When the difference is deep and radical between two domains in
which the same kind of property may be situated, the law which
makes them one district for taxation, so that all the property of
the same kind in the same district must be taxed alike, and no
reasonable distinction be permitted, must itself be so plain and
urgent that no other intention can be suggested.
There is no provision in the act of Congress of 1890 organizing
Oklahoma, or in the territorial act of 1886, which was violated by
the act of 1899, p. 216, Session Laws of Oklahoma, which provides
that only taxes for territorial and court funds shall be assessed,
levied or collected in any unorganized country, district or
reservation attached to any county for judicial purposes, and the
effect of which is to tax property in an organized county for more
purposes, thereby making a different and higher rate than similar
property is taxed in the unorganized territory attached to Buell
County.
This is an action to enjoin the payment of certain taxes levied
upon property belonging to the appellees (plaintiffs below) and
Page 189 U. S. 326
situated in an Indian reservation within the Territory of
Oklahoma. The appellee, Hite, resides in the Ponca and Otoe Indian
reservation within that territory; the Stafford Land & Cattle
Company is a corporation organized under the laws of the State of
Texas and doing business in the above-named territory, and the 101
Live Stock Cattle Company is a corporation organized under the laws
of the State of Kansas. The appellees, severally, owned large
numbers of cattle which were grazing in the Indian reservation, and
they were assessed therein for purposes of taxation by the taxing
officer of Noble County, to which such reservation had been
attached for judicial purposes. The reservation is without the
boundaries of Noble County, and is not within those of any
organized county of the territory, and it comprises land owned and
occupied by Indian tribes, consisting principally of wild,
unimproved, and unallotted land used for grazing purposes. The
reservation was duly attached to the County of Noble for judicial
purposes by order of the supreme court of the territory, pursuant
to the provisions of section 9 of the act organizing the territory,
approved May 2, 1890, 26 Stat. 81, 85.
By article 6, c. 43, Session Laws of Oklahoma, 1895, it is
provided:
"That section 13, article 2, c. 70, of the Oklahoma statutes
relating to revenue, be and the same is hereby amended so as to
read as follows:"
" Section 13. That when any cattle are kept or grazed, or any
other personal property is situated in any unorganized country,
district or reservation of this territory, then such property shall
be subject to taxation in the organized county to which said
country, district or reservation is attached for judicial purposes,
and the board of county commissioners of the organized county or
counties to which such unorganized country, district or reservation
is attached shall appoint a special assessor each year, whose duty
it shall be to assess such property thus situated or kept; such
special assessor shall have all the powers and be required to
perform all the duties of a township assessor, and shall give a
similar bond and take the same oath as required of such township
assessor, and receive the same fees as a township assessor, and the
officer whose duty
Page 189 U. S. 327
shall be to collect the taxes in the organized county to which
such country, district or reservation is attached shall collect the
taxes, and is vested with all the powers which he may exercise in
the organized county, and his official bond shall cover such
taxes,"
etc.
In 1899, p. 218, Session Laws, the Oklahoma Legislature passed
an act which provided --
"That from and after the passage and approval of this act, no
taxes shall be assessed, levied, or collected in any unorganized
country, district, or reservation which shall be or which may
hereafter be attached to any county for judicial purposes except
taxes for the territorial and court funds. All acts and parts of
acts in conflict herewith are hereby repealed."
The tax assessor of Noble County being of opinion that the law
of 1899 was void for reasons hereafter stated, proceeded to assess
for taxation under the act of 1895,
supra, the cattle of
the appellees which were grazing in the Indian reservation, instead
of assessing such property for territorial and court funds only, as
provided for in the act of 1899. The assessment for all purposes
was at the rate of 26.2 mills on the dollar of valuation, divided
as follows: for territorial purposes, 5.2 mills, for court
purposes, 3 mills, for salaries, 6 mills, for road and bridge fund,
2 mills, for sinking fund, 4 mills, for poor and insane, 1 mill,
for supplies, 2 mills, for county school fund, 2 mills, and for
contingent purposes, 1 mill, making a total of 26.2 mills. If the
assessment had been for territorial and court purposes only, it
would have been at the rate of 8.2 mills on the dollar of
valuation.
