United States v. United Eng'g & Contracting Co., 234 U.S. 236 (1914)
Case details
Bluebook Citation
United States v. United Eng'g & Contracting Co., 234 U.S. 236 (1914)
Full caption
UNITED STATES v. UNITED ENGINEERING AND CONTRACTING COMPANY.
Country
United States
Jurisdiction
Federal
Court
Supreme Court of the United States
Decided
June 8, 1914
UNITED STATES v. UNITED ENGINEERING AND CONTRACTING COMPANY.
APPEAL FROM THE COURT OF CLAIMS.
No. 381. Submitted May 8, 1914.—Decided June 8, 1914.
While reasonable contracts for liquidated damages for delay are not to be regarded as penalties and may be enforced between the parties, Sun Printing Ass’n v. Moore, 183 U. S. 642, one party must not prevent the other party from completing the work in time, and if such is the case, even if the subsequent delay is the fault of the latter, the original contract cannot be insisted upon and the liquidated damages are waived.
Where the original contract for government work provided for liquidated damages for delay beyond a specified date but supplemental contracts contained no fixed rule for the time of completion, the Government is limited in its recovery to the actual damages sustained by reason of the delay for which the contractor was responsible.
It is the English rule, as well as the rule in some of the States, that where both parties are responsible for delays beyond the fixed date, the obligation for liquidated damages is annulled; and, unless there was a provision substituting a new date, the recovery for subsequent delay is limited to the actual loss sustained.
Where the Government has by its own fault prevented performance of the contract and thereby waived the stipulation as to liquidated damages, it cannot insist upon it as a rule of damages because it may be impracticable to prove actual damages.
47 Ct. Cl. 489, affirmed.
The facts, which involve the construction of a contract for Government work and the rights and obligations of p. 237the Government and the contractor thereunder, are stated in the opinion.
Mr. Assistant Attorney General Thompson and Mr. P. M. Ashford for the United States.
Mr. Frederic D. McKenney, Mr. John S. Flannery and Mr. William Hitz for appellee.
Mr . Justi ce Day delivered the opinion of the court.
Suit was brought in the Court of Claims by the United Engineering and Contracting Company to recover of the United States upon a contract, dated the fifteenth of September 1900, for the construction within seven calendar months from the date of the contract, namely by April 15, 1901, of a pumping plant for Dry Dock No. 3 at the New York Navy Yard, the work to be done in accordance with certain plans and specifications annexed to and forming a part of the contract. The claimant recovered a judgment (47 Ct. CL 489), and thé United States brings this appeal.
The principal question in the case involves the correctness of that part of the judgment of the Court of Claims which permitted the claimant to recover $6,000, which the Government had deducted as liquidated damages for 240 days’ delay in the completion of the work, at the rate of $25 per day. To understand this question the terms of the contract and certain facts found by the Court of Claims, upon which the case is to be considered here, must be had in view.
The claimant commenced the construction of the work in accordance with the contract, and after a portion thereof had been done the Navy Department concluded to connect Dry Dock No. 2 with Dry Dock No. 3 and to build a single pumping plant for both docks. To that end on July 21, p. 2381901, a supplemental contract was entered into with the United States, whereby the claimant agreed, for an additional sum, to furnish all the material and labor necessary to carry out the changes in and additions to the plant originally contracted for and to complete the work on or before October 15, 1901, to which date the original contract was extended.
While the work was progressing under the original and supplemental contracts, a controversy arose between the claimant and the civil engineer in charge as to the proper method of designing and constructing the floor of the pump well and as to the correct interpretation of the requirements of the specifications concerning other matters, which resulted in considerable delay and the cessation of work without the fault of the claimant. On January 13, 1903, the chief of the Bureau of Yards and Docks appointed a board to consider changes in the bottom of the pump well and the compensation to be paid therefor, of which the claimant was advised by letter and it was informed that it would be expected to immediately resume work under its contract and push the same to completion with utmost dispatch, otherwise the Bureau would annul the contract and take over the entire work. The claimant thereupon promised to push the work to completion as rapidly as possible, with which promise the Bureau appears to have been satisfied.
On February 15, 1903, after the date fixed for the completion of the work under the original and supplemental contracts, a second supplemental contract was entered into, whereby the claimant agreed to construct three hatches in the roof of the pump well for additional compensation. Nothing was Said in this contract as to the time of completion or as to delays under prior contracts.
The board of officers appointed to consider the design of the floor of the pump well and other matters in controversy reported February 16, 1903, that there were, as p. 239conceded by the Bureau, errors in the design of the pump well floor; that the work done and materials furnished by the claimant complied with the specifications, and that it was not chargeable with improper work or procedure, and the board estimated the increased compensation for the new work and made certain allowances to the claimant. On March 7, 1903, a third supplemental contract was entered into, which embodied the changes found necessary in the original plan for the construction of the floor of the pump well and the increased compensation to claimant therefor. Nothing was said in this contract as to the date of the completion of the work theretofore contracted for, nor as to prior delays.
The claimant proceeded under the contracts with reasonable dispatch and without delay on its part until May 1, 1903, when the work was ready for the installation of the machinery. Up to this date the claimant was delayed by the Government in making changes and alterations in the work and in the use of the docks for docking vessels while the work was going forward. No delays were chargeable to the claimant up to October 15, 1901, the time fixed for the completion of the work, nor thereafter to May 1, 1903. During this period, due to the delays of the Government, the claimant incurred additional expenses for superintendence and maintenance. During the period from May 1, 1903, to April 21, 1904, the work was delayed by the claimant’s subcontractors in not getting the pump castings in place, for which the Government was not responsible. The claimant was also delayed for a few days during said period by the Government while using the docks for docking vessels.
