ed on page 28, Record of Marriages, in the clerk's office in Tahlequah district, Cherokee Nation, this Feb. 4th, 1896.

"[Seal of the Tahlequah District, Cherokee Nation]. Arch Spears, "Deputy Clerk, Tahlequah District, Cherokee Nation."

The performance of the marriage ceremony was also proved by the minister, a regularly ordained Presbyterian preacher. T. W. Triplett was the clerk of the Tahlequah district at the date of this certificate. R. M. Dennenberg was his deputy, but at the time of the issue of the license both the clerk and his deputy were absent, and the signature of the deputy was signed by John C. Dennenberg, his son. The clerk, the deputy, and his son each testified that the latter was authorized to sign the name of the clerk or the deputy in the absence of either, and that the business of the office was largely transacted by this young man, although not a regularly appointed deputy. He made quarterly reports, fixed up records, and issued scrip, and his action in these respects was recognized by the clerk and the Nation as valid. No petition, as required by the statute, was found among the papers of the office, but there was testimony that all the papers of the office had been destroyed by fire since the date of the marriage license, and the younger Dennenberg testified that a petition was presented containing the names of 10 citizens; that he could not remember the names, but, at the time, made inquiry, and satisfied himself that they were all respectable Cherokee citizens. There was testimony, also, that Rutherford offered to vote at an election subsequent to his marriage; that his vote was challenged, and on inquiry it was ascertained that he was a Cherokee citizen, and his vote received. Upon these facts the question is presented whether Rutherford was a Cherokee citizen by adoption. The circuit court held that the evidence was insufficient to show that fact, and that, therefore, that court had jurisdiction.

With this conclusion we are unable to concur. The fact that an official marriage license was issued carries with it a presumption that all statutory prerequisites thereto had been complied with. This is the general rule in respect to official action, and one who claims that any such prerequisite did not exist must affirmatively show the fact. Bank of U. S. v. Dandridge, 12 Wheat. 64, 70; Rankin v. Hoyt, 4 How. 327; Butler v. Maples, 9 Wall. 766; Town of Weyauwega v. Ayling, 99 U. S. 112; Gonzales v. Ross, 120 U. S. 605, 7 Sup. Ct. 705; Callaghan v. Myers, 128 U. S. 617, 9 Sup. Ct. 177; Keyser v. Hitz, 133 U. S. 138, 10 Sup. Ct. 290; Knox County v. Ninth Nat. Bank, 147 U. S. 91, 97, 13 Sup. Ct. 267. In this last case it is said: "It is a rule of very general application, that where an act is done which can be done legally only after the performance of some prior act, proof of the

later carries with it a presumption of the due performance of the prior act."

He

It is true that the younger Dennenberg, who signed the marriage license, was neither clerk nor deputy, but he was an officer de facto, if not de jure. He was permitted by the clerk and the deputy to sign their names. He was the only person in charge of the office. transacted the business of the office, and his acts in their behalf and in the discharge of the duties of the office were recognized by them and also by the Cherokee Nation as valid. Under those circumstances his acts must be taken as official acts, and the license which he issued as of full legal force. As to third parties, at least, he was an officer de facto; and, if an officer de facto, the same validity and the same presumptions attached to his actions as to those of an officer de jure.

Again, it is evident that Rutherford intended to change his nationality, and become a Cherokee citizen. He took the steps which the statute prescribed, and did, as he supposed, all that was requisite therefor. He was marrying a Cherokee woman, and thus to a certain extent allying himself with the Cherokee Nation. He sought and obtained the license which was declared legally prerequisite to such marriage if he intended to become an adopted citizen of that Nation. That he also obtained a marriage license from the United States authorities does not disprove this intention. It only shows that he did not intend that there should be any question anywhere, by any authority, as to the validity of his marriage. He asserted, and was permitted to exercise, the right of suffrage as a Cherokee citizen. Suppose, during his lifetime, the Cherokee Nation had asserted jurisdiction over him as an adopted citizen; would he not have been estopped from denying such citizenship? Has death changed the significance of his actions? The Cherokee Nation not only recognized the acts of young Dennenberg as the acts of the clerk, but, since the death of Rutherford, it has asserted its jurisdiction over the Cherokees who did the killing,-a jurisdiction which is conditioned upon the fact that the party killed was a Cherokee citizen.

It appears, therefore, that Rutherford sought to become a citizen, took all the steps he supposed necessary therefor, considered himself a citizen, and that the Cherokee Nation in his lifetime recognized him as a citizen, and still asserts his citizenship. Under those circumstances, we think it must be adjudged that he was a citizen by adoption, and, consequently, the jurisdiction over the offense charged herein is, by the laws of the United States and treaties with the Cherokee Nation, vested in the courts of that Nation.

