Stephens v. Nacey

141 P. 649, 49 Mont. 230, 1914 Mont. LEXIS 60

• Court: Montana Supreme Court
• Decided: May 26, 1914
• Docket: No. 3,438
• Status: Published

Opinion

MR. CHIEF JUSTICE BRANTLY

delivered the opinion of the court.

Election contest involving title to the office of sheriff of Valley county. Heretofore a judgment by the district court dismissing the contest for want of jurisdiction was reversed, and it was directed that the right to the office be determined as it should be made to appear under the issues of fact presented by the pleadings. (Stephens v. Nacey, 47 Mont. 479, 133 Pac. 361.) The allegations in the original statement impeached the legality of the vote cast at polling place No. 1, of Saco precinct, and the entire vote cast at Poplar precinct. Prior to the trial the contestant, by leave of court, amended the statement so as to eliminate the allegations impeaching the vote east at Saco, thus leaving for determination only the question whether the vote as cast at Poplar precinct was properly returned by the judges and clerks of election at that precinct and included by the board of canvassers in ascertaining the result. According to the result as declared by the board, the contestant received a total of 1,084 and the contestee 1,110 votes, thus showing the election of the contestee by a plurality of 26 votes. At Poplar precinct there were cast for the contestant and contestee a total of 56 votes, of which the former received 11 and the latter 45. If, therefore, the vote at this precinct should be rejected, it would leave the totals 1,073 for the contestant, and 1,065 for the contestee, thus establishing the election of the former by a plurality of 8 votes. It is alleged that all the votes cast at Poplar precinct were illegal, and should have been rejected by the board of canvassers, for the reasons: That the town of Poplar is situated on the Ft. Peck Indian reservation; that the boundaries of Poplar precinct are wholly within the boundaries of the reservation; that it was not lawful to establish a precinct there; that all the persons who cast their votes there resided upon the reservation, and therefore, not being residents of the state of Montana, were not qualified electors; and' that, in receiving and counting their votes and including them in the sum total of the votes cast, the judges of election and the board of county canvassers were guilty of malconduct in the performance of their duties. The issues joined upon these allegations the court found generally in favor of the contestee and, directed judgment to be entered accordingly. Contestant has appealed.

Section 499 of the Revised Codes declares: “No officer of this state, nor of any county, must establish a precinct within the limits of any county not fully organized, or at any Indian agency, or at any trading post in the Indian country or on any Indian reservation.”

In section 21, Chapter 113 of the Laws of 1911 (Laws 1911, p. 223), are found these provisions:

“1. That place must be considered and held to be the residence of a person in which his habitation is fixed and to which, whenever he is absent, he has the intention of returning.

“2. A person must not be held to have gained or lost a residence by reason of his presence or absence while employed in the service of the United States, * * * nor while a student at any institution of learning, nor while kept at any almshouse or other asylum at the public expense, nor while confined in any public prison, nor while residing upon any Indian or military reservation.”

“11. Any person living upon an Indian or military reservation shall not be deemed to be a resident of Montana, within the meaning of this chapter, unless such person has acquired a residence in some county in Montana prior to taking up his residence upon such Indian or military reservation; provided, that if such person shall not be in the employ of the government while residing upon such Indian or military reservation, such person shall not be considered a resident of the state of Montana.”

These provisions, so far as they apply to this case, may be summarized as follows: (1) That the residence of an elector for voting purposes is at the place of his fixed habitation to which, when absent therefrom, he expects to return; (2) that a voting precinct cannot lawfully be established upon an Indian reservation; (3) that after a person has gained a residence in any county of the state, he does not lose his residence or acquire another by living upon an Indian reservation — in other words, his residence for voting purposes remains at the place where he acquired it before going upon the reservation; and (4) that a person who has not theretofore acquired a residence in some county at a place off the reservation shall not be deemed a resident of Montana by virtue of his residence upon the reservation, unless he shall be in the employ of the government while upon the reservation.

Counsel have discussed extensively in their briefs the validity of the foregoing provisions; counsel for the eontestee urging that they are repugnant to several provisions of the Constitution, in that they arbitrarily deprive qualified electors of their right to vote as guaranteed by that instrument. As we view the case, it is not necessary to determine any of the questions presented and discussed in this behalf. Upon the facts [1] admitted or proven at the trial (there was no substantial conflict in the evidence), the trial court concluded that it was lawful for the county commissioners to establish a voting precinct at Poplar, because it is not upon an Indian reservation, within the meaning of section 499, supra; that the persons who east their votes there were qualified electors; and that the return of the vote, as made by the clerks and judges, was properly canvassed, and included in the estimate of the board of county commissioners ascertaining the final result.

