costs and expenses, or it may be the naked le-ed States on a claim "for property and supplies As regards the Wilhelm tax title, it may be a perfect title or it may be a lien for the taxes paid by the purchaser at the tax sale. Or it may be that Holgate, holding the legal title as E ton did, in trust, was bound to protect that title by the purchase from Wilhelm; and if so, it may be a lien on the land, though not a perfect title. Of all this we are unadvised. But in the cross bill Holgate and Newbegin tender a conveyance of both these rights upon payment of the two sums mentioned, with interest. If the heirs of Mrs. Eaton will pay these sums and accept the conveyance, they should be permitted to do so. If they decline, the plaintiffs in the cross bill may be entitled to a decree against Mr. Eaton in personam, for he is a defendant to that bill, has appeared, but made no answer. As regards the cross bill against the heirs of Mrs. Eaton, if they will not pay these sums, the appellants can dismiss their bill as to them without prejudice to the legal rights of Holgate and Newbegin under the deeds from Eaion and Wilhelm, or they can proceed in it acconding to the principles of equity. The decree of the Circuit Court in the original bill is, therefore, reversed, and the decree in the trass bill also. The case is remanded to the Circuit Court, with instructions to dismiss the original bill at the cost of the plaintiffs in that bui, and to take such further proceedings in the cross bill as are not inconsistent with this opinion, and may be appropriate to enforce the rights of plaintiffs therein. True copy. Test: taken *** for the use of the armies of the "Be it enacted, etc., That the Secretary of The district court gave judgment for the defendant. To reverse that judgment this writ of error was brought. We are unable to distinguish this case in James H. McKenney, Clerk, Sup. Court, U. S. principle from that of United States v. Jordan, UNITED STATES, Piff. in Err., BEM PRICE. (See S. C., Reporter's ed., 43-45.) Bail to recover money paid under private Act Secretary of the Treasury has no discretion. 113 U. S. 418 [Bk. 28, L. ed. 1013], in which it was held that when an Act of Congress directed the Secretary of the Treasury to pay to a Icertain person a specific sum of money, the amount of taxes assessed upon and collected from him contrary to the provisions of certain treasury regulations, "no discretion was vested in the Secretary or in any court to determine whether the sum specified was or was not the amount of tax assessed contrary to the provisions of such regulations; " and that conseamount stated by Congress was the true amount quently the payment must be made whether the collected or not. The court of claims had held that the language of the Act, "taken together, was too clear to admit of doubt, that Congress undertook, as it had the right to do, to deter mine not only what particular citizens of Tennessee, by name, should have relief, but also bmitted Not. 23, 1885. Decided Dec. 14, 1885. the exact amount which should be paid to each Where, by Act of Congress, the Secretary of the Tresury is required to pay a certain claim against the United States, no discretion in the premises bevested in him, the claimant is entitled to payand a suit to recover back the amount when i on the ground of mistake, does not lie, unless abrogates the law under which payment zade, or directs suit to be brought. [No. 210.] ERROR to the District Court of the United Tue history and facts of the case sufficiently of them." In this we fully concurred. The Act now under consideration "required" the Secretary of the Treasury to pay Price the money he got. It was when the payment was made and is now the law of the land that he was entitled to that sum from the United States on account of his claim. The Secretary of the Treasury could not refuse to pay it, and no authority has been given anyone to sue to recover it back. It may be that Congress required the payment to be made under a mistake, or that the claim was not a just one; but unTs a suit brought to recover back a sum til Congress abrogates the law or directs suit to sey collected by Bem Price from the Unit-be brought to recover back the money, the con Y. J. Z. George, for defendant in error. V. Chief Justice Waite delivered the opinkeofthe court: [44] [28] [28] [29] Band of Shoshonees and the Bannock Tribe, concluded July 3, 1868. 15 Stat at L. 673. In 1882 there was levied under the laws of the Territory, upon the railroad, its depots and other property within the Reservation, for territorial and county purposes, a tax, amounting in the aggregate to $4,478. The defendant is the assessor and tax collector of the county, and the tax having become delinquent, he was UTAH & NORTHERN RAILWAY COM- proceeding to enforce it by a sale of the prop PANY, Appt., v. WILLIAM F. FISHER, Assessor and ex (See 8. C.," Utah & Northern Railway v. Fisher," Fort Hill Indian Reservation-subject to juris- 1. The Fort Hill Indian Reservation is subject to erty when the plaintiff commenced this suit in the district court of the county to restrain him, contending that the property being within the boundaries of the Indian Reservation is withA preliminary injunction was granted, but at drawn from the jurisdiction of the Territory, the hearing the court held that the property was subject to taxation and that the tax was duly levied. The injunction was accordingly dissolved and judgment rendered for the defendant. On appeal to the supreme court of the Territory this judgment