In United States v. McBratney, 104 U. S. 622 [26: 869], this court held that where a state was admitted into the Union, and the enabling act contained no exclusion of jurisdiction as to crimes committed on an Indian reservation by others than *Indians or [243 against Indians, the state courts were vested with jurisdiction to try and punish such crimes. The court there said: record affirmatively show, that the accused | jurisdiction over its citizens, usually enjoyed and the deceased were negroes, but that fact is by the other states of the Union? conceded both by counsel for the prisoner and the government, and upon such concession, the case as to jurisdiction was determined below, and is here presented for consideration. Irrespective, however, of the admission of counsel as to the race to which the accused and the deceased belonged, the question of jurisdiction arises on the record, since, if, as matter of law, the reservation was not within the sole and exclusive jurisdiction of the "The act of March 3, 1875 [the enabling act United States, as the indictment fails to charge which provided for the admission of the state that the crime was committed by an Indian, it of Colorado], necessarily repeals the provisions necessarily follows that if the court had juris- of any prior statute, or of any existing treaty, diction only to punish such a crime the want which are clearly inconsistent therewith. of jurisdiction appears upon the face of the 207 lb. Papers S. Tobacco v. United States record. It is clear that if the accused was an ("The Cherokee Tobacco") 78 U. S. 14 Wall. Indian the court below had jurisdiction under 616 [20: 227]. Whenever, upon the admission the act of March 3, 1885, which, among other of a state into the Union, Congress has inthings, authorizes the punishment of any In- tended to except out of it an Indian reservadian committing the offense of murder within tion, or the sole and exclusive jurisdiction over the boundaries of any state of the United that reservation, it has done so by express States and within the limits of any Indian words. Blue Jacket v. Johnson County Comrs. reservation, according to the laws and before ("The Kansas Indians") 72 U. S. 5 Wall. 737 the tribunals of the United States. United [18: 667]; United States v. Ward, Woolw. 17. States v. Kagama, 118 U. S. 375 [30: 228]. The state of Colorado, by its admission into The assertion of jurisdiction in the courts of the Union by Congress upon an equal footing the United States over the crime of murder with the original states in all respects what242]*perpetrated by one not an Indian against ever, without any such exception as had been one not an Indian is based on the fact that the made in the treaty with the Ute Indians and in offense was committed on an Indian reserva- the act establishing a territorial government, tion. The contention as to want of jurisdic- has acquired criminal jurisdiction over its own tion rests upon the proposition that the Indian citizens and other white persons throughout reservation being within the state, the courts the whole of the territory within its limits, inof the state had alone cognizance of crimes cluding the Ute reservation, and that resertherein done by other than Indians. To de- vation is no longer within the sole and exclutermine these conflicting contentions requires sive jurisdiction of the United States. The a brief examination of the legislation organ- courts of the United States have, therefore, no izing the territory of Montana and which pro-jurisdiction to punish crimes within that resvided for the admission of that state into the Union. ervation, unless so far as may be necessary to carry out such provisions of the treaty with the Ute Indians as remain in force. But that treaty contains no stipulation for the punishment of offenses committed by white men against white men." The territory of Montana was organized in 1864. 13 Stat. at L. 85. Subsequently, in 1868, the Crow Indian reservation was created (15 Stat. at L. 649), the land of which it was composed being wholly situated within United States v. McBratney is therefore dethe geographical boundaries of the territory of cisive of the question now before us, unless Montana. The treaty creating this reservation the enabling act of the state of Montana concontained no stipulation restricting the power tained provisions taking that state out of the of the United States to include the land, em- general rule and depriving its courts of the braced within the reservation, in any state or jurisdiction to them belonging and resulting territory then existing or which might there- from the very nature of the equality conferred after be created. The law to enable Montana on the state by virtue of its admission into the and other states to be admitted into the Union Union. Such exception is sought here to be was passed in 1889. 