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of the decisions of this court. If it could go that far, why may it not declare, as it has in effect done, by this statute, that its provisions shall apply to foreign life insurance companies doing business in Missouri under its license? It would, indeed, be ex

own life insurance companies to respect this statute, but could not enforce its provisions against a foreign corporation doing business within its limits, with its consent, express or implied-especially against one which, as is the case here, came into the state for purposes of business after such statutory provisions were enacted. As the present statute is applicable alike to all life insurance companies doing business in Missouri, after its enactment, there is no reason for saying that it denies the equal protection of the laws. Equally without foundation is the contention that the statute, if enforced, will be inconsistent with the liberty guaranteed by the 14th Amendment. The liberty referred to in that Amendment is the liberty of natural, not artificial, persons. Nor, in any true, constitutional sense, does the Missouri statute deprive life insurance companies doing business in that state of a right of property. This is too plain for discussion.

as to matters having no real or substantial | Missouri, it is not perceived that the state connection whatever with the death of the may not make its provisions applicable to insured, and which were in no sense mate- corporations of other states doing business rial to the risk. This was deemed an evil in its territory with its sanction or under its practice, to be remedied by legislation. Of license. That Missouri could forbid life incourse, the state, if it had seen proper, might surance companies of other states from dohave excepted from the operation of the ing any business whatever within its limits, statute cases in which the insured, by his except upon the terms prescribed by the statrepresentations when obtaining a policy, per-ute in question, cannot be doubted, in view petrated a fraud upon the company, or made untrue statements in his application as to matters material to the risk. But that remedy was deemed inadequate to prevent wrong and injustice. The state decided to go to the root of the evil, and therefore, in substance, it established, as a rule of con-traordinary if the state could compel its duct for all life insurance companies, domestic and foreign, doing business in the state, that representations, of whatever nature, made to the company by the insured, should not defeat recovery upon a policy unless such representations, in the judgment of a jury, actually contributed to the contingency or event on which it was to become due and payable. Surely the state could make such a regulation in relation to its own corporations; for a corporation cannot exert any power, nor make any contract, forbidden by the law of its being. Such a restriction as that founded in the Missouri statute, if embodied in the original charter of a life insurance corporation, would, of course, be binding upon it in the state granting such charter, and could not be disregarded. If, however, no such restriction was imposed by its charter, it could yet be imposed by subsequent legislation, unless the state had precluded itself from so doing by some contract (if a binding one could be made) which, as to its obligation, was protected by the Federal Constitution. The business of life insurance is of such a peculiar character, | judgment is affirmed. affects so many people, and is so intimately connected with the common good, that the state creating the insurance corporations and giving them authority to engage in that business may, without transcending the limits of legislative power, regulate their affairs, so far, at least, as to prevent them from committing wrong or injustice in the exercise of their corporate functions. The state may well say to its own corporate creatures engaged in the business of life insurance that they shall not refuse to pay what they agreed to pay simply because of some representation made by the insured which did not actually contribute to the contingency or event on which the agree-dians under the treaty of September 24, ment to pay depended. If a life insurance corporation does not approve such a restriction upon the conduct of its affairs it is its privilege to cease doing business. Now, if the statute in question is not invalid as to life insurance corporations of 27 S. C.-9.

What has been said disposes of the only questions we need to determine, and the

(203 U. S. 233)

ANN FRANCIS, Plff. in Err.,

V.

PETER J. FRANCIS, William Francis, and
Frank Francis.

Indians-treaty as grant.

1. A title in fee may pass under a treaty with the Indians without the aid of an act of Congress, and without any patent from the United States.

Courts-following decisions of state courts. 2. Decisions of the courts of a state respecting the title acquired by individual In

1819, with the Chippewa Nation, to the lands therein reserved for their use, will not be disturbed by the Supreme Court of the United States, where they have become a rule of property, and do not clearly involve a misinterpretation of the words of the treaty.

Submitted October 10, 1906. Decided Decem- Bokowtonden, six hundred and forty acres, on the Kawkawling river." 7 Stat. at L 203.

