MONTANA CATHOLIC MISSIONS, Plff. in Err., v.

MISSOULA COUNTY, State of Montana.

(See S. C. Reporter’s ed. 118-130.)

Courts'— jurisdiction of Federal circuit court — lack of merit in claim of Fed¬ eral question.— The claim that grazing cattle owned by a Jesuit society are exempt from state taxation, based either upon the theory that, because the income of the society was devoted to the charitable work of im¬ proving and educating the Indians on the Flathead reservation, in Montana, the entire beneficial use or ownership of the property taxed was in tribal Indians, or upon the ground that the Federal government, by per mitting and approving the work of the so¬ ciety, and by aiding it from time to time by making appropriations in its behalf, had con¬ stituted it one of the agencies to carry out its obligation to the Indians, — is too clearly lacking in merit to confer jurisdiction on a Federal circuit court.

[No. 151.]

Submitted December 13, 1905. Decided

January 2, 1906.

T N ERROR to the Circuit Court of the JL United States for the District of Mon¬ tana to review a judgment dismissing, for want of jurisdiction, a suit to recover taxes alleged to have been illegally assessed. Af¬ firmed.

Statement by Mr. Justice Peckham:

The plaintiff in error commenced this ac¬ tion in the circuit court of the United States for the district of Montana, to re¬ cover from the defendant the amount of cer¬ tain hack taxes, which it alleged had been illegally assessed, and which it had been compelled to pay in order to prevent the seizure and sale of the property owned by it, and upon which the taxes were levied. Both parties to the action were residents of the state of Montana at the time it was commenced. The defendant demurred to the complaint upon the ground, among others, that the court had no jurisdiction of the person of the defendant or of the subject- matter of the action. The demurrer was sustained by the court, and the complaint dismissed on the sole ground that it had no jurisdiction, and the court has certified the question of jurisdiction directly to this court, as provided for in the 5th section of the act of 1891. 26 Stat. at L. 827, chap. 517, U. S. Comp. Stat. 1901, p. 549.

Note. — As to Federal question as conferring jurisdiction on United States courts — see notes to Montana Ore-Purchasing Co. v. Boston & M. Consol. Copper & S. Min. Co. 35 C. C. A. 7, and Bailey v. Mosher, 11 C. C. A. 308.

398

The following is the complaint:

The plaintiff above-named complains to the court, and alleges:

I. That it is, and since prior to the year 1890 has been, a corporation organized and existing under the provisions of chapter 34, fifth division of the Compiled Statutes of the state of Montana, relating to the incor¬ poration of religious, ‘benevolent, and other like societies, and that its purposes are set forth in its articles of incorporation as fol¬ lows:

The particular business or object of said corporation shall be to hold the legal title to real estate in the territory of Montana,

*for the use and in trust for the Society of

Jesus, also to hold and In trust for said so¬ ciety all funds, property, and effects of said society, or any members thereof, or any person or persons, corporation or corpora¬ tions, conveyed, transferred, delivered, or as¬ signed to the said corporation, for the use and benefit of said society; to conduct, erect, govern, and maintain churches, col¬ leges, schools, and libraries, and all other such necessary and useful enterprises as may be properly connected with the society and corporation. The general business and object of said corporation shall be to incul¬ cate and further the interests of Christian education among the inhabitants of the ter¬ ritory of Montana, including the Indians and other residents on reservations within the said territory, and also to advance the interests of the Christian religion through the erection and maintenance of churches, colleges, and schools, and the preaching of the Gospel.

II. The Society of Jesus referred to in the said articles of incorporation is an asso¬ ciation or order of ministers of the Gospel, none of the members of which can, under the rules of the said order, hold, or does hold, any property in his own right.

III. Plaintiff further avers that about the year 1854 the said Society of Jesus es¬ tablished a mission among the Flathead ‘In¬ dians, then residing in the western portion of what is now the state of Montana, and stationed among them members of the said order, with directions to teach, educate, en¬ lighten, and care for the said Indians.

