2. The first restrictions applicable to Creek lands such as these were embodied in § 22 of the Act of 1906, herein before set forth. As respects the mother's conveyance, which was executed January 15, 1908, all that was necessary under that section to make the conveyance effective-the mother being an adult fullblood Indian-was that it be approved by the Secretary of the Interior. As before shown, it was approved by that officer July 6, 1910. But it is urged that before his approval was given all power to approve had been taken from him 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

1

The word "living" evidently is intended to mark the distinction. What is intended is to make sure that minor allottees receive the benefit of the restrictions prescribed in § 1, and not to impose others. Apparently it was apprehended that the general language of § 6 might be taken as enabling probate [111] courts and guardians to sell without regard to those restrictions, and the office of the proviso is to prevent this. So understood, it is in accord with the general scheme of the act, and not in conflict with any other provision.

period, and also with an opinion ren-, tion 9 expressly recognizes that the latdered 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 respect, and those who have relied thereon ought not lightly to be put in peril. But it is not controlling. We have examined the act, including $ 9, upon which reliance is had, and are of opinion that, as to conveyances made prior to the act, the power of the Secretary to examine and approve or disapprove under § 22 of the prior enactment was not taken away. The act contains no express revocation of that power, nor any provision inconsistent with its continued exercise as to prior conveyances. The 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 jurisdicing 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 objecprescribes 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 conThe matter hardly would have been left veyance, would have had jurisdiction 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 statetion 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 restric- 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 jurisdicmaterial, there being no lawful intervention of the guardianship of the persons ing disposal. Pickering v. Lomax, 145 U. S. 310, 36 L. ed. 716, 12 Sup. Ct. Rep. 860; Lykins v. McGrath, 184 U. S. 169, 46 L. ed. 485, 22 Sup. Ct. Rep. 450.

3. Section 6 of the Act of 1908 subjects the persons and property of minor allottees to the jurisdiction of the probate courts of the state, and in a proviso says: "No restricted lands of living minors shall be sold or encumbered, except by leases authorized by law, by order of the court or otherwise." One ground on which the guardian's sale on behalf of the minor heirs, Amos and Elizabeth, is assailed, is that it was in violation of this proviso. But, in our opinion, the proviso does not include or affect inherited lands. It refers, as a survey of the act shows, to lands of living minor allottees, and not to lands inherited from deceased allottees. Sec

and property of the minors, Amos and Elizabeth. The lands were in that county, and the minors, as also the other heirs, were residing there.

Section 6 of the Act of 1908, and other congressional enactments, explicitly subject the persons and property of Indian minors of the Five Civilized Tribes to the jurisdiction of the probate courts of Oklahoma. In that state the county courts are the probate courts.

Section 9 of the same act declares: "That the death of any allottee of the Five Civilized Tribes shall operate to remove all restrictions upon the alienation of said allottee's land: Provided, that no conveyance of any interest of any full-blood Indian heir in [112] such land shall be valid unless approved by the court having jurisdiction of the set

254 U. S.

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

If in this instance the same court had had jurisdiction of the guardianship of the minor heirs and of the settlement of the estate of the deceased allottee, no embarrassment would have ensued; but as that was 'not the case, the question arises, whether it was essential that the guardian's conveyance, directed and approved, as it was, by the court having control of the guardianship, should also be approved by the court having jurisdiction of the settlement of the deceased allottee's estate. The circuit court of appeals answered in the negative; and, while the question is not free from difficulty, we think that solution of it is right.

Plff. in Err.,

V.

FREDERICK S. CHAMBERLAIN, Treas-
urer of the State of Connecticut.

(See S. C. Reporter's ed. 113-122.)

Commerce
corporation.

Commerce
corporations.

taxation state

state taxation

foreign

foreign

2. A tax on a foreign corporation is not obnoxious to the commerce clause of the Federal Constitution merely because it is imposed upon property used in interstate commerce, even if it takes the form of a tax for the privilege of exercising the corporate franchise within the state. gest Sup. Ct. 1903.] [For other cases, see Commerce, III. d, in DiConstitutional law-due process of law taxation foreign corpora

state

tion.

