(Circuit Court, D. Uali/lJf'nin.
August 18, i884-)
Timber upon mineral lands in the state of Oalifornia is protected and governed by the provisions of the act of June 3,1878, c. 151, (20 St. at Large, 89,) made spedtically applicable to that st.ate, and not by the gene;'al provisions of chapter 150 of the act of .June 3,1878, (20 St. at Large, 88,) which can onlyoperate upon" mineral districts," if any there be, not specifically provided for by . designating the particular state or territory in which it is situated by name.
LANDS-CUTTING TIMBER ON MINERAL LANDS IN OALIFORNIA-ACT 0 .. JUNE 3, 1876, CHS. 15Q, 15l.
dents of the state of Colorado, or Nevada, or either of the territories of New Mexico, Arizona, Utah, Wyoming, Dakota, or Montana, and all other mineral districts of the United States, shall beand are hereby authorized and permitted to fell and remove, for building, agricultural, mining, or other do-mestic purposes,. any timber, or other trees grOWing or being on the publit; ,lands, said laMs 'being mineral and not SUbject to entry under eJtisting laws
Demurrer to special answer, and motion to strike out a portion as immaterial. S. G. Hilborn, U. S. Atty., for plaintiff. Geo. G. Blanchard, for defendant. SAWYER, J. The United States bring this action to recover tha value of lumber alleged to have been manufactured from timber trees unlawfully cut on the public lands. The defendant, as a justification, specially answers that the trees from which the lumber in question was manufactured grew and were cut "in a mineral district of the United States," known as such throughout the state, and so recognized by the customs of miners and the decisions of the courts, and designated "The Georgetown Mineral and Mining District," being "in the mineral belt of said state of California and county of El Dorado;" th at defendan t was and is a citizen of the United States, and a bona fide resident of said "Georgetown Mineral trict;" that the land on which said trees grew was public land of the United States, mineral in character, and not subject to entry under existing laws of the United States, except as mineral lands ; that the used in said mineral district and adjoining mineral dislumber trictsof said county of EI Dorado for building, agricultural, mining, and other domestic purposes, but principally for mining purposes.; that said timber was felled, removed, and used for the said purposes, · · · in accordance with the rules and regulations prescribed by the secretary of the interior;" and that said timber "was felled and removed, and said acts committed, under a license from the United States, under and by virtue of an act approved June 3, 1878, enti. tIed" An act authorizing the citizens of Colorado, Nevada, and other terl'itories to fell and remove timber on the public domain for mining and domestic purposes." The act under which defendant attempts to justify, provideB"That all citizens of the United States, and other persons bona fide resi-
of the United States, except for mineral entry in either of said states, territories, or districts of which such citizens or persons may be at the time bona fide residents, to such rules and regulations 88 the secretary of the interior may prescribe for the protection of the timber, and of the undergrowth growing upon such. lands, and for other purposes."
The United States attorney insists that this act is not applicable to the state of California, and, consequently, it can afford no justifioation of the acts complained of. The defendant, on the other hand, contends that the words "all other mineral districts of the United States" embrace every "mining district," recognized as such by the customs of miners of the locality embracing it, in whatever state or territory it may be situated. A similar question arose in the circuit court for the district of Oregon in U. S. v. Smith, in which DEADY, J. o after a full and careful consideration of the question, held that the act did not apply to the state of Oregon. U. S. v. Smith, 8 Sawy. 101; S. C. 11 FED. REP. 487. If it does not apply to Oregon, for similar reasons it is inapplicable to California. After a careful consideration of the question I am constrained to concur in the conclusion reached by the district judge of Oregon, and hold the provision to be inapplicable to California. If this act stood alone, the position taken by the defendant's coun· sel would not be without plausibility. But, unfortunately for him, it does not stand alone. On the same day another act was passed, specifically applicable to timber lands in the states of California, Oregon, Nevada and Washington Territory, which contains provisions wholly inconsistent with the provisions relied on in the act relating specificMly to Colorado and the territories therein named. It does not appear which act was, in fact, first passed, but probably it was the first-mentioned act relating to Colorado, etc., as that is designated in the statutes as chapter 150, while the act relating to Cali· fornia, etc., is numbered chapter lIn of the Statutes. See 20 St. 88, 89. If the latter act is to be beated as a subsequent statute, it repeals the inconsistent provisions of the prior act, as it expressly provides that "all acts and parts of acts inconsistent with the provisions of this act are hereby repealed:' Section 6. But the most favorable view for the defendant is to regard the two statutes, as they were both passed on the same day, as constituting but one statute, the former part of the act making specific provisions for Colorado, and the other states and territories named; and the subsequent provisions of the a·ct making like specific provisions for California and the other state and territories therein named. So viewing the statute, we must, if possible, construe all the provisions in such manner that every part can stand and have effect. . In such cases, also, loose general provisions of doubtful import in the former part of the statute must yield to subsequent clear and specific provisions, which are so explicit as to admit of but one construction. The clause, "all other mineral districts of the United