These facts are not disputed: By an Act of the Congress approved February 15, 1887 (24 Stat. 402, Chap. 130), there was granted to the St. Paul, Minneapolis and Manitoba Railway Company a right of way 150 feet in width across the lands included in the Ft. Peck Indian reservation, from east to west. The grant also included other lands adjacent to the line of road at station points, to the extent of 300 feet in width and 3,000 feet in length, for station buildings, shops, etc. Subsequently the Great Northern Railway Company succeeded to the rights of the original grantee, and has since occupied the right of way -with its railroad. By section 3 of the Act of Congress, providing for the survey and allotment of the lands embraced within the limits of the reservation and for the sale of the surplus lands after allotment, approved May 30, 1908 (35 Stat. 558, Chap. 237), the original grant was supplemented by a grant of other lands along the right of way for reservoirs, dam sites, etc., for use in connection with the operation of the railroad. By section 14 of the latter Act the Secretary of the Interior was authorized to reserve and set aside for a town site at Poplar, a settlement which had grown up near the agency located there, and about midway between the east and west boundaries of the reservation, a tract of land of not less than forty acres. He was directed to have this surveyed, laid out and platted into lots, streets, alleys and parks, and thereupon to dispose of the lots by sale, as provided by section 2381 of the United States Revised Statutes (U. S. Comp. Stats. 1901, p. 1455; 3 Fed. Stats. Ann., p. 583), relating to town sites on public lands. There was reserved, however, to .persons actually occupying lots at the time of the survey the right to make entries thereof for patents prior to the time fixed for public sale. Under the authority thus conferred, a town site of 130.82 acres was reserved, and the plat of it was filed in the General Land Office at Washington prior to October 30, 1909, and subsequently a copy was filed in the local land office at Glasgow. The town site is on the line of the railroad, and its south boundary is the north line of the railroad right of way. Prior to the date of the election in November, 1912, which gave rise to this contest, many patents had been issued to occupants and purchasers of lots, and at that time the population residing in the settlement and engaged in trade and other occupations amounted to about 600. Since the date of the creation of the town site the federal government has treated it as not a part of the reservation, for purposes of trade with the Indians, in that it has ceased to require persons engaged in trade there to obtain a license. Moreover, from the time patents have issued, the lots have been assessed and taxed for state and county purposes, the same as real estate owned by residents in Valley county outside of the reservation, and the same as the right of way and other lands held by the Great Northern Railway Company. The Indian agency is on land outside of the town site.

It is conceded by counsel for contestant that at the date at which the grant to the railway company became effective the Indian title to the lands granted was extinguished, and that they at once becáme segregated from the reservation and subject to the jurisdiction of the state government. ' It is insisted, however, that, since Poplar is within the boundaries of the reservation, and it does not appear that the Indian title to the land reserved for the town site has been extinguished, it still retains the character of Indian country, and hence the establishment of a precinct and the reception of votes there was in contravention of the provisions of section 499 of the statute supra.

We think the concession of counsel that the grants of the right of way and other lands for railroad purposes operated to extinguish the Indian title to the lands granted carries with it necessarily the concession that the establishment of the town site extinguished the Indian title to the lands included within it also; for, so far as we have been able to ascertain, the grants for railroad purposes were made without consent of the Indians by treaty or otherwise, and by force of the Act of Congress making them, without reservation of any right in favor of the Indians. The reservation of a town site for the purpose of sale of lots to occupants or anyone else who might purchase them was made in the same way; and it must be that, if, by virtue of the Acts making the grants to the railway companies, the federal government renounced jurisdiction over the subject of them, for the same reason, by setting aside the town site and granting patents to the lots therein to private citizens, it renounced jurisdiction over it for all other purposes than to dispose of the lots,' and it thereby became subject to the jurisdiction of the state for general governmental purposes.

