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for publication upon nonresident defendants | was deprived of its jurisdiction. The lands in suits begun in the circuit court of the were still held by the attachment to answer United States to enforce any legal or equita- such judgment as might be rendered against ble lien upon a claim to real or personal the defendant. property within the district where suit is brought.

It must be taken at the outset as settled that no valid judgment in personam can be rendered against a defendant without personal service upon him in a court of competent jurisdiction, or waiver of summons, and voluntary appearance therein. Pennover v. Neff, 95 U. S. 715, 24 L. ed. 565; Caledonian Coal Co. v. Baker (New Mexico ex rel. Caledonian Coal Co. v. Baker) 196 U. S. 432, 444, 49 L. ed. 540, 545, 25 Sup. Ct. Rep. 375, and cases cited.

Nor did the petition for removal in the form used in this case have the effect to submit the person of the defendant to the jurisdiction of the state court, or, upon removal to the Federal court, deprive him of the right to object to the manner of service upon him (Goldey v. Morning News, 156 U.S. 518, 39 L. ed. 517, 15 Sup. Ct. Rep. 559), and the exercise of the right of removal did not have the effect of entering the general appearance of the defendant, but a special appearance only for the purposes of removal (Wabash Western R. Co. v. Brow, 164 U. S. 271-279, 41 L. ed. 431-434, 17 Sup. Ct. Rep. 126).

But we cannot agree with the contention of counsel for plaintiff in error, that, as a personal judgment can only be rendered upon personal service, and service by publication under the state statutes cannot be made in the Federal court, and that the United States statute (act of March, 1875, 18 Stat. at L. 472, chap. 137, U. S. Comp. Stat. 1901, p. 513) is inapplicable to the case, the effect of the removal is to render nugatory the attachment proceedings in the state court.

The purpose not to interfere with the lien of the attachment in the state court is recognized and declared in the statute (§ 4 of the removal act, 18 Stat. at L. 471, chap. 137, U. S. Comp. Stat. 1901, p. 511) providing that, when any suit is removed from a state court to the circuit court of the United States, an attachment of the goods or estate of the defendant, had in the suit in the state court, shall hold the goods or estate attached to answer the final judgment or decree in the same manner as by law it would have been held to answer the final judgment or decree had it been rendered by the court in which the suit was commenced, and preserving the validity of all bonds or security given in the state court.

The transfer of the cause to the United States court gave the latter court control of the case as it was when the state court

The defendant had a right to remove to the Federal court, but it is neither reasonable nor consonant with the Federal statute preserving the lien of the attachment, that the effect of such removal shall simply be to dismiss the action wherein the state court had acquired jurisdiction by the lawful seizure of the defendant's property within the state.

When the jurisdiction of the state court. was terminated by the removal, that court had seized upon the attached property, with the right to hold it to answer such judgment as might be rendered. In the absence of personal service the state statute provided for publication of notice of the pendency of the suit. If the defendant failed to appear the court might proceed to render a judgment, which would permit the attached property to be sold for its satisfaction. To render such a judgment in the absence of an appearance and defense the state court had only to require the statutory notice to the defendant, when its proceedings were interrupted by the removal to the Federal court on the application of the defendant.

The Federal court thus acquired jurisdiction of a cause of which the defendant had notice, as appears by his petition for removal and the action of the state court invoked by him. The defendant, it is true, had not been personally served with process or submitted his person to the jurisdiction of either the state or Federal court. But he did not attack the validity of the attachment proceedings, which appear to be regular and in conformity to the law of the state. There was no necessity of publication of notice in the Federal court in order to warn the defendant of the proceeding; he knew of it, and to a qualified extent had appeared in it.

Without further notice to him, the courthad jurisdiction to enter a judgment enforcible against the attached property. The judgment purported to be rendered as upon personal service and after a finding by the court "that the so-called special appearance for the removal hereinbefore recited was an absolute and unqualified submission to the jurisdiction of this [the Federal] court."

