to depute the sheriff, constable, or other officer, as aforesaid, of the county where the office of the insurance commissioner may be located, to serve the same on him; and each and every service so made shall have the same force and effect, to all intents and purposes, as personal service on said company in the county where said process issued; . . .” before the suit was instituted in Pennsylvania. In order to obviate this difficulty the plaintiffs, in their declaration or statement in assumpsit, in the Pennsylvania court, alleged that the contract of insurance was governed by the laws of Indiana, "the contract having been entered into at Indianapolis, Indiana;" also, that "said policy of insurance and the contract touching the issuing the same were executed in the state of Indiana, in which state all provisions limiting liability on policies where suit is not brought within a certain time are held void and of no account." The plaintiffs cannot, therefore, be heard now to say that the contract was not, in fact, made in Indiana. What they alleged in the Pennsylvania suit precluded the idea that the contract of insurance was made in that commonwealth. Indeed, if they had alleged that the business was transacted in Pennsylvania, their action on the contract would have been defeated by the condition in the policy that no suit thereon could be brought on it after the expiration of six months from the death of the person whose life was insured. The defendant association introduced no evidence. If, looking alone at the pleadings in the Pennsylvania suit, it be taken that, at the time of the contract in question, the Indiana corporation was engaged in transacting, at least some business in Pennsylvania, without having complied with the provisions of the above statute of that commonwealth, that is, without having filed with the insurance commissioner the written stipulation required by that statute, -still, plaintiffs cannot claim, on the present record, the full benefit of the general rule that the judgment of a court of superior authority, when proceeding within the general scope of its powers, is presumed to act rightly within its jurisdiction; that nothing shall be "intended to be out of the jurisdiction of a superior court but that But even if it be assumed that the inwhich specially appears to be so." Pea-surance company was engaged in some busicock v. Bell, 1 Wms' Saund. 74. When a judgment of a court of superior authority is attacked collaterally for the want of jurisdiction, such a presumption cannot be indulged when it affirmatively appears from the pleadings or evidence that jurisdiction was wanting. We make this observation in view of the fact, distinctly shown by the plaintiffs themselves, that the policy of insurance and contract in question was, in fact, executed in Indiana, and not in Pennsylvania. The policy sued on provided as one of its conditions that "for all purposes and in all cases this contract shall be deemed to have been made at the special office of this association in the state of Indiana, U. S. A., and all benefits and claims thereunder shall be payable at such office." Besides, to the complaint or petition in the Pennsylvania court was appended the following memorandum signed by the attorney for the plaintiffs: "The above contract of insurance is governed by the laws of the state of Indiana, the contract having been entered into at Indianapolis." And when the suit was brought in Pennsylvania the plaintiffs were confronted with the condition in the policy that "it is expressly understood and agreed that no action shall be maintained nor recovery had for any claims under or in virtue of this policy, after the lapse of six months from the death of said member,"-McNally. More than six months had elapsed after McNally's death ness in Pennsylvania at the time the contract in question was made, it cannot be held that the company agreed that service of process upon the insurance commissioner of that commonwealth would alone be sufficient to bring it into court in respect of all business transacted by it, no matter where, with, or for the benefit of, citizens of Pennsylvania. Undoubtedly, it was competent for Pennsylvania to declare that no insurance corporation should transact business within its limits without filing the written stipulation specified in its statute. Lafayette Ins. Co. v. French, 18 How. 404, 15 L. ed. 451; Paul v. Virginia, 8 Wall. 168, 19 L. ed. 357; Hooper v. California, 155 U. S. 648, 653, 39 L. ed. 297, 300, 5 Inters. Com. Rep. 610, 15 Sup. Ct. Rep. 207, and authorities cited; Waters-Pierce Oil Co. v. Texas, 177 U. S. 28, 45, 44 L. ed. 657, 664, 20 Sup. Ct. Rep. 518. It is equally true that, if an insurance corporation of another state