Foster v. Pryor

This is an action to enjoin the payment of certain taxes levied upon property belonging to the appellees (plaintiffs below) and situated in an Indian reservation within the territory of Oklahoma. The appellee, Hite, resides in the Ponca and Otoe Indian reservation within that territory; the Stafford Land & Cattle Company is a corporation organized under the laws of the state of Texas and doing business in the above-named territory; and the 101 Live Stock Cattle Company is a corporation organized under the laws of the state of Kansas. The appellees, severally, owned large numbers of cattle which were grazing in the Indian reservation, and they were assessed therein for purposes of taxation by the taxing officer of Noble county, to which such reservation had been attached for judicial purposes. The reservation is without the boundaries of Noble county and is not within those of any organized county of the territory, and it comprises land owned and occupied by Indian tribes, consisting principally of wild, unimproved, and unallotted land used for grazing purposes. The reservation was duly attached to the county of Noble for judicial purposes by order of the supreme court of the territory, pursuant to the provisions of § 9 of the act organizing the territory, approved May 2, 1890 (26 Stat at L. 81, 85, chap. 182).

By art. 6, chap. 43, Session Laws of Oklahoma, 1895, it is provided:

'That § 13, art. 2, chap. 70, of the Oklahoma statutes relating to revenue, be and the same is hereby amended so as to read as follows: § 13. That when any cattle are kept or grazed, or any other personal property is situated in any unorganized country, district or reservation of this territory, then such property shall be subject to taxation in the organized county to which said country, district or reservation is attached for judicial purposes, and the board of county commissioners of the organized county or counties to which such unorganized country, district or reservation is attached shall appoint a special assessor each year, whose duty it shall be to assess such property thus situated or kept; such special assessor shall have all the powers and be required to perform all the duties of a township assessor, and shall give a similar bond and take the same oath as required of such township assessor, and receive the same fees as a township assesor, and the officer whose duty shall be to collect the taxes in the organized county to which such country, district or reservation is attached shall collect the taxes, and is vested with all the powers which he may exercise in the organized county, and his official bond shall cover such taxes,' etc.

In 1899 (p. 218, Session Laws), the Oklahoma legislature passed an act which provided—

'That from and after the passage and approval of this act no taxes shall be assessed, levied or collected in any unorganized country, district or reservation which shall be or which may hereafter be attached to any county for judicial purposes, except taxes for the territorial and court funds. All acts and parts of acts in conflict herewith are hereby repealed.'

The tax assessor of Noble county being of opinion that the law of 1899 was void for reasons hereafter stated, proceeded to assess for taxation under the act of 1895, supra, the cattle of the appellees which were grazing in the Indian reservation, instead of assessing such property for territorial and court funds only, as provided for in the act of 1899. The assessment for all purposes was at the rate of 26.2 mills on the dollar of valuation, divided as follows: For territorial purposes 5.2 mills, for court purposes 3 mills, for salaries 6 mills, for road and bridge fund 2 mills, for sinking fund 4 mills, for poor and insane 1 mill, for supplies 2 mills, for county school fund 2 mills, and for contingent purposes 1 mill, making a total of 26.2 mills. If the assessment had been for territorial and court purposes only it would have been at the rate of 8.2 mills on the dollar of valuation.

The appellees insisted that the taxing officer had no right to assess them upon their property in the reservation at any greater rate than 8.2 mills for territorial and court purposes, as provided for by the act of 1899, while the appellants contended that the act of 1899 was void, and that the tax assessor had the power, and it was his duty under the act of 1895, to assess the property of the appellees situated in the reservation, for all purposes; or, in other words, for the whole 26.2 mills.

The trial court held in favor of the tax officials and dismissed the petition of the appellees, but upon appeal the judgment of dismissal was reversed by the territorial supreme court and the tax declared invalid for more than 8.2 mills, assessed for territorial and court purposes. The tax authorities have brought the case here by appeal.

Messrs. Horace Speed, William J. Hughes, and William R. Harr for appellants.

Messrs. Henry E. Asp, S. H. Harris, and W. L. Barnum for appellees.

Mr. Justice Peckham, after making the foregoing statement of facts, delivered the opinion of the court: