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the laws of the United States, and of the empt, became subject to taxation in the state of Washington.
same manner as property belonging to other “You are further directed to instruct the citizens, and the rule of exemption for him commissioner to take the necessary steps to must be the same as for other citizens,complete and close up the business of his that is, that no exemption exists by impli. office as soon as practicable after March 3, cation, but must be clearly manifested. No next."
exemption is clearly shown by the legisla
tion in respect to these Indian lands. The Mr. Walter Christian for plaintiff in er- original treaty provided that they should be ror.
exempt from levy, sale, or forfeiture until Messrs. Walter M. Harvey and Charles O. the legislature of the state should, with the Bates for defendant in error.
consent of Congress, remove the restriction.
This, of course, meant involuntary as well Mr. Justice Brewer delivered the opinion as voluntary alienation. When the state oi the court:
was admitted and its constitution formed, In the brief filed by the plaintiff in error its legislature granted the power of alienano question is made of his right to sell and tion "in like manner and with like effect as convey the land. The supreme court of the any other person may do under the laws of state, in its opinion, says: “It is conceded the United States and of this state, and all that the Indians may now sell their lands restrictions in reference thereto are hereby voluntarily and convey a title in fee, and removed.” What restrictions ? Evidently that thereupon the lands so sold are sub- those upon alienation. The Indian may not ject to taxation in the hands of parties not only voluntarily convey his land (authority Indians.” [38 Wash. 129, 80 Pac. 296.] But to do that is provided by the use of the the contention is that although he has the word "grant”), but he may also permit its power of voluntary sale and conveyance, alienation by any action or omission which, yet, until he has exercised that power, the in due course of law, results in forced sale. land is not subject to taxation or forced Congress postponed the operation of this sale. His argument rests mainly upon the statute for ten years.
When the ten years contention that there is no express repeal expired (and they had expired before this of the exemption provided in the original tax was attempted to be levied) all restrictreaty, "from levy, sale, or forfeiture.”
tion upon alienation ceased. It requires a 'That Congress may grant the power of vol- technical and narrow construction to hold untary sale while withholding the land from
that involuntary alienation continues to be taxation or forced alienation may be con- forbidden while the power of voluntary ceded. For illustration, see treaty of Janu- alienation is granted; and it is disregarding ary 31, 1855, with the Wyandotts (10 Stat. the act of Congress to hold that the Indian at L. 1159, 1161). But while Congress may having property is not subject to taxation make such provision, its intent to do so when he is subject to all the laws, civil and should be clearly manifested, for the pur- criminal, of the state. pose of the restriction upon voluntary alien
We see no error in the ruling of the Suation is protection of the Indian from the preme Court of the state of Washington, cunning and rapacity of his white neigh- and its judgment is affirmed. bors, and it would seem strange to withdraw this protection and permit the Indian to dispose of his lands as he pleases, while at MARTIN CONBOY, as Trustee in Bank. the same time releasing it from taxation,-
ruptcy of the Phillip Semmer Glass Comin other words, that the officers of a state
pany, Limited, Bankrupt, Appt., enforcing its laws cannot be trusted to do justice, although each and every individual FIRST NATIONAL BANK OF JERSEY acting for himself may be so trusted.
CITY. But further, by the act of February 8, 1887, plaintiff became and is a citizen of the Appeal—from circuit court of appeals-in United States. That act, in addition to the bankruptcy case.
1. The allowance of an appeal from a grant of citizenship, provided that "Indians to whom allotments have been made shall circuit court of appeals in a bankruptcy case
on certificate of a justice of the Supreme have the benefit of and be subject to the Court cannot operate as an adjudication laws, both civil and criminal, of the state that such appeal is taken within the thirty or territory in which they may reside.” Re days allowed by general order in bankHeff, 197 U. S. 488, 49 L. ed. 848, 25 Sup. Ct. ruptcy No. 36.
Appeal—from order denying rehearing. Among the laws to which the plaintiff as 2. No appeal lies from an order denying a citizen became subject were those in re-a petition for rehearing.* spect to taxation. His property, unless ex
*Ed. Note.-For cases in point, see Cent. Dig. vol. 2, Appeal and Error, $8740, 741.
