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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 [No. 280.] world."

From my standpoint, what the courts of Argued April 26, 1907. Decided May 27,

states other than New York have decided is of no consequence to the pending controversy, and I take no time therefore to dispute the pertinence of their citation to justify the structure of which plaintiffs complain.

I am authorized to say that Mr. Justice Day concurs in this dissent.

COPPER QUEEN CONSOLIDATED MIN-
ING COMPANY, Appt.,

V.

TERRITORIAL BOARD OF EQUALIZA-
TION OF THE TERRITORY OF ARI-
ZONA.

Statutes-construction-re-enactment.

1. The re-enactment in the same words of a statute which has notoriously received a construction in practice from those whose duty it is to carry it out gives rise to the presumption that such construction is satisfactory to the legislature, unless it is plainly erroneous. * Taxes-equalization.

2. The Arizona board of equalization, in exercising its power under Ariz. Rev. Stat. § 3880, to increase or diminish the valuation of property in any county in order to produce a just relation between all the valuations of property in the territory, is not bound to deal with the valuation of each county as a whole, but may increase or diminish the valuations of particular classes of property within the county. Statutes-adopted construction.

3. The construction given by the Colorado courts to a statute of that state which is alleged to have served as the model for Ariz. Rev. Stat. § 3880, defining the powers of the board of equalization, need not be followed by the Arizona courts when construing the territorial statute, where the Colorado decision turned partly on the notion, inapplicable to Arizona, that the board of equalization had no function of assessment, and in part on the Constitution of

the state.

Taxes-equalization.

4. The total valuation of the property in the territory may be increased by the Arizona board of equalization beyond the sum of the returns of the board of supervisors of the several counties, since Ariz. Rev. Stat. § 3880, empowering the board to increase or diminish the valuation of property in any county in order to produce a just relation between all the valuations of property in the territory, only prohibits the board from reducing the aggregate valua

1907.

APPEAL from the Supreme Court of the Territory of Arizona to review a judg ment sustaining a demurrer to an application for a writ of certiorari to vacate proceedings of the board of equalization by which the total valuation of property in the territory, as well as the valuation of particular classes of property, was increased. Affirmed.

See same case below (Ariz.) 84 Pac. 511. The facts are stated in the opinion. Messrs. William Herring, Everett E. Ellinwood, and Sarah Herring Sorin for appellant.

Messrs. Elias S. Clark, William C. Prentiss, and Horace F. Clark for appellee.

Mr. Justice Holmes delivered the opinion of the court:

This is an appeal from a judgment on demurrer to a petition for a writ of certiorari. The object of the petition was to vacate proceedings of the board of equalization in 1905, by which the board added very largely to the assessed valuation of patented mines and, in a less degree, of work horses and saddle horses, in Cochise county and other counties in Arizona. It was alleged that by these proceedings the board increased the total valuation of property in the territory and increased the valuation of the petitioner's property of the above-mentioned kinds. The writ had been issued by a single justice, returnable before the full bench, but the case was heard on the demurrer by consent, and by the judgment the demurrer was sustained and the writ was quashed.

The errors alleged are two: First, that while the board, for purposes of equalizing, might add to the total value of the property in one county and diminish that of property in another, it had no power to increase the total valuation of property in the territory

above the sum of the returns from the boards of supervisors of the several counties; and second, that the board was bound to deal with the valuation of each county as a whole, and could not increase or diminish the valuations of particular classes of property within a county. The power of the board depends, of course, upon statute, and it is said that the statute of Arizona was taken almost verbatim from one of 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 contentions before it was adopted by Arizona. People ex rel. Crawford v. Lothrop, 3 Colo. 428. The construction, it is said, goes with the act. Henrietta Min. & Mill. Co. v. Gardner, 173 U. S. 123, 130, 43 L. ed. 637, 640, 19 Sup. Ct. Rep. 327. The second contention is based on an interpretation of the statutes, the supposed absence of an express grant of power, and later decisions in Colorado and other states.

