*1 COURT, SUPREME TERRITORY OF OKLAHOMA. TERM, 1896.
JUNE PEESEHT: DALE, FRANK Chief Justice.
Hon. SCOTT, W. Hon. HENRY BIERER, A. CURTIN G. Hon. - Associate Justices. M’ATEE, L. Hon. JNO. TARSNEY, Hon. JOHN C. Gay
D. P. et al. v. A. M. Thomas et al. Legislature Imposing power 1. Taxation —Power The of tax- —Extent of arbitrary power, is not an nor can it ation be exercised capriciously. It i& dged gen- by about and restricted wise h constitutional limitations and fixed general designed These constitutional rules. limitations eral rules are just government requiring apportionment by secure burdens of uni- general contributions, levied formity of fixed and andapportioned rules according to some law, uniform measure equality. Within these rules legislative power limitations department is abso- lute and conclusive. Legislative legislature Discretion in. The discretion of the in matters Same— injustice very taxation, may broad and its oppression. exercise work judicial government prescribe department cannot acknowledged limitations powers. exercise of its power to tax may be oppressively, exercised but if it clearly does not violate some estab- SUPREME COURT OF OKLAHOMA.
Gay et al. v. Thomas et al.
legislature
courts
limitation,
responsibility
lished rule or
is not to the
in-
only
people by
but to the
its members are
The courts can
whom
elected.
has transcended
terfere when the conclusion is unavoidable
general
rule,
powers
clearly
its
violated some constitutional
or other fixed
defining
limiting
powers.
*2
Therein.
In the absence of
Property
3.INDIAN Reservations
—Taxahon
of
stipulations
by
in the the treaties
which
Indians were
any provisions
or
the
territory,
in this
that the lands in such reservations
settled on the reservations
occupying
not,
them,
of
the Indians
be included
should
without consent
jurisdiction
might,
any
territory
thereafter,
within the limits or
of
state or
and which should
such
within its exterior
be created
include
reservation
territory may
boundaries,
authority
rightful
the
of the
extend over such reservation
legislation,
interfering
persons
prop-
all
not
with
matters of
the
protection
erty
Indians underthe
of the United
all matters
of the
States. As to
subjects
legislation,
rightful
interfering
protection
and
of
not
with that
and
repugnant
States,
not otherwise
to the
and laws of the United
the
constitution
legislative power
territory
the
upon
of
is as absolute in and
reservations,
these
any
part
territory.
as in
other
of this
rightful subject
legislation*
Property on.
a
4.SAME —Taxation
Taxation is
of
of
legislature
govern-
duty
apportion
is
of the territorial
It
the
to
the burdens of
jurisdic-
upon
property
within the territory,
ment
not withdrawn from its
Organic
by
exempted.
tion
the
Act or otherwise
property
The
of United
citizens,
kept upon
States
not connected with the Indians
these reservations,
receiving
part
property
territory
is a
of the mass of
within the
protection
the
subject
right
was, therefore,
of its laws and
to taxation.
It
the
and duty of the
subject
legislature,
property
to
such
to taxation.
Cattle Citizens on Inchan
of
Reservations not an Impairment
S.SAME—Taxationof
Rights
grazed
the Indians. Taxation of cattle
kept
of white men
of
of
upon Indian reservations under leases from the Indians,
is not a taxation of
right
any
of
of the Indians.
The
taxation
controversy in this case
upon
assessed
levied
not
the real estate or
the rents of real estate
belonging
interfering
to the Indians and was therefore not invalid as
with the
rights
protection
of the Indians under
of the United States and
jurisdiction
from the
territory
withdrawn
of the
nor obnoxious
to
principle
’
Company,
of Pollock v. Parmers Loan and Trust
YOL. Y.—JUNE Statement Facts. What Not. An act Property, Between Classes is
7. Taxation —Discrimination providing in a where there personal property alone district for taxation of subject discriminating taxing is is not invalid as real estate to taxation knowledge judicial property. will different kinds of Courts take that the treaties treaties the United with Indian tribes and from those States in the Indian territory title in this is to the lands the Indian reservations there is Indians, and that tribes, or in the United States for benefit subject no real estate therein taxation. purposes S. in which the Purposes Validity. Taxation must be for Same — legal people an Indian Property taxed have a which is interest. located judicial pur- county and which is reservation attached to for geographical poses county within not but boundaries of part county municipal purposes people thereof for and in which the part of county have and other officers and no no voice selection of expended purposes the fund derived from the taxes levied can be for the reservation, taxes when they were levied within such Indian and which county roads, entirely expenses of the appropriated are to be collected organized the various county, cannot be taxed for within the schools county. Thé on such school, purposes and road county, judicial purposes. only for territorial and be taxed can reservation Cameron, 3 G77. Daily Okla. What Are. See Leader O. Special, Laws — providing An act Uniformity as to Time Assessment, of. TAXATION— *3 unorgan- assessing listing personal and property in Indian reservations and listing assessing and such that fixed for a different time from territory, ized at organized uniformity. want of Taxes counties, is not invalid for property in according rule; this not mean that some but does to uniform must be assessed only but that after identical, shall the method of assessment the and time subject taxation, of to what classes shall has declared thereof accord- such or the owner be levied the itself shall tax ing rate valuation. of a uniform to Kay the District Court County. Error of OE EACTS. STATEMENT error non-residents of the Terri- The plaintiffs of and owners herds of cattle large of Oklahoma tory of and the during portion grazed, year that were kept of Indian reservation in 1895, Osage in parts territory. of are the board com- in error defendants county and sheriff of
missioners, treasurer Kay Okla- county, Territory. homa SUPREME OE COURT OKLAHOMA.
