Territory of Montana v. Lee

2 Mont. 124

• Court: Montana Supreme Court
• Decided: January 15, 1874
• Status: Published

Opinions

Wade, C. J.

This is an action brought under and by virtue of an act of the Territorial legislature, entitled “ An act to provide for the forfeiture to the Territory of placer mines held by aliens,” Cod. Sts. 593. The act substantially provides that no alien shall be allowed to acquire any title, interest, or possessory or other right to any placer mine or claim, or to the profits or proceeds thereof in this Territory, and that whenever it shall be made to appear to any district attorney that any alien is in possession, occupation, use or enjoyment of any placer mine or claim, within the district of such district attorney, or that any alien claims any right, title or interest in or to any such mine or claim, hy preemption, location, acquisition, or by gift, grant, bargain, sale, conveyance, transfer, assignment, lease or mortgage, it shall be the special duty of such district attorney, forthwith, to institute in the district court of the proper county an action in the name of the Territory, against such placer mine or claim for the forfeiture thereof to the Territory. And the act further provides, that if upon the trial it shall be made to appear that the mine or claim in question is occupied, possessed or claimed by an alien, or that any right or interest therein has been sought to be conveyed to or vested in such alien, or in any one for his use or benefit, the court shall thereupon render a judgment of forfeiture to the Territory of such mine or claim, of whatever right, title or interest the alien would have acquired had he been a citizen; and upon this judgment there shall be an execution and sale, for the benefit of the Territory, and the proceeds of such sale shall be paid into the Territorial treasury for the use of the Territory.

The complaint in this case sets forth the necessary averments under this statute, alleging that the defendant, Fauk Lee, is an alien, and a subject of the Chinese Empire, and that he purchased of one Stevens, and by virtue of such purchase now holds, claims, occupies, and is possessed of three thousand feet of placer mining ground in the complaint described. There was a demurrer to the complaint, which was overruled, and judgment was rendered for the plaintiff, that the mining ground described in the complaint be forfeited to the Territory, and sold in pursuance of the provisions of the act aforesaid. From this judgment defendant appeals to this court.

By this appeal we are called upon to determine the validity of the statute, under and in pursuance of which the action was brought and prosecuted to judgment, and in making this investigation it will be convenient to inquire: first, wbat were tbe rights and disabilities of aliens in tbis Territory prior to tbe enactment of tbis statute; second, as to tbe power of tbe Territorial legislature to enact a law of tbis character ; and third, is tbe act in question in harmony with the Organic Act of tbe Territory ?

1. As to tbe right, of an alien to purchase and bold real property, it may be stated as a general principle, deducible from tbe authorities, that alienage is a disability that can only be taken advantage of by tbe government, or tbe sovereign power in a State, and that tbe real property purchased by an alien does not vest in tbe government until office found, that is, until a proceeding before a jury, to inquire as to tbe question of alienage, and, until such inquiry by tbe government, tbe alien is seized, and may protect and defend bis property as a citizen, and may institute actions and prosecute suits under the laws for tbis purpose ; and that as to sales and transfers of real' estate, by or to aliens, they stand upon tbe same footing as sales and transfers made by citizens, subject only to tbe right of tbe sovereign power of tbe government to institute proceedings to cause a forfeiture.

Tbis proposition is sustained in 2 Blackstone, 2é9, note 18, wherein it is asserted that tbe law, as to purchases by aliens, is shortly tbis: that tbe purchase vests tbe land in tbe alien, but subject to be divested out of him for tbe benefit of tbe Crown, by tbe finding of an inquisition in tbe exchequer. An aben may be grantee in a deed, though bis bolding is precarious; for, on office found, tbe king shall have it by bis prerogative. 2 Black. 273, note 14; Co. Litt. 2, b; 5 Co. 52; 1 Leon. 47.

“ If,” says Lord Coee (Co. Litt. 2), “ an aben purchase bouses, lands, tenements or hereditaments to him and bis hens, albeit be can have no hefrs, yet be is of capacity to take a fee simple, but not to bold, for, upon office found, that is, upon tbe inquest of a proper jury, tbe king shall have it by bis prerogative, of whomsoever tbe land is holden, and so it is if tbe alien doth purchase land and die, tbe law doth cast tbe freehold upon tbe king,” but the estate purchased by an aben does not vest in tbe king until office found, until which time tbe alien is seized and may sustain actions for injuries to tbe property. 5 Co. 52, b; 1 Leon. 47; 2 Black. 293, note 10.

