that company, designated as á "delivery man," who would collect the charges for same. It was further agreed in the statement of facts as follows: "That all orders are taken, executed, shipped, and delivered in the name of the company, and remain the property of the company until delivered and collected for. It is also agreed that petitioner had not taken out a license to dispose of or sell pictures and picture frames." The statutes under which this defendant was tried and convicted are as follows: "That each person, firm or corporation, either in person or through agents, who solicits orders for the enlargement of photographs of any character or for picture frames, whether they made charge for such frames or not, or any person, firm or corporation, either in person or through agents, who sells or disposes of picture frames, shall pay a license tax of $25.00 in each county in which they may do business; but this act shall not apply to merchants or dealers having a permanent place of business in this state, and keeping picture frames as a part or all of their stock in trade." "Any person who after the 15th day of January in any year engages in or carries on any business for which a license is required, without having taken out such license, must, on conviction, be fined three times the amount of the state license." The question as to whether the defendant was guilty of the charge of soliciting orders for the enlargement of photographs or picture frames or disposing of picture frames is not a matter of which this court has jurisdiction, since the state court has determined that question, and I accept the conclusion of that court upon this matter as a question of construction belonging entirely within its exclusive jurisdiction. The sole question which is presented to me for determination is whether the statute as construed by the county judge of Cleburne county and applied to the case at issue is invalid as an attempt to interfere with and regulate commerce. The decisions of the Supreme Court of the United States upon this question are numerous, and I shall not attempt to enumerate them here. That a state has no right to levy a tax on interstate commerce in any form has been most positively decided (Lyng v. Michigan, 135 U. S. 165, 10 Sup. Ct. 725, 34 L. Ed. 150; Leloup v. Port of Mobile, 127 U. S. 640, 8 Sup. Ct. 1380, 32 L. Ed. 311; Robbins v. Shelby County Taxing District, 120 U. S. 490, 7 Sup. Ct. 592, 30 L. Ed. 694), and many decisions referred to in those cases. In addition to these cases and many others of like import, the Supreme Court of the United States has in a very recent case decided in favor of the petitioner's contention upon the construction of an ordinance of the city of Greensboro, N. C., in almost the identical terms brought in question here. In that case (E. M. Caldwell v. State of North Carolina and City of Greensboro, 187 U. S. 622-633, 23 Sup. Ct. 229, 47 L. Ed. 336), the plaintiff in error was convicted of a violation of a city ordinance requiring persons engaged in selling or delivering picture frames, pictures, photographs, etc., to pay a license tax to the city of Greensboro. The Supreme Court of the United States in that well-considered opinion, Mr. Justice Shiras delivering the opinion of the court, says: "Nor does the fact that these articles were not shipped separately and directly to each individual purchaser, but were sent to an agent of the vendor at EX PARTE HULL. Greensboro, who delivered them to the purchasers, deprive the transaction It was only that the vendor used of its character as interstate commerce. two instead of one agency in the delivery. It would seem evident that if the vendor had sent the articles by an express company, which should collect on delivery, such a mode of delivery would not have subjected the transaction to state taxation. The same could be said if the vendor himself, or by a personal agent, had carried and delivered the goods to the purchaser. That the articles were sent as freight by rail, and were received at the railroad station by an agent who delivered them to the respective purchasers, in no wise changes the character of the commerce as interstate. Transactions between manufacturing companies in one state, through agents, with citizens of another, constitute a large part of interstate commerce; and for us to hold, with the court below, that the same articles, if sent by rail directly to the purchaser, are free from state taxation, but, if sent to an agent to deliver, are taxable through a license tax upon the agent, would evidently take a considerable portion of such traffic out of the salutary protection of the interstate commerce clause of the Constitution." It will be noted by reference to the Alabama statute, which is under consideration here, that, in addition to requiring a license tax from persons or corporations engaged in business therein designated, there is also this provision: "But this act shall not apply to merchants or dealers having a permanent place of business in this State, and keep picture frames as a part or all of their stock in trade." It will be noted here that there is a direct discrimination in favor of merchants residing within the state and having a permanent place of business as against merchants residing without the state. The question as to whether such legislation could be enforced by states against the citizens of other states was exhaustively treated in the case of Robbins v. Shelby County Taxing District, 120 U. S. 489, 7 Sup. Ct. 592, 30 L. Ed. 694. In that case Mr. Justice Bradley stated the following principles as already established by the Supreme Court of the United States: "The Constitution of the United States having given to Congress the power to regulate commerce, not only with foreign nations, but among the several states, that power is necessarily exclusive whenever the subjects of it are national in their character, or admit only of one uniform system or plan of regulation; that, where the power of Congress to regulate is exclusive, the