There are expressions in the opinion of the learned judge of the circuit court to the effect that the judgment rendered was intended to be effectual only to subject the attached property (136 Fed. 462), and it seems to be in the form used in some jurisdictions, which recognize that the property attached is all that is reached by the judgment rendered. But the judgment is abso

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November 19, 1906.

lute upon its face, and entered after a find- | Argued November 7 and 8, 1906. Decided ing of full jurisdiction over the person of the defendant. It is in such form as can be sued upon elsewhere and be pleaded as a final adjudication of the cause of action set forth in the petition, and be executed against other property of the defendant, whereas the court had only jurisdiction to render a judgment valid against the property seized in attachment.

We hold that, to the extent that it rendered a personal judgment absolute in terms, the court exceeded its jurisdiction in the case, not having, by service or waiver, personal jurisdiction of the defendant.

The judgment to that extent is therefore modified and made collectible only from the attached property. So modified, the judgment is affirmed.

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Constitutional law-due process of law-excluding foreign corporation.

2. No existing property rights are taken. without due process of law by a state statute, passed in the exercise of its power over foreign corporations, incorporating a local benevolent society with the same name as that of a voluntary state association whose charter had been withdrawn by the foreign corporation that issued it, and conferring upon such society the exclusive right of granting subcharters in the state. Constitutional law-equal protection of the laws-excluding foreign corporation.

3. The equal protection of the laws is not denied by a state statute, passed in the exercise of its power over foreign corporations, incorporating a local benevolent society with the same name as that of a voluntary state association whose charter had been withdrawn by the foreign corporation that issued it, and conferring upon such society the exclusive right of granting subcharters in the state.

[No. 89.]

N ERROR to the Supreme Court of Appeals of the State of Virginia to review a decree affirming, with a slight modification, a decree of the Chancery Court of Richmond, in that state, enforcing the rights of a local benevolent society under its charter. Affirmed.

See same case below, 104 Va. 197, 51 S. E.

166.

The facts are stated in the opinion. Messrs. C. V. Meredith, Ellis G. Kinkead, and Smith W. Bennett for plaintiffs in error.

Messrs. Frank W. Christian and Samuel A. Anderson for defendant in error.

Mr. Justice Holmes delivered the opinion of the court:

This is a writ of error to reverse a decree in favor of the defendant in error, the original plaintiff, and hereinafter called the plaintiff. 104 Va. 197, 51 S. E. 166. The plaintiffs in error will be called the defendants. The plaintiff is a Virginia corporation. The principal defendant is a Pennsylvania corporation. The other defendants are alleged to be officers of a voluntary association, calling itself by the plaintiff's the Pennsylvania corporation. The latter name, and are acting under a charter from was incorporated in 1893, the articles of association reciting that the associates comprise the national council, the supreme head of the order in the United States (where it previously had existed as a voluntary association). Its objects were to promote the interests of Americans and shield them from foreign competition, to assist them in obtaining employment, to encourage them in business, to establish a sick and funeral fund, and to maintain the public school system, prevent sectarian interference with the same, and uphold the reading of the Holy Bible in the schools. As the result of internal dissensions the Virginia corporation was chartered in 1900, with closely similar objects, omitting those relating to the public

dominant portion of a former voluntary state council of the same name, from which a charter issued by the Pennsylvania corporation had been withdrawn. The act of incorporation declared that the new body "shall be the supreme head of the Junior Order of the United American Mechanics in the state of Virginia," and provides that it "shall have full and exclusive authority to grant charters to subordinate councils, Junior Order United American Mechanics, in the state of Virginia, with power to re

schools. It seems to have consisted of the

voke the same for cause." The plaintiff and the voluntary organization of the defendants both have granted and intend to grant charters to subordinate councils in Virginia, and are obtaining members and fees which each would obtain but for the other, and are holding themselves out as the only true and lawful state council of the Virginia Junior Order of United American Mechanics.