The judgment of the circuit court must be reversed, and the case remanded, with instructions to surrender the defendants to the duly constituted authorities of the Cherokee Nation.

(164 U. S. 650)

OSBORNE v. STATE OF FLORIDA.

(January 4, 1897.)

No. 87.

INTERSTATE COMMERCE

EXPRESS COMPANIES
STATE LICENSE-STATUTE-CERTAINTY.

1. A statute which in effect imposes a license tax on express companies doing any local business, but none on those doing interstate business only, is not void as being a regulation of interstate commerce. 14 South. 588, affirmed.

2. The determination of a state supreme court as to whether a statute imposing a license tax is sufficiently certain upon which to ascertain the amount of such tax is conclusive upon the federal supreme court.

In Error to the Supreme Court of Florida. F. R. Osborne, the plaintiff in error, was arrested in the state of Florida for an alleged violation of a statute of that state in knowingly acting as the agent, at Jacksonville, for the Southern Express Company, a corporation created under the laws of the state of Georgia, and doing business in Florida, without having paid the license provided for by statute. He was required to give a bond for his appearance before the criminal court of record of Duval county, in the state of Florida, to answer the charge, and upon his refusal to give the same he was committed to the common jail of the county, there to await trial. He then applied to the judge of the state circuit court for a writ of habeas corpus, and, upon the hearing, his arrest was adjudged to be legal, and he was remanded to the custody of the sheriff. The case was submitted to the circuit court upon an agreed statement of facts, as follows: "That the said F. R. Osborne is the agent of the Southern Express Company, and that said company is a corporation created, existing, and being under the laws of the state of Georgia. That said Southern Express Company is doing a business in the state of Florida ordinarily done by express companies in the United States, of carrying goods and freight for hire from points within the state of Florida to points in said state, and also of carrying goods and freights for hire from points within the state of Florida to points without the state of Florida in other states in divers *parts of the United States, and in carrying goods and freights for hire from points in other states of the United States to points within the state of Florida; and that it has been engaged in such business for more than 20 years, and was so engaged on the 3d day of October, 1893. That, of the business done by the Southern Express Company, 95 per cent. thereof consists of traffic-carrying of goods and freights from the state of Florida into other states, and bringing and carrying from other states of the United States to points within the state of Florida, and 5 per cent. thereof consists of carrying goods and freights between points wholly within the state of Florida. That F. R. Osborne did knowingly act as the agent of said express

company on the 3d day of October, 1893, in the city of Jacksonville, Duval county, Florida, a city having more than 15,000 inhabitants; the said Southern Express Company having then and there failed and refused to pay the license tax, as required by article 12, section 9, of an act entitled 'An act for the assessment and collection of revenue,' of the laws of Florida, approved June 2, 1893. That the Southern Express Company does business in and has agents in more than one town in nearly every county in the state, and that said towns differ in population; and that it has an office and agent and does business in Polk county, Florida, in the following incorporated towns, with a population as follows: Bartow, 1,500 inhabitants; Ft. Meade, 600 inhabitants; Columbia, 600 inhabitants; Lakeland, 800 inhabitants; and Winter Haven, 200 inhabitants. In Orange county: Apopka, 500 inhabitants; Orlando, 10,000 inhabitants; Sanford, 5,000 inhabitants; Umatilla, 3,000 inhabitants; Winter Park, 600 inhabitants; and Zellwood, 300 inhabitants. In Alachua county: Campville, 400 inhabitants; Archer, 150 inhabitants; Grove Park, 110 inhabitants; Gainesville, 5,000 inhabitants; Hawthorne, 300 inhabitants; High Springs, 500 inhabitants; and Island Grove, 200 inhabitants. In Duval county: Jacksonville, with a population of over 15,000; Baldwin, 125 inhabitants."

From the order committing plaintiff in error to the custody of the sheriff, an appeal was taken to the supreme court of the state* of Florida, and that court affirmed the order. Osborne v. State, 33 Fla. 162, 14 South. 588. The plaintiff in error then sued out a writ of error from this court.

John E. Hartridge, for plaintiff in error. W. B. Lamar, for defendant in error.

Mr. Justice PECKHAM, after stating the facts in the foregoing language, delivered the opinion of the court.

