came very pronounced during the decade commencing with the year 1880, resulting in the enactment by congress of legislation forbidding it, the first two sections of which read as follows:

"Sec. 1. That it shall be unlawful for any person or persons not citizens of the United States, or who have not lawfully declared their intention to become such citizens, or for any corporation not created by or under the laws of the United States or of some state or territory of the United States, to hereafter acquire, hold or own real estate so hereafter acquired, or any interest therein, in any of the territories of the United States or in the District of Columbia, except such as may be acquired by inheritance or in good faith in the ordinary course of justice in the collection of debts heretofore created; provided, that the prohibition of this section shall not apply to cases in which the right to hold or dispose of lands in the United States is secured by existing treaties to the citizens or subjects of foreign countries, which rights, so far as they may exist by force of any such treaty, shall continue to exist so long as such treaties are in force and no longer.

"Sec. 2. That no corporation or association, more than twenty per centum of the stock of which is or may be owned. by any person or persons, corporation or corporations, association or associations, not citizens of the United States, shall hereafter acquire or hold or own any real estate hereafter acquired in any of the territories of the United States. or of the District of Columbia." 1

It is perhaps needless to remark that this applies only to the territories; as to whether it applies to Alaska there has been no decision of any court to our knowledge; but no good reason occurs to us, notwithstanding an able argument of Mr. Lindley,' why it should not be so extended. Additional weight is due to this observation at the present time because Alaska has been clothed with a territorial form of government.

1 Act of March 3, 1887, 24 Stat. at L. 476; 1 Supp. R. S. U. S., p. 556.

2 Lindl. on Mines, sec. 243, pp. 298, 299, 300.

§ 260. Effect of location by alien- Early decisions held it void-Later to contrary.- By some of the early decisions it was seriously questioned what would be the result if ownership of a mining claim was found, either by location, purchase or descent, in an alien, some of them going so far as to say that the ownership was void as to such alien.' Thus in an early case in Nevada the subject was carefully and ably reviewed, and in order to demonstrate the view of the court at that time, we will reproduce excerpts from that decision, interspersed with our own comments thereon. In that case there was doubt of McDonald's citizenship, but that fact became immaterial. The court says: "As to the first point, it is clear that an alien who has never declared his intention to become a citizen is not a qualified locator of mining ground, and he cannot hold a mining claim, either by actual possession or location, against one who connects himself with the government by compliance with the mining law. This much is certain, but it is not so certain that proof of citizenship must be made in order to show a valid location. It may be that the locator, in the absence of any proof, will be presumed to be a citizen."

While, for some purposes, this is true, we think that the proof must be made whenever and wherever the fact is properly called into question, it being a special privilege and a statutory one, and all who claim it must bring themselves squarely within the definition of the statute. Further on in this case, the citizenship of Leonard becoming a material question, he testified on cross-examination that he was not a citizen and had never declared his intention to become such, and the court thereupon decided that the location of the Leonard claim was wholly void, and excluded all evidence in regard to it. The court says this ruling was erro

Tibbits v. Ah Tong, 4 Mont. 536, 2 Pac. Rep. 759. Compare Territory v. Lee, 2 Mont. 124; Chapman V. Toy Long, 4 Sawy. 28, 5 Fed. Cas. 497, No. 2,610. See also Smith

v. Robinson, 1 Mont. 14; Belk v Meagher, 3 Mont. 79.

