페이지 이미지
PDF
ePub

boarding, clothing, and education of the child payment to be made in cash within one year drer of said tribe." Id. 687-693.

from the date of settlement or of the passage After this treaty, and apparently for the of this act; and the United States, in conpurpose of protecting and fulfilling its pro sideration of the relinquishment by said Invisions, various acts and joint resolutions dians of their lands in Kansas shall pay were passed by congress, which are to be annually interest on the amount of money retaken into consideration when disposing of ceived as proceeds of sale of said lands at the this case.

rate of five per centum, to be expended by A joint resolution was passed April 10, the president for the benefit of said Indians 1869, declaring: “That any bona fide settler in such manner as he may deem proper.” 16 residing upon any portion of the lands sold Stat. 335, 362. to the United States, by virtue of the first By an "act for the relief of settlers on the and second articles of the treaty concluded Osage lands in the state of Kansas," apbetween the United States and the Great proved May 9, 1872, it was provided: “That and Little Osage tribe of Indians, Septem the Osage Indian trust and diminished reber twenty-ninth, eighteen hundred and sixty serve lands in the state of Kansas, exceptfive, and proclaimed January twenty-first, ing the sixteenth and thirty-sixth sections in eighteen hundred and sixty-seven, who is a citi. each township, shall be subject to disposal, zen of the United States or shall have declared for cash only, to actual settlers, in quantihis intention to become a citizen of the United ties not exceeding 160 acres, or one-quarter States, shall be, and hereby is, entitled to pur section to each, in compact form, in accordchase the same in quantity not exceeding ance with the general principles of the preone hundred and sixty acres, at the price of emption laws, under the direction of the comone dollar and twenty-five cents per acre, missioner of the general land office: providwithin two years from the passage of this ed, that claimants shall file their declaratory act, under such rules and regulations as may statements as prescribed in other cases upbe prescribed by the secretary of the interior: on unoffered lands, and shall pay for the provided, however, that both the odd and tracts, respectively, settled upon within one even-numbered sections of said lands shall year from date of settlement where the plat be subject to settlement and sale as above of survey is on file at that date, and within provided: and provided, further, that the six one year from the filing of the township teenth and thirty-sixth sections in each town plat in the district office where such plat is ship of said lands shall be reserved for state not on file at date of settlement." An acschool purposes in accordance with the pro tual settler upon those lands, who had failed visions of the act of admission of the state to pay for and enter the land settled upon of Kansas: provided, however, that nothing by him under the act of July 15, 1870, was in this act shall be construed in any manner given three months in which to file his deaffecting any legal rights heretofore vested claratory statement, and he was required to in any other party or parties.” 16 Stat. 55. prove his claim and pay for the land before

In the act of July 15, 1870, making appro January 1, 1873, interest at the rate of 5 per priations for the current and contingent ex cent. to be paid from the day when payment penses of the Indian department, and for ful should have been made under the act of filling treaty stipulations with various In 1870. 17 Stat, 90. dian tribes, provision is made for the re

On the 23d day of June, 1874, congress moval of the Great and Little Osage Indians, passed an act declaring: "That all actual whenever they agree thereto, from their settlers upon the Osage Indian trust and lands in Kansas, “to lands provided or to be diminished reserve lands in the state of Kan. provided for them for a permanent home in sas*shall be allowed one year from the pas.. the Indian Territory," the lands so to be pro sage of this act in which to make proof and vided “to be paid for out of the proceeds of payment: provided, that all purchasers who the sales of their lands in Kansas.” The sum avail themselves of the provisions of this of $50,000 was appropriated to meet the ex act shall pay interest on the purchase price penses of such removal and to aid in subsist of their lands at the rate of 5 per centum ing the Indians during the first year, “to be

from the date when payment was required reimbursed to the United States from the pro by previous laws to date of actual payment: ceeds of the sale of the lands of the said and provided further, that no further extenIndians in Kansas, including the trust lands sion of payment shall be granted than that north of their present diminished reserva provided for in this act, and that all occution, which lands shall be open to settlement pants now upon said Osage lands shall file after survey, excepting the sixteenth and their application to purchase the lands occuthirty-sixth sections, which shall be reserved pied by them within three months after the to the state of Kansas for school purposes, passage of this act, or forfeit all right or and shall be sold to actual settlers only, said claim to the same." 18 Stat. 283. settlers being heads of families, or over By an act approved August 11, 1876, protwenty-one years of age, in quantities not viding for the sale of Osage ceded lands in exceeding one hundred and sixty acres, in Kansas to actual settlers, the privilege was square form, to each settler, at the price of given to any bona fide settler, a citizen of one dollar and twenty-five cents per acre; the United States, or who had declared his

