plaintiff in error, because by confining the right to labor on works of municipal improvement to resident citizens, the cost of such works might thus be increased. But we think such a consequence is too far fetched and uncertain on which to base judicial action. The plaintiff in error did not raise such a question in time to stay the work in limine. He awaited the completion of the work, and until his property had received the benefits, whatever they were, of the improvement. Nor did he, on the trial, adduce any evidence from which the court ing upon the Supreme Court of the United States on writ of error to the state court. 3. The repugnancy of a state statute to the Federal Constitution cannot be successfully invoked in support of a motion to set aside a judgment as void, where the invalidity of such statute would have been available to defeat the recovery of a valid judgment, if it had been pleaded or otherwise presented in the state court as a defense in the proceedings in the original action. [No. 120.] uary 5, 1903. night have found that the actual cost in Argued December 17, 1902. Decided Jan- [547] the ordinance in preferring the labor of *res. State of Kansas to review a judgment which affirmed a judgment of the District Court of Atchison County denying a motion to set aside a judgment because of the repugnancy of a state statute to the Federal Constitution. Affirmed. N ERROR to the Supreme Court of the ident citizens might tend to increase the cost The judgment of the Supreme Court of See same case below, 62 Kan. 553, 64 Pac. Statement by Mr. Justice White: *Richard A. Park was plaintiff in the [548] original action, brought in the district court of Atchison county, Kansas, against William H. Risk, executor of the estate of George Mr. Justice Harlan and Mr. Justice Manley, deceased. It was alleged in the White dissent. REUBEN M. MANLEY, Executor of the Estate of George Manley, Deceased, Piff. in Err., v. petition, in substance, that the decedent was ANNA O. PARK, Substituted for Richard that the defendant, as executor of the estate (See S. C. Reporter's ed. 547-553.) of Manley, became seised and possessed of all the property of the decedent within the state of Kansas, including the shares of stock referred to, and, by reason of a con Error to state court-Federal question- set aside. 1. A decision of a state court adverse to a claim under the Federal Constitution, specially made in a motion to set aside the Judgment, raises a Federai question, for the purpose of a review in the Supreme Court of the United States. tion. There was filed with the petition an affidavit for attachment, because of the nonresidence of the defendant, and after the return of the summons an attachment was levied on certain real estate in Atchison county, Kansas, "as the property of said defendant William H. Risk, executor of the 2. The ruling of the highest court of a state, estate of George Manley, deceased." Pubthat, under the state Constitution and laws.lication of notice of the pendency of the acproperty situated in that state, the title to which is vested in a nonresident executor to whom letters testamentary have been issued by a court of another jurisdiction, may be attached and sold in an action of deb against such nonresident executor, is bind NOTE. On writs of error from United States Supreme Court to state courts-see notes to Hamblin v. Western Land Co. 37 L. ed. U. S. 267; Kipley v. Illinois, 42 L. ed. U. S. 998; and Re Buchanan, 39 L. ed. U. S. 884. As to when United States Supreme Court fol lows decisions of state courts-see notes to Forepaugh v. Delaware, L. & W. R. Co. (Pa.) 5 L. R. A. 508; United States ex rel. Butz v. Mus catine, 19 L. ed. U. S. 490; and Elmendorf v. Taylor, 6 L. ed. U. S. 290. tion was made, as required by laws of Kansas. Within the time limited for answering the defendant appeared generally by filing a demurrer to the petition on the grounds of a want of jurisdiction over the person of the defendant and the subject of the action, because several causes of action were improperly joined, and because the petition lid not state facts sufficient to constitute a ause of action. Thereafter, Reuben A. Manley, successor to William H. Risk, as xecutor and trustee of the estate of George Manley, deceased, was substituted as defendant in the stead of Risk. An answer was thereupon filed, in which most of the MANLEY V. PARK. 