The criminal proceedings against the plaintiff in error were taken by virtue of a statute of Florida, known as "Chapter 4115," approved June 2, 1893. The ninth section of that chapter provides that: "No person shall engage in or manage the business, profession or occupation mentioned in this section, unless a state license shall have been procured from the tax collector, which license shall be issued to each person on receipt of the amount hereinafter provided, together with the county judge's fee of twenty-five cents for each license, and shall be signed by the tax collector and the county judge, and have the county judge's seal upon it. Counties and incorporated cities and towns may impose such further taxes of the same kind upon the same subjects as they may deem proper when the business, profession or occupation shall be engaged in within such county, city or town. The tax imposed by such city, town or county shall not ex

*653

ceed fifty per cent. of the state tax. But such city, town or county may impose taxes on any business, profession or occupation not mentioned in this section, when engaged in or managed within such city, town or county. No license shall be issued for more than one year, and all licenses shall expire on the first day of October of each year, but fractional licenses, except as hereinafter provided, may be issued to expire on that day at a proportionate rate, estimating from the first day of the month in which the license is so issued, and all licenses may be transferred, with the approval of the comptroller, with the business for which they were taken out, when there is a bona fide sale and transfer of the property used and employed in the business as stock in trade, but such transferred license shall not be held good for any longer time, or for any other place, than that for which it was originally issued."

There are various subdivisions to this section not herein set forth, and they enumerate divers occupations and professions, the members of which are required to procure a license, and to pay annually therefor the amounts stated in those subdivisions.

The twelfth subdivision provides, among other things, that "all express companies doing business in this state shall pay in cities of fifteen thousand inhabitants or more a license tax of two hundred dollars; in cities of ten thousand to fifteen thousand inhabitants, one hundred dollars; in cities of five thousand to ten thousand inhabitants, seventy-five dollars; in cities of three to five thousand inhabitants, fifty dollars; in cities of one to three thousand inhabitants, twenty-five dollars; in towns and villages of less than one thousand and more than fifty inhabitants, ten dollars. Any express company violating this provision, and any person that knowingly acts as agent for any express company before it has paid the above tax, payable by such company, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than fifty dollars, or confined in the county jail not less than six months."

In addition to the criminal penalty above set forth, section 10 provides that the payment of all licenses taxed may be enforced by the seizure and sale of property by the collector.

The plaintiff in error assigns two grounds upon which he seeks for a reversal of the judgment of the state court. One is based upon the allegation that the statute, so far as regards the Southern Express Company or himself as its agent, violates the commerce clause of the federal constitution, in that it assumes to regulate interstate commerce. The second ground is that the statute is not sufficiently determinate, definite, and certain in its character upon which to ascertain the amount to be paid for licenses.

It may be here assumed that, if the statute

applied to the express company in relation to its interstate business, it would be void as an attempted interference with, or regulation of, interstate commerce.

The particular construction to be given to this state statute is a question for the state court to deal with, and in such a case as this we follow the construction given by the state court to the statutes of its own state. Leffingwell v. Warren, 2 Black, 599; People v. Weaver, 100 U. S. 539, 541; Noble v. Mitchell, 164 U. S. 367, 372, 17 Sup. Ct. 110, and cases there cited.

The supreme court of Florida has construed the ninth section of this act, and has held in express terms that it does not apply to, or affect in any manner, the business of this company which is interstate in its character; that it applies to and affects only its business which is done within the state, or is, as it is termed, "local" in its character; and it has held that under that statute, so long as the express company confines its operations to express business that consists of interstate or foreign commerce, it is wholly exempt from the legislation in question. It has added, however, that under the provisions of the statute, if the company engage in business within the state of a local nature, as distinguished from an interstate or foreign kind of commerce, it becomes subject to the statute so far only as concerns its local business, notwithstanding it may at the same time engage in interstate or foreign commerce. In other words, this statute, as construed by the supreme court of Florida, does not exempt the express company from taxation upon its business which is solely within the state, even though at the same time the same company may do a business which is interstate in its character, and that as to the latter kind of business the statute does not apply to or affect it. As thus construed, we have no doubt as to the correctness of the decision that the act does not in any manner violate the federal constitution.

The case of Crutcher v. Kentucky, 141 U. S. 47, 11 Sup. Ct. 851, is not in the slightest de gree opposed to this view. The act which was held to be in violation of the federal constitution in that case prohibited the agent of a foreign express company from carrying on business at all in that state without first*obtaining a license from the state. The company was thus prevented from doing any business, even of an interstate character, without obtaining the license in question. The act was held to be a regulation of interstate commerce in its application to corporations or associations engaged in that business, and that subject was held to belong exclusively to national, and not state, legislation.

