Motion — McCoy v. Shaw

Supreme Court of the United States

No. 403.

Jerry R. McCoy, Perrrronsr,

vs.

A. 8. J. Saaw, as Srare Auprror or THE State or OKLa-

HOMA, AND THE Pure On. Company, a Cor-

PORATION, RESPONDENTS.

MOTION TO DISMISS PETITION FOR

WRIT OF CERTIORARI.

Epwin Dasney,

Attorney General of Oklahoma.

V. P. Crown,

Assistant Attorney General of

said State.

Counsellors for Respondent.

Francis & Holden, Brief Printers, 205% North Broadway, Oklahoma City. Maple 6245

INDEX.

Page

Motion to dismiss petition for writ of certiorari____- 1- 2

Statement of case____-.__---_-_-__ 3

Statement of merits... -______ sasha ridin dea teente - 45

No Federal question decided... ~~~ 5)

Non-Federal grounds sustain judgment___________- 6- 7

Writ not granted if non-Federal grounds sustain

POagment 2... cn cdwawacccnccan sana leusebecsedetcabeet 7-10

Tasire or Cases Crrep,

A. T.& S. F. v. Sowers, 213 U. S. 55, 53 L. ed. 695_____- 8

Black v. Geissler, 58 Okla. 335, 159 Pae. 1124... - | 7

Choate v. Trapp, 224 U. hig 665, 56 L. ed, 9412-2 4

Rustis v. Bolles, 150 U.S. Agr ae Ga Me BEB icewcadwecie 8

Forbes v. Gracey, 94 U PG sivas tat dc sed en itt Se encitate stor 4

Fowler vy. Lamson, 164 A "s 252, 41 L.. ee 8

Gillespie v. Okla., 257 U.S. 501, 66 L. ed. 838___. 4

Going v. Carter Oil C ompany, 2:4 Pee. S82. ........5+. 7

Goudy v. Meath, 203 U.S. 146, 51 L. ed. 1B0... 4

Kelly v. Keys, 62 Atl, O11. eabiee Muctilsdios ee

Kelly v. Ohio Oil et d7 Ohio St. 317, 49 N. B.399_ 4

Leathe v. Thomas, 207 U.S. 93,52 L. ed. 118. -_ wane

Murdoek v. City of amuiia 2) Wall. 590, 87 U.S. 590. 8

Nonomaker v. Amos, 76 N. 6. 049, 4 L. R.A. (CN. S) Y80_ 4

Sauer v. City of New York, 206 U.S. 526, 546-7 _____-- 8

Shelton v. Platte, 89 U.S. 591,35 L. ed. 273.....-. 7

Tennessee vy. Sneed, 96 U.S. 69, 24 TL. ed. 610__ 7

Ward vy. Love County, 253 U.S. 17, 64 L. ed. 751 8 8

Taste or Srarures Crrep.

Act of Congress, May 27, 1808, 35 St. 319_.--________- 3

Act of Congress, June 28, 1898, 30 Statutes 495... - q

Compiled Oklahoma Statutes 1921, Section 9814_____- 3

Compiled Oklahoma Statutes 1921, Section 9971____- 3, 6

Compiled Oklahoma Statutes 1921, Section 9973______ 7

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Supreme Court of the United States

No, 403.

Jerry R. McCoy, Petitioner,

vs.

A. 8. J. Suaw, as Stare AUDITOR or THE Stare oF OKLa-

HOMA, AND THe Pure On. Company, a Cor-

PORATION, RESPONDENTS,

MOTION TO DISMISS PETITION FOR

WRIT OF CERTIORARI.

Comes now A. S. J. Shaw, State Auditor of the State

of Oklahoma, respondent herein, and respectfully prays

that this Honorable Court dismiss the application of peti-

tioner herein for a writ of certiorari to be directed to the

Supreme Court of the State of Oklahoma, and as grounds

therefor shows:

A

That there is no Federal question decided by the Su-

preme Court of the State of Oklahoma in the case.

II.

That the State Court decided the ease against the

petitioner on independent non-Federal grounds broad

enough to sustain such judgment.

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Ill.

That this Court will not review a decision of a State

court where that court decides a case on independent non-

Federal grounds broad enough to sustain such judgment.

Wherefore, respondent prays that the application of

petitioner for writ of certiorari be dismissed and that the

writ be denied, and for such other and further relief in the

premises as this Honorable Court may deem appropriate.

A. S. J. Suaw,

Respondent,

Epwis Dabney,

Attorney General.

V. P. Crowe,

Asst. Atty. General.

Counsellors for Respondent.

a ve

BRIEF AND ARGUMENT IN SUPPORT OF

MOTION TO DISMISS.

STATEMENT OF CASE.