An alien may purchase lands and bold them against all tbe world but tbe State. Nor can be be divested of bis estate even by tbe State until after formal proceedings, called “ office found; ” and until that is done, may sell and convey or devise tbe lands, and pass a good title to tbe same. 1 Washb. Neal Prop. 50, and authorities there cited.

An aben Mend is entitled, at common law, not only to take and bold real estate, until office found, but M maintain an action for its recovery in case of an intrusion by an individual. Bradstreet v. Oneida Co., 13 Wend. 546.

In tbe case of McCreery v. Allender, 4 Harr. & McH. 409, tbe supreme court of Maryland decided that tbe title of an alien friend is good against everybody but tbe State, and that bis right and possession could not be divested but by office found, or some act done by tbe State to acquire possession, and judgment was given for tbe plaintiff, who was an aben and a British subject. See, also, People v. Folsom, 5 Cal. 373. This question has also been passed upon by tbe supreme court of tbe United States (Craig v. Leslie, 3 Wheat. 563), and tbe foregoing propositions fully and clearly sustained.

Alienage, then, is not a disability that can be taken advantage of by a private individual, and, as between citizen and alien, their titles are equaby sacred and secure, and equally entitled to tbe protection of tbe law.

Only tbe sovereign power of tbe State or government can demand forfeiture of an aben’s property, and this authority proceeds from tbe right of self-protection which inheres in every government, giving it tbe power of self-preservation. But this is a great sovereign prerogative right, which belongs only to tbe supreme power in a State, and cannot be exercised by any subordinate, secondary or limited depositary of power. Tbe authority to naturalize and to impose disabihties upon abens belongs alone to sovereign power, and this leads us to tbe discussion of tbe second proposition concerning tbe sovereignty of a Territory.

2. Does tbe Territory of Montana possess tbe inherent sovereign power necessary to enable it to cause tbe forfeiture to itself of tbe property of abens, situate within its territorial bmits? And does it possess tbe power to forfeit to its own use and benefit property that never belonged to the Territory, in which the Territory never had any interest, the title to which still remains in the United States, subject only to a possessory easement acquired by individuals, by leave and license granted by the general government ? In other words, can the Territory forfeit to its own use, and thereby become the owner of property which the government, in its liberality, granted only to citizens and to those who have declared their intention to become such ? And if there is a forfeiture of. this possessory title which the government has granted to individuals, does not the property forfeited necessarily revert back to the general government, the original grantor? The solution of these questions necessarily leads to a discussion of the sovereignty of a Territory under the constitution and government of the United States. Before entering upon this subject, however, we wish to premise by saying that primarily the general government is the owner of all the soil within its territorial limits, and that it is the fountain and source from whence all title to the soil is acquired, and that by reason of this fact the right of forfeiture vests in the sovereign power of the general government; and the particular inquiry now is: Are the organized Territories belonging to the United States clothed with this sovereign power %

What do we mean by the term “ sovereignty ? ” It is the exercise of, or right to exercise, supreme power, dominion, sway; and, as applied to a State, it is the right to exercise supreme power, dominion, authority. Says Yattel in his Treatise on the Law of Nations: “ Nations or States are bodies politic — societies of men united together for the purpose of promoting their mutual safety and advantage by the joint efforts of their mutual strength. Such a society has her affairs and interests. She deliberates and takes resolutions in common, thus becoming a moral person who possesses an understanding and a will peculiar to herself. From the very design that induces a number of men to form a society which has its common interests, and which is to act in concert, it is necessary that there should be established a public authority to order and direct what is to be done by each in relation to the end of the association. This political authority is the SOVEREIGNTY.”

And this sovereignty, we may add, is the elemental prerogative of a nation, an essential attribute that gives to it being, life and character, and without which it can have no existence.' Sovereignty makes a nation; it forms a State, and the lack of it makes a colony, a province, a dependence. Sovereignty implies the right to make laws and to enforce them, and the laws it enacts cannot be modified, altered or abolished, except by the same supreme power which enacts them. To this power belongs the authority to define the rights of persons, and it may regulate the manner and circumstances under which property is held, and may direct the modes of administering justice.

