Were the repealing Act of February 22, 1888, and the contemporaneous acts of the Choctaw council relating to the collection and disbursement of the net proceeds fund, violative of the contract rights of plaintiff?

,

United States of Mackey v. Coxe, 18 How. 103, 15 L. ed. 300; Louisiana v. New Orleans, 102 U. S. 203, 26 L. ed. 132; Hendrickson v. Apperson, 245 U. S. 113, 62 L. ed. 184, A.L.R. 38 Sup. Ct. Rep. 44; Jordan v. Wimer, 45 Iowa, 65; Hayes v. Clinkscales, 9 S. C. 441; Richardson v. Cook, 37 Vt. 599, 88 Am. Dec. 622; Hall v. Wisconsin, 103 U. S. 5, 26 L. ed. 302.

Did the court of claims err in refusing judgment for appellants, and will the Supreme Court act upon the record now before it and order judgment?

Hall v. Wisconsin, 103 U. S. 8, 26 L. ed. 304; Mackay v. Dillon, 4 How. 421, 11 L. ed. 1038; Kansas City Southern R. Co. v. C. H. Albers Commission Co. 223 U. S. 573, 56 L. ed. 556, 32 Sup. Ct. Rep. 316; Ward v. Joslin, 186 U. S. 142, 46 L. ed. 1093, 22 Sup. Ct. Rep. 807; Creswill v. Grand Lodge, K. P. 225 U. S. 261, 56 L. ed. 1080, 32 Sup. Ct. Rep. 822; Cedar Rapids Gaslight Co. v. Cedar Rapids, 223 U. S. 665, 56 L. ed. 594, 32 Sup. Ct. Rep. 389; Washington ex rel. Oregon R. & Nav. Co. v. Fairchild, 224 U. S. 528, 56 L. ed. 869, 32 Sup. Ct. Rep. 535; Southern P. Co. v. Schuyler, 227 U. S. 601, 611, 57 L. ed. 662, 669, 43 L.R.A. (N.S.) 901, 33 Sup. Ct. Rep. 277; Carlson v. Washington, 234 U. S. 103, 58 L. ed. 1237, 34 Sup. Ct. Rep. 717.

Solicitor General Frierson argued the -cause and filed a brief for appellee.

Mr. Justice McKenna delivered the -opinion of the court:

This suit is based, as its ultimate foundation, on an Act of Congress of May 29, 1908, § 5, chap. 216, 35 Stat. at L. 444, 445, Comp. Stat. § 4224, 3 Fed. Stat. Anno. 2d ed. p. 851, which provides as follows:

"That the court of claims is hereby authorized and directed to hear and adjudicate the claims against the Choctaw Nation of Samuel Garland, deceased, and to render judgment thereon in such amounts, if any, as may appear to be equitably due. Said judgment, if any, in favor of the heirs of Garland, shall be paid out of any funds in the Treasury of the United States belonging to the Choctaw Nation, said judgment to be rendered on the principle of quantum

penses incurred. Notice of said suit shall be served on the governor of the Choctaw Nation, and the Attorney General of the United States shall appear and defend in said suit on behalf of said nation."

The case is not easily stated, though simple in ultimate resolution. It turns upon the relation of Samuel Garland and his right to compensation as one of the delegation of the Choctaw Nation to procure for the nation a recognition and payment of money due from the United States in settlement of or in payment for lands east of the Mississippi river, ceded to the United States under certain treaties.

The case as made by the petition is this: Samuel Garland was a member of the Choctaw Tribe of Indians, and in 1853 he, with four others, were created a delegation and authorized to settle all unsettled business between the Choctaw Nation and the United States. In 1855 [441] the chiefs of the nation agreed to pay the delegation, naming them, 20 per cent upon all the claims arising to the nation or individuals for their services in negotiating the treaty and for other services which were to be rendered thereafter in Washington.

In pursuance of this authority they entered into negotiations with the United States for settlement of the controversies concerning what, if anything, was due on account of matters growing out of certain treaties (they are set out in the petition), and for the payment for lands ceded to the United States by the Choctaws.

The result was the direction by an Act of Congress (June 29, 1888, 25 Stat. at L. 235, chap. 503) of the payment to the Choctaw Nation of the sum of $2,858,789.62 in satisfaction of a judgment of the court of claims in favor of the nation.

On February 25, 1888, the nation, on account of the death of Samuel Garland, and for the purpose of paying his estate and the other members of the delegation, appointed Campbell LeFlore and Edmund McCurtain agents of the nation to make requisition upon the United States for the amount due Garland and the other delegates for the services rendered the nation, and for moneys expended by them. Twenty per cent of the amount appropriated by Congress to pay the judgment of the court of claims was the amount fixed to be paid.

The appointment of LeFlore and Me

In 1889 they paid to the heirs of Garland $43,943.20, but refused to pay the balance due, amounting to $115,786.65.

The nation has never denied the indebtedness to the [442] estate of Garland, but recognized it by an act passed by its general council in 1897, and authorized its payment by warrants issued by the national auditor.

The act was vetoed for the reason that it would exhaust the available funds in the treasury of the nation and force the closing of the Choctaw schools. The estate, having no power to sue the nation, could not do so until authorized by an act of Congress.

The petition sets forth the respective interests of the heirs of Garland.

The court of claims found some of these facts, but found other facts, and concluded from them that the contract of the nation was with the delegates as a body, and that the nation was not responsible for any failure on the part of LeFlore to pay the estate of Garland all that was due Garland. In other words, the court held that LeFlore and McCurtain were not the "agents' of the Choctaw Nation for whose misapplication of the fund, if they did misapply it, the nation was liable," but that they were, when dealt with, "the delegation, the successors of the original delegation, standing in such relation to the nation and to other members of the delegation or their beneficiaries that the payment made to them, as it was made, is to be held an acquittance of the nation."

