Farrington v. Wilson

29 Wis. 383

• Court: Wisconsin Supreme Court
• Decided: January 15, 1872
• Status: Published

Opinion

Dixosr, C. J.

The validity of the restriction found in the treaty, and contained in the patent of the land by the United States to Antoine Grignon, “ not to be leased or sold by the grantee to any person or persons whatever without the permission of the President of the United States,” is unquestionable. The law on this subject is thus summed up by the supreme court of the United States in a recent case: “ With respect to the public domain the constitution vests in congress the power of disposition, and of making all needful rules and regulations. Thai power is subject to no limitations. Congress has the absolute right to prescribe the times, the conditions, and the mode of transferring this property, or any part of it, and to designate the person to whom the transfer shall be made. No state legislation can interfere with this right or embarrass its exercise; and to prevent the possibility of any attempted interference, a provision has been usually inserted in the compacts by which the new states have been admitted into the Union, that such interference with the primary disposal of the soil of the United States shall never be made.” Gibson v. Chouteau (unreported). Such a provision is contained in the constitution of this state (Const., art. II, sec. 2), and was inserted in pursuance of the proviso to the 5th subdivision of section 7 of the enabling act, which reads as follows: “Provided, that the foregoing propositions herein offered are on the condition that the said convention which shall form the constitution of said state shall provide, by a clause in said constitution or an ordinance, irrevocable without the consent of the United States, that said state shall never interfere with the primary disposal of the soil within the same by the United States, nor with any regulations congress may find necessary for securing the title in such soil to bona fide, purchasers thereof ; and that no tax shall be imposed on lands the property of the United States; and that in no case shall non-resident proprietors be taxed higher than residents.” 1 Taylor’s Statutes, 84. This disposes of the supposed conveyance from Antoine Grignon, the reservee under the treaty, to Daniel M. Brod-head, dated September 21, 1838. That deed was not only not approved by the President, but was executed some years before the patent to Grignon was issued.

The question as to the liability of the land to taxation, or the proposition that it was not so liable, seems a very plain one upon the language of the statute itself. The provisions of the statute then in force and involved in this inquiry, were as follows:

“ Section 1. All property, real and personal, within the state, and not expressly exempted therefrom, shall be subject to taxation in the manner provided*by law.”

“ Section 4. The following property shall be exempt from taxation; * * * 7. The property of all Indians who are not citizens, except lands held by them by purchase.” (R. S. 1858, ch. 18.)

The relation of Grignon and his heirs to the Winnebago tribe or nation of Indians — the fact that they were Indians of mixed blood, belonging to and residing with that tribe, and so known and recognized by the proper authorities of the United States — is well established in evidence.

The question of statutory construction thus presented, and which turns chiefly upon the meaning of the word “purchase,'' as used in the statute, is very fairly stated in the brief of the learned counsel for the defendants, who argues for the taxa-bility of the land. He says: “ Title by purchase is defined to be in its technical sense, ‘ the acquisition of real estate by any means whatever, except descent.’ It includes title by gift or devise. In a more limited sense, as used in common parlance, not in its technical seme, purchase is the acquisition of lands for a valuable consideration.”

