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the laws of the United States, and of' the, empt, became subject to taxation in the state of Washington.
"You are further directed to instruct the commissioner to take the necessary steps to complete and close up the business of his office as soon as practicable after March 3, next."
same manner as property belonging to other citizens, and the rule of exemption for him must be the same as for other citizens,that is, that no exemption exists by implication, but must be clearly manifested. No exemption is clearly shown by the legislation in respect to these Indian lands. The
Mr. Walter Christian for plaintiff in er- original treaty provided that they should be
In the brief filed by the plaintiff in error no question is made of his right to sell and convey the land. The supreme court of the state, in its opinion, says: "It is conceded that the Indians may now sell their lands voluntarily and convey a title in fee, and that thereupon the lands so sold are subject to taxation in the hands of parties not Indians." [38 Wash. 129, 80 Pac. 296.] But the contention is that although he has the power of voluntary sale and conveyance, yet, until he has exercised that power, the land is not subject to taxation or forced sale. His argument rests mainly upon the contention that there is no express repeal of the exemption provided in the original treaty, "from levy, sale, or forfeiture." That Congress may grant the power of voluntary sale while withholding the land from taxation or forced alienation may be conceded. For illustration, see treaty of January 31, 1855, with the Wyandotts (10 Stat. at L. 1159, 1161). But while Congress may make such provision, its intent to do so should be clearly manifested, for the purpose of the restriction upon voluntary alienation is protection of the Indian from the cunning and rapacity of his white neighbors, and it would seem strange to withdraw this protection and permit the Indian to dispose of his lands as he pleases, while at the same time releasing it from taxation,in other words, that the officers of a state enforcing its laws cannot be trusted to do justice, although each and every individual acting for himself may be so trusted.
But further, by the act of February 8, 1887, plaintiff became and is a citizen of the United States. That act, in addition to the grant of citizenship, provided that "Indians to whom allotments have been made shall have the benefit of and be subject to the laws, both civil and criminal, of the state or territory in which they may reside." Re Heff, 197 U. S. 488, 49 L. ed. 848, 25 Sup. Ct. Rep. 506.
Among the laws to which the plaintiff as a citizen became subject were those in respect to taxation. His property, unless ex
exempt from levy, sale, or forfeiture until the legislature of the state should, with the consent of Congress, remove the restriction. This, of course, meant involuntary as well as voluntary alienation. When the state was admitted and its constitution formed, its legislature granted the power of alienation "in like manner and with like effect as any other person may do under the laws of the United States and of this state, and all restrictions in reference thereto are hereby removed." What restrictions? Evidently those upon alienation. The Indian may not only voluntarily convey his land (authority to do that is provided by the use of the word "grant"), but he may also permit its alienation by any action or omission which, in due course of law, results in forced sale. Congress postponed the operation of this statute for ten years. When the ten years expired (and they had expired before this tax was attempted to be levied) all restriction upon alienation ceased. It requires a technical and narrow construction to hold that involuntary alienation continues to be forbidden while the power of voluntary alienation is granted; and it is disregarding the act of Congress to hold that the Indian having property is not subject to taxation when he is subject to all the laws, civil and criminal, of the state.
We see no error in the ruling of the Supreme Court of the state of Washington, and its judgment is affirmed.
MARTIN CONBOY, as Trustee in Bankruptcy of the Phillip Semmer Glass Company, Limited, Bankrupt, Appt.,
FIRST NATIONAL BANK OF JERSEY CITY.
Appeal-from circuit court of appeals-in bankruptcy case.
1. The allowance of an appeal from a circuit court of appeals in a bankruptcy case Court cannot operate as an adjudication on certificate of a justice of the Supreme that such appeal is taken within the thirty days allowed by general order in bankruptcy No. 36.
Appeal from order denying rehearing.
2. No appeal lies from an order denying a petition for rehearing.*
*Ed. Note.-For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 740, 741.
Appeal from circuit court of appeals-in | the 24th day of May, 1905, denying the pebankruptcy case. tition of the said trustee for a rehearing;" and for the reversal of "said orders and decrees, etc., and every part thereof."
