The Emporia weekly news. [volume] (Emporia, Kan.) 1881-1889, 1883-08-30
THE OKLAHOMA MATTER.
opinion of Judge sEcCrary in the Case
OF Dave Payne and His Associates
W. the Secretary of War and
His General

His GeneraI.
Topeka Commonwealth: The follow.
Ing opinion. which has been looked for
with so much interest for some time,
was fled in the Office nf the clerk of the
United States Court yesterday:
In the Circuit Court OF the UnHed
States, District of Kansas. August,
1888.
David L. Payne, complainant, VS.. Ro-
bert 4. Lincoln and John Pope. In
equity.
NOTION FOR PRELIMINARY TRANSLATION
The complainant alleges that he is a
citizen of the United States and that he
served as a soldier of the United States
during the War of the rebellion, aud was
honorably discharged that he is enti.
tied to enter upon certain terri
tory described ia the bill for
and of obtaining and keeping
his home residence and citizenship
therein that he mas been attempting by
ali means IN his power 10 enter upon
said territory tor that purpose, and
would have done so were il not for the
acts of the defendaDt, who is a major
general in the army Of the United STATES,
having command of large body of
United States soldiers, and who under
orders from the president has by force
prevented complainant from entering
upon said territory, and thus unlaWfully
deprived him of right guaranteed 10
him by the constitution and laws of the
United States. The bill ayers that the
territory in question is public land of
the United states and open To settle
ment under the laws hereof.
The particular territory in controver-
sy is described as follows Ia the bill:
aBeing that portion of the so-calied
Indian Territory lying south of the state
of Kansas and west of the state of Ar
kansas, and being that portion thereof
situate and lying between the North
Fork of the Canadian river on the north,
and the Canadian river on the south,
and extending from the Indian meridian
on the east, which meridian nearly cor
responds with the sixth principal meF-
idian -traversing the state of Kansas
from north 30 south to the north and
south township line between townships
seven and eight to the west of said In.
dian meridian, as will more fully appear
by reference TO the United States sur
yey thereof"
The prayer of the bill 10 for an in
junction to restrain the defendants from
molesting, interfering with, Selling, I'M
prisoning, OBTAINING or preventing com
plainant and others similarly situated
accompanying him from going TO or re-
naming upon said territory.
There is no service upon the defend
ant, Robert T. Lincoln, and the present
order is asked only as against the de-
PENDANT, John Pope. The motion is
submitted upon the allegations of the
bill in connection with the statutes and
treaties applicable 20 the controversy.
s. N. Wood and Waters & Ensminger.
for complainant.
j. r. Halloween. U. $ Attorney, for
Gen. Pope.
McOrary, circuit judge.
Is the land in question subject 10 en-.
try under the pre-emptIon and home
stead laws of the United States? This
is the controlling question in the case.
It Is to say the least, a question of doubt
and one concerning which there is ser.
ious dispute. The executive branch of
the government after investigation, and
being advised by. the attorney general of
the United States, has decided it in the
negative, and has accordingly issued or
ders to the defendant, John Pope, who,
as major general of the army, has mili-
tarY command IN the Indian Territory
to prevent by force the occupation of the
disputed territory by white settlers.
Under such circumstances, all that this
court can at present lie reason
ably asked to do, is to
preserve the status quo until the final adj
Indication OF the controversy. Where
the parties are at issue upon = question
of legal right and an injunction is nee
essarY for the purpose of preserving all
existing rights until final hearing q pre
lininary Injunction will generally be
listing, stetps would, he destroyed, not
preserved, By granting the writ. The
aOle purpose for which the Injunction Is
granted In advance of final hearing in
such cases is to preserve the rights of the
parties pending the suit, 90 as
to leave the subject matter intact to be
dealt with by the court in the final de-
cree. It Is TO compel the party against
whom it is granted to maintain his status
merely until the matters in dispute shall
by due process Of she courts pc dfterm
Higte on injunctions, sec. g, NAM
moth Vein Coal Co.'S appeal, 81 Pa. st.
1873. To grant the preliminary writ in
this case would be, in advance of hear
ing upon the merits, to open up the dis
puted territory for settlement, and thus
IN effect to pre-determine the contro-
yersy as we'll as to destroy the present
situation.
To refuse the writ Is to preserve, or
at least not to disturb the EXISTING stat
US. Without, therefore, considering
other question. 9he motion for prelim-
mary injunction is oYerruled upon this
ground.