25 Stat. at L. 676. This evolved from certain provisions of the enact embraced the usual provisions for a con-abling act of Montana which were ratified by vention to frame a Constitution, for the adoption of an ordinance directed to contain certain specified agreements, and provided that, upon the compliance with the ordained requirements, and the proclamation of the President so announcing, the state should be admitted on an equal footing with the original states. The question then is, Has the state of Montana jurisdiction over offenses committed within its geographical boundaries by persons not Indians or against Indians, or did the enabling act deprive the courts of the state of such jurisdiction of all offenses committed on the Crow Indian reservation, thereby devest ing the state pro tanto of equal authority and an ordinance of the convention which framed the Constitution of that state. The provision relied on is as follows: Second. That the people inhabiting[244 the said proposed state of Montana do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof, and to all lands lying within said limits owned or held by any Indian or Indian tribes, and that until the title thereto shall have been extinguished by the United States the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the to alienation, lease, or encumbrance, either by voluntary conveyance of the grantee or his heirs, or by the judgment, order, or decree of any court, but should remain inalienable and be not subject to taxation for the period of twenty-five years, and until such time thereafter as the President might see fit to remove the restriction. Congress of the United States; that the lands | The act, however, provided that the title to be belonging to citizens of the United States acquired by the allottees was not to be subject residing without the said state of Montana shall never be taxed at a higher rate than the lands belonging to the residents thereof; that no taxes shall be imposed by the said state of Montana on lands or property therein belonging to or which may hereafter be purchased by the United States or reserved for its use. But nothing herein contained shall preclude the said state of Montana from taxing as other lands are taxed any lands owned or held by any Indian who has severed his tribal relations and has obtained from the United States, or from any person, a title thereto by patent or other grant, save and except such lands as have been or may be granted to any Indian or Indians under any act of Congress containing a provision exempting the lands thus granted from taxation, but said last-named lands shall be exempt from taxation by said state of Montana so long and to such extent as such act of Congress may prescribe." The words in the foregoing provisions upon which the argument is based are the following: "And said Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States." This language has been considered in several cases in the courts of the United States with somewhat contradictory results. United States v. Ewing, 47 Fed. Rep. 809; United States v. Partello, 48 Fed. Rep. 670; Truscott v. Hurlbut Land & C. Co. 73 Fed. Rep. 61. As equality of statehood is the rule, the words relied on here to create an exception cannot be construed as doing so, if, by any reasonable meaning, they can be otherwise treat245]ed. The mere reservation of jurisdiction and control by the United States of "Indian lands" does not of necessity signify a retention of jurisdiction in the United States to punish all offenses committed on such lands by others than Indians or against Indians. It is argued that as the first portion of the section in which the language relied on is found disclaims all right and title of the state to "the unappropriated public lands lying within the boundaries thereof and of all lands lying within said limits, owned or held by an Indian or Indian tribes, and until the title thereof shall be extinguished by the United States, the same shall be and remain subject to the disposition of the United States," therefore the subsequent words, "and said lands shall remain under the absolute jurisdiction and control of the United States," are ren dered purely tautological and meaningless, unless they signify something more than the reservation of authority of the United States over the lands themselves and the title thereto. This argument overlooks not only the particular action of Congress as to the Crow reservation, but also the state of the general law of the United States, as to Indian reservations, at the time of the admission of Montana into the Union. On April 11, 1882 (22 Stat. at L. 42). Congress confirmed an agreement submitted by the Crow Indians for the sale of a portion of their reservation, and for the survey and division in severalty of the agricultural lands remaining in the reservation as thus reduced. The policy thus applied to the Crow reservation subsequently became the general method adopted by Congress to deal with Indian reservations. In February, 1887, by a general law, Congress provided "for the allotment of lands in severalty to Indians on the various reservations, and to extend the *protection of the[246 laws of the United States and the territories over the Indians, and for other purposes.' 