At the request of the Bureau a civil engineer made a review of the matter of delays and in February, 1905, reported that, notwithstanding the increased work required by the supplemental agreements and the restrictions placed upon the work, the claimant was up to time p. 240on its contracts to May 1, 1903, but that subsequent to that date and up to April 21, 1904, it had taken seven calendar months more time than was necessary. After the plant was completed a board was appointed to pass upon it, which recommended certain deductions from the contract price for failure to strictly comply with the specifications. On March 24, 1905, the civil engineer in charge transmitted to the claimant a supplemental agreement covering the deductions, which agreement contained a reservation that nothing therein and no action taken under it should affect the rights of either party in the matter of delay and the completion of the work or otherwise except as specifically stated, which supplemental agreement claimant refused to execute. In February, 1906, long after the plant had been accepted, the Bureau held the claimant responsible for 240 days’ delay, and deducted as liquidated damages for the delay the sum of $25 per day, or $6,000, from the balance due under the contract, which the claimant accepted under protest, and it subsequently filed with the Bureau a written protest against the deductions for delays and disallowances. The work was completed and accepted finally by the Government on April 5, 1905.
Notwithstanding the delays of the Government, the Court of Claims found that the claimant with reasonable diligence could have completed the plant for tests during the period by about September 21, 1903, and found that if it was chargeable for the delay according to the liquidated damage clause of paragraph 12 of the specifications of $25 per day, the deduction would be $750 less than the Government had deducted. But it found that, if the claimant was only liable for actual damages, and it did so determine, since there was no evidence as to such damages, the claimant was entitled to recover the entire amount deducted.
In the original contract the specifications provided, p. 241paragraph 12, for liquidated damages for delay, as follows:
“ 12. Damages for delay.—In case the work is not completed within the time specified in the contract, or the time allowed by the Chief of the Bureau of Yards and Docks under paragraph 11 of this specification, it is distinctly understood and agreed that deductions at the rate of $25 per day shall be made from the contract price for each and every calendar day after and exclusive of the date within which completion was required up to and including the date of completion and acceptance of the work, said sum being specifically agreed upon as the measure of damage to the United States by reason of delay in the completion of the work; and the contractor shall agree and consent that the contract price, reduced by the aggregate of damages so deducted, shall be accepted in full satisfaction for all work done under the contract.”
Under the provisions । of this paragraph, if there had been nothing subsequently changing the rights of the parties, and the delay had resulted from the failure of the claimant to complete the work within the time specified, the deduction at the rate of $25 per day might have been made by the United States as liquidated damages. This was the sum estimated and agreed upon between the parties as the damages which might be regarded as sustained by the Government in event of the breach of the claimant’s obligation to complete the work within the stipulated time. Such contracts for liquidated damages when reasonable in their character are not to be regarded as penalties and may be enforced between the parties. See Sun Printing & Publishing Ass’n v. Moore, 183 U. S. 642, in which the matter is fully discussed.
The precise question here is whether, when the work was delayed solely because of the Government’s fault beyond the time fixed for its completion and afterwards the work was completed without any definite time being fixed in
VOL. CCXXXIV—16
which it was to be done, the claimant can be charged for the subsequent delays for which he was at fault by the rule of the original contract stipulating liquidated damages, or was that stipulation waived by the conduct of the Government and was it obligatory upon it in order to recover for the subsequent delays to show the actual damages sustained? We think the better rule is that when the contractor has agreed to do a piece of work within a given time and the parties have stipulated a fixed sum as liquidated damages not wholly disproportionate to the loss for each day’s delay, in order to enforce such payment the other party must not prevent the performance of the contract within the stipulated time, and that where such is the case, and thereafter the work is completed, though delayed by the fault of the contractor, the rule of the original contract cannot be insisted upon, and liquidated damages measured thereby are waived. Under the original and first supplemental agreements, the claimant knew definitely that he was required to complete the work by a fixed date. Presumably the claimant had made its arrangements for completion within the time named. Certainly the other contracting party ought not to be permitted to insist upon liquidated damages when it is responsible for the failure to complete by the stipulated date, to do this would permit it to recover damages for delay caused by its own conduct.
It may be that damages were sustained by the failure to carry out the subsequent agreement. But the Government, as well as the claimant, saw fit to go on with the work with no fixed rule for the time of its completion, so that it be reasonable, and the Government required no stipulation in the second and third supplemental contracts as to damages in a fixed and definite sum for failure to complete the work as required. Under such circumstances we think it must be content to recover such damages as it is able to prove were actually suffered.
This conclusion is in accord with the rule of the English cases. In Dodd v. Chwrton, L. R., 1 Q. B. 1897, 562, 568, Chitty, L. J., said:
“The law on the subject is well settled. The case of Holme v. Guppy, (3 M. & W. 387), and the subsequent cases in which that decision has been followed are merely examples of the well known principle stated in Cornyns’ Digest; Condition L (6), that, where performance of a condition has been rendered impossible by the act of the grantee himself, the grantor is exonerated from performance of it. The law on the subject was very neatly put by Byles, J., in Russell v. Bandeira, (13 C. B. (N. S.) 149.). This principle is applicable not to building contracts only, but to all contracts. If a man agrees to do something by a particular day or in default to pay a sum of money as liquidated damages, the other party to the contract must not do anything to prevent him from doing the thing contracted for within the specified time.”
