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lands thus disposed of to be paid for to the act; and, in view of the conclusion reacbed Cherokee Nation at such price as may be upon the principal question involved, it is agreed upon between the said parties in in unnecessary to consider the other questions terest, subject to the approval of the presi argued. The application for a temporary dent, and if they should not agree, then injunction will be denied, and the restrain the price to be fixed by the president. The ing order dissolved. Injunction denied. 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 juris

GUTHRIE V. HALL. diction and right of possession to terminate

(Supreme Court of Oklahoma. July 7, 1891.) forever as to each of said districts thus sold

CHEROKEE NATION – RighTS IN PUBLIC LANDS and occupied." By operation of this treaty,

ABANDONMENT - COURTS - JOBISDICTION OVEB the title of the Cherokee Nation to the lands EXECUTIVE BRANCH. in the Cherokee outlet is made subject to 1. By treaties, laws of congress, and the extinguishment in favor of friendly tribes patent of 1838, the Cherokee Nation was grant

ed the use of the "perpetual outlet west" of Indians to be settled there by the United

known as the “Cherokee Outlet,” but such use States; and, in consequence of such agree was made subject to forfeiture in case the nament, the Osages and several other tribes tion abandoned the outlet. Held, that by the have acquired title to large tracts of land

purchase by the United States of all lands

west thereof from Mexico, and the sale and in the eastern end of the outlet, thus effectu

conveyance by the Cherokee Nation of the land ally destroying the use of the outlet as an on the east to other Indian tribes, all right in outlet to the Cherokee Nation. But, as to

the nation to the use and occupation of such

outlet was lost and abandoned. the lands not sold, the Cherokee Nation

2. The execution of orders giren by the still retains its possession and jurisdiction, president of the United States for the removal being the same possession and jurisdiction

of intruders from government land will not be which it had under the prior treaties and

interfered with by injunctiou, the courts having

no jurisdiction over the executive department the patent of 1838. And the provision of of the government. this treaty that the United States may settle friendly tribes of Indians in any part tain William P. Hall to restrain defendant

Injunction by Jacob Guthrie against Capof the Cherokee outlet clearly shows that,

from ejecting plaintiff from the “Cherokee at the time the treaty was made, the Chero

Outlet." Injunction denied. kee Nation did not claim the right, under the prior treaties and the patent of 1838,

Harper S. Cunningham, for plaintiff. Horto settle upon and occupy the outlet as a ace Speed, for defendant. home, or that they had any other use in it than that of an outlet. As said by Judge

SEAY, J. The plaintiff states that he is a Brewer, in U. S. v. Soule, supra, what was

Cherokee Indian, and a citizen of the Cheroguarantied to the Cherokee Nation was an kee Nation; that said nation is the owner in outlet; "not territory for residence, but for fee simple of what is known as the “Cheropassage ground, over which the Cherokees kee Outlet,” under the treaties of 1828, 1833, might pass to all the unoccupied domain 1835, 1846, and the patent of 1838. That he west.” To give them the right to settle up now resides, and has resided for the last on and cultivate the outlet, and to operate eight years, on a portion of said outlet, with stone quarries, and remove and sell min his family, and made permanent improveeral, is an unwarranted extension of the ments thereon, and that he is now grazing guaranty, which cannot be upheld; and, if 3,000 head of cattle on said outlet by virtue the Cherokee Nation has ceased to use the of a lease from said nation. Plaintiff further outlet as an outlet, the cesser of the use states that the defendant, being a United has terminated their estate, and the lands States soldier, under orders from the war have reverted to the United States. But department, threatens and is about to rewhether there has been a esser of the use move him and his cattle from said outlet, to is rather a political than a judicial ques his irreparable damage, etc., and asks a tion, which should be settled by congress perpetual injunction to restrain the defend. and the chief executive of the nation; and ant from executing said orders. Defendant if the lands have been abandoned as an out answers, admitting his orders, and that he let, and subjected to other uses by the Cher is about to execute them, but denies that the okee Nation, or with their consent and by Cherokee Nation ever had any other title to their authority, their estate has terminated, the "outlet west" than an easement and a use: and they have reverted to the United States. that the treaties under which said nation It follows from the conclusion reached as to claims title to said Cherokee outlet provide the rights of the Cherokee Nation in the Cher that all the title conveyed thereby should reokee outlet that the complainants, who claim vert to the United States in case the Cherounder a license from the Cherokee Nation, kee Nation should become extinct or abanhave no right to operate the stone quarry in don the use of said outlet; that said nation question, and that their acts in doing so are has long since abandoned said land; that wrongful, and a court of equity will not the president issued his proclamation Fet lend its aid to protect them in a wrongful ruary 17, 1890. ordering the removal of all

