CHAPTER II. OF THE EARLY CALIFORNIA STATUTES. § 63. Preliminary observations. 64. The operation of the foreign miners' tax. 65. The foreign miners' tax-All foreigners considered miners. 66. A more discriminating step-Mongolians only intended-Miners by legislation. 67. The mask thrown off-Chinese immigration squarely legislated against. 68. The rule of evidence-The customs of the bar or diggings. 69. Other examples of statutes recognizing customs. § 63. Preliminary observations.-Many of the California statutes, during the first fourteen years of its existence, were at once striking, curious and unique, both in their origi nality and the end sought to be gained. For the main part they assumed to be the means of raising revenue, but in reality were shafts aimed at Chinese immigration, and many of them threw off the mask and delivered their force squarely at the problem of Chinese exclusion. By other laws the state sought to protect the miners in the possession of their mining claims and to require good faith in their holding and operation. Others sought to engraft ludicrous doctrines of evidence upon the statute books, while still others were well calculated to foster the mining industry to the extent of the power of the state to do so. 64. The operation of the foreign miners' tax.- The legislature of California and the judiciary of the state seem to have had a reasonably fair appreciation of the lack of power in the state to deal directly with the primary disposal of the soil which belonged to the United States, inasmuch as the only land not falling within the dominion of the federal government was that included within Mexican grants and that which had been granted to the state for educational and other purposes. But the state was confronted with a serious problem. There was no law to prohibit Oriental foreigners, and all others coming to the state, from acquiring, by location, mining claims to the same extent and thereby acquiring the same rights which could be secured by a citizen of the United States. This was a condition to which American manhood was loth to submit; how to correct the mischief was a serious question. They knew of their sovereign power to collect revenue by taxation, and they carried the taxing power to the utmost limits; thus,— § 65. The foreign miners' tax-All foreigners considered miners. The first attempt in this direction was a foreign miner's tax. This law imposed a tax of twenty dollars per month on all foreigners engaged in mining. This was repealed, and later3 an attempt was made to collect revenue from foreign miners under an act the title of which was: "An act to protect foreign miners." And the ludicrous feature of it was that the miner, so called (and the legislature seemed to think he was a miner if he was a foreigner), could not prosecute or defend any action in the state unless he had paid the tax. This monstrous doctrine did not long remain upon the statute book and was repealed by the act of March 30, 1853.5 It seems to have been too frivolous to engage the attention of the courts, while the first act was upheld by the supreme court as constitutional and a legitimate exercise of the taxing power. This act of 1853 was thus commented upon by Mr. Gregory Yale: "This is the longest act of the series upon this subject, and is directed chiefly to an effort to get the money into the treasury after it is collected from the foreigner, Act April 13, 1850; Yale, Mines, p. 34. See also People v. Naglee, 1 Cal. 232. 2 Id. Session Acts 1852, p. 82; Yale, Mines and Water Rights, p. 35. 4 See last preceding note. See also People v. Coleman, 4 Cal. 46. 5 Yale, Mining Claims and Water Rights, p. 35. "People v. Naglee, supra. which seemed to be the subject of greatest embarrassment. The only punishment directed against the foreigner for nonpayment is the sale of his property upon an hour's notice, which must be considered mild and satisfactory, as the same thing is done to all American citizens for the nonpayment of a poll tax. By the seventh section of this act of 1853 any person or company hiring foreigners to work in the mines is made liable for the amount of the license for each person so employed." The collection of this tax in this manner was upheld by the supreme court.2 § 66. A more discriminating step- Mongolians only intended Miners by legislation.-The early statutes, as already pointed out, aimed their shafts against foreigners generally, the striking feature of all those statutes being the attempt on the part of the legislature to exclude foreigners all by name, the Chinese especially by intendment, from engaging in the business of mining; also from a residence in the country. Later there was a slight discrimination in this particular to the extent that a distinction was made between that class of foreigners who might, by reason of eligibility, become citizens of the United States, and the others which meant Mongolians who were ineligible to become citizens. Thus, in 1857 there were several amendments to the act of 1853, the first of which was an amendment exempting from the operation of the tax persons who had declared their intention to become citizens of the United States, and later, by an act of the legislature, that non-eligible foreigners, that is, persons ineligible to become citizens of the United States, residing within a mining district, "shall be considered as miners, under the provisions. of this act." And by another act' it was provided that 1 Yale, Mining Claims and Water Rights, p. 35. 