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Indians-treaty as grant.
3. An alienable title in fee simple which could not be affected by restrictions, in a subsequent patent, upon the power of alienation, passed under the reservation of 640 acres of land for the use of the children of Bokowtonden and their heirs, made by the treaty of September 24, 1819, with the Chippewa Nation, for the cession of Indian lands to the United States.
tween the United States and the Chippewa Nation of Indians, the lands comprehended within certain boundaries were forever ceded to the United States. But from that cession certain tracts were reserved for the use of the Chippewa Nation of Indians. And by article 3 of the treaty it was provided that "there shall be reserved, for the use of each of the persons hereinafter mentioned and their heirs, which persons are all Indians 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.
Subsequently, November 6th, 1827, a patent was signed by President Adams. It purported to have been issued pursuant to that treaty, for a tract of 640 acres on Kawkaw
N ERROR to the Supreme Court of the State of Michigan to review a judgment which affirmed a judgment of the Circuit Court of Bay County, in that state, in favor of defendants in an action of eject-ling river, described by metes and bounds,
"unto the said children of Bokowtonden, and
See same case below, 136 Mich. 288, 99 their heirs forever," the patent containing
N. W. 14.
The facts are stated in the opinion. Messrs. Henry M. Duffield, Nathaniel T. Crutchfield, James Van Kleeck, and Thomas E. Webster for plaintiff in error.
Mr. Chester L. Collins for defendants in
these words: "But never to be conveyed by them or their heirs without the consent and permission of the President of the United States."
The particular land here in question is a part of the 640 acres reserved by the above treaty for the use of the children of Bokowtonden and their heirs, and embraced by the
Mr. Justice Harlan delivered the opinion patent of 1827. What rights were acquired,
of the court:
This action of ejectment was brought to recover the possession of certain lands in Bay county, Michigan, which the plaintiff, Ann Francis, claims as tenant for her own life, and which are thus described in the declaration: "The east half, the Bokowtonden reserve, excepting land heretofore owned and occupied by F. A. Kaiser, and 10 acres heretofore owned and occupied by Edward McGuiness, being in Township Fourteen, north range four east, and being a part of the Bokowtonden reserve, conveyed by the United States to the children of Bokowtonden and their heirs, by patent, dated November 6th, A. D. 1827."
The defendants pleaded the general issue, giving notice that they would show that for more than twenty years next preceding the commencement of this action they and their grantors had been in open, notorious, exclusive, and adverse possession and occupancy of the lands in question under claim and color of title.
At the conclusion of the evidence the jury, by direction of the court, returned a verdict for the defendants, upon which judgment was rendered. That judgment was affirmed, upon writ of error, by the supreme court of Michigan.
By the treaty of September 24th, 1819, made at Saginaw in the territory of Michigan, and proclaimed March 25th, 1820, be
under and by virtue of the treaty, by those children? In Jones v. Meehan, 175 U. S. 1, 8, 21, 44 L. ed. 49, 52, 57, 20 Sup. Ct. Rep. 1, 4, 9, where one of the questions was as to the nature of the title that passed under an Indian treaty ceding lands to the United States, and which required a certain number of acres to be set apart from the ceded lands for a named Indian chief, this court said: "Was it a mere right of occupancy, with no power to convey the land except to the United States or by their consent? Or was it substantially a title in fee simple, with full power of alienation? Undoubtedly, the right of the Indian nations or tribes to their lands within the United States was a right of possession or occupancy only; the ultimate title in fee in those lands was in the United States; and the Indian title could not be conveyed by the Indians to anyone but the United States, without the consent of the United States,"-citing Johnson v. M'Intosh, 8 Wheat. 543, 5 L. ed. 681; Cherokee Nation v. Georgia, 5 Pet. 1, 17, 8 L. ed. 25, 31; Worcester v. Georgia, 6 Pet. 515, 544, 8 L. ed. 483, 495; Doe ex dem. Mann v. Wilson, 23 How. 457, 463, 16 L. ed. 584, 586; United States v. Cook, 19 Wall. 591, 22 L. ed. 210; United States v. Kagama, 118 U. S. 375, 381, 30 L. ed. 228, 230, 6 Sup. Ct. Rep. 1109; Buttz v. Northern P. R. Co. 119 U. S. 55, 67, 30 L. ed. 330, 335, 7 Sup. Ct. Rep. 100. But in that case, after an extended re
view of previous decisions, this court further, said: "The clear result of this series of decisions is that when the United States, in a treaty with an Indian tribe, and as part of the consideration for the cession by the tribe of a tract of country to the United States, make a reservation to a chief or other member of the tribe of a specified number of sections of land, whether already identified, or to be surveyed and located in the future, the treaty itself converts the reserved sections into individual property; the reservation, unless accompanied by words limiting its effect, is equivalent to a present grant of a complete title in fee simple; and that title is alienable by the grantee at his pleasure, unless the United States, by a provision of the treaty, or of an act of Congress, have expressly or impliedly prohibited or restricted its alienation."
