Allen v. Trimmer, County Treasurer , 45 Okla. 83 ( 1914 )

I concur in the reasoning and conclusion in the majority opinion of the court, written by Associate Justice BLEAKMORE, and I am of the opinion that the judgment of the trial court is sound and should be affirmed for another reason, other than stated in the opinion, which, in my judgment, is equally sound. While it is clear these freedmen had no right to allotments, except under the Supplemental Agreement, ratified September 25, 1902, yet if there is a reasonable doubt as to whether or not there lands are exempt from taxation, by a well-settled rule, such doubt should be solved in favor of the state. Conceding that they were entitled to the exemption from taxation under section 29 of the Atoka Agreement, so long as the same remained unrepealed, it cannot be doubted that Congress has expressly repealed this exemption, so far as applies to all lands upon which restrictions have been removed. It is admitted that restrictions upon the alienation of lands allotted to these freedmen have been removed. Congress having undertaken to repeal this exemption, the question arises: Did it have the power so to do? We are cited to the cases of Choate v. Trapp,224 U.S. 665, 32 Sup. Ct. 565, 56 L.Ed. 941, and New Jersey v.Wilson, 7 Cranch, 164, 3 L.Ed. 303, and other cases, as holding that neither Congress nor the state has power to repeal the exemption. In my judgment, these cases are not in point.

There is a marked distinction between the status of the members of the Chickasaw Tribe of Indians and these freedmen in their relation to the federal government. The fee-simple title to the lands of this nation was vested jointly in the Choctaw and Chckasaw Tribes of Indians, while the individual allottee, prior to the division of the property, had no title in the lands which he could convey or enforce, yet he did have an equitable interest, a property right, which Congress could not destroy or divest; and as held by the Supreme Court inChoate v. Trapp, supra, in the Curtis Act and the Atoka Agreement, Congress formulated a plan to divide this property, and tendered to each individual member of the tribe a patent, conveying to him his share of these lands and exempting the same from taxation for a certain period, upon condition that the acceptance of this patent by the allottee should be a consent upon his part to relinquish all the right, title, and interest which he had by virtue of his membership in the tribe to the balance of the tribal lands. This right and interest was, beyond doubt, a property right, a vested right; and by virtue of this agreement, having relinquished this interest, it constituted a valid contract between the tribe and its members on the one hand and the federal government on the other. When this state was admitted into the Union, by section 3 of the Constitution, the people of the state agreed that all public lands belonging to any of said Indian tribes or nations should not be taxed until the title should be extinguished by the United States. By virtue of section 45, art. 25, of the Constitution, the people of the state did, by an irrevocable ordinance, accept the terms and conditions of the Enabling Act; and by a provision of said act it is provided that the government reserves the right to legalize relative to the Indian tribes and their tribal property. This right to so legislate was, by the state, surrendered to the federal government. The freedmen occupy an entirely different relation toward the federal government and the state than did the members of this tribe of Indians. Under the provisions of the treaty of 1866, their status, so far as any right to any of the tribal property, remained the same as the white citizens. They were subject to removal by the federal government. In other words, they remained here only by the sufferance of the federal government and the Indian tribes. They had no interest in the tribal property, either present, contingent, or future. United States v. Choctaw Nation et al.,193 U.S. 115, 24 Sup. Ct. 411, 48 L.Ed. 640.

The fact that the government purchased from the tribe and donated 40 acres of land to each of these freedmen did not in any sense constitute a valid contract, existing between the government and such freedmen. It was a mere bounty, bestowed upon these people by the government. The freedmen paid nothing; they took no chances; they relinquished no rights, for such they had not. The ward must pay the expense of litigation to recover or to protect his property; but every dollar of expense of litigation was paid by the government for these freedmen, even to the recording of the patent to their land. Their status was one of waiting and watching with no uncertainty as to the result, for the government had graciously said, if you have no rights a court of equity can recognize, yet for fear of some moral obligation which has not been strictly complied with, the government as guardian of these Indians has purchased and will, without money or price, deed to each 40 acres. It was not indispensable for a consideration to pass from him to the federal government, to constitute a valid conveyance of the title to the 40 acres; neither was it indispensable that a consideration should pass in order to exempt said lands from taxation; but certainly the fact that Congress saw fit to exempt his land from taxation, without any consideration, would estop it from removing the exemption at its pleasure. In every case where the Supreme Court of the United States has held that the Legislature was without power to repeal a tax ex-exemption it has been upon the theory that the act of the legislature granting the exemption constituted a valid contract or property right between the parties; and on the other hand, in every case decided by that court, where it has been held that the act granting the exemption constituted no contract, the power to repeal the exemption has been upheld. It cannot be doubted, in order to constitute such legislation, a valid contract, there must be a valid consideration. Cooley on Tax. p. 111; 37 Cyc. 901.