2282. Sec. 43. Said board shall ascertain whether the valuation of real estate in each county bears a fair relation or proportion to the valuation in all other counties of the state, and on such examination they may increase or diminish the aggregate valuation of real estate in any county as much as, in their judgment, may be necessary to produce a just relation between all the valuations of real estate in the state; but in no instance shall they reduce the aggregate valuation of all the counties below the aggregate valuation as returned by the clerks of the several counties.

3880. (Sec. 50.) The said board shall ascertain whether the valuation of property in each county bears a fair relation or proportion to the valuation in all other counties in the territory, and on such examination they may increase or diminish the valuation of property in any county as much as, in their judgment, may be necessary to produce a just relation between all the valuations of property in the territory; but in no instance shall they reduce the aggregate valuation of all the counties below the aggregate valuation as returned by the boards of supervisors of the several counties. And said board shall, at the same time, fix the rate of taxes for territorial purposes which is to be levied and collected in each county.

On the other hand, while this court cannot refuse to exercise its own judgment, it naturally will lean toward the interpretation of a local statute adopted by the local court. Sweeney v. Lomme, 22 Wall. 208, 22 L. ed. 727; Northern P. R. Co. v. Hambly, 154 U. S. 349, 361, 38 L. ed. 1009, 1014, 14 Sup. Ct. Rep. 983; Fox v. Haarstick, 156 U. S. 674, 679, 39 L. ed. 576, 578, 15 Sup. Ct. Rep. 457.* And again, when, for a considerable time, a statute notoriously has received a construction in practice from 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 propv. Finnell, 185 U. S. 236, 243, 244, 46 L. ed. erty as one whole. This construction is 890, 893, 22 Sup. Ct. Rep. 633; United States further favored by the purpose of the v. Sweet, 189 Ú. S. 471, 47 L. ed. 907, 23 Sup. 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 property in the territory." This phrase is interstitial in its working. It does not conpractice of the board certainly is as strong fine the equality to the valuations by counas the presumption that the original enact-ty, but extends it to all the valuations of ors of the statute knew a single decision in another state; and it is more important, since it refers to a later time.

As an original question the construction adopted by the supreme court appears to us at least as reasonable as the opposite one contended for, and the variations in the Arizona act from the prototype, if Colorado furnished the prototype, and the different background against which it was to be construed, seem to us to have warranted the refusal to be bound by the Colorado case.

We give a section of the General Laws of Colorado, 1877, and of the Revised Statutes of Arizona side by side.

property. Yet a further argument may be drawn from the language of § 3874: "No assessor, board of supervisors, or the territorial board of equalization shall assess any real estate at a less valuation than 75 cents per acre." This recognizes the power of the board to deal with a special class of property, and we may add, by way of anticipation, by also recognizing a function of assessment, does much to make inapplicable the reasoning of the Colorado decision upon the other point.

It seems to have been argued below that at least the board was confined to dealing with property by the classes mentioned in

other sections of the statutes, especially $8 IN ERROR to the Circuit Court of the

3849, 3861, 3877. But the classifications and specifications provided for in those sections do not affect the power expressly given by § 3880, as we have construed the latter, and further, by § 3877 the territorial board is given power in very broad terms to change the list. It is not necessary to rely on this power to change the list for the power of the board to change valuations of a particular class of property. It is mentioned simply to show that the powers given by 3880 are not diminished by other provisions.