tion of its several stipulations. A patent, although the usual, is by no means the only, mode in which the title to the public domain can pass from the government to an individual. It may pass by an act of Congress, or by a treaty stipulation, as well as by a patent. The Indian title to the land reserved did not pass to the United States by the treaty, which operated as a release, by both the Indians and government, of all interest either had in the lands reserved to the respective reservees, in fee simple; and it would be a violation of the treaty for the government to claim the land in question." Upon appeal the supreme court of Michigan, 1 Dougl. 546, 558, 564, said: "The first question to be determined is, What estate passed to the reservee under the treaty? The 3d article is in the following words: "There shall be reserved for the use of each of the persons hereinafter mentioned, and their heirs, which persons are all Indians by descent, the following tracts of land,' etc. For the use of Mokitchenoqua, six hundred and forty acres of land, to be located at and near the Grand Traverse of the Flint river, in such manner as the President of the United States may direct.' It is very clear that, if a fee-simple estate was intended to be granted, the parties to the treaty were unfortunate in the choice of terms by which to give effect to that intention; and yet it is difficult to conceive that any other estate was in the contemplation of the parties at the time of its existence. Will, then, the 3d article warrant such a construction? It will be observed that the reservation is to the use of Mo
Did an alienable title in fee simple pass to the children of Bokowtonden by virtue of the treaty of 1819, 1820? That question was under consideration in the courts of Michigan a long while ago and was answered in the affirmative; and it would seem that their construction of the provisions in question has become a rule of property in that state. In Stockton v. Williams, Walk. Ch. (Mich.) 120, 129, decided in 1843, the question was elaborately discussed and fully considered. The treaty in that case the same one involved here-contained these words: "There shall be reserved for the use of each of the persons hereinafter mentioned and their heirs, which persons are all Indians 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 resly 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 restriction; certainly not, without the authority of an act of Congress, and no such act was ever passed. The children of Bokowtonden having, then, obtained by the treaty the right to convey, there is no reason to doubt that title could be acquired by prescription. The evidence shows that the defendants and those through whom they claim have had peaceable, adverse possession of the premises in question continuously for more than half a century prior to the commencement of this action.
In Dewey v. Campau, 4 Mich. 565, 566, the court, interpreting the same treaty, said: "A title in fee, under this clause of the treaty, passed, by this language, to the resThe term 'reservation' was equivalent to an absolute grant. The title passed as effectually as if the grant had been executed. The title was conferred by the treaty; it was not, however, perfect until the location was made; the location was necesary to give it identity. The location was duly made, and thus the title to the land in controversy was consummated by giving identity to that which was before unlocated." In Campau v. Dewey, 9 Mich. 381, 433, reference was made to Stockton v. Williams, 1 Dougl. (Mich.) 546, above cited, the court saying: "This decision has, for sixteen 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 on the faith of this decision. We are therefore compelled to recognize it as a rule of property which we are not at liberty to disturb." These cases were not, in any sense, modified by Auditor General v. Williams, 94 Mich. 180, 53 N. W. 1097, which was the case of an Indian treaty which expressly provided that the land there in question should never be sold or alienated to any person or persons whomsoever, without the consent of the Secretary of the Interior for the time,-manifestly a different case from the present one, in which the treaty contained no restriction upon alienation.