24 Stat. at L. 388. The act in question contemplated the gradual extinction of Indian reservations and Indian titles by the allotment of such lands to the Indians in severalty. It provided in § 6, "that upon the completion of said allotments and the patenting of said lands to said allottees, each and every member of the respective bands or tribes of Indians to whom allotments have been made shall have the benefit of and be subject to the laws, both civil and criminal, of the state or territory in which they may reside." But the act at the same time put limitations and restrictions upon the power of the Indians to sell, encumber, or deal with the lands thus to be allotted. Moreover, by § 4 of the act of 1887, Indians not residing on a reservation, or for whose tribe no reservation had been provided, were empowered to enter a designated quantity of unappropriated public land and to have patents therefor, the right, however, of such Indian to sell or encumber being regulated by provisions like those controlling allotments in severalty of lands comprised within a reservation. From these enactments it clearly follows that at the time of the admission of Montana into the Union, and the use in the enabling act of the restrictive words here relied upon, there was a condition of things provided for by the statute law of the United States, and contemplated to arise where the reservation of jurisdiction and control over the Indian lands would become essential to prevent any implication of the power of the state to frustrate the limitations imposed by the laws of the United States upou the title of lands once in an Indian reservation, but which had become extinct by allotment in severalty, and in which contingency the Indians themselves would have passed under the authority and control of the state. It is also equally clear that the reservation of jurisdiction and control over the Indian lands was relevant to and is explicable by the provisions of § 4 of the act of 1887, which allowed nonreservation Indians to enter on and take patents for a certain designated quantity of public land. *Indeed, if the meaning of[247 the words which reserved jurisdiction and control over Indian lands contended for by the defendant in error were true, then the state of Montana would not only be deprived of authority to punish offenses committed by her own citizens upon Indian reservations, but would also have like want of authority for all offenses committed by her own citizens upon such portions of the public domain within her borders as may have been appropriated and patented to an Indian under the terms of the act of 1887. The conclusion to which the contention leads is an efficient demonstration of appeals, one taken by the plaintiff and the other by a portion only of the defendants, will not be considered by this court on appeal by the plaintiff only, to which the defendants who had made the other appeal are not parties. [No. 139.] cided November 30, 1896. its fallacy. It follows that a proper apprecia- Argued and Submitted November 3, 1896. Detion of the legislation as to Indians existing at the time of the passage of the enabling act by which the state of Montana was admitted into the Union adequately explains the use of the words relied upon, and demonstrates that in reserving to the United States jurisdiction and control over Indian lands it was not intended to deprive that state of power to punish for crimes committed on a reservation or Indian lands by other than Indians or against Indians, and that a consideration of the whole subject fully answers the argument that the language used in the enabling act becomes meaningless unless it be construed as depriving the state of authority belonging in virtue of its existence as an equal member of the Union. Of course the construction of the enabling act here given is confined exclusively to the issue before us, and therefore involves in no way any of the questions fully reserved in United States v. McBratney, 104 U. S. 622 [26: 869], and which are also intended to be fully reserved here. Our conclusion is that the circuit court of the United States for the district of Montana had no jurisdiction of the indictment, but, "according to the practice heretofore adopted in like cases, should deliver up the prisoner to the authorities of the state of Montana to be dealt with according to law." United States v. McBratney, supra, and authorities there cited. The judgment is reversed, and the cause remanded for proceedings in conformity to this opinion. 248] PETER WILSON, Appt., v. FRED. J. KIESEL et al. (See S. C. Reporter's ed. 248-252.) Jurisdictional amount-proper parties to an appeal-dismissal for want of parties. 