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(40 Sup.Ct.)

DETERMINE WHETHER NONFEDERAL GROUNDS
OF DECISION WERE WITHOUT SUBSTANTIAL

the credits of a resident although evidenced withstanding Act May 27, 1908, c. 199, §§ 1, 4, by debts due from residents of another state. purporting to make the land subject to taxation, This is the general rule recognized in the and the state and all its political subdivisions maxim "mobilia sequuntur personam," and were bound to give effect to the exemption. justify, except under exceptional circum- 2. CoURTS 394(18)-SUPREME COURT MAY stances, the taxation of credits and beneficial interests in property at the domicile of the owner. We have pointed out in other decisions that the principle of that maxim is not of universal application and may yield to the exigencies of particular situations. But we think it is applicable here.

It is true that the legal title of the property is held by the trustee in Pennsylvania. | But it is so held for the benefit of the beneficiary of the trust, and such beneficiary has an equitable right, title and interest distinct from its legal ownership. "The legal owner holds the direct and absolute dominion over the property in the view of the law; but the income, profits, or benefits thereof in his hands, belong wholly, or in part, to others." 2 Story's Equity (11th Ed.) § 964. It is this

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The beneficiary is domiciled in Massachusetts, has the protection of her laws, and there receives and holds the income from the trust property. We find nothing in the Four teenth Amendment which prevents the taxation in Massachusetts of an interest of this character, thus owned and enjoyed by a resident of the state. The case presents no difference in principle from the taxation of credits evidenced by the obligations of persons who are outside of the state which are held taxable at the domicile of the owner. Kirtland v. Hotchkiss, 100 U. S. 491, 25 L. Ed. 558.

SUPPORT.

The right to an exemption of Indian allotments from taxation under an act of Congress was a federal right, and, when specifically set up and claimed in the petition, the petitioners were entitled to invoke the judgment of the Supreme Court on the question whether such right was given due recognition by the state court, and it was within the province of the Supreme Court to inquire, not only whether the right was denied in express terms, but whether it was denied in substance and effect cision without fair or substantial support. by putting forward nonfederal grounds of de

3. COURTS 391(4)-DECISION BASED ON

NONFEDERAL GROUNDS NOT PLAINLY UNTEN-
ABLE NOT REVIEWABLE.

A judgment of a state court, which is put on independent nonfederal grounds broad enough to sustain it, cannot be reviewed when such grounds are not plainly untenable.

4. TAXATION 541-PAYMENT OF TAXES ON EXEMPT LANDS NOT VOLUNTARY SO AS TO PREVENT RECOVERY.

Where Indians just emerging from a state
of dependency and wardship, who were prose-
cuting suits to restrain taxation of their lands,
position of a penalty at a time when the county
paid taxes thereon to prevent a sale and the im-
was demanding that they be paid and threaten-
ing to sell the land, and actually selling other
lands similarly situated, the taxes were not paid
voluntarily so as to prevent their recovery.
5. TAXATION 535-PAYMENTS UNDER COM-

PULSION MAY BE RETURNED OR RECOVERED
WITHOUT STATUTORY AUTHORITY.

Where the payment of taxes on exempted

We find no error in the judgment and the lands was not voluntary, but under compulsion, same is

Affirmed.

Mr. Justice McREYNOLDS dissenting.

(253 U. S. 17)

WARD et al. v. BOARD OF COUNTY COM'RS OF LOVE COUNTY, OKL. (Submitted March 11, 1920. Decided April 26,

1920.) No. 224.

1. CONSTITUTIONAL LAW

100-TAXATION

no statutory authority was essential to enable
or require the county to refund the money.

6. CONSTITUTIONAL LAW 284(1)—COLLECT-
ING UNLAWFUL TAX BY COERCION WITHOUT
OBLIGATION TO REFUND WOULD TAKE PROP-
ERTY WITHOUT DUE PROCESS.