1. State taxation of a foreign manufacturing and trading corporation, measured by the net profits earned within the state, does not offend against the commerce clause of the Federal Constitution, whether deemed a property tax or a franchise tax, even though these profits may have been derived in part, or indeed mainly, from interstate commerce, where payment of the tax is not made a condition precedent to the right of the corporation to carry on busiOf course, the purpose in requiring ness, including interstate business, but its any approval is to safeguard the inter-enforcement is left to the ordinary means ests of the full-blood Indian heir. Where of collecting taxes. see Commerce, III. d. in he is a minor, he can convey only [For other cases, Digest Sup. Ct. 1908.] through a guardian; and no court is in a better situation to appreciate and safeguard his interests than the one wherein the guardianship is pending. Besides, as a general rule, a guardianship carries with it exclusive power to direct the guardianship and to supervise the management and disposal of the ward's property. It is so in Oklahoma. This rule is so widely recognized and so well grounded in reason that a purpose to depart from it ought not to be assumed unless manifested by some very clear or explicit provisior. The Act of 1908 contains no manifestation of such a purpose outside the proviso in § 9. That proviso seems 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 mention minors under guardianship; and to regard its general words as including them will either take all supervision of the sale of their interest in [113] inherited lands from the court in which the guardianship is pending, or subject that court's action to the approval of another court of the same rank. In either event, conflict and confusion will almost certainly ensue and be detrimental to the minor heirs. But, if the proviso be regarded, as well it may, as referring to heirs not under guardianship,-in other words, to adult heirs, the two provisions will operate in entire harmony, and all full-blood heirs will receive the measure of protection intended. We think this is the true construction.

Decree affirmed.

3. Measuring for tax purposes the net Note.-State licenses or taxes, as af

man v. Western U. Teleg. Co. 32 L. ed.
U. S. 229; Harmon v. Chicago, 37 L. ed.
U. S. 217; Cleveland, C. C. & St. L. R.
Co. v. Backus, 38 L. ed. U. S. 1041;
Postal Teleg. Cable Co. v. Adams, 39
L. ed. U. S. 311; and Pittsburg & S.
Coal Co. v. Bates, 39 L. ed. U. S. 528.

As to constitutionality of income tax -see notes to Alderman v. Wells, 27 L.R.A. (N.S.) 864; State ex rel. Bolens v. Frear, L.R.A.1915B, 569.

On validity and construction of statutes taxing the income of nonresidents from trade, business, or other sources within the state-see note to Shaffer v. Carter, 64 L. ed. U. S. 446.

On constitutional equality in the United States in relation to corporate taxation-see note to Bacon v. State Tax Comrs. 60 L.R.A. 321.

165

upon property located without the state of Connecticut.

Pollock v. Farmers' Loan & T. Co. 157 U. S. 429, 39 L. ed. 759, 15 Sup. Ct. Rep. 673; Maguire v. Tax Comr. 230 Mass. 503, 120 N. E. 162, affirmed in 253 U. S. 12, 64 L. ed. 739, 40 Sup. Ct. Rep. 417; Opinion of Justices, 220 Mass. 624, 108 N. E. 570; Adams Exp. Co. v. Ohio State Auditor, 165 U. S. 194, 41 L. ed. 683, 17 Sup. Ct. Rep. 305; People ex rel. Alpha Portland Cement Co. v. Knapp, 191 App. Div. 262, 181 N. Y. Supp. 32. Considered as a tax on plaintiff's tan

profits earned by a foreign manufacturing and trading corporation within the state by taking such proportion of the whole net income as the fair cash value of the corporation's real and tangible personal property within the state bears to the fair cash value of all the real and tangible personal property of such corporation cannot be said to be so inherently arbitrary, nor, as applied to a corporation whose profits were largely earned in a series of transactions, beginning with manufacture in the state, and ending with sale in other states, to produce so unreasonable a result, as to render invalid the state law prescribing such rule, as taxing business outside the state, and hence denying 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 within the state, while, under the statutory method of apportionment, nearly one half of the corporation's net income is attributable to operations within the state, since the percentage of net profits earned within the state may, none the less, have been even larger than the percentage arrived at by the statutory method.