Gay et al. Thomas et al. third 1894, On the Monday February, supreme Oklahoma, entered court of an order Territory by court, on the of of said attached to said journals county Indian for the Kaw or Kansas judicial Kay, purposes, reservation, and all of reservation Indian north Osage 26, line and north. township dividing townships reservations, All of said so attached to said Kay county, order, for are without purposes, by judicial of said boundaries as the sec- established Kay county, by interior, and are not within the boundaries retary of this organized Said county territory. territory, so attached said for county Kay, judicial purposes, of lands owned and comprised wholly occupied by consists, Indian tribes and wild, unim- principally, lands, and unallotted used for ; proved grazing purposes in error, and during year plaintiffs during drove, month of said and April year, transported and in that pastures said ranges part shipped reservation, Indian attached to said Osage Kay county, aforesaid, as for herds num- purposes, large judicial cattle, taken on to bers of which were said reservation of and virtue of certain leases pursuance error, made grazing purposes, plaintiffs tribal under government Osage supervision tribe, of said charge ratification agent of the commissioner of Indian affairs and approval of the interior. And said cattle of secretary said were, in error on the first day May, kept on that of said Indian reservation attached part grazed said Kay county, judicial purposes, aforesaid. *4 5, an act March 1895 the approved By 13, Oklahoma amended .assembly Territory § Statutes, 2, ch. 7 of the to revenue, Oklahoma art. relating TEEM, YOL. Y.—JUNE 1896.
Statement of Facts. “That so that same reads as follows: when any cattle other kept grazed any personal property or reser- situated district any unorganized country, to vation of this shall be territory, subject taxation in the to which said country, organized county district or reservation is attached for judicial purposes,” and the board of commissioners authorized county or counties to which such organized county unorganized attached, or reservation is to district country, appoint be to assessor each whose it should special year, duty and assess such conferred such special property, and him all assessor all the powers required perform of a assessor. The duties assessor so township pro- vided for and his duties was required begin perform the first and the between April day twenty-fifth day and to his of each his duties return May year, complete 1, and on or before June therein tax lists assessed, to be should be authorized val- provided, 1, each ued as of May year. of said act
In provisions pursuance county did of said commissioners Kay county duly appoint for assessor to assess such cattle as year special other were grazed, kept personal property Indian unorganized country parts situated for attached to said Kay county judicial reservations pur- did, assessor virtue of and said said special ap- poses, assess the terri- personal property pointment, attached to the so county Kay judicial pur- tory all of the cattle of the said including plaintiffs poses,, on the said reservation error first grazed kept day said assessor assessed the special May, prop- error so located on terri- these said erty attached said county Kay judicial purposes tory *5 6 SUPREME COURT OF OKLAHOMA. a/. Thomas&i
Gay et al. an aforesaid, and assess" returned the same upon ment roll $760,469; at the there- total valuation of after car- was, the said of sum the clerk said county, by ried into the for assessment said county, aggregate him certified to the auditor of the territory; territorial board of upon equalization, acting counties, various as certified assessments the various board, said raised the valuation of prop- aggregate returned taxation the tax rolls of said erty n cent, and the clerk .county Kay, per county said carried out the raised valuation so certified county to him said territorial against board equalization error, -in and made these property ag- plaintiffs $1,026,634. valuation of such gregate Thereafter the territorial levied equalization board certified to the clerk duly county county levies, tax for territorial for the Kay year purposes as follows: revenue,
General three mills on the dollar. fund, mill on the one-half dollar. University fund, Normal mill school on the dollar. one-half fund, Bond interest one-half mill on the dollar. fund, Board of education one-half mill on the dollar. That the board of for the commissioners county county made the levies for the 1895: Kay following year salaries, on For five mills the dollar.
For three mills on the contingent dollar. expenses, fund, one and one-half mills For on the sinking dollar. and one-half For court two mills on expenses, dollar. three on For mills the dollar. county supplies, fund, two on
For road mills bridge dollar. fund For of said one mill on the poor county, dollar. fund of one For school said mill on the county county, dolía!. TERM,
YOL. Y.—JUNE Statement of Facts. clerk of said carried the county Kay county
valuation of the of these in error plaintiffs the tax rolls of said the same ex- county against tended the levies as aforesaid charged against of these in error in the aggregate sum of $26,171.16.
