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lands thus disposed of to be paid for to the Cherokee Nation at such price as may be agreed upon between the said parties in interest, subject to the approval of the president, and if they should not agree, then the price to be fixed by the president. The Cherokee Nation to retain the right of possession of and jurisdiction over all of said country west of 96° of longitude until thus sold and occupied, after which their jurisdiction and right of possession to terminate forever as to each of said districts thus sold and occupied." By operation of this treaty, the title of the Cherokee Nation to the lands in the Cherokee outlet is made subject to extinguishment in favor of friendly tribes of Indians to be settled there by the United States; and, in consequence of such agreement, the Osages and several other tribes have acquired title to large tracts of land in the eastern end of the outlet, thus effectually destroying the use of the outlet as an outlet to the Cherokee Nation. But, as to the lands not sold, the Cherokee Nation still retains its possession and jurisdiction, being the same possession and jurisdiction which it had under the prior treaties and the patent of 1838. And the provision of this treaty that the United States may settle friendly tribes of Indians in any part of the Cherokee outlet clearly shows that, at the time the treaty was made, the Cherokee Nation did not claim the right, under the prior treaties and the patent of 1838, to settle upon and occupy the outlet as a home, or that they had any other use in it than that of an outlet. As said by Judge Brewer, in U. S. v. Soule, supra, what was guarantied to the Cherokee Nation was an outlet; "not territory for residence, but for passage ground, over which the Cherokees might pass to all the unoccupied domain west." To give them the right to settle upon and cultivate the outlet, and to operate stone quarries, and remove and sell mineral, is an unwarranted extension of the guaranty, which cannot be upheld; and, if the Cherokee Nation has ceased to use the outlet as an outlet, the cesser of the use has terminated their estate, and the lands have reverted to the United States. But whether there has been a cesser of the use is rather a political than a judicial question, which should be settled by congress and the chief executive of the nation; and if the lands have been abandoned as an outlet, and subjected to other uses by the Cherokee Nation, or with their consent and by their authority, their estate has terminated, and they have reverted to the United States. It follows from the conclusion reached as to the rights of the Cherokee Nation in the Cherokee outlet that the complainants, who claim under a license from the Cherokee Nation, have no right to operate the stone quarry in question, and that their acts in doing so are wrongful, and a court of equity will not lend its aid to protect them in a wrongful

act; and, in view of the conclusion reached upon the principal question involved, it is unnecessary to consider the other questions argued. The application for a temporary injunction will be denied, and the restrain ing order dissolved. Injunction denied.

GUTHRIE v. HALL.

(Supreme Court of Oklahoma. July 7, 1891.) CHEROKEE NATION RIGHTS IN PUBLIC LANDS ABANDONMENT - COURTS - JURISDICTION OVER EXECUTIVE BRANCH.

1. By treaties, laws of congress, and the patent of 1838, the Cherokee Nation was granted the use of the "perpetual outlet west" known as the "Cherokee Outlet," but such use was made subject to forfeiture in case the nation abandoned the outlet. Held, that by the purchase by the United States of all lands west thereof from Mexico, and the sale and conveyance by the Cherokee Nation of the land on the east to other Indian tribes, all right in the nation to the use and occupation of such outlet was lost and abandoned.

2. The execution of orders given by the president of the United States for the removal of intruders from government land will not be interfered with by injunction, the courts having no jurisdiction over the executive department of the government.

Injunction by Jacob Guthrie against Cap tain William P. Hall to restrain defendant from ejecting plaintiff from the "Cherokee Outlet." Injunction denied.

Harper S. Cunningham, for plaintiff. Horace Speed, for defendant.

SEAY, J. The plaintiff states that he is a Cherokee Indian, and a citizen of the Cherokee Nation; that said nation is the owner in fee simple of what is known as the "Cherokee Outlet," under the treaties of 1828, 1833, 1835, 1846, and the patent of 1838. That he now resides, and has resided for the last eight years, on a portion of said outlet, with his family, and made permanent improvements thereon, and that he is now grazing 3,000 head of cattle on said outlet by virtue of a lease from said nation. Plaintiff further states that the defendant, being a United States soldier, under orders from the war department, threatens and is about to remove him and his cattle from said outlet, to his irreparable damage, etc., and asks a perpetual injunction to restrain the defendant from executing said orders. Defendant answers, admitting his orders, and that he is about to execute them, but denies that the Cherokee Nation ever had any other title to the "outlet west" than an easement and a use: that the treaties under which said nation claims title to said Cherokee outlet provide that all the title conveyed thereby should revert to the United States in case the Cherokee Nation should become extinct or abandon the use of said outlet; that said nation has long since abandoned said land; that the president issued his proclamation February 17, 1890, ordering the removal of all

