(45 S.Ct.) advanced other defenses good as against the general demurrer. It denied the existence of any trade usage to accept as accurate recitals as to dates in bills of lading, also that the Denver agent had power to issue the substituted bills. It asserted that petitioner was obligated to accept the grain irrespective of the dates of original shipments, and that if due diligence had been exercised no loss would have occurred. These denials and assertions raised questions under the state laws. They were substantial and broad enough to sustain the ruling of the trial court. 1. Courts 394 (16), 3972, New, vol. 9A Key-No. Series-Certiorari, and not writ of error, held appropriate remedy for review of state Supreme Court's judgment. Certiorari, and not writ of error, is appropriate remedy for review by United States Supreme Court of state Supreme Court's decision, denying claim of title to land based on Supplemental Creek Agreement, confirmed by Act June 30, 1902. 2. Indians 18-Proviso in paragraph of Supplemental Creek Agreement as to descent of land construed. Under Supplemental Creek Agreement, ratified and confirmed by Act Cong. June 30, 1902, providing in paragraph 6 for descent and distribution of property in accordance with Mansf. Dig. Ark. c. 49, "provided, that only citizens of the Creek Nation, male and female, and their Creek descendants shall inherit lands of the Creek Nation," the quoted proviso is not applicable merely to the first succession, but applies to future successions. 3. Courts 3972, New, vol. 9A Key-No. Series-Finding of fact by state court, bringing case within reach of federal law relied on, not reviewed by Supreme Court. The United States Supreme Court, on certiorari to review judgment of state Supreme Court involving title to land lying within former Creek Nation, will not review finding of state Supreme Court that defendants were Creek citizens, where effect of finding was merely to bring the case within the reach of the federal law relied on, and call for a determination of the federal question presented, and it did not constitute a basis on which question was decided. 4. Courts 3972, New, vol. 9A Key-No. Series-United States Supreme Court will determine federal question involved, where state Supreme Court's decision ignored defense of limitations. The United States Supreme Court, on certiorari to review judgment of state Supreme Court, will determine federal question involved, notwithstanding defense of limitations entirely ignored by state Supreme Court's decision. 5. Courts 391 (3)-United States Supreme Court will take jurisdiction, where nonfederal ground was not considered by state court. The rule that, when the decision of a state court may rest on a nonfederal ground adequate to support it, the United States Supreme Court will not take jurisdiction to determine the federal question, does not apply where the nonfederal ground might have been, but was not, considered by the state court. 6. Courts 3972, New, vol. 9A Key-No. Series-United States Supreme Court will consider merely opinion of state Supreme Court rendered after rehearing, where original opinion was withdrawn. The United States Supreme Court, on certiorari to review state Supreme Court's decision, will consider merely the decision of such court rendered after a rehearing, where the original opinion was withdrawn. Error and Certiorari to the Supreme Court of the State of Oklahoma. Suit by Isom Grayson and others against James A. Harris and others. Judgment for plaintiffs was reversed, and the cause was remanded, with instructions, by the Supreme Court of the state of Oklahoma (90 Okl. 147, 216 P. 446), and plaintiffs bring error and Writ of error dismissed, decree certiorari. of state Supreme Court reversed, and cause remanded. $353 *Messrs. Robert M. Rainey and Streeter B. Flynn, both of Oklahoma City, Okl., for plaintiffs in error. Messrs. Robert F. Blair, of Tulsa, Okl., and George S. Ramsey, of Muskogee, Okl., for defendants in error. Mr. Justice SUTHERLAND delivered the opinion of the Court. [1] This is a suit brought in a state court of Oklahoma to determine title to an undivided half interest in certain lands in that state lying within the former Creek Nation. The case is here both on error and certiorari. 263 U. S. 696, 44 S. Ct. 133, 68 L. Ed. 511. The latter is the appropriate remedy, and the writ of error will be dismissed. Defendants in error claim title through one Cloria Grayson, and it is admitted that they acquired by mesne conveyances, and have whatever title she had. The lands were originally allotted in the names of two freedmen, citizens of the Creek Nation, who had died prior to the allotment, leaving Gertrude *354 Grayson and another as *their only Creek heirs at law, and ownership of an undivided half interest in the lands passed to each of them. Gertrude Grayson died intestate and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes viso, that only citizens of the Creek Nation and their Creek descendants should "inherit lands of the Creek Nation," looked to the future as well as to the present. The theory had been advanced that lands which had passed into private ownership were no longer lands of the tribe (that is to say, no longer "lands of the Creek Nation"), and