The same rule was followed with approval by the New York Court of Appeals in a well considered case, Mosier Safe Co. v. Maiden Lane S. D. Co., 199 N. Y. 479, in which it was held that, even where both parties are responsible for the delays beyond the fixed time, the obligation for liquidated damages is annulled, and in the absence of a provision substituting another date it cannot be revived, and the recovery for subsequent delays must be for actual loss proved to have been sustained.
This principle is applicable here, the conduct of the Government’s agents had caused the delays up to May 1, 1903, and the subsequent delays though chargeable to the claimant would only give rise to a claim for damages measured by the actual loss sustained. Mosier Safe Co. v. Maiden Lane S. D. Co., supra. We think the application of this rule is hoc changed by the difficulty suggested that it might be impracticable to prove actual damages. This fact, if such it be, would not permit the Government p. 244by its own fault to prevent the performance of the contract and to do that which amounts to a waiver of the stipulation and then insist upon it as a rule of damages. We think the Court of Claims was right upon this principal branch of the case.
There are certain minor assignments of error to the conclusions and judgment of the Court of Claims. The Government was held responsible for the extra cost of enclosing certain machinery in casing necessitated by its building a plank walk across the top of the pipe in the pumping plant to protect its workmen from high speed gearing. The Court of Claims found that this expense was made necessary by the Government and allowed for it. We find no error in this. Also, as to the assignment of error to the judgment of the Court of Claims under Finding XI, awarding damages for repairs made necessary by the breakage of certain pipes caused by sudden increase in the pressure in the salt and fresh water systems in the Navy Yard, the Court of Claims found that these breaks were caused by the Government without notice to the claimant and without its fault. We find no error in the judgment of the Court of Claims awarding damages under this finding.
It follows that the judgment of the Court of Claims is
Affirmed. p. 245234 U. S. Syllabus.
UNITED STATES v. FIRST NATIONAL BANK OF DETROIT, MINNESOTA.
UNITED STATES v. NICHOLS-CHISHOLM LUMBER COMPANY.
UNITED STATES v. NICHOLS-CHISHOLM LUMBER COMPANY.
APPEALS FROM THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT.
Nos. 873, 874, 875. Argued April 7, 1914.—Decided June 8, 1914.
The natural and usual signification of plain terms is to be adopted as the legislative meaning in the absence of clear showing that something else was meant.
The rule that words in treaties with, and statutes affecting, Indians, must be interpreted as the Indians understood them is not applicable where the statute is not in the nature of a contract and does not require the consent of the Indians to make it effectual.
The after facts have but little weight in determining the meaning of legislation and cannot overcome* the meaning of plain words used in a statute; nor can the courts be influenced in administering a law by the fact that its true interpretation may result in harsh consequences. • The responsibility for the justice and wisdom of legislation rests with
Congress and it is the province of the courts to enforce, not to make, the laws.
The policy of the Government in enacting legislation is often an uncertain thing as to which opinions may vary and it affords an unstable ground of statutory construction.
Congress has on several occasions put full blood Indians in one class and all others in another class.
If a given construction was intended by Congress, which it would have been easy to have expressed in apt terms, other terms actually used will not be given a forced interpretation to reach that result.
While the early administration of a statute showing the departmental
construction thereof does not have the same weight which a long observed departmental construction has, it is entitled to consideration as showing the construction placed upon the statute by competent men charged with its enforcement. Courts may not supply words in a statute which Congress has omitted;
nor can such course be induced by any consideration of public policy or the desire to promote justice in dealing with dependent people. The Clapp Amendments of June 21, 1906, 34 Stat. 325, 353, and
March 1, 1907, Id. 1015, 1034, removing restrictions imposed by the act of February 8, 1887, upon alienation of Chippewa allotments as to mixed bloods apply to mixed bloods of all degrees and not only to those of half or more than half white blood. Such was not the congressional intent as expressed in the statute and this court cannot interpret the statute except according to the import of its plain terms. 208 Fed. Rep. 988, affirmed.
These suits were brought by the United States in the Circuit Court of the United States for the District of Minnesota against the appellees to set aside certain conveyances under and through which the appellees claimed title to lands, particularly described, in 'the White Earth Indian Reservation in Minnesota. The decree of the District Court (which had succeeded the Circuit Court) in the first two cases in favor of the Government was reversed by the Circuit Court of Appeals for the Eighth Circuit, while the decree dismissing the bill in the last case was affirmed (208 Fed. Rep. 988).
By the treaty of March 19, 1867, 16 Stat. 719, creating the White Earth Indian Reservation, the Chippewas of the Mississippi ceded all their land in Minnesota, except certain described tracts, to the United States and the Government set apart the White Earth Reservation for their use, and provision was made for the certification to each Indian of not to exceed 160 acres of the land of such reservation in lots of forty acres each, upon the cultivation of ten acres, provided, that the land should be exempt from taxation and sale for debt and should not be alienated p. 247except with the approval of the Secretary of the Interior and then only to a Chippewa Indian. The act of February 8, 1887, c. 119, 24 Stat. 388, provided for the allotment of land in the Indian reservations in severalty to the Indians and that (§ 5) upon the approval of the allotments patents should issue therefor in the name of the allottees, which should be of the legal effect and declare that the United States held the land for twenty-five years, in trust for the sole use and benefit of the Indian to whom the allotment was made, or, in case of his death, of his heirs, according to the laws of the State or Territory where the land was located, and that at the expiration of that time the United States would convey the same to the Indian or his heirs in fee, discharged of the trust and free of all charge or incumbrance whatsoever, provided that the President of the United States might in his discretion extend the period, and provided that any conveyance or contract touching the lands before the expiration of the trust period should be null and void. The Nelson Act of January 14, 1889, c. 24, 25 Stat. 642, provided for the relinquishment to the United States of that part of the reservation remaining after the allotment, subject to the act of February 8, 1887, supra, in severalty, to the Chippewa Indians in Minnesota, the act to become operative only upon the assent of a certain number of Indians being obtained. By the act of February 28, 1891, c. 383, 26 Stat. 794, the allotments were limited to eighty acres to each Indian, but by the Steenerson Act of April 28, 1904, c. 1786, 33 Stat. 539, the maximum allotments of the White Earth Reservation were made 160 acres. The acts of June 21, 1906, c. 3504, 34 Stat. 325, 353, and March 1, 1907, c. 2285, 34 Stat. 1015, 1034, in what is known as the Clapp Amendment, removed the restrictions upon alienation as respects mixed blood Indians, but left the matter, so far as full bloods were concerned, to the Secretary of the Interior.