3. The thirty days' limitation prescribed by general order in bankruptcy No. 36 for taking an appeal from a final order of a circuit court of appeals in a bank
ruptcy case cannot be extended by filing a petition for rehearing after the thirty days have expired, although there may be but one term of that court, and, by its rules of practice, petitions for rehearing may be presented at any time during the term.
Mr. Chief Justice Fuller delivered the opinion of the court:
This is an appeal from a final order of the circuit court of appeals for the second circuit affirming an order of the district court of the United States for the south ern district of New York, filed June 7, 1904, affirming an order of a referee in bankruptcy, "In the matter of Phillip Semmer Glass Company, Limited, Bankrupt," dated May 7, 1904, allowing the claim of the First National Bank of Jersey City against the bankrupt's estate.
The final order of the circuit court of ap peals was entered January 23, 1905. The trustee petitioned that court, April 25, to recall its mandate and vacate the order therefor, and the application was denied. On May 8 a petition for rehearing was filed, which was denied May 17, and an order to that effect entered May 24. A petition, dated the same day, was thereupon presented to a justice of this court, praying an appeal "from the whole of the said order of affirmance of the circuit court of appeals for the second circuit, dated the 23d day of January, 1905, and from the whole of the said order of the circuit court of appeals for the second circuit, dated the 25th day of April, 1905, denying the motion of your petitioner to recall the mandate of said court and cancel the order for same, and from the whole of the said order of the circuit court of appeals for the second circuit, dated
under $ 25b, par. 2, of the bankruptcy act Appeal was allowed and certificate granted [30 Stat. at L. 553, chap. 541, U. S. Comp. Stat. 1901, p. 3432], May 27, 1905. Thereafter and on June 14, 1905, findings of fact and conclusions of law were filed by the circuit court of appeals, "nunc pro tunc, as though the same were made and filed at the time of entry of the judgment of this court on the 23d day of January, 1905."
The following provisions of the bankruptcy act are applicable:
"Sec. 25b. From any final decision of a court of appeals, allowing or rejecting a claim under this act, an appeal may be had under such rules and within such time as may be prescribed by the Spreme Court of the United States in the following cases and
Court of the United States shall certify "2. Where some justice of the Supreme that, in his opinion, the determination of the question or questions involved in the allowance or rejection of such claim is essential to a uniform construction of this act throughout the United States."
Paragraphs 2 and 3 of general orders in bankruptcy, 36, read:
"2. Appeals under the act to the Supreme Court of the United States from a circuit court of appeals, or from the supreme court of a territory, or from the supreme court of the District of Columbia, or from any court of bankruptcy whatever, shall be taken within thirty days after the judgment or decree, and shall be allowed by a judge of the court appealed from, or by a justice of the Supreme Court of the United States.
is entitled by the act to take an appeal to "3. In every case in which either party the Supreme Court of the United States, the court from which the appeal lies shall, at or before the time of entering its judgment or decree, make and file a finding of the facts, and its conclusions of law thereon, stated separately; and the record transmitted to the Supreme Court of the United States on such an appeal shall consist only of the pleadings, the judgment or decree, the finding of facts, and the conclusions of
The law provides that appeals shall be taken "within such time as may be prescribed by the Supreme Court of the United States," and by general order 36 this court prescribed the time and limited it to thirty days, in harmony with the policy of the bankruptcy act, requiring prompt action and the avoidance of delay.
The limitation has the same effect as if written in the statute, and the allowance of an appeal on certificate cannot operate as an adjudication that it is taken in time. The present appeal was allowed four months "after the judgment or decree" appealed from and three months after the time to appeal had expired.
But it is said that the limitation should be referred to the date of the order denying the petition for rehearing, and the trustee prayed an appeal from that order as well as from the judgment of January 23.
No appeal lies from orders denying petitions for rehearing, which are addressed to the discretion of the court and designed to afford it an opportunity to correct its own errors. Brockett v. Brockett, 2 How. 238, 17 L. ed. 251; Wylie v. Coxe, 14 How. 1, 14 L. ed. 301. Appellant might have made his application for rehearing and had it determined within the thirty days, and still have had time to take his appeal. But he let the thirty days expire, as it did February 22, 1905, and did not file his petition until May 8, 1905. The right of appeal had then been lost and appellant could not reinvest himself with that right by filing a petition for rehearing.