intruders, and all cattle from said strip or outlet; and that this court has no jurisdiction to interfere by injunction, and asks that the bill of plaintiff be dismissed. Under the treaties, laws of congress, and patent, while the title to the said 7,000,000 acres of the home tract was a fee title, the title to the "perpetual outlet west" is a mere easement. a use, subject to forfeiture in case the Cherokee Nation becomes extinct or abandons the outlet. The west end of the "outlet west" having been closed by the purchase of all lands west thereof from Mexico by the United States, and the east end of the "outlet west" having been effectually closed by the voluntary sale and conveyance by the Cherokee Nation, for cash, of more than 2,000,000 acres, (by permission and upon the approval of congress,) to the Osage, Pawnee, and other tribes of Indians, it has ceased to be an outlet to the west, or any outlet in any sense to any place. Its character has been changed, and the object for which it had been granted has been defeated and totally destroyed, by the voluntary acts of the Cherokee Nation. This constituted an abandonment of any title theretofore vested, and there is now no tract or parcel of land that answers to the description of "outlet to the west" as used in the patent to the Cherokee Nation. The president of the United States, being the chief of the executive branch of the government to whom is intrusted the duty by the constitution of seeing that the laws are faithfully executed, and whose power and authority are coequal with and independent of the judiciary in all duties imposed upon him by law which are of a political and executive character, will not be, in those matters, interfered with by injunction; and, his proclamation in this case being executive and political, the courts have no jurisdiction in this case. The plaintiff failed to show that the damage would be irreparable without the interference of this court by injunction. The injunction is therefore denied, and the petition of the plaintiff dismissed.

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1. Where the power to authorize the execution of notes for a corporation rests in the board of trustees, a note executed by the president and secretary without a resolution of the board is not authorized, though they constitute a majority of the board.

2. Where information of such act was not communicated to the trustees as a board, the trustees cannot be held to have ratified the act by reason of the knowledge of a majority thereof, acquired while acting as president and secretary.

3. The fact that the secretary made out a statement of the debts of the corporation in gross was not sufficient to give the stockholders notice that an unauthorized note was in'Rehearing denied.

cluded therein, so that by their inaction they should be held to have ratified it, or to be estopped to deny its validity.

4. A president of a corporation went to one holding a note against the corporation, and, after telling him that he had the money to pay the note, and after the creditor had produced the note, he told the creditor that he (the creditor) did not need the money, but that he (the president) did, and that he would give his stock in the corporation as security if he could keep it. The creditor, on consideration, decided that he did not want the stock, but said that it could stand as it was, and the president could pay it to him in a few months. This was agreed to, and the president used the money for his own purposes. Held, that the indebtedness of the corporation was thereby liquidated, so that an unauthorized note, given in renewal, was without consideration, and therefore the corporation was not estopped to deny its validity.

5. Where a creditor of a corporation permits the president to retain for his own use the money he has brought with which to pay off the note, the note being allowed to stand, the president, in giving a note of the corporation in renewal, acts for himself, and not for the corporation.

Bigelow, J., dissenting.

Appeal from district court, Ormsby county; Richard Rising, Judge.

Action by T. J. Edwards and J. M. Wright, executors of S. C. Wright, deceased, against the Carson Water Company, on a note. There was judgment for plaintiffs, but a new trial was granted defendant, from the order allowing which, plaintiffs appeal. Affirmed. Rives & Judge, for appellants. J. D. Torreyson, for respondent.

MURPHY, C. J.

This is an appeal from an order of the district court granting the respondent's motion for a new trial. The action was commenced to recover the sum of $2,000, alleged to be due on a promissory note, which is in words and figures as follows: "2,000.00. Carson City, Nev., December 8th, 1886. One day after date, we, or either of us, promise to pay to the order of Sam. C. Wright, two thousand dollars in gold coin of the United States of America, at their office in Carson, for value received, with interest, payable monthly in like gold coin, at the rate of 14 per cent. per month from date until paid. Protest as evidence of presentment and nonpayment is hereby waived. [Signed] Carson Water Co. By Alfred Helm. Pres. Carson Water Co. By G. W. Richards, Secy."