1. The liability for $5.000 each, of several defendants, subscribers to stock of a corporation, cannot give jurisdiction on appeal to this court from a territorial court, although they contend that their subscriptions were paid by a conveyance of 2. An appeal will be dismissed for want of proper parties, where the defendants vitally and directly interested in and necessary parties to it are not made parties, and there are no summons and severance, or the equivalent. land owned by them jointly. 8. A case disposed of by a state court as to all the parties on a ground common to all, upon two NOTE. As to parties in error, who necessary, see note to Owings v. Kincannon, 8: 727. That only parties to record can be heard on appeal or writ of error, see note to Harrison v. Nixon, APPEAL from a judgment of the Supreme Court of the Territory of Utah affirming the judgment of the Fourth Judicial District Court for the Territory of Utah in favor of Fred J. Kiesel et al., defendants, in an action brought by Peter Wilson, plaintiff, against said defendants to compel them to pay their respective unpaid subscriptions to the capital stock of the Ogden Power Company, to be applied in satisfaction of a judgment against said company. On motion to dismiss. Dismissed. See same case below, 9 Utah, 397. The facts are stated in the opinion. Mr. Abbot R. Heywood for appellees, in favor of motion to dismiss. Messrs. Ogden Hiles and J. G. Sutherland for appellant, in opposition to motion. Mr. Chief Justice Fuller delivered the opinion of the court: Wilson recovered judgment against the Ogden Power Company, a corporation organized under the laws of the territory of Utah, for $22,405.16, on which an execution was issued and returned wholly unsatisfied, whereupon he filed a bill in the fourth judicial district court for the territory of Utah, county of Weber, against the company; and against Kiesel, Anderson, and Carnahan, and many others, to compel them severally to pay their respective unpaid subscriptions to the capital stock of the corporation to be applied in satisfaction of the judgment. Defendants Kiesel, Carnahan, and Anderson were charged with having each subscribed for fifty shares of the par *value of $100 each, and with being each [249 liable for $5,000. They answered denying that there was anything due from them to the corporation, and alleging that each of them had paid in full and at par value the amount of the stock subscribed by him; and averring, among other things, that plaintiff was also a subscriber and had paid no part of his subscription; and that Wilson had long before sold and assigned the said judgment and now had no interest therein; and by way of cross-complaint alleged that said judgment was entered by unauthorized consent and was fraudulent and void for various reasons set forth; that it had been sold and transferred to third parties; and that if the action of Wilson against the company had been tried, no greater sum than $2,000 would have been found due; to which cross-complaint plaintiff filed an answer. The record discloses that some twenty-two of the other defendants filed their several answers to the complaint, but does not contain those answers. The cause was referred to a special master to take testimony and report his findings thereon, and he subsequently filed a As to review by United States Supreme Court of report containing twenty one findings of fact, territorial decisions; extent and manner of; dis-embracing a finding that defendants Kiesel, tinction between an appeal and a writ of error,-see note to Miners' Bank v. Iowa, 13: 867. 9: 201. Carnahan, and Anderson had paid their subscriptions to the capital stock in full, and to 164 U.S. While the judgment of affirmance appears in the record the judgment of reversal with directions does not. From the judgment of affirmance the plaintiff appealed to this court and gave bond running to Kiesel, Carnahan, and Anderson, or either of them, and citation was issued to Kiesel, Carnahan, and Anderson only. these the master added twenty-nine further | action and could not maintain it in his own findings, making fifty in all. As a conclusion name, which latter conclusion called for the of law the master recommended that the court affirmance of the judgment in favor of Kiesel, find that plaintiff was entitled to a judgment Carnahan, and Anderson, and the absolute refor the sum of $16,500.52; that some thirty-versal of the judgment against the other detwo named defendants, not including Kiesel, fendant and the remanding of the cause to the Carnahan, and Anderson, should be, respec- court below with directions to dismiss the actively, ordered to pay their unpaid subscrip- tion, it being, therefore, unnecessary to pass tions in the amounts stated; and that said on the question as to whether or not Kiesel, amounts should be applied in payment of the Carnahan, and Anderson had paid their judgment and costs. A decree was thereupon subscriptions to the capital stock of the comrendered in favor of plaintiff, April 29, 1893, any. making the findings and conclusions of the master the findings and conclusions of the district court, and awarding judgment against each of some