25 Kan. 25 | Kan. | 1881
Lead Opinion
The opinion of the court was delivered by
In the year 1870, John Newland (now deceased) and his wife, Eachel Newland (defendant in this action), settled upon the tract of land in controversy, to wit, the east half of the southwest quarter, and the west half of the southeast quarter of section sixteen, in township twenty-nine, south, of range seventeen, east, in Wilson county, Kansas, and proceeded to improve the same. Soon thereafter, in the same year, Newland filed in the local land office, then situated at Humboldt, Kansas, his declaratory statement under §12, act of July 15, 1870, an act of congress providing for the sale of lands formerly occupied by the Great and Little Osage Indians, to actual settlers. Newland tendered the local land office the amount of money necessary under the act of congress aforesaid, and offered to make the necessary proofs, and demanded his certificate of entry, which was by the local land office refused, for the reason that the lands sought to be purchased were included within the grant to the state of Kansas for the use of schools. On the 20th day of June, 1871, John Newland contracted with the state of Kansas to purchase the lands mentioned under the law making provi
The sole question presented by the record here is, the validity of the patent issued by the state to the plaintiff. This is assailed on three grounds, viz.:
1st. The land in controversy was not embraced within the grant to the state of Kansas for the use of schools.
2d. If it was so embraced within the grant, it violates the treaty between the United States and the Great and Little Osage- Indians.
The land at the time of the admission of Kansas into the Union was a part of the Osage Indian lands occupied by that tribe under the treaty of June 2,1825. (7 U. S. Stat., p. 240.) The ordinance prepared by the Wyandotte convention, which with the constitution was submitted to congress, contained this section:
“SECTION 1. Sections numbered sixteen and thirty-six, in each township in the state, including Indian reservations and trust lands, shall be granted to the state for the exclusive use of common schools; and when either of said sections, or any part thereof, has been disposed of, other lands of equal value, as nearly contiguous thereto as possible, shall be substituted therefor.”
The provisions of this ordinance were not satisfactory to congress, and in the act of admission it legislated as follows:
“Sec. 3. And be it further enacted, That nothing in this act shall be construed as an assent by congress to all or any of the propositions or claims contained in the ordinance of said constitution of the people of Kansas, or in the resolution thereto attached; but the following propositions are hereby offered to the said people of Kansas for their free acceptance or rejection, which, if accepted, shall be obligatory on the United States, and.upon the said state of Kansas, to wit:
“ First, that sections numbered sixteen and thirty-six, in every township of public lands in said state, and where either of said sections or any part thereof has been sold or otherwise been disposed of, other lands, equivalent thereto and as contiguous as may be, shall be granted to said state for the use of schools.” ...
These propositions were accepted by the state, by a joint resolution of the legislature, of date January 20,1862. (Comp. Laws 1879, p.-79.) They define and constitute the extent of the school-land grant at that date. Counsel for defendant argues very forcibly that Indian lands are not public lands,. and therefore not within the terms of this grant. We shall not stop to consider this argument, but pass to further matters.
By treaty with the Osages, concluded September 29,1865,
“Article 1. The tribe of the’Great and Little Osage Indians, having now more lands than are necessary for their occupation, and all payments from the government to them under former treaties having ceased, leaving them greatly impoverished, and being desirous of improving their condition by disposing of their surplus lands, do hereby grant and sell to the United States the lands contained within the following boundaries. . . . And in consideration of the grant and sale to them of the above-described lands, the United States agree to pay the sum of three hundred thousand dollars, which sum shall be placed to the credit of said tribe of Indians, in the treasury of the United States, and interest thereon at the rate of five per centum per annum shall be paid to said tribe semi-annually, in money, clothing, provisions, or such articles of utility as the secretary of the interior may from time to time direct. Said lands shall be surveyed and sold, under the direction of the secretary of the interior, on the most advantageous terms, for cash, as public lands are surveyed and sold under existing laws, including any act granting lands to the state of Kansas in aid of the construction of a railroad through said lands, but no preemption claim or homestead settlement shall be recognized. And after reimbursing the United States the cost of said survey and sale, and the said sum of three hundred thousand dollars placed to the credit of said Indians, the remaining proceeds of sales shall be placed in the treasury of the United States, to the credit of the ‘civilization fund/ to be used under the direction of the secretary of the interior, for the education and civilization of Indian tribes residing within the limits of the United States.”
