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Indians-treaty as grant.
tween the United States and the Chippewa 3. An alienable title in fee simple which Nation of Indians, the lands comprehended could not be affected by restrictions, in a within certain boundaries were forever ceded subsequent patent, upon the power of alien- | to the United States.
to the United States. But from that cession ation, passed under the reservation of 640 | certain tracts were reserved for the use of acres of land for the use of the children of Bokowtonden and their heirs, made by the the Chippewa Nation of Indians. And by treaty of September 24, 1819, with the Chip- article 3 of the treaty it was provided pewa Nation, for the cession of Indian that "there shall be reserved, for the use of lands to the United States.
each of the persons hereinafter mentioned
and their heirs, which persons are all In[No. 8.]
dians by descent, the following tracts of
land: . For the use of the children of Submitted October 10, 1906. Decided Decem- Bokowtonden, six hundred and forty acres, ber 3, 1906.
on the Kawkawling river.” 7 Stat. at L.
203. N ERROR to the
Subsequently, November 6th, 1827, a patState of Michigan to review a judgment ent was signed by President Adams. It purwhich affirmed a judgment of the Circuit ported to have been issued pursuant to that Court of Bay County, in that state, in treaty, for a tract of 640 acres on Kawkawfavor of defendants in an action of eject- ling river, described by metes and bounds, ment. Affirmed.
"unto the said children of Bokowtonden, and See same case below, 136 Mich. 288, 99 their heirs forever," the patent containing N. W. 14.
these words: “But never to be conveyed by The facts are stated in the opinion. them or their heirs without the consent and
Messrs. Henry M. Duffield, Nathaniel T. permission of the President of the United Crutchfield, James Van Kleeck, and Thomas States." E. Webster for plaintiff in error.
The particular land here in question is a Mr. Chester L. Collins for defendants in part of the 640 acres reserved by the above
treaty for the use of the children of Bokow
tonden and their heirs, and embraced by the Mr. Justice Harlan delivered the opinion patent of 1827. What rights were acquired, , of the court:
under and by virtue of the treaty, by those This action of ejectment was brought to children? In Jones v. Meehan, 175 U. S. 1, recover the possession of certain lands in 8, 21, 44 L. ed. 49, 52, 57, 20 Sup. Ct. Rep. 1, Bay county, Michigan, which the plaintiff, 4, 9, where one of the questions was as to Ann Francis, claims as tenant for her own the nature of the title that passed under life, and which are thus described in the an Indian treaty ceding lands to the United declaration: "The east half, the Bokowton- States, and which required a certain number den reserve, excepting land heretofore owned of acres to be set apart from the ceded lands and occupied by F. A. Kaiser, and 10 acres for a named Indian chief, this court said: heretofore owned and occupied by Edward “Was it a mere right of occupancy, with no McGuiness, being in Township Fourteen, power to convey the land except to the north range four east, and being a part of United States or by their consent? Or was the Bokowtonden reserve, conveyed by the it substantially a title in fee simple, with United States to the children of Bokowton- full power of alienation? Undoubtedly, the den and their heirs, by patent, dated No- right of the Indian nations or tribes to their vember 6th, A. D. 1827."
lands within the United States was a right The defendants pleaded the general issue, of possession or occupancy only; the ultigiving notice that they would show that for mate title in fee in those lands was in the more than twenty years next preceding the United States; and the Indian title could commencement of this action they and their not be conveyed by the Indians to anyone grantors had been in open, notorious, exclu- but the United States, without the consent sive, and adverse possession and occupancy of the United States,”—citing Johnson v. of the lands in question under claim and M’Intosh, 8 Wheat. 543, 5 L. ed. 681; Chercolor of title.
okee Nation v. Georgia, 5 Pet. 1, 17, 8 L. ed. At the conclusion of the evidence the jury, 25, 31; Worcester v. Georgia, 6 Pet. 515, 544, by direction of the court, returned a verdict 8 L. ed. 483, 495; Doe ex dem. Mann v. Wilfor the defendants, upon which judgment son, 23 How. 457, 463, 16 L. ed. 584, 586; was rendered. That judgment was affirmed, United States v. Cook, 19 Wall. 591, 22 L. upon writ of error, by the supreme court ed. 210; United States v. Kagama, 118 U. S. of Michigan.