That the said mission being so established, members of the said order so deputed went among the said Indians, and from about thp year 1854 to the present time have contin¬ ued in the work of teaching, educating, and enlightening the said Flathead Indians.

IV. The plaintiff further avers that since the creation of the Flathead Indian reserva¬ tion in the state of Montana, members of the said order, commonly known as Jesuit Fathers, have, by the direction of said or¬ der and by permission of the Indians living

200 U. S.

Montana Catholic Missions v. Missoula County.

120-123

and entitled to live within the same, and the government of the United States, been

permitted to reside within the said ‘reser¬ vation for the purpose of teaching and edu¬ cating the Indians residing thereon, and that they have been, during all of said period, continuously engaged in the work of teach¬ ing and educating the said Indians.

V. That with the permission of the In¬ dians inhabiting and entitled to inhabit the said reservation and the government of the United States, the said Jesuit Fathers have constructed on the said reservation, at great expense, extensive school buildings, with dormitories, and in connection there¬ with, for the purpose of teaching the said Indians the manual arts, a blacksmith shop, wagon shop, printing office, saddlery shop, shoe shops, bakeries, and other shops of like character, and, with the same purpose, cultivate fields and gardens.

VI. That for the more successful con¬ duct of the training and education of the Indians, the said Jesuit Fathers take into their care and custody at tender ages the children of the said Indians, and keep them at the said schools, and clothe, feed, and house them until they arrive at mature years, and that they now have, and for more than ten years last past have had, in their charge and care, upwards of two hun¬ dred and fifty of the children of the Indians residing on, and entitled to reside on, the said reservation.

VII. That for many years the govern¬ ment of the United States, in recognition of the value of the work of the said Jesuit Fathers in the training and education of the said Indians, appropriated and paid to them large sums of money for the purpose of carrying on the said work of educating the said Indians and caring for their chil¬ dren, but that such contributions are no longer made by the government.

VIII. That with a view to provide means for the carrying on of the said work of edu¬ cating the said Indians the said Jesuit Fathers have acquired a large band of neat cattle, which roam over and feed upon the said reservation. That the right to keep and graze the said cattle upon the lands in¬ cluded within the said reservation was, long prior to the year 1895, granted to the Jes¬ uit Fathers by the Indians residing upon

the said reservation ‘and entitled to reside thereon, which right was confirmed by the acquiescence and permission of the govern¬ ment of the United States, and that the cattle now owned by them or by the plain¬ tiff herein, as hereinafter set out, now graze upon the lands included within the said reservation by the express permission of the Indians residing and entitled to re- 200 U. S.

side thereon, and of the government of the United States.

IX. That a large number of the said cat¬ tle are annually killed and consumed as food by the children of the Indians so re¬ siding on and entitled to reside on the said reservation, and who are under the care of the said Jesuit Fathers, as aforesaid, and by the fathers in charge of the said children, and assistants employed by them in the work of educating the said Indians, and that others of said cattle are annually shipped to Eastern markets, and the income derived from the sale of the same is devoted to, and used exclusively for, the work car¬ ried on by the said fathers on the said res¬ ervation, of educating the said Indians, as hereinbefore set out, and that all the said income is consumed in the said work.

X. That a large portion of the work of rounding up the said cattle, branding, and otherwise earing for them, slaughtering and shipping the same, is done by the Indi¬ ans residing on the said reservation, under the direction of the said fathers, and that the said Indians are enabled by this em¬ ployment to earn in part a livelihood, and are instructed and gain experience in the business and occupation of cattle raising, and are encouraged themselves to engage in it, — a business for the conduct of which the said reservation is particularly adapted.

XI. That prior to the year 1895 all prop¬ erty so as aforesaid acquired by the said Jesuit Fathers was conveyed to the plain¬ tiff herein, to hold the same in trust for the said Jesuit Fathers, and that by such con¬ veyance it now has the legal title to all of the cattle acquired by the said Jesuit Fa¬ thers on the said reservation, and the in¬ creases thereof. And plaintiff avers that it is, and at all times since its organization has been, an institution of purely public charity, and that all of the cattle now ‘owned by.it, or which have been owned by

it since the year 1895, or at any time, have been and are used exclusively for educa¬ tional purposes, as hereinbefore set forth.

