author: HELVERING, District Judge.

text:
    BOWLES, Price Administrator, Office of Price Administration, v. SEC-CON HOME BUILDERS, Inc., et al.
    Civ. No. 5367.
    District Court, D. Kansas, First Division.
    June 25, 1945.
    Dean Wood, of Kansas City, Mo., for plaintiff.
    Stanley Garrity, of Kansas City, Mo., and John Bukaty, of Kansas City, Kan., for defendants.
   HELVERING, District Judge.

Now on this 21st day of May, 1945, this matter comes on for hearing on plaintiff’s Application for a Temporary Injunction. By agreement between the parties the matter is considered at this time on final hearing on plaintiff’s prayer for a permanent injunction. Statements of counsel having been made, testimony of witnesses and documentary evidence is introduced, and leave to file depositions and briefs of argument is granted.

Thereupon, the Court having been fully advised in the premises, having examined the pleadings filed in this cause, having fully considered the testimony and documentary evidence introduced, and having considered the oral arguments and briefs of counsel, makes the following findings of fact and conclusions of law:

Findings of Fact

1. The plaintiff, Chester Bowles, is the duly appointed and acting Administrator of the Office of Price Administration. Defendant Sec-Con Home Builders, Inc., is a corporation duly and legally incorporated under the laws of the State of Missouri and duly authorized to do business in the State of Kansas, and the defendant Sylvester Allegro is the President and one of the managing officers of the corporate defendant. The defendants are transacting business within the state of Kansas.

2. The defendant Sec-Con Home Builders, Inc., a corporation, has been properly served with process and the defendant Sylvester Allegro has entered his personal appearance in this action.

3. Defendant corporation has legal title to and operates and supervises the rental of the following properties located in Mission, Johnson County, Kansas, such properties being now occupied by the tenants whose names follow the description of each of the premises:

5434 Outlook 5438 Outlook 5440 Outlook 5441 Outlook 5433 Woodson 5435 Woodson 5437 Woodson 5439 Woodson 4604 W. 55th St. 4704 W. 55th St. C. C. Weig L. E. Pearson J. E. Wilcoxen W. L. Howell C. A. Berg F. E. Rahe H. D. Gibson R. E. Reggenbach C. O. Swain Herbert Shuey

4. The residences on said premises were constructed by the defendant corporation in 1942 and said construction was financed by mortgage loans insured by the Federal Housing Administration, an agency of the United States government, under and by authority of Title VI of the National Housing Act, 12 U.S.C.A. § 1736 et seq.

5. On or about March 26, 1942, application was made by the defendant corporation to the Office of Production Management, Division of Priorities, for allocation of preference rating on materials necessary for the construction of said housing. On March 28, 1942, said application was certified by the Federal Housing Administration as covering housing considered to be Defense Housing and eligible for preference rating assistance, and on April 15, 1942, said application was approved by the Office of Production Management and preference rating was granted.

6. Said application for priority assistance contained, under item 5 of the “Certificate by Owner”, a statement of “proposed total monthly rent to be charged per dwelling unit” under which the applicant proposed a total monthly charge of $50 per unit. Said certification also contained an agreement by the owner not to charge more than the amount proposed under item 5. The application makes no reference to minimum rental charges and includes no agreement on the part of the applicant to charge the maximum rental proposed and no requirement by either the Federal Housing Administration or the Office of Production Management as to minimum rentals which must be charged.

7. Title VI of the National Housing Act, Section 608 (b) (1), 12 U.S.C.A. 1743 (b) (1), provides that the Administrator “may, in his discretion” require the mortgagor “to be regulated or restricted as to rents or sales, charges, capital structure, rate of return, and methods of operation.” General Order 60-3 issued by the National Housing Agency in February of 1943 (F. R. February 11, 1943, Vol. 8, No. 29), in subsection (C) (1) provides that, for the duration of the national emergency declared by the President of the United States on September 8, 1939 (4 F. R. 3851), the rental charges for private war housing, construction of which was begun before February 10, 1943, "shall not exceed the respective maximum amounts permitted by the conditions of the application * * * for priority assistance * * * submitted in connection with such housing” unless approval of the War Production Board or the National Housing Agency has been obtained. No evidence has been introduced which would show that either the War Production Board, the Office of Production Management, the National Housing Agency, or the Federal Housing Administration has ever attempted to regulate rentals on the properties which are the subject of this action by establishing minimum rental charges and the Court, therefore, finds that no such regulation or fixed minimum rental rates promulgated by any of said agencies exists.

8. The Emergency Price Control Act of 1942 provides in Section 2(b), 50 U.S.C.A. Appendix § 902(b), that, whenever in the judgment of the Administrator such action is necessary or proper to effectuate the purposes of the Act, he shall issue a declaration making recommendations with reference to the “stabilization or reduction of rents for any defense-area housing accommodations within a particular defense-rental area” and when such stabilization or reduction has not been effected within sixty days thereafter he may “by regulation or order establish such maximum rent or maximum rents for such accommodations as * * * will effectuate the purposes of this Act.” Subdivision (d) of the same section provides that he may prohibit manipulative practices in connection with “any defense-area housing accommodations” which may result in rental increases.

9. The Administrator of the Office of Price Administration under authority granted him by Congress through the Emergency Price Control Act of 1942, Section 2(b), designated the counties of Johnson, Leavenworth, and Wyandotte in the State of Kansas and the counties of Clay, Jackson, and Platte in the State of Missouri a Defense-Rental Area, and thereafter, pursuant to the same section of said Act, issued a regulation establishing the maximum rent which could thereafter be charged for all housing accommodations in said Defense-Rental Area. Said regulation became effective on September 1, 1942.

10. The Administrator of the Office of Price Administration, under authority granted to him by the Emergency Price Control Act, issued Rent Regulation for Housing No. 1388.1181, the same being the regulation establishing maximum rents referred to above. Said regulation was in effect on April 27, 1945, and provided in Section 4 thereof the maximum rents to be charged in Defense-Rental Areas. The introductory provision of said section is “Sec. 4. Maximum Rents. Maximum rents (unless and until changed by the Administrator as provided in section 5) shall be: * * Section 4(f) establishes maximum rentals on housing constructed with government priority ratings and on which the rental charge has been approved by an agency of the United States government. Such regulation applies to the housing which is the subject of this action. Section 5 of said regulation provides that the Administrator may issue an order changing the maximum rents otherwise allowable and sets forth the grounds for decrease of rents, which include substantial deterioration of the housing accommodations or a decrease in the minimum services required by section 3 of the regulation since the date or order determining the maximum rent.

11. Prior to April 27, 1945, the defendants had charged each of the tenants of the properties involved in this action $50 per month as rent for said properties.

12. On April 27, 1945, plaintiff issued an Order and Directive, effective May 1, 1945, reducing the permissible maximum monthly rental charges on said properties to the following amounts:

5434 Outlook 5438 Outlook 5440 Outlook 5441 Outlook 5433 Woodson 5435 Woodson 5437 Woodson 5439 Woodson 4604 W. 55th St. 4704 W. 55th St. $40.00 per month $30.00 per month $35.00 per month $30.00 per month $32.50 per month $40.00 per month $35.00 per month $35.00 per month $30.00 per month $32.50 per month

Said decreases in rent were ordered under authority of Regulation No. 138S.1181, Section 5 (C) (2) and (3) on the grounds of substantial deterioration of the properties and decrease in services.

