26 P. 310 | Ariz. | 1891
The territory of Arizona, appellee, recovered judgment against the Phoenix and Maricopa Railroad Company, appellant, in the court below for taxes on that part of the Phoenix and Maricopa Railroad lying within the boundaries of the Gila River Indian Reservation, in this territory. It is claimed by appellant that the territory has no jurisdiction within the said reservation, or legislative control over, and consequently no power to tax, property situate therein. If the reservation is to be considered as exclusively under the jurisdiction of the United States, the same as places purchased by the United States within the boundaries of states, and with the consent of said states, and for the purpose of forts, arsenals, magazines, dock-yards, etc., as seems to be assumed by appellant, then the contention of appellant would be supported by a great weight of authority, and would prevail in this case, provided the proposition applied to a railroad track, part of which is situate within and part without the boundaries of the reservation. In other words, we conceive it to be the law that property situate wholly within boundaries exclusively within the jurisdiction of the legislative power of the United States cannot be taxed by the territory within which it may be situate. But is the reservation within or outside of the legislative control of this territory?
There is nothing to show, nor does the court know judicially or otherwise, that there ever was any treaty between the government and the Indian tribe or tribes on the reservation. The ease in 102 U. S. 145, (Langford v. Monteith,) is directly in point. We make the following quotations: “Langford, the plaintiff in error, who was plaintiff below, brought an action before a justice of the peace in the nature of forcible detainer, to recover of Charles E. Monteith the possession of buildings and grounds occupied by the latter under the agent for the United States for the Nez Perce Indians.” Passing the first ground of defense, the opinion says: “Another allegation of the defense is that the property is situated within an Indian reservation, to which the Indian title has never been extinguished, and therefore forms no part of the territory of Idaho. Of course, if this latter allegation be true, neither the justice of the peace before whom the ease was tried first, nor the district court to which it afterwards came by appeal, had any jurisdiction over it. The opinion of this court in Harkness v. Hyde, 98 U. S. 476, is relied on by the defendant. The principle announced in that case is sound, namely, that when, by an act of Congress organizing a territorial government, lands are excepted out of the jurisdiction of the government thus brought into existence, they constitute no part of such territory, although they are included within its boundaries. Congress, from which the power to exercise the new jurisdiction emanates, has undoubted authority to exclude therefrom any part of the soil of the United' States, or of that whereto the Indians have the possessory title, when by our solemn treaties with them a stipulation to that effect had been made.” The opinion further says: “This court in Harkness v. Hyde, 98 U. S. 476, relying upon an imperfect extract found in the brief of counsel, inadvertently inferred that the treaty with the Shoshones, like that with the Shawnees, contains a clause excluding the lands of the tribe from territorial or state jurisdiction. In this case it seems we were laboring under a mistake. Where no such clause, or language equivalent to it, is found in a treaty with
The appellant is evidently misled by failing to note the distinction between reservations with treaties providing against their being included in territorial and state jurisdictions and reservations having no such treaty stipulation. But, even if there had been such treaty stipulation, a subsequent act of Congress in conflict with it would prevail over it. Cherokee Tobacco, 11 Wall. 621, says: “A treaty may supersede a prior act of Congress, and an act of Congress may supersede a prior treaty.” But appellant cites a number of cases holding the authority of the United States to be exclusive in certain places and districts, and denying the authority of state or territory therein. These cases are, however, a class unto themselves, and come under a provision of the constitution of the United States. The provision is as follows: ‘ ‘ Congress shall have power to exercise exclusive legislation in all cases whatsoever over such district (not exceeding ten miles square) as may, by cession of particular states and the accept-, anee of Congress, become the seat of the government of the United States, and exercise like authority over all such places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings.” The origin and effect of this provision is somewhat curious and interesting. The origin and scope of the provision is to be found in • Railroad Co. v. Lowe, 114 U. S. 529, 5 Sup. Ct. Rep. 995. It is there said: “The necessity of the supreme legislative authority over the seat of government was forcibly impressed upon the members of the constitutional convention by occurrences which took place near the close of the revolutionary war. At that time, while Congress was in session in Philadelphia, it was surrounded and insulted by a body of mutineers of the continental army.” In giving an account of this proceeding, Mr. Rawle, in his treatise on the constitution, says of the action of Congress: “ It applied to the executive authority of Pennsylvania for defense, but, under the ill-conceived constitution of the state at that time, the executive power was
The effect and scope of this constitutional provision is illustrated in a number of cases, extracts from several of which are set out in 114 U. S. 528, 5 Sup. Ct. Rep. 997, which case is cited and relied upon by appellant: We will notice a few of these cases, and it will be readily seen that they are very different from the case under consideration. In Commonwealth v. Clary, 8 Mass. 72, “the supreme court of Massachusetts held that the courts of the commonwealth could not take cognizance of offenses committed upon lands in the town of Springfield purchased with the consent of the commonwealth by the United States, for the purpose of erecting arsenals upon them. That was the case of a prosecution against the defendant for selling spirituous liquors on the lands without a license, contrary to a statute of the state, but the court held that the law had no operation within the lands mentioned. ‘The territory,’ it says, ‘on which the offense charged is agreed to have been committed is the territory of the United States, over which the Congress have the exclusive power of legislation.’ ” In Mitchell v. Tibbetts, 17 Pick. 298, it was held “that a vessel employed in transporting stone from Maine to the navy-yard in Charleston, Mass., a place purchased by the United States with the consent of the state, was not employed in transporting stone within the commonwealth, and therefore committed no offense in disregarding the statute making certain requirements of vessels thus employed.” The court said: “To bring a vessel within the description of the statute, she must be employed in landing stone at, or taking stone from, some place in the commonwealth, and that the law of Massachusetts did not extend to and operate within the territory ceded; adopting the principle of its previous decision in
But these eases are clearly distinguishable from this case. They come within the provision of the constitution conferring exclusive jurisdiction “over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings.”. The reason and purpose of the exclusive jurisdiction in such places does not exist on Indian reservations. Story, in his Commentaries on the Constitution, says: “If there has been no cession by the state of the place, although it has been constantly occupied and used, under purchase or otherwise, by the United States for a fort or arsenal, or other constitutional purpose, the state jurisdiction still remains complete and perfect;” and in support of his statement refers to People v. Godfrey, 17 Johns. 225. In that case the court says: “If the United States had the right of exclusive legislation over the fortress of Niagara, they would have also exclusive jurisdiction. But we are of opinion that the right of exclusive legislation within the territorial limits of any state can be acquired by the United States only in the mode pointed out in the constitution,—by purchase by consent of the legislature of the state in which the same shall be,—for
Kibbey, J., and Sloan, J., concur.