laws, both civil and criminal, of the state; | Washington of the enabling act of February no grant to him of the benefit of those laws; 22, 1889 (25 Stat. at L. 677, chap. 180), no denial of the personal jurisdiction of § 4, jurisdiction and control of Indian lands remain in the United States. the United States. The act of May 8, 1906 (34 Stat. at L. 182, chap. 2348), extending to the expiration of the trust period the time when the allottees of the act of 1887 shall be subject to state laws, is worthy of note as suggesting that Congress, in granting full rights of citizenship to Indians, believed that it had been hasty. See, upon the general questions discussed, United States v. Mullin, 71 Fed. 682; Rainbow v. Young, 88 C. C. A. 653, 161 Fed. 835; State v. Columbia George, 39 Or. 127, 65 Pac. 604, Re Columbia George, 201 U. S. 641, 50 L. ed. 901, 26 Sup. Ct. Rep. 759; Couture v. United States, 207 U. S. 581, 52 L. ed. 350, 28 Sup. Ct. Rep. 259; Toy Toy v. Hopkins, 212 U. S. 542, 53 L. ed. 644, 29 Sup. Ct. Rep. 416. The judgment is reversed. UNITED STATES, Piff. ín Err., 7. HARVEY SUTTON and Robert Miller. (See S. C. Reporter's ed. 291–296.) Appeal case. by government in criminal 1. The decision of a Federal district court sustaining a demurrer to an indictment for introducing liquor into the Indian country is reviewable in the Federal Supreme Court by writ of error, under the act of March 2, 1907 (34 Stat. at L. 1246, chap. 2564, U. S. Comp. Stat. Supp. 1909, p. 220), where the question whether the indictment charges any offense against the United States involves the validity of the act of January 30, 1897 (29 Stat. at L. 506, chap. 109), as applied to the facts stated. [For other cases. see Appeal and Error, I. e, in Digest Sup. Ct. 1908.] Indians congressional control introducing liquor on allotted land. 2. Congress could enact so much of the act of January 30, 1897, as makes criminal the introduction of intoxicating liquor upon an allotment within the limits of the Yakima Indian Reservation, in the state of Washington, made and patented to the Indian allottee under the act of February 8, 1887 (24 Stat. at L. 388, chap. 119), by which the title is held in trust by the government, and is not alienable by the allottee without the consent of the United States, since, under the provisions with respect to NOTE. On the right of a state to appeal in a criminal case-see note to People ex rel. Hodson v. Miner, 19 L.R.A. 342. As to the right of the Federal government to a review in criminal cases-see note to United States v. Stevenson, ante, 153. [For other cases, see Indiaus, 54-61, in Di gest Sup. Ct. 1908.] Statement by Mr. Justice Brewer: The defendants were indicted in the district court of the United States for the eastern district of Washington for introducing liquor into the Indian country, as thus stated in the indictment: "To wit, into and upon a certain Indian allotment No. 670, within the limits of the boundary of the Yakima Indian Reservation, in the eastern district of Washington, which said allotment had theretofore been allotted to a certain Indian, a member of the Yakima tribe of Indians, named George Wesslike, under and by virtue of the provision of the act of Congress of February 8, 1887, entitled, An Act to Provide for the Allotment of Lands in Severalty to Indians on the Various Reservations, and to Extend the Protection of the Laws of the United States and the Territories over the Indians, and for Other Purposes' (24 Stat. at L. 388, chap. 119), said allotment being then and now one held in trust by the government for said allottee, and being inalienable by the said allottee without the consent of the United States." A demurrer was filed, and on that demurrer the following facts were agreed to: "1. That the Yakima Indian Reservation, in the eastern district of Washington, is inhabited by the Yakima and other Indians, under the general charge and control of an Indian agent and superintendent of the United States. "2. That prior to September 3, 1908, a very large number of allotments of land within said reservation had been made to Indians entitled thereto, which said allotments had been made and allotted under and by virtue of the provision of the act of Congress of February 8, 1887, known as the general allotment act. "3. That allotment No. 670, described in The demurrer was sustained, and thereupon the government brought the case here on writ of error under the act of March 2, 1907 (34 Stat. at L. 1246, chap. 2564, U. S. Comp. Stat. Supp. 1909, p. 220). the indictment, is a part of and within the | [10 Stat. at L. 1044], so far as the same 293] boundaries of the Yakima