13. Said Order and Directive of April 27, 1945, and said Rent Regulation for Housing No. 1388.1181 are administrative orders and defendants have not availed themselves of the provisions for review or protest as authorized by Revised Procedural Regulation No. 3 established by the Administrator of the Office of Price Administration under authority of sections 201 (d) and 203 of the Emergency Price Control Act as amended, 50 U.S.C.A.Appendix §§ 921 (d), 923, and they have filed no complaint relating thereto before the Emergency Court of Appeals.

14. Section 204 (a) of the Emergency Price Control Act gives the Emergency Court of Appeals and the Supreme Court of the United States exclusive jurisdiction to determine the validity of any regulation or order issued under section 2 of the Act. Defendants have not challenged the validity of the orders and regulations of the Administrator of the Office of Price Administration establishing the Defense-Rental Area here involved, establishing the maximum rentals for said area, providing for the inclusion therein of and the regulation of rentals charged for the housing here involved, or the orders reducing said rents before either of said courts.

15. The defendants have refused to comply with said regulations and said Order and Directive of April 27, 1945, have demanded the payment of rent by each of said tenants in excess of the maximum rentals as established ¡by said Order and Directive, have notified each of said tenants that unless the former rent of $50 per month is paid defendants will evict said tenants for nonpayment of rent, and have sent some of said tenants written notices as provided by the statutes of the State of Kansas ordering said tenants to vacate said premises within three days from May 1, 1945, because of nonpayment of rent. Said tenants have refused to pay more than the maximum rental permitted by said Order and Directive but are ready and willing to pay and have tendered payment of rent at the rates established by said Order and Directive, which rent defendants have refused to accept.

Conclusions of Law

1. This Court has personal jurisdiction of the parties to and of the subject matter of this action.

2. The Administrator of the Office of Price Administration had jurisdiction of the properties here involved at the time his Order and Directive of April 27, 1945, was issued for the purpose of reducing the maximum monthly rent which could be charged therefor.

3. Neither the Administrator of the Federal Housing Administration, the National Housing Agency, the Office of Production Management, nor the War Production Board had on or prior to April 27, 1945, established a minimum monthly rental which defendants were required to charge for said properties and there is no conflict between the regulations and orders heretofore made and issued by the War Production Board, the Administrators of the National Housing Agency, the Federal Hous- . ing Administration, or the Office of Production Managment and those made and issued by the Administrator of the Office of Price Administration relating to the establishment of maximum rentals on said properties.

4. This Court has no jurisdiction to determine the validity of regulations issued by the Administrator of the Office of Price Administration establishing Defense-Rental Areas and setting maximum rental charges which may be made for housing accommodations located therein or of orders and directives issued by the Administrator of the Office of Price Administration reducing rents thereon in accordance with regulations issued by him under authority of the Emergency Price Control Act of 1942.

5. As a basis for the relief sought in this action, the Order and Directive issued by the Administrator of the Office of Price Administration on April 27, 1945, reducing the maximum rents which could be charged by defendants on the properties involved herein was valid and effective at the time of the hearing herein.

6. Defendants have violated and are continuing to violate Section 4(a) and (b) of the Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix § 904 (a, b), Section 6 (a) and (d) of Rent Regulation for Housing No. 1388.1181 and the Order and Directive of April 27, 1945, issued by the Administrator of the Office of Price Administration.

7. Plaintiff is entitled to an injunction enjoining and restraining the said defendants and each of them from violating the Rent Regulation for Housing and the Emergency Price Control Act and requiring them to obey the Order and Directive issued on April 27, 1945, and to cease and desist from any attempt, or action in court, to evict any of said tenants or to require any of them to vacate said premises for nonpayment of rent in excess of the rent established in said Order and Directive.

It is, therefore, by the Court, considered, ordered, adjudged, and decreed that the defendants, their servants, agents, employees, attorneys and all other persons in active concert or participation with them or either of them be and they are hereby enjoined and restrained (a) from directly or indirectly demanding or receiving, or attempting to demand or receive, rents or other charges for the use and occupancy of property owned by them in excess of the maximum legal rent permitted under the Rent Regulation for Housing and the Order and Directive issued by the Administrator of the Office of Price Administration on April 27, 1945; (b) to cease and desist from any attempt, or action in court, to evict any of their tenants or to require any of them to vacate said premises for nonpayment of rent in excess of the rent established by the Rent Regulations for Housing and the Order and Directive of the Administrator of the Office of Price Control issued April 27, 1945; (c) permitting or continuing any acts, practices, or omissions in violation of any regulation, schedule, requirement or order relating to rent which now has or may hereafter be issued by the Office of Price Administration pursuant to the Emergency Price Control Act of 1942, as amended.

It is further ordered, adjudged, and decreed by the Court that the costs of this action be taxed to the defendants herein.


source: Caselaw Access Project

author: UNDERWOOD, District Judge.

license: Public Domain

text:
    GARCIA v. SANFORD, Warden.
    No. 2055.
    District Court, N. D. Georgia, Atlanta Division.
    March 8, 1945.
    Petitioner in personam.
    M. Neil Andrews, U. S. Atty., and Harvey H. Tisinger, Asst. U. S. Atty., both of Atlanta, Ga., for respondent.
   UNDERWOOD, District Judge.

On July 14, 1944, in the United States District Court for the District of Puerto Rico, petitioner was sentenced upon an indictment of two counts, the first charging the unlawful obtaining of “certain marihuana, to wit, approximately 3 cigarettes thereof, without having paid the tax which the law required him to pay upon such transfer of marihuana”; and the second count charging the unlawful transportation of the same three cigarettes. He was sentenced to a term of five years on the first count and three years on the second count, the sentences to run consecutively, but the execution of the sentence on the second count was suspended and defendant placed on probation for five years. Petitioner is now serving the sentence imposed on the first count.

Petitioner was indicted on June 20, 1944. On June 23rd he was arraigned and entered his plea of not guilty. He was at that time represented by counsel appointed by the Court, but subsequently secured other counsel.

The case was set for trial on August 21, 1944, but, prior to that date, on July 14, 1944, he was brought before the Judge in chambers where his plea was changed by his new counsel from not guilty to guilty and sentence was immediately imposed.

For grounds for writ of habeas corpus petitioner alleges that the sentences imposed are invalid because (1) he was not sentenced in open court, but after adjournment of court and in the Judge’s chambers; (2) because he never waived or authorized his attorney to waive proceedings and sentence in open court; and (3) because he never competently and intelligently changed his plea and entered a plea of guilty or authorized his attorney to do so.

Petitioner’s testimony supports all of these contentions.

Respondent introduced in evidence the affidavits of Judge Robert A. Cooper, Pas-cual Amado Rivera, Assistant United States Attorney, and Jorge Ortiz Toro, defendant’s attorney. These affidavits are all to the same effect. In fact, Judge Cooper adopts the statements set out in the affidavits of the other two witnesses and further stated, “The proceedings of the change of plea from not guilty to guilty and the sentence in this case were conducted in my chambers at the special request of counsel for the defendant.” Mr. Rivera testified that, “The proceedings of the change of plea from not guilty to guilty and the imposition of sentence were conducted in the Judge’s chambers at the request of defendant’s counsel, who arrived just after the Court had adjourned that Friday morning.”

Mr. Toro testified that petitioner asked him “to tell the Judge to give him a long sentence,” but that he could not and did not tell petitioner what sentence he would receive because he did not know beforehand what sentence the Judge would give him. Mr. Toro further testified that petitioner “withdrew his prior plea of not guilty and pleaded guilty in the Judge’s chambers. He was sentenced immediately, also in the Judge’s chambers. His sentence was heard by the Clerk, a Deputy Marshal, the Assistant District Attorney, and myself.” He further testified as follows: “I do not feel that defendant was prejudiced in any way by having his plea of guilty taken and sentence imposed in the Judge’s chambers. This was done at my request and as an accommodation to me, my demeanor having amounted to a waiver of any right that defendant may have had to have his case called in the adjoining court room.”