use

intruders, and all cattle from said strip or cluded therein, so that by their inaction they outlet; and that this court has no jurisdic

should be held to have ratified it, or to be

estopped to deny its validity. tion to interfere by injunction, and asks

4. A president of a corporation went to that the bill of plaintiff be dismissed. Under one holding a note against the corporation, the treaties, laws of congress, and patent,

and, after telling him that he had the money while the title to the said 7,000,000 acres of

to pay the note, and after the creditor had pro

duced the note, he told the creditor that he the home tract was a fee title, the title to

(the creditor) did not need the money, but that the “perpetual outlet west" is a mere ease he (the president) did, and that he would give ment, a use, subject to forfeiture in case the

his stock in the corporation as security if he

could keep it. The creditor, on consideration, Cherokee Nation becomes extinct or aban

decided that he did not want the stock, but dons the outlet. The west end of the "out said that it could stand as it was, and the let west" having been closed by the purchase president could pay it to him in a few months.

This was agreed to, and the president used the of all lands west thereof from Mexico by the

money for his own purposes. Held, that the United States, and the east end of the “out indebtedness of the corporation was thereby let west" having been effectually closed by

liquidated, so that an unauthorized note, given

in renewal, was without consideration, and the voluntary sale and conveyance by the

therefore the corporation was not estopped to Cherokee Nation, for cash, of more than 2, deny its validity. 000,000 acres, (by permission and upon the 5. Where a creditor of a corporation perapproval of congress,) to the Osage, Pawnee,

mits the president to retain for his own

the money he has brought with which to pay and other tribes of Indians, it has ceased to off the note, the note being allowed to stand, be an outlet to the west, or any outlet in any the president, in giving a note of the corporasense to any place. Its character has been

tion in renewal, acts for himself, and not for changed, and the object for which it had

the corporation.

Bigelow, J., dissenting. been granted has been defeated and totally destroyed, by the voluntary acts of the Cher

Appeal from district court, Ormsby counokee Xation. This constituted an abandon

ty; Richard Rising, Judge. ment of any title theretofore vested, and

Action by T. J. Edwards and J. M. Wright, there is now no tract or parcel of land that

executors of S. C. Wright, deceased, against answers to the description of "outlet the

the Carson Water Company, on a note. west" as used in the patent to the Cherokee

There was judgment for plaintiffs, but a new Nation. The president of the United States,

trial was granted defendant, from the order being the chief of the executive branch of allowing which, plaintiffs appeal. Afirmed. the government to whom is intrusted the Rives & Judge, for appellants. J. D. Torduty by the constitution of seeing that the reyson, for respondent. laws are faithfully executed, and whose power and authority are coequal with and inde MURPHY, C. J. This is an appeal from pendent of the judiciary in all duties imposed an order of the district court granting the upon him by law which are of a political respondent's motion for a new trial. The and executive character, will not be, in those action was commenced to recover the sum matters, interfered with by injunction; and, of $2,000, alleged to be due on a promissory his proclamation in this case being executive note, which is in words and figures as foland political, the courts have no jurisdiction lows: “2,000.00. Carson City, Nev., Decemin this case. The plaintiff failed to show ber 8th, 1886. One day after date, we, or that the damage would be irreparable with either of us, promise to pay to the order of out the interference of this court by injunc Sam. C. Wright, two thousand dollars in tion. The injunction is therefore denied, gold coin of the United States of America, and the petition of the plaintiff dismissed. at their office in Carson, for value received,