therefore not within the words of the proviso. Answering that theory this court said (page 427 [35 S. Ct. 121]): without issue in 1907, leaving as her next of | 119, 59 L. Ed. 295, it was held that the prokin her maternal grandmother, Cloria Grayson, who was not a Creek citizen, nor a descendant of a Creek citizen, and these plaintiffs in error, remote kindred in various degrees, all of whom were Creek citizens. This was prior to the admission of Indian Terri- | tory and the territory of Oklahoma as the state of Oklahoma, and by the Act of May 2, 1890, c. 182, 26 Stat. 81, 95, § 31, the general law in force in Indian Territory in respect of descents and distributions was chapter 49 of Mansfield's Digest of the Statutes of Arkansas. If this law applies, it is conceded that Cloria Grayson succeeded to the half interest of Gertrude Grayson as her sole heir at law, in which event title of defendants in error is good, and plaintiffs in error have no case. The contention on behalf of plaintiffs in error, however, is that the rights of the parties are controlled by the provisos found in paragraph 6 of the Supplemental Creek Agreement, ratified and confirmed by the Act of June 30, 1902, c. 1323, 32 Stat. 500, 501, as follows: "We think the words indicated were merely descriptive of the body of lands which were being allotted in severalty and subjected to the incidents of individual ownership, that is, the lands in the Creek Nation. In that sense they would include the lands as well after allotment as before. The section as a whole shows that it looked to the future no less than to the present, and was intended to prescribe rules of descent applicable to all Creek allotments. Nothing in the provisos indicates that they were to be less comprehensive. Their purpose $356 was to give Creek citizens and their Creek descendants a preferred right to inherit, and no reason is perceived for giving such a preference where a citizen entitled to an allotment died before receiving it that would not be equally applicable if he had died after it was received." "6. The provisions of the Act of Congress approved March 1, 1901 (31 Stat. 861), in so far as they provide for descent and distribution according to the laws of the Creek Nation, are hereby repealed and the descent and distribution of land and money provided for by said act shall be in accordance with chapIn the present case stress is laid by defendter 49 of Mansfield's Digest of the Statutes of ants in error upon the use of the word "alArkansas now in force in Indian Territory: lotments" in the phrase "to prescribe rules Provided, that only citizens of the Creek Na- of descent applicable to all Creek allottion, male and female, and their Creek descend-ments," and it is insisted that the court ants shall inherit lands of the Creek Nation: And provided further, that if there be no person of Creek citizenship to take the descent and distribution of said estate, then the inheritance shall go to noncitizen heirs in the order named in said chapter 49." *355 [2] *In addition to claim of title, defendants in error denied that plaintiffs in error were Creek citizens, and alleged in bar adverse possession of the lands for the applicable statutory period. The trial court found for plaintiffs in error on all issues, and rendered a decree in their favor. Upon appeal the state Supreme Court reversed the decree, upon the assumption that the provisos in paragraph 6 related only to the devolution of the allotment from the allottee-that is, the first succession-and that, since Gertrude Grayson was not the allottee, but inherited her half interest by operation of law, the provisos had no application. 30 Okl. 147, 216 P. 446. The effect of this ruling was to read into the provisos a limitation which plainly is not there, apparently induced by the belief that a literal interpretation would lead to absurd and unwise results. meant thereby to limit the operation of the proviso to lands in their descent from the allottee and not thereafter. The word was not used in that restricted sense, but in the broader sense, which includes all Creek lands which had gone through the process of allotment. The purpose and policy of the provisos rest upon tribal rather than family sentiment, a sentiment which put the interests of the tribe above those of the family, and regarded the claims which spring from tribal membership rather than those arising from close degrees of kinship. This view is expressed in the later case of Campbell v. Wadsworth, 248 U. S. 169, 175, 39 S. Ct. 63, 63 L. Ed. 192, dealing with the Seminole Agreement of 1899 (31 Stat. 250). Under the provision in that agreement that, if any member of the tribe die after enrollment, the lands, etc., to which he would be entitled, if living, "shall descend to his heirs who are Seminole citizens," it was held that the lands of an Indian, enrolled as a Seminole, did not descend to his wife and daughters, enrolled only as Creeks. Answering the position of the state Supreme Court that only "the most The conclusion is not in accord with the powerful and impelling reasons" could induce prior views of this court, to which the state it to hold that the Indians intended to exSupreme Court gave no consideration. In clude their own children