The claimant bases his present motion upon departmental decision of March 16, 1909 (unreported), in the case of D. N. Clark, Assignee of Cornelius B. Brackett. In his argument in support of the motion. he states:

It is respectfully submitted that this case is legally identical with the case of Cornelius B. Brackett. In that case, as in this, the certificate issued upon defective military service. In the Brackett case the service was for only eighty-eight days, while in this case, under the Hair decision (32 L. D., 44), there was no service. It is submitted that there can be no distinction between this case and the Brackett case so far as the service is concerned. One defective service is just as defective as another in the eyes of the law. As the Brackett case was defective, and the Department has decided that notwithstanding such defect the certificate was validated by the act of August 18, 1894, it follows, in legal reasoning, that the same act validated this certificate upon defective service.

There can be no question that the certificate issued to Grier was invalid in its inception and wrongfully issued, inasmuch as the military service upon which it was based was not such service as is recognized to support a claim for additional right under section 2306, R. S. (See case of Edgar A. Coffin, 32 L. D., 44, and cases therein cited.) It is insisted, however, that said certificate is validated by the act of August 18, 1894 (28 Stat., 397-8). Said act provides:

That all soldiers' additional homestead certificates heretofore issued under the rules and regulations of the General Land Office under section twentythree hundred and six of the Revised Statutes of the United States, or in pursuance of the decisions or instructions of the Secretary of the Interior, of date March tenth, eighteen hundred and seventy-seven, or any subsequent decisions or instructions of the Secretary of the Interior or the Commissioner of the General Land Office, shall be, and are hereby, declared to be valid, notwithstanding any attempted sale or transfer thereof; and where such certificates have been or may hereafter be sold or transferred, such sale or transfer shall not be regarded as invalidating the right, but the same shall be good and valid in the hands of bona fide purchasers for value; and all entries heretofore or hereafter made with such certificates by such purchasers shall be approved, and patent shall issue in the name of the assignees.

In the Brackett case above referred to, the soldier performed only eighty-eight days' military service, and therefore was not entitled to an additional homestead right based thereon, under section 2306, R. S., but as a certificate had been issued, it was held that the same was validated by the act of 1894, supra, and that therefore the right should be recertified to the assignee, Clark. The original certificate issued to Brackett November 28, 1877, and on October 25, 1907, he assigned his right to Clark, and furnished evidence of the loss of the original certificate. It was shown that no other assignment had been made of the certificate or of the original right.

Neither in this case, nor in the Brackett case, was any assignment made prior to the loss or destruction of the certificate. In this case the certificate was destroyed prior to the date of the act of August

18, 1894, while in the Brackett case the certificate was lost prior to said date and its whereabouts unknown.

However, the Department is of the opinion that the act of August 18, 1894, supra, did not validate certificates in the hands of the soldier, but only in the hands of a bona fide purchaser. The object and purpose of the act is fully set forth in the case of John M. Rankin (21 L. D., 404), wherein it was stated that "with full information on this subject, Congress validated all certificates which had been issued and found in the hands of bona fide purchasers, and validated all such transfers." It was further stated: " and he is a bona fide purchaser who bought without notice of illegality of the certificate at its inception, or of its invalidity for any other reason."

There could have been no object in declaring such certificates valid as long as they remained in the hands of the person (soldier) to whom they issued. It was only to protect a purchaser that they were validated "in the hands of bona fide purchasers for value." If, therefore, a certificate which was invalid in its inception, because not based upon proper military service, or for any other reason, is destroyed prior to transfer, the act of 1894, supra, is inoperative to validate it. And such certificate having been destroyed could not "be sold or transferred," and could not be " in the hands of " a purchaser.

66

In the case under consideration, the certificate never was in the hands of a bona fide purchaser. It was not, therefore, validated by the act of 1894, and the alleged right should not be recertified, nor any rights whatever recognized, under section 2306, R. S., based upon the said military service. In the case of Henry N. Copp (23 L. D., 123) it was held (syllabus):

In view of the provisions of the act of August 18, 1894, validating outstanding soldiers' additional certificates in the hands of bona fide purchasers, a duplicate certificate may issue to such a purchaser in the name of the soldier on due showing of the loss of the original and the further fact that it has not been located.

In that case, however, it appears that the certificate was valid, and, furthermore, it had been transferred prior to its loss. Therefore, said decision is not in conflict with the ruling herein made. In fact, the motion is based mainly upon the decision in the case of Brackett. It is not believed that the Brackett decision was correct in so far as it held that the certificate, under the circumstances therein shown, was validated by the act of 1894. Said decision will not, therefore, be followed.

The motion is accordingly denied.

RIGHT OF WAY-SURVEY BY DISQUALIFIED CORPORATION-ACT OF MARCH 3, 1875.

COCHISE ELECTRIC R. R. Co. v. ARIZONA SOUTHERN Co.

Where the laws of a State or Territory declare that every act done by a foreign corporation within said State or Territory prior to filing its articles of incorporation therein as provided by law shall be null and void, such corporation can acquire no rights within that jurisdiction under the act of March 3, 1875, by the survey of a right of way prior to the filing of its articles of incorporation in compliance with such State or Territorial laws. First Assistant Secretary Pierce to the Commissioner of the General (O.L.) Land Office, July 15, 1909. (G. B. G.)

