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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 divesting the state, pro tanto, of equal authority and jurisdiction over its citizens usually enjoyed by the other states of the Union?

In U. S. v. McBratney, 104 U. S. 622, 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 against Indians, the state courts were vested with jurisdiction to try and punish such crimes. The court there said:

"The act of March 3, 1875 [the enabling act, which provided for the admission of the state of Colorado] necessarily repeals the provisions of any prior statute, or of any existing treaty, which are clearly inconsistent therewith. The Cherokee Tobacco, 11 Wall. 616. Whenever, upon the admission of a state into the Union, congress has intended to except out of it an Indian reservation, or the sole and exclusive jurisdiction over that reservation, it has done so by express words. The Kansas Indians, 5 Wall. 737; U. S. v. Ward, supra [1 Woolw. 17, Fed. Cas. No. 16,639]. The state of Colorado, by its admission into the Union by congress upon an equal footing with the original states in all respects whatever, without any such exception as had been made in the treaty with the Ute Indians and in the act establishing a territorial government, has acquired criminal jurisdiction over its own citizens and other white persons throughout the whole of the territory within its limits, including the Ute reservation, and that reservation is no longer within the sole and exclusive jurisdiction of the United States. The courts of the United States have, therefore, no jurisdiction to punish crimes within that reservation, 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."

U. S. v. McBratney is therefore decisive of the question now before us, unless the enabling act of the state of Montana contained provisions taking that state out of the general rule, and depriving its courts of the Jurisdiction to them belonging, and resulting from the very nature of the equality conferred on the state by virtue of its admission Into the Union. Such exception is sought here to be evolved from certain provisions of the enabling act of Montana which were ratified by an ordinance of the convention

which framed the constitution of that state. The provision relied on is as follows:

"Second. That the people inhabiting 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 congress of the United States; that the lands belonging to citizens of the United States residing without the said state of Montana shall never be taxed at a higher rate than the lands belonging to residents thereof; that no taxes shall be imposed by the said state of Montana on lands or property therein belonging to or which may here. after 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 sev eral cases in the courts of the United States with somewhat contradictory results. U. S. v. Ewing, 47 Fed. 809; U. S. v. Partello, 48 Fed. 670; Truscott v. Cattle Co., 19 C. C. A. 374, 73 Fed. 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 treated. 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

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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 rendered 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. 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 act, however, provided that the title to be acquired by the allottees was not to be subject to alienation, lease, or incumbrance, 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 25 years, and until such time thereafter as the president might see fit to remove the restriction.

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 laws of the United States and the territories over the Indians, and for other purposes." 24 Stat. 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 section 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, incumber, or deal with the lands thus to be allotted. Moreover, by section 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 incumber 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 condi tion 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 upon 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 section 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 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 portion 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 its fallacy. It follows that a proper appreciation 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 an swers the argument that the language used in the enabling act becomes meaningless unless it be construed as depriving the state of authority to it 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 U. S. v. McBratney, 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." U. S. v. McBratney, supra, and authorities there cited.

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1. A decision of the supreme court of a state construing a statute relative to insurance by any "company, corporation, association, or partnership" as separable in its provisions with respect to these different bodies, is conclusive upon federal courts.

2. A statute rendering insurance agents acting, without license from the auditor, for any "foreign company, corporation, association, or partnership," personally liable on policies issued by them, being admittedly valid so far as it concerns foreign corporations, and its provisions being separable as to the different bedies named, will not be held unconstitutional in a suit against the agent of such a corporation, though, as applied to associations, partnerships, or individuals, it may not be valid.

3. A mere question of fact decided by the jury upon evidence which the supreme court of the state declares was sufficient to be submitted to them will not be reviewed by the United States supreme court on writ of error.

Mr. Justice Harlan dissenting.

in Error to the Supreme Court of Alabama. J. M. Chilton and A. A. Wiley, for plaintiffs in error. Charles Wilkinson, for defendant in

error.

*Mr. Justice WHITE delivered the opinion of the court.

Article 2, c. 5, tit. 12, Code Ala., regulates the subject of fire and marine insurance within the state by companies not incorporated therein. It is required by section 1199 that such companies shall pay annually into the treasury the sum of $100. Section 1200 directs that each of such corporations must file with the state auditor a certified copy of its charter, and a statement setting forth certain items in relation to its business condition on the 31st day of December next preceding; and by section 1201 such corporations are required to possess a cash capital of at least $150,000, and are obliged to file a written instrument consenting to service of process upon any agent of such company within the state. Upon compliance with all the requirements of the article, the auditor, if satisfied that the affairs of such company are in sound condition, is required to issue to it a license to transact the business of insurance within the state until the 15th day of January next ensuing.