The Government relied, in the first case, upon its title p. 24824$ OCTOBER TERM, 1913.
to a certain parcel of land as a part of the public domain set apart as the White Earth Reservation, and the fact that, although under the various acts of Congress above mentioned authority was given to segregate certain parcels of land from others in the reservation and to allot them to members of the Band, and O-bah-baum, an Indian woman of that tribe, had been given a trust patent, as provided for by the act of February 8, 1887, supra, and had given a mortgage to the defendant in that case upon such land, she had no right or authority so to do. It prayed that the mortgage be annulled, as being a cloud upon the Government’s title.
The allegations of the complaints in the second and third cases are the same, except that the allottee in the former is named Bay-bah-mah-ge-wabe and in the latter Equay-zaince, and in both cases that there are outstanding warranty deeds and mortgages, that there were intermediate parties not made parties of record, and that an accounting was asked for timber already cut and an injunction from cutting standing timber.
The defendant in the first case, besides denying that the reservation was a part of the public domain and alleging that the property was that of the Indians and that after selection the allottee acquired a fee simple title, notwithstanding the acts of Congress, particularly set up the fact that O-bah-baum is a mixed blood Chippewa Indian, and one of the class referred to in the Clapp Amendment, and therefore emancipated from the pretended supervision of the Government and able to transfer her property as a citizen of the United States. The defendant also alleged that under the facts, the Indians having made affidavit that they were mixed bloods and the good faith of the defendant, the Government should be required to place the defendant in statu quo before the relief asked could be granted. The Lumber Company, defendant in the second case, and the defendants in the third case, filed p. 249answers of similar purport, with the additional averment that under the facts stated the matter relating to the timber was immaterial, but if the court found against defendant’s title they would account for the timber cut by them.
By stipulation or introduction in evidence the following facts were made to appear:
The three Indians here involved are adult Chippewa Indians, residing upon the White Earth Reservation. O-bah-baum has some white blood, derived from a remote ancestor, but not to exceed one-thirty-second; Bay-bah-mah-ge-wabe has one-sixteenth of white blood, and Equay-zaince has one-eighth of white blood.
A question having arisen with reference to the construction of the term “mixed blood” as used in the treaty of September 30, 1854 (10 Stat. 1109), between the United States and the Chippewa Indians of Lake Superior and the Mississippi, the Commissioner of Indian Affairs in a letter to the Indian Agent at Detroit, Michigan, said that “the term ‘mixed-bloods’ has been construed to mean all who are identified as having a mixture of Indian and white blood. The particular proportion of each blood is, therefore, immaterial, where the provision is so broad as that stated in the treaty.”
The Indian Agent at the White Earth Reservation after the passage of the Clapp Amendment came to Washington to consult the Commissioner of Indian Affairs, and was referred by him to the Land Division, and, after discussing the situation with a man represented to be in charge of such matters, it was agreed that the act did not require a showing of any definite quantum of foreign blood to constitute a mixed blood, and to his knowledge this was the construction generally adopted by those who dealt with the Indians on the White Earth Reservation. The Chief of the Land Division at the time of the passage of the Clapp Amendment testified that to his knowledge no p. 250question was raised as to the quantum of foreign blood. In s communication dated October 6, 1910, to the Commissioner of Indian Affairs the Special Assistant to the Attorney General and the Special Indian Agent at Detroit, Minnesota, expressed the belief that the attorneys for the Government were going to contend that the term mixed blood should be interpreted to embrace only those of half or less of Indian blood, and cited a certain act of the United States (of February 6, 1909, c. 80, 35 Stat. 600) in which the term Indian was defined to include the aboriginal races inhabiting Alaska when annexed to the United States and their descendants of the whole or half blood, which act concerned the sale of liquor or firearms to an Indian or half breed. They also cited certain treaties with the Chippewas wherein it was shown that half breeds are persons of less than half blood and not regarded as Indians or members of the Chippewa nation: Article 3 of the treaty of July 29, 1837, 7 Stat. 536; article 4 of the treaty of October 4,1842, 7 Stat. 591; article 4 of the treaty of August 2, 1847, 9 Stat. 904; article 6 of the treaty of February 22,1855,10 Stat. 1165; and article 4 of the treaty of March 19, 1867, 16 Stat. 719, from which it was summarized that in these treaties persons classed as half breeds or mixed bloods or less than half blood were not recognized by the Government or the Chippewas as Indians entitled to the rights and privileges of Chippewa Indians unless by special provisions of treaties, as theretofore shown. The Second Assistant Commissioner in his reply of November 19, 1910, stated that the Office was inclined to give the expressions “full bloods” and “mixed bloods” their ordinary meaning which would be more reasonable than to hold that the term full bloods included those of admitted pure blood and others above the half blood. It was also said in his letter, however, that a conference would be had with the Department of Justice, and further advice given. The Commissioner of Indian Affairs p. 251said that he had never given an official construction to the term mixed blood.