548, 549 616; Endowment & Benev. Asso. v. Kansas, 120 U. S. 103, 30 L. ed. 593, 7 Sup. Ct. Rep. 499; Clark v. Pennsylvania, 128 U. S. 395, 32 L. ed. 487, 9 Sup. Ct. Rep. 2, 113; Kennebec & P. R. Co. v. Portland & K. R. Co. 14 Wall. 23, 20 L. ed. 850; Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 41 L. ed. 979, 17 Sup. Ct. Rep. 581; Rothschild v. Knight, 184 U. S. 334, 46 L. ed. 573, 22 Sup. Ct. Rep. 391; Mallett v. North Carolina, 181 U. S. 589, 45 L. ed. 1015, 21 Sup. Ct. Rep. 730; Green Bay & M. Canal Co. v. Patten Paper Co. 172 U. S. 58, 43 L. ed. 364, 180 U. S. 333, 45 L. ed. 557, 21 Sup. Ct. Rep. 19 Sup. Ct. Rep. 97; Blythe v. Hinckley, 390; Crapo v. Kelly, 16 Wall. 610, 21 L. ed. 430; New York C. & H. R. R. Co. v. New York, 186 U. S. 269, 46 L. ed. 1158, 22 Sup. Ct. Rep. 916. material averments of the petition were ad- | 185 U. S. 203, 46 L. ed. 872, 22 Sup. Ct. Rep. mitted, such as the ownership by George Manley in his lifetime of the stock in question; the execution of his last will and testament; its admission to probate and the grant of letters testamentary to Risk and to his successor by a New Jersey orphans' court; that Risk and his successor "became seised and possessed of all the property of [549] the late George Manley, deceased, *lying and being situated in the state of Kansas," and that the substituted defendant (Reuben M. Manley) "became and is now a stockholder of the said, the Kansas Trust & Banking Company, and as such executor of said estate is the owner and holder of said shares of stock of said corporation, amounting to the sum of $27,500." Separate defenses were interposed to defeat recovery, such as that plaintiff had not reduced his claim against the Kansas corporation to judg ment, that there was a defect of parties plaintiff, that a special fund created by the Kansas corporation for the payment of the indebtedness in question existed, and should first be exhausted, and that various actions were pending in which recovery was sought by judgment creditors of said Kansas corporation, upon the liability of defendant as a stockholder in said corporation. Issue was joined by the filing of a reply, the cause was tried by the court, judgment for the amount claimed was rendered against the defendant, and the attached real estate was ordered sold. The cause was taken to the supreme court of Kansas, and that court dismissed the petition in error because of an informality in the proceedings and without passing on the merits. 61 Kan. 857, 58 Pac. 961. After the mandate had been filed in the lower court separate motions were made on behalf of defendant, to set aside the judgment and to withdraw the order for the sale of the attached property. The same grounds were assigned in support of each motion, and the claim of the protection of the Constitution of the United States was embodied in the third ground, by the assertion that a statute of Kansas, upon which the judgment complained of was based, violated the 1st and 2d sections of the 4th article of, and the provisions of, the 14th Amendment to the Constitution of the United States. The motions were overruled, and the "decision and judgment" was subsequently affirmed by the supreme court of Kansas. 62 Kan. 553, 64 Pac. 28. By writ of error the cause was then brought to this court. The original defendant in error having died, Anna O. Park has been substituted as defendant in error. tention that due effect to a decree of a redA Federal question is presented by a coneral court was denied by the action of the court below in sustaining a plea of res judicata predicated on a decree of such Federal court, where a determination whether the court correctly applied the plea necessitates deciding whether by sustaining such plea rights were denied which were vested under another decree of the Federal court. National Foundry & Pipe Works v. Oconto City Water Supply Co. 183 U. S. 216, 46 L. ed. 157, 22 Sup. Ct. Rep. 111. A writ of error to review a judgment of a state court ousting a corporation from its franchise for violation of the statutes of the state relating to the manufacture and sale of oleomargarine will not be dismissed on the ground that adequate support for the judgment, irrespective of any substantial Federal question, is afforded by the finding of the state court that the corporation had violated a statute in refusing to furnish samples as therein required, where the judg ment of the court was based upon the consideration given by it to all the asserted violations of the statutes jointly, which statutes were contended to be repugnant to the Constitution of the United States. 