To this power belongs the right to declare war; to raise and support armies; to make treaties of peace, and to use all necessary means to self-preservation and protection. Sovereignty then signifies independence, absolute freedom and liberty, and a superiority to and exemption from every foreign or extraneous influence. Every nation, like every individual, possesses the inherent right of self-defense, and for this purpose it may use or destroy the property of its citizens, and to this power of a nation may be referred its right to make laws of escheat, and forfeiture, providing when and under what circumstances property shall become forfeited to the State. The authority to enact laws of forfeiture is a sovereign prerogative, and belongs only to the supreme power of a nation. Is this sovereign power lodged in the Territory of Montana?

The region of country now included within the limits of this Territory was acquired by the United States from France by virtue of the Louisiana purchase in 1803. Out of this vast region thus acquired, several States have been formed and admitted into the Union, while in the balance of this Territory temporary governments have been established by congress preparatory to their admission as States. By what authority does congress thus assume to exercise jurisdiction and control over the several territories belonging to the government? We might well argue that the right to acquire territory implied the right to govern it, and, if there was no controlling law on the subject, it might be well said that if the United States has the right to purchase territory from a- foreign power, it could, after the purchase, exercise absolute dominion and authority over the property so purchased, but we are not compelled to resort to any implied power in determining the source of authority over the territories. ■

Section 3, article 4, of the constitution, provides that congress shall have power to dispose of and make ah needful rules and regulations respecting the territory, or other property belonging to the United States. Under and by virtue of this clause of the constitution, from time to time congress has authorized and established temporary governments for the territories, the first of which was provided by the ordinance of 1787, and afterward adopted by congress, and from thence continuously until the present time. The governments thus established were and are temporary in their character, and only designed to subserve a temporary purpose. These governments were, and now are, and at all times have been, under the complete control of congress, and subject to abolition, modification or change, at the behest of the power which created them, and the laws enacted by the territorial legislatures are alike subject to modication or repeal by the action of congress. These inherent infirmities in the governments, and legislative enactments of the territories, at once rob them of all the essential attributes of sovereignty, and make them provinces, over whom the United States exercises supreme control. Under and by virtue of this clause of the constitution, above recited, congress could sell and dispose of a territory to a foreign power, and not only can it make all needful rules and regulations concerning the territories, but can also abolish them, and the rules and regulations made by congress are enacted laws, and congressional rules for the territories can be made in no other manner.

With these sovereign powers residing in the general government, it seems idle to contend that a territory is sovereign and supreme in any department of its authority.

These views and principles seem to be well supported by authority. Chancellor Keut, commenting upon the Territories belonging to the United States, says (vol. 1, pp. 383-5): “ With respect to the vast territories belonging to the United States, congress have assumed to exercise over them supreme powers of sovereignty. Exclusive and unlimited power of legislation is given to congress by the constitution, and sanctioned by judicial decisions. * * * The general sovereignty existing in the government of tbe TJnited States over tbe territories is founded on tbe constitution, which declared that congress ‘ should have power to dispose of and make all needful rules and regulations respecting tbe territories.’ * * * It would seem, from these various congressional regulations of tbe territories belonging to tbe TJnited States, that congress have supreme power in tbe government of them, depending upon tbe exercise of their sound discretion.”

Tbe government of tbe TJnited States, which can acquire territory by conquest, must, as an inevitable consequence, possess tbe power to govern it. Tbe Territories must be under tbe jurisdiction and dominion of tbe Union, or be without any government; for tbe Territories do not, when acquired, become entitled to self-government, and they are not subject to tbe jurisdiction of any State. They fall under tbe power given to congress by tbe constitution. American Ins. Co. v. Canter, 1 Pet. 511.

In tbe same case, Marshall, C. J., says that congress, in legislating for tbe Territories, exercises for them tbe combined powers of tbe general and State governments.

Neither can it be said that congress, in giving to the Territories an organic act, delegates any of its sovereign authority; for not only can tbe organic acts be altered or abolished, but all laws made under and by virtue thereof, by tbe Territorial legislatures, are subject to congressional supervision, showing that sovereignty alone resides with congress. It may, however, be said that a Territory is a distinct political society, and, therefore, sovereign in its action, except as limited by tbe Organic Act, as tbe States of tbe Union are sovereign, except as limited by tbe Federal constitution. To this it may be answered that sovereignty does not abide with' tbe Territory, for tbe reason that its action is subject to approval or disapproval by a higher authority, while congress exercises and can exercise no authority whatever over tbe enactments of a State legislature. To tbe State in tbe Union tbe people are secured tbe right of self-government, while tbe people of tbe Territories have not this right and depend for then- government on tbe will of congress. Tbe State regulates its own internal concerns, while congress directs tbe internal affairs of a Territory.