It was stipulated that in administering the Bureau of Indian Affairs under the Clapp Amendment and especially in issuing patents thereunder, the Department had not required any statement as to the quantum of foreign blood, but had issued patents upon the showing that the applicant was a mixed blood. Several instances were shown by the records of allotments having been made to allottees on the White Earth Reservation having but one-sixteenth or one-thirty-second of Indian blood, while other instances were shown where allotment had been denied because applicant was of “doubtful blood.”
A white man who had resided for a long time among the Chippewa Indians stated that in the early period the terms mixed blodd and half breed were synonymous, applying to one of mixed white and Indian blood, irrespective of the percentage, and that later the term mixed blood was more commonly used, while the term half breed was applied to one having nearly equal parts of white and Indian blood. The general impression of business men in and about the White Earth Reservation was that any Indian who had white blood in his veins was a mixed blood.
Several very elderly Indians testified, however, that the Indians regarded the term mixed blood as applying to those having practically half white and half Indian blood.
The District Court, after stating that the question was one of first impression, said that Congress intended competency to be the test and came to the conclusion that an Indian having an admixture of one-eighth white blood might come within the term, but that beyond that the white blood would not affect the capacity of the Indian to manage his own affairs, and therefore dismissed the bill in the third case and entered a decree in favor of the complainants in the other two cases. The Circuit Court of Appeals reached the conclusion that every Chippewa p. 252$52 ÒÓTÒBER TERM, 1913.
Argument for the United States. 234 U. 8.
Indian having an identifiable mixture of other than Indian blood, however small, is a mixed blood Indian and all others are full blood Indians within the meaning of the Clapp Amendment, and accordingly reversed the decree of the District Court in the first two cases and affirmed the decree in the third case.
The Solicitor General, with whom Mr. C. 0. Daniels and Mr. W. A. Norton, Special Assistant to the Attorney General, were on the brief, for the United States:
The history of the legislation involved shows the disastrous effects resulting from its improper application.
The term “mixed blood” is to be applied only to those Indians who possess a quantum of white blood amounting to one-half or more.
Thè act should be so construed as to subserve the well-defined and well-established policy of Congress. Holy Trinity Church v. United States, 143 U. S. 457 ; Durousseau v. United States, 6 Cranch, 307; Lionberger v. Rouse, 9 Wall. 468, 475; United States v. Freeman, 3 How. 556; United States v. Lacher, 134 U. S. 624.
It has been the settled policy of Congress in dealing with the Indians to make competency alone the test for removing these restrictions. Smith v.. Stevens, 10 Wall. 321, 326.
Congress having declared in plain and unmistakable language that lands allotted to these Indians would be held in trust for them for a period of twenty-five years, and the assent of the Indians to a cession of their reservation having been given in reliance upon that promise, no subsequent act of Congress should be construed to revoke this promise unless couched in language so plain and certain as to leave room for no other interpretation. Lone Wolf v. Hitchcock, 187 U. S. 553.
Assuming the competency of the white man and the incompetency of the Indians, it is but reasonable in p. 253making a classification based on blood to include in the competent class all who have more than one-half white blood and in the incompetent class all who have more than one-half Indian blood. Holy Trinity Church v. United States, 143 U. S. 457.
The act is to be interpreted’according to the understanding of its terms among the Indians themselves.
Indian treaties and statutes modifying treaty rights will be construed as they are understood by the Indians and not necessarily in accordance with the technical terms employed by white men in framing them. Jones v. Meehan, 175 U. S. 1; Starr v. Long Jim, 227 U. S. 613.
Provision for mixed bloods was made in treaties with the Chippewas by their request, and the identification of such mixed bloods was left to them.
That the Indians understood the words “mixed blood” in the sense for which the Government contends is clearly shown by uncontradicted testimony.
The meaning for which the Government contends is not foreclosed either by departmental construction or judicial decisions.
See also Deweese v. Smith, 106 Fed. Rep. 438; Jeffries v. Ankeny, 11 Ohio, 372; Lane v. Baker, 12 Ohio, 237; Lone Wolf v. Hitchcock, 187 U. S. 553; Merritt v. Cameron, 137 U. S. 542; Nor. Pac. Ry. Co. v. United States, 227 U. S. 355; Thacker v. Hawk, 11 Ohio, 376; United States v. Kagama, 118 U. S. 375.
Mr. Ransom J. Powell, with whom Mr. George T. Simpson and Mr. Ernest C. Carman were on the brief, for appellees:
The Clapp act was obviously designed to create an arbitrary classification.
The language is clear and explicit, and the term “ mixed blood ” had acquired a definite and well-understood meaning.
See 2 Kappler, Indian Laws and Treaties, pp. 147,148, 173, 175, 207, 211, 218, 223, 269, 298, 301, 307, 338, 452, 464, 474, 492, 493, 499, 543, 568, 573, 649, 689, 692, 766, 774, 779, 798, 802, 841, 855, 862, 864, 881, 959, 975; Debates in Congress, 40 Cong. Record, pp. 1260 et seq., 5738, 5739, 5784, 6041, 6044, 6046; vol. 41, p. 2337.