XII. And plaintiff further avers that it is its purpose in the future to devote all cattle now on the said reservation, or which it may acquire thereon, and any income derived from the sale of the same, to the same purposes to which they have hereto¬ fore been devoted, as hereinbefore set out, and that it has no purpose now, nor has it had at any time any purpose, to devote any portion of said cattle or any income de¬ rived from the sale of the same to any pur¬ pose other than the education and training of the Indians residing or entitled to reside on the said reservation, and that it never has made, and does not contemplate making, any profit out of the raising of the said

399

123, 124

Supreme Court of the United States.

Oct. Term,

cattle, with the intent to devote the same , to any other purpose.

XIII. And plaintiff avers that, notwith¬ standing the facts aforesaid, the defendant, county of Missoula, which is one of the counties of the state of Montana, through its treasurer, annually, since the year 1897, has demanded of the plaintiff that it pay to the said county taxes upon all cattle owned by it and being upon the said reser¬ vation, and threatened to seize and sell the said cattle or so much thereof as might be necessary to satisfy the taxes demanded un¬ less the same should be paid.

XIV. That pursuant to such demand, and to prevent the seizure and sale of the said cattle, or so many thereof as might be necessary, the plaintiff, under protest, on or about November 23, 1898, paid to the said county and to its treasurer, who turned the same over to the said county as taxes claimed by it to be due on account of cattle owned by the said plaintiff on the said res¬ ervation for the years 1897 and 1898, the sum of $1,257.48; that the plaintiff, under protest, on or about November 22, 1899, paid to the said county and to its treasurer, who turned the same over to the said county, as taxes claimed by it to be due on account of cattle owned by the said plain¬ tiff on said reservation for the year 1899, the sum of $867.82; that the plaintiff, un¬ der protest, on or about November 26, 1900,

paid *to the said county and its treasurer, who turned the same over to the said coun¬ ty- as taxes claimed by it to be due on ac¬ count of cattle owned by the said plaintiff, on the said reservation for the year 1900, the sum of $661.20; and that plaintiff, un¬ der protest, on or about November 26, 1901, paid to the said county and to its treasurer, who turned the same over to said county, as taxes claimed by it to be due on account of cattle owned by the said plaintiff on the said reservation for the year 1901, the sum of $321.95; and plaintiff avers that it nei¬ ther had nor owned any cattle “at any time since 1895,” in the county of Missoula, state of Montana, except such cattle as it held on the said reservation as hereinbefore set out, and that the said taxes were exact¬ ed of it upon the said cattle. “All of which were reared on the said reservation, and fed on grasses and herbage grown thereon.”

XV. And now plaintiff avers that the de¬ fendant is indebted to it on account of said payments, by it made, as hereinbefore set out, in the sum of three thousand one hun¬ dred and eight and 45/100 dollars ($3,108.- 45), with interest on the sum of $1,257.48 from the 23d day of November, 1898, amounting to $345.66; for interest on $867.- 82 from the 22d day of November, 1899, amounting to $169.35; for interest on the 400

sum of $661.20 from the 26th day of Novem¬ ber, 1900, amounting to $75,55; and for in¬ terest on the sum of $321.95 from the 26th day of November, 1901, amounting to the sum of $11.03.

Wherefore plaintiff demands judgment for said amounts, together with interest as above set forth, and for its costs.

Mr. Thomas J. Walsh submitted the cause for plaintiff in error:

When by reason of a Federal question being involved, the jurisdiction of the cir¬ cuit court is properly invoked, it is not limited to a determination of the Federal question, but it may proceed and determine every question in the case.