[ocr errors]

Intention of becoming such, and residing at of public landa în said state,' but especially the time of completing his or her entry, as provided that the lands embraced within the in that act prescribed, upon any portion of Indian reservations in said states should not the lands sold to the United States by the be alienated for any purpose except with the treaty of 1865-67 with the Great and Little consent of the Indians of such reservations, Osage tribes, to purchase the same, not ex and in accordance with the conditions of the ceeding 100 acres, at the price of $1.25 per treaty authorizing such alienation; and acre, within one year from the passage of whereas, by the treaty between the United the act, under such rules and regulations as States and the Great and Little Osage Inmay be prescribed by the secretary of the dians, proclaimed January twenty-first eightinterior; the purchaser paying one-fourth of een hundred and sixty-seven, a trust was the price at the time of his entry, and the re created for the disposal of the lands of said mainder, with 5 per cent interest, in three Indians in the state of Kansas, the metes annual payments, notes therefor to be given and bounds of which said lands are specificalto the United States. 19 Stat. 127, 128, 88 ly set forth in said treaty, by which the Unit1, 3.

ed States bound itself to convey and sell any. Then came the act of May 28, 1880, "for and all of such lands ‘at a price not less than. the relief of settlers upon the Osage trust one dollar and twenty-five cents per acre, and diminished reserve lands in Kansas." as other lands are surveyed and sold,' and The first section gives 60 days after a day to to place the proceeds of such lands as they be fixed by public advertisement in the prop accrue, after deducting all expenses incident er land districts (not later than 90 days after to the proper execution of the trust, the passage of the act) within which actual in the treasury of the United States to the settlers on such lands may prove their credit of said tribe of Indians;' and whereclaims and pay the purchase price, one-fourth as it is claimed that under the operation of in cash, and the balance in three annual in the treaty herein referred to there are mon. stallments. In case of default, the lands eys due, both on account of grants and sales were to be sold as provided in the act. By of lands which have not been placed to the other sections it is provided: “Sec. 2. That credit of said Indians, as provided for in said all the said Indian lands remaining unsold treaty." and unappropriated and not embraced in the The act provided: “That the secretary of claims* provided for in section one of this the interior is hereby authorized and diact, shall be subject to disposal to actual rected to cause an account to be stated of the settlers only, having the qualifications of pre number of acres of the Osage lands in the emptors on the public lands. Such settlers state of Kansas that have in any way been shall make due application to the register alienated by the United States, either by the with proof of settlement and qualifications act of January twenty-ninth eighteen hun. as aforesaid; and, upon payment of not less dred and sixty-one, entitled 'An act for the than one-fourth the purchase price shall be admission of Kansas into the Union,' or since permitted to enter not exceeding one quarter the creation of the trust for the sale of these section each, the balance to be paid in three lands by the treaty between the United equal installments, with like penalties, lia States and the Great and Little Osage In. bilities and restrictions as to default and for dians, proclaimed January twenty-first eight. feiture as provided in section one of this act. een hundred and sixty-seven, and of the Sec. 3. All lands upon wnich such default money received by the United States on achas continued for ninety days shall be pla count of the sales of such lands, and to cerced upon a list, and the secretary of the in tify the difference between the sum so terior shall cause the same to be duly pro received and the sum that would be due said claimed for sale in the manner prescribed trust at the date of the account herein profor the offering of the public lands,

vided for had all of said lands so alienated but such lands

shall be sold for cash been disposed of as provided for by said to the highest bidder at not less than the treaty. That a sum of money equal to the price fixed by law; *