238, 46 L. ed. 171, 22 Sup. Ct. Rep. 120. Capital City Dairy Co. v. Ohio, 183 U. S. The fact that a state court in deciding a Federal question erroneously declares that no Federal question exists does not preclude a review of its decision on writ of error from the Supreme Court of the United States. Missouri, K. & T. R. Co. v. Elliott, 184 U. S. 695, 46 L. ed. 763, 22 Sup. Ct. Rep. 937; Anderson v. Carkins, 135 U. S. 483, 34 L. ed. 272, 16 Sup. Ct. Rep. 905; Columbia Water Power Co. v. Columbia Electric L. ed. 521, 19 Sup. Ct. Rep. 247; First Nat. Street R. Light & P. Co. 172 U. S. 475, 43 Bank v. Anderson, 172 U. S. 573, 43 L. ed. Nat. Bank v. Townsend, 139 U. S. 67, 35 L. 558, 19 Sup. Ct. Rep. 284; Logan County ed. 107, 11 Sup. Ct. Rep. 496. Mr. J. F. Tufts argued the cause, and, question was made too late. Scudder v. Coler, 175 U. S. 32, 44 L. ed. | 677; New York C. & H. R. R. Co. v. New 62, 20 Sup. Ct. Rep. 26. York, 186 U.-S. 269, 46 L. ed. 1158, 22 Sup. Ct. Rep. 916. When first raised on petition for rehearing it is too late. Turner v. Richardson, 180 U. S. 87, 45 L. ed. 438, 21 Sup. Ct. Rep. 295; Boston Bldg. & L. Asso. v. Welling, 181 U. S. 47, 45 L. ed. 739, 21 Sup. Ct. Rep. 531; Meyer v. Richmond, 172 U. S. 82, 43 L. ed. 374, 19 Sup. Ct. Rep. 106. When raised on second appeal it is too late. Yazoo & M. Valley R. Co. v. Adams, 180 U. S. 1, 45 L. ed. 395, 21 Sup. Ct. Rep. 240; Union Mut. L. Ins. Co. v. Kirchoff, 169 U. S. 103, 42 L. ed. 677, 18 Sup. Ct. Rep. 260. A definite issue as to the validity of the statute must be distinctly deducible from the record, before it can be held that a Federal question was disposed of by the decision. When the state court has rendered its decision on a local or state question or a general law, the logical course for this court is to dismiss the writ of error. St. Louis, C. G. & Ft. S. R. Co. v. Missouri, 156 U. S. 478, 39 L. ed. 502, 15 Sup. Ct. Rep. 443. A decision of a state court based on estoppel involves no Federal question. Weyerhaueser v. Minnesota, 176 U. S. 550, 44 L. ed. 583, 20 Sup. Ct. Rep. 485. Nor when based on laches. Pittsburgh & L. A. Iron Co. v. Cleveland Iron Min. Co. 178 U. S. 270, 44 L. ed. 1065, 20 Sup. Ct. Rep. 931; Moran v. Horsky, 178 U. S. 205, 44 L. ed. 1038, 20 Sup. Ct. Rep. 856. The decision of the state court having been upon the state statute and general law, and Powell v. Brunswick County, 150 U. S. 433, 37 L. ed. 1134, 14 Sup. Ct. Rep. 166. To authorize the review of a state judg-being sustained thereby, this court will not ment it must appear that the decision of a Federal question was necessary to the determination of the case, and was actually decided. Endowment & Benev. Asso. v. Kansas, 120 U. S. 103, 30 L. ed. 593, 7 Sup. Ct. Rep. 499; Church v. Kelsey, 121 U. S. 282, 30 L. ed. 960, 7 Sup. Ct. Rep. 897; Clark v. Pennsylvania, 128 U. S. 395, 32 L. ed. 487, 9 Sup. Ct. Rep. 2, 113; New Orleans Water Works Co. v. Louisiana Sugar Ref. Co. 125 U. S. 18, 31 L. ed. 607, 8 Sup. Ct. Rep. 741. To give this court jurisdiction of a writ of error to a state court it must appear affirmatively, not only that a Federal question was presented for decision by the state court, but that its decision was necessary to the determination of the cause, or was decided, or that the judgment as rendered could not have been rendered without deciding it. Eustis v. Bolles, 150 U. S. 361, 37 L. ed. 1111, 14 Sup. Ct. Rep. 131; Cook County v. Calumet & C. Canal & Dock Co. 138 U. S. 635, 34 L. ed. 1110, 11 Sup. Ct. Rep. 435; Klinger v. Missouri, 13 Wall. 257, 20 L. ed. 635; Jenkins v. Lowenthal, 110 U. S. 222, 28 L. ed. 129, 3 Sup. Ct. Rep. 638; Egan v. Hart, 165 U. S. 188, 41 L. ed. 680, 17 Sup. Ct. Rep. 300; Castillo v. McConnico, 168 U. S. 674, 42 L. ed. 622, 18 Sup. Ct. Rep. 229. Even though a Federal question was presented and decided, this court will not entertain jurisdiction of a state judgment if, besides the Federal question decided by the state court, there is another and distinct ground on which the judgment can be sustained. Kennebec & P. R. Co. v. Portland & K. R. Co. 14 Wall. 23, 20 L. ed. 850; Rector v. Ashley, 6 Wall. 142, 18 L. ed. 723; Gibson v. Chouteau, 