thirty defendants for amounts stated severally and separately as to each, and in favor of some seven defendants under a stipu250] lation that they had paid their several subscriptions, and also in favor of defendants Kiesel, Carnahan, and Anderson. Plaintiff moved for a new trial as to Kiesel, Carnahan, and Anderson, which was denied, and he appealed to the supreme court of the territory from the judgment in favor of Kiesel, Carnahan, and Anderson, and from the order over ruling the motion for a new trial. The record does not contain the appeal of the other defend ants from the judgment which had been rendered in favor of plaintiff and against them, but it appears from the opinion of the supreme court of the territory that they did so appeal, and that all the contesting defendants were be fore that court. It is evident from the foregoing statement that this appeal must be dismissed. The complaint alleged that Kiesel, Carnahan, and Anderson each subscribed to fifty shares of the capital stock of the Ogden Power Company of the par value of $100 each, and that each was liable for $5,000 for which recovery was sought. This did not reach the jurisdictional amount. Chapman v. Handley, 151 U. S. 443 [38: 227]. It is true that these defendants contended that the amount due from each on their several subscriptions had been paid by a conveyance of land which was owned by them jointly, but On January 29, 1894, the judgment of the the matter in dispute was the liability of each district court on plaintiff's appeal was affirmed for $5,000, and the fact that their several subwith costs. On the same day the opinion of scriptions may have been paid with joint propthe supreme court of the territory was filed in erty would not make the question of the liathe case, a copy of which was transmitted in bility of each a question of the liability of all, accordance with our rule, is referred to by and they did not seek a recovery over. But it is counsel for appellant as part of the record, and said that the matter in dispute far exceeded the as such may serve to supply certain marked jurisdictional limit, because Kiesel, Carnahan, deficiencies otherwise existing therein. From and Anderson had filed a cross-complaint seekthis opinion it appears that plaintiff appealed ing to set aside and cancel Wilson's judgment from the judgment in favor of Kiesel, Carna- against the Ogden Power Company, which was han, and Anderson, and that twenty-four other a judgment for $22,405.16. This contention, defendants appealed from the judgment against however, only demonstrates that the appeal them. The supreme court, after rehearsing must be dismissed for want of proper parties, the facts in the case, stated the question on *as the other defendants were directly and[252 plaintiff's appeal to be whether Kiesel, Carna- vitally interested in the disposition of the crosshan, and Anderson had paid their subscriptions complaint, and necessary parties to the appeal. to the capital stock of the company as con- Not having been made such, and there being tended on their behalf; and that the questions no summons and severance, or the equivalent, raised on the appeal of the other defendants the appeal cannot be sustained. Davis v. Merwere whether plaintiff while a delinquent sub-cantile Trust Co. 152 U. S. 590 [38:563]; Hardes scriber himself could maintain this action in v. Wilson, 146 U. S. 179 [36: 933]. equity against other delinquent subscribers; Indeed this objection is fatal in any view, whether the judgment at law in Wilson's favor for while this record is manifestly inadequate was fraudulent and void; and whether if the and insufficient, it does appear and is conjudgment was valid plaintiff could maintain ceded that the other defendants were before the an action on it as the real party in interest. The supreme court of the territory on their own apsupreme court held that a delinquent subscriber peal as well as Kiesel, Carnahan, and Anderson could maintain the action but must contribute on Wilson's appeal, and that the case was dispari passu with the other subscribers to the posed of as to all of them on a ground compayment of the amount due him; that the judgmon to all. We cannot be required to consider ment was not conclusive on the subscribers, ought to have been reduced by a very large amount, and would have to be reversed in order to afford the subscribers the opportunity to test 251] the validity of Wilson's claim against the corporation; and that Wilson was not the real party in interest at the beginning of the such a case by piecemeal, and if we were to GEORGE A. FOWLER et al., Piffs. in Err., | statutes of Kansas providing for a double liability of stockholders of an insolvent corporation. V. 8. WARREN LAMSON et al. Federal question—jurisdiction. 