Utah Ry Co v. Fisher

Decision Date14 December 1885
PartiesUTAH & N. RY. CO. v. FISHER, Assessor, etc. 1 Filed
CourtU.S. Supreme Court

John F. Dillon and A. J. Poppleton, for appellants.

Jos. K. McCammon, for appellee.


The plaintiff became a corporation of Utah under an act of the territory of February 12, 1869, for the incorporation of railroad companies; and by the act of Congress of June 20, 1878, it was made a railway corporation, not only of that territory, but of Idaho ahd Montana also, with the same rights and privileges it had under its original articles of incorpora- tion, with a proviso, however, that it should thereafter be subject to all laws and regulations in relation to railroads of the United States, or of any territory or state through which it might pass. 20 St. c. 362, § 2. It now owns and operates in Idaho a railroad, which, for the distance of 69 miles and a fraction of a mile, passes through a tract of land in the county of Oneida, known as the 'Fort Hill Indian Reservation,' which was on the thirtieth of July, 1869, set apart by order of the president for the Bannock tribe of Indians, pursuant to the provisions of a treaty between the United States and the eastern band of Shoshonees and the Bannock tribe, concluded July 3, 1868. 15 St. 673.

In 1882 there was levied under the laws of the territory upon the railroad, its depots, and other property within the reservation, for territorial and county purposes, a tax, amounting in the aggregate to $4,478. The defendant is the assessor and tax collector of the county, and the tax having become delinquent, he was proceeding to enforce it by a sale of the property, when the plaintiff commenced this suit in the district court of the county to restrain him, contending that the property being within the boundaries of the Indian reservation is withdrawn from the jurisdiction of the territory. A preliminary injunction was granted, but at the hearing the court held that the property was subject to taxation, and that the tax was duly levied. The injuction was accordingly dissolved and judgment rendered for the defendant. On appeal to the supreme court of the territory this judgment was affirmed.

The contention of the plaintiff is that the Indian reservation is excluded from the limits of Idaho by the act of March 3, 1863, creating the territory; or that it is necessarily excepted from the jurisdiction of the territory by the treaty of July 3, 1868. Neither position can be sustained. The first section of that act embraces within the boundaries of the territory the reservation; and the proviso upon which the plaintiff relies only declares that nothing shall be construed to impair the existing rights of the Indians in Idaho, so long as they shall remain unextinguished by treaty, or to include within its boundaries or jurisdiction any lands which, by treaty with the Indian tribes, were not, without their consent, to be included within the limits or jurisdiction of any state or territory; or to affect the authority of the government of the United States to make any regulations respecting the Indians, their lands, property, or other rights, by treaty, law, or otherwise, which it would have been competent for the government to make if the act had not passed. 12 St. 808. The proviso excludes from the limits and jurisdiction of Idaho only such lands as by treaty were not to be included without the consent of the Indians, and it recognizes the authority of the United States to make the same regulations respecting the lands, property, and other rights of the Indians, which it would have been compentent to make before the passage of the act. There was at that time no treaty with the Indians that the lands, which might be reserved to them, should be thus excluded from the limits and jurisdiction of any state or territory. The clause of the proviso on that head has therefore no application. Harkness v. Hyde, 98 U. S. 476, in which it was held that the juris diction of the territory did not extend over the reservation, was decided upon the mistaken belief that such a treaty existed, and that to...

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