It thus appears from the brief of the counsel, not only that the word “purchase” is and may be used in different senses, but the learned counsel has also very accurately pointed out what those senses are. Now as it cannot for one moment be contended that the acquisition of the title by Grignon from the United States under the stipulations of the treaty, was a “ purchase” by him for a valuable consideration, or that it was any thing more than a mere gift or reservation by his tribe to him, stipulated and provided for when the treaty was made ceding the lands of the tribe to the United States, it becomes very important to know in which of these different senses the word was employed by the legislature in the statute in question. If it was employed in its technical sense, then it is very clear that the legislature intended to tax the land in question, provided it possessed such power. On the other hand, if it was employed in the sense as used and understood in common parlance, or in its popular sense, then it is very clear the legislature did not intend to impose the tax. In which sense, then, was the word employed ? A fundamental rule, found in all the books, and by which the courts have ever been governed in the construction of statutes, that, in the absence of any thing clearly showing the contrary intention, the words of a statute are to be construed according to their ordinary and popular meaning and use, furnishes a ready answer. “ The words of a statute,” says Mr. Dwarris, “are to be taken in their ordinary and familiar signification and import, and regard is to be had to their general and proper use; tor jus et norma bquendi is governed by usage; and the meaning of words spoken or written, ought to be allowed as it has constantly been taken: 1 loquen-dum est ut vulgusf’ But if the usage have been to construe the words of a statute contrary to their obvious meaning by the vulgar tongue, and the common acceptation of terms, such usage must not be regarded; it being rather, say the books, an oppression of those concerned (to force upon them a conventional meaning), than a construction of the statute. And, though, where the words of a statute are doubtful, general usage may be called to explain them, for oplimus legum inter-pres est consuetude, usages that can control the words of an act of parliament must be universal, and not the usage of any particular place.” Potter’s Dwarris, 193. The words of the above learned author, stating a rule which is as true and applicable now as it was when he wrote them, are enough upon this point. They establish that the word here is to be taken according to its ordinary and familiar signification and import, and not in any technical and unfamiliar sense, which is also the rule prescribed by the statute. R. S., ch. 5, sec. 1, subdivision 1.

But there are other considerations arising upon the language of the statute, which seem to lead almost irresistibly to the same conclusion. The words of the exemption are : ■“ The property of all Indians who are not citizens, except lands held by them by purchaseThese words imply most clearly that, in con tern-plation of the framers, there were some lands held by Indians, bnt not “by purchase,” in the sense in which those words were used in the statute, which were to be exempt from taxation. What were those lands held by Indians but not “bypurchase” in the statutory sense, which it is obvious the legislature intended to exempt? Counsel at the bar argued that it was those lands within the state held in common by the Indian tribes as hunting grounds, and by their original title and right of possession, and which had never yet been ceded to the United States. The incorrectness of this position seems too obvious to admit of serious refutation. No state government ever dreamed of taxing such lands, or that it was necessary to protept them by specific exemption from the operation of any law which its legislature could pass. It was totally incompetent for the legislature of this state, under the constitution of the United States, and that of this state, to tax such lands. They were never regarded as taxable anywhere. Such lands, subject to the Indian right of occupancy, which the government of the United States alone has the power to extinguish, are a part of the public soil and domain of the United States, over which, by the articles of compact, above referred to, between this state and the United States, this state forever relinquished and surrendered all right and privilege of disposition and control.

It cannot, therefore, be that it was such lands it was intended to exempt; and if not, then the conclusion is most strong that it was lands held precisely as the land here in suit, ly gift or donation from the Indian tribes under the treaty-making power and at the time of ceding their lands to the United States, of which it was known there were quite a number of sections in different parts of the state. The lands not held “by purchase” in the usual and popular sense of those words, that is, the lands held as these were, by gift or donation from the original Indian tribes, with the assent of the governnient of the United States, and by patent from that government, must have been those intended, to be exempted, or otherwise the legislature did not intend to exempt any of the lands belonging to Indians who were not citizens, over which the state possessed, or was supposed to possess any power of taxation at all. The latter construction seems manifestly contrary to the plain intent and meaning of the statute, and therefore inadmissible. We are bound to suppose, from the context and form of expression adopted, that the legislature intended to exempt some lands belonging to Indians, over which it had, or might be supposed to have had, some claim or semblance of the power of taxation; and yet, if we understand the word “ purchase ” in the sense contended for, that is, in the technical sense, we destroy this idea altogether. Give the statute this construction, and the legislature intended to tax all lands belonging to Indians, over which it had any shadow of power or jurisdiction, which is clearly a repugnant intent.

