The United States v. The City Bank of Columbus. age its business, both ordinary and extraordinary. The case of Kirk v. Bell, (12 English and Common Law Reports, 389,) and that of Hoyt v. Thompson, were very appropriately cited by the counsel of the appellee, in this connection; and we think the safe rule in all instances of acts done by the officers of corporate companies, or by those who have the management of their business, from which contracts are alleged to have been made, is, to test that fact by an inquiry into the corporate ability which has been given to them and to their subordinate officers, or which the directors of the company can confer upon the latter to act for them. Such was the view of this court when it decided, in the case of the Bank of the United States v. Dunn, (6 Peters,) that a release given by its president and cashier to the endorser of a promissory note of his liability upon it, did not bind the bank, neither nor both having any authority to make contracts of that kind. The case before us is one in which a cashier acts alone, and in which he testifies that he did so without any consultation with the president or directors of the company, and of which they had no information from him of the transaction until after the failure of Miner to pay the money in New Orleans. The act under which the City Bank of Columbus became a corporation does not, in any part of it, give any power to a cashier to act independently of the directors. No specific power is given to the directors to appoint a cashier. In the general power given to the directors to appoint officers to do the ordinary business of the bank, they have an authority to appoint a cashier, and such an appointment is a limitation of that officer's executive function in doing the business of the bank. It cannot be pretended that the directors, as a whole, or any one of them, except Miner,. consented to the cashier's designation of Miner for any such purpose as was concluded between them, to induce the secretary to believe that Minor was the agent of the bank, either to buy stock of the United States or to enter into contracts for [* 366]: the transmission of money, free of charge, to those posts where the United States should designate it to be put. Such a powerin the secretary of the treasury is a necessary one for the transaction of the business of the government, pervading, as it does, every part of the country. The exercise of it, however, requires great care and caution in the selection of agents for such a purpose, and no authority short of the most certain should be taken to establish the representative character of any oue for a private company or corporation to enter into such a contract with the secretary. The United States, as plaintiff in this action, has failed to establish the contract which it alleges in its declaration had been made Vol. iii-3 State of New York v. Dibble. with the City Bank of Columbus, for the transmission of money; and we direct the judgment given in the court below to be affirmed. L-ed 149 21h 366 THE PEOPLE OF THE STATE OF NEW YORK, at the relation of Cutler and others, v. EDGAR C. DIBBLE, County Judge of Genesee County. 131cxxii 21 H. 366. CONSTITUTIONAL LAW-RIGHTS OF INDIANS. 1. The supreme court of the State of New York decided that the statute of that State which forbids any other than Indians to settle on an Indian reservation, and authorized a summary proceeding for their ejectment, is constitutional. Held, by this court, that it was a police regulation, and a proper subject of State legislation, not in conflict with the federal constitution or any act of Congress. 2. That though the relators secured a title under the State of Massachusetts to the land, this act of the States did not violate the contract of purchase of Ogden and Fellows, because no right of possession under that contract accrued until the United States saw fit to remove or compel the removal of the Indians. Fellows v. Blacksmith, 19 How. 366; 1 Miller, 763. THIS was a writ of error to the supreme court of the State of New York. The case in that court is reported in 16 New York Reports, 203. The facts are fully stated in the opinion. Mr. Brown and Mr. Gillet, for plaintiffs in error. Mr. Martindale, for defendant. [* 368] . * Mr. Justice GRIER delivered the opinion of the court. This case is brought before us by a writ of error to the supreme court of New York, under the 25th section of the judiciary act. It had its origin in a proceeding before the county judge of Genesee county, instituted by the district attorney against Asa Cutler, John Underhill, and Arza Underhill, the relators, pursuant to the provisions of an act of assembly entitled "An act respecting intrusion on Indian lands," passed March 31, 1821. This act made it unlawful for any persons other than Indians to settle and reside upon lands belonging to or occupied by any tribe of Indians, and declared void all contracts made by any Indians, whereby any other than Indians should be permitted to reside on such lands; and if any persons should settle or reside on any such lands contrary to the act, it was made the duty of any judge of any county court where such lands were situated, on complaint made to State of New York v. Dibble. him, and due proof of such residence or settlement, to issue his warrant, directed to the sheriff, commanding him to remove such persons. * On notice to the relators of the institution of this pro- [*369] ceeding, they appeared before the judge and pleaded to his jurisdiction, on the ground that they had entered and occupied the lands, claiming title under a written instrument adversely to the Seneca nation of Indians, and therefore, by the constitution and laws of the State, they were entitled to a trial by jury, according to the course of the common law, and could not thus be removed by summary proceedings under this act. This plea was overruled by the judge. The relators then pleaded that this tract of 12,800 acres, called the Tonawanda reservation, was not owned by the Seneca Indians; that by a treaty made with the United States on the 20th of May, 1842, the Seneca nation of Indians had by indenture set forth in the treaty conveyed to Thomas Ludlow Ogden and Joseph Fellows this tract of land, with others; that this grant was duly confirmed by the State of Massachusetts, pursuant to the provisions of the act of cession made between that State and the State of New York, on the 16th of December, 1786; that the whole amount of the consideration stipulated by the