The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1893-03-25


the lease is such one as is prohibited by
this section. The section has been before
the United States courts, in the case OF
the United States against Hunter, IN the
circuit court of the eastern district OF
Missouri, in which Judge Brewer rendered
the decision. and the plaintiffs IN this
case claim that the decision of Judge
Brewer is in their favor. The only ques
tion that was necessary for the cSurt To
/ determine in that case was whether or not
the party making the lease had incurred
| the penalty provided for in that law; aud
| the court holds that it was not a crime on
| the part of an individual to make such a
lease aud distinctly states that it Is not
! his intention to hold that the lease in
controversy was either legal or Illegal
I and uses this language:
| sit was said by counsel for the govern
| mert that if lease for five years eau be
| sustained, SO may one for 959 years. and
| thus the Indian tribe be actually dispos-
sessed OF its lands; but, as was stated In
| the beginning of the opinion, the question
| here is not as to the validity of the lease,
| long or short, but as to whether this penal
statute reaches to a mere inducing or ne
gotiating of the lease. For the reasons
have thus given, it seems To me 1t cannot
be so Interpreted, and whatever may be
the fact as TO the validity of such lease
and entering into no discussion rs to bow
far it is bind NJ on the Indian nation. or
whether it could be set aside ut the option
of the national government, l am OF the
opinion that the acts charged upon the
defendant are not within the scops of this
PENAL statute"
The language used in the beginning of
the opinion 10 which Judge Brewer re-
ferred, is this:
This question does not necessarily in
volve the validity of the lease, for while
the lease may be invalid, it does not fol-
low that inducing execution is violation
of the penal laws OF the United States.'
In support of the proposition Of the de-
PENDANTS upon this point there have been
cited a number of Kansas cases, and
number of those cited seem to be very
much in point in this case, and hold that
where a contract is made in violation of
public policy or in violation of statute.
and when both parties are in equal wrong,
that the contract cannot be upheld.
In the case cited by the plaintiffs to
rebut this position and these authorities
Of the defendants, the court says:
1T is true that In general where parties
are concerned in illegal agreements or
other tranactions, whether they are mala
prohibita or n1ala in Sc. courts OF equity
will not interpOse to grant relief; but this
was only when the parties stand upon
equal footing, for the doctrine everywhere
running through the books is, that relief
will be granted when both parties are in
delicto. provided they do not stand in
pari delictO."
In the case at bar the parties are in
equal wrong. as the statute referred to
prohibits absolutely and unequalifiedly
the making of any such lease as the one in
controversy.
To rebut this position of the defendants,
the plaintiffs also claim that courts of
equity hold that when benefits are re-
ceived by any one tho beneficiary cannot
plead the illegality OF the contract. to
evade payment, aud cite case, in the
twentieth Atlantic Reporter, page 3S3. (M
and L. r. r. VS.. Concord r. R.) TO sus-
by the plaintiff was a bill in equity,
brought by one railroad company to COM
pei another railroad company to render an
and return to the plaintiff
large amount of rolling stock and other
property, which the defendant had got
possession of under IA contract, which the
defendant was claiming was in violation
of statute of the state. That was
bill in equity, and the statute which the
defendant relied upon to defeat that ac-
tion in that case was not 50 sweeping as
the one under consideration. The statute
under consideration does not only say that
such lease as the one in controversy shall |
be illegal, but it says that 1t shall be void |
in 10th law aud equity, thereby reaching |
out and taking hold of and controlling the |
conscience of the court, and prohibiting |
any kind Of recognition OF the validity of |
such contract.
1t is not claimed that the congress Of |
the United States had no constitutional |
power to enact this kind of statute, and, !
inasmuch as the congress of the United |
States have enacted it, there can be no |
question but what it is binding and in |
full force and must defeat any recovery in |
this case, and the demurrer to the petition,
for the reason that the petition does not |
state a cause of action, must be sustained. |
The lease in controversy aud the /
statute under which it is claimed to be |
Illegal have been before the interior de-
of the United States. and before I
General Garland, and before
General Miller, and before Pres
dent Harrison, and in each and every case, |
t has been held to be an illegal lease.
Life is short and time is feeting, but
Hoods Sarsaparilla will bless humanity
Is ages roll on.