The appellees insisted that the taxing officer had no right to
assess them upon their property in the reservation at any greater
rate than 8.2 mills for territorial and court purposes, as provided
for by the act of 1899, while the appellants contended that the act
of 1899 was void, and that the tax assessor had the power, and it
was his duty under the act of 1895, to assess the property of the
appellees situated in the reservation, for all purposes; or, in
other words, for the whole 26.2 mills.
The trial court held in favor of the tax officials and dismissed
the petition of the appellees, but, upon appeal, the judgment
of
Page 189 U. S. 328
dismissal was reversed by the territorial supreme court and the
tax declared invalid for more than 8.2 mills, assessed for
territorial and court purposes. The tax authorities have brought
the case here by appeal.
MR. JUSTICE PECKHAM, after making the foregoing statement of
facts, delivered the opinion of the Court.
If the statute of 1899, limiting the right of assessment, is
valid, it follows that the judgment of the supreme court of the
territory setting aside an assessment for more than such limited
amount must be affirmed. But it is urged that the act of 1899 is
void, and that, being void, the taxing officer was justified and
required by the act of 1895 to make the assessment he did. The
grounds upon which the appellants base their claim that the act of
1899 is invalid rest upon the provisions of section 6 of the
Organic Act, approved May 2, 1890, and upon section 1 of the Act
approved July 30, 1886.
That portion of the sixth section of the Act of May 2, 1890,
material to the present inquiry reads as follows:
"That the legislative power of the territory shall extend to all
rightful subjects of legislation not inconsistent with the
Constitution and laws of the United States, but no law shall be
passed interfering with the primary disposal of the soil; no tax
shall be imposed upon the property of the United States, nor shall
the lands or other property of nonresidents be taxed higher than
the lands or other property of residents, nor shall any law be
passed impairing the right to private property, nor shall any
unequal discrimination be made in taxing different kinds of
property, but all property subject to the taxation shall be taxed
in proportion to its value."
Section 1 of the Act approved July 30, 1886, 24 Stat. 170,
provides:
Page 189 U. S. 329
"That the legislatures of the territories of the United States
now or hereafter to be organized shall not pass local or special
laws in any of the following enumerated cases, that is to say:"
"
* * * *"
"For the assessment and collection of taxes for territorial,
county, township or road purposes."
The main objection offered to the act of 1899 is that it results
in a violation of the rule of uniformity which, as appellants
allege, must exist in the same taxing district with reference to
the same kind of property. The appellants contend that the Indian
reservation is, for taxing purposes, a part of the County of Noble,
and therefore part of the same taxing district as that county, and
that the taxation under the act of 1899 for that reason violates
the rule of uniformity above referred to. As a basis for the
contention that it is the same taxing district, it is maintained
that the order of the supreme court made by virtue of section 9 of
the act of 1890, attaching the reservation to Noble County for
judicial purposes, made it a part of the judicial district of that
county, and that the subsequent act of the legislature in substance
placed the reservation under the general taxing jurisdiction of
Noble County, and therefore made it a part of the same taxing
district, and, being a part of the same district, the personal
property in the reservation must be taxed at the same rate, and for
all the purposes that personal property is taxed in the organized
County of Noble.
It must be remembered at the outset that the reservation was
never any part of Noble County, for the legislature had no power to
make it such.
Thomas v. Gay, 169 U.
S. 264,
169 U. S. 275.
It was, as its name implies, a reservation set apart by the general
government as a home for the Indians, and as such it formed no part
of any organized county. Although, by reason of the act of 1895,
the personal property in the reservation was subject to taxation in
the organized county to which it was attached for judicial
purposes, but of which it formed no part, yet that act did not
thereby make the reservation a part of the same taxing district as
the county. The act of 1895 (and that of 1899) reached for taxation
the owners of
Page 189 U. S. 330
cattle, or any other personal property situated in the
reservation, and that was the full effect of each act. All other
property than above described was left untouched, and, we assume,
could not have been taxed if owned by Indians, by reason of the
treaties or agreements under which the reservation was set apart
for the use of such Indians. The right of taxation in the
reservation was not as full and entire, even under the act of 1895,
as it is in an organized county. This is a most important, if not
conclusive, distinction, between the organized county and the
reservation, when considering whether one and the same taxing
district has been created by legislation which does not in terms
purport to create it. That legislation was only for the purpose of
thereby reaching for taxation a certain class of property in the
reservation, and the whole balance that was in the reservation was
left untouched. What is there in such legislation which necessarily
creates a single taxing district, within which all property must be
taxed alike?
