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Knowles, speaking for the circuit court of appeals in the ninth circuit, is of the opinion that the inference to be drawn from this decision, although not so stated, is that only corporations whose stockholders are citizens can locate mining claims.1 We do not think that the supreme court intended to lay particular stress upon the word "all." If it did, it went entirely beyond the exigencies of the case under consideration. There was nothing in the facts requiring such a ruling. It is probable that the expression was used unadvisedly, and not with the intention of establishing a fixed rule that a corporation organized under the laws of a state can not lawfully acquire or hold unpatented mining claims if one of its stockholders is an alien. In the territories, under the alien act of March 3, 1887,2 aliens were prohibited from acquiring real estate; yet domestic corporations might freely acquire such lands, and aliens were permitted to own and hold twenty per cent of the stock of such domestic corporations. The act was subsequently superseded by an act which contained no provision with reference to corporations.3 Is it to be presumed in the states wherein the laws make no discrimination between aliens and citizens, with regard to the acquisition and enjoyment of landed estates, that the government should insist that none of the stock of a domestic corporation holding or locating an unpatented mining claim shall be held by an alien, under penalty of being refused a title by patent, if sought, or of suffering escheat after patent, should the government see fit to enforce it? Judge Knowles, in the case above referred to, gives a logical solution of the question. Where a corporation is created by the laws of a state, the

Doe v. Waterloo M. Co., 70 Fed. 455.

224 Stats. at Large, p. 477.

329 Stats. at Large, p. 618.

'Doe v. Waterloo M. Co., 70 Fed. 455.

legal presumption is, that its members are citizens of the same state.1

A suit may be brought in the federal courts by or against a corporation; but in such case it is regarded as a suit brought by or against the stockholders of a corporation, and for the purposes of jurisdiction it is conclusively presumed that all the stockholders are citizens of the state which by its laws created the corporation.2 In the language of Judge Knowles,—

"Congress was familiar with this rule, and, it seems "probable, intended to establish a similar rule under "the mineral land act of 1872.”

This view is strengthened by a consideration of the section of the Revised Statutes regulating the proof of citizenship in proceedings under the mining laws.

"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 unin

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corporated, 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 their charter or "certificate of incorporation."

Under this section, the land department holds that a properly authenticated certificate of incorporation filed by a corporation that is applying for a mineral patent is sufficient proof of citizenship.*

It is not within the power of the land department to determine whether such corporation is authorized under its charter to acquire patent for mineral lands.

Ohio R. R. Co. v. Wheeler, 1 Black, 286

Muller v. Dows, 94 U. S. 444.

3 Rev. Stats., § 2321.

Rose Lode Claim, 22 L. D. 83; Silver King M. Co., 20 L. D. 116; Gen. Min. Circ., par. 76.

Rose Lode Claim,

(See appendix.)

22 L. D. 83.

Where a corporation is incompetent by its charter to take a title to real estate, a conveyance to it is not void, but only voidable, and the sovereign (i. e. the state to which it owes its existence) alone can object. It is valid until assailed in a direct proceeding for that purpose.1

The supreme court of Montana has held that the fact that an alien owns stock in a corporation which has acquired title to mining claims does not disturb the title of the corporation to such claims.2

If it be true that all of the stockholders of a domestic corporation seeking to locate public mineral lands must be citizens, as may be inferred from the ruling of the supreme court of the United States, then a properly authenticated certificate of such corporation is conclusive evidence of such citizenship.3

We think we are justified in deducing the rule that within the states domestic corporations may locate and hold mining claims, and that an inquiry as to the citizenship of stockholders is not permitted, for the simple reason that such citizenship is conclusively presumed. As to the status of such corporations in the territories, we will have occasion to investigate it in a subsequent section.

The supreme court of the United States has suggested the question as to the extent of ground which may be 10cated by a corporation; that is, whether it will be treated as one person, and is entitled to locate only to the extent permitted to a single individual, or otherwise.*

We do not consider that, in the case of lode claims, the situation presents any embarrassment, as no one

'National Bank v. Matthews, 98 U. S. 621, 628.

