Noble v. Amoretti

71 P. 879, 11 Wyo. 230, 1903 Wyo. LEXIS 5

• Court: Wyoming Supreme Court
• Decided: March 19, 1903
• Status: Published

Opinion

Potte;r, Justice.

From 1893- to 1899 the plaintiffs were licensed Indian traders, doing business within the' Shoshone Indian Reservation in this State; said reservation being located within the boundaries of Fremont County. The}'- are the owners of improvements located upon land within the 'reservation, and a stock of goods, wares and merchandise also located on said reservation. - 'Such improvements and merchandise were owned and used by them in connection with their occupation or business as licensed traders with the Indians. It is.» agreed that their stock of goods was kept and employed in trade with the Indians and also with white people, residents on and off the reservation; and that without said stock of goods and improvements the business of plaintiffs as Indian traders could not have been carried on.

During each of the years mentioned the authorities of the County of Fremont assessed said improvements and stock of goods for taxation, and levied against the same certain taxes. There is no contention that the property, was .assessed or the taxes levied, except in the same manner as all other property in the county of like character was taxed during the same period of time; nor is there any showing of discrimination in respect to this property.

On or about the 1st day of January, 1901, the County Treasurer, as tax collector, seized the stock of goods of the plaintiffs located on said reservation for the unpaid and delinquent taxes for the years named, and advertised the same for sale.

Thereupon plaintiffs instituted these proceedings to have the sale restrained. The cause was submitted to the District Court upon an agreed statement of facts; and that court reserved certain questions deemed to be important and difficult for the decision of this court. The tax collector for the several years in question had not made out and certified, and caused to be filed in the office of the County Treasurer a list of all delinquent taxes, as required, by law, but an uncertified list was kept in a book in the office of the treasurer, who was also collector of taxes, ex-officio. The character of that book and the entries therein made will be more specifically referred to when we come to a consideration of the questions relating to the authority of the taxing officer to collect the taxes by distress of personal property. The reserved questions are as follows :

First — Under the laws of the State of Wyoming, is personal property located upon and within the limits of the Shoshone Indian Reservation in Fremont County, Wyoming, which personal property is used by the plaintiffs in their business and occupation as licensed Indian traders in the manner set forth in the agreed statement of facts in this case, subject to taxation in the County of Fremont, State of Wyoming?

Second — -Are the plaintiffs exempt from taxation in the County of Fremont, State of Wyoming, by reason of their ,• being licensed Indian traders in .said reservation, engaged in the business of dealing with the Indians on that reservation, and- also with white people living on and off said reservation and those traveling through and across said reservation, such as freighters and others?

Third' — Does the failure of the County Collector and Treasurer to certify delinquent tax lists, as provided by Section 1882 of the Revised Statutes of 1900 of the laws of the State of Wyoming, vitiate the taxes, or in any manner prevent their collection or the enforcement of such collection by him?

Fourth — In the State of Wyoming can personal property be seized and sold after the 1st day of January for taxes due for the preceding year by virtue of the tax list for such preceding year, there being in the hands of the treasurer and collector no delinquent tax list for such year ?

Fifth — Did the tax collector for the County of Fremont and State of Wyoming, under the facts set forth in the agreed statement of facts, have the right or authority to make distress and sale of the personal property of the plaintiff in this case ?

Sixth — -Did the book in which was kept an account of the delinquent taxes due to the County of Fremont in the years 1893 to 1899, inclusive, constitute a sufficient delinquent tax list, and was the same sufficient warrant for the distress of personal property?

Questions 1 and 2 relate to the validity of the taxes in question. The jurisdictional authority of the State to tax property located upon the Shoshone Indian Reservation has been before this court in several cases. The first case is that of Moore v. Board of Commissioners of Sweetwater County, 2 Wyo., 8. In that case the taxing power of the State over property on such reservation was denied. The same conclusion was reached in Fremont County v. Moore, 3 Wyo., 200. In both cases not only was the right denied to tax the merchandise of an Indian trader, but also the authority to tax other property of the trader on the reservation not necessarily connected with his business as such trader.