* and if any of amount certified by the secretary of the insaid lands shall remain unsold after the of terior, in pursuance of the foregoing section, fering as aforesaid, they shall be subject to to the secretary of the treasury, is hereby private entry for cash in tracts not exceed appropriated out of any moneys in the treasing one quarter section by one purchaser." ury not otherwise appropriated, which tne 21 Stat. 143, c. 107.

secretary of the treasury is directed to place In the same year an act was passed-June to the credit of the secretary of the interior, 16, 1880—to carry into effect the second and as custodian of said trust funds, and, after sixteenth articles of the treaty of 1865, pro defraying the cost of survey and sale of said claimed January 21, 1867. The preamble of lands and other expenses contracted by the the act is as follows: "Whereas, by the act United States or the Osage Nation in the exfor the admission of the state of Kansas into ecution of said trust, the balance of said the Union, approved January twenty-ninth funds shall be placed in the treasury of the eighteen hundred and sixty-one, the United United States, to the credit of said Indians, States granted to said state the sixteenth to be invested and distributed in accordance and thirty-sixth sections of every township with existing treaties: provided, that a like

[ocr errors]

as

settlement shall be made with the Indian. tary of the Interior, and on the 5th day of civilization fund for the sixteenth and thirty- | October, 1887, Acting Secretary Muldrow resixth sections, given by the United States versed the ruling of the commissioner. 6 to the state of Kansas, within the limits of Land Dec. 175. Thereupon the homestead the Osage lands ceded by the first article of entry of Frost was canceled, and Wenie was the treaty aforesaid." 21 Stat. 291, c. 251. permitted to perfect his pre-emption filing

This brings us to the act approved De of November 5, 1881. Upon a review of the cember 15, 1880, the preamble of wbich de decision of Acting Secretary Muldrow it was clares that the Ft. Dodge military reserva affirmed by Secretary Vilas. Id. 539. This tion was no longer needed for military pur decision was followed by one rendered by poses. That act made it "the duty of the Secretary Noble, recognizing the previous secretary of the interior to cause all that ruling by his predecessor. 9 Land Dec. 558. portion of the Fort Dodge military reserva

On the 20th day of January, 1890, a patent tion, in the state of Kansas, being and lying was duly issued to Wenie. north of the land owned and occupied by It was admitted that Frost bad previous. the Atchison, Topeka and Santa Fé Railroadly exercised his right under the law, as a Company for right of way for its railroad; pre-emptor, to purchase Osage lands. (and to cause the same) to be surveyed, sec The decree below sustained the action of tionized, and subdivided other public the interior department, and the bill, being lands, and after said survey to offer the held insufficient upon demurrer, was dis. said lands to actual settlers only, under and missed, with costs to the defendants. in accordance with the homestead laws of

W. T. S. Curtis, S. Shellabarger, and A. the United States: provided, that the said

A. Hoehling, for appellant. Samuel F. Phil. Atchison, Topeka and Santa Fé Railroad lips, F. D. McKenney, and W. H. Lamar, for Company shall have the right to purchase appellees. such portion of said reservation as it may need for its use adjoining that now owned Mr. Justice HARLAN, after stating the by it, not exceeding 160 acres, by paying facts in the foregoing language, delivered therefor the price at which the same may the opinion of the court. be appraised under the direction of the secre The act of May 28, 1880, for the relief of tary of the interior.” 21 Stat. 311, c. 1 (46th settlers upon the Osage trust and diminished Cong. 3d Sess.).

reserve lands in Kansas, provided that all The lands here in dispute are within the of those Indian lands remaining unsold and overlapping limits of the Osage trust and unappropriated (and not embraced in cer.com diminished reserve lands and of the Ft. tain claims which it is*unnecessary here to. Dodge military reservation, and lie north mention) shall be subject to disposal to acof the land owned and occupied by the Atch-tual settlers only, “having the qualifications ison, Topeka & Santa Fé Railroad Company of pre-emptors on the public lands," each for right of way for its railroad.