It is true that when Montana was admitted into the Union the federal government retained, and the people of Montana conceded to it, absolute control of, and jurisdiction over, all lands lying within the state “owned or held by any Indian or Indian tribes,” until the title thereto should be extinguished by the federal government. (Act Feb. 22, 1908, Chap. 180; 25 Stat. 676, sec. 4; Mont. Const., Ordinance 1.) It is also true that, when lands are -reserved for the use of Indians, the fee is under the control of the federal government, and that the manner, time, and conditions on which their title shall be extinguished are matters to be determined exclusively by the government. (Missouri, K. & T. Ry. Co. v. Roberts, 152 U. S. 114, 38 L. Ed. 377, 14 Sup. Ct. Rep. 496; Spalding v. Chandler, 160 U. S. 394, 40 L. Ed. 469, 16 Sup. Ct. Rep. 360.) It is none the less true that when a grant is made of any part of such lands to a railway company for its right of way, and the grant is absolute in its terms, giving to the grantee the right of possession and occupancy for the purposes of the grant, such grant must of necessity extinguish entirely the Indian title. It was so held by the supreme court of the United States in Spalding v. Chandler, supra, as to the title to a right of way for a canal, granted by the Congress in 1852, over a reservation occupied by the Chippewa Indians in the state of Michigan. In the course of the opinion, the court, through Mr. Justice White, said: “Whatever the reason, however, for the omission to make mention of the Indian reserve, the power existed in Congress to invade the sanctity of the reservation, and disregard the guaranty contained in the treaty of 1820, even against the consent of the Indians, party to that treaty; and, as the requirement of the grant necessarily demanded the possession of the portion of the reserve through which the canal was to pass, the effect of that Act was to extinguish so much of the Indian reserve as was embraced in the grant to the state for canal purposes.” The same conclusion was announced in Missouri, K. & T. Ry. Co. v. Roberts, supra, with reference to the grant by Congress to the railway company of a right of way through the country of the Osage Indians, in Kansas in 1866. The court there, through Mr. Justice Field, stated the rule as follows: The “grant was absolute in its terms, covering both the fee and possession, and left no rights on the part of the Indians to be the subject of future consideration.” Also in the recent case of Clairmont v. United States, 225 U. S. 551, 56 L. Ed. 1201, 32 Sup. Ct. Rep. 787, it was held that, since the title to the right of way of the Northern Pacific Railway Company through the Flathead Indian reservation had been extinguished by treaty with the Indians, it is no longer Indian country, within the meaning of the Act of Congress of January 6, 1897 (29 Stat. 506, e. 109), prohibiting the introduction of intoxicating liquor into Indian country.

It is entirely competent for Congress, by treaty stipulation with the Indians, where their lands have been allotted to them in severalty under provisions by which they become citizens of the United States, to retain jurisdiction over the allotted lands for the purpose of preventing the introduction of intoxicating liquors, and this jurisdiction may extend to adjacent lands the title to which is surrendered by the Indians to the United States, until otherwise directed by Congress. The leading ease on this subject is United States v. Forty-three Gallons of Whisky, 93 U. S. 188, 23 L. Ed. 846. This involved the .right of traders to introduce intoxicating liquors upon lands which had been ceded to the United States by treaty by the Chippewa Indians in the state of Minnesota. The lands in question were included in an organized county of the state, and were subject for general purposes to the state government. While recognizing the right of the state to assume jurisdiction for other purposes, the court declared that it is competent for the federal government under its treaty-making powers to keep in force upon the ceded lands the legislation of Congress prohibiting the introduction thereon of intoxicating liquors, notwithstanding any law of the state in conflict therewith, without infringing in any way upon the principle of state sovereignty. The court said: “The power to make treaties with the Indian tribes is, as we have seen, coextensive with the power to make treaties with foreign nations. And it cannot be doubted that the treaty-making power is ample to cover all the usual subjects of diplomacy with different powers. One of these subjects relates to the acquisition and distribution of property belonging to the citizens or subjects of each in the territory of the other. A treaty embracing this matter may contravene the statutes of a state; but, if it does, the courts would disregard them and give to the alien the full protection accorded him by the treaty. If this result can be obtained by treaty with a foreign nation, surely the federal government can, in the exercise of its power to treat with Indians, make provision over a subject like the present, coming, as it does, within the clause relating to the regulation of commerce.”

In the case of Dick v. United States, 208 U. S. 340, 52 L. Ed. 520, 28 Sup. Ct. Rep. 399, the court upon the same principle sustained a conviction for a violation of the federal statute by the plaintiff in error (Act July 23, 1892, 27 Stat. 260, Chap. 234), by introducing intoxicating liquor upon the Nez Perce reservation, in the state of Idaho. The village of Culdesac, where the offense was committed, was a village organized under the laws of Idaho. The lands upon which it was located were a part of the lands ceded to the United States under a treaty with the Indians made in 1893. In this treaty it was stipulated that the ceded lands should be subject to the federal laws prohibiting the introduction of intoxicating liquors into the Indian country for the period of twenty-five years. The court held that, though the title to the lands upon which the village was situated had been transferred to the probate judge of Nez Perce county, the laws of the federal government were, by virtue of treaty, paramount to the authority of the state upon the subject of the introduction and sale of intoxicating liquor.