In the case first above cited the decision was based upon the broad ground that the reservation was without the taxing jurisdiction of the territorial authorities. And the court in the later case may be said to have been influenced by similar reasons; though it-was held in that case that the distraint of personal property on the reservation by a tax collector would, as to the merchandise of the trader, .ampunt to an infraction of the policy of the Government as set forth in its treaty with the Indians; and as to other property would result in an infraction of the treaty. So far as concerns property other than goods and personal property of an Indian trader, the cases above mentioned were directly overruled by the decision of this court in the case of Torrey v. Baldwin, 3 Wyo., 430, wherein it was held that certain cattle owned by one not an Indian trader kept and located on the reservation was subject to state taxation; and the theory that the reservation was outside of the taxing jurisdiction of the State was shown to be unsound. In the more recent case of Moore v. Beason, 7 Wyo., 292, we held that cattle and horses belonging to a licensed Indian trader, and kept and grazed upon the reservation with the consent of the Indians, who were paid for the privilege, were subject to state taxation. The decisions of other courts are in harmony with our conclusions in Torrey v. Baldwin, and Moore v. Beason, and the power of the State to tax property within the limits of Indian reservations and belonging to persons not Indians is now well settled. (Thomas v. Gay, 169 U. S., 364; Wagoner v. Evans, 170 U. S., 588; Truscott v. Hurlbut L. & C. Co., 73 Fed., 60; Gay v. Thomas (Okla.), 46 Pac., 578.) The cases of Thomas v. Gay and Wagoner v. Evans, supra, involved the taxation of cattle kept within reservations in Oklahoma under leases with the Indians duly authorized by act of Congress; and the tax was upheld. The court held that such tax did not constitute an invasion of the jurisdiction and control of the United States over the Indians and their lands; and it was said to be obvious that “a tax put upon cattle of the lessees is too- remote and indirect to be deemed a tax upon the lands or privileges of the Indians.”

In Moore v. Beason, supra, this court expressly refrained from deciding the precise question now presented, viz., whether the stock of goods of a licensed Indian trader, located on the reservation, would be subject to state taxation. It may be said also that in none of the cases above cited was that particular question under consideration. In 1862 the Supreme Court of Minnesota held that such property was not taxable under state laws. (Foster v. Board, 7 Minn., 140.) The ground of that decision was that the tax would interfere with and amount to a burden upon commerce with the Indian tribes, the regulation of which is vested by the Federal Constitution in Congress. In a recent case in Montana the contrary conclusion was announced. (Cosier v. McMillan, 22 Mont., 484.) That case was decided after the decisions were rendered by the United States Supreme Court in Thomas v. Gay and Wagoner v. Evans, supra, and these cases are cited in the opinion of the Montana court. It was held by that court that the tax did not amount to a tax upon any federal agency or means employed by the Government for the execution of its powers. In the opinion of this court in Moore v. Beason, supra, the character of the duties and privileges of a licensed Indian trader and his relations to the government are discussed ; and it is unnecessary here to repeat what was there said. We adhere to the view then expressed, that such a person does not occupy the position of an officer or agent of the United States. He is permitted to reside in the Indian country and to carry on with the Indians any trade not prohibited. The goods handled by him are his own, and he may sell them to persons not Indians, as it is agreed in the case at bar plaintiffs do, and may doubtless remove them at pleasure, so far as any duty he owes to the Government or the Indians is concerned. We perceive nothing in the statutory regulations which would prevent him from abandoning his business at any time, and withdrawing with his merchandise front the reservation. In the case of the reservation in question, whether the fact is material or not, the traders are in competition with other merchants in towns and places off the reservation in their dealings with people other than Indians. There should be some good reason, therefore, if they are to be exempted from, bearing their share of the burdens of the government in the shape of taxation. We do not think that the taxation of the goods of the Indian trader is a tax upon an agency-of the General Government in the sense in which such a tax is prohibited. We- are unable to perceive .how the tax operates to hinder or defeat the operations of the Government. Should it be conceded, however, that the trader stands in the relation of an agent to the Government, we would not be inclined to regard a tax upon his property as having the necessary effect to deprive him of the efficient exercise of his power to serve the Government as it is intended he shall serve it; having in mind the nature and extent of his privileges and the purpose of the license under which he carries on his business. (R. R. Co. v. Peniston, 16 Wall., 8.)

