. Justice Hardy in Chicago, R. I. & P. R. Co. v. Austin 63 Okl. 169, 163 P. 519, expressed the same thought as follows: "In consideration of legislation of this character the important question to be considered in determining its validity and effect is to ascertain whether the acts which it attempted to validate would be effectual for the purposes intended if a valid law enacted prior to the doing thereof had directed that they be done as they were done. In such cases the authority of the Legislature to validate them thereafter is well established, and rights predicated, upon such curable defects are not deemed meritorious nor entitled to the protection ordinarily accorded to vested rights. 2 Lewis' Sutherland, Stat.Const. 1232."

It is not objectionable that the change was made effective retroactively. McFaddin v. Evans-Snider-Buel Co. 185 U.S. 505, 22 S.Ct. 758, 46 L.Ed. 152. Only ex post facto laws are barred by the Constitution and this does not include civil actions. Bankers Trust Co. v. Blodgett, 260 U.S. 647, 43 S.Ct. 233, 67 L.Ed. 439; Locke v. New Orleans, 4 Wall. 172, 18 L. Ed. 334.

It must also be remembered that in passing Public Law No. 116, Congress was operating in a field wherein it has plenary power. It is a field in which Congress is supreme. Brader v. James, 246 U.S. 88, 38 S.Ct. 285, 62 L.Ed. 591; Tiger v. Western Investment Co., 221 U.S. 286, 31 S.Ct. 578, 55 L.Ed. 738; Winton v. Amos, 255 U.S. 373, 41 S.Ct. 342, 65 L.Ed. 684; United States v. Sandoval, 231 U.S. 28, 34 S.Ct. 1, 58 L.Ed. 107; Stephens v. Cherokee Nation, 174 U.S. 445, 19 S.Ct. 722, 43 L.Ed. 1041; Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S.Ct. 216, 47 L.Ed. 299. United States v. Hellard, supra. It may not be doubted that Congress had the power in the first place to dispense with the necessity of the Government being a party to the partition proceedings authorized by Act of June 14, 1918, 25 U.S. C.A. § 355, 40 Stat. 606. Indeed, it was the consensus of opinion of the courts and lawyers of Oklahoma, prior to the Hellard opinion, that Congress had done just that. And Congress has the same power to alter, relax, and entirely remove restrictions which it had to impose them, and it can accomplish by ratification what it could have authorized in the first place. United States v. Heinszen, supra.

Since Section 3 of the Act in question was designed to cure certain defects discussed in United States v. Hellard, it is appropriate to examine that opinion and see just what the Supreme Court said. It confirmed the jurisdiction of the Oklahoma State courts to partition lands inherited by full blood Indians, Act of June 14, 1918, 25 U.S.C.A. § 355, 40 Stat. 606, and the authority of Congress to select state tribunals to perform such functions. The partition proceedings involved therein were begun and completed in a state court without service of the notice upon the Superintendent for the Five Civilized Tribes as provided in Section 3 of Act of April 12, 1926, 44 Stat. 239, 240. And concerning that,...