Before these taxes became delinquent, plaintiffs in error remove to remove their began attempted from the attached to respective property territory Kay for the county limits judicial beyond purposes, (cid:127) Oklahoma The treasurer of said Territory. Kay county issued tax warrants for the several amounts taxes levied of each of in said against plaintiffs error and delivered the same to the sheriff said county for execution. Said sheriff certain seized each of error virtue of tax warrants. plaintiffs The in error filed their several plaintiffs petitions court of district on obtained Kay county application the defendants in error from restraining injunctions, further to collect such taxes. After- making attempt wards, motion, on the several actions were consolidated To the filed in into one. such consolidated ac- petition, tion, the defendants in error filed a demurrer. general At the district court sustained the demurrer hearing overruled it in that all of the part part, holding made for territorial levies purposes county levy valid; and levies, for court were as to those expenses, dissolved, and as to all of the other injunction county levies, such were made From injunctions perpetual. of the order and of the court dissolv- part judgment as to territorial taxes and the one injunction ing fund From that county levy, plaintiffs appealed. part to all perpetuating injunction levies? county OP OKLAHOMA. SUPEEME COUET
Gay et al. Thomas et al. the defendants for court appealed, expenses, except error, and case their and filed cross-petition for here review. thus and J. JR. Cotting- SJiartel Asp, E. John W.
Henry ham, error. Weir, General, and Galbraith, D. L. Attorney
C. A. defendants error. was delivered of the court opinion are of J.: involved great questions Tarsney, interest have received us and private public and attention which their careful consideration that very demands. importance Act of the 6 of the Organic pro- territory,
By § vided: “That shall power incon- extend to rightful legislation, subjects and' the constitution laws with United
sistent States, shall be but law with the passed interfering *7 soil; no tax shall'be on disposal imposed primary States nor shall the of the United lands or the property be taxed of non-residents than other higher residents, of nor other shall lands or law to right be nor impairing private property, passed be made in discrimination any unequal taxing shall different Out all kinds of to property, property subject * * taxed to its shall be value.” taxation proportion of than that A broader con- legislative power grant could in this section conceived tained of. hardly This defined of its Act boundaries, Organic a a created comprised de- government legislative of vested with power legislating upon right- partment, and of co-extensive ful with the legislation subjects The boundaries exterior territory. taxing power TERM, V.—JUNE VOL.
Opinion the Court. of and of is a government part legislative power are Taxes taxation a of is legislation. rightful subject or property tlie enforced contributions persons of its sovereignty levied virtue by by government needs. and public for the support government demanded The citizen from his portion pays he secured in order that thereof may means by society. of the benefits of organized enjoyment in its very as to is unlimited in reach subjects; its power said is sometimes limit; it nature, it acknowledges confiscate its it become exercise power may under but must be thus qualified, destroy, differs it our of constitutional governments system benevolences and contributions, loans the forced not an is It and arbitrary tyrannical governments. It nor can it be exercised capriciously. arbitrary power, constitutional wise is about restricted by hedged These constitutional rules. limitations and fixed general to secure are designed limitations rules and general by of the burdens government' apportionment just contributions, fixed levied by uniformity requiring the law according rule, and apportioned general uniform measure some equality. and limitations rules these
Within and con- absolute department power clusive. these be reached general ends sought restrictions upon and constitutional rules
fundamental uniformity of taxation equality, the powers but burdens government; in apportioning justice under uniformity justice exact equality, idea attainable Utopian, laws of human being any system *8 be attained exactness can that such is expected SUPREME COURT OF OKLAHOMA. Gay et v. al. Thomas et al.
exercise of the
powers
taxation. Notwithstanding
such fixed
rules and
general
limitations,
discretion
is
legislature
broad and
very
its exercise
work
may
injustice
If such
oppression.
be
discretionary power
threatened with abuse,
must
found in
be
security
of tho
responsibility
legislature
imposes the tax to
that elected
constituency
them. The
cannot
judicial
to the
prescribe
department
government
limitations
the exercise of
its acknowledged powers.
to tax
power
be exercised
may
oppressively upon
or with
persons
regard
but if it do not
property,
clearly
violate some established rule of limitation,
the responsi
bility
is not
legislature
the courts but
whom its
people by
members are elected. The courts
can
interfere
only
when the conclusion
unavoidable,
has
transcended its
powers
clearly
violated some constitutional or other fixed general ruling
defining
limiting
power.
Bank v.
(Veazie
Fenno,
548;
8 Wall.
Weston
Charleston,
v.
YOL. V.—JUNE TEEM, 1896.
Opinion of the Court. the to right nor shall private property, any unequal discrimination be made in different kinds of taxing prop- but all erty, to taxation shall be taxed subject to its value.” proportion And the 1 of said following provision act. § “ Provided, that in this act shall be construed nothing to now impair any right to In- Indians or pertaining any dian tribe in said laws, under the territory agreements of treaties the States, United or to the impair rights of or person Indians, to said or to property pertaining affect the of the United the government States to make or to any regulation make law respect- any Indians, said lands, their ing or other rights which it would have been if make or enact competent this act had not been passed.”