from sharing in Washington v. Miller, 235 U. S. 422, 35 S. Ct. ❘ their property after death, this court said: *357 (45 S. Ct.) "While it is true that it seems unnatural for | Pac. Ry. v. North Dakota, 236 U. S. 585, 593, the Indians to have preferred more distant 35 S. Ct. 439, 59 L. Ed. 735, L. R. A. 1917F, relatives to their own children in providing for 1148, Ann. Cas. 1916A, 1; Creswill v. Knights the descent and distribution of their property, of Pythias, 225 U. S. 246, 261, 32 S. Ct. 822, yet from the terms of the act before us, and 56 L. Ed. 1074; Kansas City So. Ry. v. Alalso from the provisions of the Supplemental bers Comm. Co., 223 U. S. 573, 591, 32 S. Ct. Creek Agreement that 'only citizens of the 316, 56 L. Ed. 556. The effect of the finding Creek Nation, male and female, and their was to establish the existence of a prelimiCreek descendants shall inherit lands of the nary fact, related to the federal right only Creek Nation' (32 Stat. 500), it is clear that in the sense that it brought the case within with the Indians the interests of the tribe the reach of the federal law relied on, and called for a determination of the federal In other words, question then presented. the finding simply established a condition, not as a basis upon which to rest a decision of the question of federal right one way or the other, but upon which that question be were paramount to those of the family and it was with a knowledge of the mode of life of their primitive people, better and more intimate than the courts can now command, that they determined that this paramount purpose would best be served by giving to children born of mixed marriages the tribal status of their mother." The lands of the Creek Nation were tribal lands and the evident purpose of the Indians was to continue at least a semblance of that status so far as it could be done consistently with their distribution in severalty. With the wisdom of that purpose we have nothing to do. It is enough that Congress respected it and gave to it the sanction of law. On behalf of defendants in error, it is asserted: (1) That there was an entire absence of proof that plaintiffs in error are citizens of the Creek Nation, and we are asked to review the record in that respect in order to determine whether there was any basis for the claim of federal right; and (2) that an examination of the record will show that the plea of the statute of limitations was fully established and, therefore, the decision of the state Supreme Court reasonably may be affirmed on that nonfederal ground. [3] The point that the evidence fails to show that plaintiffs in error were Creek citizens presents a pure question of fact. The trial court found they were. The state Supreme Court expressly affirmed the finding, and, recognizing the existence of the federal question in the case, put its decision denying the federal right upon an erroneous view of the law. The denial was not the result of the finding of fact, nor is that finding so intermingled with the conclusion of law in re +358 spect of the federal right as to cause it to came an issue for consideration and determination. In such case, the ordinary rule applies that the decision of the state court upon a question of fact cannot be made the subject of inquiry here. Telluride Power Co. v. Rio Grande, etc., Ry., 175 U. S. 639, 645, 20 S. Ct. 245, 44 L. Ed. 305; Illinois v. Economy Power Co., 234 U. S. 497, 523, 524, 34 S. Ct. 973, 58 L. Ed. 1429; Dower v. Richards, 151 U. S. 658, 668, et seq., 14 S. Ct. 452, 38 L. Ed. 305; Crary v. Devlin, 154 U. S. 619, 14 S. Ct. 1199, 23 L. Ed. 510; Egan v. Hart, 165 U. S. 188, 192, 17 S. Ct. 300, 41 L. Ed. 680; Carpenter v. Williams, 9 Wall. 785, 786, 19 L. Ed. 827. [4, 5] Nor need we inquire into the defense The decision of the statute of limitations. now under review entirely ignores it. The rule that when the decision of a state court may rest upon a nonfederal ground adequate to support it, this court will not take jurisdiction to determine the federal question, has no application where, as here, the nonfederal ground might have been considered by the state court but was not. Rogers v. Hennepin County, 240 U. S. 184, 188, 189, 36 S. Ct. 217, 60 L. Ed. 469; Henderson Bridge Co. v. Henderson City, 173 U. S. 592, 608, 19 S. Ct. 553, 43 L. Ed. 823. [6] It is said that in an earlier opinion the state Supreme Court ruled in favor of defendants in error upon the two points last discussed. But that opinion, it appears, was *359 withdrawn and the present decision, rendered after a rehearing, is the only one open to our consideration. The decree of the state Supreme Court is reversed and the cause remanded for further proceedings not inconsistent with this opinion. Writ of error dismissed. (267 U. S. 126) The Merchants' Mutual Automobile Liabil MERCHANTS' MUT. AUTOMOBILE LIA-ity Insurance Company, the plaintiff in erBILITY INS. CO. v. SMART. (Argued Jan. 22, 1925. Decided March 2, 1925.) No. 223. 1. Insurance 3-Rule as to power of state to regulate affairs of insurance companies stated. The business of insurance is of such a peculiar character that the state creating insurance corporations and giving them authority to engage in the insurance business has legislative power to regulate their affairs, so far at least as to prevent them from committing wrongs or injustice in the exercise of their corporate functions. 