375, 381, 30 L. ed. 228, 230, 6 Sup. Ct. Rep. By the treaty of September 24th, 1819, 1109; Buttz v. Northern P. R. Co. 119 U. S. made at Saginaw in the territory of Mich- 55, 67, 30 L. ed. 330, 335, 7 Sup. Ct. Rep. igan, and proclaimed March 25th, 1820, be- ' 100. But in that case, after an extended re.
view of previous decisions, this court further , tion of its several stipulations. A patent, said: “The clear result of this series of de- although the usual, is by no means the only, cisions is that when the United States, in a mode in which the title to the public domain treaty with an Indian tribe, and as part of can pass from the government to an individthe consideration for the cession by the ual. It may pass by an act of Congress, or tribe of a tract of country to the United by a treaty stipulation, as well as by a States, make a reservation to a chief or patent. The Indian title to the land reother member of the tribe of a specified served did not pass to the United States by number of sections of land, whether already the treaty, which operated as a release, by identified, or to be surveyed and located in both the Indians and government, of all inthe future, the treaty itself converts the terest either had in the lands reserved to the reserved sections into individual property; respective reservees, in fee simple; and it the reservation, unless accompanied by would be a violation of the treaty for the words limiting its effect, is equivalent to a government to claim the land in question.” present grant of a complete title in fee Upon appeal the supreme court of Michigan, simple; and that title is alienable by the 1 Dougl. 546, 558, 564, said: “The first quesgrantee at his pleasure, unless the United tion to be determined is, What estate passed States, by a provision of the treaty, or of to the reservee under the treaty? The 3d an act of Congress, have expressly or im- article is in the following words: 'There shall pliedly prohibited or restricted its aliena- be reserved for the use of each of the pertion."
sons hereinafter mentioned, and their heirs, Did an alienable title in fee simple pass to which persons are all Indians by descent, the jhe children of Bokowtonden by virtue of following tracts of land,' etc. For the use of the treaty of 1819, 1820 ? That question Mokitchenoqua, six hundred and forty acres was under consideration in the courts of of land, to be located at and near the Grand Michigan a long while ago and was an- Traverse of the Flint river, in such manner swered in the affirmative; and it would seem as the President of the United States may that their construction of the provisions in direct.' It is very clear that, if a fee-simple question has become a rule of property in estate was intended to be granted, the parthat state. In Stockton v. Williams, Walk. ties to the treaty were unfortunate in the Ch. (Mich.) 120, 129, decided in 1843, the choice of terms by which to give effect to question was elaborately discussed and fully that intention; and yet it is difficult to conconsidered. The treaty in that case—the ceive that any other estate was in the consame one involved here--contained these templation of the parties at the time of its words: “There shall be reserved for the use existence. Will, then, the 3d article warrant of each of the persons hereinafter mentioned such a construction? It will be observed and their heirs, which persons are all În- that the reservation is to the use of Modians by descent, the following tracts of kitchenoqua and her heirs. No limitation as land. For the use
of Mo-to the time of holding, or restriction upon kitchenoqua
each, six hundred and the right of alienation, is contained in the forty acres of land, to be located at and near grant. The use of the word heirs clearly the Grand Traverse of the Flint river in such implies that such an estate was granted as manner as the President of the United would, upon her death, descend to her legal States may direct.” 7 Stat. at L. 204. The representatives. Here, then, are all the eschancellor said: "It makes no mention of a sential elements of a fee-simple estate. This patent, nor does it require the President or construction, we think, is justified by the other officer of the government, after the words of the 3d article, and is strengthened lands have been located, to do any act what by the fact that it corresponds not only with ever recognizing the right of the several res an opinion given by the Attorney General ervees to the different sections. All it re- of the United States to the Secretary of quired of the President was to have the War (Land Laws, pt. 2, pp. 96, 97), but with lands located, at and near a particular place the opinion of the Senate,-a branch of the pointed out by the treaty. To locate does treaty-making power,—which is certainly not mean to patent, but to have the several entitled to great consideration. 3 Senate sections surveyed and marked out, and a Doc. 1836, No. 197.” Again, in the same map made of them, showing the particular case, the court said: “The location of the section belonging to each of the reservees. lands became a duty devolving on the PresThis was done; and, when it was done, this ident by the treaty. This duty he could expart of the treaty was fully executed on the ecute without an act of Congress; the part of the government. Nothing further treaty, when ratified, being the supreme law was required to carry it into effect, and the of the land, which the President was bound title then vested in the respective reservees, to see executed. It was impossible to deunless we hold the treaty itself to be clear- scribe the tract granted to any of the res. ly defective in not providing for the execu- | ervees in the treaty, as it is matter of