"Princeton M. Co. v. First Nat. Bank, 7 Mont. 530, 19 Pac. 210.

Doe v. Waterloo M. Co., 70 Fed. 455; Ohio R. R. v. Wheeler, 1 Black, 286; Muller v. Dows, 94 U. S. 444.

McKinley v. Wheeler, 130 U. S. 630, 9 Sup. Ct. Rep. 638.

person or association of persons can locate by one location in excess of the statutory limit of fifteen hundred by six hundred feet of surface. As to placers, it might be considered as an association of persons, which it is in one sense, and so be entitled to locate as such one hundred and sixty acres, if it had eight stockholders, and they usually have many more. We think, however, that the safer rule is to consider the corporation as a single individual and entitled to locate but twenty acres of placer ground. The "association" referred to in the statute is evidently a number of individual locators, uniting for the purpose of making a joint location, and not an incorporated company.

? 227. Citizenship, how proved.-Citizenship may be proved like any other fact. It is a question for the jury.2

3

In proceedings before the land department, and in actions brought in the local courts under the sanction of the Revised Statutes, to determine the right of possession, the judgment in such actions being advisory to the land department, the law provides that proof of citizenship may consist, in the case of an individual, of his own affidavit thereof; in the case of an association of persons unincorporated, by 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 certified copy of their charter or certificate of incorporation. However, proof

1 Thompson v. Spray, 72 Cal. 528, 14 Pac. 182; Strickley v. Hill, 22 Utah, 257, 83 Am. St. Rep. 786, 62 Pac. 893.

• Golden Fleece M. Co. v. Cable Cons., 12 Nev. 313.

Rev. Stats., § 2326.

4 Id., § 2321; North Noonday M. Co. v. Orient M. Co., 6 Saw. 503, 11 Fed. 125; Clark's Pocket Quartz Mine, 27 L. D. 351.

by affidavit is not the only method of establishing citizenship.1 It may be established by any other competent legal evidence. In fact, in the case of naturalized citizens, some of the courts have insisted that exemplifications of the record of naturalization should be produced, or its loss accounted for, and the foundation laid for the introduction of secondary evidence. This is not the rule in the land department, however, which is governed entirely by the provisions of the Revised Statutes. Neither is it the rule sanctioned by all the courts.4

In all actions between individuals disconnected with proceedings to obtain title under the federal mining laws, if we admit that the question of citizenship may in any such action be properly the subject of inquiry, a proposition we are not prepared to concede,—the rules of evidence prescribed by the several states would control. In such cases, we do not understand that an ex parte affidavit would be admissible. The opposing party could not be deprived of the right to cross-examine the witness by whose oath the fact of citizenship is sought to be proved.

It may be here noted, although we shall have occasion to again refer to the subject, that in proceedings before the land department upon applications for patents under the mining laws, proof of citizenship is not required of

1 Thompson v. Spray, 72 Cal. 528, 14 Pac. 182; Boyd v. Nebraska, 143 U. S. 180, 12 Sup. Ct. Rep. 375; Providence Gold M. Co. v. Burke (Ariz.), 57 Pac. 641; Strickley v. Hill, 22 Utah, 257, 83 Am. St. Rep. 786, 62 Pac. 893.

Wood v. Aspen M. Co., 36 Fed. 25.

3 In re John Mooney, 3 Copp's L. O. 68; Circ. Instructions, Aug. 2, 1876, Id. 68; Mining Regulations, July 26, 1901, par. 68. (See appendix.)

Strickley v. Hill, 22 Utah, 257, 83 Am. St. Rep. 786, 62 Pac. 893. Buckley v. Fox (Idaho), 67 Pac. 659; McKinley Creek M. Co. v. Alaska United M. Co., 183 U. S. 563, 22 Sup. Ct. Rep. 84.

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