The petitioner Jerry R. McCoy, a Chickasaw Indian of

one-fourth Indian blood, received land patented to him,

situated in Carter County, Oklahoma. A lease was exe-

cuted by him to the Pure Oil Company without the super-

vision of the Department of the Interior, the said land so

leased not being restricted against alienation under Section

1, Act of Congress of May 27, 1908, 35 Statutes 312. Oil

was produced from said land so leased and royalty was

reserved to the said MeCoy, upon which royalty the State

of Oklahoma, by the respondent herein, sought to collect

the tax imposed thereon by Section 9814, Compiled Okla-

homa Statutes 1921. Petitioner sought to enjoin the State

Auditor of the State of Oklahoma from collecting said tax

and the Supreme Court of the State of Oklahoma in the

decision here sought to be reviewed (R. 16-24) held that

the remedy by injunction under the statutes of Oklahoma

was not available to petitioner but that his remedy was an

action at law to recover taxes paid under protest as pro-

vided for in Section 9971, Compiled Oklahoma Statutes

1921.

Petitioner herein seeks to have a writ of certiorari is-

sued to review the decision of the State court denying him

injunctive relief.

PRT AGS 4

as

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STATEMENT OF MERITS.

It is conceded by respondent that by Section 29, Act

of Congress June 28, 1898, 30 Statutes 495, all the lands

allotted to the petitioner were non-taxable by the

State so long as title thereto remains in the original allottee

but not to exceed twenty-one years from date of patent.

The State of Oklahoma is not here seeking to tax the

land so allotted to the petitioner, the right to tax such land

being denied by the case of Choate vy. Trapp, 224 U. S. 665,

56 L. ed. 941. The State here seeks to tax the oil of the

petitioner produced from his land which when severed

from the soil in which it is embedded becomes and is per.

sonal property distinct and separate from the land and,

therefore, not exempt from State taxation.

Forbes vy. Gracy, 94 U. 8. 762.

Kelly y. Ohio Oil Company, 57 Ohio St. 317, 49

N. E. 399, 39 L. R. A. 765.

Nonomaker v. Amos, 76 N. E. 949, 4 L. R. A. (N.

S.) 980.

Kelly v. Keys, 62 Atl. 911.

The property of an Indian, unless exempt from taxa-

tion, is taxable in the same manner as property belonging

to other citizens and the rule for him is the same as other

citizens, that is, no exemption exists by implication but

must be clearly manifest.

Goudy vy. Meath, 203 U. S. 146, 51 L. ed. 130.

The case of Gillespie v. State of Oklahoma, 257 U.S.

onlin

501, 66 L. ed. 338, relied upon by petitioner, denied the

power of the State of Oklahoma to collect an income tax on

oil produced by a lessee of restricted Indian land under a

departmental lease for the reason that such taxation is an

unconstitutional interference with a Federal instrumental-

ity. It cannot apply here for the reason that the petition-

er’s land is unrestricted land and is, therefore, not under

the supervision of the Federal government.

The same distinction may be made as to all decisions

dealing with the taxability of Indian land or the produets

thereof where such land is restricted against alienation

and is, therefore, supervised by the government.

No Federal question was decided by the Supreme Court

of Oklahoma.

The entire opinion of the Supreme Court of Oklahoma

is found in the record, pages 16 to 24, inelusive. The opin-

ion itself discloses that it holds only that petitioner under

the laws of the State of Oklahoma cannot enjoin the collee-

tion of the tax in question but must pay the same under

protest and sue to recover the same, The opinion in the

tase is addrsesed solely to the remedy available to peti-

tioner and nowhere decides or determines any Federal

question. In fact, petitioner admits that the Supreme

Court of Oklahoma based its decision on independent non-

Federal grounds (Petitioner’s brief, page 14).

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Pee hed

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The independent non-Federal grounds upon which the

State Court decided the case are broad enough to sustain the

judgment.

The Supreme Court of Oklahoma held that the peti-

tioner’s sole and exclusive remedy was provided for by

Section 9971, Compiled Oklahoma Statutes 1921, which

is as follows:

‘In all cases where the illegality of the tax is al-

leged to arise by reason of some action from which

the laws provide no appeal, the aggrieved person shall

pay the full amount of the taxes at the time and in the

manner provided by law, and shall give notice to the

officer collecting the taxes showing the grounds of

complaint and that suit will be brought against the

officer for recovery of them. It shall be the duty of

such collecting officer to hold such taxes separate and

apart from all other taxes collected by him, for a

period of thirty days, and if within such time sum-

mons shall be served upon such officer in a suit for

recovery of such taxes, the officer shall further hold

such taxes until the final determination of such suit.

All such suits shall be brought in the court having

jurisdiction thereof, and they shall have precedence

therein; if, upon final determination of any such suit,

the court shall determine that the taxes were illegally

collected, as not being due the State, county or sub

division of the county, the court shall render judg-

ment showing the correct and legal amount of taxes

due sueh person, and shall issue such order in accor:

dance with the court’s findings, and if such order

shows that the taxes so paid are in excess of the legal

and correct amount due, the collecting officer shall pay

to such person the excess and shall take his receipt

therefor.”’