New Orleans, M. d T. R. Go. v. Missis¬ sippi, 102 U. S. 135, 26 L. ed. 96 ; Little York Gold-Washing d Water Go. v. Keyes, 96 U. S. 199, 24 L. ed. 656; Briscoe v. Southern Kansas R. Go. 40 Fed. 277 ; Os- horn v. Bank of United States, 9 Wheat. 821, 822, 6 L. ed. 224; Manigault v. Ward, 123 Fed. 707.

It is not necessary that the contention made by the plaintiff with reference to its rights under the Constitution or laws of the United States shall appear sound to the court. If the claim of the plaintiff is apparently made in good faith, and is not a frivolous one, the United States court has jurisdiction.

Illinois G. R. Co. v. Adams, 180 U. S. 28, 45 L. ed. 410, 21 Sup. Ct. Rep. 251; Illinois G. R. Go. v. Chicago, 176 U. S. 646, 44 L. ed. 622, 20 Sup. Ct. Rep. 509; St. Paul, M. d M. R. Co. v. St. Paul d N. P. R. Co. 15 C. C. A. 167, 52 U. S. App. 372, 68 Fed. 2; St. Louis, I. M. d S. R. Co. v. Davis, 132 Fed. 629.

The property of tribal Indians is not taxable by the state. ,

The Kansas Indians (Blue Jacket v. John¬ son County) 5 Wall. 757, 18 L. ed. 673.

To whatever extent these cattle are taxed, the lands of these Indians are rendered just so much less productive to them. The net results to them from their lands are diminished by just exactly the amount of the tax. It operates, in effect, the same as would a tax upon the lands.

Income Tax Cases (Pollock v. Farmers’ Loan d T. Co.) 157 U. S. 429, 39 L. ed. 759, 15 Sup. Ct. Rep. 673; State, Sisters of Charity, Prosecutor, v. Chatham Twp. 52 N. J. L. 373, 9 L.R.A. 198, 20 Atl. 292.

The state can do nothing that will de¬ stroy or impair the efficacy of the guardian¬ ship of the United States over the Indians.

State v. Cooney, 77 Minn. 518, 80 N. W. 696; United States v. Rickert, 188 U. S. 432, 47 L. ed. 532, 23 Sup. Ct. Rep. 47$.

The schools erected by the Fathers, as

200 U. S.

Montana Catholic Missions v. Missoula County.

well as the various shops and mills in con- ; nection with them, and these cattle, be- : came, and have become, means and instru¬ mentalities of the general government to carry out its purposes and to fulfil its treaty obligations; and that the means and instrumentalities of the general govern¬ ment are not subject to taxation by the states is a proposition of Federal law that has long been settled.

M’Culloch v. Maryland, 4 Wheat. 316,

4 L. ed. 579; Page v. Pierce County, 25 Wash. 6, 64 Pac. 801; Van Allen v. The Assessors (Churchill v. Utica) 3 Wall. 573, 18 L. ed. 229.

There is no more right in the state to tax the cattle referred to in the complaint than there is to seize and sell for taxes on them the school appliances, the press in the printing shop, or the stock of supplies in the blacksmith shop, the wagon shop, or the harness shop.

Methodist Episcopal Church, South, Book Agents, v. Hinton, 92 Tenn. 188, 19 L.R.A. 289, 21 S. W. 321 ; State v. Fisk University, 87 Tenn. 233, 10 S. W. 284; New Haven v. Sheffield Scientific School, 59 Conn. 163, 22 Atl. 156; Cooper Hospital, Prosecutor, v. Burdsall, 63 N. J. L. 85, 42 Atl. 853; State, Sisters of Charity, Prosecutor, v. Chatham Ticp. supra; State, Long Branch Firemen’s Relief Asso., Prosecutor, v. John¬ son. 62 N. J. L. 625, 43 Atl. 573; Cassiano v. Ursuline Academy, 64 Tex. 673; People ex rel. Blackburn v. Barton, 63 App. Div. 581, 71 N. Y. Supp. 933.