If a county could collect unlawful taxes on
exempt property by coercive means without in-
curring any obligation to pay them back, it
trarily and without due process of law.
would thereby appropriate the property arbi-

7. CONSTITUTIONAL LAW

254-DUE PRO

CESS CLAUSE IS BINDING ON COUNTY.
Const. U. S. Amend. 14, prohibiting the tak-
of property without due process of law,

193-INDIANS' EXEMPTION FROM TAXA-ing
TION HELD VESTED PROPERTY RIGHT WHICH binds a county as an agency of the state.
CONTINUED, NOTWITHSTANDING STATUTE TO
CONTRARY.

8. TAXATION 543(4)-COUNTY IS LIABLE TO
REFUND TAXES WRONGFULLY COLLECTED,
THOUGH MONEY PAID TO STATE AND MUNICI-
PALITIES.

Under Act June 28, 1898, c. 517, providing that lands allotted thereunder should be nontaxable while the title remained in the original allottee, but not to exceed 21 years, the exempA county, which collected taxes on exempt tion was a vested right protected by the Con- lands of Indians with notice that the owners stitution, and the lands were nontaxable not-disputed the liability of the land to taxation and

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

the money.

9. CERTIORARI 69-ON REMAND OF CASE BY FEDERAL SUPREME COURT, QUESTION NOT DISCUSSED BY STATE COURT HELD OPEN.

were contesting such liability in pending suits, impairment of the rights of property pertainwas liable for the amount collected, though a ing to the Indians was intended, chapter 3335, portion had been paid over to the state and other § 1, 34 Stat. 267; and the state included in its municipal bodies, as it had no right to collect Constitution a provision exempting from taxation "such property as may be exempt by reason of treaty stipulations, existing between the Indians and the United States government, or by federal laws, during the force and effect of such treaties or federal laws." Article 10, § 6. Afterwards Congress, by an act of 1908, removed the restrictions on alienation as to certain classes of allottees, including the present claimants, and declared that all land from which the restrictions were removed "shall be subject to taxation,

Where in a suit to recover taxes paid by Indians on exempt lands, a demurrer was overruled, and judgment for the petitioners rendered, which was reversed by the state Supreme Court on grounds which the United States Supreme Court holds insufficient to defeat recovery, it is open to the state court, after remand, to deal with the claim, presented by the demurrer, but not discussed by the state Supreme Court, that the petition is barred by limitations.

On Writ of Certiorari to the Supreme

Court of the State of Oklahoma.

as though it were the property of other persons than allottees." Chapter 199, $$ 1, 4, 35 Stat. 312.

Following the last enactment the officers of Love and other counties began to tax the alProceeding by Coleman J. Ward and others lotted lands from which restrictions on alienagainst the Board of County Commissioners ation were removed, and this met with proof Love County, Okl. Judgment for the peti-nounced opposition on the part of the Indian tioners was reversed by the Supreme Court allottees, who insisted, as they had been adof Oklahoma (Board of Com'rs of Love Coun-vised, that the tax exemption was a vested ty v. Ward, 173 Pac. 1050), and they bring certiorari. Motion to dismiss denied, and judgment reversed.

Messrs. John Emerson Bennett, of Ft. Worth, Tex., and George P. Glaze, of Oklahoma City, Okl., for petitioners.

#18

property right which could not be abrogated or destroyed consistently with the Constitution of the United States. Suits were begun in the state courts to maintain the exemption and enjoin the *threatened taxation, one

*20

of the suits being prosecuted by some 8,000 allottees against the officers of Love and oth

*Mr. Justice VAN DEVANTER delivered er counties. The suits were resisted, and the the opinion of the Court.

This is a proceeding by and on behalf of Coleman J. Ward and sixty-six other Indians to recover moneys alleged to have been coercively collected from them by Love county, Oklahoma, as taxes on their allotments, which under the laws and Constitution of the United States were nontaxable. The county commissioners disallowed the claim and the claimants appealed to the district court of the county. There the claimants' petition was challenged by a demurrer, which was

*19

overruled *and the county elected not to plead further. A judgment for the claimants followed, and this was reversed by the Supreme Court. Board of Comr's of Love County v. Ward, 173 Pac. 1050. The case is here on writ of certiorari. 248 U. S. 556, 39 Sup. Ct. 12, 63 L. Ed. 419.