The plaintiff sued for an injunction, and the defendants, in their answer, asked cross relief. The plaintiff obtained a decree enjoining the defendant corporation and the other defendants (declared to be shown by their answers to be its agents and representatives) as officers of the Virginia voluntary association, from continuing within the state the use of the plaintiff's name or any other name likely to be taken for it; from using the plaintiff's seal; from carrying out under such name the objects for which the plaintiff and the Virginia voluntary association were organized; from granting charters to subordinate councils in the state as the head of the order in the state; from interfering in any way with the pursuit of its objects by the plaintiff within the state; and from designating their officers within the state by applications set forth as used by the plaintiff. On appeal the decree was affirmed, with a modification, merely by way of caution, providing that nothing therein contained should, in anywise, interfere with any personal or property rights that might have accrued before the date of the Virginia charter. The defendants had set up in their answer and insisted that the charter impaired the obligation of the contract existing between the plaintiff and the principal defendant, contrary to article 1, § 10, of the Constitution, and also violated § 1 of the 14th Amendment, and they took a writ of error from this court.

at the date of the charter be read as a construction of the charter, it does not affect the scope or validity of the act. And if so read, still it cannot be taken to empty the specific prohibitions in the decree of all definite meaning and to leave only an indeterminate injunction to obey the law at the defendants' peril. That injunction remains and imports what the words of the charte:: import, that the plaintiff has been granted certain defined exclusive rights which the court will enforce.

The decree, however, goes beyond the rights which we have mentioned as given by the charter. In that respect the discussion here must be limited again. Whether the plaintiff is using paraphernalia, or a ritual, or a seal, which it should not be allowed to use, is not before us here. The charter says nothing about them, and its validity is not affected by any abuse of rights of property or of confidence which the plaintiff or its members may have practised. This court, we repeat, cannot go beyond a decision upon the constitutionality of the charter granted, and we address ourselves to that.

The contract of which the obligation is alleged to have been violated is a contract between the plaintiff and the principal defendant. What that contract is supposed to have been is not stated, but manifestly there was none. It would have had to be a contract not to come into existence, at least with the plaintiff's present functions and name. There have been cases where administration was taken out on a prematurely born child and a suit brought for causing it to be born, per quod it died, but they have failed. Dietrich v. Northampton, 138 Mass. 14, 52 Am. Rep. 242. See Walker v. Great Northern R. Co. Ir. L. R. 28 Eq. 69. An antenatal contract presents greater difficulties still. Even if we should substitute an allegation of a contract with the members of the plaintiff, the contention would fail. The contract, if any there was, was not that they would not become incorporated, but must be supposed to be that they would re

The bill and answer state the two sides of the difference which led to the split, at length. But those details have no bearing that needs to be considered here. The only question before us is the constitutionality of the act of the Virginia legislature grant-tain their subordination to the national ing the charter. The elements of that ques- council, or something of that sort. It is tion are the appropriation of the name of going very far to say that they contracted the previously existing voluntary society and not to secede, but whether they did so or the exclusive right of granting subcharters not, it was a matter outside the purview of in Virginia conferred by the words that we the charter. There was nothing in that to have quoted. Whether the persons who were hinder their returning to their allegiance. using that name when they got themselves Whether any, and if any, what, contract was incorporated were using it rightly or wrong-made (National Council, J. O. of U. A. M. v. ly does not matter if the legislature had the right to grant the name to them in either case. On the other hand, we do not consider the question stated to be disposed of by the limitation put upon the decree by the supreme court of appeals. Unless the saving of personal and property rights existing

State Council J. O. of U. A. M. 64 N. J. Eq. 470, 473, 53 Atl. 1082, 66 N. J. Eq. 429, 57 Atl. 1132), and whether, if made, it must not be taken to have been made subject to the powers of the state, with which we about to deal, are questions which we may pass. See Pennsylvania College Cases (Jef

ferson College v. Washington & J. College) 13 Wall. 190, 218, 20 L. ed. 550, 554; Bedford v. Eastern Bldg. & L. Asso. 181 U. S. 227, 45 L. ed. 834, 21 Sup. Ct. Rep. 597.