treaty and deed had been paid by said Ogden and Fellows; and that relators were in possession under said Ogden and Fellows, and adversely to the Indians. They therefore denied the power and authority of the judge to determine their right to the lands in their possession, or to remove them, under the powers conferred by the act of assembly of New York. After hearing the parties, the judge decided against the relators, who removed the proceedings by certiorari to the supreme court. The record contains the testimony on both sides, and numerous documents concerning the treaty with the Seneca Indians, and also the subsequent proceedings by the officers of the government. It will not be necessary to a clear apprehension of our decision in this case to state them particularly, nor is it material to our inquiry whether the judge may have erred in his decision, that "the Seneca nation had not duly granted and conveyed the reserve in question to Ogden and Fellows." The supreme court and court of appeals of New York have decided, "that the provisions of this act respecting intrusions on Indian lands, which authorize the summary [*370] removal of persons, other than Indians, who settle or reside upon lands belonging to or occupied by any nation or tribe of Indians, are constitutional, and that a citizen who enters upon their State of New York v. Dibble. land before their title has been extinguished, and they have removed, or have been removed by the act of the government, can acquire no such right of property or possession as is within the protection of the provisions of the constitution which secure a trial by jury." They therefore affirmed the judgment of the county judge. The only question which this court can be called on to decide is, whether this law is in conflict with the constitution of the United States, or any treaty or act of congress, and whether this proceeding under it has deprived the relators of property or rights secured to them by any treaty or act of congress. The statute in question is a police regulation for the protection of the Indians from intrusion of the white people, and to preserve the peace. It is the dictate of a prudent and just policy. Notwithstanding the peculiar relation which these Indian nations hold to the government of the United States, the State of New York had the power of a sovereign over their persons and property, so far as it was necessary to preserve the peace of the commonwealth, and protect these feeble and helpless bands from imposition and intrusion. The power of a State to make such regulations to preserve the peace of the community is absolute, and has never been surrendered. The act is therefore not contrary to the constitution of the United States. Nor is this statute in conflict with any act of congress, as no law of congress can be found which authorizes white men to intrude on the possessions of Indians. Is it in conflict with rights acquired by Ogden and Fellows, under the treaty, and contract making a part of it? If the treaty of 1842 had been executed; if the United States, in their character of sovereign guardian of this nation, had delivered up the possession to these purchasers, then this statute of New York, when applied to them, would clearly be in conflict with their rights acquired under the treaty. But, by the case, it is admitted that the [*371] Indians have not been removed by the United States. The Tonawanda band is in peaceable possession of its reserve, and has hitherto refused to surrender it. Unless, therefore, these persons claiming under Ogden and Fellows have by the treaty a right of entry into these lands, and, as a consequence, to forcibly oust the possessors or turn them out by action of ejectment, they cannot allege that this summary removal by authority of the statute of New York is in conflict with the treaty, or any rights secured to the purchaser under it. This proceeding does not affect their title. The question of the validity of this treaty to bind the Tonawanda New York and Liverpool Mail Steamship Co. v. Rumball. band is one to be decided, not by the courts, but by the political power which acted for and with the Indians. So far as the statute of New York is concerned, it only requires that the Indians be in possession; they are not bound to show that they are owners. They may invoke the aid of the statute against all white intruders, so long as they remain in the peaceable possession of their lands. The relators cannot claim the protection of the treaty, unless they have a right of entry given them by it, before the Indians are removed by the government. This court have decided, in the case of Fellows v. Blacksmith, (19 Howard, 366,) that this treaty has made no provision as to the mode or manner in which the removal of the Indians or the surrender of their reservations was to take place; that it can be carried into execution only by the authority or power of the government which was a party to it. The Indians. are to be removed to their new homes by their guardians, the United States, and cannot be expelled by irregular force or violence of the individuals who claim to have purchased their lands, nor even by the intervention of the courts of justice. Until such removal and surrender of possession by the intervention of the government of the United States, the Indians and their possessions are protected, by the laws of New York, from the intrusion of their white neighbors. We are of opinion, therefore, that this statute and the proceeding in this case are not in conflict with the treaty in question, or with any act of congress, or with the constitution of the United States. The judgment of the court of appeals of New York is therefore affirmed, with costs. THE STEAMSHIP PACIFIC. THE NEW YORK AND LIVERPOOL MAIL STEAMSHIP COMPANY, Appellants, v. OTIS P. RUMBALL. 21 H. 372. ADMIRALTY-COLLISION. 1. When a sail vessel and a steamer are approaching each other, it is the duty of the former to hold on her course and of the latter to keep out of her way. 2. These rules are binding on both vessels, from the time of possible collision until such possibility is passed, or until there is no chance of avoiding danger by that course. 3. As the steamer is bound to keep out of the way, and it devolves upon her to shape her course and adopt other means for the security of both vessels, it is necessary, to enable her to do this, that the sail vessel should steadily hold on her course. 4. The controversy in this case is on the question whether the sail vessel did not depart |