Then too, the property under the act of 1895 was assessed by a
separate officer, and although the same officer who collected the
taxes in the organized county was authorized and required to
collect the taxes in the reservation, yet that fact did not make it
part of the same taxing district so as to prevent the legislature
from altering the proportion of the taxes which the owner of
property in the reservation should be liable to pay as compared
with the owner of property in the organized county to which it was
attached for certain purposes only. It was simply a convenient
method of collecting the taxes on property in the reservation; but
the legislature was not thereby prevented from exercising the right
to recognize the difference between property situated within an
organized county and that which was situated in a reservation, and
to make a difference in the rate of taxation in the two cases. If a
separate taxing district was not created under the act of 1895,
still less can it be contended that one was created by the act of
1899, which enacted a different rate of taxation than prevailed in
Noble County.
Even the assessment of the same amount of taxes and their
collection by the same officers that acted for the organized
Page 189 U. S. 331
county would not necessarily render the reservation part of the
same taxing district as the organized county. The material and
important fact remains that the reservation is no part of the
county, but is a totally distinct and separate domain, set apart
for a home for Indians under the care and custody of the general
government, and that taxation therein is permitted only to a
limited extent and upon certain kinds of property, not including
Indians or their property, and the imposition and collection of
those taxes which are permitted do not thereby render the
reservation a part of the same taxing district as the organized
county to which it is attached for judicial purposes. The
difference between the two domains, the reservation and the
organized county, is radical and wide. The lands in the former are,
as we have said, mostly wild and uncultivated and used principally
for grazing purposes, and the domain is the home of a different and
distinct race from that occupying the organized county, the
inhabitants of which are of civilized races, following the customs
of civilized life, and in almost everything differing from their
Indian neighbors. Property therein is clearly very differently
placed than the same kind in an organized county. Those who live
and own property in an organized county receive more benefit from
the taxes levied for general purposes than do the owners of
property located in a reservation. The act of 1899 makes certain
personal property in the reservations bear its proportion of the
burdens of taxation for territorial and court purposes, from which
such property derives some benefit. The owners of such personal
property can derive very little, if any, benefit from the taxes
raised for other purposes than those just mentioned. There is no
township government existing there; no provision for the
organization of school and road districts or for the establishment
of other municipal governments, and hence it may be seen that, even
assuming the power of the legislature to tax for all such purposes
at the same rate as in an organized county, and to provide for the
collection and payment of such taxes into the county treasury for
disbursement for county purposes, yet still the injustice of such a
rate of taxation would naturally appeal to the legislature and
result in
Page 189 U. S. 332
some legislation of the kind passed in 1899. The territorial
legislature has evidently recognized that fact and enacted that
statute in consequence.
All this goes to show the legislature never intended to create a
single taxing district of an organized county and a reservation
composed of such different materials. As further evidence of the
substantial difference between the two places, attention is called
to the fact that the general laws providing for taxation in an
organized county do not authorize such taxation in a reservation,
even after it has been attached to a county for judicial purposes.
There must be special legislative authority for it.
Wagoner v.
Evans, 170 U. S. 588,
170 U. S.
592.
Whether the legislature, by the act of 1897, providing the
method of thereafter making assessments in townships by means of
one assessor for each county, did thereby repeal the provision in
the act of 1895 in relation to a special assessor for the Indian
reservations we do not determine, because, even if such were the
case, and the assessor for the county were the one to make the
assessment in the reservations also, the mere fact of the change of
the officer who was to make the assessment did not on that account
make a reservation part of the same taxing district as the county
to which it was attached for judicial purposes within the meaning
of the rule requiring uniformity of taxation within the same taxing
district, assuming such rule to apply to the territory named.