Appeal—from circuit court of appeals—in the 24th day of May, 1905, denying the pebankruptcy case.
tition of the said trustee for a rehearing;" 3. The thirty days' limitation pre- and for the reversal of "said orders and de. scribed by general order in bankruptcy No. 36 for taking an appeal from a final order
crees, etc., and every part thereof." of a circuit court of appeals in a bank
Appeal was allowed and certificate granted ruptcy case cannot be extended by filing a under $25b, par. 2, of the bankruptcy act petition for rehearing after the thirty days [30 Stat. at L. 553, chap. 541, U. S. Comp. have expired, although there may be but one Stat. 1901, p. 3432], May 27, 1905. Thereterm of that court, and, by its rules of prac- after and on June 14, 1905, findings of fact tice, petitions for rehearing may be pre- and conclusions of law were filed by the sented at any time during the term.
circuit court of appeals, "nunc pro tunc, as
though the same were made and filed at the [No. 54.]
time of entry of the judgment of this court Argued October 23, 1906. Decided Novem on the 23d day of January, 1905." ber 19, 1906.
The following provisions of the bank
ruptcy act are applicable: PPEAL from the United States Circuit
"Sec. 25b. From any final decision of a A
Court of Appeals for the Second Cir- court of appeals, allowing or rejecting a cuit to review an order affirming an order claim under this act, an appeal may be had of the District Court for the Southern Dis- under such rules and within such time as trict of New York, which had affirmed an may be prescribed by the Spreme Court of order of a referee in bankruptcy, allowing the United States in the following cases and a claim against the bankrupt's estate. Dis
no other: missed because not taken in time. See same case below, 67 C. C. A. 551, 135 Court of the United States shall certify
“2. Where some justice of the Supreme Fed. 77. The facts are stated in the opinion.
that, in his opinion, the determination of Mr. Martin Conboy for appellant.
the question or questions involved in the Mr. William G. Wilson for appellee.
allowance or rejection of such claim is es
sential to a uniform construction of this Mr. Chief Justice Fuller delivered the act throughout the United States." opinion of the court:
Paragraphs 2 and 3 of general orders in This is an appeal from a final order of bankruptcy, 36, read: the circuit court of appeals for the second
“2. Appeals under the act to the Supreme circuit affirming an order of the district Court of the United States from a circuit court of the United States for the south court of appeals, or from the supreme court ern district of New York, filed June 7, 1904, of a territory, or from the supreme court of affirming an order of a referee in bank- | the District of Columbia, or from any court ruptcy, “In the matter of Phillip Semmer of bankruptcy whatever, shall be taken Glass Company, Limited, Bankrupt,” dated within thirty days after the judgment or May 7, 1904, allowing the claim of the First decree, and shall be allowed by a judge of National Bank of Jersey City against the the court appealed from, or by a justice of bankrupt's estate.
the Supreme Court of the United States. The final order of the circuit court of ap
“3. In every case in which either party peals was entered January 23, 1905. The
is entitled by the act to take an appeal to trustee petitioned that court, April 25, to the Supreme Court of the United States, recall its mandate and vacate the order the court from which the appeal lies shall, therefor, and the application was denied. at or before the time of entering its judgOn May 8 a petition for rehearing was filed, ment or decree, make and file a finding of which was denied May 17, and an order to the facts, and its conclusions of law thereon, that effect entered May 24. A petition, stated separately; and the record transmitdated the same day, was thereupon pre
ted to the Supreme Court of the United sented to a justice of this court, praying an States on such an appeal shall consist only appeal "from the whole of the said order of the pleadings, the judgment or decree, of affirmance of the circuit court of appeals the finding of facts, and the conclusions of for the second circuit, dated the 23 day law.” of January, 1905, and from the whole of the The law provides that appeals shall be said order of the circuit court of appeals taken “within such time as may be prefor the second circuit, dated the 25th day scribed by the Supreme Court of the United of April, 1905, denying the motion of your States, and by general order 36 this court petitioner to recall the mandate of said prescribed the time and limited it to thirty court and cancel the order for same, and days, in harmony with the policy of the from the whole of the said order of the circuit bankruptcy act, requiring prompt action and court of appeals for the second circuit, dated' the avoidance of delay.
The limitation has the same effect as if The cases cited for appellant, in which it written in the statute, and the allowance was held that an application for a rehearing, of an appeal on certificate cannot operate made before the time for appeal had exas an adjudication that it is taken in time. pired, suspended the running of the period
The present appeal was allowed four for taking an appeal, are not applicable months “after the judgment or decree” ap- when that period had already expired. pealed from and three months after the time “When the time for taking an appeal has to appeal had expired.
expired, it cannot be arrested or called back But it is said that the limitation should by a simple order of court. If it could be, be referred to the date of the order deny- the law which limits the time within which ing the petition for rehearing, and the trus- an appeal can be taken would be a dead tee prayed an appeal from that order as letter.” Credit Co. v. Arkansas C. R. Co. well as from the judgment of January 23. 128 U. S. 258, 261, 32 L. ed. 448, 449, 9 Sup.