On the other hand, give it the construction above indicated, and we give force and effect to all the words, and at the same time carry out the obvious intent and purpose as appears from the entire provision. An Indian who has so far learned the ways of the white race, and adopted their habits of thrift and economy as to be able to buy land and pay for it, as some of them have done, will probably by the same means have sufficient money and business sagacity to care for and pay the taxes which may be assessed upon it. The lands of such Indians were regarded as the proper subjects of taxation, and it was such lands, and such alone, “ held by them by purchase,” that were intended to be taxed by the exception appended to the exemption clause. As to the class of lands here in controversy, held by members of the tribes far removed to their homes west of the Mississippi river, and as a gift from their people by the grace and favor of the government of the United States, and under the guardianship and protection of the President, it seems manifest that the legislature did not intend to tax them, even if it had possessed the power. It would have been unbe coming tbe representatives of a just and magnanimous people, as tbe people of Wisconsin are, thus to bave taken from these, at best, most unfortunate persons, tbe small and inconsiderable patrimonies so saved to them by tbeir tribes, wbicb, if taxed at all, must bave gone for tbe first paltry sum levied. Tbe re-servees were absent from tbe state, in distant and inaccessible places, to wbicb tbe tribes bad been removed. They were not at liberty to return to tbe state, and other modes of communication were most difficult, if not impossible; and, more than these, they were most ignorant and poor, possessing neither tbe intelligence nor tbe means to pay tbe assessments, if made. Tbe state was in no need of revenues derived from such a source, and a liberal construction is not to be adopted for tbe sake of obtaining them. Such taxation was never intended.

Tbe foregoing considerations are offered upon tbe construction of tbe statute itself, and to show that tbe lands of this Indian patentee and bis heirs were never intended to be taxed. It would be easy, however, to go further, and to show that, under tbe constitution and laws of tbe United States and tbe treaty making power, and according to tbe generous and humane policy always pursued by tbe national government as manifested by tbe action of all its departments, legislative, executive and judicial, towards peaceful and friendly Indian tribes and tbeir individual members, tbe state bad no power to levy such taxes. It would be easy to show by tbe decisions of tbe federal supreme court, several of wbicb were referred to in argument, that such power does not exist. It would be still easier to show bow utterly repugnant tbe exercise of such power would be to tbe terms and spirit of tbe treaty by wbicb this land was reserved and patented — bow contrary to tbe intention and policy of tbe general government thereby indicated. Of what utility tbe restriction upon tbe Indian’s right of alienation, of what value tbe guardianship and control of tbe President, if tbe title to tbe land could be taken and passed regardless of tbe will of tbe President or any one else, for tbe first insignificant tax which miglit be levied? If these provisions,' carefully made for the safety and protection of the rights of the Indian owner, signify nothing as against the power of state interference to despoil him of his property, then the treaty had better have provided at once that the land should belong to the first speculator in tax titles who should bid at the sale. It was clearly not intended by the federal government that the land should be thus forfeited and lost; and the power of' that government, as we have seen, is supreme over the subject. But, not to dwell longer upon this point, enough has been said to suggest the difficulties which must ensue from that construction of the statute which would make the land taxable, and so to corroborate the construction which is above given.

If it be not a conceded proposition, it should be, that the restriction upon the patentee’s power of alienation without the permission of the President, was personal to the patentee. It was so both by the language of the treaty and of the patent, and there was no obstacle to the conveyance of the land by the heirs of the patentee in the same manner and under like circumstances as the lands of other owners might be conveyed.

The remaining questions relate to the validity of the proceedings in the probate court of Ramsay county, Minnesota, for the appointment of a guardian of the persons and estates of the minor heirs, Henry and Therese Grignon, and to the sufficiency of the evidence of identity and heirship of the boy, Henry. No objection whatever is taken to the regularity of the proceedings in the county court for the county of Dane, in this state, by whose license and order the lands were sold. That court had jurisdiction of the subject matter, and could authorize and direct the sale of the real estate of the wards within the county. All its proceedings were formal and regular, the proper notices given, the lands inventoried and appraised, and the sale ordered and duly affirmed. • Those proceedings were had and conducted to a sale and conveyance of the land upon the application of the foreign guardian appointed by tíre probate court of Ramsay county, an authenticated copy of whose appointment as such guardian was produced and filed in the county court in: the manner prescribed by statute. The record of the proceedings in the county court reeites that the person making the application, and who was licensed to sell the land, was such guardian, duly appointed.

