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Chupco V. Chapman, 76 Okla. 201, 287). Section 19 of that act materially 170 Pac. 259; Crowe v. Hardridge, revised the restrictions respecting lands Okla. 175 Pac. 115.

of living allottees, and $ 22 dealt with

the alienation of inherited lands, includMr. Justice Van Devanter delivered ing, as this court has [106] held, lands the opinion of the court:

allotted in the name and right of a By this suit certain conveyances of member after his death. Talley v. Burlands allotted in the name and right of a gess, supra, p. 108. Section 22 read as Creek Indian after his death were as follows: sailed, and their cancelation sought, by

“That the adult heirs of any deceased the heirs who [105] made them. On Indian of either of the Five Civilized the final hearing the district court up- Tribes whose selection has been made, or held two of the conveyances (235 Fed. to whom a deed or patent has been is626), and that decree was affirmed by sued for his or her share of the land of the circuit court of appeals (162 C. C. the tribe to which he or she belongs or A. 345, 250 Fed. 209). The present ap- belonged, may sell and convey the lands peal is by the heirs.

inherited from such decedent; and if The circumstances to be considered there be both adult and minor heirs of are as follows: By the Act of March 1, such decedent, then such minors may join 1901, chap. 676, 31 Stat. at L. 861, as in a sale of such lands by a guardian duly modified by the Act of June 30, 1902, appointed by the proper United States chap. 1323, 32 Stat. at L. 500, provision court for the Indian territory. And in was made for the allotment and distri- case of the organization of a state or terbution of the Creek tribal lands and ritory, then by a proper court of the counfunds among the members of the tribe. ty in which said minor or minors may An enrolment was to be made of (a) all reside or in which said real estate is members living on April 1, 1899, (b) all situated, upon an order of such court, children born to members after that made upon petition filed by guardian. All date, up to and including July 1, 1900, conveyances made under this provision by and living on the latter date, and (c) all | heirs who are full-blood Indians are to children born to members after July 1, be subject to the approval of the Secre1900, up to and including May 25, 1901, tary of the Interior, under such rules and living on the latter date. All who and regulations as he may prescribe.” were so enrolled were to share in the Section 5 of the same act directed that allotment and distribution. If any of all patents or tribal deeds for allotthese died before receiving his allotment ments should issue "in the name of the and distributive share, the lands and allottee,"—meaning the member in whose moneys to which he “would be entitled right the allotment was made,-and if living” were to “descend to his heirs,” provided that if he were then dead, the and be "allotted and distributed to them I title slould inure to and vest in his accordingly.” A provision in the Act heirs," as if the patent or deed "had isof March 3, 1905, plainly intended to sued to the allottee during his life." A amend and supplement the earlier acts, like provision is found in § 32 of the Act authorized the inclusion of all children of June 25, 1910, chap. 431, 36 Stat. at born between May 25, 1901, and March | L. 855, 3 Fed. Stat. Anno. 2d ed. p. 858. 4, 1905, and living on the latter date Further provisions bearing on the (chap. 1479, 33 Stat. at L. 1071). alienation of lands of living allottees,

Originally all lands allotted to living and also inherited lands, were embodied members in their own right were sub- in the Act of May 27, 1908, chap. 199, jected to specified restrictions on alien- 35 Stat. at L. 312, 3 Fed. Stat. Anno. 2d ation; but those allotted in the right of ed. p. 881, to be noticed presently. deceased members were left unrestricted The lands in question were allotted in up to the passage of the Act of April 26, the name and right of Freeland Francis, 1906 (chap. 1876, 34 Stat. at L. 137, 3 a Creek child who was born in 1903, was Fed. Stat. Anno. 2d ed. p. 861. Skelton lawfully enrolled June 10, 1905, and died v. Dill, 235 U. S. 206, 59 L. ed. 198, 35 twelve days later. After his death the Sup. Ct. Rep. 60; Adkins v. Arnold, 235 allotment was [107] duly selected and U. S. 417, 420, 59 L. ed. 294, 295, 35 Sup. made by the Commission to the Five Ct. Rep. 118; Mullen v. United States, Civilized Tribes, and in regular course 224 U. S. 448, 56 L. ed. 834, 32 Sup. Ct. a patent or deed was issued in his Rep. 494; Brader v. James, 216 U. S. 88, name. His heirs, to whom the title 94, 62 L. ed. 591, 594, 38 Sup. Ct. Rer passed under the statutes already no285; Talley v. Burgess, 246 U. S. 104, ticed, were his mother, Annie Fran107, 62 L. ed. 600, 602, 38 Sup. Ct. Rep. I cis (now Harris), his half-brother,