was affirmed. The contention of the plaintiff is that the Indian Reservation is excluded from the limits of Idaho by the Act of March 3, 1863, creating the Territory; or that it is necessarily excepted from the jurisdiction of the Territory by the Treaty of July 3, 1868. Neither position can 2. By force of the cession of the land upon which be sustained. The first section of that Act the road and other property of the Utah and North-embraces within the boundaries of the Terriern Railway Company are situated, it was, so far as necessary for railroad purposes, withdrawn from the reservation. The taxation of such property by the Territory does not impair the treaty rights 3. A stipulation of the parties and finding of the court thereon will be construed, on appeal, with reference to existing laws affecting the subject of the Indians. matter. tory the Reservation; and the proviso upon which the plaintiff relies only declares that nothing shall be construed to impair the exist ing rights of the Indians in Idaho, so long as they shall remain unextinguished by treaty, or to include within its boundaries or jurisdiction any lands which, by treaty with the Indian Tribes, were not, without their consent, to be included within the limits or jurisdiction of any State or Territory; or to affect the author APPEAL from the Supreme Court of the Ter-ity of the Government of the United States to ritory of Idaho make any regulations respecting the Indians, The history and facts of the case appear in their lands, property or other rights, by treaty, the opinion of the court. law or otherwise, which it would have been Messrs. John F. Dillon and A. J. Pop-competent for the government to make if the pleton, for appellant. Act had not passed. 12 Stat. at L. 808. The Messrs. Joseph K. McCammon and H. proviso excludes from the limits and jurisdicW. Smith, for appellee. Mr. Justice Field delivered the opinion of the court: tion of Idaho only such lands as by treaty were not to be included without the consent of the Indians; and it recognizes the authority of the United States to make the same regulations The plaintiff became a corporation of Utah respecting the lands, property and other rights under an Act of the Territory of February 12, of the Indians which it would have been com1869, for the incorporation of railroad com- petent to make before the passage of the Act. panies; and by the Act of Congress of June There was at that time no treaty with the In20, 1878, it was made a railway corporation, dians that the lands which might be reserved not only of that Territory but of Idaho and to them should be thus excluded from the limMontana also, with the same rights and privi- its and jurisdiction of any State or Territory. leges it had under its original articles of incor- The clause of the proviso on that head has poration, with a proviso, however, that it therefore no application. Harkness v. Hyde, should thereafter be subject to all laws and 98 U. S. 476 [Bk. 25, L. ed. 237], in which it regulations in relation to railroads of the United was held that the jurisdiction of the Territory States, or of any Territory or State through did not extend over the Reservation, was dewhich it might pass. 20 Stat. at L. chap. 362, cided upon the mistaken belief that such a § 2. It now owns and operates in Idaho a rail- treaty existed, and that to it the proviso reroad which, for the distance of sixty-nine miles ferred. This error was corrected in Langford and a fraction of a mile, passes through a tract|v. Monteith, 102 U. S. 147 [Bk. 26, L. ed. 54]. of land in the County of Oneida, known as the Fort Hill Indian Reservation, which was, on the 30th of July, 1869, set apart by order of the President for the Bannock Tribe of Indians, pursuant to the provisions of a Treaty between the United States and the Eastern As no such treaty existed, the proviso did not exclude the reservation from the limits or the jurisdiction of the Territory. By the Treaty it was agreed that whenever the Bannocks desired a reservation to be set apart for their use, or the President deemed it advisable to put them upon a reservation, he States and the Indians, which was ratified by should cause a suitable one to be selected in Act of Congress of July 3, 1882. That agreetheir country. It was under this agreement ment recites that the Utah and Northern Railthat the Fort Hill Reservation was subsequently way Company had applied for permission to established and the Bannocks placed upon it. construct a line of railway through the ReserThe Treaty provided a reservation for the Sho- vation; and that the Indians had agreed, for the shonees, and declared that they should enjoy consideration thereafter mentioned, to surren various rights and privileges; and that the Ban-der to the United States their title to so much Docks, when their reservation was made, should of the Reservation as might be necessary for have the same rights and privileges therein. the legitimate and practical uses of the road. Among other things, it was stipulated that the A strip of land and several parcels adjoining reservations should be set apart for their abso- it forming part of the Reservation, were ceded lute and undisturbed use and occupation, and to the United States for the consideration of for such other friendly tribes or individual In- $6,000, to be used by the Company and its dians to whose admission from time to time successors or assigns as a right of way and road they and the United States might consent; and bed, and for depots, stations and other structhat no