The claimants, who were members of the Choctaw Tribe and wards of the United States, received their allotments out of the tribal domain under a congressional enactment of 1898, which subjected the right of alienation to certain restrictions and provided that "the lands allotted shall be nontaxable while the title remains in the original allottee, but not to exceed twenty-one years from date of patent." Chapter 517, 30 Stat. 507. In the act of 1906, enabling Oklahoma to become a state, Congress made it plain that no

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state courts, being of opinion that the exemption had been repealed by Congress, sustained the power to tax. English v. Richardson, 28 Okl. 408, 114 Pac. 710; Gleason v. Wood, 28 Okl. 502, 114 Pac. 703; Choate v. Trapp, 28 Okl. 517, 114 Pac. 709. The cases were then brought here, and this court held that the exemption was a vested property right which Congress could not repeal consistently with the Fifth Amendment, that it was binding on the taxing authorities in Oklahoma, and that the state courts had erred in refusing to enjoin them from taxing the lands. Choate v. Trapp, 224 U. S. 665, 32 Sup. Ct. 565, 56 L. Ed. 941; Gleason v. Wood, 224 U. S. 679, 32 Sup. Ct. 571, 56 L. Ed. 947; English v. Richardson, 224 U. S. 680, 32 Sup. Ct. 571, 56 L. Ed. 949.

While those suits were pending the officers of Love county, with full knowledge of the suits, and being defendants in one, proceeded with the taxation of the allotments, demanded of these claimants that the taxes on their lands be paid to the county, threatened to advertise and sell the lands unless the taxes were paid, did advertise and sell other lands similarly situated, and caused these claimants to believe that their lands would be sold if the taxes were not paid. So, to prevent such a sale and to avoid the imposition of a penalty of eighteen per cent., for which the local statute provided, these claimants paid

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(40 Sup.Ct.)

the taxes. They protested and objected at the time that the taxes were invalid, and the county officers knew that all the allottees were pressing the objection in the pending suits.

As a conclusion from these facts the claimants asserted that the taxes were collected by Love county by coercive means, that their collection was in violation of a right arising out of a law of Congress and protected by the Constitution of the United States, and that the county was accordingly bound to repay the moneys thus collected. The total amount claimed is $7,833.35, aside from interest.

#21

*Such, in substance, was the case presented by the petition, which also described each tract that was taxed, named the allottee from

whom the taxes were collected and stated the amount and date of each payment.

In reversing the judgment which the district court had given for the claimants the Supreme Court held, first, that the taxes were not collected by coercive means, but were paid voluntarily, and could not be recovered back as there as there was no statutory authority therefor; and, secondly, that there was no statute making the county liable for taxes collected and then paid over to the state and municipal bodies other than the county-which it was assumed was true of a portion of these taxes-and that the petition did not show how much of the taxes was retained by the county, or how much paid over to the state and other municipal bodies, and therefore it could not be the basis of any judgment against the county.

and proceeded to collect them. Payment of all the taxes was demanded by the county, and all were paid to it in the circumstances already narrated.

We accept so much of the Supreme Court's decision as held that, if the payment was voluntary, the moneys could not be recovered back in the absence of a permissive statute, and that there was no such statute. But we are unable to accept its decision in other respects.

[2, 3] The right to the exemption was a federal right, and was specially set up and claimed as such in the petition. Whether the right was denied, or not given due recognition, by the Supreme Court is a question as to which the claimants were entitled to invoke our judgment, and this they have done in the appropriate way. It therefore is within our province to inquire not only whether the right was denied in express terms, but also whether it was denied in substance and effect, as by putting forward nonfederal grounds of decision that were without any fair or substantial support. Union Pacific R. R. Co. v. Public Service Commission, 248 U. S. 67, 39 Sup. Ct. 24, 63 L. Ed. 131; Leathe v. Thomas, 207 U. S. 93, 99, 28 Sup. Ct. 30, 52 L. Ed. 118; Vandalia R. R. Co. v. South Bend, 207 U. S. 359, 367, 28 Sup. Ct. 130, 52 L. Ed. 246; Gaar, Scott & Co. v. Shannon, 223 U. S. 468, 32 Sup. Ct. 236, 56 L. Ed. 510; Creswill v. Knights of Pythias, 225 U. S. 246, 261, 32 Sup. Ct. 822, 56 L. Ed. 1074; Enterprise Irriga

tion District V. Farmers' Mutual Canal

Co., 243 U. S. 157, 164, 37 Sup. Ct. 318, 61 L.