For definitions and use of “ mixed blood” in decided cases, see Standard Dictionary; Century Dictionary; 14 Encyc. Britannica, 467; Hodge’s Hand Book of American Indians, 1907, pp. 365, 850, and 913; 5 Words and Phrases, 4546; 27 Cyc. 811; Hamilton v. Railway Co., 21 Mo. App. 152; Daniel v. Guy, 19 Arkansas, 121; Thurman v. State, 18 Alabama, 276; Johnson v. Norwich, 29 Connecticut, 407; Van Camp v. Board of Education, 9 Oh. St. 407; Gentry v. McMannis, 3 Dana (Ky.), 382; Scott v. Raub, 88 Virginia, 721, 727; Jones v. Commonwealth, 80 Virginia, 538; North Carolina Statutes, § 5, c. 71; § 81, c. 31, act of 1836; State v. Dempsey, 31 N. Car. 384; State v. Chavers, 50 N. Car. 11; Hopkins v. Bowers, 111 N. Car. 175; State v. Davis, 2 Bailey (S. Car.), 558; Thacker v. Hawk, 11 Ohio, 77.
The tendency at that time was toward the removal of restrictions by arbitrary act of Congress. Ann. Rep. Indian Comm. 1905, p. 3.
For the act of May 27, 1908, 35 Stat. 312, its history and the debate thereon, see 42 Cong. Record, pp. 5074-5078, 5425.
The interpretation of the term “mixed blood” necessitates the interpretation of the term “full blood.” Congress made two classes, not three. In seeking the intent of the legislature the first consideration is the natural, ordinary, and generally understood meaning of the terms used. United States v. Fisher, 2 Cr. 358; Lake County v. Rollins, 130 U. S. 662; Sloan v. United States, 118 Fed. Rep. 285; United States v. Temple, 105 U. S. 97; Maillard v. Lawrence, 16 How. 250; United States v. Pacific Ry. Co., 91 U. S. 72; Parsons v. Hunter, p. 2552 Sumn. (U. S.) 422; Levy v. McCartee, 6 Pet. 102, 110; United States v. Goldenberg, 168 U. S. 95,102; The Cherokee Tobacco, 11 Wall. 616; Edison &c. Co. v. U. S. Elect. Co., 35 Fed. Rep. 138.
A dispute over the meaning of a statute does not of itself show an ambiguity in the act. Nor. Pac. Ry. Co. v. Sanders, 47 Fed. Rep. 610; Shreve v. Cheesman, 69 Fed. Rep. 789; Webber v. St. Paul City Ry. Co., 97 Fed. Rep. 140; Swartz v. Siegel, 117 Fed. Rep. 13.
Subsequent experience is no guide to interpretation. United States v. Un. Pac. Ry. Co., 91 U. S. 72; Platt v. Un. Pacific Ry. Co., 99 U. S. 48.
Where Congress has by apt terms created a class or drawn distinctions between classes of persons or objects it is not competent for the courts, under the guise of interpretation, to extend or limit the operation of the statute. United States v. Colorado Co., 157 Fed. Rep. 321; Brun v. Mann, 151 Fed. Rep. 145; United States v. Temple, 105 U. S. 97; Minor v. Bank, 1 Pet. 44; Folsom v. United States, 160 U. S. 121; United States v. Choctaw Nation, 179 U. S. 494; Pirie v. Chicago, 182 U. S. 438, 451; The Paulina, 7 Cr. 52, 61; Barintz v. Casey, 7 Cr. 456, 468; United States v. Goldenberg, 168 U. S. 95, 102; Maxwell v. Moore, 22 How. 185, 191; Tiger v. Western Inv. Co., 221 U. S. 286; Thurman v. State, 18 Alabama, 276.
The court is not at liberty to amend the statute or read words into it to make it conform to what the court may believe to be the spirit of the act or to escape injustice of the law. Maxwell v. Moore, 22 How. 185; United States v. Goldenberg, 168 U. S. 95; Hobbs v. McLean, 117 U. S. 567; In re Conway and Gibbons, 17 Wisconsin, 526; 17 Op. Att’y Gen. 65; St. Louis Co. v. Taylor, 210 U. S. 281; Hadden v. Barney, 5 Wall. 107; Gardner v. Collins, 2 Pet. 92.
The practical construction by the Departments of the Government and the dealings of the citizens with the subject in reliance upon that construction is entitled to p. 256consideration in cases of doubt. United States v. Un. Pac. Ry. Co., 37 Fed. Rep. 551; 5. C., 148 U. S. 562; Le Marchal v. Tegarden, 175 Fed. Rep. 682; Pennoyer v. McConnaughy, 140 U. S. 1; Malonny v. Mahar, 1 Michigan, 26; Westbrook v. Miller, 56 Michigan, 148; United States v. Alabama Ry. Co., 142 U. S. 615; Kelly v. Multnomah County, 18 Oregon, 356; Schell v. Fauche, 138 U. S. 562; United States v. Moore, 95 U. S. 760, 763; Johnson v. Ballow, 28 Michigan, 378; Kirkman v. McClaughry, 160 Fed. Rep. 436; United States v. Bank of North Carolina, 6 Pet. 29; 2 Op. Att’y Gen. 558; In re State Lands, 18 Colorado, 359; Hill v. United States, 120 U. S. 169, 182; Blaxham v. Light Co., 36 Florida, 519; Harrison v. Commonwealth, 83 Kentucky, 162; State v. Holliday, 42 L. R. A. 826; Iowa v. Carr, 191 Fed. Rep. 257; Heckman v. United States, 224 U. S. 413; United States v. Chandler-Dunbar Co., 152 Fed. Rep. 25; United States v. Walker, 139 Fed. Rep. 409; Railway Co. v. First Division &c., 26 Minnesota, 31; Menard v. Massey, 8 How. 292; Magee v. Hallett, 22 Alabama, 699, 718.
