Torrey v. Baldwin

• Decision Date: 27 April 1891
• Citation: 3 Wyo. 430,26 P. 908
• Parties: TORREY v. BALDWIN, County Treasurer
• Court: Wyoming Supreme Court

26 P. 908

3 Wyo. 430

TORREY v. BALDWIN, County Treasurer

Supreme Court of Wyoming

April 27, 1891

Reserved case from district court, Fremont county.

The plaintiff, Robert A. Torrey, brought suit on the 3d day of February, 1890, in the district court of the third judicial district of the territory of Wyoming for Fremont county against the defendant M. N. Baldwin, as county treasurer and ex officio collector of taxes for Fremont county. The plaintiff seeks to have certain taxes in the sum of $ 1,262.62 levied and assessed against him on his live-stock horses, and cattle ranging on the Shoshone Indian reservation within the geographical limits of the county of Fremont declared void, and to perpetually enjoin and restrain the defendant as such officer, and his successors in office, from collecting such taxes levied and assessed against him by the board of the county commissioners of the county of Fremont for the year 1889. The petition alleges the levy and assessment of such taxes upon the live-stock of the plaintiff, consisting of horses and cattle, upon an assessed valuation of $ 59,250; that said live-stock were upon the open range, and were during all of said year 1889 ranged and located within and upon said Shoshone Indian reservation situated within the geographical limits of said Fremont county; that the reservation was established pursuant to a treaty between the United States and the eastern band of the Shoshones and the Bannack tribe of Indians, made and concluded at Ft. Bridger, in the territory of Utah, July 3, 1868, which treaty has ever since existed; that plaintiff during said year 1889 was a non-resident of Wyoming; that defendant threatened to levy upon and distrain the property of plaintiff if said tax was not paid. To this petition defendant demurred, assigning two grounds of demurrer: (1) That the court had no jurisdiction of the subject-matter of the action; and (2) that the petition does not state facts sufficient to constitute a cause of action. Upon these pleadings and the issues thereby raised the court below, Hon. A. B. CONAWAY, now one of the justices of the supreme court, presiding, on his own motion, and under the provisions of chapter 66 of the Session Laws of Wyoming for 1888, reserved and sent for decision to this court the said cause and the questions raised by demurrer, and, as is stated in the certificate of the said district court: "Whether the county of Fremont, within the geographical boundaries of which is situated said [Shoshone] Indian reservation, had in the year 1889, any right, authority, or jurisdiction to assess for taxation and levy a tax upon the cattle and horses of the plaintiff, which were during all of that year kept and located upon the said Shoshone Indian reservation; and whether said cattle and horses of the plaintiff, as kept and located upon said reservation during that year, were subject to taxation in said county for that year; and whether said taxes, so levied and assessed upon said property, were void, wrongful, and illegal for the want of authority and jurisdiction to tax the same."

Charles N. Potter, for plaintiff.

A. C. Campbell and Charley Allen, for defendant.

GROESBECK, C. J. CONAWAY and MERRELL, JJ., concur.

OPINION

GROESBECK, C. J., (after stating the facts as above.)