transacts business in Pennsylvania without complying with its provisions, it will be deemed to have assented to any valid terms prescribed by that commonwealth as a condition of its right to do business there; and it will be estopped to say that it had not done what it should have done in order that it might lawfully enter that commonwealth and there exert its corporate powers. Baltimore & O. R. Co. v. Harris, 12 Wall. 65, 20 L. ed. 354, the question was as to the jurisdiction of the supreme court of the Dis In the meaning of the 14th Amendment,t-we hold that the judgment in Pennsylvania was not entitled to the faith and credit which, by the Constitution, is required to be given to the public acts, records, and judicial proceedings of the several states, and was void as wanting in due process of law. The judgment of the Supreme Court of Indiana must, therefore, be reversed, with directions for further proceedings not inconsistent with this opinion. It is so ordered. trict of Columbia of a suit against a corpo- | sylvania court in rendering the judgment ration in Maryland, whose railroad entered must be deemed that of the state within the District with the consent of Congress. This court said: "It [the corporation] cannot migrate, but may exercise its authority in a foreign territory upon such conditions as may be prescribed by the law of the place. One of these conditions may be that it shall consent to be sued there. If it do business there it will be presumed to have assented, and will be bound accordingly." This language was cited and approved in Chicago & N. W. R. Co. v. Whitton, 13 Wall. 270, 285, 20 L. ed. 571, 576. The same question was before the court in Ex parte Schollenberger, 96 U. S. 369, 376, 24 L. ed. 853, 854, and the principle announced in the Harris and Whitton Cases was approved. In the Schollenberger Case the Pennsylvania statute here in question was involved. To the same effect are the following cases: Ehrman v. Teutonia Ins. Co. 1 McCrary, 123, 129, 1 Fed. 471; Knapp, S. & Co. v. National Mut. F. Ins. Co. 30 Fed. 607; Berry v. Knights Templars' & M. Life Indemnity Co. 46 Fed. 439, 441, 442; Diamond Plate Glass Co. v. Minneapolis Mut. F. Ins. Co. 55 Fed. 27; Stewart v. Harmon, 98 Fed. 190, 192. V. FRANKLIN S. JEROME, Plff. in Err., CHARLES P. COGSWELL, the State Savings Bank, et al. National banks-reduction of capital stock -distribution of charged-off assets. The stockholders of record at the time of the reduction of the capital stock of a national bank, and not those of record at the expiration of its charter, are entitled to the proceeds of the bad or doubtful assets set apart at the time of such reduction in compliance with the requirement of the Comptroller of the Currency that such assets should be charged off or set aside for the benefit of those who were then stockholders, the bank, after such reduction, unimpaired, and a surplus exclusive of the being left with its capital stock, as reduced, assets in question. Conceding, then, that by going into Pennsylvania, without first complying with its statute, the defendant association may be held to have assented to the service upon the insurance commissioner of process in a suit brought against it there in respect of business transacted by it in that commonwealth, such assent cannot properly be implied where it affirmatively appears, as it does here, that the business was not transacted in Pennsylvania. Indeed, the Argued November 2, 1906. Decided January Pennsylvania statute, upon its face, is only directed against insurance companies who [No. 80.] 7, 1907. do business in that commonwealth,-"in IN ERROR to the Supreme Court of Errors of the State of Connecticut to review a the Superior Court of New London County, in that state, adjudged that the stockholders of record of a national bank at the time of its reduction of its capital stock were entitled to the charged-off assets, and directed distribution accordingly. Affirmed. See same case below, 78 Conn. 75, 60 Atl. 1059. this state." While the highest considerations of public policy demand that an in- judgment which, reversing the judgment of tions of public policy demand that an insurance corporation, entering a state in desurance corporation, entering a state in defiance of a statute which lawfully prescribes the terms upon which it may exert its powers there, should be held to have assented to such terms as to business there transacted by it, it would be going very far to imply, and we do not imply, such assent as to business transacted in another state, although citizens of the former state may be interested in such business. As the suit in the Pennsylvania court was upon a contract executed in Indiana; as the personal judgment in that court against the Indiana corporation was only upon notice to the insurance commissioner, without any legal notice to the defendant association, and without its having appeared in person or by attorney or by agent in the suit; and as the act of the Penn27 S. C.