1. An assignment of errors is unavailable for the purpose of showing any Federal question decided, where the record itself does not show that any such question was passed upon by the state court 3. Where a case is brought to this court on error or appeal from a judgment of a state court, unless it appear in the record that a Federal question was raised and decided in the state court this court is without jurisdiction. [No. 83.] (3) An extract from the statutes of Kansas providing for the dissolution of corporations and for a recovery against the stockholders therein for debts due from the company. (4) An extract from the statutes of limitation of Kansas relating to absconding or concealed debtors. and mining company to the Fowlers, plaintiffs (5) Findings of indebtedness from the coal in error; the giving of a note and mortgage for such indebtedness, and default in the payment thereof, and a dissolution of the company. (6) The recovery of judgment in Illinois in favor of the plaintiffs in error herein on [254 account of the debt due them from the corpora Argued and Submitted November 9, 1896. De- tion; the issue and return of execution upon cided November 30, 1896. IN to of ERROR to the Supreme Court of the court affirming the decree of the Appellate Court of that state reversing the decree of the Superior Court of Cook County for a recovery by plaintiffs, Charles A. Fowler et al., against S. Warren Lamson et al., defendants, stock holders in an insolvent corporation, of the amount of a judgment against the corporation. Dismissed. See same case below, 146 Ill. 472. The facts are stated in the opinion. Messrs. E. F. Thompson, G. W. Delamater, Frank H. Clark, and Wm. H. Wilkins for plaintiffs in error. Messrs. L. H. Bisbee and D. M. Kirton for defendants in error. Mr. Justice Peckham delivered the opinion of the court: The printed record which is before this court in this case is so fragmentary in its nature as to leave no foundation for us to even guess that there was a Federal question in the case, or that it was decided by the state court against the right now set up by plaintiffs in error. The record opens with an assignment of errors which it is alleged were made by the supreme court of Illinois, and fourteen grounds of error are set forth, many of them setting up that such court, by the judgment in suit, erred in the decision of several Federal questions. Then follows the writ of error. Then comes what is termed a decree in the case of George Fowler v. Cherokee Brilliant Coal & Mining Company and others, in the superior court of Cook county, Illinois, which decree, after reciting the fact of a hearing and a reference to a master in chancery and his report thereon, proceeds to make certain findings of fact, and to give extracts from the Constitution and statutes of Kansas, which, briefly stated, are as follows: (1) The incorporation of the coal and mining company under the statute of Kansas. (2) An extract from the Constitution and such judgment wholly unsatisfied. (7) The ownership of stock in the company by the Lamsons. Upon these findings the decree directs a recovery by the plaintiffs herein against the defendants Lamsons, stockholders in the dissolved and insolvent corporation, of the amount of the Illinois judgment against the corporation which had been obtained by plaintiffs herein. This decree is followed in the record by an order made by the appellate court in Illinois reversing the decree of the court below. Then follows an assignment of errors committed by the court in ordering such reversal, after which the opinion of Judge Wilkin of the supreme court of Illinois is printed, which affirms the judgment of the appellate court. In that opinion no Federal question is discussed or decided. The point actually decided by the supreme court of Illinois was, as shown by that opinion, that the Constitution and statutes of Kansas in relation to the liability of stockholders in an insolvent corporation provide a special remedy for enforcing that liability, and that such remedy only could be pursued, and that the courts of Illinois would not enforce a statutory liability under a Kansas statute providing a special remedy against stockholders. Following this opinion is a decree of affirmance by the supreme court of Illinois; after which comes a petition for a writ of error from this court and an allowance thereof. This completes the record. It will be seen that there are no pleadings in the record; no evidence is returned; no exceptions to any decision of the court are to be found; no request to the court to find upon any Federal question; no refusal of the court to find; and no finding uponlany such question. Thus there is an entire absence in this whole record of any fact showing that the supreme court of Illinois or either of the lower courts decided any Federal question whatever. The assignment of errors alleged to have been made by the Illinois supreme court is unavailable for the purpose of showing any Federal question decided, where the record itself does not show that any such question was passed upon by [255 NOTE-As to jurisdiction of Federal over state | Court where Federal question arises or where are As to jurisdiction in the United States Supreme |