The property in question here is vested in a purely charitable corporation, is not subject, like the property of an individual, to be applied to such purposes as may suit the whim or caprice of the owner. But besides, it is, as has been declared by this court, impressed with a public character.

Church of Jesus Christ of L. D. S. v. United States, 136 U. S. 1, 34 L. ed. 481, 10 Sup. Ct. Rep. 792.

The appropriation of any part of the property upon which these taxes were lev¬ ied to any purposes foreign to those for which the plaintiff in error was incorpo¬ rated could be restrained by the state (Peo¬ ple ex rel. Ellert v. Cogswell, 113 Cal. 129, 35 L.R.A. 269, 45 Pac. 270), which is permitted to maintain the action by reason of the public interest in the property as well as by reason of the fact that, from indefiniteness in the designation of the bene¬ ficiaries, — a characteristic of charitable trusts (Russell v. Allen, 107 U. S. 163, 27 L. ed. 397, 2 Sup. Ct. Rep. 327),— no in¬ dividual can assert a sufficient definite legal interest in the property to maintain the 200 U. S.

action. Not only that, but the circum¬ stances under which it was acquired by the plaintiff in error should doubtless furnish ground to a court of equity to compel it to discharge its obvious moral obligation to devote it exclusively to the benefit of the Indians on the reservation. These circum¬ stances furnish abundant ground for the claim that the permission of the govern¬ ment, and of the Indians, to the Fathers, to graze and rear these cattle on the reser¬ vation, was given only in pursuance of a tacit and implied agreement on their part that they would devote the same to the nurture, education, and enlightenment of the Indians.

2 Perry, Tr. 733.

An agreement may be implied from the acts of the parties, the circumstances and conditions of their business relations, and particularly by reason of, or pursuant to, a uniform practice extending through years, though express words may not have been employed to indicate the agreement.

Hayes, v. Union Mercantile Co. 27 Mont. 264, 70 Pac. 975; Rice v. Rice, 104 Mich. 371, 62 N. W. 833.

Trusts raised in consequence of an agree¬ ment on the part of a party acquiring prop¬ erty to hold it for, or devote it to, specific purposes, are not at all uncommon.

3 Pom. Eq. Jur. 1055.

Often equity implies such an understand¬ ing without anything like a definite agree¬ ment on the part of the donor so to hold it.

Curdy v. Berton, 79 Cal. 420, 5 L.R.A. 189, 12 Am. St. Rep. 157, 21 Pac. 858.

If the plaintiff in error claims in good faith, and not wholly without reason, that the Indians are interested in the cattle in question, the jurisdiction is properly in¬ voked, and the court must then determine whether that interest in fact exists, and, if it does, whether, by reason of it, the property is exempt.

City R. Co. v. Citizens’ Street R. Co. 166 U. S. 557, 41 L. ed. 1114, 17 Sup. Ct. Rep. 653.

It is true the complaint does not point out the specific provision of the Constitu¬ tion or the particular statute or treaty that is to be construed, or in virtue of which the right is claimed; but it is not essential, and it would violate all rules of pleading, to do so.

Crystal Springs Land & Water Co. v. Los Angeles, 76 Fed. 153; Bridge Proprs. v. Hoboken Land d Improv. Co. 1 Wall. 116— 143, 17 L. ed. 571-576; McCullough v. Vir¬ ginia, 172 U. S. 102-118, 43 L. ed. 382-388, 19 Sup. Ct. Rep. 134. i No counsel for defendant in error.

401

126-128

Supreme Court of the United States.

