forced construction of the language of the section in question, if, because no special reference is made to corporations, a resort to that mode of uniting interests by different citizens was to be deemed prohibited. There is nothing in the nature of the grant or privilege conferred which would impose such a limitation. It is in that respect unlike grants of land for homestead or settlement, indicating in such cases that the grant is intended only for individual citizens." We may add, too, that it is unlike those grants in other respects, for it permits sales to any person or corporation who may buy, limited only, under the law of March 1887, to citizens of the United States within the territories. But in the case above, the court, after citing the various sections of the statute, including sections 2321 and 2325, concludes as follows: "We are of opinion that some rule of construction should control in this case, and that, in accordance with it, section 2319 of the Revised Statutes must be held not to preclude a private corporation under the law of a state, whose members are citizens of the United States, from locating a mining claim on the public lands of the United States. There may be some question raised as to the extent of a claim which a corporation may be permitted to locate as an original discoverer. It may perhaps be treated as one person, entitled to locate only to the extent permitted to a single individual.”1

It will thus be seen that Judge Field hinged that case somewhat rather too much, we think - upon the question of stockholders being citizens. This would involve the further question in all cases of proof of citizenship of individual stockholders, a problem fraught with endless difficulty, and a hardship which the law-making power never designed. We think the presumption of citizenship from the fact of incorporation within one of the states or territories may safely be made, and if necessary this might be extended to a conclusive presumption.2

McKinley v. Wheeler, 130 U. S. Dows, 94 U. S. 444, 24 L. ed. 207. 630, 32 L. ed. 1048. See Proof of Citizenship, post, next section.

2 Doe v. Waterloo M. Co., 70 Fed. Rep. 455, 17 C. C. A. 100; Muller v.

1

§ 255. Proof of citizenship, and herein of presumption as to citizenship.- Following the general doctrine of presumptions, citizenship will be presumed in all cases where not drawn squarely in question in one of the modes pointed out or permitted by statute; and this presumption is so strong that, if not conclusive, it will make out a prima facie case sufficient to support a location,2 and would be conclusive in all cases except upon application for patent or in adverse suits. In proceedings in the land office the statute provides that "proof of citizenship, under this chapter, may consist, in the case of an individual, of his own affidavit thereof; in the case of an association of persons unincorporated, of the affidavit of their authorized agent, made on his own knowledge, or upon information and belief; and in the case of a corporation organized under the laws of the United States, or of any state or territory thereof, by the filing of a copy of its charter or certificate of incorporation.' This section is followed literally in all proceedings in the land office. In the courts, however, while the affidavit is prima facie evidence of citizenship and so held, it is well settled that it is not the only way of proving citizenship, but that it may be proved in the same way as any other fact, and is a question of fact for the jury;' and it has been held that the oath attached to a certified copy of

1Jantzen v. Arizona Copper Co. (Ariz.), 20 Pac. Rep. 93; Golden Fleece G. & S. M. Co. v. Cable Cons. M. Co., 12 Nev. 312; Garfield M. & M. Co. v. Hammer, 6 Mont. 53, 8 Pac. Rep. 153; Wandering Boy Lode, 2 C. L. O. 2; Doe v. Waterloo M. Co., 70 Fed. Rep. 455, 17 C. C. A. 190.

2 Doe v. Waterloo M. Co., supra; Jantzen v. Arizona Copper Co., supra; Muller v. Dows, 94 U. S. 444. 3 See post, Part X, ch. III.

4 R. S. U. S., § 2321; Act of May 10, 1872, 17 Stat. at L., p. 94.

5 Circular of Oct. 31. 1881, secs. 78-81; Com'r Williamson to Stockton Office, Copp's Min. Lands, p. 194; Silver King M. Co., 20 L. D. 116; Rose No. 1 and 2 Lodes, 22 L. D. 83; Alta Mill Site, 8 L. D. 195.

6 Thompson v. Spray, 72 Cal. 528, 14 Pac. Rep. 182; Strickly v. Hill (Utah), 62 Pac. Rep. 893. See next succeeding section; People v. Pease, 29 N. Y. 45; Coxe v. Gulick, 10 N. J. L. 328.

7 Golden Fleece G. & S. M. Co. v. Cable Cons. M. Co., supra.

the location notice was sufficient proof of citizenship.1 This, of course, in the land office and in land-office proceedings; but ordinarily in court, proof should be made the same as of any other fact.