person should ever be permitted by the tures. By an Act of Congress confirmatory United States to pass through, settle upon or of the agreement the same right of way was reside on the reservation, except those desig- relinquished by the United States to the Comnated in the Treaty, and such officers, agents pany for the construction of its road; and the and employees of the government as might be use of the several parcels of land intended for authorized to enter therein in the discharge of depots, stations and other structures was duties enjoined by law. The treaty also pro- granted to the Company and its successors or vided for the punishment, according to the assigns, upon the payment to the United States laws of the United States, of any person of the $6,000; and on the condition of paying among the Indians who should commit a wrong any damages which the United States or Inor depredation upon the person or property of dians, individuals or in their tribal capacity, anyone, white, black or Indian, subject to the might sustain by reason of the acts of the Comauthority of the United States, and at peace pany, or its agents or employees, or on account therewith; and that no treaty for the cession of fires originating in the construction or of any portion of the Reservation held in com- operation of the road. By force of the cession mon should be of any force or validity as thus made, the land upon which the railroad against the Indians, unless executed and signed and other property of the plaintiff are situated by a majority of the adult male Indians occupy- was, so far as necessary for the construction ing or interested therein; and that no cession and working of the road, and the construction hould be construed to deprive, without his and use of buildings__ connected therewith, consent, any member of the tribe of his right withdrawn from the Reservation. The road to and selected by him under the Treaty. and property thereupon became subject to the laws of the Territory relating to railroads, as if the Reservation had never existed. The very terms on which the plaintiff became a corporation in the Territory rendered it subject to all such laws and, of course, to those by which the tax in controversy was imposed. It is contended by the plaintiff that these stipulations cannot be carried out if the laws of the Territory are enforced on the Reservaaca; and in support of the position special emphasis is placed upon the clause in regard to persons passing over, settling upon or residing the Territory; and the clause touching wrongdoers among the Indians. As these traty provisions have the force and effect of Law, it is insisted that the Reservation is exGuded from the general jurisdiction of the Territory, as effectually as if the exclusion was made in specific terms. The only answer of the plaintiff to this view is that, by the stipulation of the parties and the finding of the court thereon, it appears that the railway and property which are taxed are situated within the boundaries of and upon the Reservation. If this be so, it does not follow that the result would be changed. The moTo uphold that jurisdiction in all cases and ment that the road was lawfully constructed it to the fullest extent would undoubtedly inter- came under the operation of the laws of the fere with the enforcement of the Treaty stip- Territory. The stipulation and finding must, ations, and might thus defeat provisions de- however, be read with reference to the legislazed for the security of the Indians. But it is tion of Congress; and, therefore, as only estabsit necessary to insist upon such general juris-lishing that the road and property are within on for the Indians to enjoy the full benefit the exterior boundaries of the Reservation. of the stipulations for their protection. The au- They will not be so construed as to allow the any of the Territory may rightfully extend Company to escape taxation by the force of a to a matters not interfering with that protec-stipulation as to an alleged fact which that legIt has therefore been held that process islation shows does not exist. fta courts may run into an Indian reserva- Judgment affirmed. tira of this kind, where the subject matter or overy is otherwise within their cognizace. If the plaintiff lawfully constructed and now operates a railroad through the Reseration, it is not perceived that any just rights of the Indians under the Treaty can be imared by taxing the road and property used isting it. The authority to construct perate the road appears from the agreeof July 18, 1881, between the United True copy. Test: James H. McKenney, Clerk, Sup. Court, U. 8. [33] (801 PELIAM S. ROBERTS, Appt., PHILIP REALLY. See 3. C. Reporter's ed. 6-7) liberty by the appellee, Reilly, who claimed to be acting as an agent of the State of New York, and as such to hold the petitioner, under color of the authority of the United States, by virtue of an arrest made in pursuance of an executive warrant issued by the Governor of GeorGoogia, on a requisition from the Governor of New York, reciting that the petitioner had been indicted in the State of New York and was a fugitive from the justice of the latter State. He averred that the custody by which he was restrained of his liberty was illegal, for various reasons assigned, and prayed for the writ of habeas corpus. The writ was issued as prayed for, and duly served, and thereupon an amendment to the petition was filed, as follows: The Kft(IN SHOW THAI the rot of the socused Wuseluar & come in the Site in which he was $INOM * vai as in the demanding State, is im Now a trive to taste in the sense of shu kora con as nese te che subject, it is not dai che gang charges should have left ah Sat it wi cd de crèine & shmood to have been your Dag ser at in cancer found or for the A8 & Sigga prosecution anticipated or yue de M 2 in 14, 1885. Per de Crew Court of the United So is or the Southern District of Georgia. "And now comes the said William S. Roberts and, by leave of the court first had, amends said petition and says that he is restrained of his liberty, in violation of a law of the United States, viz.: the Act of February 12, 1793, section 5278 of the Revised Statutes of the United States, in this: that it appears from the record, now here to your honor shown, upon which the executive warrant under which he is now restrained issued, that the crime with which he is charged was committed in the State of Georgia; that the papers accompanying the demand of the Governor of New York are not authenticated, as required by that Act; that it nowhere appears that the relator was personally within the limits of the State of New York at the time when said alleged crime is stated to have been committed; that it nowhere appears that any evidence was before the Governor of New York, at the time he issued his demand, that relator was personally within the limits of New York State when the crime is alleged to have been committed." The defendant, Reilly, on May 2, 1885, filed his answer and return, under oath, to the writ of habeas corpus which had been issued and served upon him, as follows: No coment of the case by Mr. Justice Mat De son 2 2a case shows the following pas & TANT the appellant. Roberts, axing. Ja atan so the Judge of the Dis. pycoes a desorber Disinct of Georgia, Fo de sunete de oe of the clerk al phuc de way budy restrained of his "United States of America, Southern District of Georgia, Eastern Division: "Pursuant to a writ of habeas corpus, issued by the Hon. Emory Speer, Judge of the District Court of the United States for the Southern District of Georgia, served upon me, I herewith produce the body of William S. Roberts, and return as the cause of his detention the executive warrant of the Governor of the State of Georgia under which he was delivered to me by authority issued to me by Hon. D. B. Hill, Governor of the State of New York, April 22, 1885, here to the court shown, copy of which is annexed, under which I still hold him, I having, as agent of the State of New York, received said Roberts from Wilberforce Daniel, Sheriff of the County of Richmond, to be carried to the State of New York, there to be dealt with according to law; that a certified copy of the indictment found for grand larceny in the State of New York, with evidence of fleeing from justice after commission of the crime, were produced by respondent as received from the Governor of New York and delivered to the Governor of Georgia, and retained in his office at the time of the issuing of the executive Hehe, Treur: phen, by what courts and warrant under which the said Roberts was 2424 42 10 placed in possession of the respondent by the Sheriff of Richmond County. [84] "I further return that on April 26, 1885, after the delivery of the said Roberts to me by the sheriff of Richmond County, I was served with a writ of habeas corpus issued by the Hon. H. C. Roney, Judge of the Superior Court of the Augusta Circuit, of which circuit the County of Richmond is a part; and by his order required to produce the said Roberts before him April 27, 1885; that from that date until May 1, 1885, I held the said Roberts subject to the order of the said judge, who at said time remanded him into my custody, a certified copy of which proceedings, with the judgment thereon dismissing the writ and remanding him into my custody, is here to the court shown. "The grand jury of the City and County of New York by this indictment accuse William S. Roberts and Edward H. Walton of the crime of grand larceny in the first degree, committed as follows: the said William S. Roberts and Edward H. Walton, each late of the first ward of the City of New York, in the County of New York aforesaid, on the fourteenth day of February, in the year of our Lord, one thous and eight hundred and eighty-four, at the ward, city and county aforesaid, with force and arms, ten written instruments and evidences of debt, to wit: the bonds and written obligations issued by the Georgetown and Lane's Railroad Company, a corporation duly existing under the laws of the State of South Carolina, aud called "first mortgage bonds," in and by each of which the said railroad comOn the hearing before the district court, docu-pany acknowledged itself indebted to the bearments were put in evidence, and constitute a part of the record, as follows: Whereupon this respondent prays that the said writ may be dismissed at the costs of the relator." er thereof in the sum of one thousand dollars, 'State of New York, Executive Chamber. Whereas, it appears by a copy of an indict-particular description of which said bonds and "In witness whereof I have hereunto signed [Seal of the State of New York.] David B. Hill. Private Secretary." 4. A copy of the indictment, as follows: Henry A. Oakley, Foreman. 5. The executive warrant of the Governor of "State of Georgia, by Henry D. McDaniel, Whereas, His Excellency, David B. Hill, Governor of the State of New York, and as the executive authority thereof, has demanded of me as the executive authority of this State, William S. Roberts, as a fugitive from jus [86] [85] |