Indian *Res- may be applicable." ervation, and the same had been made and allotted, and the usual trust patent thereto issued to the allottee named in the indictment under the provision of the act of February 8, 1887, prior to September, 1908. "4. That the trust limitation has not yet expired, and the title to said allotment is still being held in trust by the government; that the title to said allotment is not alien able by the allottee without the consent of the United States. “5. That on or about September 3, 1908, the defendants did go on and upon said allotment described in the indictment, taking and carrying with them certain ardent spirits and intoxicating liquor, to wit, al cohol, in a demijohn and flasks." The indictment was founded on the act of January 30, 1897 (29 Stat. at L. 506, chap. 109), which provides: "That any person who shall introduce or attempt to introduce any malt, spirituous, or vinous liquor, including beer, ale, and wine, or any ardent or intoxicating liquor of any kind whatsoever into the Indian country, which term shall include any Indian allotment while the title to the same shall be held in trust by the government, or while the same shall remain inalienable by the allottee without the consent of the United States, shall be punished by imprisonment for not less than sixty days, and by a fine of not less than one hundred dollars for the first offense, and not less than two hundred dollars for each offense thereafter." The Yakima Reservation was established under the treaty of June 9, 1855 (12 Stat. at L. 951), which, in article 2, provides: "All which tract shall be set apart, and, so far as necessary, surveyed and marked out, for the exclusive use and benefit of said confederated tribes and bands of Indians, as an Indian reservation; nor shall any white man, excepting those in the employment of the Indian Department, be permitted to reside upon the said reservation without permission of the tribe and the superintendent and agent. * 294] *"Article VI. The President may, from time to time, at his discretion, cause the whole or such portions of such reservation as he may think proper to be surveyed into lots, and assign the same to such individuals or families of the said confederated tribes and bands of Indians as are will ing to avail themselves of the privilege, and will locate on the same as a permanent home, on the same terms and subject to the same regulations as are provided in the sixth article of the treaty with the Omahas Assistant Attorney General Harr submitted the cause for plaintiff in error: The question as to the power of Congress to forbid the introduction of liquor upon an Indian allotment within the general jurisdiction of a state is concluded, adversely to the ruling of the district court, by the decision of this court in Couture v. United States, 207 U. S. 581, 52 L. ed. 350, 28 Sup. Ct. Rep. 259. In line with the ruling of the court in the Couture Case are its decisions with respect to the jurisdiction of Congress over the public lands within the states. Gibson v. Chouteau, 13 Wall. 92, 99, 20 L. ed. 534, 536; Jourdan v. Barrett, 4 How. 169, 185, 11 L. ed. 924, 931; Camfield v. United States, 167 U. S. 518, 525, 42 L. ed. 260, 262, 17 Sup. Ct. Rep. 864. The government of the United States may, by means of physical force, exercised through its official agents, execute on every foot of American soil the powers and functions that belong to it. Ex parte Siebold, 100 U. S. 371, 395, 25 L. ed. 717, 725; Re Neagle, 135 U. S. 1, 34 L. ed. 55, 10 Sup. Ct. Rep. 658; Re Debs, 158 U. S. 564, 39 L. ed. 1092, 15 Sup. Ct. Rep. 900. In Ohio v. Thomas, 173 U. S. 276, 43 L. ed. 699, 19 Sup. Ct. Rep. 453, it was held that the state could not, in the exercise of its police powers, interfere with the administration of a national soldiers' home within its limits and general jurisdiction. The matter of motive cannot be inquired into by the courts when Congress is acting in the exercise of its constitutional powers. McCray v. United States, 195 U. S. 27, 49 L. ed. 78, 24 Sup. Ct. Rep. 769, 1 A. & E. Ann. Cas. 561. The power here contended for is illustrated by the recognized authority of Congress to regulate the use of the mails in such a manner as to protect the people against fraud and other injuries. S. 497, 48 L. ed. 1092, 24 Sup. Ct. Rep. 789. Public Clearing House v. Coyne, 194 U. The adequate protection of Indians who have received allotments, as well as of those unallotted, against the deleterious influence of intoxicants, requires that the government also prohibit the introduction of liquor upon the allotted lands within the reservation. No appearance for defendants in error. Mr. Justice Brewer delivered the opinion of the court: The question whether the indictment charges any offense against the laws of the United States involves the validity of the act of January 30, 1897, as applied to the facts stated, and therefore the case is one properly before us under the act providing for writs of error in certain instances in criminal cases. 