with interest, payable monthly in like gold coin, at the rate of 144 per cent. per month

from date until paid. Protest as evidence of EDWARDS et al. v. CARSON WATER CO. presentment and nonpayment is hereby (No. 1,378.)1

waived. (Signed] Carson Water Co. By (Supreme Court of Nevada. Oct. 17, 1893.) Alfred Helm. Pres. Carson Water Co. By CORPORATIONS-EXECUTING NOTES – AUTHORITY G. W. Richards, Secy." RATIFICATION ESTOPPEL PAYMENT - ACT OF

We gather from the record the following AGENT FOR SELF.

facts: Some time prior to the incorporation 1. Where the power to authorize the execution of notes for a corporation rests in the

of the Carson Water Company, Alfred Helm board of trustees, a note executed by the presi and Henry F. Rice purchased the land upon dent and secretary without a resolution of the

which the company's reservoir is constructboard is not authorized, though they constitute a majority of the board.

ed, and the water right connected therewith, 2. Where information of such act was not

from W. P. Warren, and gave their promiscommunicated to the trustees as a board, the sory note in payment therefor in the sum trustees cannot be held to have ratified the act by reason of the knowledge of a majority there

of $2,000. On the 29th day of December, of, acquired while acting as president and sec

1874, the company was incorporated, and retary.

has been in existence ever since. The affairs 3. The fact that the secretary made out

of the company are controlled by a board of a statement of the debts of the corporation in gross was not sufficient to give the stockhold

three trustees. Some time prior to August, ers notice that an unauthorized note was in 1875, the Warren note becoming due, or

* Rehearing denied.

Warren wanting bis money, Mr. Rice induced Sam. C. Wright to take up the note, wbich 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. O. 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 112 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 her 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. Ques. tion 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 at note was signed,

-as you see it there. The shareholders of the company did not know anything about the note of 1896, but I knew about it. There was notbing 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 in. terest happened to be reduced in the note of 1886 from that charged in the note of 879, 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 144 per cent.' That is the way the note of 1886 came to be drawn with interest at the rate of 144 per cent. I think that was the reason that I rewrote the note that he had written himself, and I changed the rate from 14 to 144 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 Me Wright.” Mr. Wright denied that he ever had any such conversation as testified to by Mr. Helm in relation to the note of 1979. 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 question asked, “How did the interest come

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to be charged to Mr. Helm?" and answered: Helm, for a number of years, and of course
"Mr. Helm said, “That Wright note is mine, I was very much surprised to see that, but
and in paying interest charge it to me. He I finally got to the bottom of the assair. A
said, 'I will protect that note at all hazard.'' feir days after that I met Mr. Wright, and
Mr. Richards also testified that there was I found that he owed the company for wa-
no order of the board of trustees authorizing ter six or seven hundred dollars, and Helm
the renewal of the note of 1879 or 1886 by had explained to me tha Wright's water
the president and secretary; that he had bill had not been collected because Wright
never notified the stockholders of the sign insisted that he had a note against him per-
ing of the note of 1886, or that such a note sonally. However, when I met Mr. Wright,
was in existence; that, so far as he knew, I said to him, “You owe this money to the
Helm and himself were the only stockhold: company, and I want you to pay it;' and he
ers that knew of the existence of the note said that Helm owed him, and I said that I
of 1886, and Mr. Helm and himself had could not help that, that the company did
never met as a board of trustees to issue not owe him anything, and I told him he
the note of 1886. "The circumstances under must pay his water bill. I said, 'You must
which I signed the note of 1886,-Mr. Helm pay us this bill, as we owe money ourselves.'
brought that note to me, saying he wished Then the conversation returned to the $2,-
to take up the other note, and saying that 000 note, and I said to him, You loaned that
he had secured a reduction in the interest money to Helm, and we will not pay it, as
from 192 to 144 per cent. He wished to take we don't owe it.' I went to the secretary
up the note that Mr. Wright held, because and told him not to pay any more money to
he had secured a reduction in the interest. Mr. Wright for Mr. Helm or for anybody
It was at the request of Mr. Helm that I else."
signed that note."