2. Constitutional law 296 (1) Insurance 5911⁄2-Statute as to provision of automobile liability insurance policy held not violative of due process clause, Laws N. Y. 1918, c. 182, § 109, requiring automobile liability policies to contain provision that insolvency or bankruptcy of insured shall not release insurer, and that injured person, or his personal representative, may sue insurer, if execution against insured is returned unsatis fied, held not violative of due process clause, being within the police power. 3. Bankruptcy 159-State statute as to contents of automobile liability policy held not to provide for unlawful preference. Laws N. Y. 1918, c. 182, § 109, requiring automobile liability policies to contain provision that insolvency or bankruptcy of insured shall not release insurer, and that injured person, or his personal representative, may sue insurer, if execution against insured is returned unsatisfied, held valid as against contention that it provides for unlawful preference under National Bankruptcy Act. 4. Courts 399 (2)-Findings of fact of state court not questioned by United States Supreme Court. Findings of fact by state courts will not be questioned by the United States Supreme Court on writ of error. ror, is a New York corporation authorized to insure against recoveries of damages by persons injured by automobiles and other vehicles, for whose operation the insured is responsible. It issued a policy November 16, 1919, to Frank Coron, thus to indemnify him in the operation of his automobile truck to the extent of $5,000, together with interest and costs. The policy contained a provision, inserted pursuant to the requirement of section 109 of the Insurance Law of New York. Laws 1918, c. 182. The section reads as follows: "On and after the first day of January, nineteen hundred and eighteen, no policy of insur*128 ance against loss or damage resulting from accident to or injury suffered by an employee or other person and for which the person insured is liable, or, against loss or damage to property caused by horses or by any vehicle drawn, propelled or operated by any motive power, and for which loss or damage the person insured is liable, shall be issued or delivered to any person in this state by any corporation, * * * authorized to do business in this state, unless there shall be contained within such policy a provision that the insolvency or bankruptcy of the person insured shall not release the insurance carrier from the payment of damages for injury sustained or loss occasioned during the life of such policy, and stating that in case execution against the insured is returned unsatisfied in an action brought by the injured, or his or her personal representative in case death results from the accident, because of such insolvency or bankruptcy, that then an action may be maintained by the injured person, or his or her personal representative, against such corporation under the terms of the policy for the amount of the judgment in the said action not exceeding the amount of the policy." Smart was injured by the truck of Coron. He brought suit against Coron for damages and recovered a judgment for $11,000. He issued execution against Coron upon the judgment, which was returned unsatisfied, and supplemental proceedings were undertaken In Error to the Supreme Court of the against him without success. State of New York. The Supreme Court of the state held that on the record Coron was insolvent, that unAction by Abram B. Smart against the der the clause of the policy embodying the Merchants' Mutual Automobile Liability In-provision of section 109 the action lay, and surance Company. An appeal from a judg- because of a failure to set up any good dement of the Appellate Division of the Su-fense a summary judgment was entered for preme Court of New York (206 App. Div. 630, 198 N. Y. S. 949), affirming a judgment for plaintiff, was dismissed by the Court of Ap peals of New York (236 N. Y. 576, 142 N. E. 290), and defendant brings error. Affirmed. *127 *Mr. Anthony J. Ernest, of New York City, for plaintiff in error. $5,000 and interest and costs in favor of Smart against the company. [1] The case has been brought here by the company under section 237 of the Judicial Code (Comp. St. § 1214), upon the claim that section 209 is invalid, first, in that it deprives *129 the insurance company of its property withMr. J. P. Bramhall, of Washington, D. C., out due process of law; and, second, because for defendant in error. it is in conflict with the bankruptcy laws of the United States. It is well settled that the Mr. Chief Justice TAFT delivered the opin- business of insurance is of such a peculiar ion of the Court. character, affects so many people, and is so (45 S.Ct.) [3] The second objection is that the policy in this clause makes provision for an unlawful preference under the National Bankruptcy Act (Comp. St. §§ 9585-9656), when the owner who is indemnified is a bankrupt at the time of the injury. intimately connected with the common good,, enactment, it is clear that the exercise of the that the state creating insurance corpora- police power in