Ed. 644. And see Jefferson Branch Bank v.

Skelly, 1 Black, 436, 443, 17 L. Ed. 173; Huntington v. Attrill, 146 U. S. 657, 683, 684, 13 Sup. Ct. 224, 36 L. Ed. 1123; Boyd v. Thayer, 143 U. S. 135, 180, 12 Sup. Ct. 375, 36 L. Ed. 103; Carter v. Texas, 177 U. S. 442, 447, 20

The county challenges our jurisdiction by a motion to dismiss the writ of certiorari and by way of supporting the motion insists that the Supreme Court put its judgment entirely on independent nonfederal grounds which were broad enough to sustain the judgment. [1] As these claimants had not disposed of Sup. Ct. 687, 44 L. Ed. 839. Of course, if nontheir allotments and twenty-one years had thus put forward successfully, our power to federal grounds, plainly untenable, may be not elapsed since the date of the patents, it review easily may be avoided. Terre Haute, is certain that the lands were nontaxable. etc., R. R. Co. v. Indiana, 194 U. S. 579, 589, This was settled in Choate v. Trapp, supra, 24 Sup. Ct. 767, 48 L. Ed. 1124. With this and the other cases decided with it; and it also was settled in those cases that the ex-qualification, it is true that a judgment of a emption was a vested property right arising out of a law of Congress and protected by the Constitution of the United States. This being so, the state and all its agencies and political subdivisions were bound to give effect to the exemption. It operated as a direct restraint on Love county, no matter what was said in local statutes. The county did not respect it, but, on the contrary, assessed the lands allotted to these claimants, placed them on the county tax roll, and there charged them

*22

with taxes like *other property. If a portion of the taxes was to go to the state and other municipal bodies after collection-which we assume was the case-it still was the county that charged the taxes against these lands

*23

state court, which is put on *independent nonfederal grounds broad enough to sustain it, cannot be reviewed by us. But the qualification is a material one and cannot be disregarded without neglecting or renouncing a jurisdiction conferred by law and designed Constitution and the laws made in pursuto protect and maintain the supremacy of the ance thereof.

[4] The facts set forth in the petition, all of which were admitted by the demurrer whereon the county elected to stand, make it plain, as we think, that the finding or decision that the taxes were paid voluntarily was without any fair or substantial support. The claimants were Indians just emerging from a

