1 Kan. 148 | Kan. | 1862
By the Court,
Error from the district court for the first judicial district.
Counsel for defendants presented, among others, the following grounds of objection to the petition below, which give rise to all the questions to be considered by the court.
First. That the city of Leavenworth, in which was held the court when the proceedings in the case of Y oung vs. McCracken were had, (one of which proceedings the alleged cause of action in this case arose,) being on land belonging to the Delaware Indians at the date of the act organizing the territories of Kansas and Nebraska, was by that act excepted from the territory of Kansas, and therefore the proceedings were coram non judice and void.
The following provision in the first section of the above named law is relied on to sustain this position.
“Provided, further: That nothing in this act containe,d shall be authorized * * * to include any territory which, by treaty with any Indian tribe, is not, without the consent of such tribe, to be included within the territorial limits or jurisdiction of any state or territory; but all such territory shall be excepted out of the boundaries, and constitute, no part of the territory of, Kansas, until said tribe shall signify their assent to the president of the United States to be included .withingthe said territory of .Kansas.”
This ground of objection calls for no comment by the court, further than a statement that nowhere in any treaty with the Delaware Indians, is, there a provision that the lands of that tribe shall not, without its consent, be included within the territorial limits or jurisdiction of any state or territory. All the lands of that‘tribe, within the boundaries specifically described in the first section of the law referred to, were, there
Second. That if the lands ceded to the United States by treaty with the Delaware Indians, of 1854, on which was the town of Leavenworth, were in the jurisdiction of Kansas, yet entry and settlement on them were forbidden when the proceedings in Young vs. McCracken wore had, and that all the officers of the county and of the district court, and suitors there attending, were trespassers, their acts and proceedings void, and no liability could be incurred by the sureties by the execution and delivery of a bond there, or by service by the sheriff of process issued there by the court.
We-need not question the position that the first section of the act of the SOth June, 1834, to regulate trade and intercourse with the Indians, declares, for the purposes of that act, all the territory west of the state of Missouri to be “the Indian country.” But that act docs not prohibit settlement, by persons not foregners, on the lands in that country, except on those lands “belonging, secured or granted, by treaty with the United States, to any Indian tribe.” [See § 11.) And so far as it forbids settlement by foreigners, or forbids any kind of manufacture by or commerce among persons not Indians, or belonging to Indian tribes — and not on the lands of the Indian tribes — to that extent, at least, its provisions were in conflict with the act organizing the territories of Kansas and Nebraska, and were, by that act, by implication, repealed. For the United States, when the act organizing the territory of Kansas was passed, had extinguished the Indian,title to moré thair half fcho lands in Kansas, and by express provision in that act, made them subject to tho pre-emption laws, and by establishing a complete system of government -for the people, and opening the public .lands to settlement, it invited and encouraged the formation of- commercial and agricultural communities in Kansas, which -could not have risen or existed.
About two months after the aet to organize the territory of Kansas, and on the 17th of July, 1854, the Delawares ceded to the United States the tract known as “ the outlet,” in consideration of the payment of ten thousand dollars, and also the tract known as the “trust lands,” in consideration of a stipulation to pay them the net proceeds of the sale thereof. From the date of the cession, these ceded lands and tlieir occupants (not Indians) became subject to the laws of congress precisely as tho other public lands in Kansas, and their occupants were subject to them, except as the treaty contained provisions of special and local application to them.
The only provisions in the treaty of. such special and local application are the provisions in the second article, by which the government agrees, without a saving clause for pre-emptors, to offer the trust lands at public auction; and the provision in the sixteenth article, that the aet of third of March, 1807, (Brightley’s Digest, p. 487,) should, “ so far as applicable,” extend to the lands ceded in the treaty.
This act of 1807 provides that, “if any person or persons shall take possession of or make settlement on any lands ceded or secured to the United States by any treaty made with a foreign nation, or by a cession by any state to tho United States, which lands shall not have been previously sold, ceded or leased by the United States, or shall survey, or cause to be surveyed, any such lands, or designate any boundaries thereon, by marking trees, or otherwise, until thereto duly authorized by law,” such offender shall forfeit all his right, title or claim to such, land, and be subject to be removed by the president. This act was not in full force over the other lands of the United States in Kansas, for it forbids these settlements on public lands, which the pre-emption laws, passed subsequent to it, expressly authorized. It was declared by the treaty, applicable to tho “.trust lands,” apparently in
We need not discuss the.question whether, the act of 1807 would have been applicable to settlers on the trust lands, without the sixteenth article of the treaty, or whether if, it would not have been applicable, the treaty provision could give it effect. It will be seen that these provisions of treaty and law prohibit only settlement or survey. They do not, nor can they be construed to prohibit any person passing to and* fro over the lands so ceded, nor to prohibit the government, whether of the territory or of any of its political subdivisions, establishing its offices, holding its courts, and issuing and executing its process, at any place upon them. And if the act of 1807 could be construed . as thus restraining the government, it would, to that extent, be, in the language of the treaty, “ inapplicable,” as in conflict with the act organizing the territory. {See, specially, § 85.)