37 Cyc. p. 901, speaking upon this subject says:

"Such a grant, if plainly expressed and distinctly contractual in its nature and founded upon a consideration, constitutes a binding and irrevocable obligation on the part of the state" — citing University v. People, 99 U.S. 309, 25 L.Ed. 387;Jefferson Branch Bank v. Skelly, 1 Black, 436, 17 L.Ed. 173;Wells v. Savannah, 181 U.S. 531, 21 Sup. Ct. 697, 45 L.Ed. 986.

In the case of Grand Lodge v. New Orleans, 166 U.S. 143, 17 Sup. Ct. 523, 41 L.Ed. 951, it is said:

"We are of opinion that the act in question in this case was one which the Legislature might properly enact as a matter of public policy, and in aid of a beneficent purpose; but that it was a mere gratuity or bounty which it was competent at any time to terminate, and that this was done by article 207 of the Constitution of 1879. * * * So, in * * * West Wisconsin Railwayv. Board of Supervisors, 93 U.S. 595 [23 L.Ed. 814], is was held that an act of the Legislature exempting property of all railroads from taxation was not a contract to exempt, unless there were a consideration for the act; that the promise of a gratuity, spontaneously made, may be kept, changed, or recalled at pleasure; and that this rule applied to the agreements of the states, made without consideration, as well as to those of persons."

See also, Newton v. Commissioners, 100 U.S. 548, 25 L.Ed. 710; People v. Roper, 35 N.Y. 629. In Welch v. Cook,97 U.S. 541, 24 L.Ed. 1112, the act of the legislative assembly of the District of Columbia of June 26, 1873, exempted from general taxes for ten years thereafter such real and personal property as might be actually employed within the district for manufacturing purposes. It was held that the language did not create an irrepealable contract with the owners of such property, but simply conferred a bounty, liable at any time to be withdrawn. See Rector C. of Christ Church v. Philadelphia, 24 How. 300, 16 L.Ed. 602.

It is clear to my mind that, if the federal government had granted the exemption as contended, it was not an appurtenance to the land, but simply a personal privilege, without consideration, and repealable at the pleasure of Congress. That these people occupied no more favorable status legally toward the Chickasaw Nation than other noncitizens is clear from the provisions of the act of 1866, as construed by the Supreme Court of the United States in the case of United States v.Choctaw Nation, et al., supra. Had the federal government, being actuated by some beneficent motive, purchased a portion of this land from the Choctaw and Chickasaw Nations and bestowed it upon a certain class of noncitizens and provided it should be exempt from taxation for a period of twenty years, we think it could not be questioned that Congress could thereafter repeal so much of the act granting the exemption from taxation at its pleasure. The federal government, actuated by a philanthropic motive and perhaps recognizing a moral obligation from the Chickasaw Tribe of Indians due its freedmen which the tribe failed to observe and carrying out its unbroken policy of fairness, made a gratuitous gift of 40 acres of land each to these freedmen, thereby apparently favoring them over the other citizens of the state. In adopting the Constitution, the state agreed to keep inviolate all the rights in favor of Indian tribes existing by virtue of their treaties with the government; but the federal government did not require the state to favor these freedmen over its other citizens. Neither did the state agree to favor them. The state did agree to extend to them the equal protection of the law, and that it must do, but is under no obligation to grant a privilege to them in the way of immunity from taxation. In extending to them the equal protection of the law, it is only then just and right that they be required to contribute in proportion to their wealth the expense of maintaining the government which furnishes this protection. If the exemption was ever granted, it was on this consideration of the government's policy of fairness; and, being freely granted, it may as freely be recalled, when the legislative view of public policy may have changed, and the needs of the state demanded. As a matter of law, they must be regarded as favors or privileges to this class, granted and to be held at the pleasure of the sovereign power. There was no pledge by the government that they should be permanent, and no demand on the state to so regard and treat it as such, and no wrong done when they are recalled.

I am therefore of the opinion that there was no contract existing between the federal government and these freedmen, exempting their lands from taxation, such as to vest in them a property right in such exemption as would preclude Congress from repealing it at pleasure; that the conveyance of the 40 acres of land was merely a bounty, and there being no consideration for the exemption from taxation, Congress could repeal it at pleasure; that Congress has expressly repealed that portion of the agreement exempting lands from taxation, so far as applied to lands upon which restrictions have been removed, including the lands allotted to these freedmen, must be admitted.