settler being permitted “to enter not exceedAs already stated, Frost had in view, ing one quarter section each." when making his entry, the provisions of the The act of December 15, 1880, directed the act of congress of December 15, 1880. He secretary of the interior to cause all that immediately settled on the land, and within portion of the Ft. Dodge military reserva. six months built a house, and moved his tion lying north of the right of way of the family into it. One Boyd filed a pre-emp- | Atchison, Topeka & Santa Fé Railroad to be tion statement for the lots applied for by surveyed, sectionized, and subdivided “as Frost, as well as for other lots. He subse. other public lands," and, after survey, "to quently relinquished all claim to so much of offer the said lands to actual settlers only, the land as conflicted with Frost's claim. under and in accordance with the homestead

On the 5th day of November, 1881, Wenie, laws of the United States." the appellee, filed his pre-emption declara. Only about one twenty-fifth part of the tory statement for the land embraced in lands embraced in so much of the Ft. Dodge Frost's entry. He proceeded under the act military reservation as is described in the of May 28, 1880. Wenie's, as well as Boyd's, last-named act were Osage trust lands. 6 application was rejected by the local land Land Dec. 541. officers, and that ruling was sustained by Did congress intend, by the act of Deceintue*commissioner of the general land office ber 15, 1880, to open to entry by homestead. and by the secretary of the interior. Frost ers lands of the class which, by the act of then proceeded to make his final proofs, and May 28, 1880, were opened to entry only by they were accepted by the local land officers. actual settlers having the qualifications of He paid $110.8for the land, taking the pre-emptors? benefit of section 2301 of the Revised Stat It is to be observed that, although the utes, which allowed payment of the mini words of the act of December 15, 1880, are mum price for land entered at any time be broad enough, if literally interpreted, to emfore the expiration of five years.

brace all the lands within the abandoned Ft. Wenie appealed, but his appeal was dis Dodge military reservation north of the nissed by the commissioner of the general Atchison Railroad, there are no words in it and office. He then appealed to the secre of express repeal of any former statute. It

[ocr errors]

09.

Is well settled that repeals by implication, the greater part of the reservation relinare not to be favored. And, where two stat- quished by said act lying north of the Osage utes cover, in whole or in part, the same mat- lands, it should not be so construed as to ter, and are not absolutely irreconcilable, impair or defeat the rights of the Indians the duty of the court-no purpose to repeal guarantied by the treaty of 1863.” 6 Land being clearly expressed or indicated-is, if Dec. 175. possible, to give effect to both. In other * Application having been made to Secre words, it must not be supposed that the leg. tary Vilas for a review of that decison, that islature intended by a later statute to repeal officer, among other things, said: "I am sat. a prior one on the same subject, unless the isfied that congress, by the act of December last statute is so broad in its terms, and so 15, 1880, had no intention of repealing the clear and explicit in its words, as to show act of May 28, 1880, or any portion thereof, that it was intended to cover the whole sub- since such repeal would work an impairment ject, and therefore to displace the prior stat of the rights guarantied to the Indians by ute. McCool v. Smith, 1 Black, 459, 468; the treaty of 1865. Especially do I think U. S. v. Tymen, 11 Wall. 88, 93; Red Rock this view is warranted in the absence of any 7. Henry, 106 U. S. 596, 601, 1 Sup. Ct. 434; express words of repeal; for, had congress Henderson's Tobacco, 11 Wall. 652; King intended a repeal, the effect of which would V. Cornell, 106 U. S. 393, 396, 1 Sup. Ct. 312. be to disregard treaty obligations, or to de