failure of Congress to make express regulations indicates its will that the subject shall be left free from any restrictions or impositions, and any regulation of the subject by states, except in matters of local concern only, is repugnant to such freedom; that the only way in which commerce between the states can be legitimately affected by state laws is when, by virtue of its police power, and its jurisdiction over persons and property within its limits, a state provides for the security of the lives, health and comfort of persons and the protection of property, and imposes taxes upon persons residing within the state or belonging to its population, and upon vocations and employments pursued therein, not directly connected with foreign or interstate commerce, or with some other employment or business exercised under authority of the Constitution and laws of the United States, and imposes taxes upon all property within the state, mingled with and forming part of the great mass of property therein, but that, in making such internal regulations, a state cannot impose taxes upon persons passing through the state, or coming into it merely for a temporary purpose, especially if connected with interstate or foreign commerce, nor ean it impose such taxes upon property imported into the state from abroad, or from another state, and not become part of the common mass of property therein, and no discrimination can be made, by such regulations, adversely to the persons or property of other states, and no regulations can be made directly affecting interstate commerce." That case too involved the construction of a statute almost identical with that portion of the statute here at issue in relation to exempting merchants or dealers having permanent places of business in this state. Upon these established principles as laid down by the Supreme Court of the United States, I am compelled to hold that said statute as construed by the county judge of Cleburne county, Alabama, and applied to this petitioner, is invalid. The case of Asher v. Texas, 9 Sup. Ct. 1, 128 U. S. 129, 32 L. Ed. 368, was a case where the state statute required from "every commercial traveller, drummer, salesman or solicitor of trade by sample or otherwise an annual occupation tax"; and such legislation was declared inoperative so far as it affected one soliciting orders for business in any other state. To the same effect, also, is the decision in the case of Stoutenburg v. Hennick, 129 U. S. 141, 9 Sup. Ct. 256, 32 L. Ed. 637. It cannot be seriously doubted, in view of the numerous decisions of the Supreme Court of the United States upon the question, that efforts to control commerce of this kind in the interest of any states where purchasers reside have been frequently made in the form of statutes and city ordinances, but that such efforts have heretofore been rendered fruitless by the supervising action of the federal courts. Upon principle and authority, therefore, I am of the opinion that upon the agreed statement of facts in this cause that the judgment of conviction of the county judge of Cleburne county on the 8th day of May, 1907, as applied to this petitioner, was void, and the prayer of the petitioner is granted, and he is discharged from custody. So ordered. PARR et al. v. UNITED STATES et al. No. 2,844. 1. JUDGMENT ESTOPPEL-JURISDICTION. Where a state court had no jurisdiction to determine heirship for the purpose of fixing the right of descent to an allotment on the Umatilla reservation, while the land was held in trust by the United States for the heirs of the allottee, the state court's judgment in such proceeding did not operate as an estoppel in a subsequent proceeding by the allottee's surviving husband for curtesy. [Ed. Note.-Conclusiveness as between federal and state courts, see note to Kansas City, Ft. & M. R. Co. v. Morgan, 21 C. C. A. 478; Union & Planters' Bank v. City of Memphis, 49 C. C. A. 468.] 2. INDIANS-INDIAN LANDS-ALLOTMENT-CURTESY. Indian Treaty June 9, 1855, 12 Stat. 945, constituted a cession of the Umatilla Indian reservation to the United States, and authorized the President to provide a permanent home for such Indians in his discretion. Act March 3, 1885, c. 319, 23 Stat. 340, provided for the allotment of lands in such reservation to Indians in severalty according to the size of the families, etc. The act provided for the issuance of patents for the allotments, but that the legal title should be held in trust by the United States for the allottee and his heirs for 25 years in fee, provided that the law of alienation and descent in force in the state of Oregon should apply after the issuance of patents. B. & C. Comp. Or. § 5544, provides that, when a man and his wife shall be seised in her right of any estate of inheritance in lands, the husband shall, on the death of his wife, hold the lands for life as tenant by the curtesy, etc. Held that, where land was allotted PARR V. UNITED STATES. to an Indian woman within such reservation, her surviving husband was On Motion to Strike Further and Separate Answers. See 132 Fed. 1004. On about April 12, 1893, there was allotted to Maggie Damain, a mixedblood Indian woman, who was at the time the wife of John Damain, the Lortheast quarter of section 26, township 3 north, range 34 east of the Willanette Meridian, situated within the Umatilla Indian reservation. Subsequently the Damains adopted Ellen Rainville, an Indian child, through proceedings duly had and instituted in the county court for Umatilla county, About June 27, 1894, Maggie state of Oregon, who later married Fred Parr. Damain died intestate, leaving as her heirs at law her son, Isaac Gober; a daughter, Rosa Gober (sometimes called Rosa Farrow, now Rosa Parr); and ber adopted daughter, Ellen Parr. Isaac Gober died, leaving as his heirs at law Rosa Gober and Ellen Parr. Since the death of Maggie Damain, Join Damain, her husband, has been collecting the rents, issues, and profits of the land allotted to his wife, to the exclusion of her daughters. It is complained by