34 Stat. at L. 1246, chap. 2564, U. S. Comp. Stat. Supp. 1909, p. 220; United States v. Keitel, 211 U. S. 370, 397, 53 L. ed. 230, 244, 29 Sup. Ct. Rep. 123. We have recently considered, in United States v. Celestine, 215 U. S. 278, ante, 93, United States v. Mullin, 71 Fed. 682;|ington (25 Stat. at L. 677, chap. 180), the Rainbow v. Young, 88 C. C. A. 653, 161 Fed. people of that state disclaimed all right and 835; United States v. Logan, 105 Fed. 240: title "to all lands lying within said limits Re Lincoln, 129 Fed. 247; Dick v. United owned or held by any Indian or Indian States, 208 U. S. 340, 52 L. ed. 520, 28 tribes; and that, until the title thereto shail Sup. Ct. Rep. 399. have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States." Construing this, in connection with other provisions of the enabling act, it was held in Draper v. United States, supra, that it did not deprive the state of jurisdiction over crimes committed within a reservation by others than Indians or against Indians, following, in this, United "jurisdiction and control" over Indian lands States v. McBratney, supra. But, in terms, remain in the United States; and there being nothing in the section with [296 drawing any other jurisdiction than that named in Draper v. United States 30 Sup. Ct. Rep. 93, the question of the undoubtedly Congress has the right to forbid the introduction of liquor, and jurisdiction of the United States over of to provide punishment for any violafenses committed within the limits of a tion thereof. Couture v. United States, reservation, as also the effect of allotments 207 U. S. 581, 52 L. ed. 350, 28 Sup. Ct. Rep. therein upon its continued existence, and 259. It is true that only a per curiam opinfurther discussion of those matters is union was filed in that case, and the judgnecessary. The limits of the Yakima Reservation were not changed by virtue of ment was affirmed on the authority of Unitthe allotments that are referred to in the ed States v. Rickert, 188 U. S. 432, 47 L. ed. 295] stipulation *of facts. The lands allot-532, 23 Sup. Ct. Rep. 478; McKay v. Kalyted were subject to restrictions against alien-ton, 204 U. S. 458, 51 L. ed. 566, 27 Sup. Ct. ation, and the title which was conferred by the allotments was subject to defeasance. Sixth section treaty with the Omahas, 10 Stat. at L. 1043-1045; United States v. Celestine. The offense charged was not one committed by a white man upon a white man (United States v. McBratney, 104 U. S. 621, 26 L. ed. 869; Draper v. United States, 164 U. S. 240, 41 L. ed. 419, 17 Sup. Ct. Rep. 107), or by an Indian upon an Indian (United States v. Celestine), but it was the introduction of liquor into an Indian reservation. In this offense neither race nor color is significant. The Indians, as wards of the government, are the beneficiaries, but for their protection the prohibition is against all, white man and Indian alike. Legislation of this nature has been for a long time in force. Fourth sec., chap. 174, Laws 1832, 4 Stat. at L. 564; § 2139, Rev. Stat. If the Yakima Reservation were within the limits of a territory, there would be no question of the validity of the statute under which this indictment was found; but the contention is that the offense charged is of a police nature, and that the full police power is lodged in the state, and by it alone can such offenses be punished.. By the second paragraph of § 4 of the enabling act with respect to the state of Wash shows that its facts are similar to those in Rep. 346, but an examination of the record the present case. See also an opinion by Shiras, District Judge, in United States v. Mullin, 71 Fed. 682, and one by Circuit Judge Van Devanter, speaking for the circuit court of appeals for the eighth circuit, in Rainbow v. Young, 88 C. C. A. 653, 161 Fed. 835. Without pursuing the discussion further, we are of opinion that the District Court erred in its ruling, and the judgment is reversed. BOARD OF COUNTY COMMISSIONERS V. TERRITORY OF NEW MEXICO EX REL. BOARD OF COUNTY COMMISSIONERS V. TERRITORY OF NEW MEXICO EX REL. - (See S. C. Reporter's ed. 296-307.) Mandamus to enforce judgment defenses - res judicata. 