state of dependency and wardship. Through | ment, which binds the county as an agency of the pending suits and otherwise they were the state. objecting and protesting that the taxation of [8] If it be true, as the Supreme Court astheir lands was forbidden by a law of Con- sumed, that a portion of the taxes was paid gress. But, notwithstanding this, the county over, after collection, to the state and other demanded that the taxes be paid, and by municipal bodies, we regard it as certain threatening to sell the lands of these claim- that this did not alter the county's liability ants and actually selling other lands similarly to the claimants. The county had no right situated made it appear to the claimants that to collect the money, and it took the same with they must choose between paying the taxes notice that the rights of all who were to share and losing their lands. To prevent a sale in the taxes were disputed by these claimants and to avoid the imposition of a penalty of and were being contested in the pending suits. eighteen per cent. they yielded to the coun- In these circumstances it could not lessen its ty's demand and paid the taxes, protesting liability by paying over a portion of the monand objecting at the time that the same were ey to others whose rights it knew were disillegal. The moneys thus collected were ob-puted and were no better than its own. Attained by coercive means-by compulsion. chison, Topeka & Santa Fé Ry. Co. v. O'ConThe county and its officers reasonably could not have regarded it otherwise; much less the Indian claimants. Atchison, Topeka & Santa Fé Ry. Co. v. O'Connor, 223 U. S. 280, 32 Sup. Ct. 216, 56 L. Ed. 436, Ann. Cas. 1913C, 1050; Gaar, Scott & Co. v. Shannon, [9] *The county calls attention to the fact supra, 223 U. S. 471, 32 Sup. Ct. 236, 56 L. Ed. 510; Union Pacific R. R. Co. v. Public that in the demurrer to the petition the statService Commission, supra; Swift Co. v. ute of limitation (probably meaning section United States, 111 U. S. 22, 29, 4 Sup. Ct. 1570, Rev. Laws 1910) was relied on. This 244, 28 L. Ed. 341; Robertson v. Frank Bros. point was not discussed by the Supreme Co., 132 U. S. 17, 23, 10 Sup. Ct. 5, 33 L. Ed. Court and we are not concerned with it be236; Oceanic Steam Navigation Co. v. Strana-yond observing that when the case is rehan, 214 U. S. 320, 329, 29 Sup. Ct. 671, 53 L.manded it will be open to that court to deal Ed. 1013. The county places some reliance on with the point as to the whole claim or any Lamborn v. County Commissioners, 97 U. S. item in it as any valid local law in force 181, 24 L. Ed. 926, and Railroad v. Commis- when the claim was filed may require. sioners, 98 U. S. 541, 25 L. Ed. 196; but those cases are quite distinguishable in their

*24

facts, and some of the *general observations therein to which the county invites attention must be taken as modified by the later cases just cited.

nor, supra, 223 U. S. 287, 32 Sup. Ct. 216, 56 L. Ed. 436, Ann. Cas. 1913C, 1050. In legal contemplation it received the money for the use and benefit of the claimants and should respond to them accordingly.

*25

Motion to dismiss denied.
Judgment reversed.

(253 U. S. 25)

BROADWELL v. BOARD OF COUNTY COM'RS OF CARTER COUNTY, OKL. (Submitted March 25, 1920. Decided April 26, 1920.) No. 289.

On Writ of Certiorari to the Supreme Court of the State of Oklahoma.

Proceeding by George R. Broadwell against the Board of County Commissioners of Carter County, Okl. A judgment for defendant was affirmed by the Supreme Court of Oklahoma (175 Pac. 828), and petitioners bring certiorari. Motion to dismiss denied, and judgment reversed. See, also, 249 U. S. 594, 39 Sup. Ct. 259, 63 L. Ed. 794.

[5-7] As the payment was not voluntary, but made under compulsion, no statutory authority was essential to enable or require the county to refund the money. It is a well-settled rule that "monev got through imposition" may be recovered back; and, as this court has said on several occasions, "the obligation to do justice rests upon all persons, natural and artificial, and if a county obtains the money or property of others without authority, the law, independent of any statute, will compel restitution or compensation." Marsh v. Fulton County, 10 Wall. 676, 684 (19 L. Ed. 1040); City of Louisiana v. Wood, 102 U. S. 294, 298, 299, 26 L. Ed. 153; Chapman v. County of Douglas, 107 U. S. 348, 355, 2 Sup. Ct. 62, 27 L. Ed. 378. To say that the county could collect these unlawful taxes by coercive means and not incur any obligation to pay them back is nothing short of saying that it could take or appropriate the property This is a proceeding to recover moneys charged of these Indian allottees arbitrarily and with- to have been paid under compulsion by a num out due process of law. Of course this would ber of Choctaw and *Chickasaw Indians to Carbe in contravention of the Fourteenth Amend- ter county, Oklahoma, as taxes on allotted

Messrs. George P. Glaze and Charles L Moore, both of Oklahoma City, Okl., for petitioner.

Messrs. George B. Rittenhouse, of Oklahoma
City, Okl., Clinton A. Galbraith, of Ada, Okl.,
J. A. Bass, of Ardmore, Okl., for respondent.
P. T. McVay, of Oklahoma City, Okl., and

Mr. Justice VAN DEVANTER delivered the opinion of the Court.