No appeal lies from orders denying peti- Ct. Rep. 107, 108. tions for rehearing, which are addressed to In the circumstances, the suggestion that the discretion of the court and designed to there is but one term of the circuit court afford it an opportunity to correct its own of appeals for the second circuit, and that, errors. Brockett v. Brockett, 2 How. 238, by the rules of practice of that court, peti17 L. ed. 251; Wylie v. Coxe, 14 How. 1, 14 tions for rehearing may be presented at any L. ed. 301. Appellant might have made his time during the term, and therefore that application for rehearing and had it deter- this petition operated to enlarge the limitamined within the thirty days, and still have tion of the bankruptcy act, is without had time to take his appeal. But he let the merit. thirty days expire, as it did February 22, The petition was denied. Whether it could 1905, and did not file his petition until May have been granted in view of the terms and 8, 1905. The right of appeal had then been spirit of the bankruptcy act, or the effect, lost and appellant could not reinvest him- if it had been, we are not called upon to self with that right by filing a petition for I discuss. rehearing
NEW YORK FOUNDLING HOSPITAL, ) ject to the supervision of the petitioner and Appt.,
its officers and agents; that at such time
the petitioner had officers and agents of JOHN C. GATTI.
trained experience at the town of Clifton,
with instructions to supervise said child and Appeal—from territorial supreme court-in habeas corpus case.
the care and management of it while temA determination by the supreme court porarily in the charge and care of the said of the territory of Arizona in a habeas cor person as aforesaid; that at all times the pus case as to which custodian a child of petitioner had the right at will to withdraw tender years shall be committed to is not the child from the care and charge of the appealable to the Supreme Court of the said person, and retain the custody thereof, United States under U. s. Rev. Stat. § 1909, and continue to keep the said child in puras a case "involving the question of person suance of law under its care, charge, custoal freedom” within the meaning of that dy, and management during the term of its section. *
infancy, as aforesaid. [No. 21.]
Upon information and belief it charges
that thereafter, and on or about the 2d day Argued April 26, 1906. Decided December 3, of October, 1904, one John C. Gatti, resid1906.
ing at the said town of Clifton, his servants
and employees, unlawfully and with force
of Territory of Arizona to review a judg. said person, where, at the time of said unment on a writ of habeas corpus, awarding lawful entrance, the said child, William Northe care and custody of an infant to the re-ton, was, having been placed there as aforespondent. Dismissed for want of jurisdic- said and forcibly, unlawfully and without tion.
right, took possession of said William NorSee same case below (Ariz.) 79 Pac. 231. ton, and removed him hence to the custody The facts are stated in the opinion.
of the said John Gatti. That the said child Messrs. D. Cady Herrick, Charles E. Mil-has ever since said day been in the custody ler, and William C. Trull for appellant.
and under the control of the said Gatti, and Messrs. Walter Bennett and A. A. Hoehl- that the said child is now restrained of its ing, Jr., for appellee.
liberty by the said Gatti, without the con
sent or license of the petitioner, and against Mr. Justice Day delivered the opinion of violation of its rights under the laws of the
its desire, intention, and protest, and in the court: The suit below was begun by a petition
state of New York, of the United States, for a writ of habeas corpus, by the New
and of the territory. York Foundling Hospital, a corporation of
The respondent made return and claimed the state of New York, against John c. to be entitled to the custody of the child Gatti, to command said Gatti to produce the named in the petition as the legally apbody of one William Norton, an infant, and pointed guardian, duly qualified as such unto show by what right he held such infant
der letters of guardianship issued by the under his custody and control.
probate court of Graham county, Arizona. The petitioner set out in substance that. And further set forth in the return that the by its charter
, granted by the legislature of child in question is a white, Caucasian child; New York, it was authorized to receive and that the petitioner, on or about the 1st day keep under its charge, custody, and control of October, 1904, brought the said child to children of the age of two years or under, the territory of Arizona, and abandoned him found in the city of New York, abandoned to the keeping of a Mexican Indian, whose or deserted, and left in the crib or other name is unknown to the respondent, but one receptacle of petitioner for foundlings, and financially unable to properly clothe, shelter, to keep such children during infancy; that maintain, and educate said child, and, by the child William Norton had come to it reason of his race, mode of living, habits, as a foundling within the terms of its char- and education, unfit to have the custody, ter; that the petitioner, on the 4th of Octo-care, and education of the child; that said ber, 1901, to October 2, 1904, had the care, person, to whom petitioner is alleged to charge, custody, and management of said have abandoned said child, voluntarily surchild; that on or about the 1st of October, rendered it to certain persons, who there1904, petitioner placed the child in the home upon placed it in the care, custody, and conof a certain person in the town of Clifton, trol of respondent, who is a fit person for county of Graham, territory of Arizona, to that purpose, and it will be to the best inbe held and cared for by the said person in terest of the child that he be permitted to said home temporarily, and at all times sub- l remain with the respondent, whose purpose
*Ed. Note.-For cases in point, see vol. 13, Cent. Dig. Courts, § 1032.