1. Any uncertainty or indefiniteness in an act of Congress purporting to validate of the territory of Santa Fe county, New bonds issued by Santa Fe county, New Mexico, are not necessary parties to proMexico, cannot be urged to defeat mandamus ceedings by mandamus to compel the levy to compel the levy of a tax to pay judg- of a tax to satisfy judgments on bonds ments upon such bonds, since whatever de- issued by the latter county, where, under fense could have been set up to prevent the N. M. Laws 1903, chap. 20, as construed by rendition of such judgments is not after the territorial supreme court, the county wards available to prevent their enforce- of Santa Fe can compel contribution from ment. the other counties which have received a portion of its territory, in proportion to the amount of taxable property received. [For other cases, see Mandamus, II. b, 2, in Digest Sup. Ct. 1908.] Mandamus [For other cases, see Mandamus, III. f: Judg. ment, 528-535, in Digest Sup. Ct. 1908.] Mandamus - necessity for hearing. 2. A peremptory writ of mandamus may, by the express provisions of N. M. Comp. Laws 1897, § 2764, issue without hearing when the right to require the performance of the act is clear, and it is apparent that no valid excuse can be given for not performing it. Mandamus, III., in [For other cases, see Mandamus-to enforce judgment on 4. Mandamus to compel the board of county commissioners of Santa Fe county, New Mexico, to levy a tax to satisfy judg ments on county bonds, will not be denied because portions of that county have since been annexed to two adjoining counties, where the territorial supreme court has construed N. M. Laws 1903, chap. 20, as authorizing Santa Fe county to compel contribution from the two other counties which have received a portion of its territory, in proportion to the amount of taxable property received. [For other cases, see Mandamus, 165-200, 237-243, in Digest Sup. Ct. 1908.] Appeal from territorial supreme court-error in construing statute. 5. The construction placed by a territorial supreme court upon a local statute will not be disturbed by the Federal Supreme Court on appeal, unless manifestly erroneous. [For other cases, see Appeal and Error, 4994, 4995; Courts, VII. e, in Digest Sup. Ct. 1908.] Mandamus parties. 6. Counties which have received a portion NOTE. On the right to go behind a judg. ment against county or municipality in mandamus proceedings to enforce the judgment -see note to Brunson v. Caskie, 9 L.R.A. (N.S.) 1002. On mandamus to levy tax to enforce municipal obligation-see notes to Holt County v. National L. Ins. Co. 25 C. C. A. 475, and Davenport v. United States, 19 L. ed. U. S. 704. On review by Federal Supreme Court of territorial decisions-see note to Miners' Bank v. Iowa, 13 L. ed. U. S. 807. to enforce judgment on sufficiency of tax county bonds to pay the judgments on county bonds, so as to defeat the right to mandamus to compel the levy of an additional tax for that purpose, where the original levy was with the purpose only, and was sufficient only, to pay the then amount of the judgments with accrued interest, and no provision was made for the interest to accrue, which amounted to a large sum when the mandamus issued. [For other cases, see Mandamus, 165-200, 237-243, in Digest Sup. Ct. 1908.] Mandamus 7. A tax levy cannot be deemed sufficient to enforce judgment on county bonds-tax rate. 8. The tax levy ordered by mandamus to satisfy the accrued interest, amounting to more than $30,000, on judgments on county bonds, cannot be said to be excessive when, upon the presumed assessed valuation of the property in the county, it would produce, if collected in full, an excess of little more than $100, and where, since the writ issued, additional interest to the amount of $10,000 has accrued. [For other cases, see Mandamus, 165-200, in Digest Sup. Ct. 1908.] 9. Power to modify, on appeal, a judgment of a district court in mandamus, is included in the grant to the New Mexico supreme court by N. M. Comp. Laws 1897, § 897, of the authority to render such other judgment as may be right and just and in accordance with law in cases which may have been tried by the equity side of the court, or which may have been tried by a jury on the common-law side of the court, or in which a jury may have been waived and the case tried by the court or judge. [For other cases, see Appeal and Error, IX. d, in Digest Sup. Ct. 1908.] As to state decisions as rules of decision in Federal courts-see notes to Wilson v. Perrin, 11 C. C. A. 71; Hill v. Hite, 29 C. C. A. 553; Griffin v. Overman Wheel Co. 9 C. C. A. 548; Elmendorf v. Taylor, 6 L. ed. U. S. 290; Jackson ex dem. St. John v. Chew, 6 L. ed. U. S. 583; United States ex rel. Butz v. Muscatine, 19 L. ed. U. S. 490; Clark v. Graham, 5 L. ed. U. S. 334; Forepaugh v. Delaware, L. & W. R. Co. 5 L.R.A. 508; and Mitchell v. Burlington, 18 L. ed. U. S. 351. Federal courts decisions following territorial | insufficient where the pleader is presumed to have knowledge of the fact. - local practice. 