cants go farther. There are insuperable difficulties in the way of at least this form of suit, and the Department of the Interior generally has been the custodian of Indian rights. Judgment affirmed. tion must have been approved by the Indian appeal to the courts in all cases where an Office to be valid, as provided by a regula-applicant is dissatisfied. Of course the tion of that Department. The relator con- promise of the United States that there tends that the validity of the adoption was shall be allotted 160 acres to each member a matter purely of Indian law or custom, of the Wichita band may be said to confer and that the Department could not take it an absolute right upon every actual memunder control. Probably it would have been ber of the band. But someone must decide unfortunate for the Indians if such control who the members are. We already have had not been exercised, as the temptation expressed the opinion that the primary deto white men to go through an Indian mar-cision must come from the Secretary. There riage for the purpose of getting Indian is no indication of an intent to let applirights is sufficiently plain. We are disposed to think that authority was conferred by the general words of the statutes. Rev. Stat. §§ 441, 463, U. S. Comp. Stat. 1901, pp. 252, 262. By the latter section: "The Commissioner of Indian Affairs shall, under the direction of the Secretary of the Interior, and agreeably to such regulations as the President may prescribe, have the management of all Indian affairs, and of all matters arising out of Indian relations." We should hesitate a good deal, especially in view of the long-established practice of the Department, before saying that this language was not broad enough to warrant a regulation obviously made for the welfare of the rather helpless people concerned. The power of Congress is not doubted. The Indians have been treated as wards of the nation. Some such supervision was necessary, and has been exercised. In the absence of special provisions, naturally it would be exercised by the Indian Depart ment. CITIZENS' SAVINGS & TRUST COM- V. ILLINOIS CENTRAL RAILROAD COM- Courts-jurisdiction of circuit court-proper district for suit-bringing in absent defendants. 1. A suit to cancel and annul certain deeds and leases of the property of a railway company lying wholly within the eastern district of Illinois may be brought and maintained in the Federal circuit court for However, it hardly is necessary to pass that district against defendants who are upon that point. Although the answer gave inhabitants of the northern district of Illithe decision a date, that did not open it for nois, as being a suit to remove an "encumconsideration. If the Secretary had authori- brance or lien or cloud upon the title to ty to pass on the relator's right to select trict where such suit is brought," within real or personal property within the disland, his jurisdiction did not depend upon the meaning of the act of March 3, 1905, his decision being right. By alleging that 33 Stat. at L. 992, 995, chap. 1427, U. S. he had denied the application he did not in- Comp. Stat. Supp. 1905, p. 93), § 8, authorizvoke the revision of his reasons by a court, ing the making of an order in such suits to even when he saw fit to add the date. He bring in absent defendants who are not raised no question of law, but simply stood inhabitants of, or found within, the district, on his authority and put forward his de- and who do not voluntarily appear. cision as final. As we have implied, such Appearance-general or special-waiver. an answer affirms not merely the past but the present determination of the answering tribunal, and must be assumed to be based on reasons that the respondent deems adequate. Even if those given in the letter of July 3, 1901, had been bad, they could not be taken to exhaust the Secretary's grounds. He has not disclosed to the court any statement of those grounds purporting to be exhaustive and complete, and the court cannot make an inquisition into his mental processes to see whether they were correct. See DeCambra v. Rogers, 189 U. S. 119, 122, 47 L. ed. 734, 735, 23 Sup. Ct. Rep. 519. 2. The benefit of the qualified appearance by defendants at the time of filing pleas to the jurisdiction is not waived by arguing the merits of the case as disclosed by the bill on the hearing as to the sufficiency of such pleas, where there was no motion for the dismissal of the bill for want of equity, and the discussion of the merits was permitted or invited by the court in order that it might be informed on that question if it concluded to consider the merits along with the question of the sufficiency of the pleas.