8 Wall. 314, 19 L. ed. 317; Johnson v. Risk, 137 U. S. 300, 34 L. ed. 683, 11 Sup. Ct. Rep. 111; Hopkins v. McLure, 133 U. S. 380, 33 L. ed. 660, 10 Sup. Ct. Rep. 467: Hale v. Akers, 132 U. S. 554, 33 L. ed. 442, 10 Sup. Ct. Rep. 171; Hale v. Lewis, 181 U. S. 473, 45 L. ed. 959, 21 Sup. Ct. Rep. review the decision, even though there was an attempt to raise a Federal question. Eustis v. Bolles, 150 U. S. 361, 37 L. ed. 1111, 14 Sup. Ct. Rep. 131; De Saussure v. Gaillard, 127 U. S. 216, 32 L. ed. 125, 8 Sup. Ct. Rep. 1053. Mr. Justice White, after making the foregoing statement, delivered the opinion of the court: A motion has been made to dismiss the writ of error upon the ground that no Federal question is presented by the record, it being claimed that the decision and judg ment of the supreme court of Kansas sought to be reviewed was based solely upon a consideration of local statutes and the determination of a question of general law, viz., the effect as res judicata of a judgment of a court of Kansas. But as the claim of the benefit of the Constitution of the United States was specially made in the motions, and was passed upon adversely to the moving party, it follows that a Federal question exists in this record, and the motion to dismiss is therefore overruled. Missouri, K. & T. R. Co. v. Elliott, 184 U. S. 534, 46 L. ed. 676, 22 Sup. Ct. Rep. 446. The specifications of error now relied upon are thus stated in the brief of counsel for plaintiff in error: "First. Under the Constitution and laws of the state of Kansas, an executor, resident in the state of Kansas, could be sued in a district court of the state, but the property in his charge could not be attached, nor sold on execution. "Second. Under the Constitution and statutes of the state of Kansas, no authority exists for attaching the property in charge of a nonresident executor. "Third. Section 203 of the executors' and administrators' act (Kan. Gen. Stat. 1889, 2989), as construed and upheld in this case, is in violation of § 2, art. 4, of the Constitution of the United States, in that it does not accord to the plaintiff in error and his predecessor, citizens of the state of New Jersey, all the privileges and immunities of an executor resident in the state of Kansas. | Kansas to accord such privilege or immuU. S. Const. art. 4, § 2. nity to a nonresident executor, and the sub"Fourth. Section 203 of the executors'jecting him to the operation of attachand administrators' act (Kan. Gen. Stat. 1889, 2989), as construed and upheld in this case, is in violation of the 14th Amendment to the Constitution of the United (551) States, in that it abridges the privileges of the plaintiff in error and his predecessor, citizens of the United States, and their immunity from suit by attachment, and deprives them of their property without due process of law, and denies them the equal protection of the laws. "Fifth. The right of the plaintiff in error, and his predecessors, citizens of the state of New Jersey, to act as executors of the estate of George Manley, deceased, is a privilege, and the exemption of an executor, not a resident in the state of Kansas, from suits by attachment, is an immunity which is guaranteed by § 2, art. 4, Constitution of the United States, and the same were denied by the decision of the supreme court of Kansas in this case." The first and second propositions, it is manifest, simply invite a consideration of the Constitution and laws of the state of Kansas; and, consequently, the construction adopted by the supreme court of Kansas of the pertinent provisions of such Constitution and laws, is binding upon this court as a decision upon a matter of purely local law, not presenting a Federal question. We must accept, then, as undeniable the ruling of the highest court of Kansas, that under the Constitution and statutes of Kansas real estate situated in that state, the title to which was vested in a nonresident executor, to whom letters testamentary had been issued by a court of another jurisdiction, might be attached and sold, in an action of debt against the nonresident executor. The remaining propositions assail the validity, under the Constitution of the United States, of the statute of Kansas (Kan. Gen. Stat. 1889, 2989; Kan. Gen. Stat. 1897, chap. 107, § 147), as thus construed by the supreme court of Kansas. The section in question upon which the judgment