Under these circumstances, and especially under the operation of the-statute of this state, (ch. 127, Laws of 1861; 2 Tay. Stats., 1194, § 66), which creates the same presumption in favor of the jurisdiction of the county court, and the validity of its proceedings, when acting in probate, as prevails in favor of the jurisdiction of courts of general jurisdiction and of the validity of their proceedings, it may well be doubted whether anything more was requisite to be shown to constitute a prima fade valid sale than the recorded proceedings of the Dane county court. The record of those proceedings, regular on their face, created a presumption of jurisdiction in all respects sufficient to sustain the sale until the contrary was shown Enough appeared oh the face of- the proceedings to' call on the court to act. Papers purporting to be foreign letters of guardianship were presented, which was sufficient to authorize the court to proceed to determine whether they were such letters or not, and whether duly issued, and to allow them to be filed; and also to determine whether the person presenting them was the guardian therein named. The court was likewise called upon to adjudicate as to the identity of the'persons therein named as the wards, and as to their interest in and ownership of the estate proposed to be sold. All these questions were necessarily considered and adjudicated by the county court in the course of its proceedings, and the record of that court, when produced on the trial below, was prima fade evidence of them.

If this view be correct, as it would clearly seem to be, then the question presented iSj whether the prima fade effect of the record and proceedings in the county court was overcome by other evidence produced and given on the trial. The burden of showing tbat tbe foreign letters of guardianship were void, rested upon tbe parties attacking tbe validity of tbe sale on tbat ground. A transcript of tbe proceedings of tbe foreign court, together with an authenticated copy of tbe letters of guardianship, was given in evidence. That transcript and those letters are relied upon as furnishing evidence to impeach tbe prima facie jurisdiction of tbe county court, and to show tbe invalidity of its proceedings. It is said tbat, to have authorized tbe probate court of Ramsay county to appoint a guardian, it must have appeared tbat tbe alleged wards were residents of tbe county at tbe time of appointment, or otherwise tbe court was without any jurisdiction, and tbe appointment void. It is objected tbat tbe record of proceedings in tbat court does not show tbat they were such residents. This is a mistake. It is true, tbe record of tbe petition, order of appointment, etc., does not recite tbe fact; but tbe letters of guardianship, which were also of record, do do so, and this is sufficient. Tbe rule would be intolerable, if, to sustain bis title, tbe purchaser at one of these foreign guardian’s sales was required not only to substantiate tbe correctness of tbe proceedings of our own court, but likewise to go behind tbe record of tbe proceeding in tbe foreign' court, and affirmatively to prove and establish tbe existence of every fact necessary to give tbat court jurisdiction, whether such fact were recited in tbe record or not Even if tbe record contained no recital, tbe better rule in such case would seem to be to cast tbe burden of proof upon tbe party asserting tbe want of jurisdiction. No purchaser could ever protect himself, and no sale ever be made to tbe advantage of tbe parties in interest, if tbe rule were otherwise. Tbe foreign guardianship record, if fair on its face and disclosing no facts showing a want of jurisdiction, must be taken as prima, fade authoritative and valid. Tbe foreign record here, therefore, showed nothing to impeach tbe jurisdiction of tbe court making tbe appointment, and, consequently, nothing to impeach tbe jurisdiction of tbe county court of this state by which the sale was directed. Upon the face of both records it must be assumed that the comity court had jurisdiction, not only of the subject matter of the proceeding, but also of the persons of the minor heirs themselves, by representation through thier legally appointed guardian.

But it is furthermore objected, that the county court of Ramsay county was without jurisdiction, because it appears that the alleged wards were persons of Indian blood, and were members of and belonged to an Indian tribe, which was known and recognized as a distinct nation or people. The power and jurisdiction to appoint guardians do not depend at all upon the citizenship or nationality of the wards. The courts, of one country may appoint guardians for persons resident therein, who are citizens of another country, or who have a different nationality. So the courts of one state or country may appoint guardians for- the estate or property, situate therein, of persons residing in any foreign state or country, and who are citizens thereof. We have statutes in this state based upon this principle, and it is one which is everywhere acquiesced in and adopted.

It follows from these views that the judgment of the circuit court should be affirmed.

By the Court. — Judgment affirmed.