It appears indisputably, therefore, from respondent’s evidence, that petitioner entered his plea of guilty and received sentence not in open court, but in the Judge’s chambers, after court had adjourned. Petitioner denies that he consented to such disposition of his case or that he waived any of his rights, at least as far as an express waiver is concerned. His testimony in this respect has not been challenged, but it appears from respondent’s evidence that his attorney, without the consent of petitioner, took it upon himself to waive petitioner’s rights for his own convenience. Mr. Toro does not testify that petitioner authorized him to enter the plea of guilty except by inference, and petitioner denies that he did.

A criminal court is, of course, a common law court and, “It is a fundamental principle that courts can exercise judicial functions only at such times and places as are fixed by law, and that the judges of courts can enter no orders in vacation, except such as are expressly authorized by statute.” Blair v. Reading, 99 III. 600, quoted with approval in Hammock v. Farmers Loan & Trust Co., 105 U.S. 77, 83, 26 L-Ed. 1111. The power or authority of the Judge at chambers is not an original power or authority to be exercised independently of the court. His jurisdiction and power are fixed by and limited to that granted by law. At common law the power is a very limited one, such as is ordinarily conducive to facilitate business pending in court and does not ordinarily extend to final judgments and sentences in criminal actions. No Federal statute authorizes imposition of a sentence in a criminal case in chambers. Such sentence can be imposed only in open court, unless such procedure is intelligently and competently waived. It is doubtful that it can be waived. Wright v. State, 103 Ala. 95, 15 So. 506; Reed v. State, 147 Ind. 41, 46 N.E. 135; State v. Scarborough, 70 S.G 288, 49 S.E. 860. This requirement is a protection afforded not only to a defendant, but also to society and safeguards against the possibility of star chamber proceedings.

“The public has an interest in his life and liberty. Neither can be lawfully taken except in the mode prescribed by law. That which the law makes essential in proceedings involving the deprivation of life or liberty cannot be dispensed with, or affected by the consent of the accused, much less by his mere failure, when on trial and in custody, to object to unauthorized methods.” Hopt v. People of Territory of Utah, 110 U.S. 574, 579, 4 S.Ct. 202, 204, 28 L.Ed. 262.

The evidence in this case does not establish any waiver of the right to proceedings and sentence in open court, even if such waiver could be lawfully made. The evidence clearly shows that the alleged waiver was only implied and the act of petitioner’s counsel for his own accommodation and without consultation with and consent of his client.

Furthermore, waivers of a constitutional right are never favored but must be established by clear and unequivocal proof. The Supreme Court has announced this principle in the following language:

“It has been pointed out that ‘courts indulge every reasonable presumption against waiver’ of fundamental constitutional rights and that we ‘do not presume acquiescence in the loss of fundamental rights.’ A waiver is ordinarily an intentional relinquishment or abandoment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 146 A.L.R. 357.

In the case of Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 465, 86 L.Ed. 680, the Supreme Court say that, “To preserve the protection of the Bill of Rights for hard-pressed defendants, we indulge every reasonable presumption against the waiver of fundamental rights.” In this case the Court cites Ætna Insurance Co. v. Kennedy, 301 U.S. 389, 57 S.Ct. 809, 81 L.Ed. 1177; Ohio Bell Telephone Co. v. Public Utilities Commission, 301 U.S. 292, 57 S.Ct. 724, 81 L.Ed. 1093; Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854, 70 A.L.R. 263; and Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357.

As to the other grounds for habeas corpus, it appears from the record in this proceeding that there was much haste, lack of consultation with petitioner, and as far as he was concerned, little understanding of what was taking place. I think that if petitioner plead guilty, such plea was not competently and intelligently made.

In my opinion, all three grounds of the writ of habeas corpus have been established and I find, therefore, that the writ should be sustained and petitioner discharged.


author: LEAVY, District Judge.

text:
    UNITED STATES v. MOORE, Director of Fisheries of Washington, et al.
    No. 554.
    District Court, W. D. Washington, S. D.
    Sept. 26, 1945.

      J. Charles Dennis, U. S. Atty., and Harry Sager, Asst. U. S. Atty., both of Tacoma, Wash., and Kenneth R. L. Simmons, Dist. Counsel, Office of the Solicitor, Department of the Interior, of Billings, Mont., for plaintiff.
    Smith Troy, Atty. Gen., of Washington, Harold A. Pebbles, Asst. Atty. Gen., and Max Church, Sp. Asst. Atty. Gen., for defendants.
   LEAVY, District Judge.

This is an action by the United States on behalf of the Quillehüte Tribe of Indians, wherein the United States seeks to enjoin Milo Moore, Director of Fisheries of the State of Washington, and John Biggs, Acting Director of Game of the State of Washington, from in any manner interfering with the Quillehute Indians in their use of the waters of the Quillehute River and the tide lands of the Pacific Ocean, where the River and ocean border on the reservation, and, further, to enjoin them from exercising jurisdiction in the region just described.

It is admitted that the aforementioned Milo Moore and John Biggs are being proceeded against as public officials of the State of Washington, and not as private individuals. The contest, therefore, is one between the United States and the State of Washington.

The issue for determination here is the ownership of the Quillehute River bed and the ocean tide lands, where they border this Reservation. If such ownership is actually in the State of Washington, the plaintiff is not entitled to the relief sought, and its action must be dismissed. If such lands were included in the Reservation at the time the proclamation was promulgated creating it, then the plaintiff would be entitled to prevail herein.

By reason of previous litigation which involved the jurisdiction of the Federal Government over the identical area, there is presented a question of law that must first be determined before any consideration can be given to the questions of fact in this case.

The plaintiff in 1929 instituted an action in this court against one W. F. Taylor and others; the State of Washington was not a party to such action, either directly or through any of its public officials. In that action it was alleged that W. F. Taylor was maintaining certain barges fastened to dolphins, which were constructed in the bed of the Quillehute River, where the same is adjacent to the Reservation uplands. The United States Government sought, on behalf of the Quillehute Indians, to establish its jurisdiction and control of the particular area involved. The jurisdictional question here presented is identical with that presented in the Taylor case, infra. The late Judge Cushman, sitting in this court, determined in that proceeding that the bed of the River, where it bordered the Reservation, wás. intended to be, and was, in fact, a part of the Reservation and under federal jurisdiction, and entered a decree for the plaintiff and against the defendant, Taylor. United States v. Taylor, 9 Cir., 33 F.2d 608.

An appeal followed, resulting in a reversal, and an express holding by the Circuit Court that the river bed and the tide lands were held in fee by the State of Washington and under its exclusive juris-' diction and control. Taylor v. United States, 9 Cir., 44 F.2d 531.

Certiorari was sought and denied in the Supreme Court of the United States. 283 U.S. 820, 51 S.Ct. 345, 75 L.Ed. 1436. Throughout this opinion I shall refer to the litigation mentioned as being the “Taylor case.”

The defendants herein, by the answer on file in this case, affirmatively plead the doctrines of res judicata and stare decisis, and they take the position that the application of either of these doctrines are determinative of the issues raised in this case. The plaintiff insists that neither of these doctrines applies to the issues as made by the pleadings a'nd proof submitted, because in the Taylor case the parties were not the same as here, and that it was decided in the Circuit Court upon an erroneous premise as to the facts.

The navigability of the Quillehute River where it borders the Reservation is admitted. It is also admitted that such River is navigable at least for a distance of some miles above the Indian Reservation.