The cases cited for appellant, in which it was held that an application for a rehearing, made before the time for appeal had expired, suspended the running of the period for taking an appeal, are not applicable when that period had already expired. "When the time for taking an appeal has expired, it cannot be arrested or called back by a simple order of court. If it could be, the law which limits the time within which an appeal can be taken would be a dead letter." Credit Co. v. Arkansas C. R. Co. 128 U. S. 258, 261, 32 L. ed. 448, 449, 9 Sup. Ct. Rep. 107, 108.
In the circumstances, the suggestion that there is but one term of the circuit court of appeals for the second circuit, and that, by the rules of practice of that court, petitions for rehearing may be presented at any time during the term, and therefore that this petition operated to enlarge the limitation of the bankruptcy act, is without merit.
The petition was denied. Whether it could have been granted in view of the terms and spirit of the bankruptcy act, or the effect, if it had been, we are not called upon to discuss.
NEW YORK FOUNDLING HOSPITAL, Iject to the supervision of the petitioner and
its officers and agents; that at such time the petitioner had officers and agents of trained experience at the town of Clifton, with instructions to supervise said child and the care and management of it while temporarily in the charge and care of the said person as aforesaid; that at all times the petitioner had the right at will to withdraw the child from the care and charge of the said person, and retain the custody thereof, and continue to keep the said child in pursuance of law under its care, charge, custody, and management during the cerm of its infancy, as aforesaid.
Upon information and belief it charges that thereafter, and on or about the 2d day
Argued April 26, 1906. Decided December 3, of October, 1904, one John C. Gatti, resid
ing at the said town of Clifton, his servants and employees, unlawfully and with force
and violence entered into the house of the said person, where, at the time of said unlawful entrance, the said child, William Nor
APPEAL from the Supreme Court of the Territory of Arizona to review a judgment on a writ of habeas corpus, awarding the care and custody of an infant to the re-ton, was, having been placed there as aforespondent. Dismissed for want of jurisdic
The suit below was begun by a petition for a writ of habeas corpus, by the New York Foundling Hospital, a corporation of the state of New York, against John C. Gatti, to command said Gatti to produce the body of one William Norton, an infant, and to show by what right he held such infant under his custody and control.
said and forcibly, unlawfully and without right, took possession of said William Norton, and removed him hence to the custody
of the said John Gatti. That the said child
has ever since said day been in the custody and under the control of the said Gatti, and that the said child is now restrained of its liberty by the said Gatti, without the consent or license of the petitioner, and against violation of its rights under the laws of the its desire, intention, and protest, and in state of New York, of the United States, and of the territory.
The respondent made return and claimed to be entitled to the custody of the child named in the petition as the legally appointed guardian, duly qualified as such under letters of guardianship issued by the probate court of Graham county, Arizona.
The petitioner set out in substance that, And further set forth in the return that the The petitioner set out in substance that, child in question is a white, Caucasian child; by its charter, granted by the legislature of New York, it was authorized to receive and that the petitioner, on or about the 1st day keep under its charge, custody, and control of October, 1904, brought the said child to children of the age of two years or under, the territory of Arizona, and abandoned him found in the city of New York, abandoned to the keeping of a Mexican Indian, whose or deserted, and left in the crib or other name is unknown to the respondent, but one receptacle of petitioner for foundlings, and financially unable to properly clothe, shelter, to keep such children during infancy; that maintain, and educate said child, and, by the child William Norton had come to it reason of his race, mode of living, habits, as a foundling within the terms of its char- and education, unfit to have the custody, ter; that the petitioner, on the 4th of Octo- care, and education of the child; that said ber, 1901, to October 2, 1904, had the care, person, to whom petitioner is alleged to charge, custody, and management of said have abandoned said child, voluntarily surchild; that on or about the 1st of October, rendered it to certain persons, who there1904, petitioner placed the child in the home upon placed it in the care, custody, and conof a certain person in the town of Clifton, trol of respondent, who is a fit person for county of Graham, territory of Arizona, to that purpose, and it will be to the best inbe held and cared for by the said person in terest of the child that he be permitted to said home temporarily, and at all times sub-remain with the respondent, whose purpose *Ed. Note.-For cases in point, see vol. 13, Cent. Dig. Courts, § 1032.
and intention it is to rear, maintain, educate, and provide for said child as though he were his own.
