Commissioners of Miama Co. v. Wan-zop-pe-che

3 Kan. 364

• Court: Supreme Court of Kansas
• Decided: February 15, 1865
• Status: Published

Opinion

By the Court,

Crozier, C. J.

There is but one point of difference between this case and the case of Charles Blue-Jacket v. The Commissioners of Johnson County, decided at the present term. The treaty with the Shawnees provides that Congress may authorize the issuing of patents for the selected lands under restrictions, under which the restriction adopted was that the lands should never be sold or aliened by the grantees or their heirs, without the consent of the Secretary of the Interior. The treaty with the Miamis, after a similar clause, provides that the lands so patented, should not be liable to levy, sale, execution or forfeiture. The patents contain the same restriction that is inserted in the patents to the Shawnees. In the case referred to, it was held that the restriction in the patent did not operate to exempt the lands from taxation. In this case it is contended that the provision above quoted has that effect. Whether these lands are taxable depends upon the construction to be given the phrases levy, sale, execution or forfeiture. They would ordinarily be held to refer to judicial proceedings, yet the first two might be appropriately used with reference to taxation, consequently the sense in which they were intended to be understood, cannot be satisfactorily determined from the words alone; other lights, must, if accessible, be made available to that end. The treaty with the Miamis was executed January 5th, 1854, with the Wyandottes, January 31st, 1855, with the Ohippewas, February 22d, 1855, and with the Winnebagoes, February 24th, 1855, and all of them were negotiated by George W. Manypenny, Esq., as commissioner, on the part of the United States, who at the time was the United States Commissioner of Indian Affairs. A comparison of the language used in those treaties upon the subject under consideration, ought to furnish some guide in the interpretation of the phrase cited from the treaty with the Miamis. The language used in each is as follows : In the treaty with the Wyandottes, “ none of the lands to be thus assigned and patented to the Wyandottes, should be subject to taxation for a period of five years from and after the organization of a state government over the territory where they reside, and those of the incompetent classes shall not be aliened or leased for a longer period than two years, and shall be exempt from levy, sale or forfeiture, until otherwise provided by state legislation, with the assent of Congress.”

With the Cbippewas, “ said tracts to be exempted from taxation, levy, sale or forfeiture.”

With tbe Winnebagoes, precisely like that with tbe Cbippewas.

These differ from that with tbe Miamis only in that the word “ execution ” is omitted, and tbe word “ taxation ” supplied. That this was tbe result of accident or inadvertence, certainly ought, not to be presumed, nor will it be so presumed after a careful examination of tbe provision. When used with reference to judicial proceedings in civil matters, tbe words “ levy and sale ” are equivalent to the word “ execution.” Each expression means the subjecting of property to the satisfaction of a judgment, and the use of both would be tautology. In the formation of tbe last of these treaties, it cannot be doubted that the intention was to exempt tbe lands from judgment sale. If such was tbe intention, the expression of it must be found in the exemption from “ levy and sale.” Tbe word “ execution ” having been omitted there -is no other word or words left that will express such intention. That such was the purpose is further made manifest by tbe addition of the word “ taxation.” Exemption from taxation necessarily implies exemption from sale for taxes, and no other word is necessary to that end. Having provided that tbe lands shall be exempt from taxation, to provide also that they shall not be subject to sale for taxes, would be a work of supererogation. Such an undiscriminating use of language ought not to be attributed to any man in public position, much less to a man of Mr. Manypenny’s intelligence.

Tbe same remarks apply with equal if not greater force to the use of the word “ forfeiture.” If the lands were not to be subject to sale for taxes, they could not be forfeited for their non-payment, and besides, the word (C forfeiture ” properly understood, can have no application to taxation. Lands are not forfeited by tbe non-payment of taxes. The state by such omission acquires no title to them. Taxes like a judgment of a court of record, are a mere lien upon the land, to be enforced in both instances by a sale, and the title passes and can pass by such sale alone. There can be no redemption by the owner until after a sale, for the reason that until that time the title is still in him, and there is nothing to be redeemed. After they are due and before the sale, he may pay the taxes and discharge the lien, but there is in no sense a redemption. The state or other authority imposing the taxes, may become the purchaser at the sale, but until they are so purchased, no title to the lands vests in such authority. Until there be a sale every vestige of title remains in the individual, and the lands are subject to a mere lien for the taxes. It need not be argued that the sale is in no sense a forfeiture.

We think, therefore, the conclusion is irresistible, that the words “ levy, sale and forfeiture ” as used in the three treaties referred to, have reference to judicial proceedings alone. What good reason can be given for attributing to them a different signification where they occur in .the treaty with the Miamis. They were used with reference to like subject matters, were very probably written by the same hand, were approved by the same President, under the advice of the same Senate, and all was done within a period of eight months, and there is no presumption or rule of construction that we are aware of, requiring a different interpretation. Under such circumstances the court feels compelled to attribute to them a like meaning in all the treaties; we are of opinion, therefore, that the lands in question are subject to taxation under the laws of the state, and that the District Court erred in rendering judgment in favor of the plaintiffs below. That judgment will be reversed.

All the justices concurring.'