2 Meyer v. Larkin, 3 Cal. 403. See also Ex parte Ah Pong, 19 Cal. 106. 3 Yale, Mining Claims and Water Rights, pp. 35-37. Id.; Act April 30, 1855. 5 Yale, Mining Claims and Water Rights, pp. 36, 37. See also acts of March, 1857, and April 7, 1857. 6 Act of 1861; Yale, Mining Claims and Water Rights, pp. 37, 38, and cases cited. 7 Id. no person who is not a citizen of the United States, or who has not previously declared his intention to become such (California Indians excepted), "shall be allowed to take gold from the mines of this state, or to hold a mining claim therein" without a license, as provided in the act. But the supreme court wisely said that the legislature could not make a Chinaman a miner unless he was one in fact.2 8 67. The mask thrown off- Chinese immigration squarely legislated against.-It will thus be seen that, while the legislation was ostensibly enacted to collect revenue, the real purpose was to exclude Chinese from operating mining claims. Indeed, the statute of 1852,3 above mentioned, had for its preamble a recital of the circumstance of the prejudice existing in the mining districts in consequence of foreigners being permitted to labor in the mines and to work placer and quartz diggings in competition with American labor. By a later act the legislature declared, in the title of the act, its purpose to be to protect white labor against competition with Chinese coolie labor, and to discourage the immigration of Chinese into the state. This act, however, by the means employed, followed the same. line as the others, exercising the only power the state possessed that of taxation. By the first section a tax was levied, called a police tax, upon every person of the Mongolian race over eighteen years of age, male and female, residing in the state, except those who paid the foreign miners' tax and those exclusively engaged in the production of sugar, rice, coffee and tea, of which there were none in the state. Rigid provision was made for the collection of this tax, the validity of which was denied by the supreme court in an exhaustive opinion, but wherein the Naglee case 1 Yale, Mining Claims and Water Rights, p. 37. 2 Ex parte Ah Pong, 19 Cal. 106. 3 Act May 4, 1852, Sess. Laws, p. 424; Yale, Mining Claims and Water Rights, p. 34. 4 Act April 26, 1862; Yale, Mining Claims and Water Rights, p. 39. 5 Id.; Sess. Laws 1862, p. 462. See post, § 82, for further discussion of this subject. was not referred to, the court basing its conclusions upon the lack of power in a state to infringe upon the authority of the federal power in respect of its intercourse with foreign nations.' § 68. The rule of evidence - The customs of the bar or diggings. Not all the early statutes have been enumerated in the foregoing, but only enough to show the early controlling policy to exclude foreigners, especially Chinese, from operating the mines. There were other provisions not necessary to notice for the purposes of this work. Strange to say, out of this chaos of incongruous matter, one wholesome rule of evidence was evolved by statute; it was like shifting a grain of wheat from a load of chaff. This is a statutory rule of evidence, now existing in nearly all the precious metal-bearing states, by which the customs or regulations of the bar or diggings are made competent evidence. The California statute was enacted in 1851, and reads as follows: "In actions respecting mining claims, proof must be admitted of the customs, usages or regulations established and in force at the bar or diggings embracing such claims; and such customs, usages or regulations, when not in conflict with the laws of this state, must govern the decision of the action." This statute is generally copied verbatim or substantially into the codes of the mining states and territories, and the evidence is competent and controlling.3 § 69. Other examples of statutes recognizing customs. Thus, while the California statute only recognized quartz or lode claims by implication,' the other states have 1 Lin Sing v. Washburn, 20 Cal. 534. See also People v. Raymond, 34 Cal. 492, and cases on p. 498. See the various statutes in the appendix. See also Cal. Prac. Act 1851, 621; Cal. Code Civ. Proc., § 748. Hicks v. Bell, 3 Cal. 219; Dutch Flat Water Co. v. Mooney, 12 Cal. 534; Morton v. Salambo C. M. Co., 26 Cal. 527; Myers v. Spooner, 55 Cal. 257; Riborado v. Quang Pang M. Co., 2 Idaho, 136, 6 Pac. Rep. 125; Boggs v. Merced M. Co., 14 Cal. 279, 378. 4 Cal. Code Civil Proc., § 748; Yale, Mining Claims and Water Rights, pp. 59, 60. |