This is the appeal of the Arizona Southern Company from your office decision of December 11, 1908, rejecting its application under the act of March 3, 1875 (18 Stat., 482), for conflict with the application of the Cochise Electric Railroad Company under the same act, for railroad right of way from a point in unsurveyed section 35, T. 23 S., R. 24 E., to a point on the west line of section 12, T. 24 S., R. 27 E., a distance of 19.418 miles, in Phoenix, Cochise county, land district, Arizona.

It appears that the appellant, the Arizona Southern Company, was organized under the laws of the State of Minnesota, and that in accordance with such laws it filed its articles of incorporation in the office of the Secretary of State at St. Paul, April 29, 1908, and on May 14, 1908, filed such articles of incorporation in the office of the auditor for the Territory of Arizona.

The appellee, the Cochise Electric Railroad Company, was organized under the laws of the Territory of Arizona and filed its articles of incorporation in the office of the auditor for said Territory, April 16, 1908.

The Arizona Southern Company's survey of the line in question was begun April 17, 1908, and finished May 2, 1908. It was therefore made before the filing of that company's articles of incorporation, as required of a foreign corporation before it is authorized to do business in said Territory.

Section 909 of the Revised Statutes of the Territory of Arizona provides, among other things, that before a foreign corporation shall carry on any business in said Territory it shall file a certified and duly authorized copy of its articles of incorporation or charter with the secretary of the Territory.

Section 911 of such statutes is as follows:

No corporation such as is mentioned in section 149 [909] of this title, shall transact any business whatsoever in this Territory until and unless it shall have first filed its articles of incorporation and appointment of an agent as required in the two preceding sections, and every act done by it prior to the filing thereof shall be utterly void.

In view of this statute, every act done by this company prior to May 14, 1908, was and is utterly void. Its survey was therefore as though it had never been made. See Washington and Idaho Railroad Co. v. Coeur d'Alene Railway Co. (160 U. S., 77).

If it be admitted, as argued upon appeal, that the law had been complied with before the day upon which the Cochise Electric Railroad Company adopted the survey of its line of road, still it can not well be said that this circumstance furnishes any substantial ground for holding that the Arizona Southern Company has the better right. It is well settled that the legislative power of a State or Territory has the right to prescribe the conditions upon which a foreign corporation may engage in business, other than interstate commerce, within that jurisdiction, and inasmuch as at the time the right of the Cochise Electric Railroad Company, by virtue of its incorporation and its survey, attached to the line in question, the Arizona Southern Company had not complied with the laws of the Territory, it had, so far as that jurisdiction is concerned, no corporate existence. The decision of the Supreme Court in the case of Washington and Idaho Railroad Company v. Coeur d'Alene Railway Company, supra, is, therefore, peculiarly apt.

The decision appealed from is affirmed.

HUGH STEPHENSON OR BRAZITO GRANT.

Motion for review of departmental decision of March 29, 1909, 37 L. D., 509, denied by First Assistant Secretary Pierce, July 15, 1909.

SANTA TERESA GRANT.

Motion for review of departmental decision of March 9, 1909, 37 L. D., 480, denied by First Assistant Secretary Pierce, July 16, 1909.

TIMBER CUTTING-MINERAL LAND-CALIFORNIA-ACT OF JUNE 3,

THE COMMISSIONER OF THE

1878. INSTRUCTIONS.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,

Washington, D. C., July 17, 1909.

GENERAL LAND OFFICE.

SIR: Under date of March 31, 1909, you asked the instructions of this Department concerning the scope of an act relating to the re

moval of timber from mineralized public lands, viz., the act of June 3, 1878 (20 Stat., 88). The practical question is: Does said act relate to such lands situate in the State of California, or is it confined to the States and Territories expressly enumerated in the act itself— Colorado, Nevada, New Mexico, Arizona, Utah, Wyoming, Idaho, Montana, and the Dakotas?

Departmental construction heretofore has uniformly been to the effect that the expression " and all other mineral districts of the United States," following the enumeration of States and Territories in said act, is sufficiently comprehensive to include the States of California, Oregon and Washington. (Instructions, 29 L. D., 349; 24 L. D., 167.)

This construction is more favorable to the individual than that which has obtained in the United States courts for California and Oregon. (United States. Smith, 11 Fed. Rep., 487; United States v. Benjamin, 21 Fed. Rep., 285.) In these cases the courts held that said act does not apply to Oregon (United States v. Smith) nor to California (United States v. Benjamin). The courts were persuaded that another act of the same date (20 Stat., 89) defined the rights of residents of the Pacific coast states in the removal of timber from the public domain.

Both cases were considered by the Department in its previous instructions, the last (29 L. D., 349) being under date of December 14, 1899.

Since this date, however, a Federal court has again had occasion to construe the act. In United States. English et al. (107 Fed. Rep., 867) it was held, in effect, that "other mineral districts of the United States," does not enlarge the field of operation of the act, because Oregon (and the same is true of Washington and California) is not "a mineral district."

The line of demarcation thus established, in considering the territorial operation of either act, was again observed in United States v. Price Trading Co. (109 Fed. Rep., 239).

While the subject was not immediately considered by the Supreme Court in Northern Pacific Ry. Co. v. Lewis (162 U. S., 366), yet the language of Mr. Justice Peckham may not be without significance. In speaking of the act he said (p. 376):

The government, however, chose to make some exceptions in favor of certain classes of people to whom was given the right to cut timber for certain purposes: 1st. They were to be citizens of the United States. 2nd. Bona fide residents of the State or Territory mentioned in the act.

The construction by the courts, whenever the matter has been presented, is more restrictive than that given by the Department. The effect is a paradox. The Department, holding to a more liberal construction recognizing in residents of California, Oregon and Wash