In McCullough v. Maryland, 4 Wheat., 316, Chief Justice Marshall, in the course of his opinion, referred to the supposed case of a contractor for supplying a military post with provisions; and after indicating that such contractor could not be fined or taxed for making purchases in a state or transporting the provisions to the place where the troops were stationed, said: “It is true the property of the contractor may be taxed.” And the distinction has frequently been made in the decisions of the Supreme Court of the United States between a tax upon the property of an agent of the Government, and a tax upon the action of the agent, and it is held that a tax upon his property is not beyond the power of a state to impose. (R. R. Co. v. Peniston, supra.)

Although counsel for plaintiffs do not seem to assail the validity of the taxes in question upon the ground that they amount to a regulation of commerce with Indian tribes, that question is deserving of some attention, especially as the early case of Foster v. Board, supra, was decided on that ground by the Minnesota court.

We do not understand that a trader under a license from the governmental authorities owes any duty to the Government other than to observe and comply with the terms of his license, and the laws and regulations of the Government respecting trade and intercourse with the Indians. Such a license is expressly authorized to be revoked at any time; and whenever, in the opinion of the President, public interest' may require the same, the introduction of goods into the country belonging to any Indian tribe may be prohibited, and he may direct all licenses to be revoked, and all applications therefor to be rejected. The effect of the license is to permit and authorize the licensee to reside in the designated Indian country and trade with the Indians. His right to do so cannot be interfered with by the state. But is that right interfered with by a tax upon his property that is laid equally upon all property of like kind? While it is true that a tax upon any article that may become the subject of commerce in a sense affects commerce itself, that fact does not determine that the tax is upon commerce. Although the effect of the tax may be an increase of the expenses of the trader, we think it cannot, for that reason, be justly said that the tax amounts to a regulation of commerce. (State Tax on Ry. Gross Receipts, 15 Wall., 284, 294; Pullman’s Palace Car Co. v. Pennsylvania, 141 U. S., 16.) It is admitted in the agreed statement that the occupation of plaintiffs as Indian traders could not have been carried on without “said stock of goods and improvements.” Yet it is apparent that it could not have been intended that such admission should have the far-reaching effect that the strict language used might - imply. But, if so, the admission should not be held to bind the court when its knowledge, and the knowledge and experience of everyone, must be to the contrary. It is evident that other goods procured by the traders would answer their purposes as well as the particular goods in stock at the time the tax was levied. Indeed, it is doubtless true that the goods in stock at the time of the attempted distraint were not the identical goods on hand at the time of the assessment several years earlier. We take it that the admission was intended and understood to state that to pursue their occupation they required such a stock of goods. It is manifest that to trade with the Indians, they must have goods to sell. To buy from the Indians, they must have capital to be. so employed. Yet how would a tax upon such capital constitute a tax upon a regulation of commerce with the Indians ?

It appears to us that the reasoning in the case of Thomas v. Gay, supra, is applicable to and largely decisive of this question. Answering the argument that the Indians were directly interested in the property sought to be taxed, for the reason that they received compensation from the owners of the cattle for the privilege of grazing them on the reservation, it was- said that the tax was too remote and indirect to be deemed a tax on the lands or privileges of the Indians. The tax in that case was also attacked on the ground that it conflicted with the power of Congress to regulate commerce with the Indian tribes; that it placed a servitude upon a lawful intercourse with the Indians over which Congress has absolute control. The court, however, said: “The unlimited power of Congress to deal with the Indians, their property and commercial transactions, so long as they keep up their tribal organizations, may be conceded; but it is not perceived that local taxation, by a state or territory, of property of others than Indians would be an interference with Congressional power.” It was further said by the court that “the taxes in question were not imposed on the business of grazing, or on the rent received by the Indians, but on the cattle as property of the lessees, and, as we have heretofore said that as such a tax is too remote and indirect to be deemed a.tax or burden on interstate commerce, so it is too remote and indirect to be regarded as an interference with the legislative power of Congress.” This holding of the learned court applies-with full force, it seems to us, to the case in hand. The tax upon the stock of goods of the trader -is too remote and- indirect to be deemed a tax or burden upon commerce with an Indian tribe. Indeed, the contention’ that the power of Congress was interfered with in the case of the taxation of cattle kept on the reservation by the consent and. to the benefit of the Indians, with th.e approval of Congress, presented a stronger ground for invoking the constitutional provision as to the exclusive right of Congress to regulate commerce with the Indian tribes, than is presented by the facts in the case at bar.

