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 cants go farther. There are insuperable to think that authority was conferred by difficulties in the way of at least this form the general words of the statutes. Rev. of suit, and the Department of the Interior Stat. $$ 441, 463, U. S. Comp. Stat. 1901, generally has been the custodian of Indian pp. 252, 262. By the latter section: “The rights. Commissioner of Indian Affairs shall, under

Judgment affirmed. 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

CITIZENS' SAVINGS

SAVINGS & TRUST COM. matters arising out of Indian relations."

PANY, Appt., We should hesitate a good deal, especially in view of the long-established practice of the ILLINOIS CENTRAL RAILROAD COMDepartment, before saying that this lan- PANY, Belleville & Southern Illinois guage was not broad enough to warrant a Railroad Company, and St. Louis, Alton, regulation obviously made for the welfare & Terre Haute Railroad Company. of the rather helpless people concerned. The power of Congress is not doubted. The In-Courts-jurisdiction of circuit court-propdians have been treated as wards of the er district for suit-bringing in absent

defendants. nation. Some such supervision was necessary, and has been exercised. In the ab: deeds and leases of the property of a railway

1. A suit to cancel and annul certain sence of special provisions, naturally it would be exercised by the Indian Depart-district of Illinois may be brought and

company lying wholly within the eastern ment.

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.

2. The benefit of the qualified appearan answer affirms not merely the past but the present determination of the answering ance by defendants at the time of filing tribunal, and must be assumed to be based pleas to the jurisdiction is not waived by on reasons that the respondent deems ade by the bill on the hearing as to the suffi

arguing the merits of the case as disclosed quate. Even if those given in the letter ciency of such pleas, where there was no of July 3, 1901, had been bad, they could motion for the dismissal of the bill for not be taken to exhaust the Secretary's want of equity, and the discussion of the grounds. He has not disclosed to the court merits was permitted or invited by the any statement of those grounds purporting court in order that it might be informed on to be exhaustive and complete, and the that question if it concluded to consider court cannot make an inquisition into his the merits along with the question of the

sufficiency of the pleas.* mental processes to see whether they were correct. See DeCambra v. Rogers, 189 U.

[No. 238.] S. 119, 122, 47 L. ed. 734, 735, 23 Sup. Ct. Rep. 519.

Submitted January 7, 1907. Decided March We doubt if Congress meant to open an

4, 1907.

*Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appearance, $$ 42-54.

A |

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 The plaintiff prayed that these leases and proceedings.

deeds, so far as they affect, or purport to The facts are stated in the opinion. affect, the properties, franchises, rights, or

Messrs. Edward C. Eliot and William B. liabilities of the Belleville company, be canSanders for appellant.

celed and declared void, and that that comMessrs. 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 last the rights of holders of the common stock named corporation was never served with of the Belleville company. Indeed, it is process and did not appear in the suit. The charged that what the Illinois Central Railcase presents a question as to the jurisdic road Company has done, is doing (and, untion of the court below.

less restrained, will continue to do), has The plaintiff, an Ohio corporation, is the practically destroyed the value of such holder of 400 shares of the common stock

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 to under the lease executed by and between by a stockholder of the Belleville company, the Belleville company and the Terre Haute making that company a defendant.

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 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 I dered to account to such receiver, as is hereinbefore prayed. That the defendant, the encumbrance or lien or cloud upon the title Illinois Central Railroad Company, its offi- to, real or personal property within the discers and agents, be restrained from further trict where such suit is brought, one or violating the rights of your orator, and be more of the defendants therein shall not be ordered, directed, and restrained in particu- an inhabitant of, or found within, the said lar from interfering in any way with said district, or shall not voluntarily appear receiver, or with the operation of said Belle- thereto, it shall be lawful for the court to ville company as an independent and sepa- make an order directing such absent defend. rate railroad company; and for such other ant or defendants to appear, plead, answer, and further relief as the equity of the case or demur, by a day certain to be designated, , may require.”

which order shall be served on such absent Process in the case against the Illinois defendant or

or defendants, if practicable, company was served upon its ticket agent wherever found, and also upon the person or at East St. Louis, "there being no president, persons in possession or charge of said propvice president, secretary, or treasurer of erty, if any there be; or, where such perthat company found” in the district; and sonal service upon such absent defendant or against the Belleville and Terre Haute com defendants is not practicable, such order panies, upon a director of each company, at shall be published in such manner as the Pinkneyville, Illinois, there being no presi court may direct, not less than once a week dent, vice president, secretary, or treasurer for six consecutive weeks; and in case such of either of those companies found in the absent defendant shall not appear, plead, district.

answer, or demur within the time so limThe Belleville company pleaded-especial. ited, or within some further time, to be ally appearing, under protest, for the purposes lowed by the court, in its discretion, and of its plea, and no other—that the court upon proof of the service or publication of below was without jurisdiction to proceed said order, and of the performance of the against it, in that the defendant was an in- directions contained in the same, it shall be habitant of the northern division of the lawful for the court to entertain jurisdicnorthern district of Illinois, having its resi- tion, and proceed to the hearing and adju. dence in that division and district at Chi- dication of such suit in the same manner cago, where its corporate meetings were held as if such absent defendant had been served and its corporate business transacted. with process within the said district; but

Similar pleas were filed by the Terre Haute said adjudication shall, as regards said abcompany and the Illinois Central Railroad sent defendant or defendants without apCompany, each specially appearing under pearance, affect only the property which protest for the purpose only of denying the shall have been the subject of the suit and jurisdiction of the court below, and each under the jurisdiction of the court therein, company claiming to be an inhabitant and within such district,” etc. 18 Stat. at L. resident of the northern district of Illinois. 470, 472, chap. 137, U. S. Comp. Stat. 1901,