Lest, by restricting our opinion to the question of the power of the territorial government to exercise its functions on the “trust lands,” we occasion misconstruction, it may be well to say, further, that the process of all the courts of the territory could, undoubtedly, have been legally executed anywhere within the limits defined by the territorial laws, whether on the Indian, or the military reservations — except, only, on those Indian reservations, in regard to which it is stipulated, by express treaty provision, in force and effect during the existence of the territory of Kansas, that they should not be included within the limits, or jurisdiction, of any state or territory. And that the state courts have like power, subject to the laws of the state, to execute their process on any. Indian or government reservation within the limits defined by state laws, except, only, on such Indian reservations as were, in like manner, stipulated to be excluded from the limits of
Third. It is argued that the' petition was demurable, by reason of the fact that the writ of attachment, as set out in it, does not appear to have the seal of the court attached. The petition alleged that the writ “was issued out of and under the seal of the court,” and that allegation needed no support by further • description, whether in the language of the pleader or of the process described. If, in fact, the writ was not under seal, and that irregularity was relied on as a defense, the fact-should have been set up by answer.
Fourth. It is insisted.that the sheriff’s bond sued on is not a statutory bond, because its conditions are, “ that the said Green D. Todd shall -faithfully perform the duties of such sheriff, as aforesaid, and faithfully demean-himself in office, pay over all moneys that may come to his hands, by virtue of said office, according to the lawful direction of the same,. and in all things act according to law;” while the conditions prescribed by law, (stat. 1855, p. 714,) were, “that he will faithfully collect' and pay over all moneys entrusted to him for collection, and account for all moneys coming into his hands, and faithfully and impartially demean himself in office.” There is no difference, in substance' and legal effect, between the conditions, of this bond and those of the statute. The plain meaning of the statute, without addition or restriction, 'is expressed in the -bond, but in other and much better language. It is, therefore,' a statutory bond. (Farrar vs. Brown, 5 Peters, 388; Dutton vs. Kelsey, 2 Wend., 616; Miltenberger vs. Schlegel, 7 Barr, 251; Skellinger vs. Yendes, 12 Wend., 308.) .
•The first section of the act, under which Todd was elected, provides that- “ the sheriff shall, when elected, be commissioned by the governor, and shall take the oath, of office prescribed by-law, which shall be indorsed on his commission, tod the same, so indorsed, shall be recorded in the-office of
After careful consideration of the subject, we are of the opinion that the sureties could not take advantage of the omission to have the bond approved, and its amount proscribed by the probate court. They designated the amount, within the statutory limits, for which they were willing to become liable, and the deposit of the bond for record was delivery. The purpose of the law in requiring the action of the court upon the bond was clearly and solely to secure those who might suffer, as did McCracken, by the sheriff’s default; or misconduct in office, and not at all to secure him, or bis sureties. Todd was sheriff from the date he accepted his commission, and his neglect, or that of the court, to have the bond approved, did not vacate the office. (8 Ind., 134.) His official acts, notwithstanding such failure, were binding and effectual. To allow the sureties, who had executed and delivered the bond, and who could not be prejudiced by the want of approval, to escape the liability they intended to assume, would wrest the law from its plain purpose. Itwould make the provisions, intended as public safeguards, the frequent and ready means of shielding from responsibility the sureties of any officer who might dishonestly or carelessly disregard them. Our opinion on this question is fully sustained by authority. (Jones vs. The State, 7 Mo., 81; Skellinger vs. Yendes, 12 Wend., 306; Maupleman vs. Commonwealth, 7 Barr, 246; Davis vs. Hayden, 3 Scam., 35; Ring
Sixth. Finally, it is objected that the petition does not allege that McMeekin’s appointment as deputy sheriff was approved by the probate court. (See Stat. 1855, p. 718, § 6.) It is a sufficient answer to this objection that the thirte'enth section of the same act confers on the sheriff “ all the authority, power and privileges usually conferred on officers of a similar character.” By the common law, expressly adopted here, (Stat. 1855, p. 469,) a sheriff could depute a person, who was-not and could not have been appointed a general deputy, to do a specified official act. “ An infant may be appointed to serve a particular writ, but cannot act as a general deputy. (1 Salk. 96; Gwynne on Sheriffs, p. 43, and cases cited!) The appointment of McMeekin as deputy, and the delivery of the writ of attachment to him by the sheriff, were sufficient authority to him to serve the writ. Hence, it is necessary to consider whether the sureties would be bound by the acts of McMeekin, as a general deputy, without approval of his appointment.
The demui-rer, therefore, should have been overruled.
Ordered by the court, that the judgment in this case be reversed and the cause be remanded to the district court, with instructions to overrule the demurrer.