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Mack Francis, his brother, Amos, and blood Indians were restrained and dishis sister, Elizabeth. These were all abled from disposing of the lands by enrolled Creeks,—three being full-blood reason of the restrictions applicable to Indians and one a half-blood.

living allottees of the full blood. If the January 15, 1908, after the allotment premise were right, the conclusion would was perfected, the mother, who was an be unavoidable. See § 19, Act of 1906, adult, sold and conveyed her interest, supra, and § 1, Act of 1908, supra. But and that conveyance was approved by the premise is not right, as is shown by the Secretary of the Interior, July 6, statutes already mentioned, such as § 28 1910, the approval as indorsed on the of the Act of 1901, § 7 of the Act of deed reading:

1902, and § 5 of the Act of 1906. The "The conveyance by Annie Francis of allotment was made in virtue of the right her interest as full-blood Indian heir in of Freeland, who was one of those among and to the within-described lands allot- whom the tribal property was to be disted to Freeland Francis, a new-born tributed. Under the statutes that right Creek citizen, Roll No. 1070, who died was not extinguished by his death, but prior to May 27, 1908, is hereby ap- was preserved for his heirs; and it was proved in accordance with the provi-preserved for them because they were sions of the act of Congress approved his heirs, and not because their relation April 26, 1906."

to it was otherwise different from that The half brother, Mack, sold and con- of other members of the tribe. Such inveyed his interest in 1910, after he at- dividual claims as they had to the tribal tained his majority, but the validity of lands were to be satisfied by their indithat transaction is not questioned. He vidual allotments. What they were to was not a full-blood Indian, but a half- receive in the right of Freeland was the blood.

lands and moneys to which "he would be January 15, 1912, the interest of Amos entitled if living;" and these were to and Elizabeth, who were minors, was "descend” to and vest in them as "his sold and conveyed by their guardian heirs;" as if he had received the same under the direction and approving order "during his life.” Putting aside the disof the county court wherein the guard-tinctions between title by purchase and ianship of their persons and property title by descent [109] which prevail was pending

in the absence of controlling statAt the time of Freeland's death the utes, and giving effect to the letter family was residing in that part of the and spirit of what Congress has enIndian territory wbich, on the advent of acted, we think it is manifest that statehood (November 16, 1907), became these heirs must be regarded as havWagoner county, and shortly after his ing received these lands as an inherideath they removed to and ever since tance from Freeland, and not as have resided in what became Okmulgee direct allotment to them. Perryman v. county. The lands are in the latter Woodward, 238 U. S. 149, 150, 59 L. ed. county, and it was in the county court 1242, 1243, 35 Sup. Ct. Rep. 830; Talley thereof that the guardian's sale and con- v. Burgess, supra. veyance were directed and approved. 2. The first restrictions applicable to

[108] The conveyance by the moth-Creek lands such as these were embodied er, who was a full-blood Indian, and in § 22 of the Act of 1906, herein before that by the guardian of Amos and Eliz- set forth. As respects the mother's conabeth, who were full-bloods, are the veyance, which was executed January ones to be considered on this appeal. 15, 1908, all that was necessary under All rights under them are held by par- that section to make the conveyance efties who were defendants in the district fective—the mother being an adult fullcourt and are appellees here.

blood Indian-was that it be approved The grounds on which the conveyances by the Secretary of the Interior. As are assailed are four in number,--one before shown, it was approved by that directed at both conveyances, one at that officer July 6, 1910. But it is urged that of the mother alone, and two solely at before his approval was given all power that of the guardian. They will be taken to approve had been taken from him up in this order.

and lodged elsewhere by the Act of May 1. It is urged that the heirs took the 27, 1908. Evidently the Secretary did lands as allottees, and not as heirs of not so construe that act when his apFreeland,-in other words, that they re- proval was given, else he would have ceived the lands as a direct allotment to withheld it. Not only so, but his action them, and not as an inheritance,--and in this instance was in accord with the therefore that such of them as were full-practice of his office for a considerable