239, 260, 43 L. ed. 432, 440, 19 Sup. Ct. Rep. 165. But when the so-called property consists merely in the value that there might be in extending its business or membership into a state, that property, it hardly needs. to be said, depends upon the consent of the

The most serious aspect of the defense is presented by the matter of the plaintiff's name. If the legislation of a state under-state to let the corporation come into the took to appropriate to the use of its own creature a trade name of known commercial value, of course the argument would be very strong that an act of incorporation could not interfere with existing property rights. And, no doubt, within proper limits, the argument would be as good for a foreign corporation as for a foreign person. But that is not what has been done in this case.

The name in question is not the name of the principal defendant, but distinguished from that name as state and national councils no doubt generally are distinguished by members of similar institutions. It is the name of a voluntary association of which the officers are defendants. But it is not used even by that association in its own right, but only under a charter from, and in the right of, the Pennsylvania corporation. Furthermore, the name is not associated with a product of any kind. Its only value to the defendants, in a property sense, is as tending to invite membership in a club which professes to derive its existence and its powers from the Pennsylvania company. It does not seem likely that anyone would join the plaintiff, and certainly no member could be retained, in ignorance of its alienation from the national council. As the national council has its branches elsewhere, and as the plaintiff is, on its face, a state organization, competition outside the state appears improbable. So that the claim of the defendants comes down to a claim of right to compete within the state, and a right, as we have said, of or in behalf of the Pennsylvania corporation, which controls the existence of its subordinate Virginia councils. Thus the question as to the grant of the name passes over into the question as to the exclusive right of the plaintiff to issue charters, which was the other legislative grant.

state. The state of Virginia had the undoubted right to exclude the Pennsylvania corporation and to forbid its constituting branches within the Virginia boundaries. As it had that right before the corporation got in, so it had the right to turn it out after it got in. Security Mut. L. Ins. Co. v. Prewitt, 202 U. S. 246, 50 L. ed. 1013, 26 Sup. Ct. Rep. 619. It follows that the state could impose the more limited restriction that simply forbade the granting of charters to "subordinate councils, Junior Order United American Mechanics, in the state of Virginia."

It is argued that the power of the state in this case was less than it otherwise might have been, because it did not turn the Pennsylvania corporation out. The supreme court of appeals says that the plaintiff's charter leaves the whole order of things as it existed unaffected except by the exclusive right of the plaintiff to issue subordinate charters. It is said that the general statutes recognized the defendant and authorized such associations to continue within the state. A subordinate council of the order had been granted a special charter, which is not revoked. The conclusion is drawn that the restrictions upon the defendant which flow from the charter to the plaintiff amount to a denial of the equal protection of the laws of Virginia to a person within its jurisdiction. But the power of the state as to foreign corporations does not depend upon their being outside of its jurisdiction. Those within the jurisdiction, in such sense as they ever can be said to be within it, do not acquire a right not to be turned out except by general laws. A single foreign corporation, especially one unique in character, like the national council, might be expelled by a special act. It equally could be restricted in the more limited way.

There were many difficult questions presented to the state court which cannot be reviewed here. As to the constitutionality of the plaintiff's charter, we are of opinion that the court was right. Decree affirmed.

The supreme court of appeals was right, therefore, in treating the constitutional question as depending on the power of the state with regard to foreign corporations. That must decide the case. Now it is true, of course, that an unconstitutional law no more binds foreign corporations than it binds others. Carroll v. Greenwich Ins. Co. 199 U. S. 401, 409, 50 L. ed. 246, 249, 26 Sup. Ct. Rep. 66. And no doubt a law specially directed against a foreign corporation might EDWARD MEATH, Assessor be unconstitutional, for instance, as depriving it of its property without due process Taxes-exemption-Indian allotments. of law. See Blake v. McClung, 172 U. S. Land allotted under an Indian treaty

JAMES GOUDY, Plff. in Err.,

V.