While it is clear that the plaintiff in this case was also plaintiff in the Taylor case, the defendant is an entirely different party, being, in fact, the sovereign State of Washington, and any private rights that might be involved here are only incidental. This litigation is a controversy between the Federal Government, on the one hand, acting as guardian of a duly recognized Indian Tribe, and the individuals named herein as defendants, acting in their official capacity for and on behalf of the State of Washington. When so considered, it is evident that the doctrine of res judicata is without application.

The second contention of the defendant that the Taylor case is stare decisis and becomes the law of this case is a more serious one. The principles of law to be given application are identical in the Taylor case and in the instant case. The law of . the Taylor case is the law of this case, if there is a sufficient degree of similarity between the facts as -asserted in the decision in the Taylor case and the facts as this Court actually finds them in the instant case.

It is undisputed that the facts as stated by Judge Wilbur in writing the opinion in the Taylor case disclose unequivocally an error as to one of the most material features essential -to a determination of that case. This being so, it seems to me that this court must apply the principles of law announced in the Taylor case to the facts as actually established by the proof submitted, then ascertain if a different result would be reached in this case from that which obtained in the Taylor case.

This court recognizes its duty to apply the law as announced by the Circuit Court of Appeals for this Circuit. We have here a situation where the law has been given application to an erroneous material fact, and it would therefore seem plain that the only way to avoid a palpable injustice is to apply the law to the facts as actually established by the proof, even though it might result in an inferior court’s arriving at a result directly contrary to that of an appellate court. There is no way to avoid an obvious injustice except to apply the law to the facts as they are actually established, rather than as they were erroneously determined to be in the Taylor case. I hold, therefore, that the Taylor case does not establish as binding upon this court the doctrine of stare decisis, since the facts as therein stated are not those found in this case.

The defendants contend that, irrespective of the error of fact as stated in the Taylor opinion, the conclusions reached still control because there are sufficient admitted facts in the opinion to support the conclusion reached by the Circuit Court. A few quotations from the Taylor case clearly indicate that the decision turned upon the question as to whether the State of Washington had vested rights in the tide lands of the Pacific Ocean and the Quillehute River bed where these waters were adjacent to the Indian Reservation. That the court held the State had acquired such rights by reason of its existence prior to the creation of the Reservation, is evidenced by the following language [44 F.2d 535]:

“We are inclined to think that the inferences to be derived from the fact that’the Quileute [Quillehute] Indians for whom the reservation was set apart are overcome by the prior express grant of the tide lands and navigable waters to the state.” (Italics mine)

The court then gave consideration to a decision of the United States Supreme Court, in Donnelly v. United States, 228 U.S. 243, 33 S.Ct. 449, 57 L.Ed. 820, Ann. Cas.1913E, 710, and used this language:

“This case would be determinative of the case at bar were it not for the fact that the title of the state of Washington to the submerged lands now claimed to belong to the Quileute Indian Reservation was subject to the inchoate rights of the Indians. The decision, however, clearly shows the importance of a consideration of previously vested rights of a state in navigable streams, in determining the effect of a subsequent order setting apart an Indian reservation. So considered, we hold that the order of President Cleveland of February 19, 1889, under consideration, did not reserve the submerged lands in question for their use.” (Italics mine)

The Donnelly case, supra, dealt with the question of jurisdiction over the bed of the Klamath River, where, by prior presidential proclamation, the Hoopa Valley Reservation was established upon “a tract of country one mile in width on each side of the Klamath River.” 1 Kappler’s, p. 815. It was there held that jurisdiction of the bed of the River was in the United States, and belonged to the Indian Reservation, even though no reference to the bed of the River was made in the Executive Order establishing the Reservation. It is this decision that Judge Wilbur says states the law that “would be determinative” as to the Quillehute Reservation.

It is impossible for me to conceive how language could be more direct and unequivocal than that just quoted from the Taylor case, to indicate that the decision turned on the mistaken assumption that the State of Washington was in existence at the time the Reservation was created, and its rights to the river bed and tide lands had become fixed.

The Reservation was created on the 19th day of February, 1889, and whatever rights the Quillehute Tribe of Indians have therein were determined on that day. The Enabling Act, by which the Territory of Washington was permitted to become a state, did not become law until the 22nd day of February, 1889, and the State was not admitted into the Union until November 11, 1889.

It would not be a violent assumption to conclude that President Cleveland sought to meet the nation’s responsibilities, as fixed by the earlier treaty with the Quille-hutes, before he signed the law enabling the territory of Washington to become a state. The Enabling Act provided that the new state expressly waived all claim to the Indian lands within its boundaries. Sec. 4, Act of February 22, 1889, 25 Stat. 676, the Washington Enabling Act.

In the Taylor case, the court said:

“After all, the question is one of intent to be determined from the terms of the instruments under consideration in the light of the surrounding circumstances and the history leading up to the promulgation of the instrument.”

An examination of the opinion, however, discloses that the Court did not, in the opinion, review the “surrounding circumstances,” nor the “history leading up to the promulgation of the instrument,” but turned its decision of the case upon the “previously vested rights of a state,” and based it upon the mistaken fact that the creation of the State of Washington was prior to the creation of the Indian Reservation, which resulted in the conclusion that the State had vested rights. This court must consider the facts as made by the proof and determine the rights of the parties based upon such proof.

To determine the intent of the President when he promulgated the proclamation creating the Quillehute Reservation, we must go back to the treaty made by the Government with this Tribe of Indians in 1855. It is this document that determines the obligation of the Federal Government to this tribe of Indians. Article I of the Treaty specifically provides that the Quillehute Indians, together with Indians of other tribes, ceded to the United States all prior claim they had to a vast acreage of land on the Olympic Peninsula upon the conditions as set forth in Article II of the Treaty, which are:

• “There shall, however, be reserved, for the use and occupation of the tribes< and bands aforesaid, a tract or tracts of land sufficient for their wants within the Territory of Washington, to be selected by the President of the United States, * * * and no white man shall be permitted to reside thereon without permission of the tribe and of the superintendent of Indian affairs or Indian agents.” (12 Stat. 971— II Kappler’s Indian Laws and Treaties, 719.) (Italics mine)

In order to fulfill this solemn treaty obligation, President Cleveland, thirty-four years later, promulgated an Executive Order as follows:

“Executive Mansion, February 19, 1889.
“It is hereby ordered that the following-described tracts of land situate in Washington Territory, viz.: Lots 3, 4, 5, and 6, section 21; lots 10, 11, and 12, and the southwest quarter of the southwest quarter, section 22; fractional section 27, and lots 1, 2, and 3, section 28 — all in township 28 north, of range 15 west, be, and the same are hereby, withdrawn from,sale and settlement; and set apart for the permanent use and occupation of the Quillehute Indians : Provided, That this withdrawal shall not affect any existing valid rights of any party.
“Grover Cleveland.”
(I Kappler’s 923).

At the time of the issuance of the Executive Order, one Pullen, a white man, by false and fraudulent representations, had secured a preemption claim to lands upon which the Quillehute Indian village was. located; and erected thereon a building, and was forcing the Indians out of their homes. This entry was later canceled on the ground of fraud. Other white men,, under the Public Land Laws, had settled' on practically all the lands adjacent to those described in the Executive Order. It was to protect legitimate entries that the-proviso was written into the Executive Order.