* [No. 238.] Submitted January 7, 1907. Decided March We doubt if Congress meant to open an PPEAL from the Circuit Court of the railroad, extending from Belleville, in St. United States for the Eastern District Clair county, Illinois, to Duquoin, Perry of Illinois to review a judgment dismissing, county, in the same state; and a deed of for want of jurisdiction, a suit to cancel and February 17th, 1904, between the Terre annul certain deeds and leases of the Haute company, and the Illinois company, property of a railway company lying wholly purporting to convey to the latter company within that district, against defendants who all the railroad properties, corporate rights are inhabitants of the northern district of and franchises of the former company. Illinois. Reversed and remanded for further proceedings. The plaintiff prayed that these leases and deeds, so far as they affect, or purport to affect, the properties, franchises, rights, or The facts are stated in the opinion. Messrs. Edward C. Eliot and William B. liabilities of the Belleville company, be canSanders for appellant. celed and declared void, and that that com Messrs. J. M. Dickinson and Blewett Lee pany be required to return and account for for appellees. whatever consideration it may have received under such leases and deeds to the party Mr. Justice Harlan, delivered the opinion or parties from whom the consideration may of the court: have moved. This suit in equity was brought in the The bill charges, in substance, that said circuit court of the United States for the deeds were illegally and fraudulently proeastern district of Illinois against the Illi- cured by the Illinois Central Railroad Comnois Central Railroad Company, the Belle- pany, and by means of those instruments, ville & Southern Illinois Railroad Company, and by various improper schemes, it has the St. Louis, Alton, & Terre Haute Rail-acquired not only complete control over and road Company, all Illinois corporations (to possession of the Belleville company and be hereafter called, respectively, the Illi- all its properties, but has managed, and is nois, the Belleville, and Terre Haute com- continuing to manage, those properties in panies), and the United States Trust Com-its own interest and in total disregard of pany, a New York corporation. The lastnamed corporation was never served with process and did not appear in the suit. The case presents a question as to the jurisdic tion of the court below. the rights of holders of the common stock of the Belleville company. Indeed, it is charged that what the Illinois Central Railroad Company has done, is doing (and, unless restrained, will continue to do), has practically destroyed the value of such stock. The plaintiff, an Ohio corporation, is the holder of 400 shares of the common stock of the Belleville company, and sues as well The plaintiff also prayed for a decree orin its own as on behalf of all other stock- dering the defendant, the Illinois Central holders of that company, or beneficiaries, Railroad Company, to account for and pay who may choose to come in and bear their over to the Belleville company, or to a reproportion of the cost and expenses of the ceiver to be appointed for that company, proceedings. Assuming the allegations of such proportion of the yearly gross earnthe bill to be true, the suit is not a col-ings as the Belleville company is entitled lusive one, and could be properly brought by a stockholder of the Belleville company, making that company a defendant. to under the lease executed by and between the Belleville company and the Terre Haute Railroad Company, bearing date October 1st, The bill refers to various instruments. 1866; such accounting to cover each fiscal deeds, and leases, as follows: A deed of year, or part thereof, from the time when October 1st, 1895, between the Terre Haute the Illinois Central Railroad Company first company, the Illinois company, and the acquired and the acquired the railroad properties of the Belleville company, whereby the railroad Belleville company as lessee or sublessee and properties of the Belleville company, under the lease executed on or about the then held by the Terre Haute under a 1st of April, 1896, up to the time of such lease executed in 1866, were transferred to accounting; further, for "an order appointthe Illinois company, for a period of ninety- ing a receiver for the Belleville & Southern nine years; a deed of September 10th, 1897, Illinois Railroad Company, with the usual to which the Belleville and Terre Haute powers of such receivers; and that the Illinois companies were parties, and which purport-Central Railroad Company, through its offied to transfer the title to all the railroad cers and agents, be ordered to surrender and properties of the former to the latter com- deliver to said receiver all the corporate aspany; a lease of September 15th, 1897, by sets, books, papers, and everything that the Terre Haute company to the Illinois rightfully belongs to the Belleville & SouthCentral Railroad Company, confirming the ern Illinois Railroad Company, and that the above lease of October 1st, 1895, and cov- Illinois Central Railroad Company be orering, among other properties, the Belleville dered to account to such receiver, as is here inbefore prayed. That the defendant, the Illinois Central Railroad Company, its officers and agents, be restrained from further violating the rights of your orator, and be ordered, directed, and restrained in particular from interfering in any way with said receiver, or with the operation of said Belleville company as an independent and separate railroad company; and for such other and further relief as the equity of the case may require." Process in the case