Oct. Term,

Mr. Justice Peckham, after making the foregoing statement, delivered the opinion of the court:

There is nothing on the face of the com¬ plaint above set forth to show either the existence of any question involving the con¬ struction or application of the Federal Constitution, or that the constitutionality of any law of the United States, or the validity or construction of any treaty made under its authority, was drawn in question. This must appear in the complaint by the statement in legal and logical form, such as good pleading requires. Arbuckle v. Blackburn, 191 U. S. 405, 413, 48 L. ed. 239, 241, 24 Sup. Ct. Rep. 148; Spencer v. Duplan Silk Co. 191 U. S. 526, 530, 48 L. ed. 287, 290, 24 Sup. Ct. Rep. 174. It must appear that the suit really and substan¬ tially involves a controversy of such a char¬ acter. This pleading seems simply to be a claim that the plaintiff is exempt from tax¬ ation on the cattle which it owns, because it is an institution of purely public char¬ ity; and it would seem from that fact that it was claiming such exemption under some act of the state of Montana, and that its right to recover back these taxes depended

upon a statute of that state. "There is no provision in the Federal Constitution, nei¬ ther is there any Federal law, nor any treaty between the United States and the Indians, that is referred to in the complaint, and it is not averred therein that the claim of the plaintiff to be exempt from taxation is founded upon any constitutional provision or law or treaty of the United States. It cannot be assumed, from any averment in the complaint, that the alleged right of a private owner of property to be exempt from taxation thereon, because it was de¬ voted to purposes of charity among the Indians, was founded upon any Federal ground. On the contrary, it would seem to be plain that it was based upon some stat¬ ute of the state wherein the tax was im¬ posed and collected, which exempted from state taxation property wholly devoted to charity. The case is, therefore, not one which, from the subject-matter of the con¬ troversy, is apparently and in its essence of a Federal nature, or one that involved any of the foregoing questions of Federal right. Swafford, v. Templeton, 185 U. S. 487, 46 L. ed. 1005, 22 Sup. Ct. Rep. 783.

But it is now urged that the entire bene¬ ficial use or ownership of the property taxed is in tribal Indians, and that it is, therefore, not subject to taxation by or un¬ der state authority; also that the property is made use of by the Federal government, and that it is one of the means and instru¬ mentalities adopted by it through which it carries out its governmental purposes; and 402

such property is, therefore, not subject to be taxed by the state.

That the entire beneficial use or owner¬ ship of the property taxed is in tribal Indians, while the legal title only is in plaintiff, is not alleged in the complaint, and such a conclusion does not follow from the allegations to be found in that pleading.

It is true that the property of Indians liv¬ ing in the tribal state, and so recognized by the government, is withdrawn from the operation of state laws, and is exempt from taxation thereunder. The Kansas Indians ( Blue Jacket v. Johnson County ) 5 Wall.

737, 757, 18 L. ed. 667, 673; United States v. Rickert, 188 U. S. 432, 47 L. ed. 532,

23 Sup. Ct. Rep. 478. The expression “beneficial use” or “beneficial ownership or interest” in property is quite frequent in the "law, and means, in this connection, such

a right to its enjoyment as exists where the legal title is in one person and the right to such beneficial use 'Or interest is in another, and where such right is recog¬ nized by law, and can be enforced by the courts, at the suit of such owner or of some one in his behalf. And one is also said to have the beneficial ownership of land who has done everything to entitle him to a patent from the government, and who, therefore, has the legal right to sueh patent, and all that remains to be done is for the proper officer to issue it. Wisconsin C. R.

Co. v. Price County, 133 U. S. 496, 33 L. ed. 687, 10 Sup. Ct. Rep. 341; Central P. R.

Co. v. Nevada, 162 U. S. 512, 40 L. ed. 1057,

16 Sup. Ct. Rep. 885. In such case the land is taxable to such owner, though he has not the legal title. He is the bene¬ ficial owner. If such were the case here, it might then be said that the Indians real¬ ly owned such property, and that it was therefore exempt from taxation. But, as we have said, there i9 no such averment in the complaint, and no such inference can be drawn from the facts therein set forth. Taking the complaint as it is, it shows on its face that the Indians have neither any legal nor equitable title to the property, neither have they any legal or equitable right to its beneficial use; and it also ap¬ pears from the complaint that the property is owned unconditionally and absolutely by the plaintiff. The plaintiff, as the owner of these cattle, may, at any time, abandon its present manner of using them, and may devote them, or any income arising from their ownership, to any other purpose it may choose, and the Indians would have no legal right of complaint. The plaintiff might re¬ fuse to spend another dollar upon the In¬ dians upon these reservations, and refuse to further maintain or aid them in any way whatever, and no right of the Indians would

200 U. S.

SPEES V. COLBEBT.