County, Washington.

of Pierce

which exempts such land from levy, sale, or forfeiture until the state legislature shall, with the consent of Congress, remove the restriction, can no longer escape taxation after the Indian patentee has become a citizen under the act of February 8, 1887 (24 Stat. at L. 388, chap. 119), which, in addition to the grant of citizenship, provides that "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," and the ten years during which Congress, by the act of March 3, 1893 (27 Stat. at L. 612, 633, chap. 209), postponed the operation of the provision of Wash. Laws 1889, 1890, p. 499, granting the power of alienation "in like manner and with like effect as any other person may do under the laws of the United States and of this state," and removing all restrictions in reference thereto, have expired.

[No. 53.]

the consent of Congress." Under this treaty, on January 30, 1886, a patent to the plaintiff was issued. One of the facts agreed upon is the following:

"That since the issuance of said patent, and by an act of Congress passed and approved on the 8th day of February, 1887, plaintiff became and now is a citizen of the United States, and entitled to all the rights, privileges, and immunities of such citizens. Said act is found in the United States Statutes at Large, vol. 24, chapter 119, at page

388."

In 1889, Washington was admitted as a state. Its first legislature enacted:

"Section 1. That the said Indians who now hold. or who may hereafter hold, any of the lands of any reservation, in severalty, located in this state, by virtue of treaties made between them and the United States, shall have power to lease, encumber, grant, and alien the same in like manner and with

Submitted October 23, 1906. Decided No- like effect as any other person may do un

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Statement by Mr. Justice Brewer:

This case is before us on error to the supreme court of Washington. 38 Wash. 126, 80 Pac. 295. It was submitted to the state

der the laws of the United States and of this state, and all restrictions in reference thereto are hereby removed." Laws 1889, 1890, p. 499.

In 1893, Congress passed an act (27 Stat. at L. 612, 633, chap. 209) autnorizing the appointment of a commission with power to superintend the sale of the allotted lands, with this proviso:

"That the Indian allottees shall not have power of alienation of the allotted lands not selected for sale by said commission for a period of ten years from the date of the passage of this act."

Construing these several acts, the Secretary of the Interior, on February 14, 1903, wrote to the Commissioner of Indian Affairs, summing up his conclusions in these words:

I have

courts on an agreed statement of facts, and involves the question of the liability of the land of the plaintiff, now plaintiff in error, to taxation for the year 1904. He is a Pu"I am of the opinion that the requireyallup Indian, and claims exemption under and by virtue of the treaty of December 26, ments of the treaties with respect to these lands have been fully met, and that the pro1854. 10 Stat. at L. 1132. That treaty provisions of the act of the legislature of the vided for an allotment of land in severalty state of Washington of March 22, 1890, and to such members of the tribe as were will-state ing to avail themselves of the privilege, on the Indian appropriation act of March 3, the same terms, and subject to the same 1893, referred to above, together operate to regulations, as were named in the treaty remove all restrictions upon the alienation with the Omahas. The latter treaty, March or sale thereof by the allottees. 16, 1854 (10 Stat. at L. 1043), authorized therefore to direct that the Puyallup comthe President to issue a patent for any al- missioner be instructed to continue the selotted land, "conditioned that the tract shall lection and appraisement of such portions not be aliened or leased for a longer term than of the Puyallup allotted lands, but only two years; and shall be exempt from levy, with the consent of the Indians, as provided sale, or forfeiture, which conditions shall in the act of March 3, 1893, until the excontinue in force until a state constitution, piration of the ten-year period mentioned, embracing such lands within its boundaries, to wit, March 3, 1903, after which date, in shall have been formed, and the legislature my judgment, the Puyallup Indian allottees of the state shall remove the restrictions. will have power to lease, encumber, grant, . No state legislature shall remove and alien the same in like manner and like the restrictions herein provided for without effect as any other person may do under

27 S. C.-4.

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