The remaining questions have reference to the power of the collector, upon the facts in this case, to enforce the taxes by distress and sale of personal property. The general question involved is whether, in the absence of a delinquent tax list made out, certified and filed as required by the statutes, the collector is authorized to resort to the summary remedy of distress. It is conceded that the absence of such list does not vitiate the taxes. But it is insisted that in such case no authority is possessed by the officer to collect by means of distress.

The taxes in question were all delinquent. Prior to 1895 taxes became delinquent on the 30th day of November. By legislative enactment of that year the 31st day of December was fixed as the date whereon the unpaid taxes for the year should become delinquent. (L. 1895, Ch. 107, Sec. 4.) That provision has been carried into the late revision and is known as Section 1870. Section 3820, Revised Statutes of 1887, was as follows: “Immediately after the 30th day of November of each year the County Collector shall from the tax list in his hands make out a complete list of all delinquent taxes for that and preceding years due from every person or persons; attach his certificate to said statement, showing what the same is, and file the same in the office of the County Treasurer, which said statement shall be at all times a sufficient warrant and authority for the collector of taxes upon which to proceed to collect any and all delinquent taxes.” In the revision of- 1899 that section is known as Section 1882, and is identical with the section as it stood in the former revision, with the exception of the time for preparing the list. That has been changed to correspond with the change made in the statutes in respect to the date when unpaid taxes become delinquent; so that for the 30th day of November has been substituted the 31st day of December.

In view of the argument of counsel for defendant that the treasurer being ex-officio collector, the provision is a useless one, requiring the officer to make out, certify and file in his own office, a certain statement, to operate as authority to himself to proceed to collect delinquent taxes that are already shown on the tax lists in his possession to be delinquent; it is significant that in 1895 the Legislature, in enacting a statute relating to 'delinquent taxes, again provided for such list in language very similar to that of the statute then in force. We have, therefore, two different sections of the statute making practically the same provision. The section of the act of 1895 referred to is now Section 1871 of the revision of 1899, and reads as follows: “Immediately after the 31st day of December in each year the County Collector of taxes shall from the tax list in his hands make out a complete list of all delinquent taxes for that and preceding years due from every person or persons, corporation or corporations, or association of persons taxable in this (his) county, and shall attach his certificate to said statement or list showing that it is a true list of all delinquent taxes and file the same in the office of the County Treasurer, and said list or statement shall be at all times a sufficient warrant and authority for the collector of taxes upon which to proceed and collect any and all delinquent taxes.”

There is also another section that refers to this list, Revised Statutes 1887, Section 3813, Revised Statutes 1899, Section 1875. That section was enacted in 1879 in con~ nection with the- preceding section that made provision for collecting delinquent taxes, and it authorizes the collector to make the taxes by distress and sale of personal property, and provides that “the delinquent tax list alone shall be a sufficient warrant for such distress. It is true that the collector is given general authority and is required to collect, as far as practicable, the taxes remaining unpaid on the original lists of former years, as well as those entered on the list of the current year. (R. S. 1899, Sec. 1783; R. S. 1887, Sec. 3808.) After the tax list of any year is delivered by the County Clerk to the collector, it thereafter remains continually in the latter’s possession, and he notes thereon from time to time the payments made of .the taxes therein charged. Assuming that all payments have been entered, he is able at any time to make out from such lists a statement or list of taxes that have become delinquent. It is also true that provision is made in one section of the statute for collection of taxes after they become delinquent in any year by distress and sale of property, without referring specifically to a delinquent list. (R. S. 1899, Sec. 1873; R. S. 1887, Sec. 3811.) That provision was incorporated into our laws in 1882 by the same act which made the treasurer ex-officio collector of all taxes, instead of the sheriff, who theretofore had performed those duties, before they became delinquent. The duty of collecting delinquent taxes had been imposed upon the treasurer before the passage of the act of 1882.