For more than forty years following the creation of the Reservation, there was no: real conflict of interests between the Indians and whites, and then in 1929, by reason of the use being made by the whites of the bed of the Quillehute River, the Federal Government began the action which is referred to as the Taylor case. Following the holding of the Circuit Court in that case, the State of Washington challenged, for the first time, the right of the Quille-hute Indians to take fish in the waters bordering the uplands of their reservation, home, and requiring that they comply with all state game and fish laws. This resulted in reducing their means of a livelihood to the point of starvation. The returns-from the sale of fish taken dropped from $20,000 for the year preceding the decision, to $7,000 for the year, following. The action we have here was then instituted by the Government to establish the Indians’ claim that they are entitled to the bed of the Quillehute River and the tide lands as included within the boundaries of the Reservation.

At the time the treaty was negotiated with the Indians, and the United States Government agreed to reserve “a tract or tracts of land sufficient for their wants,” none of the lands in the region had been surveyed. Such survey was made many years later, about 1881. The proclamation described the reservation by legal subdivision in accordance with this survey, and was entirely silent as to any rights in the bordering waters. The defendants insist that the exterior boundary lines of the Reservation must be accepted as being limited by the legal descriptions of the various subdivisions set forth in the proclamation. The plaintiff insists that the federal government’s obligation under the treaty could not be fulfilled except by including in the lands described the tide lands of the ocean and the bed of the river as the same borders thereon. It must be granted that the President, in promulgating his Executive Order, intended to meet the Government’s responsibilities as fixed by the earlier treaty.

To determine what the intent of the President was, it is necessary that we examine carefully what was required in the way of a reservation sufficient for the wants of these Indians.

In construing the language in thetreaty and that of the Executive Order, a rule of liberal construction must always be applied in favor of the Indians. The leading case announcing this principle, and one which has controlled for more than one hundred years, is the case of Worcester v. Georgia, 6 Pet. 515, 31 U.S. 515, 563, 8 L.Ed. 483. This case was decided in 1832. The opinion was written by the great Chief Justice Marshall, and as is characteristic of all opinions written by that outstanding jurist, it is a masterpiece in legal literature. The principles there announced have never in the scores of cases that have since been decided, involving rights of Indians, been in any way distinguished or modified. This decision was apparently completely overlooked in the decision of the Taylor ca.se. The importance of a proper determination in a controversy between the various Indian tribes and others involving treaty stipulations is evidenced by the fact that Associate Justice John McLean wrote an extended concurring opinion, using this language:

“As this case involves principles of the highest importance, and may lead to consequences which shall have an enduring influence on the institutions of this country; and as there are some points in the case on which I wish to state, distinctly, my opinion, I embrace the privilege of-doing so. With the decision just given, I concur.”

And then Justice McLean used this significant language:

“The language used in treaties with the Indians should never be construed to their prejudice. If words be made use of, which are susceptible of a more extended meaning than their plain import, as connected with the tenor of the treaty, they should be considered as used only in the latter sense. To contend, that the word ‘allotted,’ in reference to the land guaranteed to the Indians, in certain treaties, indicates a favor conferred, rather than a right acknowledged, would, it would seem to me, do injustice to the understanding of the parties. How the words of the treaty were understood by this unlettered people, rather than their critical meaning, should form the rule of construction.”

Chief Justice Marshall" stated in his opinion on the same case:

“Is it reasonable to suppose, that the Indians, who could not write, and most probably could not read, who certainly were not critical judges of our language, should distinguish the word ‘allotted’ from the words ‘marked out’? * * * To the United States, it could be a matter of no concern, whether their whole territory was devoted to hunting-grounds, or whether an occasional village, and an occasional cornfield, interrupted, and gave some variety to the scene.
*****
“By the fifth article, the Cherokees allow the United States a road through their country, and the navigation of the Tennessee river. The acceptance of these cessions is an acknowledgment of the right of the Cherokees to make or withhold them.
*****
“From the commencement of our government, congress has passed acts to regulate trade and intercourse with the Indi- and, which treat them as nations, respect their rights, and manifest a firm purpose to afford that protection which treaties stipulate. * * *
“The very term ‘nation,’ so generally applied to them (Indians) means ‘a people distinct from others.’ The constitution, by declaring treaties already made, as well as those to be made, to be the supreme law of the land, has adopted and sanctioned the previous treaties with the Indian nations, and consequently, admits their rank among those powers who are capable of making treaties.”

From the foregoing quotations it is plain-that not alone must there be a liberal construction favorable to the Indians applied to the language of the treaty, but the obligation on the part of the Federal Government to carry out the intent of a treaty is a serious and solemn one.

Other cases that throw light upon this matter are Gaines v. Nicholson, 9 How. 356, 365, 50 U.S. 356, 365, 13 L.Ed. 172, wherein the court said:

“No previous grant of Congress could be paramount, according to the rights of occupancy which this government has always conceded to the Indian tribes within her jurisdiction.
“It was so much carved out of the Territory ceded, and remained to the Indian occupant, as he had never parted with it. He holds, strictly speaking, not under the treaty of cession, but under his original title, confirmed by the government in the act of agreeing to the reservation.”

And Choctaw Nation v. United States, 119 U.S. 1-28, 7 S.Ct. 75, 90, 30 L.Ed. 306, which is much in point to the issues here involved, wherein it was said by the Supreme Court:

“The recognized relation between the parties to this controversy, therefore, is that between a superior and an inferior, whereby the latter is placed under the care and control of the former, and which, while it authorizes the adoption on the part of the United States of such policy as their own public interests may dictate, recognizes, on the other hand, such an interpretation of their acts and promises as justice and reason demand in all cases where power is exerted by the strong over those to whom they owe care and protection. The parties are not on an equal footing, and that inequality is to be made good by the superior justice which looks only to the substance of the right, without regard to technical rules framed under a system of municipal jurisprudence, formulating the rights and obligations of private persons, equally subject to the same laws.”

In United States v. Winans, 198 U.S. 371, 25 S.Ct. 662, 664, 49 L.Ed. 1089, involving a treaty made with the Yakima Indians some four years after the treaty here in question, and concerned with the construction to be placed upon the language of the treaty, the court said:

“How the treaty in question was understood may be gathered from the circumstances. * * *
“The treaty was not a grant of rights to the Indians, but a grant of rights from them, — a reservation of those not granted.”

Another case dealing directly with the rule of interpretation of agreements and treaties with Indians, Winters v. United States, 207 U.S. 564-576, 28 S.Ct. 207, 211, 52 L.Ed. 340, states the rule to be:

“ * * * ambiguities occurring will be resolved from the standpoint of the Indians. And the rule should certainly be applied to determine between two inferences, one of which would support the purpose of the agreement and the other impair or defeat it. On account of their relations to the government, it cannot be supposed that the Indians were alert to exclude by formal words every inference which might militate against or defeat the declared purpose of ' themselves and the government, even if it could be supposed that they had the intelligence to foresee the ‘double sense’ which might some time be urged against them. * * *
“The power of the government to reserve the waters and exempt them from appropriation under the state laws is not denied, and could not be. * * * That the government did reserve them, we have decided, and for a use which would be necessarily continued through years. This was done May 1, 1888, and it would be extreme to believe that within a year Congress destroyed the reservation and took from the Indians the consideration of their grant, leaving them a barren waste, — took from them the means of continuing their old habits, yet did not leave them the power to change to new ones.”

For further authority, we may look to Alaska Pacific Fisheries v. United States, 248 U.S. 78-88, 39 S.Ct. 40, 41, 63 L.Ed. 138. This case has many features common to the present controversy. The language particularly applicable is:

“The reservation was not in the nature of a private grant, but simply a setting apart, ‘until otherwise provided by law/ of designated public property for a recognized public purpose — that of safe-guarding and advancing a dependent Indian people dwelling within the United States. * * *
“The Indians could not sustain themselves from the use of the upland alone. The use of the adjacent fishing grounds was equally essential. * * *
“This conclusion has support in the general rule that statutes passed for the benefit of dependent Indian tribes or communities are to be liberally construed, doubtful expressions being resolved in favor of the Indians.”

