Dissenting Opinion by Judge Jones 98 C. Cls. casional diversions of religious, business, professional and labor organizations. In estimating their weight in the whole of Mantle Club activities, we remember that there were, during this period, some 14,000 unquestionably serious meetings, large and small, devoted to the self-improvement of the members by instruction and discussion. In this comparison, the social activities were "subordinate and merely incidental to the active furtherance of a different and predominant purpose" within the meaning of the Treasury Regulation. Here, for a club of some 3,000 members, there was no clubhouse, no dining room, no bar, no game room, no library, no gymnasium, in short, none of the facilities commonly associated with social or athletic clubs. We conIclude that the Commissioner of Internal Revenue should not have classified plaintiff as a social club, and that it is entitled to recover the taxes, penalties and interest collected from it. It is so ordered. WHITAKER, Judge; and LITTLETON, Judge, concur. JONES, Judge, dissenting: I cannot agree to the conclusion reached by the majority. A club may be of a dual nature. According to the regulations issued pursuant to the statute it is not necessary that a club be purely a "social, athletic or sporting" club in order for it to fall within the taxing provision. That need not be its major purpose. It is only necessary that such be one of its material purposes or activities. It is difficult to escape the conclusion that these activities were a material part or purpose of the organization. The welfare committee, appointed by the local Board of Governors and which included a member of the Board as one of its members, controlled and stimulated "unofficial activities" of the club. Subdivisions of the welfare committee included an employment committee, a sick committee, a recreation committee and an entertainment committee. There were dinners for division meetings, ice skating parties, swimming parties, fishing derbies, card parties, motion pictures, dances, annual picnics, and minstrel shows. Twenty-nine 562 Dissenting Opinion by Judge Jones separate affairs, not including dinners, preceded the division meetings. The club had a band, an orchestra, a golf club, and a drum and bugle corps. Athletic teams included baseball, basketball, hockey, indoor baseball, softball, bowling, golf and tennis. While no clubhouse had been built it was one of the charter purposes and from the formation of the club was a hope of the membership. In the meantime quarters were rented in a business building. The minutes of the monthly meetings were replete with references to announcements of social and athletic activities of the club. True, there were many meetings at which discussion was had of ideals, including honor, loyalty, common sense, courage, justice, ambition, pride, self-control, confidence, energy, responsibility, and numerous other undisputed qualities recognized as desirable by all self-respecting people. Much emphasis was placed at the monthly meetings on prompt payment of dues. The initiation fee was $20 and the monthly dues were $2. All of the initiation fee and half the dues went to the national organization which was largely under the control of a talented gentleman by the name of Monjar, who was the founder. At each monthly meeting a message from Mr. Monjar was read. He peddled his meditations and palmed them off in the form of ponderous platitudes, and in effect at so much per platitude, or rather on a monthly installment basis. We are led to make this statement because of the amount of money which went to national headquarters, none of which does the record show ever came back to the local association, except in the form of preachments, tritish advice, and truisms, the points of which by repetition must have become as dull as an old froe, and the cost of which could have been but a small fraction of the total intake. Undoubtedly he was a genius at organization, and, while his messages were in no way objectionable and contained much of merit, stripped of their excess verbal baggage, they amounted to nothing more than a restatement of age-old and generally accepted principles and ideals. The members listened to these messages. Why shouldn't they? They had paid for them. Listening to these ethical Dissenting Opinion by Judge Jones 98 C. Cls. discussions bored some of the members, even made some of them sleepy, but then there was a fine, in addition to the dues. if they didn't attend the meetings. While there were regular meetings, and in the circumstances, a rather full attendance, we do not see how that alters the fact that the social, athletic, and sporting features were a material part or purpose of the organization. In fact, it is doubtful if the club could have survived but for such activities. It cost the member $20 to get in, but he could get out for nothing, and many of them probably would have done so but for the activities mentioned. However, with almost every conceivable kind of social, athletic, and sporting undertaking, plus the fact that many of their neighbors belonged and the possibility of business advantage, it is not unnatural that they should remain as members. One natural inquiry is: Why did men join this organization? It does not seem possible that commonplace discussions of well-known principles could have been the chief inducement. Looking at the entire set-up, it is inescapable that at least a material part of the attraction was the desire for social contact with their fellow men, the desire to see and take part in the athletic events and of visiting with each other at the picnics and dinners. These things, the chance of rubbing elbows, of conversation with different individuals at their frequent