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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

*17

property right belong*ing to the beneficiary, realized in the shape of income, which is the subject-matter of the tax under the statute of Massachusetts.

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 Fourteenth 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 by putting forward nonfederal grounds of decision without fair or substantial support. 3. COURTS 391(4)-DECISION

BASED ON NONFEDERAL GROUNDS NOT PLAINLY UNTENABLE 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,
paid taxes thereon to prevent a sale and the im-
position of a penalty at a time when the county
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 193-INDIANS' EXEMPTION FROM TAXATION HELD VESTED PROPERTY RIGHT WHICH CONTINUED, NOTWITHSTANDING STATUTE TO CONTRARY.

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 exemption was a vested right protected by the Constitution, and the lands were nontaxable not

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 incurring any obligation to pay them back, it would thereby appropriate the property arbitrarily and without due process of law.

7. CONSTITUTIONAL LAW

254-DUE PRO

CESS CLAUSE IS BINDING ON COUNTY.
Const. U. S. Amend. 14, prohibiting the tak-
ing of property without due process of law,
binds a county as an agency of the state.

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

A county, which collected taxes on exempt lands of Indians with notice that the owners 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

were contesting such liability in pending suits, impairment of the rights of property pertain

was liable for the amount collected, though a portion had been paid over to the state and other municipal bodies, as it had no right to collect the money.

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

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 Su

ing to the Indians was intended, chapter 3335, § 1, 34 Stat. 267; and the state included in its 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, includ

preme Court holds insufficient to defeat recov-ing the present claimants, and declared that ery, it is open to the state court, after remand, all land from which the restrictions were

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.

Proceeding by Coleman J. Ward and others against the Board of County Commissioners of Love County, Okl. Judgment for the petitioners was reversed by the Supreme Court of Oklahoma (Board of Com'rs of Love County 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

removed "shall be subject to taxation, * * 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 allotted lands from which restrictions on alienation were removed, and this met with pronounced opposition on the part of the Indian allottees, who insisted, as they had been advised, that the tax exemption was a vested 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 of the suits being prosecuted by some 8,000 allottees against the officers of Love and oth

*20

*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

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

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 on'y 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.

a portion of these taxes-and that the peti- Ct. 236, 56 L. Ed. 510; Creswill v. Knights of

tion 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.

The county challenges our jurisdiction by a motion to dismiss the writ of certiorari and by way of supporting the motion insists that

Pythias, 225 U. S. 246, 261, 32 Sup. Ct. 822, 56 L. Ed. 1074; Enterprise Irrigation 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,

the Supreme Court put its judgment entirely 143 U. S. 135, 180, 12 Sup. Ct. 375, 36 L. Ed.

on independent nonfederal grounds which were broad enough to sustain the judgment.

[1] As these claimants had not disposed of their allotments and twenty-one years had not elapsed since the date of the patents, it is certain that the lands were nontaxable.

103; Carter v. Texas, 177 U. S. 442, 447, 20 Sup. Ct. 687, 44 L. Ed. 839. Of course, if nonfederal grounds, plainly untenable, may be thus put forward successfully, our power to review easily may be avoided. Terre Haute, 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

emption was a vested property right arising out of a law of Congress and protected by the

Constitution of the United States. This be

ing 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

qualification, it is true that a judgment of a 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 to protect and maintain the supremacy of the Constitution and the laws made in pursuance 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 their lands was forbidden by a law of Congress. But, notwithstanding this, the county demanded that the taxes be paid, and by threatening to sell the lands of these claim

notice that the rights of all who were to share in the taxes were disputed by these claimants and were being contested in the pending suits. In these circumstances it could not lessen its liability by paying over a portion of the money to others whose rights it knew were disputed and were no better than its own. Atchison, Topeka & Santa Fé Ry. Co. v. O'Connor, 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.

[8] If it be true, as the Supreme Court assumed, that a portion of the taxes was paid over, after collection, to the state and other municipal bodies, we regard it as certain 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 and losing their lands. To prevent a sale and to avoid the imposition of a penalty of eighteen per cent. they yielded to the county's demand and paid the taxes, protesting and objecting at the time that the same were illegal. The moneys thus collected were obtained by coercive means by compulsion. The 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, supra, 223 U. S. 471, 32 Sup. Ct. 236, 56 L. Ed. 510; Union Pacific R. R. Co. v. Public Service Commission, supra; Swift Co. v. United States, 111 U. S. 22, 29, 4 Sup. Ct. 244, 28 L. Ed. 341; Robertson v. Frank Bros. Co., 132 U. S. 17, 23, 10 Sup. Ct. 5, 33 L. Ed. 236; Oceanic Steam Navigation Co. v. Stranahan, 214 U. S. 320, 329, 29 Sup. Ct. 671, 53 L. Ed. 1013. The county places some reliance on Lamborn v. County Commissioners, 97 U. S. 181, 24 L. Ed. 926, and Railroad v. Commissioners, 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.

*25

[9] *The county calls attention to the fact that in the demurrer to the petition the statute of limitation (probably meaning section 1570, Rev. Laws 1910) was relied on. This point was not discussed by the Supreme Court and we are not concerned with it beyond observing that when the case is remanded it will be open to that court to deal with the point as to the whole claim or any item in it as any valid local law in force when the claim was filed may require. 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.

Messrs. George P. Glaze and Charles L.

[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 "money 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

Moore, both of Oklahoma City, Okl., for petitioner.

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

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

*26

(40 Sup.Ct.)

The Chief Justice and Mr. Justice Clarke

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 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)

UNITED STATES v. ATLANTIC DREDG-
ING CO. et al.

dissent.

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.

In pursuance of advertisement by the Unit(Argued March 16, 1920. Decided April 26, ed States through Col. Kuhn, the dredging

1920.)

No. 214.

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.

Sealed proposals were required by the ad1. UNITED STATES 70(2)-SPECIFICATIONS vertisement and it was stated that informa

REQUIRING BIDDERS TO EXAMINE WORK HELD
NOT TO RELIEVE GOVERNMENT FROM LIABIL-
ITY 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 speсifications, 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.

tion 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 ac

2. UNITED STATES 70(2) - CONTRACTOR curacy of this description."

HELD NOT TO HAVE ELECTED TO CONTINUE
CONTRACT NOTWITHSTANDING MISREPRESEN-
TATIONS.

A dredging contractor, by continuing with the work after discovering that the materials to be removed were different from those represented, did not elect to continue the work, so as to prevent it from suing for damages, where it did not then know of the concealment of the

results of test borings made by the government.

3. UNITED STATES96 - CLAIM FOR EXTRA
COMPENSATION, BECAUSE MATERIAL TO BE
DREDGED WAS DIFFERENT FROM THAT REPRF-
SENTED, NOT ONE FOR TORT.

An action in the Court of Claims to recover the additional cost of dredging, due to the ma

The further statement was that

"A number of test borings have been made in all of the areas where dredging is to be done under these specifications, and the results thereof may be seen by intending bidders on the maps on file in this office. (See paragraph 17.) No guaranty is given as to correctness of these 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 to be dredged the government officers had subjected the bottom of the river to certain

terial 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 baded 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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