It has never been held, however, that, when the business of the company which is wholly within the state is but a mere incident to its interstate business, such fact would furnish any obstacle to the valid taxation by the state of the business of the company which is en

655

*654

tirely local. So long as the regulation as to the license or taxation does not refer to, and is not imposed upon, the business of the company which is interstate, there is no interference with that commerce by the state statute. It was stated by Mr. Justice Bradley, in the course of his opinion in the Crutcher Case, that "taxes or license fees, in good faith imposed exclusively on express business carried on wholly within the state, would be open to no such objection," viz. an objection that the tax or license was a regulation of, or that it improperly affected, interstate commerce. We have no doubt that this is a correct statement of the law in that regard. The statute herein differs from the cases where statutes upon this subject have been held void, because in those cases the statutes prohibited the doing of any business in the state whatever, unless upon the payment of the fee or tax. It was said, as to those cases, that as the law made the payment of the fee, or the obtaining of the license, a condition to the right to do any business whatever, whether interstate or purely local, it was on that account a regulation of interstate commerce, and therefore void. Here, however, under the construction as given by the state court, the company suffers no harm from the provisions of the statute. It can conduct its interstate business without paying the slightest heed to the act, because it does not apply to, or in any degree affect, the company in regard to that portion of its business which it has the right to conduct without regulation from the state.

The company in this case need take out no license, and pay no tax, for doing interstate business, and the statute is therefore valid.

The second ground for holding the statute void is that it is not sufficiently determinate, definite, and certain in its character upon which to ascertain the amount to be paid for licenses. This ground furnishes no reason for interference by this court. Whether the statute be sufficiently determinate or certain in its character upon which to ascertain the amount to be paid for a license is a question of the construction of the state statute, which does not necessarily involve a federal question, and the determination of the state court as to the proper construction and sufficiency of such a statute is conclusive upon us. The learned counsel for plaintiff in error is mistaken in assuming that this court has any more power than formerly to review, upon a writ of error from a state court, the determination of that court in regard to the particular construction to be given to the statutes of its own state. The cases of Horner v. U. S., 143 U. S. 571, 12 Sup. Ct. 407, and Carey v. Railway Co., 150 U. S. 171, 14 Sup. Ct. 63, have no bearing upon this question. They both refer to the jurisdiction of this court under the fifth section of the act of March 3, 1891, upon appeals or writs of error taken direct from the circuit or district courts of the United States to this court. By the last subdivision of section 5 of that act it is provided

that "nothing in this act shall affect the jurisdiction of the supreme court in cases appealed from the highest court of a state nor the construction of the statute providing for the review of such cases." The cases above cited originated in the circuit courts of the United States, and were brought direct by appeal or writ of error to this court. This case comes here by writ of error to the supreme court of a state, and our jurisdiction to review that judgment is embraced in section 709 of the Revised Statutes. In exercising jurisdiction under that section we do not review such a question as is here presented by plaintiff in

error.

Upon the construction given it by the state court, the statute does not violate any provi sion of the federal constitution, and the judgment of that court is therefore affirmed.

(164 U. S. 636)

TEXAS & P. RY. CO. v. MANTON.
(January 4, 1897.)
No. 88.

RAILROAD COMPANIES-DISCHARGE of Receiver-
LIMITATION OF TIME FOR PRESENTING CLAIMS
-ACTION AT LAW FOR INJURIES.

1. An order discharging the receiver of railroad, restoring the property to the company without foreclosure, and requiring all claims against the receiver to be presented by intervention to the court before a given date, in default whereof they shall be barred, does not preclude recovery in a subsequent suit at law against the company on a claim, not presented within the time fixed, for personal injuries received while the road was being operated by the receiver, but not attributable to his misconduct. 9 C. C. A. 300, 60 Fed. 979, affirmed.

2. Such an order should be construed to mean that persons having claims should have an opportunity to present them before the discharge of the receiver; and that those failing to do so within the time limited would thereafter be precluded from resorting to the court in that suit, and remitted to such other remedies as might be within their reach. Following Railway Co. v. Johnson, 14 Sup. Ct. 250.

3. Where the benefits received by a railroad company from betterments into which a receiver of the road has diverted a portion of its earnings greatly exceed the amount of a claim for personal injuries inflicted while the road was being operated by the receiver, such claim may be enforced at law against the company after the discharge of the receiver.

In Error to the United States Court of Appeals for the Fifth Circuit.