We gather from the record the following facts: Some time prior to the incorporation of the Carson Water Company, Alfred Helm and Henry F. Rice purchased the land upon which the company's reservoir is constructed, and the water right connected therewith, from W. P. Warren, and gave their promissory note in payment therefor in the sum of $2,000. On the 29th day of December, 1874, the company was incorporated, and has been in existence ever since. The affairs of the company are controlled by a board of three trustees. Some time prior to August, 1875, the Warren note becoming due, or

Warren wanting his money, Mr. Rice induced Sam. C. Wright to take up the note, which he did at a discount of $150. On the 2d day of August, 1875, at a meeting of the board of trustees of said company, the president of the Carson Water Company was empowered and instructed to make, execute, and deliver on behalf of the company, and as its act and deed, a promissory note to S. C. Wright, at 10 days' sight, for the sum of $2,000, to retire the note of W. P. Warren. In compliance with said resolution, on the 2d day of August, 1875, the following note was delivered to S. C. Wright: "Carson City, August 2d, 1875. $2,000.00. At ten days' sight we promise to pay S. C. Wright or order the sum of two thousand dollars in gold coin of the United States, and interest at the rate of one and one-quarter per cent. per month, for value received." The sig natures have been torn off. On the 1st day of July, 1879, the note of "August 2, 1875," not having been paid, a new note was given, in words and figures as follows: "$2,000.00. Carson City, July 1st, 1879. One day after date, without grace, we promise to pay to Sam. C. Wright or order the sum of two thousand dollars, payable only in gold coin of the government of the United States, for value received, with interest thereon in like gold coin at the rate of 12 per cent. per month from date until paid. T. C. Pickney, Secretary." Other signature torn off. There does not appear to have been any order or resolution of the board of trustees authorizing the making or giving of the above note. In 1881 the Carson Water Company, being indebted to a number of parties, borrowed money to pay them off.

The following is the testimony of Alfred Helm, who was then the president of the company, drew the money, and was authorized to pay off the indebtedness: "On or about the 10th or 12th or 15th of March,early in March anyway,-we borrowed some money in San Francisco to take up some notes of the company outstanding in San Jose, and also to take up this note of Mr. Wright's. I went to San Jose, and paid off the notes there, and took a check in my own name, I think, to come up here to settle this note up. After I got home,-I got home Sunday,-and on Monday following, I met Mr. Wright, and I told him I had the money to take up that note. We went to WellsFargo, where he has got a tin box. He went into the vault, got the box, and brought it on the counter, opened the box, took out the note, held it in his hand. I said to him that I was in a tight place at that time myself, and I said to him, 'Sam, you don't need this money, and I need it awful;' and I said, 'I will give you my third of the water company's stock as security, and let me keep this money.' I had 33 shares, and I said, 'Give me this $2,000, and you can have the stock,' and he asked me about the stock, and how much there was of it, and finally

he said, 'I don't believe I want your stock, but let it run as it stands, and you can pay it in a few months, and you can pay the interest, and let it be as it is, and not make any change.' I objected to it, but he said, 'Let it be as it is.' Afterwards I went to the secretary, Mr. Richards, and told him I used the money represented by the check. I paid my debts with some and bought stock with the rest. I ordered the interest paid at the office charged to me." This conversation referred to the note of July 1, 1879. Question by the Court: "Was there $2,000 due from the company to Mr. Wright at the time of the execution of this note of December, 1886? Answer. No, sir; I suppose it was due from me. But at the same time he met me, and said I must either pay the money I think he spoke to me a day or two before, and wanted to know if I could pay up the money, and I said, 'No,' and he said that note was about run out, and he said he would have to have a new note. He had a note, written by himself, and he told me to sign it as the president of the company, and he asked me to take it to Mr. Richards, and get him to sign it, and I think I copied the note. Anyway, that is the way that note was signed,-as you see it there. The shareholders of the company did not know anything about the note of 1886, but I knew about it. There was nothing in the books of the company, that I know of, about the note of 1886, the interest was charged to me every month, and that was done under my instructions." In reply to a question asked Mr. Helm as to how the rate of interest happened to be reduced in the note of 1886 from that charged in the note of 1879, he answered: "I don't recollect just the time it was done, but I went to him, and told him that I wanted him to reduce it, because I thought we were paying too much interest. I told him, 'You know that I have to pay that interest myself, and I can't afford it;' and he said to me, 'Let the interest go at 14 per cent.' That is the way the note of 1886 came to be drawn with interest at the rate of 14 per cent. I think that was the reason that I rewrote the note that he had written himself, and I changed the rate from 1% to 14 per cent. per month. I had a check of the Carson Water Company in my possession in the month of March. 1881, for the purpose of paying the note then outstanding in the name of Mr. Wright, and for the purpose of paying it to Ma Wright." Mr. Wright denied that he ever had any such conversation as testified to by Mr. Helm in relation to the note of 1879. It appears from the books of the company that the interest paid upon the note given in 1879, as well as that paid on the one given in 1886, was charged to Mr. Helm from May 31, 1881, to and including the month of August, 1889.