Sections 1205, 1206, and 1207 of the same article read as follows:

"Sec. 1205. Any person who solicits insurance on behalf of an insurance company, not incorporated by the laws of this state, or who, other than for himself, takes or transmits an application for insurance, a premium of insurance or a policy of insurance to or from

such company, or in any way gives notice that he will receive or transmit the same, or receives or delivers a policy of insurance of such company, or who inspects any risk, or makes or forwards a diagram of any building, or does any other thing in the making of a contract of insurance, for or with such company. other than for himself, or examines into, adjusts or aids in examining into or adjusting any loss for such company, whether such acts are done at the instance of such company, or any broker, or other person, shall be held to be the agent of the company for which the act is done, and such company held to be doing business in this state.

"Sec. 1206. Any person acting as agent of any foreign insurance company which has not received the license from the auditor above provided for, or shall so act after its expiration, is liable personally to the holder of any policy of insurance in respect to which he so acted as agent for any loss covered by it; and shall forfeit, for each offense, the sum of five hundred dollars, to be sued for in the circuit court where the delinquency occurs, by the solicitor, in the name of the state and paid into the state treasury, less twenty-five per cent. retained by the solicitor for his services.

"Sec. 1207. The term insurance company,' as used in this article, includes every company, corporation, association or partnership organized for the purpose of transacting the business of insurance."

The action below was originally instituted in a circuit court of Alabaina by Mitchell, a citizen of Alabama, to recover from the defendants, a firm or insurance agents doing business in the city of Montgomery, the amount of a loss under a policy of insurance covering a stock of merchandise owned by the plaintiff, which policy was procured by the defendants from a corporation known as the Fairmount Insurance Association of Philadelphia, Pa. The corporation in question was not incorporated under the laws of Alabama, and at the time of the issue of the policy had not been licensed to do an insurance business within that state. From a verdict and judgment against them, the defendants prosecuted error. The supreme court of the state affirined the judgment. 100 Ala. 519, 14 South. 581.

The highest court of the state having affirm-i ed the validity of the state statute, and enforced its provisions against the plaintiff in error, despite his objection duly made that such statute was repugnant to the constitution of the United States, a writ of error was allowed, and the cause is here for review.

In Hooper v. California, 155 U. S. 648, 15 Sup. Ct. 207, this court held that a statute of the state of California which made it a misdemeanor for a person in that state to procure insurance for a resident in the state from an insurance company not incorporated under its laws, and which company had not filed the bond required by the laws of the state, was not a regulation of commerce, and did not conflict with the constitution of the Unit

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ed States. The doctrine of earlier decisions of this court with reference to contracts of insurance-namely, that the business of insurance is not commerce, and that a contract of insurance is not, in the constitutional sense of the words, an instrumentality of commercewas reiterated, and held applicable to a marine policy. This court said (page 655, 155 U. S., and page 210, 15 Sup. Ct.):

"The state of California has the power to exclude foreign insurance companies altogether from her territory, whether they were formed for the purpose of doing a fire or a marine business. She has the power, if she allows any such companies to enter her confines, to determine the conditions on which the entry shall be made. And, as the necessary consequence of her possession of these powers, she has the right to enforce any conditions imposed by her laws as preliminary to the transaction of business within her confines by a foreign corporation, whether the business is to be carried on through officers or through ordinary agents of the company; and she has also the further right to prohibit a citizen from contracting within her jurisdiction with any foreign company which has not acquired the privilege of engaging in business therein, either in his own behalf or through an agent empowered to that end. The power to exclude embraces the power to regulate, to enact and enforce all legislation in regard to things done within the territory of the state which may be directly or incidentally requisite in order to render the enforcement of the conceded power efficacious to the fullest extent, subject always, of course, to the paramount authority of the constitution of the United States."

It inevitably results from this ruling that the state of Alabama, in virtue of the power possessed by it of excluding foreign fire insurance corporations from its jurisdiction, could lawfully punish or regulate, by the imposition of civil liability, or otherwise, the doing of acts within the territory of the state calculated to neutralize and make ineffective the statute which prescribed conditions upon which alone the right existed in a foreign insurance corporation to do business within the state.

It is conceded that, in so far as the Alabama law forbids foreign insurance corporations from doing business within the state in violation of the state law, such law does not conflict with the constitution of the United States; but the claim is made that since the statute not only regulates foreign corporations, but declares that the term "insurance company" embraces every company, corporation, association, or partnership organized for the purpose of transacting an insurance business, therefore it violates section 2, art. 4. of the constitution, guarantying that "the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states."