N ERROR to the Supreme Court of the State of Michigan to review a judgment which affirmed a judgment of the Circuit Court of Bay County, in that state, in favor of defendants in an action of eject-ling river, described by metes and bounds,

"unto the said children of Bokowtonden, and

See same case below, 136 Mich. 288, 99 their heirs forever," the patent containing

* Mr. Justice Harlan delivered the opinion patent of 1827. What rights were acquired,

At the conclusion of the evidence the jury, by direction of the court, returned a verdict for the defendants, upon which judgment was rendered. That judgment was affirmed, upon writ of error, by the supreme courted. 210; United States v. Kagama, 118 U. S. of Michigan.

•239

view of previous decisions, this court further, said: "The clear result of this series of decisions is that when the United States, in a treaty with an Indian tribe, and as part of the consideration for the cession by the tribe of a tract of country to the United States, make a reservation to a chief or other member of the tribe of a specified number of sections of land, whether already identified, or to be surveyed and located in the future, the treaty itself converts the reserved sections into individual property; the reservation, unless accompanied by words limiting its effect, is equivalent to a present grant of a complete title in fee simple; and that title is alienable by the grantee at his pleasure, unless the United States, by a provision of the treaty, or of an act of Congress, have expressly or impliedly prohibited or restricted its alienation."

tion of its several stipulations. A patent, although the usual, is by no means the only, mode in which the title to the public domain can pass from the government to an individual. It may pass by an act of Congress, or by a treaty stipulation, as well as by a patent. The Indian title to the land reserved did not pass to the United States by the treaty, which operated as a release, by both the Indians and government, of all interest either had in the lands reserved to the respective reservees, in fee simple; and it would be a violation of the treaty for the government to claim the land in question." Upon appeal the supreme court of Michigan, 1 Dougl. 546, 558, 564, said: "The first question to be determined is, What estate passed to the reservee*under the treaty? The 3d article is in the following words: "There shall be reserved for the use of each of the persons hereinafter mentioned, and their heirs, which persons are all Indians by descent, the following tracts of land,' etc. For the use of Mokitchenoqua, six hundred and forty acres of land, to be located at and near the Grand Traverse of the Flint river, in such manner as the President of the United States may direct.' It is very clear that, if a fee-simple estate was intended to be granted, the parties to the treaty were unfortunate in the choice of terms by which to give effect to that intention; and yet it is difficult to conceive that any other estate was in the contemplation of the parties at the time of its existence. Will, then, the 3d article warrant such a construction? It will be observed that the reservation is to the use of Mokitchenoqua and her heirs. No limitation as of Mo-to the time of holding, or restriction upon the right of alienation, is contained in the grant. The use of the word heirs clearly implies that such an estate was granted as would, upon her death, descend to her legal representatives. Here, then, are all the essential elements of a fee-simple estate. This construction, we think, is justified by the words of the 3d article, and is strengthened by the fact that it corresponds not only with an opinion given by the Attorney General of the United States to the Secretary of War (Land Laws, pt. 2, pp. 96, 97), but with the opinion of the Senate,—a branch of the treaty-making power, which is certainly entitled to great consideration. 3 Senate Doc. 1836, No. 197.” Again, in the same case, the court said: "The location of the lands became a duty devolving on the President by the treaty. This duty he could execute without an act of Congress; the treaty, when ratified, being the supreme law of the land, which the President was bound to see executed. It was impossible to describe the tract granted to any of the res ervees in the treaty, as it is matter of

Did an alienable title in fee simple pass to She children of Bokowtonden by virtue of the treaty of 1819, 1820? That question was under consideration in the courts of Michigan a long while ago and was answered in the affirmative; and it would seem that their construction of the provisions in question has become a rule of property in that state. In Stockton v. Williams, Walk. Ch. (Mich.) 120, 129, decided in 1843, the question was elaborately discussed and fully considered. The treaty in that case the same one involved here-contained these words: "There shall be reserved for the use of each of the persons hereinafter mentioned and their heirs, which persons are all Indians by descent, the following tracts of land. For the use kitchenoqua . . each, six hundred and forty acres of land, to be located at and near the Grand Traverse of the Flint river in such manner as the President of the United States may direct." 7 Stat. at L. 204. The chancellor said: "It makes no mention of a patent, nor does it require the President or other officer of the government, after the lands have been located, to do any act whatever recognizing the right of the several reservees to the different sections. All it required of the President was to have the lands located, at and near a particular place pointed out by the treaty. To locate does not mean to patent, but to have the several sections surveyed and marked out, and a map made of them, showing the particular section belonging to each of the reservees. This was done; and, when it was done, this part of the treaty was fully executed on the part of the government. Nothing further was required to carry it into effect, and the title then vested in the respective reservees, unless we hold the treaty itself to be clearly defective in not providing for the execu

