Buster v. Wright, 4 Indian Terr. 300

Buster v. Wright

4 Indian Terr. 300 | Ct. App. Ind. Terr. | 1902

Clayton, J.

The complaint alleges two acts which the defendants were threatening to do: First, to close up the plaintiff’s places of business; and, second, to procure their removal from the territory, as intruders, if they did not pay the amount claimed to be due the Creek Nation. If either one of these statements of fact constitutes a cause of action, although the other may be bad, the demurrer, being a general one, should have been overruled, instead of having been sustained, as it was by the court below.

As to the power of the interior department of the United States government to remove white men from the Indian' Territory who refuse to pay such amounts as may be required by the laws of the Creek Nation for the privilege of being permitted to come into that nation and to engage in business therein, we simply refer to the case of Maxey vs Wright theretofore decided by us and which was affirmed by the United States Circuit Court of Appeals for the Eighth Circuit 3 Ind. Ter. Rep. 243, (54 S. W. 807.) In that case we decided the question against the contention of the plaintiffs; and, if this were the only ground alleged in the complaint for an injunction, the action of the court below in sustaining the demurrer would be upheld. But the threat to remove plaintiffs from the Indian Territory was not the principal ground set up in the complaint. It was “that unless they (plaintiffs) paid a certain sum demanded, * * * by one o’clock of that day, they would close up their place of business, and, if they attempted to open up their said places of business, that they (plaintiffs) would be reported by the Indian inspector to the secretary of the interior, and an order asked for their removal from the Indian Territory, to prevent them from doing business any further until they paid'the sum demanded.” The contemplated removal depended on the condition of an attempt to open up after their business houses should have been closed. The penalty for their nonpayment, or for their having *306been found to be intruders, was not that they should be removed from the territory, as provided by the treaty and the law, but that their business, houses should be closed until payment should be made. Statutes that affect personal liberties or property rights without a trial by jury or a judgment of a court must be strictly construed in favor of the individual right. While by the treaty and the statutes the secretary of the interior may find the fact that a man is>an intruder in the Creek Nation, because he fails to comply with the conditions upon which he was permitted to enter, and put him out, he cannot collect the debt by closing his place of business. The one is the enforcement of a penalty for being an intruder; the other, if allowed, would be the means of collecting a debt. The one, the law provides for; the other, it does not. We know of no provision of treaty or statute law providing for such a remedy to be enforced by the interior department' of the government. While that department is clothed with vast power in and over the Indian Territory and its people and might, possibly, within the law, undertake the collection of this debt or royalty, or whatever it may be called, yet it must do so by some remedy pointed out by statute or the judgment of a court. Even if this should be considered the collection of a tax, — and, in our opinion, it is not, — it would be unlawful, because there is no statute providing that taxes may be collected in this way. Statutes frequently provide that the payment of taxes may be enforced by a seizure and sale by the proper officer of a sufficient ’ amount of the delinquent's personal property, and applying the proceeds to the payment of the tax, and this is not unconstitutional; but, to authorize it, it is imperative that there be a statute providing that it may be collected in that -way. Conceding, then, that the secretary of the interior had the power to collect, there is no statute empowering him or his officers and agents to resort to this summary proceeding. Especially is this true where the property seized is not to be sold, and the surplus turned back to the owner, but the whole contents of the store *307building is to be locked up and held, and all business suspended, until the delinquent shall be coerced into payment. We are therefore of the opinion that in this particular the complaint stated a good ground for an injunction, and that the court erred in sustaining the demurrer to it.

Since the entry of the decree in the court below, congress, by act approved May 27, 1902, has provided “that it shall hereafter be unlawful to remove or deport any person from the Indian Territory who is in lawful possession of any lots or parcels of land in any town or city in the Indian Territory which has been designated as a town site under existing laws or treaties.” The complaint, in effect, alleges that Wagoner iias been so designated and that the plaintiffs are in lawful possession of lots therein; and as we hold that the property of the plaintiffs cannot be seized and the doors of their business houses closed, and as the act referred to provides that the plaintiffs cannot be removed or deported from the Indian Territory, it follows that the only method left for the collection of the debt is through the ordinary channels of the courts.

For the error above set out, the decree of the court below is reversed.