If, therefore, there be restriction or any limitation the power to tax the legislature or which makes such plaintiffs invalid, taxation it must be found in these provisions Act or in the Organic constitution, States, treaties or of the United legislation or some rule inherent in our general system govern- ment. It is not contended that the act under these taxes to be is obnoxious sought imposed to any of the Federal constitution, but provision contended the has no plaintiffs by jurisdiction laws, enact laws, tax the especially same in force put these Indian reservations. The argument being these although reservations are within exterior boundaries Oklahoma no Territory, yet they comprise for territorial territory part governmental pur- but are under poses, exclusively jurisdiction States, and that United of the ter- legislative power does not extend over It them. conceded ritory counsel under which the treaty Indians were settled on these lands contained Osage OKLAHOMA. SUPREME COURT OE et al. al. et
Gay Thomas tribe Indian which said provision stipulation con- their not, them were without lands occupied by sent, the limits or included within jurisdiction created thereafter state or might ex- its reservation within which should include such time at terior boundaries. That there was Oklahoma, was Act, Organic Territory creating and at the time the act authorizing passed, time enacted, and at taxation in *10 controversy levied, with and these taxes were assessed treaty thereof, the land's or Indian tribe that any part Osage from the reservation, be thus excluded within should this state territory. limits jurisdiction au I is no better settled think there by proposition that, of such than the absence thorities treaty stipula extend tion, the may rightfully authority territory all matters reservation rightful legisla over such tion, not with interfering persons reservation, under the within protection the Indians States; of the United and that laws matters rightful legislation, as to subjects and not otherwise with protection, repug interfering States, and laws the United the constitution nant is absolute. (Utah territory power the legislative v. Fisher, 28; 116 U. S. Railway Langford & Northern Monteith, 145; Phœnix and Maricopa R. 102 U. S. v. Court of Co., Territory, v. Arizona 26 Ariz. R. Sup. Co., R. & Phœnix R. v. Ariz. Maricopa 310, Pac. Rep. Baldwin, 26 Torrey 347; S. Pac. Ter. 156 U. Rep. Ex parte 343; 130 S. petitioner U. Gon-Shay-ee 908; States v. Untied Kagama, 556-560; U. S. 109 Dog Crow United States v. Pridgeon, 153 U. S. 375; 48.) U. S. 118 Keo court in 'held this doctrine was distinctly by This Ulam, 1083. Rep. 38 Pac. kuk v. Okla. Rep.
YOL. TERM, Y.—JUNE
Opinion of the Court. The contention of this would proposition seem to be based authorities which reasonings are not Their contention applicable. seems to be these reservations are to be considered as exclusively under the States, United jurisdiction the same as lands the United purchased within by States the bound- of states, aries and with the consent of said states for the forts, arsenals, purposes magazines, dock navy yards, If etc. this contention yards, were correct, then it would all the authorities and supported would by prevail, I concede it to be uncontroverted situated within wholly boundaries within the exclusively jurisdic- tion of States, the United cannot be taxed the state within which it territory situated; may but these res- ervations are not within boundaries within the exclusively of the United jurisdiction States, for the reason that 6 of the Act of congress Organic dele- territory § gated government territory legislative power to all of. extending rightful subjects legislation not incon- with sistent the constitution and laws of the United States within the éxterior boundaries of the created act,-which includes the reservation which is the locus *11 of this that the controversy; jurisdiction conferred upon the exclusive; is not territory has congress reserved to itself the over jurisdiction persons lands of the Indians reservation, the occupying does not diminish or restrict the of the to territory con- legislate the cerning persons citizens property of the States It United therein. was the of the duty territorial to the burdens apportion government upon within the property withdrawn territory from its Act or other by laws jurisdiction Organic of the United States or not otherwise exempted OF OKLAHOMA.
14 SUPREME COUNT al. Gay et al. v. Thomas et a of tH comprised barden law. ^.aintiff which within territory of the mass part might of its laws was receiving protection And to taxation. be and should subjected justly lawfully taxation, under to such property right subject in which conditions and the situation plaintiff’s been has court, but was, not been denied has by any v. Ry. Northern in numerous instances. (Utah upheld Baldwin, 26 Pac. v. Fisher, 116 U. S. 28; Rep. Torrey Ariz. 26 Ter. R. v. 908; Phœnix & R. Co. Maricopa W. N. Vennier, Dak. — 42 310; Ferris v. Pac. Rep. Ariz. Ter. v. & Phœnix R. R. Co. 34; Marico Rep. 347.) U. S. 908, supra, Torrey Baldwin, v.
In 26 Pac. Rep. July court of held treaty Wyoming supreme their Shoshones, to which 3, 1868, with the pursuant reservation established, contained reservation be excluded excepted should whereby exception situated, and that which it was out within territory within the territory, was included the reservation in no thereon white cattle person, belonging to taxation Indians, connected with were wise subject which the reservation within lay. the county Railroad Maricopa company In Phoenix and court Arizona Territory, supra, Arizona supreme in the or other absence held treaty express the different Indian reservations became exclusions situate, and to terri where territory subject part however, torial jurisdiction, subject, make government regulations powers general Indians, etc., and their that a respecting property, across an Indian reservation terri railroad built is, where to taxation there subject tory *12 TERM,
VOL. V.—JUNE 15 Opinion of the Court.
are no treaty stip,..1'tious exclusions express against jurisdiction this decision territory; on affirmed appeal, court of the supreme United 347, States 156 U. S. supra. 31,
In Utah Northern v. Railway Fisher, 116 U. S. Mr. Justice Field says: “The authority extend territory may rightfully to all matters with that interfering protection. (Protection Indians and their It has there- property). fore been held that of its process courts run into an may Indian reservation of this kind where the matter subject is otherwise within controversy their If cognizance. the plaintiff constructed and lawfully now a rail- operates road the reservation, tnrough is not perceived
any just Indians rights under the can be treaty impaired road and by taxing used in oper- it.” ating A further contention of the is: plaintiffs That reservation, under the statutes of the United States, has been leased Nation or tribe Osage for grazing and that the taxation of purposes cattle kept grazed said reservation ais direct tax upon upon right the Indians to lease same, and decreases to the extent of the tax the value of the Indian lands; the act such taxation is in authorizing direct derogation of the Indians rights upon reservation and is therefore void. This is without proposition merit and certainly unsupported by authority. rely this contention support
the case of Pollock Farmers’ Loan and Trust com U. S. pany, known as the “Income Tax” case. Counsel their brief Chief Mr. quote Justice Ful ler, on 555 in the case, of that page report as follows: “The contention of the first, is, plaintiff the law a tax qustion the income imposing of rents OF OKLAHOMA. COURT SUPREME *13 al. et al.