In Shoshone Tribe v. United States, 299 U.S. 476-497, 57 S.Ct. 244, 252, 81 L.Ed. 360, referring to the power of the federal government in connection with the creation of Indian reservations and dealing with Indian tribes, it was said:

“The power does not extend so far as to enable the government ‘to give the tribal lands to others, or to appropriate them to its own purposes, without rendering, or assuming an obligation to render, just compensation ; * * * for that “would not be an exercise of guardianship but an act of confiscation.” ’ * * * The right of the Indians to the ocqupancy of the lands pledged to them may be one of occupancy only, but it is ‘as sacred as that of the United States to the fee.’ ”

The most recent expression of the Supreme Court is found in United States v. Santa Fe Pacific Railway Co., 314 U.S. 339, on page 353, 62 S.Ct. 248, on page 255, 86 L.Ed. 260, wherein Justice Douglas, writing the opinion of the court stated:

“We find no indication that Congress by creating that reservation intended to extinguish all of the rights which the Wala-pais had in their ancestral home. That Congress could have effected such an ex-tinguishment is not doubted. But an ex-tinguishment cannot be lightly implied in view of the avowed solicitude of the Federal Government for the welfare of its Indian wards. As stated in Choate v. Trapp, 224 U.S. 665, 675, 32 S.Ct. 565, 569, 56 L. Ed. 941, the rule of construction recognized without exception for over a century has been that ‘doubtful expressions, instead of being resolved in favor of the United States, are to be resolved in favor of a weak and defenseless people, who are wards of the nation, and dependent wholly upon its protection and good faith/ ”

And then again in the same decision, 314 U.S. on page 358, 62 S.Ct. on page 257, 86 L.Ed. 260, there is language very applicable to the situation presented in this case:

“The Walapais saw their old domain being preempted. They wanted a reservation while there was still time to get one. That solution had long seemed desirable in view of recurring tensions between the settlers and the Walapais. * * * That would make the creation of the 1883 reservation, as an attempted solution of the violent problems created when two civilizations met in this area, illusory indeed. We must give it the definiteness which the exigencies of that situation seem to demand. Hence, acquiescence in that arrangement must be deemed to have been a relinquishment of tribunal rights in lands outside the reservation and notoriously claimed by others.”

In Pioneer Packing Company v. Win-slow, 159 Wash. 655, 294 P. 557, the late Justice Main of the Supreme Court of the State of Washington, in a very learned opinion, adopted the rule of liberal construction as indicated by the foregoing decisions.

There has been some contention here that since it is admitted that the Quillehute River is a navigable stream, there might be a question as to the power of Congress to make it a part of an Indian Reservation.

The case of Shively v. Bowlby, 152 U.S. 1-48, 14 S.Ct. 548, 566, 38 L.Ed. 331, completely disposes of this contention, as it announces the rule to be:

“ * * * Congress has the power to make grants of lands below high-water mark of navigable waters in any territory of the United States, whenever it becomes necessary to do so in order to perform international obligations.”

And again on page 58 of the same decision in 152 U.S., on page 569 of 14 S. Ct., 38 L.Ed. 331:

“The United States, while they hold the country as a territory, having all the powers both of national and of municipal government, may grant, for appropriate purposes, titles or rights in the soil below high-water mark of tide waters.”

In Donnelly v. United States, 228 U.S. 243-264, 33 S.Ct. 449, 456, 57 L.Ed. 820, Ann.Cas.1913E, 710, it is stated:

“From this it results that whether the river be or be not navigable in fact, the river bed is to be deemed as included within the' Extension of the Hoopa Valley Reservation.”

To the .same effect were Heckman v. Sutter, 9 Cir., 119 F. 83, and United States v. Romaine, 9 Cir., 255 F. 253.

It is the contention of the defendants herein that since the state and its subdivisions have spent money in schools, roads, harbor improvements, etc., the Federal Government, appearing on behalf of the Indians, at this late date can not be heard to question the boundary lines of the Indian Reservation. This argument was advanced in the Taylor case before Judge Cushman, and was very effectively answered by him in his written decision, wherein he said [33 F.2d 613] :

“The expenditure of money by state agencies improving the navigation of the river, the roads upon the reservation, and the government schoolhouse, and in payment of a teacher teaching therein, does not affect the question involved.
“The authority of the United States necessary to the administration of an Indian reservation does not ooze away or become lost in the mesh of estoppels.”

The rights of these Indians were established at the time they became parties to the treaty of 1855. They became fixed by the promulgation of the presidential proclamation of February 19, 1889, and anything that has occurred from that date on could in no way modify or alter those rights.

Coming now to a brief resume of the evidence submitted in this case, which was largely documentary, and from which we find established beyond a shadow of a doubt that the only means of livelihood that the Quillehute Indians had throughout their entire existence was that obtained almost exclusively from the aquatic life found in the nearby waters. They were and are a fish-eating tribe of Indians, as is abundantly established by the numerous documents which have been submitted in evidence, and the oral testimony that was offered by the oldest members of the tribe.

The uplands described in the presidential proclamation consist of 594 acres, upon which is located the ancient Indian village that has always been the home of this tribe of Indians. The land itself has no value as timber land, and almost none as agricultural land. It is, more or less, a barren waste, and the only value that it could have is as a place where the Indians might live and have free and easy access to the waters adjoining it.

The court, with the consent of counsel representing the respective parties herein, made a personal trip to view the lands included in the reservation, and the country surrounding them, in order to have a better understanding of the situation.

The record in this case discloses through documentary evidence that during the time between the making of the treaty and the promulgation of the executive order, the Commissioner of Indian Affairs and his representatives never permitted a year to pass but that they urged upon their superiors that action be taken to create a reservation for these Indians. An abortive effort was made to establish them on the Quinaielt Reservation, which was created by presidential proclamation by President U. S. Grant. They declined to accept this as a reservation, even though some of them did take allotments on the Quinaielt Reservation. Their reason for not accepting the government’s offer to go upon the Quinaielt Reservation was that the Quin-aielts and Quillehutes for hundreds of years had been enemies, and the Quinaielts did not welcome them. An effort was then made to remove them from their village at the mouth of the Quillehute River to the Makah Indian Reservation, some forty miles to the north, and this again they refused, for the reason that their interpretation of the treaty was that they were to be given a reservation where they had always lived at the mouth of the Quillehute River. Exhibit 13 in this record deals with a conference held at the Quillehute village, wherein a Captain Charles Willowby, the Indian Agent, under whose jurisdiction these Indians were at the time, on August 21, 1879, agreed with them:

“I will write to Washington and recommend that lands be reserved for you as was promised you by Col. Simmons. I want you to continue your fisheries of salmon and seals and whales, as usual.”

This promise, made ten years before the presidential proclamation creating the reservation, was made in response to the statements of two old Indian Chiefs, How-eattl and Tahahowtl, who were signatories to the treaty itself. Howeattl, according to the record, told Captain Willowby:

“Col. Simmons told us when he gave us our papers (referring to the Treaty) that we were always to live on our own land, and that we were not to be removed to another place.”

The Indian Chief Tahahowtl said:

“I told Mr. Simmons that my land was from the Island of Upkowis opposite Kwe-diatsatsit down the coast to the Hooh River. This was my land formerly, and we would not sell our right to the river where we got our salmon into the land at the mouth of the river where we live. We always wish to live where we are. We also claim the right to the sea coast as far as our land extends. And we want one-half of the prairie land where the cam-mas grows. The rest we will sell to Washington. Mr. Simmons said it was good, and he wanted to do as the Indians wished. Mr. Simmons said I have not bought your land.”