2 Golden Fleece M. Co. v. Cable Cons. M. Co., 12 Nev. 312.

neous; he had parted with his interest in the premises, and his admissions were not binding on his grantees. The court proceeds: "He said that he was born in New York; that he was taken at a tender age to Ireland, and returned to this country a few years ago. He had been advised that he was not a citizen, and, acting on this advice, had made a declaration . . of his intention to become a citizen. On this testimony it should have been found that he was a citizen by nativity. But besides this evidence tending to prove that Leonard was a citizen by nativity, besides his declaration of intention, . . . it was proved and admitted that two of Leonard's co-locators (grantors of defendant) were citizens at the date of location. .. Under the law a single qualified locator may take up fifteen hundred feet of a vein. An association of a dozen or a hundred locators can take up no more. Here were five locators claiming in common no more than any one of them might have taken. By figures placed opposite their respective names, as signed to the notice of location, they indicated the number of undivided feet that each was to own. Suppose, then, Leonard was not capable of making a location. How does that fact render the whole claim void? It is said that Leonard's claim was a fraud upon the law; but admitting that, there is not a particle of evidence tending to show that his co-locators were aware of his disability, or that they were colluding with him in his attempted fraud. They certainly were not guilty, and it would be a harsh rule to make them suffer for the guilt of Leonard. . The law in such cases will be sufficiently vindicated by holding that the alien's claim is void. It is not necessary to decide what would become of his claim. It might be open to location by a stranger, or it might have to be distributed among the qualified owners. Counsel for the respondent think it would have to be distributed among the qualified owners unless the whole claim is held void, and assuming that there is no rule of law by which such distribution could be made, they argue that the only alternative

is to declare the claims of all the locators void. We think, however, that there would be no greater difficulty in making the distribution, if it had to be made, than there would be in the case provided for in the mining law where one of the several co-owners refuses to contribute his share of the work necessary to preserve the claim."

The court is correct upon this principle: the void name might be treated as a fictitious one, and, being unnecessary to accomplish anything, treated as surplusage; and under the familiar rule that surplusage will not vitiate, the notice be held sufficient without it. Besides, the usual form of this notice is not to specify in the body the quantity taken by each; and the notice itself is complete without the names, which are only for the purpose of indicating who claims it; and if a disqualified person claims it, it would at worst be null pro tanto only. But the trend of later decisions is to refuse to go to this extreme in all cases.

§ 261. The contrary view and reasoning thereon.- In a case in the circuit court of appeals the facts were these: Wood, Fisk and Kirkpatrick discovered and located the Emma mine; Wood died intestate, leaving certain heirs in Canada; Fisk, the surviving partner, advertised him out by a notice which was held insufficient; Wheeler bought out the heirs after buying Fisk's interest, without informing them of the value of the mine; the citizenship of Wood became an important question in the case upon an action filed by his widow to set aside the deed. Judge Shiras in the opinion uses this language: "It would certainly be inequitable to rule that if Wood were living, his co-locators, Fisk and Kirkpatrick, or any one claiming under them, could deprive him of his interest in the mine merely because he was an alien. To hold that, after Wood had expended time, labor and money in prospecting for and locating the mine jointly with them, they could oust him therefrom, or refuse him the right of participating in the proceeds thereof, would be nothing short of legalized robbery. His alienage, if it existed

when the mine was located, would not have the effect of transferring his interest to his co-locators. The United States. might, by proper proceedings, have deprived him of the benefits of the location made by him, but Fisk and Kirkpatrick could not avail themselves of the right of escheat belonging to the government. Thus, in Craig v. Leslie it is said: 'Now what is the situation of an alien? He can not only take an interest in lands, but a freehold interest in the land itself, and may hold it against all the world but the king, and even against him until office found, and he is not accountable for the rents and profits previously received.""

The difficulty with this reasoning is that it is giving practical and beneficial effect to a nullification of the statute. The locators when they make a location have the statute staring them in the face, and to say that they can do indirectly what they are forbidden to do directly, and by spending money acquire a right which they cannot otherwise secure, is equivalent to saying that the question of aliens locating or purchasing land in defiance of the statute shall only be measured or limited by the amount of money spent. It may be that the question cannot be properly raised in all cases; but in a proper case, such as upon application for patent, it can be raised; in such case it would not do to say he could save the claim from loss by the expenditure of money. In such case, unless the estate by transfer has come into hands competent to patent it, it must go to those who could patent it, and we see no objection to it going to the qualified co-owners who could patent it.

In the same opinion Judge Shiras, after discussing the several provisions of the statute and the authorities authorizing aliens to succeed to land, says: "It thus appears that if Wood were living and had brought a proceeding for the enforcement of his title and right to an undivided one-third interest in the Emma mine against the present defendants, they could not object thereto, either under the laws of the United States or the state of Colorado, on the ground that he was an alien, that being a privilege reserved to the sovereign