history that none of the lands ceded had property in the state where the land is sitever been surveyed. But locality is given to uated. That rule of property should not be the grant by the terms of the treaty, with disturbed, unless it clearly involves a misan authority to locate afterwards by a sur interpretation of the words of the treaty vey making it definite. Smith v. United of 1819. We agree with the state court in States, 10 Pet. 331, 9 L. ed. 444. This au- holding that a title in fee passed by the thority being executed, the grant then be treaty to the children of Bokowtonden, and came as valid to the particular section des that the patent issued in 1827 only located ignated by the President as though the de- or made definite the boundaries of the tract scription had been incorporated in the reserved to them by the treaty. It follows treaty itself. We are, therefore, of opin- that the words in the patent of 1827, "but ion that a fee simple passed to the reser- never to be conveyed by them or their heirs vee, Mokitchenoqua, by force of the treaty without the consent and permission of the itself, and that the rights of the parties President of the United States," were incould in no wise be affected by the subse effectual as a restriction upon the power of quent act of the President directing a pat- alienation. The President had no authority, ent to be issued."
in virtue of his office, to impose any such In Dewey v. Campau, 4 Mich. 565, 566, the restriction; certainly not, without the aucourt, interpreting the same treaty, said: thority of an act of Congress, and no such "A title in fee, under this clause of the act was ever passed. The children of Botreaty, passed, by this language, to the res- kowtonden having, then, obtained by the ervee. The term “reservation' was equiva- treaty the right to convey, there is no reason lent to an absolute grant. The title passed to doubt that title could be acquired by preas effectually as if the grant had been scription. The evidence shows that the deexecuted. The title was conferred by the fendants and those through whom they treaty; it was not, however, perfect until claim have had peaceable, adverse possession the location was made; the location was of the premises in question continuously necesary to give it identity. The location for more than half a century prior to the was duly made, and thus the title to the commencement of this action. land in controversy was consummated by Without assigning other grounds in supgiving identity to that which was before un port of the ruling below, the judgment of located.” In Campau v. Dewey, 9 Mich. 381, the Supreme Court is affirmed. 433, reference was made to Stockton v. Williams, 1 Dougl. (Mich.) 546, above cited, the Mr. Justice White did not participate in court saying: “This decision has, for sixteen the decision of this case. years, been recognized as the law governing the titles under this treaty, at least, and these must be quite numerous, many of which have doubtless been bought and sold ST. MARY'S FRANCO-AMERICAN PEon the faith of this decision. We are there
TROLEUM COMPANY, Piff. in Err.,
v. fore compelled to recognize it as a rule of
STATE OF WEST VIRGINIA. property which we are not at liberty to disturb.” These cases were not, in any Constitutional law—due process of law-apsense, modified by Auditor General v. Wil.
pointing state auditor to accept service liams, 94 Mich. 180, 53 N. W. 1097, which
upon corporation. was the case of an Indian treaty which 1. A domestic corporation whose prin. expressly provided that the land there in cipal office and works are outside the state question should never be sold or alienated 10 is not deprived of its liberty and property any person or persons whomsoever, without without due process of law by W. Va. Act's the consent of the Secretary of the Interior 1905, chap: 39, requiring every foreign and
nonresident domestic corporation to appoint for the time,-manifestly a different case the state auditor to accept service of procfrom the present one, in which the treatyess, and exacting an annual fee of $10 for contained no restriction upon alienation. his services, although the prior laws left it
The result of the cases cited is: 1. That to the corporation to appoint an attorney this court and the highest court of Michigan for that purpose. concur in holding that a title in fee may Constitutional law-equal protection of the pass by a treaty without the aid of an act laws-appointing state auditor to accept of Congress, and without a patent. 2. That
service upon corporation. the construction of the treaty here involved, not denied to a domestic corporation whose
2. The equal protection of the laws is whereby the respective Indians named in its principal office and works are outside the 3d article are held to have acquired by the state, by W. Va. Acts 1905, chap. 39, requirtreaty a title in fee to the land reserved for ing every foreign and nonresident domestic the use of themselves, has become a rule of corporation to appoint the state auditor to
accept service of process, and exacting anginia, to accept service on behalf of said annual fee of $10 for his services.
corporation, and as a person upon whom
service may be had of any process or notice, [No. 98.]
and to make returns of its property for tax
ation." Submitted November 5, 1906. Decided De
At the time the company was incorporated cember 3, 1906.