Ellen Parr, who with her husband brings this suit, that she and Rosa Parr are the only heirs at law of Maggie Damain, and that they are entitled to the rents, issues, and profits of the allotment, to the exclusion of John Damain, the widower. Damain has answered the bill of complaint, and claims that, under the act providing for the allotment of Indian lands upon the Umatilla reservation, he is entitled to curtesy or a life estate in the lands of his wife, and that, by reason of such right, he has been collecting the rents and profits of the allotment in question; but that he has been providing, also, for Ellen and Rosa Parr out of such rents. By a first further and separate answer he sets out the facts necessary to show that he was the husband of Maggie Damain, and that, by reason of such fact, he is entitled to the rents. By a second further and separate answer, he sets up a decree, given and rendered in the circuit court of the state of Oregon for the county of Umatilla, in a case wherein Rosa Farrow and John Damain, were plaintiffs, and Isaac Gober and Ellen Damain were defendants, wherein it was decreed that Damain was entitled to a life estate by curtesy in the premises, and therefore entitled to collect the rents and profits, which decree is pleaded, as an estoppel to the present suit. And he prays, therefore, that he be declared to be entitled to hold said land for and during his natural life, and to the rents, issues, and profits arising therefrom, and for other relief. The plaintiffs moved to strike out these two further and separate answers, Dot separately, but as a whole, and the motion is now submitted for determination. R. J. Slater, J. H. Raley, and Charles H. Carter, for plaintiffs. Hailey & Lowell, for defendant Rosa Parr. H. J. Bean and James A. Fee, for defendants John Damain and George E. Peringer. WOLVERTON, District Judge (after stating the facts). The first question I will consider is whether the decree given and rendered in the state court operates as an estoppel to the present suit. Since this case was argued, the cause of William McKay (substituted for Mary Kalyton) et al., Plaintiffs in Error v. Agnes Kalyton, by Louise Kaly-, has been ton, her Guardian ad litem, 27 Sup. Ct. 346, 51 L. Ed. decided by the Supreme Court of the United States, and it was there considered that the state court is without jurisdiction to determine the heirship, under Act March 3, 1885, c. 319, 23 Stat. 310, under which the allotments were made to the Indians upon the Umatilla reservation. The court held that, prior to the act of Congress of 1894, all controversies necessarily involving the determination of the title, and, incidentally, of the right of possession, of Indian allotments, while they were held in trust by the United States, were not primarily cognizable by any court, either state or federal, and that the result of the act of Congress which delegated to the courts of the United States the power to determine such questions cannot be construed as having conferred upon the state courts the authority to pass upon federal questions over which, prior to the act of 1894, no court had any authority. Hence it was determined, as previously indicated, that the state court had no authority in that case to adjudicate touching the heirship as it respects Indian allottees. That case is preclusive, therefore, of any further controversy on the question in this case, and it is plain that the plea cannot operate as an estoppel to the present suit. The next and only other question for determination is whether the husband of a deceased Indian woman, she being an allottee of land 110on the Umatilla Indian reservation, has a right of curtesy in and to his wife's allotment. This depends upon the allotment act of March 3, 1885, providing for allotments to Indians upon such reservation, and the laws of the state of Oregon governing curtesy and descent of real property. By the act of 1885, the President of the United States is authorized to cause lands to be allotted to the confederated bands of Cayuse, Walla Walla, and Umatilla Indians residing upon the Umatilla reservation, in the state of Oregon, as follows, of agricultural lands: "To each head of a family, one hundred and sixty acres; to each single person over the age of eighteen years, eighty acres; to each orphan child being under eighteen years of age, eighty acres; and to each child under eighteen years of age not otherwise provided for, forty acres. "Allotments to heads of families and to children under eighteen years of age belonging to families shall be made upon the selections made by the head of the family." The act further provides for the appointment of a commission to set aside certain portions of the reservation for the purpose of allotments to the Indians residing upon such reservation, and then as follows: "As soon as such surveys are approved the selections and allotments shall be made. The President shall cause patents to issue to all persons to whom allotments of lands shall be made under the provisions of this act, which shall be of the legal effect, and declare that the United States does and will hold the land thus allotted, for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, or in case of his decease, of his heirs according to the laws of the state of Oregon, and that at the expiration of said period the United States will convey the same by patent to said Indian, or his heirs as aforesaid, in fee, discharged of said trust and free of all charge or incumbrance whatsoever: Provided, that the law of alienation and descent in force in the state of Oregon shall apply thereto after patents have been executed, except as hereinotherwise provided." By section 5 of the act it is further provided: "That before this act shall be executed in any part, the consent of said Indians shall be obtained to the disposition of their lands as provided herein, which consent shall be expressed in writing and signed by a majority of the male adults upon said reservation, and by a majority of their chiefs in |