and intention it is to rear, maintain, edu- The court, acting upon the principle that cate, and provide for said child as though the best interests of the infant are conhe were his own.
trolling, awarded the care and custody thereThe petitioner traversed the return, and of to the respondent (79 Pac. 231) and the denied that the said minor was in the care, petitioner took an appeal to this court. custody, and control of the respondent by The jurisdiction of the supreme court virtue of letters of guardianship, and al- of the territory to issue the writ of habeas leged that the said minor has been in the corpus is not called in question in this care, custody, and control of respondent case. Gatti by force and violence, and without We are met at the threshold with an obauthority of law or of any person legally jection to the appellate jurisdiction of this authorized to place the child in the custody court. The appeal in such cases is allowed of the respondent.
under cover of § 1909, Rev. Stat. Gonzales The case came to trial on the issues of v. Cunningham, 164 U. S. 612, 41 L. ed. fact raised in the petition, return, and trav- 572, 17 Sup. Ct. Rep. 182. That section erse thereof by the petitioner, and the provides : testimony having been heard in open court, “Sec. 1909. Writs of error and appeals a final order was made, adjudging the said from the final decisions of the supreme court William Norton to be a minor of the age of either of the territories of New Mexico, of two and one-half years, and that his Utah, Colorado, Dakota, Arizona, Idaho, best interests required that the said John Montana, and Wyoming shall be allowed to C. Gatti have the care, custody, and control the Supreme Court of the United States, in of said infant, who was thereupon remanded the same manner and under the same reguto the care, custody, and control of said re- lations as from the circuit courts of the spondent.
United States, where the value of the propIn the view which we take of the juris- erty or the amount in controversy, to be diction of this court to entertain the ap- ascertained by the oath of either party, or peal in this case, it is unnecessary to con- of other competent witnesses, exceeds one sider the elaborate findings of fact made in thousand dollars, except that a writ of erthe supreme court of Arizona as the basis ror or appeal shall be allowed to the Suof its order, further than they bear upon the preme Court of the United States from the question of jurisdiction to entertain this decision of the supreme courts created by appeal.
this title, or of any judge thereof, or of the It was found that the children were district courts created by this title, or of taken into the territory by the representa- any judge thereof, upon writs of habeas cortives of the foundling hospital, to remain pus involving the question of personal freethere and be placed in suitable homes in dom." Arizona; but, by imposition practised upon The question is, therefore, is this a writ the agents of the society, the children were of habeas corpus "involving the question of distributed among persons wholly unfit to personal freedom ?” That this section of be intrusted with them, being, with one or the statute does not permit appeals from two exceptions, half-breed Mexican Indians all cases in which the writ is issued is maniof bad character. That thereupon a commit- fest in the use of language in the act spetee was appointed from the citizens resi- cifically limiting the right of review in this dent of the vicinity, who visited the homes court to cases of writs which involve the of the persons having possession of the question of personal freedom. children, stating to them that they had been A brief consideration of the history and appointed by the American residents to nature of the writ will, we think, make take possession of the children, who were manifest the purpose of Congress in using then voluntarily surrendered by such per- this restrictive language giving the right sons. The children were taken charge of of appeal. The writ is usually granted in by certain good women, and afterwards the order to institute an investigation into the child William Norton was given to the re- illegal imprisonment or wrongful detention spondent, who has since had his care, cus- of one alleging himself to be unlawfully tody, and control. This was done without restrained of his liberty. the consent of the society or its agents. The jurisdiction is conferred to enable Afterwards letters of guardianship were is the cause of restraint to be inquired into, sued to the respondent by the probate court and the person imprisoned or wrongfully deof Graham county, Arizona. The petition- prived of freedom restored to liberty. er took an appeal from the order granting The subject was discussed by Mr. Justice the letters of guardianship to the district Miller in the case of Re Burrus, 136 U. S. court of the county. Pending this appeal 586, 34 L. ed. 500, 10 Sup. Ct. Rep. 850, in the petition for the writ of habeas corpus which it was held that a district court of was filed.
the United States has no authority to Is.