On the 10th of April, 1869, congress passed this joint resolution (16 U. S. Stat., p. 55):
“jResolved by the senate and house of representatives of the United States of America in congress assembled, That any bona fide settler residing upon any portion of the lands sold to the United States, by virtue of the first and second articles of the treaty concluded between the United States and the Great and Little Osage tribe of Indians, September twenty-ninth, eighteen hundred and sixty-five, and proclaimed January twenty-first, eighteen hundred and sixty-seven, who is a citizen of the United States, or shall have declared his intention to become a citizen of the United States, shall be
That the proviso concerning the sixteenth and thirty-sixth sections is in effect a grant of such sections, is for this court settled by the decision in The State v. Stringfellow, 2 Kas. 263. In that case the language construed was, that “sections number sixteen and thirty-six in each township shall be and the same are hereby reserved for the purpose of being applied to the use of schools in said territory.” And upon this the court, by Crozier, C. J., remarks: “ It must be apparent that something more than a mere reservation from sale was contemplated by section thirty-four; and upon its construction the rights of the parties must depend. It is well settled that no particular words are necessary to constitute a grant, especially for public uses; and we are fully satisfied from the authorities that section thirty-four amounted to a grant of the lands therein described to the people of the territory, for the use of schools — a dedication — an appropriation thereof for that object. (Chotard v. Pope, 12 Wheat. 590; Rutherford v. Greene’s Heirs, 2 Wheat. 198; City of Cincinnati v. White’s Lessee, 9 Pet. 240; New Orleans v. United States, 10 Pet. 713; Trustees of Vincennes University v. The State of Indiana, 14 How. 268.)”
Counsel urges against this, that the proviso is limited by the latter clause, “ in accordance with the provisions of the act of admission of the state of Kansas,” and that as by that act none of these Osage lands were granted to the state, none
It is true no construction of an act of congress will be favored which implies any disregard by the government of treaty obligations, or any breach of its trust. And it is along the line of this argument that much of the opinion in the case of the L. L. & G. Rld. Co. v. United States, 92 U. S.
But we need not rest this case upon the power of the government to do a wrong. • The treaty must be construed in the light of existing facts and settled lines of policy, and with the view of accomplishing the substantial objects, and not in a narro w or technical sense. It transferred a large tract of land hitherto vacant and unoccupied, a mere hunting-ground of the Indian, and contemplated a survey and subdivision into farms, and that it should become the homes of white men. It referred to existing laws as to survey and sale, and provided that they should govern in respect to the disposition. The land was to be sold “on the most advantageous terms, for ■cash;’'" but this has reference to the tract as a whole, and it left to the government a discretion as to how those, most advantageous terms could be secured. It would be a strange perversion to hold that the government was bound to exact cash for each separate quarter-section, when by granting a few for certain purposes a higher price could be obtained for the remainder and a larger amount realized from the tract as a whole. By established policy and existing laws, certain sections of public lands are set apart for school purposes. It seems to have been contemplated that the same policy should control in the- disposal of these lands.. While it may not be
We conclude that the implications of the treaty are in favor of the ordinary school grant, and that the express power authorizes such a grant. , Congress by it had violated neither the letter nor the spirit of the treaty. The full legal title being in the government, it could dispose of it as deemed best. Its disposition no individual can question. And its disposition was in this case within both the power and the thought of the treaty.
The other question is based upon the assumption that this was school land. In The State v. Emmert, 19 Kas. 548, we held that upon non-payment there was a forfeiture; that this forfeiture did not depend upon judicial action, but arose ipso faeio upon the failure of payment. Now it is said that no right to tax state lands exists. On June 20, 1873, default being made in interest, the rights of John Newland, the purchaser, ceased. The land became and was absolutely the property of the state. It was not subject to tax, and no tax
The conclusions we have reached being in favor of the plaintiff’s title, the judgment of the district court will be reversed, and the case remanded with instructions to render judgment upon the facts found in favor of the plaintiff in error, for possession and costs.
Concurrence Opinion
I concur in the result reached, and in