Gay et Thomas itself; a tax the real estate upon real estate imposes a interest or income tax upon imposing held for the property other purpose personal bonds income, a tax income, yielding imposes upon or ordinarily tax itself; that such tax is a direct estate the personal without to the rule regard because imposed and void reason thereof the whole law and that by apportionment, invalid.” is -a.ma- was sustained that contention that true
It is divided, case, in that but I am unable to court aof jority at to the of the case principles its application perceive case, in that sustained because was contention The bar. real the income or rents of a tax that held upon was it itself; real that it estate a tax upon imposed estate tax, and direct such it was being therefore was of the constitution to prohibit- provision obnoxious direct taxes except by apportionment the levy'of ing It not be would states. several seriously among,the of the Federal constitution that provision contended other rule upon any operative prescribed States, the United or in than congress for the of revenue support any govern- the raising but if Federal even than the ment, other government; made, should principle contention such cover the broad not enough proposition eited.is case taxation we are counsel plaintiffs. submitted or levied not assessed real upon considering of the Indians or other occupying property estate the income or rents of such Indians nor upon reservation real or other this tax estate property; derived In- the rents which these levied paid is upon but it levied is their leases dians under plaintiffs, in which the Indians upon taxation upon no interest. argument have VOL. TEEM, V.—JUNE
Opinion of the Court. into this reservation brought for the purpose grazing Indian lands is an additional servitude that decreases the salable value of the land, and that operates in the rental value fixing of these lands to the same extent it would, if made a tax itself, land less remote scarcely than to say tariffs which these cattle owners have to to railroad pay corporations their cattle out of transporting these reservations market is an additional servitude, that decreases rental value the lands of the Indians; or, that the tax- ation of the of a personal tenant an added servitude on the freehold of the landlord. I do not *14 think the act of the legislature for this tax- providing ation, in manner, any the impairs of property the rights Indians this reservation. occupying
Another contention of the is plaintiffs that this tax- ation is unconstitutional and void because it rests upon the of the court attempt of supreme the to fix territory districts, which is a taxing function. The answer to this that is the proposition court supreme the has not to fix attempted any dis- taxing tricts; court, that that under the powers vested expressly in it the by Act Organic in territory, attached this reservation unroganized to country for Kay county and not judicial for purposes, the pur- taxation; that poses districts taxing which these taxes were imposed levied were created and fixed, court, by but supreme by legislature, of 1895; act act language being: “That when cattle or or any kept grazed other is situated in personal property coun- any unorganized district try, reservation this that such territory, to shall taxation in the property subject organized
2 —V. OKLAHOMA. OP SUPREME COURT v. Thomas et al.
Gay et al. is or reservation district to which said country, county attached purposes.” judicial created district was It act that taxing by order of the court. and not make against Another plaintiffs objection to au- act is, tax of this attempting legality property; thorize only applies personal of real estate made for the is taxing provision differ- that it a discrimination reservation; taxing in conflict with the and therefore kinds ent property, Act. Organic take court will knowledge public
This judicial the,United and from such treaties the States; treaties the title to all has knowledge judicial court the Indian this Indian reservation within lands the use of said Indian tribe, in the United States the territo- of taxation possessed power tribe. not extending taxing rial government States, Indian or of the wards of of the United no taxable real States, there is estate said United the act does not discrim- reservation, and consequently different kinds between subject inate different kinds of taxation, there not being in such reservation. taxation subject .contention con- most serious *15 is, the act under matter that in this these us fronts for and levied is void the reason assessed taxes were situated these Indian to tax reser- property it attempts counties to which benefit of the for the are they vations owners for holders purposes, attached judicial reservations, Indian it' on these' being of property in the taxes no interest said claimed, gathered by having in their nor expenditure no voice benefit counties, TERM, YOL. Y.—JUNE Opinion of Court.
