10 Mont. 414 | Mont. | 1891
This action was originally against the Northern Pacific Eailroad Company for taxes; but the county of Custer was interpleaded, and the contention is now between the two counties as to the right to collect the tax from the company. The railroad company is a disinterested party, and has paid the money into court, to await the decision of this case. It is not necessary, to an intelligent view of the case, to review the pleadings. The case is properly before this court. The tax in question, $1,531.25, was levied by each county upon the property of the Northern Pacific Eailroad Company, situated upon a strip of land, the right of way of the company, 400 feet wide, and extending westwardly from the crossing of the railroad over the Big Horn Eiver to the crossing over the Yellowstone Eiver, near the town of Billings, which is land ceded by the Crow Indians from their reservation to the United States, and by the latter granted to the railroad company for right of way purposes. The geographical position and relation of this strip of land to the two counties and the Crow Indian reservation is made clear by the accompanying plat. [See p. 416.]
The only question before the court is, as to what county lias jurisdiction to tax the property within this strip. The District Court decided in favor of Custer County, from which judgment Yellowstone County appeals.
This controversy arose in the year 1889, under the territorial government of Montana. It is necessary to give a short historical review. The act of Congress creating the Territory (May 26, 1864) included within its boundaries the whole of what is now the Crow Indian reservation, and the counties of Custer and Yellowstone, and the strip of land in question. As to Indians, that act provided: “ That nothing in this act contained shall be construed to impair the rights of person or property now pertaining to the Indians in said Territory, so
The territorial government, thus having within its boundaries a vast area, proceeded to divide it into counties. It created the counties of Missoula, Deer Lodge, Beaverhead, Madison, Jefferson, Edgerton (afterwards Lewis and Clarke), Gallatin, and Choteau. (Act February 2, 1865, 1 Sess. Bannack Laws, p. 528.) This act specifically defined the limits of each of said counties, by mountain ranges, rivers, and other natural objects and meridians of longitude and degrees of latitude. These lines left wholly without the limits of said defined counties a great district in the eastern part of the Territory, as to which country the act provided (§ 9) as follows: “That all the remaining portion of the Territory of Montana not included in the counties before named in this act, be, and the same is hereby, created a county, to be known as Big Horn County, and shall be attached for legislative and judicial purposes to the county of Gallatin.” This residuum of territory, created as and called Big Horn County, included what is now the counties of Custer and Yellowstone and the Crow Indian reservation. For the purposes of this review, the situation remained the same in the Codified Statutes, 1871-72, page 432. By Act of February 16, 1877 (10th Sess. p. 425), the legislature changed the name of Big Horn County to Custer County, in honor of the gallant soldier who had just fallen in defense of her people. In February, 1879, by an act which became a law without the governor's approval (lltli Sess. p. 100), courts were created, and the county seat named “Miles” (not Miles City), in honor of another soldier distinguished in her history. The strip of land was still within Custer County, and remained so, when the Act of February 26, 1883 (Comp. Stats, p; 839, § 742), created the county of Yellowstone, partly from what had been Custer County. It is sufficient to say of its boundaries, that the southerly one was “the center of the channel of the Yellowstone Eiver.” The strip of land now in question lies wholly south of the Yellowstone Eiver, and parallel, or nearly so, (o the said southerly boundary of Yellowstone County, created as above described. Let it be remembered that the northerly
We turn aside to observe the extinguishment of the Crow Indian title to the strip of land under discussion. On August 22, 1881 (22 U. S. Stats, at Large, p. 157), by treaty between the Crow Indians and the United States, the former ceded to the latter a a strip of land not exceeding 400 feet in width,- that is to say, 200 feet on each side of the line laid down on the map of definite location hereinbefore mentioned (the Northern Pacific Bailroad line), wherever said line runs through said reservation, between the one hundred and seventh degree of longitude west of Greenwich on the east, and the mid-channel of the Big Boulder Biver on the west, containing 5,384 acres, more or less. This western boundary of the Big Boulder Biver is west of the western boundary of the strip in question at the crossing of the Yellowstone Biver near the town of Billings, hereinbefore described. By Act of Congress of July 10, 1882,, right of way for railroad purposes over this strip of land was; granted by the United States to the Northern Pacific Bailroad Company, the original defendant in this action, before the inter-pleader of the county of Custer. Thus the Indian title was extinguished, and the land belongs to the county of Custer, or the county of Yellowstone, or, rather, which county has the right of taxation upon said strip, is the question presented to this court.
We cannot doubt, in view of the meaning of the word “judicial,” that the expression “judicial purposes,” as used m the statute, which we are endeavoring to construe, means purposes of the courts and the administration of justice. Taxation certainly does not pertain to the affairs of courts and the administration of justice. Judicial, legislative, and executive affairs are very distinctly separated throughout the whole history and policy of American law and government. Their provinces are well defined, and their boundaries sharply drawn. The legislature must have had this in mind when they attached the old county of Big Horn to Gallatin County “ for legislative and judicial purposes.” (Cod. Stats. 1871 — 72, p. 432, § 11.) Thus, legislative and judicial purposes are expressed and executive purposes are excluded. Thirteen years later (Act March 5, 1885), when we. come to the attachment of this portion of the Crow Indian reservation to Yellowstone County, judicial purposes alone are expressed, and both legislative and executive are excluded. There seems here to be an application of the maxim, Expressio unius, exdusio alterius. If the legislature had intended to include executive purposes, revenue, and taxation, they would have so expressed themselves. Their silence is significant.
The use of the word “judicial” in other portions of the laws of Montana indicate its meaning. Section 531 of the Code of Civil Procedure provides that no judicial business shall be done on Sunday, etc., except, — and then goes on to recite a large number of acts and classes of business, which pertain solely to courts and the affairs of courts. Sections 698 and 699 of the Code of Civil Procedure define judicial districts, and then treat of the courts therein. Again, observe that the Act of March 5, 1885, provides that portions of the Crow reservation, which shall hereafter be segregated and thrown open for settlement, shall form a part of Yellowstone County. But this strip of land in question had been segregated three years prior to this act. If the legislature intended to place this strip in Yellowstone County, why did they confine the operation of the act to only those portions thereafter segregated. The whole spirit of
We have indulged in this otherwise unnecessarily voluminous discussion of what has always seemed to us a very clear proposition, by reason of the manifest injustice which this condition of affairs works upon Yellowstone County, and our desire to find some remedy for this injustice. Custer County, otherwise compact in form, stretches out over its neighbor a shoe-string district, 105 miles long and 400 feet wide. Custer County takes the fruits of the land, in the way of taxes, and leaves to Yellowstone the labor and expenses of maintenance. This injustice is so glaring and absurd that it demands immediate legislative remedy. That remedy is not at the hand of this court; and we can do nothing but affirm the judgment of the District Court, which is accordingly done.