The act of 1882, however, left unrepealed a provision for the returning by the collector of a list of all unpaid taxes, after they had become delinquent. (C. R. 1876, Sec. 42.) And a provision for the publication of the delinquent list passed in 1877 was also unaffected by that act. (R. 1877, p. 93; R. S. 1887, Sec. 1815.) The act of 1877 requiring publication was not altered until 1891, when the section was so amended as to require the treasurer to make and place with the County Clerk, for general inspection, a full list of all delinquent taxes. That provision has continued in force. (R. S. 1899, Sec. 1101.) The provision of the act of 1879 declaring the delinquent list alone to be a sufficient warrant for distress was not touched by the act of 1882. It is, therefore, difficult to disassociate. the authority conferred upon the collector by that act from the other statutory provisions bearing on the subject. And the difficulty is rendered the more apparent in view of the fact that the provision is found in an act fixing the fees of county officers; and the section itself that empowered the collector to levy distress and sell proceeded to fix the fees chargeable for such service.

It is also true that in certain cases, such as the threatened -removal of personal property from the county, the collector is authorized, under another section of the statute to levy upon and detain the property for a tax due or about to become due; but those provisions do not, in oui-opinion throw much light upon the question before us; nor do we think that the statute declaring that the tax on personal property shall be and remain a perpetual lien thereon until the payment of the tax should affect a decision of the question. The only remedy provided by statute for the enforcement of such lien seems to be the proceedings authorized for the collection of the tax.,

In support of the right of distress without the delinquent list, it is argued that, independent of the provisions for the making of such list, and disregarding them, enough would remain in the statute conferring authority upon the officer to collect delinquent taxes by. distre’ss; and that no useful purpose is subserved by the list, since the collector is authorized by the express language of the statute to collect all unpaid taxes on lists of former years. It might be conceded, and doubtless should be, that if every provision requiring, or referring to, a delinquent list were stricken from the statutes, we would be able to discover in what remained adequate authority for the enforcement of the taxes in the manner attempted by the collector in the case of these taxes. But it is not perceived that the court is authorized to strike such provisions from the statute, or disregard them. Whether the delinquent list is of-any practical value or not, the Legislature has deemed it wise to require it; and has so required by positive enactment as late as 1895, many years after having imposed the duties of collector of taxes upon the County Treasurer.

Moreover, we are.far from being convinced that the delinquent list is, so far as the taxpayer is concerned, a useless thing. It is true that, should payments be correctly entered upon the original lists, a reference to such lists would disclose the taxes unpaid and delinquent. But that record is negative, rather than positive. A list made out of all delinquent taxes,' and certified to by the collecting officer, is positive official evidence of the facts set forth in the statement or list. Taxes upon the same property, or assessed against the same person, may be delinquent for a number of years. So far as the original lists are concerned, the record of that delinquency rests solely upon the fact that the taxes are not noted on the lists as having been paid. It seems not an unwarranted assumption that one purpose, at least, of the provisions under consideration was that there should be placed on file a positive record showing all delinquent taxes. The collector is required to certify that the list made out by him is a true one. Moreover, for some time, the list was required to be published, and since 1891 such a list is required to be placed with the clerk for public inspection.