[For other cases, see Constitutional Law, IV.
b, 6, a, in Digest Sup. Ct. 1908.]
Constitutional law
of the laws
poration.
4. A foreign corporation may not suc-
cessfully attack as invalid, under U. S.
Const. 14th Amend., a state tax, applicable
alike to all foreign and domestic corpora-
tions, measured by the net profits of the
corporation earned within the state, on the
ground that such corporation had made
large permanent investments in the state
before the state tax law was enacted.

equal protection
taxation of foreign cor-

[For other cases, see Constitutional Law, 254265, in Digest Sup. Ct. 1908.]

[No. 215.]

Adams Exp. Co. v. Ohio State Auditor, 165 U. S. 194, 221, 41 L. ed. 683, 695, 17 Sup. Ct. Rep. 305; Fargo v. Hart, 193 U. S. 490, 499, 48 L. ed. 761, 765, 24 Sup. Ct. Rep. 498; Meyer v. Wells, F. & Co. 223 U. S. 298, 300, 56 L. ed. 445, 447, 32 Sup. Ct. Rep. 218; Union Tank Line Co. v. Wright, 249 U. S. 275, 63 L. ed. 602, 39 Sup. Ct. Rep. 276; Wallace v. Hines, 253 U. S. 66, 64 L. ed. 782, 40 Sup. Ct. Rep. 435; Postal Teleg. Cable Co. v. Adams, 155 U. S. 688, 39 L. ed. 311, 5 Inters. Com. Rep. 1, 15 Sup. Ct. Rep. 268, 360.

The Connecticut tax, considered as an excise or privilege tax, is invalid.

International Paper Co. v. Massachusetts, 246. U. S. 135, 62 L. ed. 624, 38 Sup. Ct. Rep. 292, Ann. Cas. 1918C, 617; State Tax on Foreign-held Bonds, 15 Wall. 319, 21 L. ed. 179; Wallace v. Hines, 253 U. S. 66, 64 L. ed. 782, 40 Sup. Ct. Rep. 435; Judson, Tax. § 245: 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.

IN
N ERROR to the Superior Court of
the State of Connecticut to review a
judgment entered pursuant to the man-
date of the Supreme Court of Errors of
that state, sustaining the validity of a
tax on a foreign corporation. Affirmed.
See same case below in supreme court,
94 Conn. 47, 108 Atl. 154.

The facts are stated in the opinion. Messrs. Arthur M. Marsh and Arthur L. Shipman argued the cause, and, with Messrs. Charles Strauss and Eugene D. Boyer, filed a brief for plaintiff in error:

The tax is upon income as such, and hence is a property tax. It is null and void because it lays a tax upon the receipts from interstate commerce and

216 U. S. 400, 54 L. ed. 536, 30 Sup. Ct Rep. 287, 17 Ann. Cas. 1247; Pensacola Teleg. Co. v. Western U. Teleg. Co. 96 U. S. 1, 24 L. ed. 708; Baltic Min. Co. v. Com. 207 Mass. 381, 93 N. E. 831; The Position of Foreign Corporations in American Constitutional Law, by Mr. Gerard C. Henderson, vol. 2, chap. 9 of Harvard Studies in Jurisprudence, p. 153; Looney v. Crane Co. 245 U. S. 190, 62 L. ed. 236, 38 Sup. Ct. Rep. 85.

The formula for allocating income to the state of Connecticut in necessary operation directly burdens interstate commerce and exacts a tax upon net income and property located without the state.

Galveston, H. & S. A. R. Co. v. Texas, 210 U. S. 217, 52 L. ed. 1031, 28 Sup. Ct. Rep. 638.

The decision in United States Glue, 435; Fargo v. Hart, 193 U. S. 490, 500, Co. v. Oak Creek, 247 U. S. 321, 62 48 L. ed. 761, 765, 24 Sup. Ct. Rep. 498. L. ed. 1135, 38 Sup. Ct. Rep. 499, Ann. Cas. 1918E, 748, considered in the prevailing opinion of the Connecticut court as a controlling authority in favor of the constitutionality of the act, has no application.