There is an interpretation of the act of feat or impair treaty rights, I feel certain it December 15, 1880,* that will give effect to would have expressed that intention in plain its provisions, and at the same time leave words, and not left it to implication. How, untouched the prior act as expressing the then, is the act of December, 1880, in so far will of congress in respect of the Osage trust as it is in apparent conflict with the act of and diminished reserve lands. That inter- May 28, 1880 (which is as to less than three pretation assumes that congress did not in sections of land), to be construed ? Manitend by that act to prescribe for the Osage festly, the intention of congress can be astrust lands within the limits of the aban- certained only by a consideration of the doned Ft. Dodge military reservation north treaty of 1865 and the two acts above menof the Atchison Railroad any different rule tioned in pari materia, and, so considering or policy than had been prescribed by the them, I have no difficulty in arriving at the act of May 28, 1880, for all such trust lands conclusion that the tract in question canwherever situated. Excluding from the not be legally entered by Frost, for the reaoperation of the act of December 15, 1880, son that, having made one Osage entry, he is any lands affected with an express trust in not a qualified pre-emptor.” 6 Land Dec. favor of Indians,-that is, construing it as 540. applying only to public lands, strictly so call We approve the construction placed upon ed, which the United States could dispose the act of December 15, 1880, by the inof without any breach of good faith or vio- terior department, and the decree is affirmed. lation of treaty obligations,—there is no difficulty in giving effect to the provisions as well of that act as of the act of May 28,

(157 U. S. 124) 1880, without infringing any established principle for the interpretation of statutes.

THE CALEDONIA, No trace can be discovered in the various

(March 11, 1895.) legislative enactments relating specifically

No. 107. to the Osage trust lands of any intention, | SAPPING-CONTRACT OF AFFREIGHTMENT - WARupon the part of congress, to disregard the

RANTY OF SEAWORTUINESS-EXCEPTIONS IN BILL

OF LADING Losses FROM DELAY Remote terms of its treaties with the Osage Indians;

DAMAGES. and, consequently, the act of December 15,

1. The implied warranty of seaworthiness 1880, should not be construed as impairing which exists in all contracts for carriage at sea, the rights of the Indians, unless such a con

unless otherwise expressly stipulated, is an abstruction be unavoidable.

solute undertaking, not dependent on the ownIt is not unavoid

er's knowledge or ignorance, his care or negliable. Looking at that act, in connection gence, that the ship is in fact fit to undergo the with prior statutes, particularly that of May | perils of the sea and other incidental risks; and 28, 1880, we are of opinion that the lands

it covers latent defects, not ordinarily suscepti.

ble of detection, as well as those which are which the act of December 15, 1880, direct

known or discoverable by inspection. Held, ed to be opened for entry under the home therefore, that this warranty extended to the stead laws, were public lands that

case of a propeller shaft, which broke, in ordiwithin the abandoned military reservation,

nary weather, from weakness existing at the

commencement of the voyage; not by reason of and subject to disposition under general any flaw or other defect discoverable by any laws relating to "other public lands,” and usual or reasonable means, even if the shaft not lands of an exceptional class that were

were taken out, but rather from a weakening

due to encountering extraordinary storms on affected with a trust established for the

previous voyages. 43 Fed. 681, and 50 Fed. benefit of Indians by treaty. Acting Secre 567, affirmed. tary of the Interior Muldrow said: "How

2. Exceptions in a bill of lading of loss or damage "from delays,

steam boilers ever we may construe the act of December

and machinery or defects therein" are not to be 15, 1880, with reference to the disposal of construed as affecting the implied warranty of

were

*

•126

seaworthiness, especially when they form part, described as "the party of the first part," of a long list of excepted causes, all the rest of and Mr. M. Goldsmith of New York, hereinwhich relate to matters arising after the commencement of the voyage. 43 Fed. 681, and 50

after described as “the shipper,” of the secFed. 567, affirmed. Mr. Justice Brown, Mr.

ond part. Justice Harlan, and Mr. Justice Brewer, dissent 'The agents of the steamer agree to let ing.

to said shipper suitable space, as under 3. A memorandum of agreement for the shipment of cattle, specifying the terms of the

noted, for the transportation of live cattle; contract, and signed by the shipper and the ship's that is to say, on the steamship Caledonia, agent, is merely preliminary to the bill of lad

for about two hundred and seventy-five to inz, and is superseded thereby; but, even if this

three hundred head of cattle on and under were not the case, a stipulation in such memorandum that the shipper assumed all risk "of decks. Steamer expected to sail from Bosmortality or accident, however caused, through ton for London about eleventh of June. The Met the voyage," is not to be construed as af

agents agree to fit the stalls in the style fecting the implied warranty of seaworthiness, but rather as applying only to matters arising

customary at the port of Boston, to the satafter commencement of the voyage. 43 Fed. isfaction of inspectors of Boston insurance 681, and 50 Fed. 567, affirmed.