But the controlling consideration is that the statutes expressly declare generally that the delinquent list shall be the authority for the collection of delinquent taxes, and in’ one place for making distress. Notwithstanding that the officer is authorized by statute in one section to collect the taxes remaining unpaid on the original tax lists of former years, that authority must be construed in connection with the other provisions of the statutes relating to delinquent taxes. -

It is admitted that no delinquent tax list was made out for the years in question, 1893 to 1899, inclusive. But it appears that there was kept in the treasurer’s office a book, ruled into columns, the head of each column showing the year, and to the left of the column the names of persons, and, in the columns opposite the names, figures showing amounts of money. At the top is'the following: “Statement of Delinquent Taxes, Fremont County, Wyoming, for the following years.” The entries in the book are so made as to show opposite the name of Noble and Lane, for instance, in separate columns, the amount of delinquent tax for -each j^ear, the year being noted at the head of the column. There were also columns for entries showing the total tax collected, the penalty and remarks, and date of payment. The entries in the book were not certified. The book was kept as a record of delinquent taxes; but no separate and complete list was made out in either year, nor was any list certified to be a true list of all delinquent taxes. It is evident that each collector, at the end of the year, entered in the book the delinquent taxes for that year, but did not certify the same; nor did he include in any entry made by him delinquencies of former years. Those already appeared in the book. The evidence that they did or did not continue delinquent is to be found only in the notations of payment, or in the omission of any such entries. In our judgment, this does not amount to a compliance with the statute as to the making of a delinquent list, which is constituted authority to the officer to collect delinquent taxes by distress. We think that to authorize distress for delinquent taxes there must be made out and filed with the treasurer a certified list of all delinquent taxes. It does not appear from the statement of facts in this case, except inferentially, perhaps, whether ór not the collector had such a list as the law requires made out and filed in any year subsequent to 1899. It is stated that in each of the years mentioned, except the year ipoo, the book aforesaid was the only record kept by the County Treasurer showing the delinquent taxes, other than the original lists. But the situation as to the year 1900 is not disclosed. We do not think the question is before us whether a list properly prepared, certified and filed after the 31st day of December, 1900, or any subsequent year, showing delinquent taxes for all preceding years would operate as a sufficient authority for the enforcement of such taxes by distress. We refrain, therefore, from deciding whether,' in case of a failure of the collector at the end of any particular year to make, certify and file a delinquent list, such a list in a subsequent year including delinquent taxes ’ for all preceding years will authorize distress in enforcing collection of all such taxes; and whether a list now made up as required by law will confer such authority. We need go no further at this time than to say generall}'- that to authorize distress there must be on file in the treasurer’s office a list substantially as required by Sections 1871 and 1882. It is clear, we think, that the failure to make the delinquent list will not vitiate the taxes. Our decision upon the reserved questions, therefore, having reference to them by number, is as follows:

First — Personal property located within the limits of the Shoshone Indian Reservation, in Fremont County, used by the plaintiffs in their business as licensed Indian traders, in the manner set forth in the agreed statement of facts, is subject to taxation under .the laws of the State in the same manner and to the same éxtent as all other like property within the boundaries of said county.

Second — The property of plaintiffs is not by reason of their being licensed Indian traders exempt from taxation in the County of Fremont.

Third — The failure of the collector to certify delinquent taxes does not vitiate the taxes. But such taxes cannot be collected by distress unless there be made out, certified and filed in the office of the treasurer, in substantial compliance with the’law, a list of delinquent taxes, including the taxes sought to be collected. As already stated, in substance, in answering this question, we refrain from deciding whether or not, in case of neglect to make and file 'a list for the year in which any particular tax was levied and became delinquent, authority will exist for the collection thereof by distress by virtue of a list in substantial compliance with the law, subsequently prepared and filed, embracing such delinquent'tax.

Fourth — For the purposes of this case, the above sufficiently answers the inquiry contained in the fourth question.

Fifth — Under the facts set forth in the agreed statement, the collector was without right or authority to make distress and sale of the personal property of the plaintiffs at the time the same was attempted.

Sixth' — The book kept in the treasurer’s office, which purports to give an account of delinquent taxes for the years 1893 to 1899, inclusive, was not a substantial compliance with the statutes as to the delinquent tax list to be filed in the office of the treasurer, and was, therefore, not a sufficient authority for the distress of personal property in enforcing the collection of delinquent taxes.

Corn, C. J., and Knight, J., concur.