V. that the plaintiffs in error have sustained | tion below that as returned by the clerks by the violation of a right which this court of the several counties, which implies that said, in the Muhlker Case, citing Barnett the board has the power of change, and, but V. Johnson, 15 N. J. Eq. 481, was founded for the prohibition, might reduce the total. in the "common practice and sense of the world.” [No. 280.] From my standpoint, what the courts of Argued April 26, 1907. Decided May 27, states other than New York have decided 1907. is of no consequence to the pending controversy, and I take no time therefore to dis: 1 APPEAL from the Supreme Court of the pute the pertinence of their citation to jus- Territory of Arizona to review a judgtify the structure of which plaintiffs com- ment sustaining a demurrer to an applicaplain. tion for a writ of certiorari to vacate proI am authorized to say that Mr. Justice ceedings of the board of equalization by Day concurs in this dissent. which the total valuation of property in the Affirmed. See same case below (Ariz.) 84 Pac. 511. The facts are stated in the opinion. TERRITORIAL BOARD OF EQUALIZA Messrs. William Herring, Everett E. El. TION OF THE TERRITORY OF ARI- linwood, and Sarah Herring Sorin for apZONA. pellant. Messrs. Elias S. Clark, William C. PrenStatutes-construction-re-enactment. tiss, and Horace F. Clark for appellee. 1. The re-enactment in the same words of a statute which has notoriously received Mr. Justice Holmes delivered the opinion a construction in practice from those whose of the court: duty it is to carry it out gives rise to the presumption that such construction is sat This is an appeal from a judgment on deisfactory to the legislature, unless it is murrer to a petition for a writ of certiorari. plainly erroneous. * The object of the petition was to vacate Taxes-equalization. proceedings of the board of equalization in 2. The Arizona board of equalization, 1905, by which the board added very largely in exercising its power under Ariz. Rev. to the assessed valuation of patented mines Stat. $ 3880, to increase or diminish the val- and, in a less degree, of work horses and in to produce a just relation between all the saddle horses, in Cochise county and other valuations of property in the territory, is counties in Arizona. It was alleged that not bound to deal with the valuation of each by these proceedings the board increased county as a whole, but may increase or di- the total valuation of property in the terminish the valuations of particular classes ritory and increased the valuation of the of property within the county. petitioner's property of the above-mentioned Statutes-adopted construction. kinds. The writ had been issued by a single 3. The construction given by the Colo- justice, returnable before the full bench, but rado courts to a statute of that state which the case was heard on the demurrer by conis alleged to have served as the model for Ariz. Rev. Stat. $ 3880, defining the powers sent, and by the judgment the demurrer was of the board of equalization, need not be sustained and the writ was quashed. followed by the Arizona courts when con- The errors alleged are two: First, that struing the territorial statute, where the while the board, for purposes of equalizing, Colorado decision turned partly on the no- might add to the total value of the property tion, inapplicable to Arizona, that the board in one county and diminish that of property of equalization had no function of assess in another, it had no power to increase the ment, and in part on the Constitution of total valuation of property in the territory the state. above the sum of the returns from the Taxes-equalization. 4. The total valuation of the property boards of supervisors of the several counin the territory may be increased by the ties; and second, that the board was bound Arizona board of equalization beyond the to deal with the valuation of each county sum of the returns of the board of super- as a whole, and could not increase or diminvisors of the several counties, since Ariz. ish the valuations of particular classes of Rev. Stat. § 3880, empowering the board to property within a county. The power of increase or diminish the valuation of prop- the board depends, of course, upon statute, erty in any county in order to produce a just relation between all the valuations of and it is said that the statute of Arizona property in the territory, only prohibits the was taken almost verbatim from one of board from reducing the aggregate valua- Colorado, which had been construed by the *Ed. Note.