passing it was reasonable tions and giving them authority to engage in and cannot be said to deprive the insurance that business may, without transcending the company of property without due process of limits of legislative power, regulate their af- law. It is to be remembered that the asfairs, so far, at least, as to prevent them sumption of liability by the insurance comfrom committing wrongs or injustice in the pany under section 109 is entirely volunexercise of their corporate functions. North- tary. It need not engage in such insurance western Life Insurance Co. v. Riggs, 203 U. if it chooses not to do so. S. 243, 254, 27 S. Ct. 126, 51 L. Ed. 168, 7 Ann. Cas. 1104; Whitfield v. Etna Life Insurance Co., 205 U. S. 489, 27 S. Ct. 578, 51 L. Ed. 895; German Alliance Insurance Co. v. Lewis, 233 U. S. 389, 412, et seq., 34 S. Ct. 612, 58 L. Ed. 1101, L. R. A. 1915C, 1189; La Tourette v. McMaster, 248 U. S. 465, 467, 39 S. Ct. 160, 63 L. Ed. 362; National Insurance Co. v. Wanberg, 260 U. S. 71, 73, 43 S. Ct. 32, 67 L. Ed. 136. Such regulation would seem to be peculiarly applicable to that form of insurance which has come into very wide use of late years, that of indemnifying the owners of vehicles against losses due to the negligence of themselves or their servants in their operation and use. The agencies for the promotion of comfort and speed in the streets are so many and present such possibility of accident and injury to members of the public that the owners have recourse to insurance to relieve them from the risk of heavy recoveries they run in intrusting these more or less dangerous instruments to the care of their agents. Having in mind the sense of immunity of the owner protected by the insurance and the possible danger of a less degree of care due to that immunity, it would seem to be a reasonable provision by the state in the interest of the public, whose lives and limbs are exposed, to require that the owner in the contract indemnifying him against any recovery from him should stipulate with the insurance company that the #130 indemnity by which he saves himself should certainly inure to the benefit of the person who thereafter is injured. Section 109 does not go quite so far. It provides that the subrogation shall take place only when the insured proves insolvent or bankrupt, and leaves the injured person to pursue his judgment against the insured if solvent without reliance on the policy. *131 It has *no substance. Passing by the difficulty that suggests itself that the insurance company is not one of the creditors of the insolvent insured, and so is hardly in position to question the validity of law for a defect of this kind (Heald v. District of Columbia, 259 U. S. 114, 123, 42 S. Ct. 434, 66 L. Ed. 852, and cases cited), we prefer to deal with the objection on its merits. As we have already suggested, the Legislature might have required that policies of this kind should subrogate one injured and recovering judgment against the assured to the right of the latter to sue the company on the policy. It simply would create a secured interest in the recovery on the policy for the benefit of the injured person when ascertained. It would not be an unlawful preference any more than security given for any lawful claim against the assured while solvent would be unlawful in the event of subsequent bankruptcy. The clause we have before us is just the same save in one respect. It secures to the injured person the indemnity which his injurer has provided for himself in advance to avoid payment for the injury. But the clause becomes operative only in the event of the insolvency or bankruptcy of the assured when he can no longer use the indemnity to pay the injured person as he should. The title to the indemnity passes out of the bankrupt or insolvent person and vests in him in whom the contract and the state law declare it should vest. The assured is divested by the terms of the instrument under which the interest of the assured and the interest of the injured then contingent, and now absolute, were created. The general creditors have lost nothing because by the fact of bankruptcy the interest of the assured in the policy passed to the injured person and did not become assets of the as Another reason for the legislation is suggested in the opinion of the Appellate Division of the Supreme Court of New York (Roth v. National Automobile Mutual Casualty Co., 202 App. Div. 667, 674, 195 N. Y. S. 865), to wit, that it was enacted on the recommendation of state superintendent of insured. The provision for the divesting of the surance to make impossible a practice of some companies to collude with the insured after an injury foreshadowing heavy damages had occurred, and to secure an adjudication of the insured in bankruptcy, whereby recovery on the policy could be defeated, because the bankrupt had sustained no loss. [2] Whatever the especial occasion for the 45 S.CT.-21 interest on bankruptcy was not made to defraud creditors or in expectation of bankruptcy, but was made so far as we can know when the assured was solvent and merely to provide against a future contingency. We think that there is in this state legislation complained of, no conflict with the policy or the letter of the bankrupt law. |