complained of was based is as follows: "An exccutor or administrator duly appointed in any other state or county may sue or be sued in any court in this state, in his capacity of executor or administrator, in like manner and under like restrictions as a nonresident may sue or be sued." ment laws, deprived the foreign executor of his property without due process of law, and denied him the equal protection of the laws. But it is obvious, we think, under the circumstances disclosed in this record, that the protection of the Constitution of the United States could not be successfully invoked to annul the judgment here complained of on the theory that such judgment was absolutely void and of no effect under the Constitution of the United States. This results from the consideration that no claim to the protection of the Constitution of the United States was set up in any form in the proceedings had in the state court which resulted in the judgment complained of, and for such reason, if that judgment had been brought to this court for review, it would have been its duty-having in mind the provisions of § 709 of the Revised Statutes [U. S. Comp. Stat. 1901, p. 575]-to affirm the judgment and recognize its binding force, because no Federal question was raised. A domestic judgment of a state court whose validity it would have been the duty of this court to uphold, on direct proceedings to obtain a reversal of such judgment, manifestly should be treated by courts of the United States, so far as relates to Federal questions which existed at the time the action was commenced in which the judgment was rendered, as valid between the parties to such judgment. We could not hold to the contrary without saying that a Federal defense which could not be availed of unless raised before judgment was yet efficacious, although not raised, to avoid the judgment when rendered. This would necessarily declare a plain contradiction in terms. the authority conferred by Kansas upon her courts was to set aside void judgments,[553] provisions of the Constitution of the United States which would have been available if pleaded or otherwise presented in the state courts as a defense in the proceedings in the original action to defeat the recovery of a valid judgment cannot, when the opportunity has not been availed of and the judg ment has become a finality, be resorted to as establishing that in fact the judgment possessed no binding force or efficacy whatever. Judgment affirmed. As LONE WOLF, Principal Chief of the Kiowas, et al., Appts., v. This section was held to authorize an attachment of property in an action against a nonresident executor, precisely as in ordi- ETHAN A. HITCHCOCK, Secretary of the nary actions against nonresidents. [552] Now, the claimed nullity of the judgment assailed was based upon the alleged invalidity of the Kansas statute above quoted, as respected the Constitution of the United States, in this, that as an executor resident in Kansas possessed the privilege or immunity of not being subject to suit by attachment of property, a like privilege or im munity within the state of Kansas was vested by the Constitution of the United States in executors who were not residents of Kansas, and the refusal of the state of Interior, et al. (See S. C. Reporter's ed. 553-568.) Indians-power of Congress over tribal relations and lands-effect of prior treaty. The plenary power of Congress over the tri bal relations and lands of the confedNOTE.-On Federal control over the Indiana -see note to Worcester v. Georgia, 8 L. ed. U. S. 484. On the construction and operation of treaties -see note to United States v. The Amistad, 10 L. ed. U. S. 826. 299 erated tribes of Klowa, Comanche. and Apache Indians could not be so limited by any of the provisions of a treaty with such Indians as to preclude the enactment by fifty-six male adults therefore constituted more than three fourths of the certified number of total male adults in the three Congress of the act of June 6, 1900 (31 tribes. In form the agreement was a proStat. at L. 677, chap. 813), providing for al-posed treaty, the terms of which, in sublotments to the Indians in severalty out of the lands held in common within the reservation, and purporting to give an adequate consideration for the surplus lands not allotted among the Indians or reserved their benefit. [No. 275.] for Argued October 23, 1902. Decided