-For cases in point, see vol. 44, Cent. Dig. Statutes, &$ 300, 302-306. supreme court of that state in accordance with the first of the petitioner's above con- 2282. Sec. 43. Said 3880. (Sec. 50.) tentions before it was adopted by Arizona. whether the valuation ascertain whether the board shall ascertain The said board shall People ex rel. Crawford v. Lothrop, 3 Colo. of real estate in each valuation of property 428. The construction, it is said, goes with county bears a fair in each county bears relation or proportion a fair relation or prothe act. Henrietta Min. & Mill. Co. v. Gard- to the valuation in all portion to the valuaner, 173 U. S. 123, 130, 43 L. ed. 637, 640, state, and on such ex other counties of the tion in all other coun ties in the territory, 19 Sup. Ct. Rep. 327. The second conten- amination they may and on such examina increase or diminish tion they may increase tion is based on an interpretation of the the aggregate valua- or diminish the valuastatutes, the supposed absence of an ex- tion of real estate in tion of property in any county as much any county as much press grant of power, and later decisions in as, in their judgment, as, in their judgment, Colorado and other states. may be necessary to may be necessary to produce a just relation On the other hand, while this court can produce a just rela between all the valua- tion between all the not refuse to exercise its own judgment, it tions of real estate in tions of real estate in valuations of prop the state; but in no erty in the territory; naturally will lean toward the interpreta instance shall they re- but in no instance tion of a local statute adopted by the local duce the aggregate shall they reduce the court. Sweeney v. Lomme, 22 Wall. 208, valuation of all the aggregate valuation of counties below the ag- all the counties below 22 L. ed. 727; Northern P. R. Co. v. Ham- gregate valuation as the aggregate valuably, 154 U. S. 349, 361, 38 L. ed. 1009, 1014, of the several returned by the clerks tion as returned by the of the several coun- | boards of supervisors 14 Sup. Ct. Rep. 983; Fox v. Haarstick, ties. of the several coun ties. And said board 156 U. S. 674, 679, 39 L. ed. 576, 578, 15 shall, at the same Sup. Ct. Rep. 457.* And again, when, for a time, fix the rate of taxes for territorial considerable time, a statute notoriously has purposes which is to received a construction in practice from be levied and collected in each county. those whose duty it is to carry it out, and afterwards is re-enacted in the same words, For convenience we take up the second it may be presumed that the construction of the alleged errors first. It will be seen is satisfactory to the legislature, unless that the word "property” takes the place plainly erroneous, since otherwise naturally of “real estate” at the beginning, and that the words would have been changed. New the power given, instead of being only a powYork, N. H. & H. R. Co. v. Interstate Com- er to increase or diminish the aggregate merce Commission, 200 U. S. 361, 401, 402, valuation of real estate in any county, is 50 L. ed. 515, 525, 526, 26 Sup. Ct. Rep. 272. to increase or diminish the valuation of The statute of Arizona was re-enacted in property (not the property) in (not of) any 1901 and was said by the supreme court to county. The word "aggregate” is left out, have been construed by the board against and the fact that it was left out favors the the petitioner's contention ever since the construction that apart from that fact board was created, eighteen years before. would be reasonable, that the power extends Even apart from the re-enactment a certain to the valuation of any property, and is weight attaches to this fact. United States not confined to the valuation of all the prop This construction is v. Finnell, 185 U. S. 236, 243, 244, 46 L. ed. erty as one whole. 890, 893, 22 Sup. Ct. Rep. 633; United States further favored by the purpose of the changes in valuation, which is to “produce v. Sweet, 189 U. S. 471, 47 L. ed. 907, 23 Sup. a just relation between all the valuations of Ct. Rep. 638. The presumption that the codifiers of 1901 knew and approved the interstitial in its working. It does not con property in the territory.” This phrase is practice of the board certainly is as strong fine the equality to the valuations by counas the presumption that the original enact , ors of the statute knew a single decision in ty, but extends it to all the valuations of ors of the statute knew a single decision in property. Yet a further argument may be another state; and it is more important, drawn from the language of $ 3874: "No since it refers to a later time. assessor, board of supervisors, or the terriAs an original question the construction torial board of equalization shall assess any adopted by the supreme court appears to real estate at a less valuation than 75 cents us at least as reasonable as the opposite per acre.” This recognizes the power of the one contended for, and the variations in the board to deal with a special class of propArizona act from the prototype, if Colorado erty, and we may add, by way of anticipafurnished the prototype, and the different tion, by also recognizing a function of asbackground against which it was to be con- sessment, does much to make inapplicable strued, seem to us to have warranted the the reasoning of the Colorado decision upon refusal to be bound by the Colorado case. the other point. We give a section of the General Laws of It seems to have been argued below that Colorado, 1877, and of the Revised Statutes at least the board was confined to dealing of Arizona side by side. with property by the