The result of the cases cited is: 1. That this court and the highest court of Michigan concur in holding that a title in fee may pass by a treaty without the aid of an act of Congress, and without a patent. 2. That the construction of the treaty here involved, whereby the respective Indians named in its 3d article are held to have acquired by the treaty a title in fee to the land reserved for the use of themselves, has become a rule of
Without assigning other grounds in support of the ruling below, the judgment of the Supreme Court is affirmed.
Mr. Justice White did not participate in the decision of this case.
ST. MARY'S FRANCO-AMERICAN PE-
STATE OF WEST VIRGINIA.
Constitutional law-due process of law-appointing state auditor to accept service upon corporation.
1. A domestic corporation whose principal office and works are outside the state is not deprived of its liberty and property without due process of law by W. Va. Acts 1905, chap. 39, requiring every foreign and nonresident domestic corporation to appoint the state auditor to accept service of process, and exacting an annual fee of $10 for his services, although the prior laws left it to the corporation to appoint an attorney for that purpose.
Constitutional law-equal protection of the laws-appointing state auditor to accept service upon corporation.
2. The equal protection of the laws is not denied to a domestic corporation whose principal office and works are outside the state, by W. Va. Acts 1905, chap. 39, requiring every foreign and nonresident domestic corporation to appoint the state auditor to
accept service of process, and exacting an|ginia, to accept service on behalf of said annual fee of $10 for his services.
Submitted November 5, 1906. Decided December 3, 1906.
I N ERROR to the Supreme Court of Appeals of the State of West Virginia to review a judgment awarding a peremptory writ of mandamus to compel a nonresident domestic corporation to appoint the state auditor to accept service of process. Affirmed.
corporation, and as a person upon whom service may be had of any process or notice, and to make returns of its property for taxation."
At the time the company was incorporated § 8 of chapter 53 of the state Code read:
"Where the legislature has the right to alter or repeal the charter or certificate of incorporation heretofore granted to any joint stock company, or to alter or repeal any law relating to such company, nothing contained in this chapter shall be construed to surrender or impair such right. And the 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 by the same instrument to declare its consent that service of any process or notice in this state on said attorney in fact, or his acceptance thereof indorsed thereon, shall be equivalent for all purposes to, and shall be and constitute, due and legal service upon the said St. Mary's Franco-American Petroleum Company, and that the petitioner recover from the respondent her costs about the prosecution of her petition in this court in this behalf expended."
It was agreed by the parties that no rule to show cause need be issued on the petition for mandamus, nor any alternative writ, but that the petition might stand as such writ, and the case be determined on demurrer thereto, which was filed.
"Every such corporation having its principal office or place of business in this state shall, within thirty days after organization, by power of attorney duly executed, appoint some person residing in the county in this state wherein its business is conducted, to accept service on behalf of said corporation, and upon whom service may be had of any process or notice, and to make such return for and on behalf of said corporation to the assessor of the county or district wherein its business is carried on, as is required by the 41st section of the 29th chapter of the Code. Every such corporation having its principal office or place of business outside this state shall, within thirty days after organizing, by power of attorney duly executed, appoint 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 and chief works in the city of Lima, in the state of Ohio;" that the corporation "was organized, and now exists by virtue of a charter issued to it by the secretary of state of the state of West Virginia on the 18th day of January, 1902;" and that "on the 17th day of February, 1902, the said defendant corporation, by power of attorney, duly and legally executed, filed, and recorded, appointed one Wm. M. O. Dawson, a resident of the county of Kanawha in the state of West Vir
county court of the county in which the attorney resides, and filed and recorded in the office of the secretary of state, and the admission to record of such power of attorney shall be deemed evidence of compliance with the requirements of this section. Corporations heretofore organized may comply with said requirements at any time within three months after the passage of this act. Any corporation failing to comply with said requirements within six months after 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 so to comply within twelve months after the passage of this act shall, by reason of such failure, forfeit its charter to the state, and the provisions of § 8, chapter 20, Acts 1885, relative to notice and publication, shall apply thereto."