against the Illinois company was served upon its ticket agent at East St. Louis, "there being no president, vice president, secretary, or treasurer of that company found" in the district; and against the Belleville and Terre Haute companies, upon a director of each company, at Pinkneyville, Illinois, there being no president, vice president, secretary, or treasurer of either of those companies found in the district. The Belleville company pleaded-especially appearing, under protest, for the purposes of its plea, and no other-that the court below was without jurisdiction to proceed against it, in that the defendant was an inhabitant of the northern division of the northern district of Illinois, having its residence in that division and district at Chicago, where its corporate meetings were held and its corporate business transacted. Similar pleas were filed by the Terre Haute company and the Illinois Central Railroad Company, each specially appearing under protest for the purpose only of denying the jurisdiction of the court below, and each company claiming to be an inhabitant and resident of the northern district of Illinois. encumbrance or lien or cloud upon the title to, real or personal property within the district where such suit is brought, one or more of the defendants therein shall not be an inhabitant of, or found within, the said district, or shall not voluntarily appear thereto, it shall be lawful for the court to make an order directing such absent defendant or defendants to appear, plead, answer, or demur, by a day certain to be designated, which order shall be served on such absent defendant or defendants, if practicable, wherever found, and also upon the person or persons in possession or charge of said property, if any there be; or, where such personal service upon such absent defendant or defendants is not practicable, such order shall be published in such manner as the court may direct, not less than once a week for six consecutive weeks; and in case such absent defendant shall not appear, plead, answer, or demur within the time so limited, or within some further time, to be allowed by the court, in its discretion, and upon proof of the service or publication of said order, and of the performance of the directions contained in the same, it shall be lawful for the court to entertain jurisdiction, and proceed to the hearing and adju. dication of such suit in the same manner as if such absent defendant had been served with process within the said district; but said adjudication shall, as regards said absent defendant or defendants without appearance, affect only the property which shall have been the subject of the suit and under the jurisdiction of the court therein, within such district," etc. 18 Stat. at L. 470, 472, chap. 137, U. S. Comp. Stat. 1901, p. 513. These provisions were substantially those embodied in § 738 of the Revised Statutes, By its final order the court sustained the pleas to the jurisdiction, and dismissed the suit. This case is here upon a certificate as to except that the act of 1875 embraced (as the jurisdiction of the circuit court. § 738 did not) suits in equity "to remove any encumbrance or lien or cloud upon the title to real or personal property." Both § 738 and the act of 1875 related to legal and equitable liens or claims on real and personal property within the district where the suit was brought. The eastern district of Illinois was created by the act of Congress approved March 3d, 1905, chap. 1427. 33 Stat. at L. 992, 995, U. S. Comp. Stat. Supp. 1905, p. 93. The present suit in equity was, as we have stated, instituted in the circuit court for that district, but its jurisdiction was denied by The repealing clause of the judiciary act the judgment below upon the ground solely of 1887, 1888 (24 Stat. at L. 552, chap. 373, that each defendant railroad corporation 25 Stat. at L. 433, chap. 866, U. S. Comp. was shown to be an inhabitant of the north-Stat. 1901, p. 508), did not reach the 8th ern district of Illinois, not of the eastern section of the act of 1875. That section is district, and, therefore, this suit was not local to the latter district. By the 8th section of the act of March 3d, 1875, determining the jurisdiction of the circuit courts of the United States, it was provided: "That when, in any suit commenced in any circuit court of the United States, to enforce any legal or equitable lien upon, or claim to, or to remove any still in force, as was expressly held in Jellenik v. Huron Copper Min. Co. 177 U. S. 1, 10, 44 L. ed. 647, 650, 20 Sup. Ct. Rep. 559. We are then to inquire as to the scope of the 8th section of the above act of 1875. And that inquiry involves the question whether this suit is one "to enforce any legal or equitable lien upon, or claim to, or to remove any encumbrance or lien or cloud upon the title to, real or personal property" within the eastern district of Illinois where the suit was brought. therefore an encumbrance or cloud upon the title, to their prejudice. Until such lien or encumbrance was removed, they could not know the extent of their interest in the property or in the proceeds of its sale. The case made by the original, as well as cross suit, seems