To repeat in part, Mr. Wright emphatic-
H. M. Yernigton testified that he was now, ally denies that he ever had any such cua-
and had been since 1889, president of the versation as testified to by Mr. Helm in re-
Carson Water Company; that he first be lation to the note of 1879. He also denies
came acquainted with and interested in said that Mr. Yernigton, in his conversation with
company in 1877, that he owned two-thirds him, denied but what the company owed the
of the stock; that he had been a trustee of money to him, but Yernigton complained
the company since 1877; that it has always about the amount of interest the company
been the custom of the company, when it bad paid on the note. In this respect the
wished to borrow money, to do so by resolu testimony is conflicting. It is conceded that
tion of the board of trustees, introduced and there was no order or resolution made or en-
passed at a meeting thereof; that the corpo tered at any time authorizing the officers of
ration never authorized the renewal of the the company, or any one of them, to execute
note of 1875 with the note of 1879 and the the notes of 1879 or 1886 in renewal of the
note of 1886, and he never knew nor heard note of 1875. The appellants contend and
of the renewal of the notes, nor the giving take the position that it was not necessary
of the notes of 1879 and 1886, until after he for the trustees of the corporation to have
was elected president, in 1889. The follow met and passed a resolution or order author-
ing is the manner in which Mr. Yernigton izing the president and secretary, or either of
says he found out about this transaction: them, to execute and deliver the notes of
"About two and a half or three years ago

1879 and 1886 in renewal of the note of 1875 I asked the secretary of the company to or that of 1879 in order to make them corgive me a balance sheet showing the affairs poration notes, and binding upon the corpoof the company is full. I had not had any, ration; and in support of their position they and I was not posted with regards to the argue (1) that the president and secretary affairs of the company, and I wanted to see were a majority of the board of trustees, what we were doing.

Mr. Richards then therefore it would be useless for them to
came to my office, I think, and he told me call a meeting of the trustees merely for the
about the existence of this note of 1886, and purpose of adopting a resolution and spread-
I was very much surprised about it, as I ing it upon the minutes, authorizing them-
didn't think we owed anybody anything. We selves to renew the notes; (2) that the cor-
had borrowed a large amount from the Fire poration, having the use of the money, is
meu's Fund in San Francisco in 1881, I now estopped to deny the indebtedness; and
think, and paid off the debts of the company.

(3) that the stockholders, having an oppor-
We had paid the Bank of San Jose a large tunity to inform themselves as to the lia-
sum, and we also paid some debts in town bilities of the company from the balance
here, and the current receipts of the com sheets, they cannot now be heard to say that
papy were sufficient to pay the interest on they had not been informed as to this par-
the debt and any other indebtedness. So I ticular note.
was surprised to find a note against us in A corporation is an artificial person, cre-
favor of Mr. Wright; but Mr. Richards said ated by the statutes of the different states,
that was the way it stood. I then found and is vested with the power and capacity
out that the interest had been paid to Mr. to make contracts within the scope of the
Wright by the secretary, and charged to Mr. powers conferred upon it by the act of in-

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cers.

corporation and the by-laws which the or the purposes above mentioned. The affairs ganizers thereof may see fit to adopt for the of the company were to be managed by three government of the corporation and its off trustees, and its principal place of business

