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Dissenting Opinion: Shiras, J.

The opinion of the court disposes of the cases hereinbefore cited by the observation that they arose upon instruments which dispossessed the corporations of all their property and of all capacity to perform their publio duties, and that such is not the case bere.

But the reason why the contracts in those cases were held void was not because they embraced all the property of corporations, but because the companies sought to part with the possession and control of their property without legislative authority for doing so. Can that be a sound view which, wbile admitting that the Union Pacific Railway Company is forbidden to lease the possession and control of its road to another company without authority expressly given, yet would hold that that company may, without such authority, part with the possession and control of one half or of any appreciable part of its road? Can it be maintained that, wbile the Union Pacific Railway Company cannot lease its railroad from Council Bluffs to Ogden, it may contract with the Rock Island Railway Company to give it joint and equal possession and management of its road between those points? And, in point of principle, if such a contract would be void if embracing the road between Council Bluffs and Ogden, how could it be declared valid if embracing the road between Council Bluffs and South Omaba?

The views of the majority seem to me to overlook the essential question, and that is, the power of the Union Pacific Railway Company to part with its road and franchises, tem. porarily or forever, in whole or in part. A contract by that company to share its road and those powers, called franchises, which are necessary to operate it, is just as much forbidden by the principle of the cases as a contract to lease its road as an entirety. The objection to an irrevocable contract for 999 years that the Union Pacific Railway Company may hereafter need to use its tracks and franchises in their entirety, is not satisfactorily met by the suggestion that, in such event, the courts can, in some way, relieve the company from the contract. It is not easy to see how an engagement now held valid can be hereafter dispensed witb.

The Union Pacific Railway does not hold and exercise tho

VOL. CLXII-89

Dissenting Opinion: Shiras, J.

powers conferred on it by Congress, subject to the control and approval of the courts. Nor is it competent for the courts to enforce or relax, at their will and according to their riers of expediency, the obligations of contracts into which the railway company may have entered.

Other provisions of these contracts which seek to subject the Omaba and Republican Valley Railway Company and the Salina and Southwestern Railway Company to the use of the Rock Island and St. Paul companies, and which render the Union Pacific Railway Company liable as lessee of railroads owned by the Rock Island Company, are, in my judgment, equally without authority of law. But it is scarcely worth while to consider them minutely. As this is a proceeding to enforce specific performance of the entire contract, invalidity of any important part of the contract, but for which it would not have been entered into at all, is enough to defeat the bill.

It is scarcely necessary to say that if these contracts were void for the reasons given, no action taken under them would justify a court of equity in enforcing them. As was said in Thomas v. Railroad Co., above cited : "In the case of a contract forbidden by public policy and beyond the powers of the defendant corporation, it was its legal duty--& duty both to the stockholders and the public — to rescind and abandon the contract at the earliest moment, and the performance of that duty, though delayed for several years, was a rightful act when done, and could give the other party no right of action, and that to hold otherwise would be to hold that any act performed in executing a roid contract makes all its parts valid, and that the more that is done under a contract forbidden by law, the stronger is the claim to its enforcement by the courts."

“A contract ultra vires being unlawful and void, not because it is in itself immoral, but because the corporation, by the law of its creation, is incapable of making it, the courts, while refusing to maintain any action upon the unlawful contract, have always striven to do justice between the parties, as far as could be done consistently with adherence to law, by

Names of Counsel.

permitting property or money, parted with on the faith of the unlawful contract, to be recovered back or compensation to be made for it. In such case, however, the action is not maintained upon the unlawful contract, nor according to its terms, but on an implied contract of the defendant to return, or, failing to do that, to make compensation for, money or property which it has no right to retain. To maintain such an action is not to afirm, but to disafirm, the unlawful contract."

I think that the judgment of the Circuit Court of Appeals should be reversed and the cause remanded to the Circuit Court with directions to set aside its decree and dismiss the bill.

MR. JUSTICE GRAY likewise dissented.

UNION PACIFIC RAILWAY COMPANY V. CHICAGO, ROOK ISLAND AYD PACIFIC RAILWAY COMPANY. UNION PACIFIC RAILWAY COMPANY V. CHICAGO, MILWAUKEE AND ST. PAUL RAILWAY ComPANY. Nos. 41, 42. Argued April 21, 22, 1896. Decided May 25, 1896.