§ 8 of chapter 53 of the state Code read:
"Where the legislature has the right to 1
N ERROR to the Supreme Court of Ap- alter or repeal the charter or certificate of
peals of the State of West Virginia to incorporation heretofore granted to any review a judgment awarding a peremptory joint stock company, or to alter or repeal writ of mandamus to compel a nonresident any law relating to such company, nothing domestic corporation to appoint the state contained in this chapter shall be construed auditor to accept service of process. Af
to surrender or impair such right. And the firmed.
right is hereby reserved to the legislature to
alter any charter or certificate of incorporaStatement by Mr. Chief Justice Fuller:
tion hereafter granted to a joint stock comThis is a writ of error to review a judg- | pany, and to alter or repeal any law appliment of the supreme court of appeals of cable to such company. But in no case shall West Virginia awarding a peremptory writ such alteration or repeal affect the right of of mandamus, commanding the St. Mary's the creditors of the company to have its asFranco-American Petroleum Company, by sets applied to the discharge of its liabilities, power of attorney, duly executed, acknowl
or of its stockholders to have the surplus, edged, and filed in the office of the auditor if any, which may remain after discharging for the state of West Virginia, "to appoint its liabilities and the expenses of winding said auditor and his successors in office, at
up its affairs, distributed among themselves torney in fact to accept service of process in proportion to their respective interests.” and notice in this state for said St. Mary's
And § 24 of chapter 54: Franco-American Petroleum Company, and
"Every such corporation having its prinby the same instrument to declare its con- cipal office or place of business in this state sent that service of any process or notice shall, within thirty days after organization, in this state on said attorney in fact, or by power of attorney duly executed, appoint his acceptance thereof indorsed thereon, some person residing in the county in this shall be equivalent for all purposes to, and state wherein its business is conducted, to shall be and constitute, due and legal serv. accept service on behalf of said corporation, ice upon the said St. Mary's Franco-Ameri- and upon whom service may be had of any can Petroleum Company, and that the pe process or notice, and to make such return titioner recover from the respondent her for and on behalf of said corporation to the costs about the prosecution of her petition assessor of the county or district wherein its in this court in this behalf expended.” business is carried on, as is required by the
It was agreed by the parties that no rule 41st section of the 29th chapter of the Code. to show cause need be issued on the petition Every such corporation having its principal for mandamus, nor any alternative writ, but office or place of business outside this state that the petition might stand as such writ, shall, within thirty days after organizing, and the case be determined on demurrer by power of attorney duly executed, appoint thereto, which was filed.
some person residing in this state to acThe petition, among other things, averred cept service on behalf of said corporation, that the St. Mary's Company was “a non- and upon whom service may be had of any resident domestic corporation, organized, process or notice, and to make return of its chartered, existing, and carrying on its cor- property in this state for taxation as aforeporate business under and by virtue of the said. The said power of attorney shall be laws of the state of West Virginia, but hav- recorded in the office of the clerk of the ing its principle office and place of business county court of the county in which the and chief works in the city of Lima, in the attorney resides, and filed and recorded in state of Ohio;" that the corporation "was the office of the secretary of state, and the organized, and now exists by virtue of a admission to record of such power of attorcharter issued to it by the secretary of state ney shall be deemed evidence of compliance of the state of West Virginia on the 18th day with the requirements of this section. Corof January, 1902;" and that “on the 17th day porations heretofore organized may comply of February, 1902, the said defendant corpora- with said requirements at any time within tion, by power of attorney, duly and legally three months after the passage of this act. executed, filed, and recorded, appointed one Any corporation failing to comply with Wm. M. O. Dawson, a resident of the coun- said requirements within six months after ty of Kanawha in the state of West Vir-I the passage of this act shall forfeit not less
than two hundred nor more than five hun "Sec. 3. The postoffice address of such cordred dollars, and shall, moreover, during the poration shall be filed with the power of atcontinuance of such failure, be deemed a torney, and there shall be filed with the aunonresident of this state, and its property, ditor, from time to time, statements of any real and personal, shall be liable to attach- changes of address of said corporation. Imment in like manner as the property of non-mediately after being served with, or acresident defendants; any corporation failing cepting, any such process or notice, the au80 to comply within twelve months after the ditor shall make and file with said power of passage of this act shall, by reason of such attorney a copy of such process or notice, failure, forfeit its charter to the state, and with a note thereon indorsed of the time the provisions of § 8, chapter 20, Acts 1885, of service or acceptance, as the case may be, relative to notice and publication, shall ap- and transmit such process or notice by regisply thereto.”