College v. Woodward, 4 Wheat. 636; was to be Carson City, Nev. There is no Bank v. Billings, 4 Pet. 561. Angell & Ames, provision in the articles of incorporation nor treating of private corporations, and of whai in the by-laws that would indicate that the acts are necessary to create and constitute corporation, or any officer thereof, was aua corporation, and of its actions, powers, thorized to borrow money or execute botes, etc., at section 110 say, among other nor is there anything therein contained from things: (5) "To make by-laws, which are which we could infer that such a power is considered as private statutes for the gov- vested in the president and secretary of the ernment of the corporate body." In 2 Kent, company, without first being authorized so Comm. (13th Ed.) p. 300, it is said: "Where to do by the board of trustees. The presia corporation was created for the purposes dent of the Carson Water Company is to of trade, it resulted necessarily that they preside at all meetings of the board of trusmust have power to accept bills and issue tees, and call special meetings at such times notes. But if a company be formed, not for as he may deem necessary for the interest the purpose of trade, but for other purposes, of the company. The secretary of the comas, for instance, to supply water, the nature pany shall keep a record book, in which he of their business does not raise a necessary shall transcribe the proceedings of all meet. implication that they should have power to ings, and issue stock, and keep a list of the make notes and issue bills; and it seems to names of persons from and to whom stock be doubted whether there must not be an is transferred. Before a corporation can be express authority to enable them to do it. held responsible for the contracts of its offiThe acts of corporation agents are construed cers or its agents, it must affirmatively apwith equal strictness, and it is the doctrine pear that the officer or agent was authorized that; though a deed be signed by the presi- to enter into the contract by the company, dent and cashier of a corporation, and be or that the company received the benefits sealed with its corporate seal, yet the courts derived from the transaction; nor is there may look beyond the seal, and, if it be af- anything in the record to indicate that there fixed without the authority of the directors, was a recognized course of dealings whereby and that fact be made affirmatively to ap these officers were held out as possessing pear, the instrument is null and void." It any such power; but, upon the contrary, Mr. was the rule of decisions in years gone by Yernigton testified “that when the company that corporations could only be held respon- had to borrow money they always held a sible for their contracts and agreements made meeting, and discussed the advisability of under seal. This was before the modern doing so, and, if agreed upon, would then era of trade and commerce, which has given authorize the officers to execute the papers." birth to corporations organized for the pur When it is within the implied powers of a poses of carrying on and engaging in all corporation to borrow money, execute and branches of business, trades, and specula- | put in circulation negotiable paper, and tions, and as a rule are incorporated under where there is evidence that in the course a general law of the state, and, if not pro- of its business it has been in the habit of hibited by statute or by its by-laws, and the executing and circulating its note made by nature of its business is such as to render its officers, and this mode of raising money the borrowing of money necessary for the has been recognized by the corporation, in purpose of accomplishing the object for such case a note, so indorsed by the proper which it was incorporated, courts have usu officers, would be held binding upon it when ally held that they would imply in the cor in the hands of a bona fide holder; but these poration, and those who had control of its incidental powers are not to be lightly inaffairs, who were, according to the provi- ferred, nor are the officers authorized to go sions of its charter carrying on the corporate beyond the instructions given them by the concerns, an authority to borrow money for board of trustees or those contained in the the use of the corporation to carry into ef by-laws. fect the purposes for which it was organized, In the view we take of the case, it is unand without which it could not subsist. necessary for us to review the facts in reKetchum v. City of Buffalo, 14 N. Y. 363. lation to the giving of the note of 1875. and cases cited; Rockwell v. Bank, 13 Wis. If Wright purchased the Warren note, he 655. The Carson Water Company was or did so at the earnest solicitation of Mr. ganized for the purpose of purchasing and Rice, one of the trustees; and if he adlaying in place water pipe, and keeping and vanced the money of the company to remaintaining such pipes, leading to and through tire the Warren note, the company had the the town of Carson City, and elsewhere in use of the money, and the transaction, whichthe county of Ormsby, state of Nevada, for ever way it may have been, was afterwards the purpose of supplying the people of the ratified by the board of trustees. Seeley r. aforesaid town and others with water, and Lumber Co., 59 Cal. 23. The renewal of the for the purpose of acquiring such real and note of 1875 by the note given in 1875 stanis personal property as might be necessary for on a different footing. There is nothing ip

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