*241

history that none of the lands ceded had | property in the state where the land is sitever been surveyed. But locality is given to uated. That rule of property should not be the grant by the terms of the treaty, with disturbed, unless it clearly involves a misan authority to locate afterwards by a*sur- interpretation of the words of the treaty vey making it definite. Smith v. United of 1819. We agree with the state court in States, 10 Pet. 331, 9 L. ed. 444. This au- holding that a title in fee passed by the thority being executed, the grant then be- treaty to the children of Bokowtonden, and came as valid to the particular section des- that the patent issued in 1827 only located ignated by the President as though the de- or made definite the boundaries of the tract scription had been incorporated in the reserved to them by the treaty. It follows treaty itself. We are, therefore, of opin- that the words in the patent of 1827, "but ion that a fee simple passed to the reser- never to be conveyed by them or their heirs vee, Mokitchenoqua, by force of the treaty without the consent and permission of the itself, and that the rights of the parties President of the United States," were incould in no wise be affected by the subse- effectual as a restriction upon the power of quent act of the President directing a pat- alienation. The President had no authority, ent to be issued." in virtue of his office, to impose any such restriction; certainly not, without the authority of an act of Congress, and no such act was ever passed. The children of Bokowtonden having, then, obtained by the treaty the right to convey, there is no reason to doubt that title could be acquired by prescription. The evidence shows that the defendants and those through whom they claim have had peaceable, adverse possession of the premises in question continuously for more than half a century prior to the commencement of this action.

In Dewey v. Campau, 4 Mich. 565, 566, the court, interpreting the same treaty, said: "A title in fee, under this clause of the treaty, passed, by this language, to the reservee. The term 'reservation' was equivalent to an absolute grant. The title passed as effectually as if the grant had been executed. The title was conferred by the treaty; it was not, however, perfect until the location was made; the location was necesary to give it identity. The location was duly made, and thus the title to the land in controversy was consummated by giving identity to that which was before unlocated." In Campau v. Dewey, 9 Mich. 381, 433, reference was made to Stockton v. Williams, 1 Dougl. (Mich.) 546, above cited, the court saying: "This decision has, for sixteen years, been recognized as the law governing the titles under this treaty, at least, and these must be quite numerous, many of which have doubtless been bought and sold

on the faith of this decision. We are therefore compelled to recognize it as a rule of property which we are not at liberty to disturb." These cases were not, in any sense, modified by Auditor General v. Williams, 94 Mich. 180, 53 N. W. 1097, which was the case of an Indian treaty which expressly provided that the land there in question should never be sold or alienated to any person or persons whomsoever, without the consent of the Secretary of the Interior for the time, manifestly a different case from the present one, in which the treaty contained no restriction upon alienation.

The result of the cases cited is: 1. That this court and the highest court of Michigan concur in holding that a title in fee may pass by a treaty without the aid of an act of Congress, and without a patent. 2. That the construction of the treaty here involved, whereby the respective Indians named in its 3d article are held to have acquired by the treaty a title in fee to the land reserved for the use of themselves, has become a rule of

Without assigning other grounds in support of the ruling below, the judgment of the Supreme Court is affirmed.

Mr. Justice White did not participate in the decision of this case.

(203 U. S. 183)

ST. MARY'S FRANCO-AMERICAN PE-
TROLEUM COMPANY, Plff. in Err.,

V.

STATE OF WEST VIRGINIA.

Constitutional law-due process of law-appointing state auditor to accept service upon corporation.

1. A domestic corporation whose principal office and works are outside the state is not deprived of its liberty and property without due process of law by W. Va. Acts 1905, chap. 39, requiring every foreign and nonresident domestic corporation to appoint the state auditor to accept service of process, and exacting an annual fee of $10 for his services, although the prior laws left it to the corporation to appoint an attorney for that purpose.

