State v. Okanogan County

• Decision Date: 13 August 1929
• Docket Number: 21875.
• Parties: STATE ex rel. HUNT v. OKANOGAN COUNTY et al.
• Court: Washington Supreme Court

280 P. 31

153 Wash. 399

STATE ex rel. HUNT v. OKANOGAN COUNTY et al.

No. 21875.

Supreme Court of Washington

August 13, 1929

Department 2.

Appeal from Superior Court, Okanogan County; W. O. Parr, Judge.

Mandamus proceeding by the State, on the relation of Ward Hunt against Okanogan County and others. From an adverse judgment relator appeals. Reversed, with directions.

L. B Donley, of Olympia, Wentz & Bailey, of Colville, and Ward Hunt, of Seattle, for appellant.

H. A. Davis, of Okanogan, and Marion Edwards, of Seattle, for respondents.

PARKER J.

This is, in form, a statutory mandamus proceeding instituted in the superior court for Okanogan county, wherein the relator, Ward Hunt, seeks a judgment of the superior court for that county in the form of a writ of mandate directing the commissioners of the county to allow his claim of compensation for services rendered to it, directing the issuance of a warrant therefor by the auditor of the county, when so allowed, and directing the treasurer of the county to pay such warrant, when so issued. The claim of the relator against the county is for services commenced and rendered to it by his assignor in pursuance of his contract with the county and completed by relator in pursuance of an assignment of that contract to him, with the approval of the county commissioners, by which he succeeded to all of the rights of his assignor and assumed all of the employment obligations of service contracted to be rendered by his assignor. The service in question, in brief, was the compilation and preparation of a large amount of data and of argument, and presentation thereof to the Department of the Interior, and in turn to Congress, in support of the claim of Okanogan county that it is equitably entitled to payment from the United States of a sum equal to the amount of taxes legally chargeable by the county, during the years 1901 to 1925, inclusive, against allotted Indian lands within the county, had such lands not been exempt by Congress from taxation during those years. Trial upon the merits as a civil action in the superior court sitting without a jury, no jury being demanded by either party, resulted in findings and judgment denying to the relator any recovery, from which he has appealed to this court.

In the year 1872 there was, by executive order of the President of the United States, set apart as a reservation for the Indians a large tract of land lying in the northeasterly portion of the territory, now state, of Washington. In the year 1888 Okanogan county was created by act of the Legislature of the territory of Washington (Laws of Territory 1887-88, p. 70). A large portion of the lands so set aside as a reservation for the Indians lies within the boundary of Okanogan county so created and as existing territorially up to the present time. In June, 1892, an act of Congress was passed and became effective, reading, in so far as need be here noticed, as follows:

'Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that subject to the reservations and allotment of lands in severalty to the individual members of the Indians of the Colville Reservation in the State of Washington herein provided for, all the following described tract or portion of said Colville Reservation, namely: * * * The same being a portion of the Colville Indian Reservation created by executive order dated July second, eighteen hundred and seventy-two, be, and is hereby, vacated and restored to the public domain, notwithstanding any executive order or other proceeding whereby the same was set apart as a reservation for any Indians or bands of Indians, and the same shall be open to settlement and entry by the proclamation of the President of the United States and shall be disposed of under the general laws applicable to the disposition of public lands in the State of Washington.

'Sec. 2. That the net proceeds arising from the sale and disposition of the lands to be so opened to entry and settlement shall be set apart in the Treasury of the United States for the time being, but subject to such future appropriation for public use as Congress may make, and that until so otherwise appropriated may be subject to expenditure by the Secretary of the Interior from time to time, in such amounts as he shall deem best, in the building of schoolhouses, the maintenance of schools for such Indians, for the payment of such part of the local taxation as may be properly applied to the lands allotted to such Indians, as he shall think fit, so long as such allotted lands shall be held in trust and exempt from taxation, and in such other ways as he may deem proper for the promotion of education, civilization, and self-support among said Indians.

'Sec. 3. That each entryman under the homestead laws shall, within five years from the date of his original entry and before receiving a final certificate for the land covered by his entry, pay to the United States for the land so taken by him, in addition to fees provided by law, the sum of one dollar and fifty cents per acre. * * *

'Sec. 4. That each and every Indian now residing upon the portion of the Colville Indian Reservation hereby vacated and restored to the public domain, and who is so entitled to reside thereon, shall be entitled to select from said vacated portion eighty acres of land, which shall be allotted to each Indian in severalty. * * *' U.S. Statutes, vol. 27, Fifty-Second Congress, c. 140, p. 62.

Under the provisions of that act of Congress, some 220 allotments of land within the portion of the reservation so restored to the public domain were selected by and awarded to individual Indians in severalty, and accordingly by the United States conveyed to the several allottees, which conveyances were attended by such restrictions under this and other acts of Congress as prevented the county taxing authorities from levying taxes upon the lands so allotted and conveyed to the Indians, during the period here in question. The opening to settlement by allotment to the Indians in severalty, and otherwise as provided by general laws to other citizens, caused that portion of the reservation to be brought under the jurisdiction of the local civil government of the state and county. This jurisdiction was then assumed by the county authorities, extending over that territory the usual benefits of civil government, such as police and court protection of all persons and property therein, including the persons and property of the Indian allottees, the building and maintaining of roads, the establishment and maintenance of public schools, etc. This, it is plain, the county did, and has continued to do up to the present time, without receiving any tax contribution from the allotted Indian lands. This, in substance, constitutes the equitable and moral foundation of the county's claim against the United States.

Clair Hunt is a civil engineer of long experience, and he is also a man of extensive experience in Indian affairs, especially in the allotment of Indian lands in severalty and in his acquaintance with the laws of the United States relating thereto. In March, 1920, the commissioners of Okanogan county contemplated making a claim against the United States, through the Department of the Interior, and in turn to Congress, for an appropriation, if necessary, for payment to the county of money from the United States in lieu of taxes which would have been paid the county upon the allotted Indian lands in question had they not been exempt from taxation. Looking to that end, an employment contract was entered into between the county and Clair Hunt, reading, in so far as need be here noticed, as follows:

'This agreement, Made and entered into this 16th day of March, 1920, by and between Okanogan County, a municipal corporation of the State of Washington, acting by and through its duly elected, qualified and acting Board of County Commissioners, the party of the first part, and Clair Hunt of Colville, Washington, the party of the second part. Witnesseth: (Here follow whereas recitals setting forth facts inducing the making of the contract, in a large measure as already related).

'Now, therefore, the said Okanogan County, party of the first part, acting by and through its duly qualified Board of County Commissioners in meeting assembled, for and in consideration of the promises and of the covenants and agreements of the party of the second part hereinafter contained, does hereby engage and employ said party of the second part to act for and represent said Okanogan County in recovering or procuring of and from the United States Government reimbursement for the moneys expended as aforesaid in whole or in part, and in recovering and procuring from the said United States Government any and all moneys justly due or to become due Okanogan County on account of said allotted Indians, Indian lands, or in lieu of taxes on said allotted Indian lands, or any other sums so recovered on any account whatsoever by reason of such allotted lands.

'And the said party of the first part further promises and agrees to pay and compensate the said party of the second part for and on account of said services to be rendered by him as aforesaid fifty per cent of all moneys which may be recovered as reimbursement for years preceding 1926 by the said party of the second part or through or on account of his efforts whether said moneys are procured by appropriation of Congress or otherwise; and the party of the first part does hereby further agree that the party of the second part shall have all necessary aid and assistance of the officers and employees of the said Okanogan County in procuring the necessary data and information in...