The conception of the opinion is that the delegation was a unit, constituted such and intended to act as such, the survivors or even the survivor of those appointed succeeding to the powers and rights of deceased delegates, that the nation so regarded and so dealt with them, and that, therefore, LeFlore and McCurtain succeeded to the rights of the delegation, could receive the powers conferred upon them by the enactment of February 25, 1888, and could accept any sums that came to them under that enactment "as a complete payment and a final discharge of all debts and obligations of the Choctaw Nation to" the delegation under the contract of 1853.

[443] This being the conception of

As we have seen, there was a delegation constituted, and Garland was a member of it, and its compensation was agreed to be "20 per cent upon all claims arising or accruing to" the "nation or individuals under the Treaty of June 22, 1855 [11 Stat. at L. 611] for their services in negotiating said treaty and for other services which are to be rendered hereafter at Washington." It will be observed there was no disposition of the amount that might be received, nor distribution of it, nor of the services that might be required to be performed, nor designation of who was to receive or control it.

Delegates, however, died and others were appointed in like generality, and finally there was a concentration in LeFlore and McCurtain, and, the national council reciting that the delegates preceding LeFlore and McCurtain had recovered from the United States $2,858,798.62, and that the delegates were entitled to 20 per cent of the amount, that percentage was appropriated out of the fund and directed to be paid to LeFlore and McCurtain as delegates and successors of the delegates of 1853, "to enable them (LeFlore and McCurtain) to pay the expenses and discharge the obligation in the prosecution of said claim (the claim of the nation against the United States), and to settle with the respective distributees of said delegation.”

There was also an appropriation for other sums due the delegation, and it was enacted that all of the sums should be paid to LeFlore and McCurtain, describing them as successors to the other delegates, and when so paid to be accepted "as a complete payment and a final [444] discharge of all debts and obligations of the Choctaw Nation to said delegation" under the contract of their appointment. And it was enacted that the amounts provided to be paid should "be accepted as full and final settlement of the amount due under their respective contracts," and the remainder of the amount appropriated by Congress should be retained in the Treasury of the United States, subject to the legislation and requisition of the nation.

In 1873, however, there was recognition of liability to the delegates, and it was

warehouses, as the state of the stock therein, or the condition of the trade, may demand." The goods concerned "had been removed from the factory at which they were manufactured and prepared for sale, to other factories or warehouses of petitioner in other parts of the United States, as hereinbefore set forth." They had upon them uncanceled revenue stamps, but belonged to the petiof sale on September 9, 1916, when the tioner, and were subject to no contract above-mentioned Act of September 8, 1916, went into effect, [448] providing for the redemption of stamps, as we have said. The petitioner sells only to wholesale dealers, never at retail. By its own statement it must be taken to have removed the goods for the purposes of sale to such places as seemed most likely to offer a market, although no sale had taken place. It is said that, upon the language of the petition, the greater part of the goods may have been sent to other factories. But it is for the petitioner to state a case, and, so far as

The defendant in error, the petitioner below, made a claim against the United States for $6,318.56 paid by it for revenue stamps under the Act of October 22, 1914, chap., 331, § 5, and Schedule B, 38 Stat. at L. 745, 754, 763, 4 Fed. Stat. Anno. 2d ed. p. 135 (extended by Resolution of December 17, 1915, chap. 4; 39 Stat. at L. 2, through December 31, 1916), which it alleges were unused after January 1, 1916, and therefore were to be redeemed under § 24 of the Act of October 22, 38 Stat. at L. 764, chap. 331, 4 Fed. Stat. Anno. 2d ed. p. 305, and the Act of September 8, 1916, chap. 463, § 411, 39 Stat. at L. 756, 793, Comp. Stat. $$ 6336a, 6346a, Fed. Stat. Anno. Supp. 1918, pp. 312, 381, the stamps having been purchased within two years of the application for redemption, as required by the latter act. The United States demurred to the petition, and the petitioner recovered in the district court. The question is whether the petition discloses facts upon which it can be said that the goods were not "removed for sale" within the meaning of § 5, which levies the tax upon the things mentioned in Schedule B "manufactured, sold, or removed for sale."

The petitioner manufactures chewing gum, one of the articles mentioned in Schedule B, and, when the product is prepared, transports it from the place of preparation, in the language of the petitioner, "to one of its other factories or

removals had the same end in view.

We may assume, without deciding, that the tax is levied in respect of the sale rather than of the manufacture of

goods; but that throws little light upon the question of the precise moment when it falls due. The words "sold or removed for sale" clearly mean that it falls due in some cases before a sale is complete. No one, we presume, would doubt that if the goods were removed for the purpose of satisfying an outstanding contract for a certain amount of chewing gum, the tax would be due at the moment of the removal, although the goods were not yet appropriated to the contract in any binding way. It seems to us hardly more doubtful that the same would be true if goods were removed by a manufacturer to put into the window of a retail shop kept by it on the other side of the street. If we are right, these examples show that removal for the purpose of forwarding a sale is a removal for sale, within the meaning of the act. But, on the face of the petition, that was the object of the transfer of these goods to other parts of the United States.

Notwithstanding the assumption that the tax is levied in respect of sale rather than of manufacture, we agree with the government that the statute contemplates a payment by the manufacturer. This is shown by $$ 17-19. By § 20 every manufacturer of any article provided for in Schedule B is required to