Congress was familiar with apt terms to create a classification based upon a given quantum of Indian and other than Indian blood. If it had intended to make the classification urged by the Government, it could easily have said so. Indian treaties (previously cited); act of May 27, 1908, 35 Stat. 312; Pennock v. Commissioners, 103 U. S. 44; Smith v. Bonifer, 154 Fed. Rep. 883; Farrington v. Tennessee, 95 U. S. 679, 689; Bank v. Mathews, 98 U. S. 621, 627; United States v. Koch, 40 Fed. Rep. 250; In re Drake, 114 Fed. Rep. 229; Moore v. U. S. Trans. Co., 24 How. 1, 32; Shaw v. Railroad Co., 101 U. S. 557; Harrington v. Herrick, 64 Fed. Rep. 469; Austin v. United States, 155 U. S. 417; In re Downing, 54 Fed. Rep. 470, 474; 21 Op. Atty. Gen. 418; Louisville Trust Co. v. Cincinnati, 73 Fed. Rep. 726; Parker v. United States, 22 Ct. Cl. 104; Grace v. Collector of Customs, 79 Fed. Rep. 319; Strode v. Stafford Justices, 1 Brock. (U. S.) 162; Ryan v. Carter, 93 p. 257U. S. 83; Tompkins v. Little Rock, 125 U. S. 127; United States v. Ryder, 110 U. S. 739; Leavenworth v. United States, 92 U. S. 744; Butz v. Muscatine, 8 Wall. 580; James v. Milwaukee, 16 Wall. 161; United States v. Anderson, 9 Wall. 66; Lawrence v. Allen, 7 How. 796; Nor. Pac. Ry. Co. v. Dudley, 85 Fed. Rep. 86; In re Baker, 96 Fed. Rep. 957; In re Bauman, 96 Fed. Rep. 948; Steele v. Buell, 104 Fed. Rep. 970; United States v. Slazengerm, 113 Fed. Rep. 525; Ex parte Byers, 32 Fed. Rep. 409; Ulman v. Meyer, 10 Fed. Rep. 243; Hall’s Case, 17 Ct. Cl. 46; The Cherokee Tobacco, 11 Wall. 616; Gardner v. Collins, 2 Pet. 87.
Mr . Justi ce Day , after making the foregoing statement, delivered the opinion of the court.
Before the transfers here complained of and while the lands were held in trust, subject to the provisions of the act of February 8, 1887, supra, the Clapp Amendment was passed, having the purpose of removing the restrictions upon alienation in certain cases. This act provides, (34 Stat., p. 1034) :
“That all restrictions as to sale, incumbrance, or taxation for allotments within the White Earth Reservation in the State of Minnesota, heretofore [amended March 1, 1907, the word ‘heretofore’ being substituted for the word ‘now’] or hereafter held by adult mixed-blood Indians, are hereby removed, and the trust deeds heretofore or hereafter executed by the Department for such allotments are hereby declared to pass the title in fee simple, or such mixed bloods upon application shall be entitled to receive a patent in fee simple for such allotments; and as to full bloods, said restrictions shall be removed when the Secretary of the Interior is satisfied that said adult full-blood Indians are competent to handle their own affairs, and in such case the Secretary of the Interior shall issue to such Indian allottee a patent in fee simple upon application.”
vol . ccxxxiv—17
It is at once apparent from reading this act that it deals with two classes, adult mixed blood Indians, concerning whom all restrictions as to sale, incumbrance or taxation are removed, and full blood Indians, whose right to be free from restrictions shall rest with the Secretary of the Interior, who may remove the same upon being satisfied that such full blood Indians are competent to handle their own affairs.
This case turns upon the construction of the words “mixed blood Indians.” It is the contention of the Government that mixed blood means those of half white or more than half white blood, while the appellees insist, and this was the view adopted by the Circuit Court of Appeals, that the term mixed blood includes all who have an identifiable mixture of white blood. If the Government’s contention be correct, it follows that for the purposes of this suit all of less than half white blood must be regarded as full blood Indians, all others as mixed bloods. Upon the appellees’ contention the line is drawn between full bloods as one class and all having an identifiable admixture of white blood as the other.
If we apply the general rule of statutory construction that words are to be given their usual and ordinary meaning, it would seem clear that the appellees’ construction is right, for a full blood is obviously one of pure blood, thoroughbred, having no admixture of foreign blood. That this natural and usual signification of plain terms is to be adopted as the legislative meaning in the absence of clear showing that something else was meant, is an elementary rule of construction frequently recognized and followed in this court. United States v. Fisher, 2 Cranch, 358, 399; Lake County v. Rollins, 130 U. S. 662, 670; Dewey v. United States, 178 U. S. 510, 521. Interpreted according to the plain import of the words the persons intended to be reached by the clause are divided into two and only two well-defined classes, full blood Indians and mixed p. 259bloods. There is no suggestion of a third class, having more than half of white blood or any other proportion than is indicated in the term mixed blood, as contrasted with full blood. If the Government’s contention is correct, the Indians of full blood must necessarily include half bloods, and mixed bloods must mean all having less than half white blood and none others. Such construction is an obvious wresting of terms of plain import from their usual and well-understood signification.