to be within both the letter and the spirit of the act of 1875." In Mellen v. Moline Malleable Iron Works, 131 U. S. 352, 33 L. ed. 178, 9 Sup. Ct. Rep. 781, we had occasion to examine the provisions of the act of 1875. A question there arose as to the jurisdiction of a circuit A recent case is that of Jellenik v. Huron court of the United States to render a de- Copper Min. Co. supra. That was a suit by cree annulling a trust deed and chattel mort- stockholders of a Michigan corporation. Its gage covering property within the district object, as the bill disclosed, was to remove where the suit was brought, in which suit the cloud that had come upon their title to the defendants did not appear, but were the shares of stock held by them. The isproceeded against in the mode authorized by sues in the case made it necessary to deterthe above act of 1875. This court said: mine the scope of the above act of 1875, "The previous statute gave the above rem- chap. 137. This court said: "Prior to the edy only in suits 'to enforce any legal or passage of the above act of March 3, 1875, equitable lien or claim against real or per- the authority of a circuit court of the sonal property within the district where the United States to make an order directing a suit is brought,' while the act of 1875 gives defendant-who was not an inhabitant of it also in suits brought to remove any en- nor found within the district, and who did cumbrance or lien or cloud upon the title not voluntarily appear-to appear, plead, to' such property. Rev. Stat. § 738; 18 answer, or demur, was restricted to suits Stat. at L. 472, chap. 137, § 8, U. S. Comp. in equity brought to enforce legal or equiStat. 1901, p. 513. We are of opinion that table liens or claims against real or perthe suit instituted by the furnace company sonal property within the district. Rev. against the iron works and others belonged Stat. § 738. But that act extended the to the class of suits last described. The authority of the court to a suit brought 'to trust deed and chattel mortgage in question remove any encumbrance or lien or cloud. embraced specific property within the dis- upon the title to real or personal property trict in which the suit was brought. The within the district where such suit is furnace company, in behalf of itself and brought.' One of the objects of the present other creditors of the iron works, claimed suit was to remove an encumbrance or cloud an interest in such property as constituting upon the title to certain shares of the stock a trust fund for the payment of the debts of a Michigan corporation. No question of the latter, and the right to have it sub- is made as to the jurisdiction of the court jected to the payment of their demands. so far as it rests upon the diverse citizenIn Graham v. La Crosse & M. R. Co. 102 U. ship of the parties. The plaintiffs alleged S. 148, 161, 26 L. ed. 106, 111, this court that they were the equitable owners of that said that 'when a corporation became in- stock, although the legal title was in cersolvent, it is so far civilly dead that its tain of the defendants. The relief asked property may be administered as a trust was a decree establishing their rightful tifund for the benefit of the stockholders and tle and ownership; and, in order that such creditors. A court of equity, at the in- a decree might be obtained, the defendants stance of the proper parties, will then make referred to were ordered to appear, plead, those funds trust funds which, in other cir- answer, or demur; but, as they refused to cumstances, are as much the absolute prop- do so, the circuit court decided that it could erty of the corporation as any man's prop-not proceed further. That court was of erty is his. See also Mumma v. Potomac opinion that 'the shares of stock in question Co. 8 Pet. 281, 286, 8 L. ed. 945, 947; Mor- are not personal property within the disgan County v. Allen, 103 U. S. 498, 509, 26 trict within the purview of the statute of L. ed. 498, 502; Wabash, St. L. & P. R. Co. the United States authorizing the bringing v. Ham, 114 U. S. 587, 594, 29 L. ed. 235, in by publication of notice to nonresident 238, 5 Sup. Ct. Rep. 1081; 2 Story, Eq. Jur. defendants who assert some right or claim § 1252; 1 Perry, Tr. § 242. The trust deed to the property which is the subject of suit.' and chattel mortgage executed by the iron 82 Fed. 778, 779. The proper forum, the works created a lien upon the property in court said, for the litigation of the quesfavor of Wheeler, Carson, Hill, and the Kea- tion involved, would be in the state of which tor Lumber Company, superior to all other the defendants were citizens. The question creditors. The furnace company, in behalf to be determined on this appeal is whether of itself and other unsecured creditors, as the stock in question is personal property well as Wheelock, denied the validity of within the district in which the suit was Hill's lien as against them. That lien was brought. If it is, then the case is embraced by the act of 1875, chap. 137, and the cir- | Belleville company, and the surrender and cuit court erred in dismissing the bill." delivery to such receiver of all its corporate Again: "It is sufficient for