It was when Captain Willowby was advised by these Indian Chiefs as above stated that he wrote his superiors in Washington.

It is in this simple, direct, concise and almost child-like language that we have an authentic report of what took place when the Indian Treaty was negotiated in 1855. We must presume that President Cleveland, in promulgating the order creating the reservation, did so with an intent to carry out the provisions of the treaty. This is more conclusively established when we note that the proclamation itself was drafted by the Indian Service, who, for thirty-five years, had been endeavoring to secure for this tribe of Indians a reservation “sufficient for their wants,” and who, as evidenced by the numerous documents in this record, repeatedly called to the attention of the Commissioner of Indian Affairs and the Secretary of the Interior that these Indians were “fish eating Indians” and their sole means of subsistence depended upon a continued use of the waters from which they caught their fish.

The record further discloses that the executive order, together with the descriptions of the lands therein, was submitted after approval by the Secretary of the Interior, to the President, together with various communications and documents disclosing the historical background, on the 18th day of February, 1889, and on the very next day, February 19, 1889, it was promulgated by the President as submitted to him.

It is unfortunate that more than ninety years have elapsed since the treaty was made, and the respective rights of the Indians and the whites have not been definitely adjudicated. I am sure that if the error which appears in the Taylor case had not occurred, that decision would have concluded this matter, and it would have been a decision favorable to the contentions there made by the Indians. To hold, from the historical background, as disclosed by the record in this case, that it was not intended that the Indians should have the lands under the waters here in question would be to conclude that the United States Government had completely repudiated its solemn pledges and promises carried in the treaty with this Indian tribe, and would be in direct conflict with the rule or decision as announced in the remarkable case of Worcester v. Georgia, supra, which has been the authority for dealing with Indian tribes and interpreting Indian treaties from almost the beginning of our national existence.

I find that the river bed of the Quillehute River and the tide lands of the Pacific Ocean, where the same border upon and are adjacent to the uplands described in the Executive Order of February 19, 1889, are a part of the Quillehute Indian Reservation, as established by said Executive Order. It follows, therefore, that the relief sought by the plaintiff herein will be granted.

Findings of fact and conclusions of law and decree will be submitted on notice.


author: HANNAY, District Judge.

text:
    UNITED STATES v. ONE CHEVROLET TRUCK et al.
    Civil Action No. 332.
    District Court, S. D. Texas, Brownsville Division.
    Sept. 29, 1945.
    Brian S. Odem, U. S. Atty., of Houston, Tex., and Chas. C. Bowie, Ass’t U. S. Atty., of Brownsville, Tex., for plaintiff.
    Roy Buckley, of Mission, Tex., for claimant.
   HANNAY, District Judge.

The object of this suit was an application for warrant for further detention of property, which application was filed on January 19, 1945. On the same day the court ordered such detention, as applied for. On February 9, 1945, the petition of Cruz Bandin for remission was duly filed, and on May 18, 1945, the trial was had before the court, and the case was submitted.

Petitioner Bandin prayed that he recover possession of One Chevrolet stake body truck, Model 1934, one and one-half ton, Engine No. 4422765, Texas license of 1942 being 376 — 692, with 1944 license of M. H. 446. Bandin alleges that he is the owner of said truck, which truck was stolen from a public street in McAllen, Texas, between the hours of 8 :00 p.m. and 10:30 p.m. on January 10th, 1945, from the front of the Aztec Theatre, by some person or persons unknown to petitioner, and without the knowledge or consent of said petitioner. He further says in his pleadings and testimony that he had loaned said truck to his brother, Guadalupe Bandin; that he himself was in Houston at said time. Guadalupe Bandin testified to the same effect, and that he, immediately upon learning that the truck had been stolen, reported said fact to the Police Department of McAllen, Texas. The truck in question was seized in Hidalgo County, Texas, on January 10, 1945, by Customs Patrol Inspectors, under circumstances that were suspicious. Said truck, which had been abandoned at the time of its seizure, contained forty (40) sacks of paraffin and a baby bed with springs. It is the contention of the Government that said truck was about to be used in transporting such paraffin and baby bed across the Rio Grande and in to Mexico without the proper authorization permit or license.

In the case of United States v. One Oldsmobile Sedan, D.C., 30 F.Supp. 254, it is held that mere lack of knowledge of the owner of the automobile which was seized in violation of a statute prohibiting transportation of narcotics, that the automobile so used in violation of law, did not constitute a defense to the Government’s libel for forfeiture of the automobile, 19 U.S.C.A. § 483, and that the claimant who sought recovery of the automobile as its owner has the burden of establishing the defense that the automobile was being used at the time of the seizure without the knowledge or consent of claimant. See also United States v. One Reo Speed Wagon, D.C., 5 F.2d 372.

I find from all the evidence that the claimant herein had no knowledge and gave no authority for the use of such car, and that he has, therefore, met the burden of proof placed upon him. It follows that he is entitled to have returned to him his said car.

I further find that the paraffin and the baby bed involved in this case are subject to forfeiture.

The Clerk will notify counsel.


author: BROADDUS, District Judge.

text:
    UNITED STATES v. BOARD OF COM’RS of McINTOSH COUNTY, OKL., et al.
    Civil Action No. 1297.
    District Court, E. D. Oklahoma.
    June 13, 1945.
    Cleon A. Summers, U. S. Atty., and Francis Stewart, Asst. U. S. Atty., both of Muskogee, Okl., for the United States.
    Hazen Green, Co. Atty., of Eufaula, Okl., and James Bounds, Asst. Atty. Gen., of Oklahoma, for defendants.
   BROADDUS, District Judge.

At the hearing of this case June 13, 1945, at Muskogee, Oklahoma, pursuant to assignment, all parties appear by counsel and submit to the Court a stipulation as to the facts and questions involved in each of the five causes of action. By leave of Court the stipulation is filed, and the cause is submitted on the record and the stipulation; whereupon, the Court being advised, finds and concludes as follows:

Jurisdiction

From the record and the stipulation it appears that this is a civil action brought by the United States, therefore the Court has jurisdiction thereof, and of each cause, under the provisions of Sec. 24(1) of the Judicial Code, 28 U.S.C.A. § 41(1).

Findings of Fact

There are no facts to be found other than those contained in the stipulation and record. Accordingly, the stipulation filed by the parties presents all essential facts, and the statements therein contained are adopted as the Findings of Fact herein.

Conclusions of Law First Cause of Action

1. The land involved in this cause of action is still exempt from taxation, since the allottee is a three-fourths blood Creek Indian and the land comprises her allotment which she certified and designated to be exempt under the provisions of Sec. 4 of the Act of May 10, 1928.

2. The tax assessments against said land are void.

Second Cause of Action

1. The land involved in this cause of action is exempt from taxation since the owner thereof is a fullblood Indian who inherited, in 1936, the entire interest in said land which had been designated ás tax exempt by her fullblood ancestor who was the allottee; and such land is tax-exempt, notwithstanding the fact that the heir is the owner also of 160 acres of land allotted to her, which she has designated to be tax-exempt.

2. The tax assessments against this land are void.

Third Cause of Action

1. The land involved in this cause of action was purchased with his restricted funds prior to June 20, 1936, for a fullblood Indian and was selected as a homestead under the provisions of the Act of May 19, 1937, 50 Stat. 18B, 25 U.S.C.A. § 412a; therefore it became non-taxable in 1937 and has remained non-taxable, notwithstanding the fact that the owner thereof owns 160 acres of other land which was selected and certified as tax-exempt for him under the provisions of the Act of May 10, 1928, and notwithstanding the further fact that the Indian also owns, in addition, a one-fourth interest in 160 acres of land inherited by him from a restricted Indian ancestor who had designated that land as tax-exempt in her lifetime and had died in 1941.