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period, and also with an opinion ren-, tion 9 expressly recognizes that the lat-
dered to him by the Attorney General. ter may be sold, and this proviso cannot
27 Ops. Atty. Gen. 530. This adminis- be taken as prescribing the contrary,
trative view is, of course, entitled to re- The word "living" evidently is intended
spect, and those who have relied thereon to mark the distinction. What is in-
ought not lightly to be put in peril. But tended is to make sure that minor allot-
it is not controlling. We have examined tees receive the benefit of the restrictions
the act, including § 9, upon which re-prescribed in § 1, and not to impose
liance is had, and are of opinion that, as others. Apparently it was apprehended
to conveyances made prior to the act, that the general language of $ 6 might
the power of the Secretary to examine be taken as enabling probate [111]
and approve or disapprove under $ 22 of courts and guardians to sell without
the prior enactment not taken regard to those restrictions, and the of-
away. The act contains no express revo- fice of the proviso is to prevent this.
cation of that power, nor any provision So understood, it is in accord with the
inconsistent with its continued exercise general scheme of the act, and not in
as to prior conveyances. The provision conflict with any other provision.
in § 9, that no conveyance of any inter- 4. The remaining objection to the
est of any full-blood Indian heir shall be guardian's conveyance is that it was not
valid "unless approved by the court hav- approved by the court having jurisdic-
ing jurisdiction of the settlement of the tion of the settlement of the estate of
(110) estate” of the deceased allottee, Freeland, the deceased allottee.
taken according to its natural import, The situation out of which the objec-
prescribes a rule for future rather than tion arises is at least novel. Freeland
prior conveyances; and no reason is per- died June 22, 1905, and the conveyance
ceived for rejecting its natural import. was made January 15, 1912. Statehood
Had there been a purpose to cut off ac- had intervened and counties had been
tion by the Secretary as to conveyances organized where there were none before.
already made, some of which were before He resided and died in what afterwards
him at the time, it is but reasonable to became Wagoner county, and under the
believe that other words aptly express- local law the county court of that county
ing that purpose would have been used. is the one which, at the time of the con-
The matter hardly would have been left veyance, would have had jurisdietion of
to conjecture or uncertain implication. the settlement of his estate. The court
Besides, the absence of such a purpose in the Indian territory which would
is measurably reflected by the declara- have had such jurisdiction prior to state-
tion in § 1 that "the Secretary of the hood was no longer in existence. The
Interior shall not be prohibited by this conveyance was not approved by the
act from continuing to remove restrie- county court of Wagoner county, but
tions as heretofore." The lapse of two was approved by the county court of
and one-half years between the execution | Okmulgee county, which, under the local
of the conveyance and its approval is not law, was the only court having jurisdic-
material, there being no lawful intervention of the guardianship of the persons
ing disposal. Pickering v. Lomax, 145 and property of the minors, Amos and
U. S. 310, 36 L. ed. 716, 12 Sup. Ct. Rep. Elizabeth. The lands were in that
860; Lykins v. McGrath, 181 U., S. 169, county, and the minors, as also the other
46 L. ed. 485, 22 Sup. Ct. Rep. 450.

heirs, were residing there. 3. Section 6 of the Act of 1908 sub

Section 6 of the Act of 1908, and othjects the persons and property of minor allottees to the jurisdiction of the pro

er congressional enactments, explicitly bate courts of the state, and in a proviso subject the persons and property of Insays: “No restricted lands of living dian minors of the Five Civilized Tribes minors shall be sold or encumbered, ex- to the jurisdiction of the probate courts cept by leases authorized by law, by of Oklahoma. In that state the county order of the court or otherwise.” One courts are the probate courts. ground on which the guardian's sale on Section 9 of the same act declares: behalf of the minor heirs, Amos and "That the death of any allottee of the Elizabeth, is assailed, is that it was in Five Civilized Tribes shall operate to reviolation of this proviso. But, in our move all restrictions upon the alienation opinion, the proviso does not include or of said allottee's land: Provided, that affect inherited lands. It refers, as a no conveyance of any interest of any survey of the act shows, to lands of liv- full-blood Indian heir in [112] such ing minor allottees, and not to lands land shall be valid unless approved by inherited from deceased allottees. Sec- the court having jurisdiction of the set

V.

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state

tlement of the estate of said deceased , UNDERWOOD TYPEWRITER COMPANY, allottee."

Plff. in Err., If in this instance the same court had had jurisdiction of the guardianship of FREDERICK S. CHAMBERLAIN, Treasthe minor heirs and of the settlement of

urer of the State of Connecticut. the estate of the deceased allottee, no embarrassment would have ensued; but

(See S. C. Reporter's ed. 113–122.) as that was 'not the case, the question arises, whether it was essential that the Commerce

taxation foreign guardian's conveyance, directed and ap

corporation. proved, as it was, by the court having turing and trading corporation, measured

1. State taxation of a foreign manufaccontrol of the guardianship, should also by the net profits earned within the state, be approved by the court having jurisdic- does not offend against the commerce clause tion of the settlement of the deceased of the Federal Constitution, whether deemed allottee's estate. The circuit court of ap- a property tax or a franchise tax, even peals answered in the negative; and, though these profits may have been de. while the question is not free from dif- rived in part, or indeed mainly, from interficulty, we think that solution of it is state commerce, where payment of the tax right.