By Section 9973, Compiled Oklahema Statutes 1921.

i

mer SON

the remedy by injunction against an illegal tax is specific-

ally taken away as follows:

“Specra, Tax—Payment to Stare Avprror—Pay-

MENTS Unper Protest. None of the acts herein re-

quired to be done, shall he enjoined by a court of equity,

but any person aggrieved in any matter of collection,

assessment of levy of any tax herein provided for shall

pay the tax at the time and in the manner provided by

law, except as stated in Section 2, Article 2-B, herein,

and at the time of payment shall file a written state-

ment with the State Auditor, under oath, as provided

in Section 10-11, Article 2-B, hereof, fully setting

forth his complaint. The Auditor shall retain the pay-

ment as a special deposit to await the final decision on

said complaint. And thereupon the same right of hear-

ing and review shall be had upon said complaint as

provided for herein in Section 10-11 of Article 2-B

hereof.’’

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TOMEI ASE

Where a remedy is provided for the payment of an

alleged illegal tax under protest with suit to recover the ~

same, such remedy is plain, speedy, adequate and exclu. ©

sive.

Black et al. v. Geissler, 58 Okla. 335, 159 Pae. ©

1124.

Going v. Carter O'l Company, 214 Pae. 922.

Tennessee y. Sneed, 96 U.S. 69, 24 L. ed. 610.

Shelton vy. Platte, 139 U. 8. 591, 35 L. ed. 273.

This Court wil! not review a decision of State court based

on independent non-Federal grounds and broad enough to sus-

tain the judgment.

A review on writ of certiorari is not a matter of right

PEN DINO TELA RD De OER E/T RE an aN Sh 8

but of sound discretion and will be granted only where there

are important reasons therefor, and before the writ may

—

be granted to review the decision of a State court it must

appear that a federal question was actually decided by that

court.

Rules, Supreme Court of the United States,

No. 35, subdivision 5.

Murdock y. City of Memphis, 20 Wall. 590, 87

U.S. 590.

Leathe vy. Thomas, 207 U.S. 98, 52 L. ed. 118.

Eustis vy. Bolles, 150 U. S. 361, 37 L. ed. 1111.

A., T. & S. F. v. Sowers, 213 U.S. 55, 53 L. ed.

695.

Fowler v. Lamson, 164 U. S. 252, 41 L. ed. 424.

Sauer y. City of New York, 206 U.S. 536, 546-7.

Ward y. Love County, 253 U. S. 17, 64 L. ed.

751.

The case of Ward vy, Love County, supra, is much re-

lied upon by petitioner. In that case the petitioner was

an Indian who had sued to recover taxes alleged by him to

be illegal. The Supreme Court of the State of Oklahoma

had held that the taxes were voluntarily paid and hence

could not be recovered. In reviewing the decision of the

State court in that case, this Court found from the facts

that the taxes were not in fact paid voluntarily but were

paid involuntarily through the protest which the Indians

were making in the State of Oklahoma in numerous suits

denying the right of the State to tax their land.

The effect of that decision, therefore, is that the

grounds upon which the State court decided the question

were not sufficiently broad to sustain the judgment, and

that the facts showed that the tax statute of Oklahoma re-

a on

quiring taxes to be paid under protest and suit instituted

to recover the same was in fact being followed by the peti-

tioner. In the opinion the court said:

‘*“We accept so much of the Supreme Court’s deci-

sion as held that if the payment was voluntary, the

moneys could not be recovered back in the absence of

a permissive statute, and that there was no statute.

But we are unable to accept its decision in other re-

spects.”’

Further in the decision, this court said:

‘It, therefore, is within our province to inquire not

only whether the right was denied in express terms,

but also whether it was denied in substance and effect

as by putting forward non-Federal grounds of deci-

sion that were without any fair or substantial support

(citing eases). With this disqualification it is true

that a judgment of a State court, which is put on in-

dependent non-Federal grounds broad enough to sus-

tain it, cannot be reviewed by us.”’

The position of the petitioner in this ease differs from

his position in the Ward case in that here he ignores the

statutory requirements of the State of Oklahoma for test-

ing the legality of a tax and seeks to tie up the revenues

of the State of Oklahoma by a writ of injunction. This

Court, in the Ward case, did not decide that the remedy

SOTO EN LURE ART SENAY MS Oy Pe AEROS Fey AE ee

provided by paying taxes under protest and suing to re-

Drea

cover them was inadequate but merely held from the facts

in the case that the Indians there followed the tax statute

of the State of Oklahoma by paying their taxes involuntar-

ily.

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The decision of the State court, which is here sought

to be reviewed, is based solely upon the construction given

to the statutes of the State of Oklahoma and relates only

to the remedy which the petitioner has under the laws of

the State of Oklahoma. Had petitioner invoked such rem-

edy he might readily have had the merits of his case de-

cided by the Supreme Court of the State of Oklahoma on

the Federal questions raised in the record.

Since the independent non-Federal grounds upon

which the decision of the State eourt is based are broad

enough to support the judgment, we respectfully urge that

petitioner’s application for a writ of certiorari be dis-

missed and the writ denied.

Respectfully submitted,

Epwin DaBNeY,

Attorney General of Oklahoma.

V. P. Crows,

Assistant Attorney General of

said State.

Counsellors for Respondent.