*26

(40 Sup. Ct.)

dissent.

lands which were nontaxable. The county com- | faith against the officers of the government, and missioners disallowed the claim; the district the amount recovered was simply compensatory. court of the county to which the claimants appealed sustained a demurrer to their petition The Chief Justice and Mr. Justice Clarke and rendered judgment against them, and the Supreme Court affirmed the judgment. 175 Pac. 828. The total amount claimed is $22,455.99, aside from interest.

The case as presented here is in all material respects like Ward v. Love County, 253 U. S. 17, 40 Sup. Ct. 419, 64 L. Ed., just decided, and its decision properly may be rested on the opinion in that case.

Motion to dismiss denied.
Judgment reversed.

(253 U. S. 1)

(Argued March 16, 1920.

Appeal from the Court of Claims.

Claim by the Atlantic Dredging Company and another against the United States. From a judgment in favor of the claimants (53 Ct. Cl. 490), the United States appeals. Affirmed.

Action in the Court of Claims to recover the sum of $545,121.72 from the United States on account of expenditures and loss caused, it is alleged, in the execution of a contract which it was induced to enter into by false and misleading statements of the officers of the United States in charge of excavations in the Delaware river.

UNITED STATES v. ATLANTIC DREDGING CO. et al. In pursuance of advertisement by the UnitDecided April 26, ed States through Col. Kuhn, the dredging company entered into a contract to do a certain part of the work for the sum of 12.99 cents per cubic yard, scow measurement.

1920.)

No. 214.

1. UNITED STATES 70(2)-SPECIFICATIONS REQUIRING BIDDERS TO EXAMINE WORK HELD

NOT TO RELIEVE GOVERNMENT FROM LIABILITY FOR MISREPRESENTATIONS.

Where the specifications for a dredging contract stated that the material was believed to be mainly mud, or mud with an admixture of sand, and that a number of test borings had been made, the results of which might be seen on the maps on file; but the maps showed the material to be the same as stated in the specifications, and did not show the field notes of the borings or contain a true description of the material as encountered, or as shown by the field notes, and the contractor's plant, submitted for approval as required, was approved, though it was only efficient for dredging material of the character mentioned in the specifications, the government was not relieved of liability by a statement in the specifications that bidders were expected to examine the work, and that the United States did not guarantee the accuracy of the description.

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3. UNITED STATES 96 CLAIM FOR EXTRA COMPENSATION, BECAUSE MATERIAL TO BE DREDGED WAS DIFFERENT FROM THAT REPRFSENTED, NOT ONE FOr tort.

Sealed proposals were required by the advertisement and it was stated that information could be had on application, and bidders were invited to base their bids upon the specifications, which had been prepared by, and were submitted by the government.

The specifications stated that the depth of the channel to be dredged was 35 feet, and under the heading "Quality or Character of the Material" contained the following:

"The material to be removed is believed to

be mainly mud, or mud with an admixture of fine sand, except from station 54 to station 55+144, at the lower end of West Horseshoe Range (the latter is not included in the contract) where the material is firm mud, sand, and gravel or cobbles.".

It was stated that

"Bidders were expected to examine the work, however, and decide for themselves as to its character and to make their bids accordingly, as the United States does not guarantee the accuracy of this description."

The further statement was that

all of the areas where dredging is to be done "A number of test borings have been made in under these specifications, and the results thereof may be seen by intending bidders on the No guaranty is given as to correctness of these maps on file in this office. (See paragraph 17.) borings in representing the character of the bottom over the entire vicinity in which they were taken, although the general information given thereby is believed to be trustworthy."

To ascertain the character of the material An action in the Court of Claims to recover subjected the bottom of the river to certain to be dredged the government officers had the additional cost of dredging, due to the material to be dredged proving to be different from borings, called, according to their manner of that represented, was not one for tort, which being made, "test borings and wash borings," could not be maintained against the United and the results thereof were correctly reportStates, where there was no intimation of bad ed and recorded on the log or field notes at

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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