In a Territory tbe coui’ts have no final jurisdiction. An appeal being allowed to the supreme court of the United States in every case, only limited by the amount involved, the legislature acts with limited and contracted authority, and all its laws and statutes are subject to the approval or disapproval of congress; and the power of the executive and the tenure of his office áre likewise subject to the sovereign power and will of congress and the president, and in nothing pertaining to the existence, organization or power of a Territory is it sovereign and master of itself. The general government may sell it to a foreign power, may abolish its government, may annex it to another Territory, or may divide or change its form of government; its executive is the mere creature of the president and the senate; its organic act, creating a judiciary and a local legislature, may at any time be altered and abolished. Therefore it is that a Territory has no sovereign power or authority whatever, and, hence, has no authority to impose disabilities upon aliens within its limits, and much less has it the right to confiscate to its own use and benefit their property. Laws pfoviding for the forfeiture of real estate, or any interest therein, while yet the title remains in the United States, and while, if any forfeiture is had, the property rightfully reverts to its original owner and proprietor, do not come within the scope of rightful subjects for Territorial legislation, for legislation upon this subject, by every analogy, belongs exclusively to congress.

Before the passage of this act of the Territorial legislature forfeiting the property of aliens within the Territory, the alien could hold, and did hold and enjoy, the possessory title to mining claims, procuring such title by purchase, which title was an easement therein, the balance of the title belonging to the United States, so that the alien and the government, taken together, owned the complete title. The Territory had no interest whatever in the claims, held by aliens or by any other persons, and no title or shadow of title thereto, but by the operation of this statute the Territory becomes the owner of the possessory title which is or may be the entire equitable interest, and is authorized to sell the same for its own use, so that, by the force of this statute, it becomes the owner of property in which it never had any interest, and which never belonged to it, and it forfeits the property of an alien and calls it its own, while if any forfeiture takes place for any reason whatever, the property thus forfeited necessarily belongs to the United States. The Territory cannot acquire title to property that does not and never did belong to it, so easily as this.

There might be reason and plausibility in a statute of this kind, providing the Territory was clothed with sovereign 'power, and owned the paramount title to the property sought to be confiscated, but in the absence of sovereignty, and in the absence of any title or interest in the property, and while the general government is yet the owner of the legal title, and while, if any interest in the property is forfeited, it naturally and rightfully reverts to the sovereign, the general government, who holds the paramount title to all the property within its limits, it certainly is an unwarranted exercise of power for the temporary government of a Territory, to undertake, by forfeiture, to convert to its own use property, which, if subject to forfeiture at all, should be forfeited to the government of the United States.

Unquestionably, congress could enact and enforce a law similar in its provisions to the one under consideration, because it is clothed with the necessaiy power, and because the unoccupied lands in the Territories belong to the government, and it has the right to say who shall possess such lands; and exercising tbis right, by the act of July 26, 1866, the government authorized citizens, and those persons who have declared their intentions to become such, to enter upon, explore and possess such unoccupied mineral lands, and, if persons not authorized by this act, enter upon such lands, or if they acquire, by purchase, the possessory title to the same, and thereby the lands become subject to forfeiture, it is a matter for the general government to take action in relation to, and in which the Territory has no right and no interest. It will be observed that this act of congress does not prohibit citizens, who rightfully acquire this possessory title, from selling and transferring the same to aliens, or to any other persons. But with no statute upon the subject, and by virtue of the common law, if an alien takes a title to a possessory right in any such lands, upon proper inquisition before a jury, or upon office found, such title could be forfeited to the government, and this sovereign right belonging to the general government, the sovereignty of the Territories, as to this matter, is necessarily excluded.

Only those persons authorized by the act of July 26, 1866, are licensed to enter upon, explore and possess the mineral lands belonging to the United States. The persons given this right by virtue of this act are citizens and those who have declared their intention to become citizens. All others, by necessary implication, are excluded, and this exclusion would apply to a State, or a Territory, as well as to an alien, and the very terms of the act that excludes aliens from entering also excludes the Territory from holding the possessory title to the mineral lands, and an action for forfeiture by the general government against the Territory in such case would be much more appropriate than such an action by the Territory against an alien.

The Territory lacks three essential elements necessary and requisite in order to enable it to maintain this action, and in order to give validity to this statute. First. The sovereign power and authority to confiscate and forfeit to itself property, and especially property in which it has no interest, and no title, the sovereignty of the United States and its title necessarily excluding any action by the Territory; Second. The Territory is not the party in interest, and is officiously meddling with what does not concern it; and, Third. The inability of the Territory, under the act of 1866, to take and to hold the possessory title to the mineral lands belonging to the United States.