this case to say assets, books, papers, and everything that that the state under whose laws the com-rightfully belongs to it, and account to such pany came into existence has declared, as it lawfully might, that such stock is to be deemed personal property. That is a rule which the circuit court of the United States, | sitting in Michigan, should enforce as part of the law of the state in respect of corporations created by it. The stock held by the defendants residing outside of Michigan who refused to submit themselves to the jurisdiction of the circuit court being regarded as personal property, the act of 1875 must be held to embrace the present case if the stock in question is 'within the district' in which the suit was brought. Whether the stock is in Michigan, so as to authorize that state to subject it to taxation as against individual shareholders domiciled in another state, is a question not presented in this case, and we express no opinion upon it. But we are of opinion that it is within Michigan for the purposes of a suit brought there against the company -such shareholders being made parties to the suit-to determine whether the stock is rightfully held by them. The certificates are only evidence of the ownership of the shares, and the interest represented by the shares is held by the company for the benefit of the true owner. As the habitation or domicil of the company is and must be in the state that created it, the property represented by its certificates of stock may be deemed to be held by the company within the state whose creature it is, whenever it is sought by suit to determine who is its real owner. This principle is not affected by the fact that the defendant is authorized by the laws of Michigan to have an office in another state, at which a book showing the transfers of stock may be kept." See also Dick v. Foraker, 155 U. S. 404, 39 L. ed. 201, 15 Sup. Ct. Rep. 124. These decisions, we think, make it clear that this suit comes within the act of 1875, as one to remove an encumbrance or cloud upon the title to real property within the eastern district of Illinois. The railroad in question is wholly within that district, although the defendant corporations, including the Belleville company, may hold their annual or other meetings in Chicago. The bill seeks the cancelation of the deeds and leases under and by authority of which the properties of the Belleville company are held and managed in the interest, as is alleged, of the Illinois Central Railroad Company, and to the destruction of the rights of the stockholders of the Belleville company. The bill also, as we have seen, prays for the appointment of a receiver of the receiver, as prayed; also, that the Illinois Central Railroad Company be restrained from interfering in any way with the receiver, or with the operation of the Belleville railroad as an independent, separate company. In addition, there is a prayer in the bill for general relief. If the deeds and leases in question are adjudged to be void, the entire situation, as to the possession and control of the Belleville railroad properties, will be changed, and the alleged encumbrances upon the properties of the Belleville company will be removed. We express no opinion upon the question whether, upon its own showing, or in the event the allegations of the bill are sustained by proof, the plaintiff is entitled to a decree giving the relief asked by it. There was no demurrer to the bill as being insufficient in equity. The only inquiry now is whether, looking at the allegations of the bill, the suit is of such a nature as to bring it within the act of 1875, as one to remove encumbrances or clouds upon real or personal property within the district where the suit was brought, and, therefore, one local to such district. The court below held that the suit was not one which could be brought and maintained against the defendant corporations found to be inhabitants of another district, and not voluntarily appearing in the suit; and this, notwithstanding the railroad in question is wholly within the district where the suit was brought. 18 Stat. at L. 472, chap. 137, U. S. Comp. Stat. 1901, p. 513; 25 Stat. at L. 436, chap. 866. If the suit was within the terms of the act of 1875, then the circuit court of the eastern district of Illinois, although the defendant corporations may be inhabitants of another district in Illinois, could proceed to such an adjudication as the facts would justify, subject, of course, to the condition prescribed by the 8th section of that act, that any adjudication affecting absent defendants without appearance should affect only such property within the district as may be the subject of the suit and under the jurisdiction of the court. The plaintiff contends that this condition was waived, and the general appearance of the defendants entered, when their counsel, at the hearing as to the sufficiency of the pleas to the jurisdiction, argued the merits of the case as disclosed by the bill. This is too harsh an interpretation of what occurred in the court below. There was no motion for the dismissal of the bill for want of equity. The discussion of the merits was permitted or invited by the court |