The petitioner traversed the return, and denied that the said minor was in the care, custody, and control of the respondent by virtue of letters of guardianship, and alleged that the said minor has been in the care, custody, and control of respondent Gatti by force and violence, and without authority of law or of any person legally authorized to place the child in the custody of the respondent.
The case came to trial on the issues of fact raised in the petition, return, and traverse thereof by the petitioner, and the testimony having been heard in open court, a final order was made, adjudging the said William Norton to be a minor of the age of two and one-half years, and that his best interests required that the said John C. Gatti have the care, custody, and control of said infant, who was thereupon remanded to the care, custody, and control of said respondent.
In the view which we take of the jurisdiction of this court to entertain the appeal in this case, it is unnecessary to consider the elaborate findings of fact made in the supreme court of Arizona as the basis of its order, further than they bear upon the question of jurisdiction to entertain this appeal.
found that the children were taken into the territory by the representatives of the foundling hospital, to remain there and be placed in suitable homes in Arizona; but, by imposition practised upon the agents of the society, the children were distributed among persons wholly unfit to be intrusted with them, being, with one or two exceptions, half-breed Mexican Indians of bad character. That thereupon a committee was appointed from the citizens resident of the vicinity, who visited the homes of the persons having possession of the children, stating to them that they had been appointed by the American residents to take possession of the children, who were then voluntarily surrendered by such per
The children were taken charge of by certain good women, and afterwards the child William Norton was given to the respondent, who has since had his care, custody, and control. This was done without the consent of the society or its agents. Afterwards letters of guardianship were issued to the respondent by the probate court of Graham county, Arizona. The petitioner took an appeal from the order granting the letters of guardianship to the district court of the county. Pending this appeal the petition for the writ of habeas corpus was filed.
The court, acting upon the principle that the best interests of the infant are controlling, awarded the care and custody thereof to the respondent (79 Pac. 231) and the petitioner took an appeal to this court.
The jurisdiction of the supreme court of the territory to issue the writ of habeas corpus is not called in question in this case.
We are met at the threshold with an objection to the appellate jurisdiction of this court. The appeal in such cases is allowed under cover of § 1909, Rev. Stat. Gonzales v. Cunningham, 164 U. S. 612, 41 L. ed. 572, 17 Sup. Ct. Rep. 182. That section provides:
"Sec. 1909. Writs of error and appeals from the final decisions of the supreme court of either of the territories of New Mexico, Utah, Colorado, Dakota, Arizona, Idaho, Montana, and Wyoming shall be allowed to the Supreme Court of the United States, in the same manner and under the same regulations as from the circuit courts of the United States, where the value of the property or the amount in controversy, to be ascertained by the oath of either party, or of other competent witnesses, exceeds one thousand dollars, except that a writ of error or appeal shall be allowed to the Supreme Court of the United States from the decision of the supreme courts created by this title, or of any judge thereof, or of the district courts created by this title, or of any judge thereof, upon writs of habeas corpus involving the question of personal freedom."
The question is, therefore, is this a writ of habeas corpus "involving the question of personal freedom?" That this section of the statute does not permit appeals from all cases in which the writ is issued is manifest in the use of language in the act specifically limiting the right of review in this court to cases of writs which involve the question of personal freedom.
A brief consideration of the history and nature of the writ will, we think, make manifest the purpose of Congress in using this restrictive language giving the right of appeal. The writ is usually granted in order to institute an investigation into the illegal imprisonment or wrongful detention of one alleging himself to be unlawfully restrained of his liberty.
The jurisdiction is conferred to enable the cause of restraint to be inquired into, and the person imprisoned or wrongfully deprived of freedom restored to liberty.
The subject was discussed by Mr. Justice Miller in the case of Re Burrus, 136 U. S. 586, 34 L. ed. 500, 10 Sup. Ct. Rep. 850, in which it was held that a district court of the United States has no authority to Is