Sta.tes," in the first-named act, as shown by DEADY, 1., in the case already cited, 'is very general and exceedingly indefinite and uncertain as to its application; while the provisions of the other act are made specijiaaUy applicable to the state of California. by terms so clear and e:;plicit as not to be open to any other construction. The most that dll,U be said of the general clause is that it can only refer to "all other mineral districts of the United States" not otherwise specificaHypointed<mt provisions of the acts being one.. But California is otherwise specifically provided for. ' In my. judgment the timber upon the public lands in the state of California is protected and governed by the provisions of the second act';! made specifically applicable to California, and not by the loose general provision of the first act, which can only operate upon "mineral districts," if any t4ere be, not specifically provided for, by designating the particular state or territory in which it is situated by name. , ,To- hold otherwise would be to make ,the specific and ,certain yield to the general, indefinite, and uncertain, whieh would be contrary tQ the well-established canons of statutory The seco.n4 act expressly provides "that after the passage of this act it shall be unlawful to cut, or eause or procure be cut; or wantonly destroy, any timber growing on any lands of the United States in said ,states and of which California is the first specifically named ip the aot: "provided, that nothing herein contained shall prevent anI miner or agriculturist from clearing his land in the ordinary working ,of his mining claim, or preparing his farm for tillage, or from taking the timber pecessary to support bis improvements." Thus it will be Been that the ,righ.t to cut timber is much more restricted as applie4 to the states and territory named in this act than the right eonferred on the residents of the states and territories named in the other acto. In this act the right is limited strictly to the miner agriculturist, and is restricted to cutting timber on ,his own mining claim or farm, ftnd to the purpose of Qlearing the land in the "ordinary working of his mining claim," or "preparing his farm for tillage;" and to "ta,kThe part of ing the timber necessary to support his the answer inqpes.tion does not show defendant to be either a miner or farmer, or that he cut the timber on his <?wn mining or farming claim, or that he did it for any of the designated p)lrposes. Indeed, he does not attempt to bring himself within the provisions of this act relating specifically to California,. but he relies wholly on the other act, which specifioallyrelates to Colorado, and the other territories and districts therein named, in general indefinite terms, which latter act is much more liberal in its provisions than the other. It follows that the facts alleged are insufficient to constitute a defense, and, if true, are wholly immaterial. The demurrer must be sllstained, and the motion to strike out, granted; and it is so ordered.
(Uircuit Oourt, D. Oalifornia. August 18, 1884.)
JURISDICTION OF CIRCUIT AGAINST FOREIGN CORPORATION-WHERJIl BROUGHT - AOT OF 1875, § 1 - WAIVER OF EXEMPTION - ApPOINTMENT OB' AGENT, UPON WHOM PROCESS MA.Y BE SERVED.
The act of congress prescribing the place where a person may be sued is not one affecting the general jurisdiction of the courts. It is rather in the nature of a personal exemption in favor of a defendant, which he may waive; and when a foreign corporation, in pursuance of the 13ws of a state in which it carries on business, designates a person upon whom process may be served, it therehy consents to be sued in the district embracing sllch state, and waiv.es the exemption granted to it under the act of congress.
Motion to Quash Service of Subpoona. Wm. Matthews, for motion. L. D. Latimer, contra. SAWYER, J. The defendant is a corporation organized and existing under the laws of New York, working a quicksilver mine in Santa Clara county, California. A statute of California, passed in 1872, (St. Cal. 1871-72, p. 826,) requires every corporation created by the laws of any other state, doing' business in this state, "to designate some person residing in the county in which the principal place of business of said corporation in this state is, upon whom process may be served, · · · and file such designation with the secretary of state. · · · And, it shall be lawful to serve on such person so designated any process issued as aforesaid," etc. Foreign corporations complying with this provision enjoy certain specified advantages, and those not complying are subjected to certain prescribed disabilities. In pursuance of the provisions of said statute of California, the defendant, on July 18, 1872, filed in the office of the secretary of state of the state of California, a: document under the seal of the corporation, and signed by its president and secretary, whereby "James B. Randall, who resides in New Almaden, Santa Clara county, in the state of California, being the county in which the principal place of business of said company is, as the person upon whom process issued · · · may be served." The subpoona in this case was served in due form upon said James B. Randall. It is claimed on behalf of defendant that under the act of congress of 1875, relating to the jurisdiction of the United States courts, sec. tion 1, it is not liable to be sued in the United States circuit court for the district of California, or elsewhere in the national courts out of the state of New York. Said statute provides "that no civil suit shall be brought" before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving such process or commencing such proceeding," etc. It is insisted that a corporation, under the decisions of the United