128-130

be thereby violated, nor could they call up¬ on the courts to enforce the application of the plaintiff’s property, or the income there¬ of, to the same purposes the plaintiff had theretofore applied them. There is nothing in Church of Jesus Christ, L. D. S. v. United States, 136 U. S. 7, 34 L. ed. 480, 10 Sup. Ct. Rep. 792, which, in the remotest degree, applies to this case. This court has here¬ tofore determined that the Indians’ interest J129]in this kind of property, ‘situated on their reservation, was not sufficient to exempt such property, when owned by private in¬ dividuals, from taxation. Thomas v. Gay, 169 U. S. 264, 42 L. ed. 740, 18 Sup. Ct. Rep. 340; Wagoner v. Evans, 170 U. S. 588, 42 L. ed. 1154, 18 Sup. Ct. Rep. 730. In the first of above-cited cases the right to graze over the reservation was leased by the Indians to the owners of the cattle, and it was alleged that if the cattle were taxed the value of the lands would be reduced, because the owners of the cattle would not pay as much for the right to graze as they would if their cattle were not subjected to taxation, and that therefore the tax was, in effect and substance, upon the land. This court held that the tax put upon the cattle of the lessees was too remote and indirect to be deemed a tax upon the lands or privi¬ leges of the Indians, citing New York, L. E. & W. R. Co. v. Pennsylvania, 158 U. S. 431, 39 L. ed. 1043, 15 Sup. Ct. Rep. 896, and other cases, as authority for the decision. This is reaffirmed in the second case above cited. In this case the Indians have not even given a lease, and the owners are not obliged to pay anything for the privilege of grazing, and may, as we have said, de¬ vote the property, or the income thereof, to purposes wholly foreign to the Indians themselves. However meritorious the con¬ duct of the owners of the cattle may be, in devoting the income or any portion of the principal of their property to the charitable work of improving and educating the In¬ dians (and we cordially admit the merit of such conduct), we cannot see that there is, on that account, the least claim for ex¬ emption from taxation because of any Fed¬ eral provision, constitutional or otherwise.

Nor is there any merit in the proposition that the plaintiff is made use of by the government of the United States, and is one of the means used by it to carry out its obligations to the Indians, under the Con¬ stitution or laws of the United States, and that therefore the property of the plaintiff which is thus used is not subject to state taxation. No such averment of fact is to be found in the pleading; nor does any such conclusion arise from the facts which ap¬ pear therein. The government may lease a building from a private owner for the 200 U. S.

purpose of better carrying on its govern¬ mental duties, and yet the building is not ‘such an instrumentality of government as

prevents its taxation by or under state au¬ thority. Congress has not constituted this corporation an agency of its own for the purpose of discharging any duties which the government may owe to the Indians. It has, as the complaint avers, made in the past some appropriations from time to time to the corporation to aid it in its own work among the Indians, but that is far from constituting the corporation an agency of its own, to carry into effect its own gov¬ ernmental powers, granted by the Consti¬ tution or by law. And even such appro¬ priations ceased years ago.

The case, in short, is one of that class where we have frequently held that the claim of a Federal question must have some foundation of plausibility (St. Joseph & G.

I. R. Co. v. Steele, 167 U. S. 659, 42 L. ed.

315, 17 Sup. Ct. Rep. 925; McCain v. Des Moines, 174 U. S. 168, 43 L. ed. 936, 19 Sup. Ct. Rep. 644) in order to give jurisdic¬ tion. This has none.

The Circuit Court was right in refusing jurisdiction, and its judgment dismissing the complaint on account of the lack there¬ of is affirmed.