tered mail to such corporation at the adOn the 22d day of February, 1905, the dress last furnished as aforesaid. But no legislature of West Virginia passed an act such process or notice shall be served on the
- chapter 39 of the Acts of 1905—which is auditor or accepted by him less than ten as follows:
days before the return thereof. “Sec. 1. The auditor of this state shall be, "Sec. 4. In addition to the auditor, any and he is hereby constituted, the attorney in such company may designate any other perfact for and on behalf of every foreign cor- son in this state as its attorney in fact, upporation doing business in this state, and of on whom service of process or notice may be every nonresident domestic
domestic corporation. made or who may accept such service. And, Every such corporation shall, by power of when such local attorney is appointed, procattorney, duly executed, acknowledged, and ess in any suit or proceeding may be served filed in the auditor's office of this state, ap- on him to the same effect as if the same point said auditor and his successors in were served on the auditor. office, attorney in fact to accept service of “Sec. 5. Failure to pay the attorney's fee process and notice in this state for such cor- as hereinbefore required shall have all the porations, and by the same instrument it force and effect, and subject such corporashall declare its consent that service of any tion to the same penalties and forfeitures, process or notice in this state on said attor- as are or may be prescribed by law for ney in fact, or his acceptance thereof in- failure to pay the license tax required to be dorsed thereon, shall be equivalent for all paid by such corporation. purposes to, and shall be and constitute, “Sec. 6. Any corporation failing to comply due and legal service upon said corporation. with the provisions of this act in so far as
“Sec. 2. Such foreign or nonresident doit relates to the appointment of the auditor mestic corporation shall, at the time of as its statutory attorney, within ninety taking out its charter, or procuring its au- days from its incorporation, shall forfeit thority to do business in this state, as the $100 as a penalty for such failure, and upon case may be, pay to the auditor as its said failure to pay such penalty, the charter of attorney $10 for his services as such for the such corporation shall thereby be forfeited then current year ending on the 30th day of and void." April next ensuing; and on or before the 1st The company refused to comply with the day of May, for each year, such corporation act, and, thereupon, this proceeding was inshall pay to said auditor the like sum of stituted. $10 for his services as such attorney. And all such corporations as have heretofore tak Messrs. W. E. Chilton and Chilton, Macen out charters, or procured authority to do Corkle, & Chilton for plaintiff in error. business in this state, shall, for the fiscal Mr. Clarke W. May for defendant in error. year commencing on the 1st day of May, 1905, pay the sum of $10 to the auditor as Mr. Chief Justice Fuller delivered the opinthe fee for such attorney to receive service ion of the court: of process, and annually thereafter a like It is argued that the act of February 22, sum, and such corporation shall not be re-1905, is invalid under the 14th Amendment, quired to pay any fee to the person who in that it deprives the company of liberty may have been heretofore appointed its at- of contract and property without due proctorney to receive service of process. All ess of law, and denies it the equal protection moneys received by the auditor under this of the laws. But, in view of repeated decichapter shall belong to the state, and be by sions of this court, the contention is withhim immediately paid into the state treas-out merit. The state had the clear right to ury. The auditor shall keep in a well bound regulate its own creations, and a fortiori, book in his office a true and accurate ac- foreign corporations permitted to transact count of all moneys so received and paid business within its borders. over to him.
In tnis instance it put all nonresident de