121 P. 226 | Okla. | 1911
This case, presenting error from the district court of Rogers county, Okla., was filed on the 9th day of January, 1909.
There is but one question presented, which is: When, under the Cherokee Agreement, an act of Congress approved July 1, 1902 (32 Stat. 716, c. 1375), and voted upon and accepted by the Cherokee Tribe of Indians on the 7th day of August, 1902, may a member of said tribe of Indians lawfully alienate the surplus lands included within his allotment? This requires a consideration of sections 14 and 15 of the said act, which read as follows:
"14. Lands allotted to citizens shall not in any manner whatever or at any time be encumbered, taken, or sold to secure or satisfy any debt or obligation, or be alienated by the allottee or his heirs, before the expiration of five years from the date of the ratification of this act.
"15. All lands allotted to the members of said tribe, except such land as is set aside to each for a homestead as herein provided, shall be alienable in five years after issuance of patent."
It is said in the brief of counsel for plaintiff in error that if a conveyance made by a Cherokee allottee of Indian blood, subsequent to the expiration of five years from the ratification of the agreement, but before the expiration of five years from the issuance of patent, should be held valid, the judgment of the trial court must be reversed, and the contention of plaintiff in error sustained. If, on the other hand, it shall be held that a conveyance made by an allottee, subsequent to the expiration of five years from the ratification of the agreement, but within five years from the issuance of patent, is void, then on this question the judgment of the trial court is correct.
At the outset it may be stated that Congress has, by the use of the language employed in the foregoing sections, left its actual meaning considerably obscured, and that either construction leaves ground for argument that the other view is correct. Either of these sections, standing alone, provided restrictions are held to have been within the legislative purview, would be simplicity itself; but, taken together, each has a tendency to render the meaning of the other obscure and uncertain. It is a fundamental *358
canon of construction that no word, sentence, or section of an act shall be rejected if, on any reasonable hypothesis, it can be given a field within which to operate. If this were not the rule, and we were permitted to entirely reject section 15, our difficulties would be entirely relieved; or if, when the apparent policy and purposes of the act are taken into consideration, it could be assumed that restrictions were intended, and we were relieved of considering section 14, the same result would follow. The sole duty of a court in construing legislation is to ascertain from the language used, when possible, the legislative intent; but where obscurity exists it is often essential, in order to ascertain the particular intent of the Legislature, to call to the aid of the court some degree of implication, or, as was said by Chief Justice Marshall, in the case of Durosseau v. United States, 6 Cranch, 307, 314, 3 L.Ed. 232, quoted approvingly in the case of The Paquete Habana,
"The spirit, as well as the letter, of a statute must be respected; and where the whole context of the law demonstrates a particular intent in the Legislature to effect a certain object, some degree of implication may be called in to aid that intent."
And, in order to interpret an uncertain or obscure statute aright, courts must view the subject of legislation from the position occupied by those who have written it, and ascertain the legislative intent from the general purposes of the act. This thought is expressed by Judge Nott, in the case ofUpton v. United States, 19 Ct. Cl. 46, 49, as follows:
"In this country, where statute law is the hurried work of overbusy individuals, very little importance can be attached to accidents of phraseology. Every year of judicial experience renders plainer the fact that judges, to interpret aright, must put themselves in the position of the legislators who make the statute, and gather from its general purposes the meaning of its obscurer parts."
In the case of People ex rel. Keeney v. City of Chicago,
"A thing within the intention is regarded as within the statute, though not within the letter; and a thing within the letter *359
is not within the statute, unless within the intention.Perry County v. Jefferson County,
In this act, as in all of the others under which the lands of the tribes of the Indian Territory were allotted to them, provision is made against the power of immediate alienation on the part of the allottees. The reason for this was noted by this court in the case of Hancock et al. v. Mutual Trust Co. etal.,
"Recognition of the general inability of the individual members to at once successfully cope in a business way with many of the people among and surrounding them was taken by providing that all of those who were living, and who under the treaty personally took their allotments, were held, by virtue of the terms of the act, to be restricted in their right of alienation, and to take the land subject to this restriction. This condition and the reason for it are well stated in the case of Jackson v. Thompson et al.,
A correct interpretation of the purposes and meaning of section 15, taken in conjunction with the preceding section, can be secured only by giving recognition to the policy expressed in the quoted portions which we have given above. This policy could not be enforced and carried out if the allotments made under the act were to have been alienable in five years after the date of its ratification. None were made of that date, and many of them not until a much later date, and some, doubtless, were not made until after the expiration of the five years provided for in section 14. Under these circumstances it is clear that section 14 would fail in providing the necessary period of protection which Congress has uniformly deemed necessary in parceling the lands among the members of these tribes; and there is absolutely no reason to conclude that a different policy was intended.
Attorney General Bonaparte, on being called on by the Secretary of the Interior for his construction of these sections of the act, recognizes and predicates, in a measure, his opinion upon this reasoning. He says (Opinions of Attorneys General, vol. 26, pp. 351, 354): *361
"As the purpose of the five-year restriction upon alienation presumably was to keep the allottee in possession of his allotment for that length of time, so that he might acquire a knowledge of its value and uses, and be better fitted to dispose of it, such purpose might be impaired and, perhaps, altogether defeated if the date from which the restrictive period was to commence were held to be that of the ratification of the act, as many members might not have received their allotments until long after the ratification of the act, and in some cases not until after the expiration of five years from that time."
It is true that in section 15 there is no language affirmatively fixing restrictions and making inalienable the lands of these allottees; but the subject-matter with which Congress was dealing and the matter then before it was that of vesting titles to land in the members of the tribe, and of fixing the time within which they could not part with it. And when Congress said that "all lands allotted to the members of said tribe except * * * homesteads * * * shall be alienable in five years after issuance of patent," it said, under the doctrine of "Expressio unius exclusio alterius" (Betts v.Com'rs of the Land Office,
"If it were not for the word 'in,' before the words 'twenty-five years after date,' there would be nothing on which to hang even a doubt as to the meaning of the last-quoted expression. It is contended the word 'in' is used in the sense of 'within,' or 'at any time during,' etc. While it may be sometimes employed in that sense, we do not think it was so intended in the bonds under consideration; but, if there should be any uncertainty as to the *362
sense in which it was used, the doubt should be resolved in favor of the obligee. Whart. on Const. art. 670; White v.Smith,
And it is held in the case of In re Hoffmann, 14 Wkly. Notes Cas. (Pa.) 563, 565:
"It has always been the opinion of the profession that, while a mortgage, payable 'within a certain time,' may, at the option of the mortgagor, be paid off at any time beyond that, a debt, payable 'in' a certain time, cannot be extinguished, without the consent of the creditor, before the expiration of the time specified."
See, also, Buffum v. Buffum,
So, considering the whole context of the law and the general policy of Congress as manifested in similar laws, we deem it to have been the particular intent in this case to make the lands with which they were then dealing inalienable for the full period of five years in the hands of the allottees; and while its meaning was, perhaps, inartistically expressed, still section 15 carries with it a clear implication that it existed, and, so finding, the judgment of the trial court is affirmed.
All the Justices concur. *363