Cosier v. McMillan

HUNT, J. 1. Although the people of the state of Montana agreed, as a condition to the admission of the state into the Union, to disclaim any right or title to all lands lying within the limits of the state owned or held by any Indian tribes, and that until title thereto shall be extinguished by the United States the same shall be and remain subject to the disposition of the United States, and under the absolute jurisdiction and control of Congress, still Indian reservations are not without the jurisdiction of the State for the purposes of taxing personal property, in which the Indians are not interested, held upon such reservations. In Truscott v. Hurlbut Land & Cattle Co., 19 C. C. A. 374, 73 Fed. 60, the United States Circuit Court of Appeals said, in reference to taxing cattle upon an Indian reservation: “We are unable to see any good reason why the authority of the state and its subordinate subdivisions, the counties, may not also include the taxation of all such personal property found within their geographical limits, although upon the reservation in question, provided, as in this case, the Indians are in no way interested in it. ’ ’ Appellants, however, would have the courts except their property from the operation of the taxing power of the state because it constitutes the stock in trade of an Indian post trader, and is used in trading with the Indians under a license obtained from the government of the United States; or, in other words, appellants contend that the presence of an Indian trader with a stock of goods on an Indian reservation is an agency of the general government to carry out its treaty with the Indians, and is expressly authorized by law. ■ W e cannot concur in this argument. There was a time when the government furnished the merchandise traded to the Indians, and when the person who dealt out the property so furnished [489] acted as an agent of the United States, which made the commerce so conducted with the Indians an agency of the government. But long ago (in 1834) that policy was changed, and now any loyal citizen is authorized to trade with an Indian tribe upon giving a bond conditioned to faithfully observe all laws and regulations made for the government of trade and intercourse with the Indian tribes. (Bev. St. U. S. Sec. 2128 •et seq.) So that at present an Indian post trader is á licensee with authority to trade with the Indians, required, of course, to observe the laws and regulations appertaining to such intercourse,. — a privileged trader on his own account, responsible to no one except for the observance of the aforesaid laws and regulations and for violation of the same. His real connection with the government seems to be that he is privileged, upon conditions and under regulations, to go onto the reservation to seek as customers the wards of the United States living upon the Indian reservation, permission to trade with whom upon their reservation can only be obtained from the guardian government, which reserves the right to revoke the license or terminate the privileges at its pleasure. (Id. Sec. 2131.) We are unable to see how such a relationship between a citizen and the general government makes the citizen enjoying the privilege an agent of the United States, or how his goods, in which neither the government nor the Indians have an/ interest, are .a federal agency or means employed by the government for the execution of its powers, the taxation of which by the state is forbidden by implications of the Constitution of the United States; provided there is no unjust discrimination between the property of the citizen situate upon the reservation and other like kinds taxed by the state. (Thompson v. Railroad Co., 9 Wall. 579; Railroad Co. v. Peniston, 18 Wall. 5; Central Pac. R. Co. v. California, 162 U. S. 91, 16 Sup. Ct. 766; Moore v. Beason (Wyo.) 51 Pac. 875; Thomas v. Gay, 169 U. S. 264, 18 Sup. Ct. 340; Wagoner v. Evans, 170 U. S. 588, 18 Sup. Ct. 730.) 2. It is also said that the tax cannot be collected in this instance because the levy was not made m the manner pro [490] vided by law. It appears that the assessor, prior to the meeting of the county board of equalization, made no assessment upon the stock of goods of H. M. Cosier & Co. for 1893, though he did make assessments to the value of $2,900 upon other property owned by the firm. Afterwards, at a meeting of the board of equalization of Yalley county, held on July 17, 1893, the entry was made as quoted in the statement preceding this opinion. The assessor testified on the trial that he made the changes in the assessment so as to include the merchandise involved by order of the board of equalization, and that the total assessment as equalized against Cosier & Co. for 1893 was $12,900. The record also shows that on August 7, 1893, at a meeting of the said board of equalization, plaintiff's, by W. B. Shaw, as agent, appeared before the board and requested that said assessment be stricken off the lists upon the-ground that the property was not subject to taxation, which application was denied by the board. The action of the board of commissioners, sitting as a board of equalization, in placing a value upon the property in the manner it did, and in causing the entry quoted to be spread upon its minutes of July 17th, was irregular in fact and in form. The function of a county board of equalization is to-require the assessor to assess taxable property which has escaped taxation, and to direct that official to make the proper entry upon the assessment book. The board itself should not make the assessment, its power being to equalize after an assessment has been made as directed by the assessor. (Session-Laws of 1891, p. 99, Secs. 68, 69; Political Code of 1895,. Secs. 3788, 3789.) But, unless this irregularity rendered the tax void, or substantially prejudiced plaintiff’s rights, the case should not be reversed. The assessment book was put in evidence on the trial. It-showed an entry by the assessor of the-plaintiff’s stock of merchandise, with the valuation placed thereon by tlie board. Plaintiffs had been duly notified (under section 69) of the action of the board of equalization in putting a valuation of $5,000 on their stock of merchandise-owned by them as Indian traders, and in response to this no [491] tice appeared before said board, not objecting in any way to. the irregularities of procedure in listing their property, not claiming they did not own the property so assessed, not objecting to the valuation adopted by the board and entered on the assessment book by the assessor, but only to request the board to strike from the lists the assessment of their merchandise used in Indian trading, on the sole ground that such, property was not subject to taxation at all under the laws of the state. We cannot escape the conclusion that by the conduct of the plaintiffs they intended to disregard any irregularities of the board of equalization or of the assessor in the assessment of their stock in trade, and to stand upon the single broad ground that the stock in trade of an Indian post trader lawfully trading on an Indian reservation is an agency of the United States, exempt from taxation by the state and any local subdivision thereof. There was no showing of prejudice to the plaintiff’s rights by error in the assessment by the board and assessor. It seems but just, therefore, that they should not be allowed to restrain the collection of the taxes for the mere irregularity referred to. (Cooley on Taxation, 2d Ed., p. 775.) We find no error in the case. Judgment affirmed. Affirmed. Brantly, C. J., and Piggtt, J., concur.