By its final order the court sustained the p. 513. pleas to the jurisdiction, and dismissed the These provisions were substantially those suit.

embodied in § 738 of the Revised Statutes, 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 The eastern district of Illinois was cre- any encumbrance or lien or cloud upon the ated by the act of Congress approved March title to real or personal property.” Both 3d, 1905, chap. 1427. 33 Stat. at L. 992, 995, $ 738 and the act of 1875 related to legal U. S. Comp. Stat. Supp. 1905, p. 93. The and equitable liens or claims on real and present suit in equity was, as we have stato personal property within the district where ed, instituted in the circuit court for that the suit was brought. 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 still in force, as was expressly held in Jellocal to the latter district.

lenik v. Huron Copper Min. Co. 177 U. S. By the 8th section of the act of. March 1, 10, 44 L. ed. 647, 650, 20 Sup. Ct. Rep. 3d, 1875, determining the jurisdiction of the 559. circuit courts of the United States, it was We are then to inquire as to the scope provided: “That when, in any suit com- of the 8th section of the above act of 1875. menced in any circuit court of the United And that inquiry involves the question States, to enforce any legal or equitable whether this suit is one "to enforce any lelien upon, or claim to, or to remove any Igal or equitable lien upon, or claim to, or to remove any encumbrance or lien or cloud , therefore an encumbrance or cloud upon the upon the title to, real or personal property” title, to their prejudice. Until such lien or within the eastern district of Illinois where encumbrance was removed, they could not the suit was brought.

know the extent of their interest in the In Mellen v. Moline Malleable Iron Works, property or in the proceeds of its sale. The 131 U. S. 352, 33 L. ed. 178, 9 Sup. Ct. Rep. case made by the original, as well as cross 781, we had occasion to examine the pro- suit, seems to be within both the letter and visions of the act of 1875. A question there the spirit of the act of 1875." 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 ques. favor 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

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 receiver, as prayed; also, that the Illinois lawfully might, that such stock is to be Central Railroad Company be restrained deemed personal property. That is a rule from interfering in any way with the rewhich the circuit court of the United States, ceiver, or with the operation of the Bellesitting in Michigan, should enforce as part ville railroad as an independent, separate of the law of the state in respect of cor-company. In addition, there is a prayer in porations created by it. The stock held by the bill for general relief. If the deeds and the defendants residing outside of Michi- leases in question are adjudged to be void, gan who refused to submit themselves to the entire situation, as to the possession the jurisdiction of the circuit court being and control of the Belleville railroad propregarded as personal property, the act of erties, will be changed, and the alleged en1875 must be held to embrace the present cumbrances upon the properties of the Bellecase if the stock in question is 'within the ville company will be removed. We express district in which the suit was brought. no opinion upon the question whether, upon Whether the stock is in Michigan, so as to its own showing, or in the event the alleauthorize that state to subject it to taxa- gations of the bill are sustained by proof, tion as against individual shareholders dom- the plaintiff is entitled to a decree giving iciled in another state, is a question not the relief asked by it. There was no depresented in this case, and we express no murrer to the bill as being insufficient in opinion upon it. But we are of opinion equity. The only inquiry now is whether, that it is within Michigan for the purposes looking at the allegations of the bill, the of a suit brought there against the company suit is of such a nature as to bring it with-such shareholders being made parties to in the act of 1875, as one to remove encumthe suit—to determine whether the stock is brances or clouds upon real or personat rightfully held by them. The certificates property within the district where the suit are only evidence of the ownership of the was brought, and, therefore, one local to shares, and the interest represented by the such district. The court below held that shares is held by the company for the bene- the suit was not one which could be brought fit of the true owner. As the habitation or and maintained against the defendant cordomicil of the company is and must be in porations found to be inhabitants of anthe state that created it, the property rep- other district, and not voluntarily appearresented by its certificates of stock may be ing in the suit; and this, notwithstanding deemed to be held by the company within the railroad in question is wholly within the state whose creature it is, whenever it the district where the suit was brought. is sought by suit to determine who is its 18 Stat. at L. 472, chap. 137, U. S. Comp. real owner. This principle is not affected Stat. 1901, p. 513; 25 Stat. at L. 436, chap. by the fact that the defendant is author- 866. If the suit was within the terms of

. ized by the laws of Michigan to have an the act of 1875, then the circuit court of the office in another state, at which a book eastern district of Illinois, although the deshowing the transfers of stock may be fendant corporations may be inhabitants of kept.” See also Dick v. Foraker, 155 U. S. another district in Illinois, could proceed to 404, 39 L. ed. 201, 15 Sup. Ct. Rep. 124. such an adjudication as the facts would jus

These decisions, we think, make it clear tify, subject, of course, to the condition prethat this suit comes within the act of 1875, scribed by the 8th section of that act, that as one to remove an encumbrance or cloud any adjudication affecting absent defendupon the title to real property within the ants without appearance should affect only eastern district of Illinois. The railroad in such property within the district as may be question is wholly within that district, al- the subject of the suit and under the juristhough the defendant corporations, includ- diction of the court. ing the Belleville company, may hold their The plaintiff contends that this condition annual or other meetings in Chicago. The was waived, and the general appearance of bill seeks the cancelation of the deeds and the defendants entered, when their counsel, leases under and by authority of which the at the hearing as to the sufficiency of the properties of the Belleville company are pleas to the jurisdiction, argued the merits held and managed in the interest, as is al- of the case as disclosed by the bill. This is leged, of the Illinois Central Railroad Com- too harsh an interpretation of what ocpany, and to the destruction of the rights curred in the court below. There was no of the stockholders of the Belleville com-motion for the dismissal of the bill for pany. The bill also, as we have seen, prays want of equity. The discussion of the merfor the appointment of a receiver of the lits was permitted or invited by the court