In January, 1889, one Bloom, describing herself as a resident of Lamar county, Tex., brought an action in the district court of that county against the Texas & Pacific Railroad Company and John C. Brown, receiver of said company, claiming damages for personal injuries received while traveling as a passenger on said railroad. The railroad company and Brown, the receiver, respectively filed petitions for the removal of the suit into the circuit court of the United States for the Eastern district of Texas. The district court refused to grant the removal, to which ruling the defendants duly excepted. Pending the

making up of the issue, John C. Brown, the receiver, died. The trial resulted in a verdict and judgment in favor of the plaintiff for the sum of $6,000. The cause was then taken to the supreme court of Texas, where, for error of the district court in refusing the petition for removal, the judgment was reversed, and the cause was remanded. 20 S. W. 133. In June, 1893, the case came for trial in the circuit court of the United States, and the plaintiff recovered a verdict and judgment for the sum of $8,000, and on a writ of error that judgment was, on January 30, 1894, af- | firmed by the United States circuit court of appeals for the Fifth circuit. 23 U. S. App. 143, 9 C. C. A. 300, and 60 Fed. 979. The case was then brought on error to this court. The plaintiff, Bloom, having died, Charles Manton entered an appearance as her administrator.

John F. Dillon, Winslow S. Pierce, and David D. Duncan, for plaintiff in error. James G. Dudley, A. H. Garland, and R. C. Garland, for defendant in error.

Mr. Justice SHIRAS, after stating the facts in the foregoing language, delivered the opinion of the court.

The plaintiff's original petition in the district court of Lamar county disclosed that the injuries complained of were received in August, 1888, while the railroad was in the hands of John C. Brown, receiver, and alleged that the property of the Texas & Pacific Railway Company was placed in the hands of said John C. Brown as receiver, at the instance of the said railroad company, and for its own benefit, and for the purpose of avoiding its traffic liability in the carrying of passengers and freight. The petition further alleged that the property of the said railroad company was never sold by said receiver to pay its debts, and was never contemplated to be sold, and that the entire earnings and current receipts of the said railroad while in the hands of the receiver, amounting to more than two millions of dollars, were applied to the payment of mortgage debts and in the betterment of the property of the company. It also alleged that by an order made on January 2, 1889, by the United States circuit court for the Eastern district of Louisiana, John C. Brown was directed to make delivery unto the said Texas & Pacific Railway Company of all property, funds, and assets in his hands as such receiver, and that he be directed to account to said company according to his account filed and approved up to June 1, 1888, and for all receipts and expenditures by him received and made since the said June 1, 1888, such delivery to be made as of October 31, 1888; and it was further ordered that said receiver be discharged on said October 31, 1888, from his receivership, on payment of all costs legally taxed, and thereupon his bond vacated and canceled. The said order, a copy of which was attached as an exhibit to plaintiff's

petition, contained the following further provisions:

"It is further ordered that said property, nevertheless, shall be delivered to and received by said Texas & Pacific Railway Company, subjected to and charged with all traffic liabilities due to connecting lines and all contracts for which said receiver is or might be held under or in any way liable, and subject also to any and all judgments which have heretofore been rendered in favor of interveners in this case, and which have not been paid, as well as to such judgments as may be hereafter rendered by the court in favor of interveners while it retains the cases for their determination, or interveners now pending and undetermined, or which may be filed prior to February, 1889, together with needful expenses of defending said claims, and upon the condition that such liabilities and obligations of the receiver, when so recognized and adjudged, may be enforced against said property in the hands of said company or its assignees to the same extent they could have been enforced if said property had not been surrendered into the possession of said company, and was still in the hands of the court; and with the further condition that the court may, if needful for the protection of the receiver's obligations and liabilities so recognized by this court, assume possession of said property. The bills in these cases will be retained for the purpose of investigating such liabilities and obligations, and for such other' purposes as may seem needful. It is ordered that all claims against the receiver as such, up to said October 31, 1888, be presented and prosecuted by intervention prior to February 1, 1889, and, if not so presented by that date, that the same be barred, and shall not be a charge on the property of said company. It

is further ordered that the said receiver advertise in a daily newspaper in New Orleans and in Dallas the fact of his said discharge, and a notice to said claimants to make claim within the time aforesaid, to wit, before February 1, 1889, and that he post a printed notice of similar purport in the station houses of said railway."

The first contention on behalf of the plaintiff in error is that, as whatever claim plaintiff acquired by reason of her injury was one not against the defendant company, but against the receiver operating the road at the time under the orders of the court appointing him, and as it was within the power of such court, on terminating the receivership, to make and provide for settlement of all claims of parties against such receiver growing out of his operation of the road, and as, in the present instance, by its order, the circuit court had made such provision by directing that all claims against the receiver should be presented and prosecuted by intervention prior to February 1, 1889, and that, if not so presented by that date, the same be barred, and shall not be a charge on the property of said company; and that, as the