classes mentioned in other sections of the statutes, especially 88 I Nurked States for the Eastern District N ERROR to the Circuit Court of the 3849, 3861, 3877. But the classifications and specifications provided for in those sections of Wisconsin to review a judgment dismissdo not affect the power expressly given by ing the complaint in an action by the § 3880, as we have construed the latter, and United States to recover the value of timfurther, by $ 3877 the territorial board is ber cut by Indian allottees from their land. given power in very broad terms to change Affirmed. the list. It is not necessary to rely on this The facts are stated in the opinion. power to change the list for the power of Solicitor General Hoyt and Mr. Henry C. the board to change valuations of a partic. Lewis for plaintiff in error. ular class of property. It is mentioned sim- Messrs. Charles Barber and J. C. Thompply to show that the powers given by 3880 son for defendant in error. are not diminished by other provisions. The first contention of the petitioner Mr. Justice McKenna delivered the opinneeds but a few words in addition to what ion of the court: we have said. The power to increase the Action by the United States against the valuation of property in any county is as Paine Lumber Company for the recovery of power to increase it in all, or, at least, to the value of a quantity of timber and logs, increase the valuation of some kinds of to wit: 7,500 feet of basswood, 6,500 feet of property in all, so as to produce a just re- elm, 51,020 feet of pine logs, alleged to have lation between them and the other valua- been cut and removed from certain lands in tions left undisturbed. We find nothing in the eastern district of Wisconsin. the statute that requires the increase to be The answer contained denials of the comso adjusted that the total valuation shall plaint, and set up that defendant combe unchanged. On the contrary, the pro- pany purchased the basswood and elm logs hibition against reducing it implies that the of one Thomas Gardner, and the pine logs board has the power of change, and, but for of one Daniel Davids, in the fore part of the prohibition, might reduce the total. 1899, the logs being at the time in the counTherefore it may add to the total since ty of Shawano in Wisconsin, and being in the law does not forbid that. The Colorado possession of Gardner and Davids respectdecision to the contrary turned partly on ively, who claimed and represented themthe notion, which has been shown to be in- selves to be the sole and absolute owners applicable to Arizona, that the board of thereof, and that defendant, in the regular equalization had no function of assessment. course of its business, sold and disposed of It also turned in part, at least, on the Con- them. stitution of the state, to which, of course, Defendant also pleaded payment of the the statute was subject. There was no Con- sum of $271.37 in full satisfaction and ac, stitution to be conformed to in Arizona, and cord. therefore the construction of the statute de. The action was tried by the court, who pends on the meaning of the words alone, found the following facts: and the supreme court of the territory, in “That the defendant is and was, during construing them, was left at large. all the times mentioned in the complaint, a Judgment affirmed. duly incorporated Wisconsin corporation. “That long prior to the commencement of this action and long prior to the acts alUNITED STATES, Piff. in Err., leged in the complaint the head men or council of the Stockbridge and Munsee InPAINE LUMBER COMPANY. dians, claiming authority so to do under the treaties and arrangements with the United Indians--rights of allottees—cutting timber States, allotted to one Thomas Gardner the for sale. east half of the northwest quarter of secIndian allottees under the Stock- tion thirty-five (35), township twenty-eight bridge and Munsee treaty of February 5, (28), range fourteen (14) east, of the fourth 1856 (11 Stat. at L. 663), and the act of February 6, 1871 (16 Stat. at L. 404, chap. principal meridian, of the state of Wiscon38), are, notwithstanding the restraint upon sin, and to one Daniel Davids the northeast alienation of the land, vested with sufficient quarter of the southeast quarter of sectitle in their allotments to authorize the tion twenty-one (21), township twentycutting of timber therefrom for sale, and eight (28), range fourteen (14) east, of the not by way of improvements, without ap- fourth principal meridian, of the state of proval of the Department of the Interior. Wisconsin, said lands being a part of the tract of land given to the Stockbridge and [No. 101.) Munsee Indians by the treaty of 1856, each Submitted April 15, 1907. Decided May 27, of said Indians being a member of said tribe 1907. of Stockbridge and Munsee Indians and the V. head of a family, and the said allotments his allotment and was only there at times. being made to them respectively as their temporarily. separate and individual allotments, and be- “It is stipulated in this case that if deing the same lands described in the com- i fendant