The fact that foreign corporations are not

"citizens," within the meaning of the constitution, it is said was the reason of the ruling in Hooper v. California; hence that case does not apply to a state law which includes within its inhibitions those who are citizens. We need not, however, express any opinion as to the correctness of this asserted distinction, since, even if it be well founded, it has no relevancy to the question before us. The action below was predicated upon the fact that the business of insurance alleged on had been done by a foreign corporation. The supreme court of Alabama, in interpreting the statute, held that the provision as to foreign corporations was distinct and separable from those concerning associations or partnerships. It said:

"It is contended, however, by section 1207 of the Code, supra [Code Ala.], these provi- AI

sions of the law are made to include 'associations' and 'partnerships,' as well as 'corporations,' and in this respect discriminates against citizens of another state who may compose such 'partnerships,' and in this respect is violative of the constitutional provision which declares that 'the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.' We construe section 1207 as amendatory of the sections to which it refers, so as to substitute the words 'corporation, association, or partnership' for the words 'insurance company.' Thus construed, section 1205, supra, would read as follows: 'Any person who solicits insurance on behalf of a corporation, association, or partnership not incorporated by the laws of this state,' etc.; and section 1206, supra, would read: 'Any person acting as agent of any foreign corporation, association, or partnership which has,' etc.

"By holding that section 1207 is amendatory of the other sections referred to in the manner declared, sections 1205 and 1206 are separable in their provisions, and, so far as they are made to apply to and are enforced against foreign corporations,' they do not contravene any provision of the state constitution or the constitution of the United States. Paul v. Virginia, supra [8 Wall. 168]; Baldwin v. Franks, 120 U. S. 678, 7 Sup. Ct. 656, 763; Railroad Co. v. Morris, 65 Ala. 193; McCreary v. State, 73 Ala. 480; Powell v. State, 69 Ala. 10; Vines v. State, 67 Ala. 73. The construction of the statute is one of difficulty, and the one given to it is not altogether satisfactory; but we are of opinion the language used in section 1207, considered in connection with other sections to which it refers, admits of the interpretation given to it; and, when the statute is attacked upon constitutional grounds, it is our duty to avoid such a construction, if it can be done consistently as will defeat the entire legislation of the state upon questions embraced in these statutes relating to insurance companies."

The correctness of this construction of the Alabama statute, made by the supreme court of that state, it is urged, is erroneous,

and we are invited to disregard it; but manifestly the interpretation of a statute of the state of Alabama by the supreme court thereof under the circumstances here presented is binding on us. Dibble v. Land Co., 163 U. S. 63, 73, 16 Sup. Ct. 939, 942; Union Nat. Bank of Chicago v. Louisville, N. A. & C. Ry. Co., 163 U. S. 325, 331, 16 Sup. Ct. 1039, 1042.

Reading, then, into the Alabama statute the construction given thereto by the court of last resort of that state, the argument of the plaintiff in error amounts to this: that, although it is admitted that the law of the state of Alabama regulating the doing of insurance business by foreign corporations is not in conflict with the constitution of the United States, nevertheless we should hold that it does violate that constitution, because of another and separate law of Alabama, which it is asserted would be unconstitutional if it were before us for consideration. Of course, to state this proposition is to answer it.

It is suggested that there is no adequate proof that the policy in controversy was issued by a foreign corporation. This involves a mere question of fact, which was submitted to the jury by the trial court, and as to which the supreme court of Alabama sald there was evidence sufficient for the consideration of the jury, and which is not subject to review here on writ of error. Dower v. Richards, 151 U. S. 659, 14 Sup. Ct. 452; In re Buchanan, 158 U. S. 31, 15 Sup. Ct. 723. Affirmed.

Mr. Justice HARLAN dissents.

(164 U. S. 252)

FOWLER et al. v. LAMSON et al.
(November 30, 1896.)
No 83.

SUPREME COURT-FEDERAL QUESTION-JURISDIC

TION.

1. To give the supreme court of the United States jurisdiction on appeal or error from the judgment of the supreme court of a state, the fact that a federal question was raised and decided in the state court must appear from the record. It cannot be shown by the assignment

of errors.

2. The supreme court of the United States has no jurisdiction on a writ of error to a state court, where the record fails to show affirmatively that a federal question necessary to the determination of the cause was raised in the state court, and decided adversely to the party asserting a constitutional right, or that the judgment, as rendered, could not have been given without deciding it.

In Error to the Supreme Court of Illinois. E. F. Thompson, for plaintiffs in error. L. H. Bisbee, for defendants in error.

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 14 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. The Cherokee Brilliant Coal & Mining Company and others, in the superior court of Cook county, Ill., 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 statutes of Kansas.

(2) An extract from the constitution and statutes of Kansas providing for a double liability of stockholders of an insolvent corporation.

(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.

(5) Findings of indebtedness from the coal and mining company to the Fowlers, plaintiffs 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 account of the debt due them from the corporation. The issue and return of execution upon 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 Lamson, 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. 34 N. E. 932. In that opinion no federal question is discussed or decided. The point ac

* Mr. Justice PECKHAM delivered the opin- tually decided by the supreme court of Illiton 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

nois 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 en

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