is not made a condition precedent to the Of course, the purpose in requiring

right of the corporation to carry on busiany approval is to safeguard the inter- enforcement is left to the ordinary means

ness, including interstate business, but its ests of the full-blood Indian heir. Where of collecting taxes. he is a minor, he can convey only (For other cases, see Commerce, III. d. in through a guardian; and no court is in

Digest Sup. Ct. 1908.) a better situation to appreciate and safe

Commerce state taxation foreign guard his interests than the one wherein

corporations. the guardianship is pending. Besides, as not obnoxious to the commerce clause of

2. A tax on a foreign corporation is a general rule, a guardianship carries the Federal Constitution merely because it with it exclusive power to direct the is imposed upon property used in interguardianship and to supervise the man- state commerce, even if it takes the form agement and disposal of the ward's of a tax for the privilege of exercising the property. It is so in Oklahoma. This corporate franchise within the state. rule is so widely recognized and so well [For other cases, see Commerce, III, d, in Di.

gest Sup. Ct. 1903.) grounded in reason that a purpose to Constitutional law – due process of law depart from it ought not to be assumed

taxation foreign corporaunless manifested by some very clear or tion. explicit provisior. The Act of 1908 con- 3. Measuring for tax purposes the net tains no manifestation of such a purpose outside the proviso in § 9. That proviso

Note.-State licenses or taxes, as afseems broad, but so is the provision in $ fecting interstate commerce-see notes 6, subjecting the persons and property to Rothermel v. Meyerle, 9 L.R.A. 366; of minor Indians to local guardianship. American Fertilizing Co. v. Board of As both are in the same act, they evi- Agriculture, 11 L.R.A. 179; Gibbons v. dently were intended to operate har- Ogden, 6 L. ed. U. S. 23; Brown v. moniously, and should be construed Maryland, 6 L. ed. U. S. 678; Ratteraccordingly. The proviso does not men- man v. Western U. Teleg. Co. 32 L. ed. tion minors under guardianship; and to U. S. 229; Harmon v. Chicago, 37 L. ed. regard its general words as including i U. S. 217; Cleveland, C. c. & St. L. R. them will either take all supervision of Co. v. Backus, 38 L. ed. U. S. 1041; the sale of their interest in [113] inher-Postal Teleg. Cable Co. v. Adams, 39 ited lands from the court in which the L. ed. U. S. 311; and Pittsburg & S. guardianship is pending, or subject that Coal Co. v. Bates, 39 L. ed. U. S. 528. court's action to the approval of another

As to constitutionality of income tax court of the same rank. In either event, -see notes to Alderman v. Wells, 27 conflict and confusion will almost cer- L.R.A.(N.S.) 864; State ex rel. Bolens tainly ensue and be detrimental to the v. Frear, L.R.A.1915B, 569. minor heirs. But, if the proviso be re

On validity and construction of statgarded, as well it may, as referring to utes taxing the income of nonresidents heirs not under guardianship,-in other from trade, business, or other sources words, to adult heirs,—the two provi- within the state-see note to Shaffer v. sions will operate in entire harmony, and Carter, 64 L. ed. U. S. 446. all full-blood heirs will receive the meas- On constitutional equality in the ure of protection intended. We think United States in relation to corporate this is the true construction.

taxation-see note to Bacon: v. State Decree affirmed.

Tax Comrs. 60 L.R.A, 321.

165

state

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profits earned by a foreign manufacturing upon property located without the state
and trading corporation within the state by of Connecticut.
taking such proportion of the whole net

Pollock v. Farmers' Loan & T. Co.
income as the fair cash value of the corpo. 157 U. S. 429, 39 L. ed. 759, 15 Sup. Ct.
ration's real and tangible personal property
within the state bears to the fair cash value Rep. 673; Maguire v. Tax Comr. 230
of all the real and tangible personal prop- Mass. 503, 120 N. E. 162, affirmed in 253
erty of such corporation cannot be said to U. S. 12, 64 L. ed. 739, 40 Sup. Ct. Rep.
be so inherently arbitrary, nor, as applied 417; Opinion of Justices, 220 Mass. 624,
to a corporation whose profits were largely 108 N. E. 570; Adams Exp. Co. v. Ohio
earned in a series of transactions, beginning State Auditor, 165 U. S. 194, 41 L. ed.
with manufacture in the state, and ending 683, 17 Sup. Ct. Rep. 305; People ex rel.
with sale in other states, to produce so un: Alpha Portland Cement Co. v. Knapp,
reasonable a result

, as to render invalid the 191 App. Div. 262, 181 N. Y. Supp. 32. state law prescribing such rule, as taxing business outside the state, and hence deny.