is liable for the value of the logs plaint herein. and timber at the time of taking or while “That thereupon Thomas Gardner and in his hands, that the measure of damages Daniel Davids entered into immediate pos- therefor be the sum of five hundred and session of their respective allotments and sixty-six dollars and twenty-eight cents each of them has ever since claimed to hold ($566.28), and that if it be liable for the the same as his allotment, and has constant value of said logs and timber at the time ly asserted his ownership and right to take of the cutting thereof or at the time of the timber therefrom without restrictions the taking thereof by the defendant, less. under the said treaty and arrangements the additions in value made thereto by the with the plaintiff. Indians in cutting, hauling, and banking the "That no patent has ever been issued for same, then the measure of damages therefor either of said parcels of land and that the shall be the sum of three hundred and sev. ownership of the same by said Indians has enty-eight dollars and fifty-nine cents. received no official sanction on the part of ($378.59). The measure of damages in both. the plaintiff aside from the recognition of cases includes the cost of the scale and estheir respective rights to the occupancy of timate thereof made by the government ofthe parcels so claimed and held by them re- ficials." spectively as aforesaid. From these findings the conclusion of law “And that their respective rights to the was deduced: occupancy of their respective parcels of land “That the said Thomas Gardner and the allotted to them as aforesaid has been recog. said Daniel Davids, as such allottees, had nized by the United States. the right to cut and sell the timber on their “That the timber and logs involved in respective allotments for the purpose for this case, to wit, 7,500 feet of basswood, which the same was cut and sold, and that 6,500 of elm, and 51,020 feet of pine, were the defendant is entitled to judgment herein cut in the winter of 1898-1899, upon said re- in its favor and against the plaintiff, disspective parcels of land by the said Thomas missing the plaintiff's complaint on the merGardner and the said Daniel Davids, re-its, but without costs.” spectively, not for the purpose of clearing The court expressed the reasons for its the land for cultivation, but for the purpose judgment in an opinion of such circumstanof providing means for the support of their tial care and consideration that makes unfamilies, and that such cutting by each of necessary an elaborate discussion by us. 154 them was done in good faith, and each of Fed. 263. It stated the primary issue to be , them claiming and believing that he had “whether the Indian allottees under the the right to so cut for said purpose. Stockbridge and Munsee treaty of 1856 (11 “That after said cutting, and in the sum- Stat. at L. 663) and the act of Congress of mer of 1899, at Weeds Point, in the county 1871 (16 Stat. at L. 404, chap. 38) were of Shawano, Wisconsin, the said logs were vested with sufficient title in their allotbought by the defendant of said Thomas ments to authorize the cutting of timber Gardner and Daniel Davids, the same then for sale, and not by way of improvements, and there being at said Weeds Point and without the approval of the Department of off of the said reservation, for a valuable the Interior.” And stating the purpose of and fair consideration. the treaty and its provisions, the court said: "That the defendant bought the same in "The Stockbridge and Munsee treaty of good faith, believing the said Thomas Gard-1856 was entered into to provide for relocaner and the said Daniel Davids were the tion of the remnant of the tribe in Wisconsin, bona fide and absolute owners thereof, and as they were unwilling to remove to a resthat they respectively were lawfully en- ervation in Minnesota theretofore provided. titled to sell the logs cut from their re- It recites valuable retrocessions and releases. spective allotments. to the United States and reserves a tract “That at the time of the cutting of the near the south boundary of the Menominee timber in question the said Thomas Gard reservation of sufficient extent to furnish ner was living upon his said allotment; that individual allotments. The terms of the shortly thereafter his wife died, and that grant were substantially these: After surhe has not since lived thereon except at in-vey into the usual subdivisions the council tervals of two or three months at a time, of the tribes, under the direction of the subut for the most part has lived elsewhere perintendent, shall 'make a fair and just with his brother. allotment among the individuals and fam"That at the time of the said cutting ilies of their tribes,' in 80-acre tracts to the said Daniel Davids had no house on heads of families and other classes named, and 40 acres to others. The allottees 'may the timber on their allotments is expressed take immediate possession thereof, and the in United States v. Cook, 19 Wall. 592, 22 United States will henceforth and until the L. ed. 211. We do not regard that case