On the 22d day of February, 1905, the legislature of West Virginia passed an act -chapter 39 of the Acts of 1905-which is as follows:
cepting, any such process or notice, the auditor shall make and file with said power of attorney a copy of such process or notice, with a note thereon indorsed of the time of service or acceptance, as the case may be, and transmit such process or notice by registered mail to such corporation at the address last furnished as aforesaid. But no such process or notice snall be served on the auditor or accepted by him less than ten days before the return thereof.
"Sec. 4. In addition to the auditor, any such company may designate any other person in this state as its attorney in fact, upon whom service of process or notice may be made or who may accept such service. And, when such local attorney is appointed, process in any suit or proceeding may be served on him to the same effect as if the same were served on the auditor.
"Sec. 5. Failure to pay the attorney's fee as hereinbefore required shall have all the force and effect, and subject such corporation to the same penalties and forfeitures, as are or may be prescribed by law for failure to pay the license tax required to be paid by such corporation.
"Sec. 6. Any corporation failing to comply with the provisions of this act in so far as it relates to the appointment of the auditor as its statutory attorney, within ninety days from its incorporation, shall forfeit $100 as a penalty for such failure, and upon failure to pay such penalty, the charter of such corporation shall thereby be forfeited and void."
"Sec. 1. The auditor of this state shall be, and he is hereby constituted, the attorney in fact for and on behalf of every foreign corporation doing business in this state, and of every nonresident domestic corporation. Every such corporation shall, by power of attorney, duly executed, acknowledged, and filed in the auditor's office of this state, appoint said auditor and his successors in office, attorney in fact to accept service of process and notice in this state for such corporations, and by the same instrument it shall declare its consent that service of any process or notice in this state on said attorney in fact, or his acceptance thereof indorsed thereon, shall be equivalent for all purposes to, and shall be and constitute, due and legal service upon said corporation. "Sec. 2. Such foreign or nonresident domestic corporation shall, at the time of taking out its charter, or procuring its authority to do business in this state, as the case may be, pay to the auditor as its said attorney $10 for his services as such for the then current year ending on the 30th day of April next ensuing; and on or before the 1st day of May, for each year, such corporation shall pay to said auditor the like sum of $10 for his services as such attorney. And all such corporations as have heretofore taken out charters, or procured authority to do business in this state, shall, for the fiscal year commencing on the 1st day of May, 1905, pay the sum of $10 to the auditor as the fee for such attorney to receive service of process, and annually thereafter a like sum, and such corporation shall not be required to pay any fee to the person who may have been heretofore appointed its attorney to receive service of process. All moneys received by the auditor under this chapter shall belong to the state, and be by him immediately paid into the state treas-out merit. The state had the clear right to ury. The auditor shall keep in a well bound book in his office a true and accurate account of all moneys so received and paid over to him.
The company refused to comply with the act, and, thereupon, this proceeding was instituted.
Messrs. W. E. Chilton and Chilton, Mac-
Mr. Chief Justice Fuller delivered the opinion of the court:
It is argued that the act of February 22, 1905, is invalid under the 14th Amendment, in that it deprives the company of liberty of contract and property without due process of law, and denies it the equal protection of the laws. But, in view of repeated decisions of this court, the contention is with
regulate its own creations, and a fortiori, foreign corporations permitted to transact business within its borders.
In this instance it put all nonresident do