10. The question of the power of a territorial supreme court, under its local stat: utes and procedure, to render a modified judgment on appeal in mandamus, will or dinarily not be reviewed by the Federal Supreme Court. [For other cases, see Courts, VII. e, in Digest Sup. Ct. 1908.] [Nos. 42, 43.] Submitted November 29, 1909. Decided December 20, 1909. A PPEALS from the Supreme Court of the Territory of New Mexico to review judgments modifying, and affirming as modified, judgments of the District Court of Santa Fe county, in that territory, compelling the levy of a tax to satisfy judgments recovered on bonds issued by that county. Affirmed. See same case below (N. M.) 89 Pac. 252. The facts are stated in the opinion. Mr. A. B. Renehan submitted the cause for appellants: There should have been demand before suit. Spelling, Inj. & Extr. Rem. §§ 1381, 1447; State ex rel. White v. Goodfellow, 1 Mo. App. 495. The action should have been directed against the treasurer, and not against the county board. Bass v. Taft, 137 U. S. 458, 34 L. ed. 752, 11 Sup. Ct. Rep. 154; Ex parte Rowland, 104 U. S. 615, 26 L. ed. 865. Where the facts are disputed, a peremptory writ cannot issue in the first instance. 13 Enc. Pl. & Pr. p. 772. The relator's right to an immediate peremptory writ must be clear before it will issue, and it must appear that the respondent has no valid excuse for not performing the act sought to be compelled. 13 Enc. Pl. & Pr. pp. 773-775. If an issue of fact is probable, an alternative, not a peremptory, writ should issue. 13 Enc. Pl. & Pr. p. 775, note 3. There is no statute in this territory providing for jury trials in mandamus proceedings. The common-law procedure gov erns. State ex rel. Columbia County v. Suwan nee County, 21 Fla. 19; Castle v. Lawlor, 47 Conn. 340. Jones v. Pearl Min. Co. 20 Colo. 423, 38 Pac. 700; Nichols & S. Co. v. Hubert, 150 Mo. 620, 51 S. W. 1031. The rule of res judicata is not pertinent. Atchison, T. & S. F. R. Co. v. Territory, 11 N. W. 669, 72 Pac. 14; United States v. County Ct. 99 U. S. 591, 25 L. ed. 333: Taxing Dist. v. Loague, 129 U. S. 502, 32 L. ed. 780, 9 Sup. Ct. Rep. 327. Mr. Charles A. Spiess submitted the cause for appellees: Mandamus is the proper remedy of a judgment creditor to collect a judgment against a county or municipal corporation. Mobile v. Watson, 116 U. S. 289, 29 L. ed. 620, 6 Sup. Ct. Rep. 398; East St. Louis v. Amy, 120 U. S. 600, 30 L. ed. 798, 7 Sup. Ct. Rep. 739. Mandamus to enforce the payment of a county or municipal judgment is not a new suit, but becomes a substitute for the ordinary process of execution. Washington County v. Durant (Washington County v. United States) 9 Wall. 415, 19 L. ed. 732. If the board of county commissioners had any valid defense which could have been asserted against the bonds or coupons, such defense could not be of avail in this proceeding. The judgments are res judicata as to such defense, and cannot be impeached in this collateral manner. Rock Island County v. United States, 4 Wall. 435, 18 L. ed. 419. Mr. Justice McKenna delivered the opinion of the court: These appeals are prosecuted to review judgments of the supreme court of New Mexico, modifying, and affirming as modified, judgments of mandamus of the district court of Santa Fe county, commanding the appellants to levy a tax of 10 mills in each case on each dollar of taxable property in the county, to pay certain judgments for the amount of principal and interest upon bonds issued by the county. The cases are here on separate records, but, as they are submitted together, we dispose of them, as the supreme court of the territory did, in one opinion. The proceedings were commenced by petitions, which are alike, except as to the amount of the judgment recovered. In No. 42 it is alleged to be $60,926.02; in No. 43 it is alleged to be $74,358.19. Both judg The remedy given by the statute, § 343, ments were recovered in the district court Compiled Laws of 1897, is exclusive. Fourth Nat. Bank v. Francklyn, 120 U. S. 751, 30 L. ed. 825, 7 Sup. Ct. Rep. 757; 7 Enc. Pl. & Pr. pp. 372, 373, notes 1, 2. Pleading upon information and belief is of the county in which the petitioners (appellees here) were complainants and the board of county commissioners were defendants. It is alleged that the judgments ordered the sums due as above stated, and |