The foundation of the rule which may be said generally to
obtain, that there shall be uniformity in taxation of the same kind
of property in the same taxing district, rests on the assumption
that in such district the circumstances regarding the property to
be taxed are ordinarily the same in substance, although there may,
and necessarily must be, some differences as to the extent to which
the different owners of property may be benefited by the taxes
collected thereon, and it is to be assumed that an alteration as to
rate would work an unjust and illegal discrimination in taxing
property situated alike. When the difference is deep and radical
between the two domains in which the same kind of property may be
situated, the law which makes them one district for taxation, so
that all the property
Page 189 U. S. 333
of the same kind in the same district must be taxed alike, and
no reasonable distinction be permitted, must itself be so plain and
urgent that no other intention can be suggested. No such case is
now before us.
It is true the taxation in the reservation under the act of 1895
was for all purposes, and this Court held that the act was not for
that reason an illegal exercise of legislative power. It was
recognized that there were differences in the amount of benefits
derived from such taxation by the organized county as compared with
the reservation, but it was not thought that, for that reason, the
law was invalid.
Thomas v. Gay, 169 U.
S. 264,
169 U. S. 275.
It was a matter of legislative discretion with which the courts had
in general no concern.
It has not, however, been held that the legislature could not
recognize the difference in circumstances and provide for a
different rate of taxation for property in the reservation from
that levied on property in the organized county to which the
reservation was attached for judicial purposes. The power to make
this distinction does not depend upon the existence of a separate
officer to assess or to collect the tax.
If it required special legislative authority to tax at all, how
can it reasonably be maintained by the taxing officer that the act
which provides for the taxation, although at a reduced rate, is
illegal? And if an act were once passed which authorized the same
rate of taxation as in the organized county, could not the
legislature repeal it? And if it could repeal, why could it not
modify it by reducing the rate of taxation, although not totally
exempting property from all taxation? If the legislature had
repealed the act of 1895, and had passed no other, there plainly
would be in that case no law for taxing the property in the
reservation. If subsequently it passed an act for the taxation of
such property at a reduced rate from that existing in the organized
county, it could not be said there was any exemption from taxation,
but, on the contrary, it would be the case of an act providing for
taxation.
The only answer made by the appellants is the assumed fact that
all property of the same kind in the same taxing district of this
territory must, in all circumstances, be taxed at the
Page 189 U. S. 334
same rate or must be wholly exempted, and that no discrimination
can, in any event or under any circumstances, be permitted;
otherwise there is a discrimination which is illegal. But if it be
not in the same taxing district, the reasoning fails, even if
otherwise good.
The recognition by the legislature of the difference in the
situation between Noble County proper and the Indian reservation
attached to it for judicial purposes, and the taxation of the
property in the latter at a different rate from that in the county,
may be upheld upon the same principle as in the case of general
city taxation, where the whole of the city is first assessed
equally as a taxing district and then the more compact portions
thereof are assessed at a greater rate and required to pay a
greater proportionate share of the expense of the city government,
because of the fact of the greater proportionate protection and
benefit afforded by the police and fire departments and other like
matters, to the portions of the city thus subjected to greater
taxation.
Cooley, in his work on Taxation, p. 118, affirms the validity of
such legislation, and refers in a note (3) to cases which establish
it, and he dissents from the view taken by the Wisconsin court in
Knowlton v. Rock County, 9 Wis. 410, 421. Where the
difference between the different portions of territory is plain and
palpable, the right of the legislature to recognize that difference
and to provide for a difference in taxation cannot be denied
without imposing, as said by Judge Cooley, restraints upon the
constitutional power of the legislature which cannot in reason be
justified. Whether there is such a difference would generally be
for the legislature to determine, although we would not say that
the courts could not in any possible state of facts review that
determination. In the case before us, the legislative act providing
for this difference in taxation amounts, in itself, to a provision
for a different taxing district within the principles just stated,
and certainly no one would say that it was not a most reasonable
and just recognition of a plain difference in circumstances, which
ought to lead to a difference in the proportion of taxation between
the two places.
Whether the proper officer made the assessment or not is
immaterial
Page 189 U. S. 335
in this case. The defendants in error have not only not appealed
from the decree of the supreme court, but they have paid the taxes
assessed for the purposes mentioned in the act of 1899, and do not
seek to recover them back in this case, and the question is of no
consequence to them.
In the view we take of the case, we are unable to see that any
provision of the act of Congress of 1890, organizing the territory,
or the other act of 1886, in regard to territories then or
thereafter to be organized, has been violated by the territorial
act of 1899, and the judgment of the Supreme Court of Oklahoma is
therefore
Affirmed.