2. The tax assessments against this land for 1937 and subsequent years are void.

Fourth Cause of Action

1. The land involved in this cause of action is tax-exempt since it was purchased for a fullblood Indian with her restricted funds and was selected as a homestead in accordance with the Act of May 19, 1937; and it remains tax-exempt, notwithstanding the fact that the fullblood Indian owner still owns her allotment in the Creek Nation and her allotted lands have never been assessed for taxation and are not taxable.

2. The tax assessments against this land for 1937 and subsequent years are void.

Fifth Cause of Action

1. The land involved in this cause of action is tax-exempt since it was purchased for a fullblood Indian with his restricted funds, and was designated as a homestead under the provisions of the Act of May 19,1937; and this tax-exemption remains notwithstanding the fact that this Indian also owns land which is also immune from taxation because inherited under the conditions provided in the Act of January 27, 1933.

2. The assessments against this land for 1937 and subsequent years are void.

It follows that the complainant is entitled to a decree cancelling any tax assessments made contrary to the holdings hereinabove made and prohibiting the assessment and levy of taxes on any of the lands involved during the continuation of the present status of any such land.

The United States Attorney will prepare and submit appropriate form of judgment.

       Sufficient statements of conclusive facts will appear in the Conclusions of Law where necessary to make clear the points of law specifically decided, and their applicability.

       Tax immunity was granted this Indian by Sec. 1 of the Act of May 27, 1908, 35 Stat. 312, until April 26, 1931; thereafter the tax immunity, until April 26, 1956, is conferred by the proviso of Sec. 4 of the Act of May 10, 1928, 45 Stat. 495: “That the Indian owner of restricted land, if an adult and not legally incompetent, shall select from his restricted land a tract or tracts, not exceeding in the aggregate one hundred and sixty acres, to remain exempt from taxation and shall file with the .superintendent for the Five Civilized Tribes a certificate designating and describing the tract or tracts so selected.”

       The allotments of the ancestor and heir (here mother and daughter respectively) on account of their blood were tax-exempt under Sec. 1 of the Act of May 27, 1908 until April 26, 1931, and thereafter under Sec. 4 of the Act of May 10, 1928, by virtue of the respective designations made. Sec. 1 of the Act of January 27, 1933, 47 Stat. 777, governs the inherited land since the death of the mother occurred in 1936. The Proviso of that section declares:
      “That where the entire interest in any tract of restricted and tax-exempt land belonging to members of the Five Civilized Tribes is acquired by inheritance, devise, gift, or purchase, with restricted funds, by or for restricted Indians, such lands shall remain restricted and tax-exempt during the life of and as long as held by such restricted Indians, but not longer than April 26, 1956, unless the restrictions are removed in the meantime in the manner provided by law.” Byars v. Samuel, D.C.E.D.Okl. Civil No. 887, Conclusions p. 2, 1942; Ledbetter v. Faure, D.C.E.D.Okl. No. 4672-Eq., Cone, of Law, p. 11,1939.
      “The contention of the plaintiff that, under the Act of May 10, 1928, 45 Stat. 495, the amount of restricted and tax-exempt lands permitted to any Indian is limited tó one hundred sixty acres is rejected. The Act of 1928 dealt with tax exempt land to be selected by the Indian. The Act of 1933 dealt specifically with inherited lands that had theretofore been designated as tax-exempt and specifically provides that when such lands are inherited lands by restricted Indians the same shall continue restricted and tax-exempt with the provision that ‘such restricted and tax-exempt land held by anyone acquired as herein provided (emphasis supplied) shall not exceed one hundred sixty acres.’ Construing the two Acts together, it is my opinion, that Congress intended that the Indian coming within the provisions of the Act of 1933 should be permitted at least one hundred sixty acres restricted and tax-exempt lands acquired under this law in addition to the one hundred sixty acres designated by him as tax-exempt under the provisions of the Act of 1928.” Byars v. ’Samuel, per Bice, Judge.

       The tract was tax-exempt for the year 1937, under the Act of June 20, 1936, Sec. 2, 49 Stat. 1542. Muskogee County v. United States, 10 Cir., 1943, 133 F.2d 61.

       It has remained non-taxable by virtue of its selection as a homestead. Board of Commissioners v. Seber, 318 U.S. 705, 63 S.Ct. 920, 923, 87 L.Ed. 1094: “We hold that the 1936 Act extended tax immunity to all three tracts for the year 1937, that thereafter the 1937 Act exempted the designated homestead lands.” These Acts are set out in the margin of the Seber case, 318 U.S. at page 707, 63 S.Ct. at page 922, 87 L.Ed. 1094, as follows:
      Sec. 2 of the Act of June 20, 1936, 49 •Stat. 1542 provides:
      “All lands the title to which is now held by an Indian subject to restrictions against alienation or encumbrance except with the consent or approval of the Secretary of the Interior, heretofore purchased out of trust or restricted funds of said Indian, are hereby declared to be instrumentalities of the Federal Government and shall be nontaxable until otherwise directed by Congress.”
      The 1937 Act amended § 2 of the 1936 Act, 25 U.S.C.A. § 412a to read as follows:
      “All homesteads, heretofore purchased out of the trust or restricted funds of individual Indians, are hereby declared to be instrumentalities of the Federal Government and shall be non-taxable until otherwise directed by Congress: Provided, That the title to such homesteads shall be held subject to restrictions against alienation or encumbrance except with the approval of the Secretary of the Interior: And provided further, That the Indian owner or owner's shall select, with the approval of the Secretary of the Interior, either the agricultural and grazing lands, not exceeding a total of one hundred and sixty acres, or the village, town, or city property, not exceeding in cost $5,000, to be designated as a homestead.”

       See holdings under the First and Second Causes of Action for the tax-exemption as to the two latter tracts referred to herein. Three of the statutes here involved, the 1928, 1933 and 1937 Acts, each contain provisions limiting the quantity of land which may be held in a tax-immune status under the respective Acts. The 1936 Act contains no limitation upon the quantity of purchased land which may be held tax-immune. The provisions contained in the statute limiting the amount of tax-exempt land are confined to the land acquired under the respective statutes and do not constitute limitations upon the quantity of tax-exempt land which may be held or acquired under any of the other statutes. Byars v. Samuel, supra, holds an Indian may own 160 acres tax-exempt under the 1928 Act, and 160 acres more tax-exempt land under the provisions of Sec. 1 of the Act of January 27, 1933. The Supreme Court and the Tenth Circuit Court of Appeals have decided that land purchased with restricted funds under the 1936 and 1937 Acts is tax-exempt despite the fact that the Indian for whom it was purchased already owned tax-exempt allotted land. Board of Commissioners v. Seber, supra; Osage County v. United States, 10 Cir., 145 F.2d 1022. In view of the decision cited, there would seem to be no basis for holding that an Indian may not own as tax-exempt 160 acres of allotted land, 160 acres of land inherited under the 1933 Act, together with 160 acres of land purchased under the 1936-1937 Act.

       This conclusion follows as a corollary to the holdings in the three preceding situations under the Seber, Muskogee and Osage County cases.

       In the absence of any limitation on the amount of land which may be held as tax-exempt under any of the other statutes, the tax-exemption provisions of both the 1936-37 and the 1933 Acts are in force, See the Seber case and the Muskogee county case, supra,