EX PARTE WEBB, 225 U. S. 663 (1912)

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U.S. Supreme Court

Ex Parte Webb, 225 U.S. 663 (1912)

Ex Parte Webb

No. 11 Original

Argued May 13, 1912

Decided June 10, 1912

225 U.S. 663


The Oklahoma Enabling Act of June 16, 1906, 34 Stat. 267, c. 3335, followed by the adoption of the constitution therein described, and the admission of the new state, had the effect of remitting to the state government the enforcement of the laws relating to the manufacture and sale of liquor within the state, and, so far as it covered the same field as the prior law of 1895 prohibiting introduction and sale of liquor in Indian country, the latter was by implication repealed.

While the Oklahoma Enabling Act may have by implication repealed the Act of 1895 in part, it was not the intention of Congress to repeal that act in respect to the introduction of liquor from other states or territories.

Congress has for many years consistently pursued the policy of forbidding sales of liquor to Indians and of excluding liquor from territory occupied by them, and the Oklahoma Enabling Act was framed with a clear intent that, while the state should control the liquor traffic within its own borders, the United States should exercise its appropriate powers to prevent such traffic within the Indian Territory originating beyond the borders of the state.

It is unreasonable to suppose that Congress would wipe out all its laws and regulations regarding the liquor traffic with Indians, including those established by treaties, and impose upon future Congresses the labor and difficulty of establishing new legislation upon that subject.

The proviso to § 1 of the Oklahoma Enabling Act expressly reserving to the government of the United States the power to make laws and regulations in the future respecting Indians negatives any purpose to repeal by implication the existing laws and regulations on the subject.

An act of Congress may repeal a prior treaty as well as it may repeal a prior statute; but it is a settled rule of statutory construction that repeals by implication are not favored, and will not be held to exist if there be any other reasonable construction.

Under § 8 of Article I of the federal Constitution, conferring upon Congress the right to regulate commerce with the Indian tribes, Congress may regulate traffic with Indians, although within the limits of a single state.

Under 8 of Article I of the federal Constitution, Congress has the

Page 225 U. S. 664

same power to maintain an existing law in regard to Indian traffic so as to keep it in force in a new state as it has to enact new laws in the future on the same subject.

Although the Five Civilized Tribes have long been treated more liberally than other Indians, they remain nonetheless the wards of the Nation, and in all respects subject to its control.

Reviewing the treaties and agreements with the several tribes occupying the Indian Territory within that state, it appears that the provisions of the Oklahoma Enabling Act in regard to liquor traffic with Indians originating beyond the state were enacted with the purpose of fulfilling the spirit and letter of those treaties and agreements.

The argument that the Act of 1895 must have been repealed by the Oklahoma Enabling Act to the extent that the latter permitted the introduction of liquor into the state for the needs of the state agencies for distribution of liquor is an argument ab inconvenienti, and is without force so far as the introduction of liquor by an individual is concerned.

A law creating a crime ought to be explicit, and if ambiguous or uncertain, it should be interpreted in favor of the liberty of the citizen; but, in this case, as there is no ambiguity in the Act of 1895, a repeal pro tanto does not leave anything doubtful or ambiguous in that part of the act which remains in force.

The rule that the admission of a new state into the Union on an equal footing with the original states imports an equality of power over internal affairs does not prevent the United States from reserving the right to regulate matters therein within the sphere of the plain power of Congress.

Where Congress embraces, in an enabling act for the admission of a new state, legislation intended as a regulation of matters within the sphere of its powers, the legislation derives no force from any agreement or compact with the new state as an acceptance of statehood, but derives its force solely from the power of Congress to regulate the subject matter of the legislation. Cole v. Smith, 221 U. S. 574.

The Oklahoma Enabling Act did not repeal the Act of 1895 so far as it pertains to the carrying of liquor from without the new state into that part of it which was Indian Territory (except that brought in by the state for use of state agencies) and the United States District Court for the District of Oklahoma has jurisdiction to punish an offender against the Act of 1895 in that respect.

This is an original application for a writ of habeas corpus

Page 225 U. S. 665

to inquire into the arrest and detention of the petitioner, who is held in custody by the United States Marshal for the Eastern District of Oklahoma, under a capias or bench warrant issued out of the United States district court, upon an indictment of which the following is a copy:


"Eastern District of Oklahoma, ss:"

"In the district court of the United States in and for the Eastern District aforesaid at the March Term thereof, A.D. 1912 at Vinita, Oklahoma."

"The grand jurors of the United States, impaneled, sworn, and charged at the term aforesaid of the court aforesaid, on their oath present that Otis Tittle and Charley Webb, and each of them, on the 23rd day of January, in the year 1912, in the said division of said district, and within the jurisdiction of said court in Craig County, in the State of Oklahoma, the same then and there being and constituting a portion of the Indian country of the said United States, did at the time and place aforesaid unlawfully, knowingly, willfully, and feloniously introduce, and attempt to so introduce and carry into the said Indian country from without the said Indian country 17 gallons of spirituous, ardent, and intoxicating liquor, to-wit: alcohol, which said alcohol was by the said Otis Tittle and Charley Webb and each of them so introduced and carried into that portion of said Eastern District of Oklahoma, so being then and there Indian country, as above set forth and described, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States."

Petitioner also applies for a writ of certiorari to review the action of the district court in refusing, on habeas corpus, to discharge him from custody under the bench warrant.

For present purposes it is admitted that petitioner is a

Page 225 U. S. 666

white man, not of Indian blood; that the intoxicating liquors described in the indictment were shipped on his order from the City of Joplin, in the State of Missouri, by way of a railway that is a common carrier of interstate shipments, consigned to petitioner at the City of Vinita, in the State of Oklahoma; that the same reached the latter city over said railway line in the course of ordinary transportation at the time of the alleged offense set forth in the indictment, to-wit, January 23, 1912; that said intoxicating liquors were delivered by the transportation company to the petitioner within the City of Vinita, and he received them upon a public street and highway, and not upon restricted land, for the purpose and with the intent of carrying and transporting the liquors along the streets and highways to another point within the same city, and that, while he was in the act of so receiving the same, he was arrested. That the City of Vinita is situate in Craig County, Oklahoma, which county constitutes a part of what was formerly the Cherokee Nation; that all the lands of the Cherokee Nation have been either allotted to individual citizens of the Cherokee Tribe under the terms of the Cherokee Agreement and the several acts of Congress providing for the allotment of said lands, or sold by the United States for the benefit of the citizens of the Cherokee Nation, either as town sites or otherwise, under the authority of the several acts of Congress providing therefor; that the City of Vinita, including the place where the intoxicating liquor was delivered to and received by the petitioner, is a part of the original townsite of Vinita, Indian territory, and that the status of the lands and of the enrolled members of the Cherokee Tribe of Indians are such as are fixed by law.

The petitioner contends that the district court is without jurisdiction, because there is no existing law under which the offense alleged against him is punishable in the federal courts. He claims that he is obliged to resort

Page 225 U. S. 667

to this Court for relief because the United States Circuit Court of Appeals for the Eighth Circuit has decided the questions involved adversely to his contention in the case of United States Express Co. v. Friedman, 191 F.6d 3.

Page 225 U. S. 670

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