January A 5, 1903. PPEAL from the Court of Appeals of the District of Columbia to review a decree which affirmed a decree of the Supreme Court of the District in favor of defendants in a suit to enjoin the carrying into effect of the act of Congress of June 6, 1900 (31 Stat. at L. 677, chap. 813), dealing with the disposition of tribal property of the Kiowa, Comanche, and Apache Indians. Affirmed. See same case below, 19 App. D. C. 315. Statement by Mr. Justice White: In 1867 a treaty was concluded with the Kiowa and Comanche tribes of Indians, and such other friendly tribes as might be united with them, setting apart a reservation for the use of such Indians. By a separate treaty the Apache tribe of Indians was incorporated with the two formernamed, and became entitled to share in the benefits of the reservation. 15 Stat. at L. 581, 589. The first-named treaty is usually called the Medicine Lodge treaty. By the sixth article thereof it was provided that heads of families might select a tract of land within the reservation, not exceeding 320 acres in extent, which should thereafter cease to be held in common, and should be for the exclusive possession of the Indian making the selection, so long as he or his family might continue to cultivate the land. The twelfth article of the treaty was as follows: "Article 12. No treaty for the cession of any portion or part of the reservation herein described, which may be held in common, shall be of any validity or force as against the said Indians, unless executed and signed by at least three fourths of all the adult male Indians occupying the same, and no cession by the tribe shall be understood or construed in such manner as to deprive, without his consent, any individual member of the tribe of his rights to any tract of land selected by him as provided in article 3 [6] of this treaty." The three tribes settled under the treaties upon the described land. On October 6, 1892, 456 inale adult members of the confederated tribes sigued, with three commissioners representing the United States, an agreement concerning the reservation. The Indian agent, in a certificate appended to the agreement, represented that there were then 562 male adults in the three tribes. Senate Ex. Doc. No. 27, 52d Congress, sec555]ond session, *page 17. Four hundred and stance, provided for a surrender to the might be made to the Indians. same as if members of said tribes." Elim inating 350,000 acres of mountainous land, the quantity of surplus lands suitable for farming and grazing purposes was estimated at 2,150,000 acres. Concerning the payment to be made for these surplus lands, the commission, in their report to the President announcing the termination of the negotiations, said (Senate Ex. Doc. No. 17, second session, 52d Congress): "In this connection it is proper to add that the commission agreed with the Indiaus to incorporate the following in their report, which is now done: "The Indians upon this reservation seem to believe (but whether from an exercise of their own judgment or from the advice of others the commission cannot determine) that their surplus land is worth two and one-half million dollars, and Congress may be induced to give them that much for it. Therefore, in compliance with their request, we report that they desire to be heard through an attorney and a delegation to Washington upon that question, the agreement signed, however, to be effective upon ratification no matter what Congress may do with their appeal for the extra half mil lion dollars." In transmitting the agreement to the Secretary of the Interior, the Commissioner of Indian Affairs said: "The price paid, while considerably in excess of that paid to the Cheyennes and Ara-[556] pahoes, seems to be fair and reasonable, both to the government and the Indians, the land being doubtless of better quality than that in the Cheyenne and Arapahoe reservation." Attention was directed to the provision in the agreement in favor of the Indian agent and an army officer, and it was suggested that to permit them to avail thereof would establish a bad precedent. Soon after the signing of the foregoing agreement it was claimed by the Indians that their assent had been obtained by fraudulent misrepresentations of its terms by the interpreters, and it was asserted that the agreement should not be held binding upon the tribes because three fourths of the |