The questions involved in this proceeding were directly passed upon by the supreme court of the late territory of Wyoming when the said Shoshone Indian reservation was a part of Sweetwater county, and before the formation of the county of Fremont from a part of its territory, in the case of Moore v. Board, etc., 2 Wyo. 8, and the broad statement was then judicially announced that the territory of Wyoming was wholly excluded from the exercise of political power over this reservation, either to regulate the intercourse of its subjects with it, or to extend its municipal authority over it. The right to tax any property within the reservation was by this decision emphatically denied. We should be loth, at this late day, to re-examine this question, were it not that since the said decision was made there have been a number of decisions of the federal supreme court passing upon the questions involved, either absolutely or incidentally, which are in direct conflict with the views of the learned judge who delivered the opinion of the supreme court of the territory in the case first cited. Notwithstanding this decision and the later one of Fremont Co. v. Moore (Wyo.) 3 Wyo. 200, 19 P. 438, ^[1] one of the members of that court, while sitting as a district court for Albany county, upon a cause heard and determined by him upon a change of venue from Fremont county, has since held that the county of Fremont, in its corporate capacity, had the right to tax personal property of the plaintiff in this case, the same being live-stock ranging on the Shoshone Indian reservation in Fremont county; and the fact that this matter has been sent to us for decision by another district court shows that these decisions of the territorial supreme court have been boldly challenged by bench, bar, and the public. We should not lightly upset these decisions, however erroneous they may appear to us, unless it satisfactorily appears to our minds that they have not been acquiesced in and considered the settled law of this jurisdiction, so that the doctrine of stare decisis would apply, or because it is impossible to follow them with safety, in the light of a more elaborate discussion of the principles involved, and because they are clearly against the weight of authority and the law governing the case. The treaty with the eastern band of the Shoshones and the Bannack tribe of Indians was made and concluded at Ft. Bridger, Utah, July 3, 1868, and was afterwards ratified by the president and the senate of the United States. 15 U.S. St. 673. There is neither reservation nor exception in this treaty, as was the case in the treaty with the Shawnees and other tribes, whereby the territory embraced within the exterior lines of the reservation should be excluded and excepted out of the state or territory within which the reservation was geographically situated. It was so expressly decided in the case of Langford v. Monteith, 102 U.S. 145, 26 L.Ed. 53, where the error made in the case of Harkness v. Hyde, 98 U.S. 476, 25 L.Ed. 237, was corrected. We quote from the opinion in the former case: "This court, in Harkness v. Hyde, supra, relying upon an imperfect extract found in the brief of counsel, inadvertently inferred that the treaty with the Shoshones, like that with the Shawnees, contains a clause excluding the lands of the tribe from territorial or state jurisdiction. In this it seems we are laboring under a mistake. Where no such clause or language equivalent to it is found in a treaty with the Indians within the exterior limits of Idaho, the lands held by them are a part of the territory, and subject to its jurisdiction, so that process may run there, however the Indians themselves may be exempt from that jurisdiction. As there is no such treaty with the Nez Perces tribe, on whose reservation the premises in dispute are situated, and as this is a suit between white men, citizens of the United States, the justice of the peace had jurisdiction of the parties, if the subject-matter was one of which he could take cognizance." The court further decided that the reservation which was provided for in the Shoshone treaty was not excepted out of the territory of Idaho. The organic act of the territory of Wyoming, approved July 25, 1868, contains the following exception and reservation relating to the rights of Indians, and no other, viz.: "Provided, that nothing in this act shall be construed to impair the rights of person or property now pertaining to Indians in said territory, so long as such rights shall remain unextinguished by treaty between the United States and such Indians." The proviso afterwards inserted in the Revised Statutes of the United States, (section 1839,) is nearly the same as that contained in the organic acts of the territories of Idaho, Dakota, and probably of other territories, organized prior to the creation of the territory of Wyoming, thus plainly indicating that the remainder of the proviso which appears in the organic act of these older territories was studiously and for a purpose omitted in the organic act of Wyoming. Section 1839 of the Revised Statutes of the United States reads as follows: "Nothing in this title shall be construed to impair the rights of persons or property pertaining to the Indians in any territory so long as such rights remain unextinguished by treaty between the United States and such Indians, or to include any territory which by treaty with any Indian tribe is not, without the consent of such tribe, embraced within the territorial limits or jurisdiction of any state or territory; but all such territory shall be excepted out of the boundaries and constitute no part of any territory now or hereafter organized, until such tribe signifies its assent to the president to be embraced within a particular territory." The only substantial differences in the phraseology between the organic acts of the territories other than Wyoming and this section just quoted are that the words "to be included" are stricken out of the organic acts, and the word "embraced" inserted in lieu thereof in the section; and the clause: "Or to affect the authority of the government of the United States to make any regulations respecting such Indians, their lands, property, or other rights, by treaty, law, or otherwise, which it would have been competent for the government to make if this act had never been passed," --is also stricken out, but is substantially re-enacted in section 1840, Rev. St. U.S. It will be...