therefrom, said Indian reservations within being counties; boundaries said that the geographical taxing of the owners of said such counties is property taking on said persons holding said for the benefit reservation of the residents said is, therefore, for county taking private property uses. private
It have no interest argued plaintiffs for which these taxes are purposes expended will derive no benefit from their expenditure; derived from this taxation under the moneys levy county will within the expended organized county Kay; are non-residents of the and that plaintiffs territory, neither or their are within said they county and therefore cannot be benefitted Kay, expendi- ture of for used moneys apportioned salary, fund, fund, fund, court contingent expense sinking fund, fund, road and expense county supplies bridge fund, fund or fund of school said poor county county. have been cited to or been able to find but
We one authority directly point upon proposition pre Vennier, in this case. In the case of sented Ferris v. 34, the court of Dakota N. W. Rep. supreme Territory, in a in all case similar this save that particulars, not an attached was Indian reservation but held the an territorial unorganized territory, levy to be valid those for to be county purposes purposes There are a number of invalid. authorities analo cases, but such authorities gous conflicting. number of authorities counsel
greater presented by in their brief relate to proposition cases of assessments for local special improvement, streets, as the construction highways, pavements, *16 OP OKLAHOMA. COURT SUPREME al. v. et
Gay et al. Thomas peculiar limited to a are benefits etc., sewers, where have class of cases and this district or locality, we from that which in been held distinct principle always has taxes' and the right impose considering and to be governed to be founded been held always embraced from those public different principles for purposes. taxation governmental ordinary public v. bar, of Wells is the case at case Bearing upon court 384, in which Weston, 22 Mo. City authorize a cannot municipal that, “The held land own local lying for its purposes to tax corporation limits.” the corporate beyond Monroe, 341, the court Hooser, 9 Ben v. Cheaney In so as of one town of the limits that the extension held town of another against lands to include adjacent the owners prop- subject the consent without the added territory juris- within people erty the extended municipal and taxing powers diction added the consent population, without government use. effect, public is, taking private 21 Penn. Philadelphia, Mayor v. Sharpless In taxation, meant State, 172, said: the court “By purpose revenue public mode raising certain interest; an but to it has that pays the community must on law unconstitutional ground, a tax make taxed blush that community at first be apparent to which interest purpose have can possible this is more to be And espec- applied. their money local tax, if the authorities a local if it be true ially an act of the tax in laid pursuance themselves have the assembly.” Co.,& Tennessee, McBean Taylor, a case
In Heiskall, 349, the court al., 9 et R. Chandler William TERM, 1896. YOL. Y.—JUNE Opinion the Court. terri- cannot “A burden placed
said: state *17 burden a state, nor the entire county less than tory than the or smaller county.” territory greater Avenue, State, Penn. 69 of Washington In the case the says: opinion 361. the learned delivering judge to tax is unbounded by any the “I admit powers be exercised that it constitution; limit in the may express I concede full extent of the exigency. to the public and has eminent domain the it from differs power of a return by way compensation thought further to the good, taken and public which is applied it to which from the all derive benefit than purpose applied.” court said: Iowa, 82, the v.
In Unger, Morford or town so as to of a the limits city extension of “The houses manifested as its actual enlargement include exercise a is to be deemed legitimate and population, exten- or unreasonable indefinite An power. legislative sion, are distant farms lands and to embrace as so the not rest same does local the government, from delicate, a as well it And may although authority. have no we to interpose, for the difficult judiciary a duty the legisla- are limits there beyond but that doubt cannot discretion go.” tive a S. 104 U. Pittsburg, The City v. Kelley act of an under of Pittsburg, the city wherein
case include the limits so as extended city legislature, as other the same farm, and assessed plaintiff’s tax, etc. tax, school for street was assessed city the extension, court, validity in sustaining The said: received Kelley that Mr. cannot say, judicially, “We streets, if These organization. no benefit city The water- farm, lead to it. his do penetrate they him some day may reach works will probably occasions. on serve some him now to near enough he regard children his receive schools may SUPREME COURT OF OKLAHOMA. a/.
Gay et al. Thomas et can be in no condition than worse those living no children and who for the city having pay support the schóols. man a in a town, cit>', Every county, state, is interested in the education of the chil- deeply dren of the his his because community, peace quiet, are happiness prosperity, largely dependent upon and moral which it intelligence is the training object schools to of his public children supply , and associates, he if has none neighbors himself. the officers whose police government, duty pun- crime, ish prevent out of the Has paid taxes. he no interest in their he farther because lives protection, from the court and the house station than police others? these are Clearly, matters of detail within and, therefore, discretion in the law- power within whose making body live. jurisdiction parties cases, This court cannot in such however say great *18 burden, the that the tax hardships collected unequal for such the tax- the purposes, taking property without due of law.” payers, process
I citations from might authorities multiply conflicting these, like without rule to any finding guide definitely determine where the line can be drawn which determines, this, in like the limit cases discretion. all, if not these cases arose to test Nearly, the extent limit of and in subordinate agencies state, like and not the discretion municipal corporations, in the of the vested state. No court has yet to define, the benefits that a attempted tax- specifically, must receive from in order to payer government, make True, valid taxes taken from him. public theory, taxation should be burdens, its but equal, only benefits, its but this is never No one equality attained. of a commonwealth to tax the questions fight prop- borders; non-residents within its such erty non-res- yet, do not dents stand a basis of in the benefits equality TERM,
YOL. Y.—JUNE Opinion of the Court. government imposes the tax. They may, courts, its benefits from its not, receive
may particular improvement or from schools, of its highways, public are its revenues of the other to which purposes are never test But benefits appropriate:!. of their to taxation.