meetings, which were usually accompanied with food of some kind, afford a more plausible explanation of why men wished to belong to the club. It was not a poor man's club. The dues, initiation fees. and penalties for failure to attend show that only a man of fair means could afford membership. The minutes of the meetings show that some form of social gathering and athletic features were almost always announced, evidently for the purpose of keeping up interest and thereby retaining membership so that dues would be paid regularly. Without these social and athletic attractions the club could not have lasted. Those in charge evidently realized this fact, as is shown by the gradually increasing attention paid these activities. The Commissioner of Internal Revenue having decided the issue adversely, the burden of proof is on plaintiff to show that these activities were not a material part or pur 562 Syllabus pose of the organization. It has not discharged this burden. I would hold that the social, athletic, and sporting features are a material purpose of the organization, and that it is therefore subject to the tax. WHALEY, Chief Justice, concurs in this opinion. THE INDIANS OF CALIFORNIA, CLAIMANTS, BY U. S. WEBB, ATTORNEY GENERAL OF THE STATE OF CALIFORNIA v. THE UNITED STATES [No. K-344. Decided October 5, 1942. Plaintiff's motion and defendant's motion for a new trial overruled January 4, 1943.] * On the Proofs Indian claims; recovery under special jurisdictional act; lands promised under treaties not ratified.-Under the terms of the special jurisdictional act of May 18, 1925, 45 Stat. 602, as amended by the act of April 29, 1930, 46 Stat. 259, it is held that the plaintiffs are entitled to recover, subject, however, to the deduction of offsets, if any, and reserving the determination of the recovery and the amount of such offsets, if any, for further proceedings, as provided in Rule 39 (a) of the Court of Claims. Same; title under Mexican law. Where the Indians of California consisted of wandering bands, tribes, and small groups who had been roving over the same territory before such territory was acquired by the United States from Mexico; and where said Indians had no separate reservations and occupied and owned no permanent sections of land; it is held that said Indians possessed no title to any particular real property existing under the Mexican law in California. Hayt, Admn. v. United States and Utah Indians, 38 C. Cls. 455. Same. Where the Indians of California did not qualify before the Commission created by the act of March 3, 1851, 9 Stat. 631, entitled "An Act to ascertain and settle the private land claims in the State of California;" it is held that whatever lands they may have claimed became a part of the public domain of the United States. Barker v. Harvey, 181 U. S. 481; United States v. Title Insurance & Trust Co., et al., 265 U. S. 472. Same; claim of session; use and occupancy.-The establishment by the United States of a commission to negotiate treaties with the Indians of California, in order to localize said Indians on particular tracts and confine them in certain defined sections, was not the recognition of a claim of cession under the Mexican or Spanish law or the use and occupancy of any definite country. *Petition for writ of certiorari denied June 7, 1943. Reporter's Statement of the Case 98 C. Cls. Same; promise made and not fulfilled.-In the negotiation of the 18 treaties with the Indians of California, which treaties were accepted by said Indians but were never ratified by the Senate of the United States, a promise was made to said Indians which was never fulfilled. Same; moral claim; tort; plenary power of Congress.-Under its general jurisdictional powers the Court of Claims cannot pass on a moral claim nor recognize a case sounding in tort but the Congress has repeatedly sent tort cases to said Court for adjudication under special jurisdictional acts, and Congress can confer on said Court jurisdiction to determine any sort of claim which the Congress has converted into a right of action. Same.-Congress in its plenary powers can recognize an equitable claim, a moral claim, or any claim on the conscience of the Nation. United States v. Realty Company, 163 U. S. 427, 440, 441. Same. In the instant case, the Congress not only has recognized an equitable claim but has gone further and has almost definitely defined the amount of recovery. Same; legal claim.-No legal claim under any treaty or act of Congress setting aside land for the use of the Indians of California can be sustained under the special jurisdictional act in the instant case. Same; taking; interest.-There has been no taking which under the Constitution would require just compensation and which would involve interest. Same; pleading; surplusage.—In construing a pleading, if the petition sets out a cause of action within the purview of the jurisdictional act and also contains other assertions or claims which do not fall within the rights conferred by the act, the latter can be excluded as surplusage and yet a good cause of action remains. Same; special acts strictly construed; exception in Indian claims.— Special acts are strictly construed as a general rule but there are exceptions in Indian cases under the broad doctrine that the Indians are wards of the Nation. Braden v. United States, 16 C. Cls. 389, 411. The Reporter's statement of the case: Messrs. Earl Warren and H. H. Linney for the plaintiffs. Messrs. Raymond T. Nagle and George T. Stormont, with whom was Mr. Assistant Attorney General Norman M. Littell, for the defendant. The court made special findings of fact as follows: 1. This case is before the Court under the Jurisdictional Act of May 18, 1928 (45 Stat. 602) as amended by the Act |