The first contention of the petitioner needs but a few words in addition to what we have said. The power to increase the valuation of property in any county is as power to increase it in all, or, at least, to increase the valuation of some kinds of property in all, so as to produce a just relation between them and the other valuations left undisturbed. We find nothing in the statute that requires the increase to be so adjusted that the total valuation shall be unchanged. On the contrary, the prohibition against reducing it implies that the board has the power of change, and, but for the prohibition, might reduce the total. Therefore it may add to the total since the law does not forbid that. The Colorado decision to the contrary turned partly on the notion, which has been shown to be inapplicable to Arizona, that the board of equalization had no function of assessment. It also turned in part, at least, on the Constitution of the state, to which, of course, the statute was subject. There was no Constitution to be conformed to in Arizona, and therefore the construction of the statute depends on the meaning of the words alone, and the supreme court of the territory, in construing them, was left at large. Judgment affirmed.

UNITED STATES, Plff. in Err.,

V.

PAINE LUMBER COMPANY. Indians-rights of allottees-cutting timber for sale.

United States for the Eastern District of Wisconsin to review a judgment dismissing the complaint in an action by the United States to recover the value of timber cut by Indian allottees from their land. Affirmed.

The facts are stated in the opinion. Solicitor General Hoyt and Mr. Henry C. Lewis for plaintiff in error.

Messrs. Charles Barber and J. C. Thompson for defendant in error.

Mr. Justice McKenna delivered the opinion of the court:

Action by the United States against the Paine Lumber Company for the recovery of the value of a quantity of timber and logs, to wit: 7,500 feet of basswood, 6,500 feet of elm, 51,020 feet of pine logs, alleged to have been cut and removed from certain lands in the eastern district of Wisconsin.

The answer contained denials of the complaint, and set up that defendant company purchased the basswood and elm logs of one Thomas Gardner, and the pine logs of one Daniel Davids, in the fore part of 1899, the logs being at the time in the county of Shawano in Wisconsin, and being in possession of Gardner and Davids respectively, who claimed and represented themselves to be the sole and absolute owners thereof, and that defendant, in the regular course of its business, sold and disposed of them.

Defendant also pleaded payment of the sum of $271.37 in full satisfaction and ac cord.

The action was tried by the court, who found the following facts:

"That the defendant is and was, during all the times mentioned in the complaint, a duly incorporated Wisconsin corporation.

"That long prior to the commencement of this action and long prior to the acts alleged in the complaint the head men or council of the Stockbridge and Munsee Indians, claiming authority so to do under the treaties and arrangements with the United States, allotted to one Thomas Gardner the east half of the northwest quarter of section thirty-five (35), township twenty-eight (28), range fourteen (14) east, of the fourth Principal meridian, of the state of Wisconsin, and to one Daniel Davids the northeast quarter of the southeast quarter of section twenty-one (21), township twentyeight (28), range fourteen (14) east, of the

Indian allottees under the Stockbridge and Munsee treaty of February 5, 1856 (11 Stat. at L. 663), and the act of February 6, 1871 (16 Stat. at L. 404, chap. 38), are, notwithstanding the restraint upon alienation of the land, vested with sufficient title in their allotments to authorize the cutting of timber therefrom for sale, and not by way of improvements, without ap-fourth principal meridian, of the state of proval of the Department of the Interior."

[No. 101.]

Wisconsin, said lands being a part of the tract of land given to the Stockbridge and Munsee Indians by the treaty of 1856, each Submitted April 15, 1907. Decided May 27, of said Indians being a member of said tribe of Stockbridge and Munsee Indians and the

1907.

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-¡ plaint herein.

"That thereupon Thomas Gardner and Daniel Davids entered into immediate possession of their respective allotments and each of them has ever since claimed to hold the same as his allotment, and has constantly asserted his ownership and right to take the timber therefrom without restrictions under the said treaty and arrangements with the plaintiff.

"That no patent has ever been issued for either of said parcels of land and that the ownership of the same by said Indians has received no official sanction on the part of the plaintiff aside from the recognition of their respective rights to the occupancy of the parcels so claimed and held by them respectively as aforesaid.