companies and the shipper, who will assume 4. A carrier is liable for losses incurred on a shipment of cattle through shrinkage in weight

all responsibility of same, and for various and fall in market value, where the delay is oc appliances of ventilation, after shipment of casioned by breach of the warranty of seaworthi the cattle; and the steamer Caledonia unness, although such breach was due to a hidden

dertakes to supply sufficient good condensed defect in the propeller shaft, not attributable to the carrier's negligence. 43 Fed. 681, and 50

water for the use of the animals during the Fed. 567, affirmed. Mr. Justice Brown, Mr. voyage. All water casks, buckets, hose, and Justice Harlan, and Mr. Justice Brewer, dis similar appliances must be put on board by senting on the ground that there is a clear distinction between the loss of or direct damage to

shipper of the cattle. goods on account of unseaworthiness, and losses “A reasonable supply of fodder for the arising from mere delay; and that for the latter animals will be carried by the steamship the carrier is not responsible, when he has used

Caledonia free of freight; but freight, if due diligence to make the ship seaworthy. 5. Loss occasioned by fall in market value

demanded, shall be payable on any unusual during delays attributable to the carrier's fault excess of fodder landed at port of destinais not too speculative to form the basis of dam- tion. Hay and straw to be in compressed ages, where, at the time the contract of carriage

bales. was made, both parties knew and contemplated that the cattle were to be sold in a given market

“ 'The steamer Caledonia will also furnish on the first possible market day after nrrival. 43 free steerage passage for attendants (not exFed. 681, and 50 Fed. 567, affirmed.

ceeding one man to every thirty cattle) over Appeal from the Circuit Court of the Unit

and return, providing them with the neced States for the District of Massachusetts.

essary utensils for the voyage. *This was a libel in admiralty by a ship

* "The agents of the steamer agree to noper of cattle against the steamship Cale

tify the said shipper, at least six days in donia to recover damages caused by the

advance, of the intended departure of the breaking of her shaft. The district court

steamship, and, twelve hours prior to saildecreed in favor of libelant (50 Fed. 567),

ing, of the day and hour. In event of shipand claimants appealed. The circuit court

per failing to deliver the cattle to steamship found the following facts and conclusions

within twenty-four hours after expiry of of law:

due notice as aforementioned, steamer is to "This was a libel in admiralty, in a cause

have liberty to sail, and freight is to be of contract, civil and maritime, by a ship

paid in full by the party of the second part. per of cattle against the steamship Cale

'The steamer Caledonia agrees to deliv. donia, to recover damages caused by the

er the cattle at Deptford, and the shipper breaking of her shaft.

agrees to bear tonnage, dock, or shed dues “The Caledonia was one of the Anchor

when incurred. The cattle are to be deLine of transatlantic steamships, owned and

livered and received from steamship's decks employed by the claimants, Henderson

immediately on arrival at the port of des

tination. Brothers, as common carriers. The plaintiff was a dealer in and exporter of cattle.

“ 'The shipper agrees to ship all the cattle “The terms of the contract between the

the steamship can carry as above mention. parties were as expressed in the following

ed, paying freight on same at the rate of memorandum of agreeement, made before

forty-five shillings British sterling per bul

lock for all cattle shipped. the shipment of the cattle, and in the following bill of lading, signed at the time of

“ 'The shipper agrees to prepay freight on shipment, and afterwards accepted by the

the above-mentioned shipments in current libelant:

funds at first-class bankers, selling rate for

sight exchange, on the number of cattle ship“ 'Memorandum of Agreement

ped at Boston, vessel lost or not lost, and ir

respective of the number landed at the port " "Concluded at New York, the twenty-fifth of destination; and the slipper assumes all day of May, 1885, between Messrs. Hender risk of mortality or accident, however caused, son Brothers, 7 Bowling Green, New York, throughout the voyage. agents of the steamer Caledonia, hereinafter “ The shipper agrees to deliver the cattle

125

« 이전계속 »