It will be observed that the court in both these cases distinctly assumed that the power of the state for governmental purposes over lands to which the Indian title has been extinguished is not restricted, except so far as it is limited by the act of extinguishment. Therefore it cannot be controverted, we think, that, subject to the conditions imposed at the time of extinguishment, whether accomplished under the treaty-making power of the federal government or by an Act of Congress, the jurisdiction of the state, authorities is extended over all such lands within its limits for all governmental purposes whenever the federal government parts with its title. The owners become subject to the payment of taxes upon them for state purposes (State ex rel. Commissioners v. State Board of Equalization, 18 Mont. 389, 45 Pac. 553), and hence are entitled to all the rights and privileges of other citizens under the laws of the state. We therefore hold that all persons residing upon the right of way of the Great Northern Bailway Company and in the village of Poplar, which adjoins it, who have acquired a residence there and possess the other qualifications necessary to entitle them to vote, are, under the provisions of the state statute, electors, and that it was competent for the board of commissioners to establish a precinct at Poplar to make it convenient for them to exercise their rights as such. While we think the boundaries of the precinct should not have included any territory other than the granted lands, the fact that it did, did not constitute it a precinct upon an Indian reservation within the meaning of the prohibition of the statute.

It is insisted by counsel for the contestant, however, that, since it is inferable from the evidence that some of the persons who voted at Poplar did not reside either upon the lands granted to the railroad or within the limits of Poplar, it was in any event incumbent upon the contestee to purge the poll or suffer the loss of all votes east at the precinct. This contention is without merit. The theory of the contestant, as disclosed by his statement, is that the vote cast at Poplar precinct should be rejected as a whole, because, since it was unlawful for the board of commissioners to establish a precinct there, no votes could lawfully be received there, and hence that the judges appointed to hold the election there were guilty .of malconduet in opening the polls and receiving votes. In [2] other words, the malconduet charged is the receiving of votes east in the aggregate, and not in the receiving of any specific number of illegal votes. It was pointed out in Coleman v. Kerr, 33 Mont. 198, 83 Pac. 393, that, under section 2010 of the Code of Civil Procedure of 1895, malconduet on the part of election officers, as specified in subdivision 1,- is a wholly distinct ground of contest from that of reception of illegal votes referred to in subdivision 4, and that, when the latter was stated as the ground of contest, it was incumbent upon the contestant to furnish to the contestee, at least three days before the trial, a written list of the number of votes he deems illegal; otherwise proof of the specific illegal votes cannot be made. (Code Civ. Proc., 1895, sec. 2015.) These provisions are found in the Revised Codes as sections 7234 and 7239, and declare the rule applicable to this case. So far as is disclosed by the record, no such list was delivered to the contestee; hence contestant is not in a position to claim, under the issues as made in his statement, that any number of the votes cast were illegal. As we read the evidence, it goes no further than to suggest, by the barest inference, that any votes were received which were open to legal objection. Under the provisions cited, the [3] burden was upon the contestant to show that a sufficient number of illegal votes were cast to change the result.

The only other point which we deem it necessary to notice [4] arises upon the ruling of the court in admitting in evidence a copy of the plat of the Poplar town site. When the original plat was filed with the Commissioner of the General Land Office in Washington, a certified copy was filed in the local land office at Glasgow. A similar copy was deposited for filing with the clerk and recorder of Yalley county at Glasgow, but had not been marked “filed,” because the filing fee had not been paid. The copy from the land office was exhibited to the court, and a certified copy of the copy deposited with the clerk and recorder was offered in evidence by the contestee and admitted over the objection by counsel for the contestant that it was not the best evidence, because not a certified copy of the original by the officer having it in custody. The ruling was error. (Eev. Codes, see. 7924.) But, in view of the fact that a proper copy could easily be supplied, and that it does not appear that prejudice was wrought, by the use of the copy admitted, we shall not reverse the judgment merely for the purpose of allowing the error in this connection to be corrected.

Other contentions made by counsel are not of sufficient importance to require special notice.

The judgment is affirmed.

Affirmed.

Mr. Justice Holloway and Mr. Justice Sanner concur.