Considered as a tax on plaintiff's taning due process of law, where the only show. gible property in Connecticut, the act ing made in support of this constitutional wholly fails to answer the requirements objection is that but a very small part of of law applicable to such a tax. the corporation's net profits was received Adams Exp. Co. v. Ohio State Audiwithin the state, while, under the statutory tor, 165 U. S. 194, 221, 41 L. ed. 683, method of apportionment, nearly one half 695, 17 Sup. Ct. Rep. 305; Fargo v. of the corporation’s net income is attribu Hart, 193 U. S. 490, 499, 48 L. ed. 761, table to operations within the state, since 765, 24 Sup. Ct. Rep. 498; Meyer vi the percentage of net profits earned within the state may, none the less, have been even Wells, F. & Co. 223 U. S. 298, 300, 56 larger than the percentage arrived at by L. ed. 445, 447, 32 Sup. Ct. Rep. 218: the statutory method.

Union Tank Line Co. v. Wright, 249 U, [For other cases, see Constitutional Law, iv. S. 275, 63 L. ed. 602, 39 Sup. Ct. Rep. b, 6, a, in Digest Sup. Ct. 1908.)

276; Wallace v. Hines, 253 U. S. 66, 64 Constitutional law equal protection L. ed. 782, 40 Sup. Ct. Rep. 435; Postal of the laws taxation of foreign cor

Teleg. Cable Co. v. Adams, 155 U. S. poration.

4. A foreign corporation may not suc- 688, 39 L. ed. 311, 5 Inters. Com. Rep. cessfully attack as 'invalid, under U. s. 1, 15 Sup. Ct. Rep. 268, 360. Const. 14th Amend., a state tax, applicable The Connecticut tax, considered as an alike to all foreign and domestic corpora- excise or privilege tax, is invalid. tions, measured by the net profits of the International Paper Co. v. Massachucorporation earned within the state, on the setts, 246. U. S. 135, 62 L. ed. 624, 38 ground that such corporation had made Sup. ct. Rep. 292, Ann. Cas. 1918C, large permanent investments in the state 617; State Tax on Foreign-held Bonds, before the state tax law was enacted. (For other cases, see Constitutional Law, 254

15 Wall. 319, 21 L. ed. 179; Wallace v. 265, in Digest Sup. Ct. 1908. )

Hines, 253 U. S. 66, 64 L. ed. 782, 40

Sup. Ct. Rep. 435; Judson, Tax. § 245: [No. 215.)

General R. Signal Co. v. Virginia, 246

U. S. 500, 62 L. ed. 854, 38 Sup. Ct. Argued October 13 and 14, 1920. Decided Rep. 360; Southern R. Co. v. Greene, November 15, 1920.

216 U. S. 400, 54 L. ed. 536, 30 Sup. Ct

Rep. 287, 17 Ann. Cas. 1247; Pensacola
IN
N ERROR to the Superior Court of Teleg. Có. v. Western U. Teleg. Co. 96

the State of Connecticut to review a U. S. 1, 24 L. ed. 708; Baltic Min. Co. judgment entered pursuant to the man

v. Com. 207 Mass. 381, 93 N. E. 831; date of the Supreme Court of Errors of The Position of Foreign Corporations in that state, sustaining the validity of a American Constitutional Law, by Mr. tax on a foreign corporation. Affirmed. Gerard C. Henderson, vol. 2, chap. 9 of

See same case below in supreme court, Harvard Studies in Jurisprudence, p. 94 Conn. 47, 108 Atl. 154.

153; Looney v. Crane Co. 245 U. S. 190, The facts are stated in the opinion. 62 L. ed. 236, 38 Sup. Ct. Rep. 85.

Messrs. Arthur M. Marsh and Ar- The formula for allocating income to thur L. Shipman argued the cause, and, the state of Connecticut in necessary with Messrs. Charles Strauss and Eu- operation directly burdens interstate gene D. Boyer, filed a brief for plaintiff commerce and exacts a tax upon net inin error:

come and property located without the The tax is upon income as such, and state. hence is a property tax. It is null and Galveston, H. & S. A. R. Co. v. Texas, void because it lays a tax upon the re- 210 U. S. 217, 52 L. ed. 1031, 28 Sup. ceipts from interstate commerce and Ct. Rep. 638.

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