Mr. Richards, the secretary, testified to a question asked, "How did the interest come

to be charged to Mr. Helm?" and answered: "Mr. Helm said, "That Wright note is mine, and in paying interest charge it to me.' He said, 'I will protect that note at all hazard.'" Mr. Richards also testified that there was no order of the board of trustees authorizing the renewal of the note of 1879 or 1886 by the president and secretary; that he had never notified the stockholders of the signing of the note of 1886, or that such a note was in existence; that, so far as he knew, Helm and himself were the only stockhold ers that knew of the existence of the note of 1886, and Mr. Helm and himself had never met as a board of trustees to issue the note of 1886. "The circumstances under which I signed the note of 1886,-Mr. Helm brought that note to me, saying he wished to take up the other note, and saying that he had secured a reduction in the interest from 1% to 14 per cent. He wished to take up the note that Mr. Wright held, because he had secured a reduction in the interest. It was at the request of Mr. Helm that I signed that note."

H. M. Yernigton testified that he was now, and had been since 1889, president of the Carson Water Company; that he first became acquainted with and interested in said company in 1877, that he owned two-thirds of the stock; that he had been a trustee of the company since 1877; that it has always been the custom of the company, when it wished to borrow money, to do so by resolution of the board of trustees, introduced and passed at a meeting thereof; that the corporation never authorized the renewal of the note of 1875 with the note of 1879 and the note of 1886, and he never knew nor heard of the renewal of the notes, nor the giving of the notes of 1879 and 1886, until after he was elected president, in 1889. The following is the manner in which Mr. Yernigton says he found out about this transaction: "About two and a half or three years ago I asked the secretary of the company to give me a balance sheet showing the affairs of the company in full. I had not had any, and I was not posted with regards to the affairs of the company, and I wanted to see what we were doing. Mr. Richards then came to my office, I think, and he told me about the existence of this note of 1886, and I was very much surprised about it, as I didn't think we owed anybody anything. We had borrowed a large amount from the Firemen's Fund in San Francisco in 1881, I think, and paid off the debts of the company. We had paid the Bank of San Jose a large sum, and we also paid some debts in town here, and the current receipts of the company were sufficient to pay the interest on the debt and any other indebtedness. So I was surprised to find a note against us in favor of Mr. Wright; but Mr. Richards said that was the way it stood. I then found out that the interest had been paid to Mr. Wright by the secretary, and charged to Mr.

Helm, for a number of years, and of course 1 was very much surprised to see that, but I finally got to the bottom of the affair. A few days after that I met Mr. Wright, and I found that he owed the company for water six or seven hundred dollars, and Helm had explained to me that Wright's water bill had not been collected because Wright insisted that he had a note against him personally. However, when I met Mr. Wright, I said to him, 'You owe this money to the company, and I want you to pay it;' and he said that Helm owed him, and I said that I could not help that, that the company did not owe him anything, and I told him he must pay his water bill. I said, 'You must pay us this bill, as we owe money ourselves.' Then the conversation returned to the $2,000 note, and I said to him, 'You loaned that money to Helm, and we will not pay it, as we don't owe it.' I went to the secretary and told him not to pay any more money to Mr. Wright for Mr. Helm or for anybody else."

To repeat in part, Mr. Wright emphatically denies that he ever had any such conversation as testified to by Mr. Helm in relation to the note of 1879. He also denies that Mr. Yernigton, in his conversation with him, denied but what the company owed the money to him, but Yernigton complained about the amount of interest the company had paid on the note. In this respect the testimony is conflicting. It is conceded that there was no order or resolution made or entered at any time authorizing the officers of the company, or any one of them, to execute the notes of 1879 or 1886 in renewal of the note of 1875. The appellants contend and take the position that it was not necessary for the trustees of the corporation to have met and passed a resolution or order authorizing the president and secretary, or either of them, to execute and deliver the notes of 1879 and 1886 in renewal of the note of 1875 or that of 1879 in order to make them corporation notes, and binding upon the corporation; and in support of their position they argue (1) that the president and secretary were a majority of the board of trustees, therefore it would be useless for them to call a meeting of the trustees merely for the purpose of adopting a resolution and spreading it upon the minutes, authorizing themselves to renew the notes; (2) that the corporation, having the use of the money, is now estopped to deny the indebtedness; and (3) that the stockholders, having an opportunity to inform themselves as to the liabilities of the company from the balance sheets, they cannot now be heard to say that they had not been informed as to this particular note.