It' is argued that this statute of the Territory does not conflict with the act of congress of 1866, which provides that only citizens, and those who have declared their intention to become citizens, shall have the right to enter upon and possess the mineral lands, and that this statute confiscating the possessory titles of aliens is only in aid of the act of congress. But it will be observed that the act of 1866 does not authorize the forfeiture of the title of aliens, and if it did the forfeiture would take place to the United States, and the Territory could take no action in the matter unless specially authorized, by congress. The Territory is not called upon to aid congress or the executive in the execution and enforcement of the laws of the general government, and the voluntary aid of the Territory is without authority, without reason, and therefore void.

3. Is the statute in question in harmony with the Organic Act of the Territory?

The Organic Act provides, section 6, that the Territorial legislature shall pass no law interfering with the primary disposal of the soil. Notwithstanding the Organic Act whereby a temporary government is created for the Territory, the general government, being the owner of the soil, still retains its ownership, and has made all the necessary laws and regulations directing how its property shall be disposed of, and how title thereto shall be conveyed. The Territory can enact no valid law that, in any manner, impedes, modifies or varies the operation of the laws of the general government as to the disposal of its lands. Neither can the Territory do, by indirection, what it is prohibited from doing directly, so that, if any Territorial statute, enacted for a local, or for a temporary purpose, in its workings, in its operations and effects, defeats the laws of congress as to the disposal of the public lands of the Territory, such statute is necessarily void. The statute in question provides that the mining claims held by aliens shall be forfeited to the Territory, so that the Territory becomes the owner of the possessory title to such claim. Laying aside the fact that the Territory thus becomes the owner of property that does not belong to it, yet it obtains possession of the title, and this possession necessarily interferes with the disposal of the soil by the United States to the citizen or settler. If the possessory title is forfeited, the property should again become subject to location by the persons entitled to make such location, but the Territory comes forward and says, by its legislature, “that although the title to this property is forfeited, and it thereby becomes subject to entry and location, yet I have acquired this property, and if any one obtains possession of it they must purchase of me.” The Territory thus acquires a possessory title in violation of the act of 1866, and in direct violation of the Organic Act, for the title of the Territory interferes directly with the primary disposal of the soil to the citizen by the general government. It does not require argument or authority to determine that if the Territory holds possession of mining claims it interferes with. the acquisition of possession by tbe citizen, and thereby interferes with tbe disposal of tbe soil; and tbe fact that tbe Territory is authorized to sell its possessory title by causing an execution-to issue, does not help tbe matter, for by this means tbe primary disposal' of tbe soil is transferred from tbe general government to tbe Territory. This statute is in conflict with tbe Organic Act.

Tbe act of congress of May 10,1872, “ to promote tbe development of tbe mining resources of tbe United States,” in its spirit and intention, is in direct conflict with tbe Territorial statute under which this action was brought. Tbe act of congress, after defining tbe mode and manner by which titles to tbe mineral lands may be acquired, and providing when and to whom patents may be issued, enacts that “nothing herein contained shall be construed to prevent tbe alienation of tbe title conveyed by a patent for a mining claim to any person whatever; ” that is to say, after tbe citizen, or those who have declared their intentions to become such, shall have acqtdred title to their mining ground from tbe government by patent, they shall have tbe right to sell tbe same to any person whatever, whether such person be alien or citizen, Chinaman or American. If tbe absolute title can be thus conveyed to an aben, it would be strange indeed if tbe mere possessory title or right could not likewise be conveyed to tbe same individuals. If tbe alien is made capable by tbe .general government of bolding tbe highest title, by what process of reasoning do we arrive at tbe conclusion that tbe Territorial legislature can say that if be acquires a mere possessory title, it shall be forfeited ? It was clearly tbe intention of congress, by tbe act of May, 1872, to authorize and permit tbe citizen who bad obtained a patent to bis mining ground to sell tbe same to aliens if be so desired, thereby to aid tbe development of our mineral resources by tbe use of foreign capital; and as long as this act remains in force there can be no reason or validity in or to a Territorial statute subjéeting tbe inferior titles of abens to forfeiture and confiscation, while their absolute titles are made sacred by tbe act of tbe general government.

Tbe judgment below is reversed and cause remanded.

Judgment reversed.