THE CHIEF JUSTICE: These appeals were from the Circuit Court and the cases have just been disposed of on appeals from the Circuit Court of Appeals.

Appeals dismissed.

Mfr. John F. Dillon and Mr. John M. Thurston for appellants.

Mr. J. M. Woolworth for Chicago, Rock Island and Pacific Rail

way Co.

Mr. George R. Peck for Chicago, Milwaukee and St. Paul Railway Co.

Statement of the Case.

LUCAS v. UNITED STATES.

ERROR TO THE CIRCUIT COCRT OF THE UNITED STATES FOR THE

WESTERN DISTRICT OF ARKANSAS.

No. 692. Submitted Sovember 19, 1995. – Decided May 25, 1896.

On the trial of a Choctaw Indian for the murder of a negro at the Choctavy

Nation, in the Indian country, the status of the deceased is a question of fact, to be determined by the evidence, and the burden of proof is on the

Government to sustain the jurisdiction of the court by eridence. Statements alleged to have been made by the negro in his life time that he

did not belong to the Indian country are not admissible for that purpose.

DEFENDANT was indicted in the Circuit Court of the United States for the Western District of Arkansas, February 15, 1895, for the murder, at the Choctaw Nation, in the Indian country, of one Levy Kemp, who was alleged in the indictment to have been "a negro and not an Indian.” Having been tried and convicted, he was sentenced to death. He then sued out a writ of error from this court.

It was proven at the trial that defendant was a Choctaw Indian, and that Kemp was by blood a negro. The crime was alleged to have been committed in the fall of 1894.

The Indian tribes residing within the territorial limits of the United States are subject to their authority, and where the country occupied by them is not within the limits of any one of the States, Congress may, by law, punish any offence there committed. See In re Mayfield, 141 U. S. 106, 112, and cases there cited. By section 8 of article VIII of the treaty between the Choctaw and Chickasaw Indians, concluded April 28, 1866, 14 Stat. 769, 773, it was agreed by those Indians that a court or courts might be established in the Indian Territory with such jurisdiction and organization as Congress might prescribe, provided that the same should not interfere with the local judiciary of said nations.

The jurisdiction of the Circuit Court of the United States for the Western District of Arkansas was made to extend, by section 533, Revised Statutes, to "the country lying west of Missouri and Arkansas, known as the 'Indian Territory.""

Statement of the Case.

Subsequently, by the act of Congress of January 6, 1883, 22 Stat. 400, c. 13, & 2, and the act of March 1, 1889, 25 Stat. 783, 786, c. 333, $ 17, certain parts of the Territory were annexed, respectively, to the District of Kansas and the Eastern District of Texas, leaving that part of the Territory which includes the portion of the Choctaw Nation in which this case arose, to remain within the Western District of Arkansas.

Section 2145, Rer. Stat., provides that, except as regards certain crimes, “the general laws of the United States as to the punishment of crimes committed within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country;" and by section 2146, Rev. Stat., it is provided that“the preceding section shall not be construed to extend to crimes committed by one Indian against the person or property of another Indian.”

And by the act of Day 2, 1890, c. 182, 26 Stat. 81, "to provide a temporary gorernment for the Territory of Oklahoma, to enlarge the jurisdiction of the United States court in the Indian Territory, and for other purposes," it is prorided" that the judicial tribunals of the Indian nations shall retain exclusire jurisdiction in all civil and criminal cases arising in the country in which members of the nation by nativity or by adoption shall be the only parties," etc.

By the third article of the above mentioned treaty with the Choctairs and Chickasaws they, in consideration of the sum of $300,000, ceded to the United States certain territory, with the provision that the said sum should be invested and held in trust for the said nations by the United States, at interest, until the legislatures of the Choctaw and Chickasa w nations, respectively, should have made such laws, rules and regulations as might be necessary to give all persons of African descent, resident in the said nations at the date of the treaty of Fort Smith, and their descendants, held in slavery among the said nations previously to the date of the treaty, all the rights, pririleges and immunities, including the right of suffrage, of citizens of said nations, etc. The second article provided that slavery in the said two nations should be at once abolished.

Previously to the year 1879, the Choctaw Nation had mani.

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