A corporation is an artificial person, created by the statutes of the different states, and is vested with the power and capacity to make contracts within the scope of the powers conferred upon it by the act of in

corporation and the by-laws which the organizers thereof may see fit to adopt for the government of the corporation and its officers. College v. Woodward, 4 Wheat. 636; Bank v. Billings, 4 Pet. 561. Angell & Ames, treating of private corporations, and of what acts are necessary to create and constitute a corporation, and of its actions, powers, etc., at section 110 say, among other things: (5) "To make by-laws, which are considered as private statutes for the government of the corporate body." In 2 Kent, Comm. (13th Ed.) p. 300, it is said: "Where a corporation was created for the purposes of trade, it resulted necessarily that they must have power to accept bills and issue notes. But if a company be formed, not for the purpose of trade, but for other purposes, as, for instance, to supply water, the nature of their business does not raise a necessary implication that they should have power to make notes and issue bills; and it seems to be doubted whether there must not be an express authority to enable them to do it. The acts of corporation agents are construed with equal strictness, and it is the doctrine that, though a deed be signed by the president and cashier of a corporation, and be sealed with its corporate seal, yet the courts may look beyond the seal, and, if it be affixed without the authority of the directors, and that fact be made affirmatively to appear, the instrument is null and void." It was the rule of decisions in years gone by that corporations could only be held responsible for their contracts and agreements made under seal. This was before the modern era of trade and commerce, which has given birth to corporations organized for the purposes of carrying on and engaging in all branches of business, trades, and speculations, and as a rule are incorporated under a general law of the state, and, if not prohibited by statute or by its by-laws, and the nature of its business is such as to render the borrowing of money necessary for the purpose of accomplishing the object for which it was incorporated, courts have usually held that they would imply in the corporation, and those who had control of its affairs, who were, according to the provisions of its charter carrying on the corporate concerns, an authority to borrow money for the use of the corporation to carry into effect the purposes for which it was organized, and without which it could not subsist. Ketchum v. City of Buffalo, 14 N. Y. 363. and cases cited; Rockwell v. Bank, 13 Wis. 655. The Carson Water Company was organized for the purpose of purchasing and laying in place water pipe, and keeping and maintaining such pipes, leading to and through the town of Carson City, and elsewhere in the county of Ormsby, state of Nevada, for the purpose of supplying the people of the aforesaid town and others with water, and for the purpose of acquiring such real and personal property as might be necessary for

the purposes above mentioned. The affairs of the company were to be managed by three trustees, and its principal place of business was to be Carson City, Nev. There is no provision in the articles of incorporation nor in the by-laws that would indicate that the corporation, or any officer thereof, was authorized to borrow money or execute notes, nor is there anything therein contained from which we could infer that such a power is vested in the president and secretary of the company, without first being authorized so to do by the board of trustees. The president of the Carson Water Company is to preside at all meetings of the board of trus tees, and call special meetings at such times as he may deem necessary for the interest of the company. The secretary of the company shall keep a record book, in which he shall transcribe the proceedings of all meetings, and issue stock, and keep a list of the names of persons from and to whom stock is transferred. Before a corporation can be held responsible for the contracts of its offi cers or its agents, it must affirmatively appear that the officer or agent was authorized to enter into the contract by the company, or that the company received the benefits derived from the transaction; nor is there anything in the record to indicate that there was a recognized course of dealings whereby these officers were held out as possessing any such power; but, upon the contrary, Mr. Yernigton testified "that when the company had to borrow money they always held a meeting, and discussed the advisability of doing so, and, if agreed upon, would then authorize the officers to execute the papers." When it is within the implied powers of a corporation to borrow money, execute and put in circulation negotiable paper, and where there is evidence that in the course of its business it has been in the habit of executing and circulating its note made by its officers, and this mode of raising money has been recognized by the corporation, in such case a note, so indorsed by the proper officers, would be held binding upon it when in the hands of a bona fide holder; but these incidental powers are not to be lightly inferred, nor are the officers authorized to go beyond the instructions given them by the board of trustees or those contained in the by-laws.

In the view we take of the case, it is unnecessary for us to review the facts in relation to the giving of the note of 1875. If Wright purchased the Warren note, he did so at the earnest solicitation of Mr. Rice, one of the trustees; and if he advanced the money of the company to retire the Warren note, the company had the use of the money, and the transaction, whichever way it may have been, was afterwards ratified by the board of trustees. Seeley v. Lumber Co., 59 Cal. 23. The renewal of the note of 1875 by the note given in 1879 stands on a different footing. There is nothing in

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