liability their of cattle within this case have herds might benefit and limits receive greater Kay county now; would than do the law they they yet, protection not be should not be heard to that such assert taxation to which taxed for the various county purposes is appropriated. are not counties, cities and of this towns territory from that or distinct governments
independent are are a of that they government; territory. part They which the instrumentalities agencies through inhab- the welfare its territorial government promotes enabled is better itants territory through and the of its inhabitants liberties lives to protect borders, that of its whether is within its The nearer these non-residents. citizens or that of own are the to these attained, benefits greater purposes to all others as well as having property subject plaintiffs, of its laws. protection remote this, attaching unorganized similar Laws the state Michi townships municipal territory enforced; maintained though were years gan, the attached appro taxes gathered *19 to the for township and purposes expended priated find that their attached, I do not validity it was called into (Roscommon directly question. was ever v. Town Comins 424; Township Midland, 39 Mich. of 442.) Harrisville, 45 Mich. ship of OKLAHOMA. OP COURT SUPREME 24 al. et al. v. Thomas Gay et were court the found by facts the case last In of 1877, March, county the until the year that for Alcona judicial of to the county attached was Oscoda date, named last and up purposes, municipal exer- county, Alcona Harrisville, said of township the territory compris- the over municipal jurisdiction cised 1877, That, of Oscoda. county the unorganized ing into a of Oscoda the county organized the legislature of “The it, Township act creating the called township said of the after passage In year, Comins.” had been fully Comins of township said before act, but town- officers, the of township election organized embracing, roll an assessment made Harrisville ship in the county the territory territory, other with collected by were assessed thus taxes Oscoda, and In Harrisville. township officers on township a demand made Comins township to payment of Harrisville township board thus collected the taxes Comins township case, On therefor. brought was and suit Marston, says: chief justice, assessment, levy relating of this state laws “The certain desig- taxes, not regard does collection officers until proper as a township nated elected. have been its affairs conduct necessary been elected not having new township, officers organization no such perfected there July, until township to assess the_. township enable would circumstances, Under taxes for year. school had a right of Harrisville the township my opinion, but whether they in- the taxes question; collect levy action, lie to recover the will not, the present did collected.” so money between that distinction, principle,
I can perceive and, legality bar; although at case and the cas* *20 25 TERM, 1896. Y.—JUNE YOL. Opinion of the Court. of the taxes imposed and collection
the assessment circuit case, both the in the judge, not involved directly doubt no case, and the chief express the justice trying as to their legality. con- out the
Not able to provision being point rule statute, or Act, stitution, general the Organic the and discretion legislature, limiting powers I can taxes, they these from which say imposing void, arbitrarily I am disposed unquestionably to sit department invade the province than that which they other evidence in review without abused have in this case they say possessed, call as to to such degree discretion vested them herein, rules stated our Under interference. general not be taxation This may to do this. we have right in a It may the basis absolute equality. levied upon It plaintiffs may impose measure unjust. in benefits burden without case a compensation equal our inter- not warrant this, alone, will others; but with ference. in some are benefitted the plaintiffs
Unquestionably taxes of these county. Kay expenditure degree by ordered com- of a well to their proximity if to the and schools plaintiffs with courts open munity them, with roads to avail themselves good wish they and main- made for care with and bridges, provision these and the with indigent, poor tenance civilization, order observance elements other taxation is obtained expended, for which law money have greater security it is dispute beyond have without than would in their they property rights oi right These are the benefits upon them. based, legislature and gives taxation SUPREME OF COURT OKLAHOMA.
Gay v. Thomas et al. et al. The author- taxation. acknowledged impose of or neces- ity being reasonableness acknowledged, for its exercise cannot into sity courts. inquired Of such reasonableness or necessity *21 not, the courts are to judge.
The of these taxes is further on assailed validity that the act of the them ground legislature authorizing 30, 1886, is obnoxious to the act of of 24 congress July 170, U. S. at Stat. as fol- Large, page provides lows:
“That of territories of United legislature States now or hereafter to be not shall organized, pass, local of or laws enumerated any special following cases, to is and collection assessment of say, taxes, territorial, or road county, purposes.” township
It is insisted that the act in is local and question spec- I cannot how ial. this contention can be sus- perceive of act has none of a tained. elements local or law. It does not an individual or a special operate upon individuals, number of or designated upon particularly It individual operates designated property. upon any come within its any may general Mr. his work on Constitutional provisions. Cooley, Limitations, 480, page says: “The for the at state legislates large, determine whether must rules shall extend to particular or, state and all its citizens on the other hand, the whole of or a a the state subdivision citi- class its single zens only.” he 481: says, page
Again laws be “If otherwise that can unobjectionable, these cases is be their required they general to the class or to which application locality they apply; are then character and their public they pro- must policy, priety judge.” TERM, 27 YOL. Y.—JUNE Opinion of the Court.
Tlie constitutional equal protection requirement the laws the same local does make regula necessary tions, or or organization juris municipal powers, judicial Lewis, 32; diction. 101 U. Virginia S. v. (Missouri Rives, v. S. 100 U. 313; Virginia, U. S. Ex Parte 339). benefit of for the prohibition legislation special
individuals does not for the benefit laws par- preclude other ticular mechanics and classes. As for example, State, Lea, laborers. (Davis 376). Cameron, 3 think the
We Leader v. Daily case Okla. is In that case this decisive on this point. court says: class, “A statute persons things relating law. One general relating particular persons of a class The number
things persons special. may direct effect whom law have shall relates, but few reason to which very subject *22 it must and brought uniformly upon operate equally it the relations for which within and circumstances pro- statute, a with A to avoid conflict vides. order be must gen- prohibition against special legislation, and the class class, all of eral in its application come within its within like circumstances must opera- tion.” case does this operate
The statute question class, but or within general upon persons things upon all the class. It and as a upon things operates persons (cid:127) counties, and reservations within districts unorganized within such and the territory, generally, upon property reservation, and or operates district unorganized county, counties, and res- districts such several uniformly upon be may things ervations persons therein, in no local sense and is therefore brought in its character. special SUPREME COURT OF OKLAHOMA.