-16. Statement by Mr. Chief Justice Fuller: Ex parte Virginia, 100 U. S. 339, 346, 347, 25 L. ed. 676-680; Neal v. Delaware, 103 U. S. 370, 26 L. ed. 567; Yick Wo v. Hopkins, 118 U. S. 356, 30 L. ed. 220, 6 162 U. S. 565, 40 L. ed. 1075, 16 Sup. Ct. Sup. Ct. Rep. 1064; Gibson v. Mississippi, Rep. 904; Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 233, 234, 41 L. ed. 979, 983, 984, 17 Sup. Ct. Rep. 581. Connecticut, was a banking a banking association, | items were of real estate; the rest were not organized and existing under the laws of the United States, with a capital stock of $300,000. As stated, in substance, by the supreme court of errors of Connecticut, the directors, having voted to recommend a reduction of the capital stock from $300,000 to $200,000, were advised by the Comptroller of the Currency that it would be approved, "provided so much of the amount as is necessary is used to charge off bad, doubtful, and unproductive assets, the difference only being paid to the shareholders in cash," and that "the shareholders of a national bank, upon a reduction in capital stock, are entitled to either receive the cash or the charged-off assets, and neither can be withheld without their consent." The Comptroller also informed the president of the bank: "The assets belong to the stockholders of record, and a trust fund must be created, so that those assets may be distributed among the stockholders of record when your capital is reduced." The stockholders, in May, 1900, voted to make the reduction, and the president first, and then the directors, filed with the Comptroller a written statement that "the whole amount of the reduction, viz., $100,000, will be used for the purpose of charging off bad, doubtful, and unproductive assets, no money to be paid to the shareholders unless realized from said assets, which are to be set aside and collected for the benefit of the shareholders of record at date of the issuance of the Comptroller's certificate approving the reduction." The Comptroller gave his certificate, dated June 9, 1900, approving the reduction, without any qualifications. "On June 27th a schedule of certain assets of the bank, each item being given a valuation, and the total valuations of all amounting to $100,307.86, was presented to the directors, who thereupon voted that the assets so scheduled, 'which assets are considered either bad or doubtful, and on account of which the capital stock of the bank has been reduced from $300,000 to $200,000, be set aside from the other assets of the bank, and be held by it in trust for the stockholders of record on the 9th day of June, 1900, and that whatever may be realized from said assets be distributed from time to time as may be reasonable among said stockholders in proportion to their respective holdings on said date.' "Thereupon the the account with capital stock on the books of the bank was credited with a reduction of $100,000, and the items named in the schedule above described were charged to the account of profit and loss at the valuation of $100,307.86. Some of the well secured; and all were those referred to in the directors' statement to the Comptroller, dated June 9th. "This left the bank with good assets worth over $240,000. "The bank thereafter, until its charter expired in 1903, kept a separate account relating to to the assets included in the schedule, entitled 'Stockholders' Trust,' in which were credited all collections and charged all expenditures arising in connection with endeavors to realize upon them. "Two of the scheduled items represented claims for a larger amount; the valuation affixed to each representing the estimated loss upon it. The same claims were also entered in the books of the bank, as part of its remaining capital, at a valuation for each equal to the difference between its face and the valuation assigned to it in the schedule. "The receiver has received $20,240 on account of the scheduled assets. Some of them also remain uncollected, but have a value. To one of the items, entered as 'Demand loans, E. A. Packer, $15,647.50.' belonged certain railroad stock held as collateral security. A note for over $1,000, made by 'C. P. Cogswell, trustee,' and discounted by the bank to pay an assessment on this stock, was included in the reduced capital of $200,000, and in March, 1903, was paid off from the proceeds of sales of the stock; leaving a balance of such proceeds, which was included in the $20,240 above mentioned. "All the certificates representing