Constitutional law-equal protection of the laws-appointing state auditor to accept service upon corporation.

2. The equal protection of the laws is not denied to a domestic corporation whose state, by W. Va. Acts 1905, chap. 39, requir principal office and works are outside the ing every foreign and nonresident domestic corporation to appoint the state auditor to

accept service of process, and exacting an ginia, to accept service on behalf of said annual fee of $10 for his services.

[No. 98.]

Submitted November 5, 1906. Decided De

cember 3, 1906.

IN ERROR to the Supreme Court of Ap. peals of the State of West Virginia to review a judgment awarding a peremptory writ of mandamus to compel a nonresident domestic corporation to appoint the state auditor to accept service of process. Affirmed.

corporation, and as a person upon whom service may be had of any process or notice, and to make returns of its property for taxation."

At the time the company was incorporated § 8 of chapter 53 of the state Code read:

"Where the legislature has the right to

cable to such company. But in no case shall such alteration or repeal affect the right of the creditors of the company to have its assets applied to the discharge of its liabilities, or of its stockholders to have the surplus, if any, which may remain after discharging its liabilities and the expenses of winding its affairs, distributed among themselves in proportion to their respective interests." And § 24 of chapter 54:

alter or repeal the charter or certificate of incorporation heretofore granted to any joint stock company, or to alter or repeal any law relating to such company, nothing contained in this chapter shall be construed to surrender or impair such right. And the right is hereby reserved to the legislature to alter any charter or certificate of incorporaStatement by Mr. Chief Justice Fuller: tion hereafter granted to a joint stock comThis is a writ of error to review a judg-pany, and to alter or repeal any law appli ment of the supreme court of appeals of West Virginia awarding a peremptory writ of mandamus, commanding the St. Mary's Franco-American Petroleum Company, by power of attorney, duly executed, acknowledged, and filed in the office of the auditor for the state of West Virginia, "to appoint said auditor and his successors in office, attorney in fact to accept service of process and notice in this state for said St. Mary's Franco-American Petroleum Company, and by the same instrument to declare its consent that service of any process or notice in this state on said attorney in fact, or his acceptance thereof indorsed thereon, shall be equivalent for all purposes to, and shall be and constitute, due and legal service upon the said St. Mary's Franco-American Petroleum Company, and that the petitioner recover from the respondent her costs about the prosecution of her petition in this court in this behalf expended."

It was agreed by the parties that no rule to show cause need be issued on the petition for mandamus, nor any alternative writ, but that the petition might stand as such writ, and the case be determined on demurrer thereto, which was filed.

up

"Every such corporation having its principal office or place of business in this state shall, within thirty days after organization, by power of attorney duly executed, appoint some person residing in the county in this state wherein its business is conducted, to accept service on behalf of said corporation, and upon whom service may be had of any process or notice, and to make such return for and on behalf of said corporation to the assessor of the county or district wherein its business is carried on, as is required by the 41st section of the 29th chapter of the Code. Every such corporation having its principal office or place of business outside this state shall, within thirty days after organizing, by power of attorney duly executed, appoint some person residing in this state to acThe petition, among other things, averred cept service on behalf of said corporation, that the St. Mary's Company was "a non- and upon whom service may be had of any resident domestic corporation, organized, process or notice, and to make return of its chartered, existing, and carrying on its cor- property in this state for taxation as aforeporate business under and by virtue of the said. The said power of attorney shall be laws of the state of West Virginia, but hav-recorded in the office of the clerk of the ing its principle office and place of business and chief works in the city of Lima, in the state of Ohio;" that the corporation "was organized, and now exists by virtue of a charter issued to it by the secretary of state of the state of West Virginia on the 18th day of January, 1902;" and that "on the 17th day of February, 1902, the said defendant corporation, by power of attorney, duly and legally executed, filed, and recorded, appointed one Wm. M. O. Dawson, a resident of the county of Kanawha in the state of West Vir

county court of the county in which the attorney resides, and filed and recorded in the office of the secretary of state, and the admission to record of such power of attor ney shall be deemed evidence of compliance with the requirements of this section. Corporations heretofore organized may comply with said requirements at any time within three months after the passage of this act. Any corporation failing to comply with said requirements within six months after the passage of this act shall forfeit not less