Gay et at. Thomas et al. further claimed that the act of 1895 It is violates the for an assessment uniformity providing principle these Indian of cattle reservations kept grazed upon at a different time from that unorganized for the in the assessment personal provided property reason, That for this counties. it organized unjustly discriminates the owner of such and is cattle against therefore void.
I have shown it to be a fundamental already principle of taxation the rules shall be It uniform. nature of a tax that it should be assessed very according rules, otherwise, uniform to some be would confiscation and not taxation. But this does not mean that the time method of identical, assessment shall be but only that after has declared what classes taxation, shall be the tax itself shall subject property such, thereof, levied the owner according uniform rate of valuation. Lumber Co. v. (Nelson Loraine, Ct. Wis. Town Fed. Sup. 54). Rep. of dif- assessment Statutory provisions authorizing dates, ferent classes at different or of the property, classes in different localities at differ- same dates, are common ent so their for rea- validity ever called revenue son law scarcely question. of this that real estate shall be territory provides valued taxation on the first and that January, day per- sonal counties shall assessed on the of each first February year. day brief, in their Counsel ask: “What plaintiffs, reason can be valid situated suggested why Indian should be on these reservations assessed and *23 and the on one situated in the valued or- day property counties be assessed and should valued on ganized (cid:127) another ?” day TERM, YOL. Y.—JUNE Opinion of the Court.
I found in the think the answer tliis question of the court of in Nelson Wisconsin language supreme Loraine, wherein supra, Lumber v. Town Company it says:
“The of the would to be to law seem purpose bring about taxation which the substantial equality constitution, common law, as well the The requires. leg- non-residents, islature as well was aware that logs owners, as were liable to be floated out of the resident state, state in the month of or if not run out of the April, become mixed of other with might logs persons a manner to render the different streams such account of them to take quite separate impracticable in the month of when the of resident owners logs May are assessed. often would be they beyond juris- Very town, and as the owner diction of the officer taxing state, in the not be reached and had no local could agent law, taxation The by providing they escape entirely. situation, amount and value of the be taken logs banked, at the where seeks April place piled put on the same non-resident resident owners footing.” when enacted this territory, they into consideration the the law took undoubtedly to be conditions situation property peculiar all of the reservations; in these cattle taxed nearly reservations, on these were into that were brought kept after would be first February, territory for taxation; before another removed listing a different date from that and unless existing gen- assessment, fixed for its eral law should taxation. very principle would entirely escape this distinction dates of required uniformity an It was not should made. assessment injustice but it was to the owners prevent property, against citizens, and to all its tax-paying injustice its share escaping just prohibiting *24 SUPREME COURT OF OKLAHOMA. et al. Thomas et al. Gay v. I the burdens taxation. think this was very of the exercise discretion
proper legislature that no discrimination exists such as is inhibited by Act of the and the act of Organic territory congress 30, 1886. July brief,
The final contained in that proposition plaintiff’s to the action of the territorial board of relating equaliza- tion, valuations of raising aggregate returned from the 1895; county Kay hav- year considered and been determined court, fully ing term, in Bullen, at this the case of Wallace v. and held (cid:127) to the contention o'f the herein, adversely plaintiff fully of this disposes point. stated,
For the reasons the various sub- points herein, I am mitted that opinion legislature with full was vested to extend the revenue laws an,d the Indian over reservations other within this that unorganized territory territory; act of 1895 was exercise proper that said authority; act does not contravene constitutional or other estab- taxation; lished rule of I that can find in this nothing record, such abuse of the showing discretionary power of our interference; as warrants that assessment taxation of plaintiffs’ under said and in act the manner shown was valid. I think that it follows, therefore, the action of the court below in defendants’ demurrer overruling plaintiffs’ petition, far so related to the assessment and of said levy taxes county purposes perpetuating injunc- tion taxes, collection of such against erroneous; and the of said court judgment enjoining collection reversed, said taxes should be and this cause be dis- missed.
YOL. Y.—JUNE TEEM, 1896.
Wagoner al. Evans et al. et Scott, J., McAtee, J., tlie extent concurring the tax levied for holding territorial and court are valid, funds expense but hold also the balance of the levies are unauthorized, for the reason the people on these reservations are not interested such levies and receive no benefit from the expenditure moneys derived from such levies. *25 judgment district court is affirmed.
Bierer, J., below, in the court having presided Dale, J.,O. sitting; dissents. Wagoner
D. et al. v. Neil W. Evans et al. Error the District Court Canadian County. Speed Elood, Horace W. W.
error. Beid,
Thos B. County Attorney, W. Bush, W. for defendants in error. is, This case in the view
Pee Curiam: it, we take of identical with the case of &Gay Reed v. The County Commissioners Kay al., et County decided at court, term of and the of the trial judgment court in this case is the same as that of the trial court in the case we decided, have and without just elaboration upon the questions presented, the court judgment below is affirmed.