the shares in the original capital were, on or about July 1st, 1900, exchanged by the holders for certificates in favor of each for two thirds of the number of his original shares." The charter of the bank expired by lapse of time February 24, 1903, and its affairs were being settled in the manner provided by law, when a complaint in equity was filed by a stockholder in the superior court of Connecticut, asking for the appointment of a receiver to wind up its affairs, because of alleged misappropriation, and a receiver was appointed. The receiver filed a petition with the court, stating that in May, 1900, the capital stock of the bank was reduced from $300,000 to $200,000, and that thereupon assets of the face value of $100,000 were charged off and set aside, and that a question had arisen as to whether the proceeds of those assets be distributed to the stockholders of record at the time of the reduction or of the expiration of the charter. Claims to the charged-off assets by virtue of ownership of original stock when capital was reduced; of such stock, although it had been surrendered and new stock issued; and of stock after the reduction,-were filed. The superior court held that those assets belonged to the bank, and should be distributed to the stockholders of record at the expiration of its charter. The supreme court of errors adjudged that the stockholders of record at time of reduction were entitled to the charged-off assets, and reversed the judgment of the superior court, with directions to distribute accordingly. 78 Conn. 75, 60 Atl. 1059. Whereupon this writ of error was brought. should be charged off or set aside for the benefit of those who were stockholders at the date of the approval. This requirement, though not stated in the certificate of approval, was evidently, on the facts, made a condition thereof, and presumably in accordance with the practice of the Comptroller's office, and was imposed to the end that justice might be done to the owners of the original shares. It is said that the original capital of the bank of $300,000 was impaired prior to the reduction, say to the extent of $30,000, as shown by adding to the $240,000 the value of the scheduled assets, estimated at $30,000. As a general rule, it may be admitted that where capital stock is impaired and a reduction is made merely to meet that impairment, there can be no distribution. But that is not this case, in which the stockholders of record June 9, 1900, had a right to require a distribution among them of an excess upon reduction in proportion to their respective holdings. In the language of the Connecticut supreme court: "The right to from the fund thus set apart became, therereceive what might ultimately be realized fore, irrevocably vested in those who were shareholders on June 9th, 1900, and they or their assigns are now entitled to what ever is to be distributed from it." Conn. 79, 60 Atl. 1060.] [78 It follows, as held, that the transfer of shares after the reduction of June 9, 1900, did not carry any right to an interest in the special trust fund, the proportionate interest therein having vested in the then shareholders as individuals. The result is unaffected by the fact that distribution in cash may have been contemplated as the assets set aside were realized upon. The conclusion at which we have arrived dispenses with the necessity of discussing other questions suggested. Judgment affirmed. CORWIN D. BACHTEL, Plff. in Err., The reduction in this case was accomplished at a time when the bank was noɔt being wound up, by the required vote of the stockholders, and with the approval of the Comptroller of the Currency, and the R. FRANK WILSON, Sheriff of Stark Coun new shares on the basis of the reduction were accepted by all the stockholders. The bank was left with good assets of more than $240,000, or, in other words, with an unimpaired capital stock of $200,000 and a surplus of 20 per cent, that is, $40,000, exclusive of the assets, the distribution of which is the matter in controversy. These assets were set apart in compliance with the requirement of the Comptroller that certain bad, doubtful, and unproductive assets V. ty, Ohio. Error to state court-Federal question-decision on non-Federal ground. The judgment of the Ohio supreme court upholding the validity of the provisions of the free banking act of March 21, 1851, § 30, as amended April 24, 1879, under which an indictment had been found against that act, in the face of the objection that the cashier of a bank incorporated under such section, by subjecting officers of institutions so incorporated to criminal liabilit when officers of other banking institutions | A demurrer to the indictment having been guilty of similar acts are not so