Kelly v. Churchill ( 1902 )

Clayton, J.

The complaint, in short, alleges that the. plaintiff was engaged in the hay business at Vinita, Cherokee Nation; that he procured, by purchase, grass, and made it into hay from lands held by Cherokee citizens, not in excess of their prospective allotments; that he had loaded a quanity of hay, so procured on certain cars of the Missouri, Kansas & Texas Railway Company, to be shipped to the market, and to certain customers with whom he had contracts of sale for said hay; and that he had other contracts for hay to be thereafter shipped. He states, in substance, that there was no tax or royalty due or collectible upon it, either under the laws of the Cherokee Nation or of the United States. He further states that the defendants have conspired together to prevent him from shipping any hay from the Cherokee Nation unless he pays’to them 20 cents per ton, which they claim as a tax or royalty due upon it, and that they have seized and now hold one car load, and threaten to seize all he may attempt to hereafter ship, and that the railway .company, by virtue of this conduct and these threats upon the part of the defendants, refuses to haul his product to the markets; and that the defendants are insolvent; and all this is admitted by the demurrer to be true. Wé presume that the court, in sustaining the demurrer, took into consideration certain Cherokee statutes relating to. taxes or royalties on hay; but they had not been pleaded, and the court could not judicial^ know what the Cherokee law was. Wilson vs Owens, 30 C. C. A. 257, 86 Fed. 571. There is no law of the United States, or treaty stipulation, imposing any tax or royalty on hay in the Cherokee Nation, and therefore the complaint stated a good cause of action, and the demurrer should have been overruled.

Reversed, with directions to the court below to overrule the demurrer to the complaint, and to proceed with the ease in accordance with law.