"And that their respective rights to the occupancy of their respective parcels of land allotted to them as aforesaid has been recognized by the United States.

fendant is liable for the value of the logs and timber at the time of taking or while in his hands, that the measure of damages. therefor be the sum of five hundred and sixty-six dollars and twenty-eight cents($566.28), and that if it be liable for the value of said logs and timber at the timeof the cutting thereof or at the time of the taking thereof by the defendant, less the additions in value made thereto by the Indians in cutting, hauling, and banking the same, then the measure of damages therefor shall be the sum of three hundred and seventy-eight dollars and fifty-nine cents. ($378.59). The measure of damages in both. cases includes the cost of the scale and estimate thereof made by the government officials."

From these findings the conclusion of law was deduced:

"That the said Thomas Gardner and the said Daniel Davids, as such allottees, had 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 land for cultivation, but for the purpose of providing means for the support of their families, and that such cutting by each of them was done in good faith, and each of them claiming and believing that he had the right to so cut for said purpose.

"That after said cutting, and in the summer of 1899, at Weeds Point, in the county of Shawano, Wisconsin, the said logs were bought by the defendant of said Thomas Gardner and Daniel Davids, the same then and there being at said Weeds Point and off of the said reservation, for a valuable and fair consideration.

The court expressed the reasons for its judgment in an opinion of such circumstantial care and consideration that makes unnecessary an elaborate discussion by us. 154 Fed. 263. It stated the primary issue to be "whether the Indian allottees under the Stockbridge and Munsee treaty of 1856 (11 Stat. at L. 663) and the act of Congress of 1871 (16 Stat. at L. 404, chap. 38) were vested with sufficient title in their allotments to authorize the cutting of timber for sale, and not by way of improvements, without the approval of the Department of the Interior." And stating the purpose of the treaty and its provisions, the court said:

"The Stockbridge and Munsee treaty of 1856 was entered into to provide for relocation of the remnant of the tribe in Wisconsin, as they were unwilling to remove to a res

"That the defendant bought the same in good faith, believing the said Thomas Gardner and the said Daniel Davids were the bona fide and absolute owners thereof, and that they respectively were lawfully en-ervation in Minnesota theretofore provided. titled to sell the logs cut from their respective allotments.

"That at the time of the cutting of the timber in question the said Thomas Gardner was living upon his said allotment; that shortly thereafter his wife died, and that he has not since lived thereon except at intervals of two or three months at a time, but for the most part has lived elsewhere with his brother.

"That at the time of the said cutting the said Daniel Davids had no house on

It recites valuable retrocessions and releases
to the United States and reserves a tract
'near the south boundary of the Menominee
reservation' of sufficient extent to furnish
individual allotments. The terms of the
grant were substantially these: After sur-
vey into the usual subdivisions the council:
of the tribes, under the direction of the su-
perintendent, shall 'make a fair and just
allotment among the individuals and fam-
ilies of their tribes,' in 80-acre tracts to
heads of families and other classes named,.

restric-held.

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 years, 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 sevtion 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 seventy-trust one, and who by themselves or by their whom the same were allotted." The conlawful heirs have resided on said lands con- siderations, 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 States. And we cannot extend the restraint upon the alienation of the land to a restraint upon the sale of the timber consistently with a proper and beneficial use of the land by the Indians,-a use which can in no way affect any interest of the United States. It was recognized in United States v. Cook that "in theory, at least," that land might be "better and more valuable with the timber off than with it on." Indeed, it may be said that arable land is of no use until the timber is off, and it was of arable land that the treaty contemplated the allotments would be made. We encounter difficulties and baffling inquiries when we con

It is contended that Davids is not within the act of 1893, and "that his title is only such as can be read out of the treaty of 1856 and the act of 1871." Granting this to be so, it hardly needs to be said that the allotments were intended to be of some use and benefit to the Indians. And it will be observed that on that use there is no restraint whatever. A restraint, however, is deduced from the provision against alienation, the supervision to which, it is asserted, the Indians are subject, and the character of their title. It is contended that the right of the Indians is that of occupation only, and that the measure of power over

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