subjected, overruled, he, before arraignment, sued out denies the equal protection of the laws, a writ of habeas corpus in the circuit court cannot be reviewed by the Federal Supreme of that county. Thereafter, the final judgCourt, where the failure of the state court to file an opinion leaves it doubtful wheth- ment of the supreme court of the state in er that court may not have held that the that proceeding having been adverse, he words "any banking company," as used in brought the case here on this writ of error. the section in question, embrace all banking institutions in the state, whether incorporated under the free banking act or not. ERROR to the Supreme Court of the Mr. William A. Lynch for plaintiff in error. Messrs. Charles C. Upham and John W. Craine for defendant in error. Mr. Justice Brewer delivered the opinion of the court: Counsel predicate the unconstitutionality of this statute, not on its provisions standother statutes. I state of Ohio to review a judgment ing by themselves, but on its relation to which affirmed a judgment of the Circuit Court of Stark County, in that state, dismissing a writ of habeas corpus sued out by the cashier of a bank incorporated under the free banking act, who had been indicted for a violation of such act. Dismissed for want of jurisdiction. Statement by Mr. Justice Brewer: The sole question in this case, as stated by counsel for plaintiff in error, is whether the following section of the statutes of Ohio contravenes § 1 of the 14th Amendment of the Constitution of the United States: "Every president, director, cashier, teller, clerk, or agent of any banking company who shall embezzle, abstract, or wilfully misapply any of the moneys, funds, or credits of such company, or shall, without authority from the directors, issue or put forth any certificate of deposit, draw any order or bill of exchange, make any acceptance, assign any notes, bonds, drafts, or bills of exchange, mortgage, judgment, or decree, or shall make any false entry in any book, report, or statement of the company, with intent in either case to injure or defraud the company, or any other company, body politic or corporate, or any individual person, or to deceive any officer of the company, or any agent appointed to inspect the affairs of any banking company in this state, shall be guilty of an offense, and, upon conviction thereof, shall be confined in the penitentiary, at hard labor, not less than one year nor more than ten years." Section 30, act of March 21, 1851, entitled, "An Act to Authorize Free Banking," as amended April 24, 1879, 76 Ohio Laws, 74; 2 Bates's Anno. Stat. (Ohio) 6th ed. §§ 38213885. Plaintiff in error, who was cashier of the Canton State Bank, a bank incorporated under the above "free banking" act, was indicted in the court of common pleas of Stark county for a violation of this section. On February 26, 1873 (70 Ohio Laws, 40), an act was passed in terms incorporating savings and loan associations, but with powers such as in fact authorized the carrying on of ordinary commercial banking. Under this statute a few institutions were organized. In 1880 a general incorporation law was enacted (Rev. Stat. Ohio 1880, § 3235 and following), and under it many banks were formed. In addition the banking statistics of the state show that there are several banks owned by unincorporated stockholders, copartnerships, or individuals. Now, in no statute, save the free banking act, is there any section with provisions kindred to those in § 30, above quoted, and the contention is that the plaintiff in error was denied the "equal protection of the laws" guaranteed by the 14th Amendment, in that he was subject to prosecution and punishment for matters and things which, if done by a cashier of any similar institution, whether unincorporated or incorporated under the statutes of Ohio other than the free banking act, would not subject him to punishment. The cashiers of such other institutions are charged with duties substantially the same as those of this plaintiff in error, and yet the one may be punished for a violation of those duties and the others not. Can the state single out a few men and punish them for acts, when for like acts others are free from liability? If "any No opinion was filed by the supreme court of the state, and we, therefore, are not advised of the grounds upon which that court held § 30 valid; yet that court did hold it valid, and in the face of the same objections that are made to it here. banking company," as found in the free banking act, is applicable to every banking institution, no matter under what statute organized, there is no violation of the equal protection of the laws. Counsel for plaintiff in error contend that the supreme court |