$256. Proof of citizenship continued-Extreme casesActs of citizenship -Trustees. It is sometimes diffi

cult or impossible to make direct proof of citizenship, for the reason that the subject is dead, or, as is often the case in mining regions, where the miners are more or less of a nomadic character, and therefore the residence of the subject is unknown and cannot, after due diligence, be ascertained, the fact as to whether he is a native or naturalized citizen, or a citizen at all, cannot be proved by direct proof nor by any record. In such cases the land office has permitted proof to be made that the subject of the inquiry has voted or registered to vote, thus performing the acts of citizenship; and the courts, recognizing the impossibility of making direct proof of citizenship in such cases, have admitted secondary evidence of citizenship, to the effect that the person whose citizenship is in question has voted or performed other acts of citizenship,3 and this not only in mining cases, but in many others. The reason of this rule is apparent and its correctness cannot be assailed.

2

Where citizenship is claimed through the parent, proof of

1 Garfield M. & M. Co. v. Hammer, 6 Mont. 53, 8 Pac. Rep. 153. Compare Frick v. Gold Hill M. Co., 8 Mont. 298, 20 Pac. Rep. 807.

2S. P. R. R. Co. v. Brown, 9 L. D. 173; Jones v. S. P. R. R. Co., 19 L. D. 270; Com'r Armstrong to Eureka (Nevada) Office, February 10, 1880, Copp's Min. Lands, 267.

3 Wood v. Aspen M. Co., 36 Fed. Rep. 25; Strickly v. Hill (Utah), 62 Pac. Rep. 893. See also Golden

Fleece M. Co. v. Cable Cons. M. Co., 12 Nev. 312; North Noonday M. Co. v. Orient M. Co., 1 Fed. Rep. 522.

46 Am. & Eng. Encyc. of Law (2d ed.), p. 26, note 1, citing (q. v.) Kreitz v. Behrenmeyer, 125 Ill. 141, 8 Am. St. Rep. 349, 17 N. E. Rep, 232; Hogan v. Kurtz, 94 U. S. 773; Boyd v. Nebraska, 143 U. S. 135; Sasportas v. De La Motta, 10 Rich. Eq. (S. C.) 38; Malle v. Fenwick, 4 Rand. (Va.) 585.

the parent's citizenship must of course be made.' But in applications for patent, and perhaps in other cases, as the law now stands, proof of the citizenship of the locators or intermediate owners becomes unnecessary, that of the applicant being the only matter in question. It is likewise a rule of the land department, and correct, we think, that where application for patent is made by a trustee the citi zenship of the beneficiary must be shown; and this rule has been extended to a trustee for creditors; but its correctness may be doubted in view of the fact that the trustee in such case holds the legal title, and his citizenship should therefore be the material question, and for the further reason that the creditors take the proceeds of the property and not its corpus.

3

In Indian territory are found provisions protecting any citizen of the Choctaw nation in the discovery of any mine. In such case it was held that citizens of the Choctaw nation are entitled to the benefit of such discovery by one in partnership with such citizen or in his employ."

1 Com'r Drummond to Central City (Colo.) Office, August 13, 1872, Copp's Min. Lands, p. 88. As to mode of making proof by secondary evidence, see People v. McNally, 59 How. Pr. (N. Y.) 500.

2 Cash Lode, 1 C. L. O. 98.

3 Circular of General Land Office, July 6, 1883, 2 L. D. 725; Capricorn

Placer, 10 L. D. 641. See also Clark, Heltman & Consaul's Digest, p. 197. 4 Commissioner to Chas. W. O'Neill, December 7, 1891; Clark et al. Digest, p. 177, § 34.

5 McCurtain v. Grady (Ind. Ter. App.), 38 S. W. Rep. 65. 6 Ibid.

CHAPTER III.

LOCATION BY ALIENS-STATUS AND RESULT OF.

§ 259. Preliminary observations - Power of congress over territories – Alien land laws.

260. Effect of location by alien - Earlier decisions held it void - Later

to contrary.

261. The contrary view and reasoning thereon.

262. Other dicta considered-Dictum defined - Citizenship early held as a condition.

263. Modification of early decisions - How defect in citizenship may be cured.

$259. Preliminary observations - Power of congress over territories- Alien land laws. We have already noticed in some of the preceding sections of this work something with reference to the sovereign power of the congress of the United States over the territories and property belonging to the United States. This power is everywhere recognized and has been repeatedly declared by the court,2 and it is therefore unnecessary to consider it at further length here.

5

In some of the states, notably Idaho, Nevada and Oregon, there are statutory or constitutional provisions forbidding Chinese aliens from acquiring property in those states; but so far as we have been able to ascertain, there are no other statutory provisions except in some of the states, not necessary to mention here, which in casting descent upon aliens require them to appear and claim the estate within a specified time.

The objection to alien ownership of land, however, be

1 Ante, § 112.

3 Idaho Stats. 1890, 1891, p. 118;

2 National Bank v. Yankton, 101 Act of March 2, 1891, sec. 1.

U. S. 129 and cases cited.

4 R. S. of Nevada, 1900, § 2725.

5 Const. of Oregon, art. I, sec. 31.