But the Government, insists that to effect the legislative purpose the words must be interpreted as the Indians understood them, and cases from this court (Jones v. Meehan, 175 U. S. 1; Starr v. Long Jim, 227 U. S. 613) are cited to the effect that Indian treaties and acts to which the Indians must give consent before they become operative must be interpreted so as to conform to the understanding of the Indians as to the meaning of the terms used. The justice and propriety of this method of interpretation is obvious and essential to the protection of an unlettered race, dealing with those of better education and skill, themselves framing contracts which the Indians are induced to sign. But the legislation here in question is not in the nature of contract and contains no provision that makes it effectual only upon consent of the Indians whose rights and privileges are to be affected. Evidently this legislation contemplated in some measure the rights of others who might deal with the Indians, and obviously was intended to enlarge the right to acquire as well as to part with lands held in trust for the Indians.
The Government refers, in support of its contention, to reports of Congressional committees, showing after effects of this legislation, which was followed, as the reports tend to show, by improvident sales and incumbrances of Indian lands and wasteful extravagance in the disposition of the proceeds of sales, resulting in suffering to the former proprietors of the lands sold and mortgaged. But
Opinion of the Court. 234 U. S,
these after facts can have little weight in determining the meaning of the legislation and certainly cannot overcome the meaning of plain words used in legislative enactments. If the effect of the legislation has been disastrous to the Indians, that fact will not justify the courts in departing from the terms of the act as written. If the true construction has been followed with harsh consequences, it cannot influence the courts in administering the law. The responsibility for the justice or wisdom of legislation rests with the Congress, and it is the province of the courts to enforce, not to make, the laws. St. Louis, Iron Mt. & S. Ry. Co. v. Taylor, 210 U. S. 281, 294; Texas Cement Co. v. McCord, 233 U. S. 157,163.
The Government further insists that its interpretation of the act is consistent with its policy to make competency the test of the right to alienate, and that the legislation in question proceeds upon the theory that those of half or more white blood are more likely to be able to take care of themselves in making contracts and disposing of their lands than those of lesser admixture of such blood. But the policy of the Government in passing legislation is often an uncertain thing, as to which varying opinions may be formed, and may, as is the fact in this case, afford an unstable ground of statutory interpretation. Hadden v. The Collector, 5 Wall. 107, 111. And again Congress has in other legislation not hesitated to place full blood Indians in one class and all others in another. Tiger v. Western Investment Co., 221 U. S. 286. In that case this court had occasion to deal with certain sections of the act of Ap'ril 26, 1906, c. 1876, 34 Stat. 137, providing that no full blood Indian of certain tribes should have power to alienate or incumber allotted lands for a period of twenty-five years, unless restrictions were removed by act of Congress. By section 22 of the act all adult heirs of deceased Indians were given the right to convey their lands, but for the last sentence of the section which kept full p. 261blood Indians to their right to convey under the supervision of the Secretary of the Interior. Therefore all adult heirs of any deceased Indian other than a full blood might convey, but the full blood only with the approval of the Secretary of the Interior. In this important provision the restrictions were removed as to all classes of Indians other than full bloods. In other words, there as here, the Indians were divided into two classes, full bloods in one class and all others in the second class.
Furthermore, the appellees’ construction accords with the departmental construction, as shown by the facts stipulated. Such was the construction given by the Indian Commissioner to the treaty of September 30, 1854, supra, wherein provision was made for mixed blood Indians among the Chippewas, and the Indian agent -at Detroit, Michigan, was instructed by the Indian Commissioner that the term mixed blood had been construed to mean all who are identified as having a mixture of Indian and white blood. Such was the interpretation of the Department of Interior, in the first place at least, in administering the matter under the Clapp Amendment. It is true that the Government representatives at Detroit, Minnesota, were of the opposite opinion, for the reasons we have stated above, and that the Second Assistant Commissioner in his reply, while reaching the conclusion we have, stated that he would confer with the Department of Justice.
While departmental construction of the Clapp Amendment does not have the weight which such constructions sometimes have in long continued observance, nevertheless it is entitled to consideration,—the early administration of that amendment showing the interpretation placed upon it by competent men having to do with its enforcement. The conviction is very strong that if Congress intended to remove restrictions only from those who had half white blood or more, it would have inserted in the p. 262act the words necessary to make that intention clear, that is, we deem this a case for the application of the often expressed consideration, aiding interpretation, that if a given construction was intended it would have been easy for the legislative body to have expressed it in apt terms. Farrington v. Tennessee, 95 U. S. 679, 689; Bank v. Matthews, 98 U. S. 621, 627; Tompkins v. Little Rock & Ft. 8. R. Co., 125 U. S. 109, 127; United States v. Lexington Mill Co., 232 U. S. 399, 410.
Congress was very familiar with the situation, the subject having been before it in many debates and discussions concerning Indian affairs. This was a reservation inhabited by Indians of full blood and others of all degrees of mixed blood, some with a preponderance of white blood, others with less and many with very little. If Congress, having competency in mind and that alone, had intended to emancipate from the prevailing restriction on alienation only those who were half white or more, by a few simple words it could have effected that purpose. We cannot believe that such was the congressional intent, and we are clearly of opinion that the courts may not supply the words which Congress omitted. Nor can such course be induced by any consideration of public policy or the desire to promote justice, if such would be its effect, in dealing with dependent people.
We reach the conclusion that the Circuit Court of Appeals rightly construed this statute, and its decrees are
Affirmed.