as issuing of "patents” hold the same in trust controlling. The ultimate conclusion of the for such persons;' certificates are to be is court was determined by the limited right sued ‘securing to the holders their posses- which the Indians had in the lands from sion and an ultimate title to the land;' but which the timber there in controversy was 'such certificates shall not be assignable, cut. and shall contain a clause expressly pro- Certain parties of the Oneida Indians hibiting the sale or transfer by the holder' ceded to the United States all the lands set of such land. After ten year, upon appli- apart to them, except a tract containing 100 cation of the holder and consent of the coun- acres for each individual, or in all about cil, “and when it shall appear prudent and 65,000 acres, which they reserved to themfor his or her welfare, the President of the selves, to be held as other Indian lands are United States may direct that such restric- held. Some of the lands were held in sev. tion on the power of sale shall be with-eralty by individuals of the tribe with the drawn and a patent issued in the usual consent of the tribe, but the timber sued form.' In the event of the death of an al. | for was cut by a small number of the tribe lottee without heirs, before patent, the al- from a part of the reservation not occupied lotment was not to revert to the United in severalty. It was held, citing Johnson v. States but to the tribe for disposition by the M’Intosh, 8 Wheat. 574, 5 L. ed. 688, that council. It is further declared (art. 11): the right of the Indians in the land from 'The object of this instrument being to ad- which the logs were taken was that of ocvance the welfare and improvement of said cupancy only. Necessarily the timber, when Indians, it is agreed, if it prove insufficient, cut, “became the property of the United from causes that cannot now be foreseen, States absolutely, discharged of any rights to effect these ends, then the President of of the Indians therein.” It was hence conthe United States may, by and with the ad- cluded “the cutting was waste, and, in acvice and consent of the Senate, adopt such cordance with well-settled principles, the policy in the management of their affairs as owner of the fee may seize the timber cut, in his judgment may be most beneficial to arrest it by replevin, or proceed in trover them; or Congress may, hereafter, make for its conversion.” If such were the title such provisions of law as experience shall in the case at bar, such would be the conprove necessary." clusions. But such is not the title. We And another act should be mentioned, as need not, however, exactly define it. It is it has induced a concession by the plaintiff certainly more than a right of mere occuof the right of Gardner to cut the timber pation. The restraint upon alienation must upon his allotment. It is provided by the not be exaggerated. It does not of itself deact of March 3, 1893 (27 Stat. at L. 744, base the right below a fee simple. Libby chap. 219), that all members of the tribe v. Clark, 118 U. S. 250, 30 L. ed. 133, 6 Sup. "who entered into possession of lands under Ct. Rep. 1045. The title is held by the the allotments of eighteen hundred and fif. United States, it is true, but it is held "in ty-six and of eighteen hundred and seventy- trust for individuals and their heirs to one, and who by themselves or by their whom the same were allotted.” The conlawful heirs have resided on said lands considerations, therefore, which determined the tinuously since, are hereby declared to be decision in United States v. Cook, do not owners of such lands in fee simple, in sev- exist. The land is not the land of the eralty, and the government shall issue pat- United States, and the timber when cut did ents to them therefor.” not become of the property of the United It is contended that Davids is not within States. And we cannot extend the restraint the act of 1893, and “that his title is only upon the alienation of the land to a resuch as can be read out of the treaty of straint upon the sale of the timber consist1856 and the act of 1871.” Granting this ently with a proper and beneficial use of to be so, it hardly needs to be said that the the land by the Indians,-a use which can allotments were intended to be of some use in no way affect any interest of the United and benefit to the Indians. And it will be States. It was recognized in United States observed that on that use there is no re- v. Cook that "in theory, at least,” that land straint whatever. A restraint, however, is might be "better and more valuable with deduced from the provision against aliena- the timber off than with it on.” Indeed, it tion, the supervision to which, it is asserted, may be said that arable land is of no use the Indians are subject, and the character until the timber is off, and it was of arable of their title. It It is contended that the land that the treaty contemplated the allotright of the Indians is that of occupation ments would be made. We encounter diffionly, and that the measure of power over 'culties and baffling inquiries when we con |