concurring. TMs was a proceeding, instituted by tbe district attorney for tbe second judicial district for tbe county of Deer Lodge, for tbe forfeiture to tbe Territory of Montana of 3,000 feet of mining ground, piu-cbased by tbe defendant, Fauk Lee. (a Chinaman), from one S. Stevens, in September, 1872, under an act passed by tbe legislative assembly of tbe Territory, January 12, 1872, entitled “An act to provide for the forfeiture to the Territory of placer mvnes held by aliens,” whereby all. aliens are prohibited from acquiring any title, interest, or possessory or other right to any placer mine or claim within tins Territory or to any profits or proceeds thereof. And it further provides for tbe mode of procedure to forfeit tbe same. Cod. Sts. 593.
To tbe complaint filed by tbe district attorney, tbe defendant, by counsel, demurred, as follows: First. To tbe jurisdiction of tbe court as to tbe person of tbe defendant, and tbe subject of tbe cause of action; and, second, for want of sufficient facts stated to constitute a cause of action; which demurrer was overruled by tbe court below, a decree of forfeiture entered, and tbe mining ground ordered to be sold as upon executions at law. From which tbe defendant appealed to this court.
Tbe only question presented in argument, and raised by tbe demurrer, is as to tbe authority of tbe Territorial legislature to enact tbe law under which this forfeiture was bad.
Assuming (as do counsel in argument) that the mining ground in controversy was, and is, a part and parcel of tbe public domain, bad tbe legislative assembly of tbe Territory tbe rightful authority to enact tbe law now under consideration ?
Legislative assemblies, like all other departments of tbe government, exercise only delegated authority; and any act passed by it not fairly falling within tbe scope of legislative authority, is as clearly void as though expressly prohibited.
A correct solution of tbe question before us necessarily leads to an examination, not only of tbe Organic Act of tbe Territory, but also of some of tbe provisions of tbe constitution of tbe United States.
It is tbe right of tbe legislative assembly to enact laws under the restrictions of tbe Organic Act and tbe constitution, and the province of tbe courts to construe them.
*140The presumption is always in favor of the validity of sucb laws, and it is only when there is manifest assumption of authority, and a clear incompatibility between them and the fundamental law, that judicial authority will refuse to execute them. And although it has often been truly said that courts, when called upon to construe laws with respect to their constitutionality, are always treading upon dangerous ground, and that objections to declaring a statute void should ever be listened to with attentive earnestness, yet this duty, which no judge should court, is one from which no judge should shrink.
With this statement of the case and the relative rights and duties of the law-making and law-construing powers, let us proceed to an examination of the question before us.
The 6th section of the Organic Act of this Territory provides “ that the legislative power of the Territory shall extend to all rightful subjects of legislation consistent with the constitution of the United States and the provisions of this act; but no law shall be passed interfering with the primary disposal of the soil.”
And by the 3d section of the 4th article of the constitution of the United States it is provided: • “ The congress shall have power to dispose of, and make all needful rules and regulations respecting the Territory or other property belonging to the United States. * * *”
And again, it is also provided by the 14th amendment to the constitution, section 1: “ * * * Nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to wy person within its jurisdiction the equal protection of the laws.”
Before proceeding to an examination and application of these fundamental principles to the question under consideration, I cannot pass unnoticed, at least to some extent, the able arguments of the respective counsel. The counsel for the appellant urge and insist that the treaty made by the government of the United States with the Empire of China, and approved February 5,1870, called the “ Burlingame treaty,” guarantees to the defendant, as well as to all subjects of the Chinese Empire within the United States, the same privileges, exemptions and immunities as are here possessed and enjoyed by American citizens.
*141The article of tbe treaty referred to, whereby it is assumed these rights are guaranteed, is article 6 of that treaty (16 TI. S. Sts. 740), which provides: “ Citizens of the United States visit ing or residing in China shall enjoy the same privileges, immunities or exemptions in respect to travel or residence as may there be enjoyed by the citizens or subjects of the most favored nation; and, reciprocally, Chinese subjects visiting or residing in the United States shall enjoy the same privileges, immunities and exemptions in respect to travel or residence as may there be enjoyed by the citizens or subjects of the most favored nation.”
This provision of the treaty, in my judgment, does not and cannot, by any construction, liberal or otherwise, grant, either to the American in China, or to the Chinaman in America, any greater privileges than are guaranteed by the laws of the respective countries to other alien subjects; and this is not only the literal, but the correct interpretation of this provision of the treaty.
Then, what rights and privileges -are, by the constitution and laws of the United States, guaranteed or granted to all aliens ? And the answer is found in the various enactments of congress, to which I shall presently refer, and which were passed both before and since the ratification of‘ the “Burlingame treaty,” wherein congress not only assumes control over the Territories, but especially provides that none hut citizens of the United States, or those' who have declared their intentions to become such, shall possess any of the public domain; and these acts of congress so far have never been repealed.
It is urged, by counsel for the Territory, that, inasmuch as the character of the property in question has always been treated as real estate, and that by the common law an alien could not hold or enjoy the same, within the United States, this principle of the common law, if not directly, at least by implication, has been engrafted into the Organic Act of this Territory, and that therefore-the act in question was one of rightful legislation.
It must be observed that the remedy hitherto provided for a violation of this principle of the common law was never such as is attempted in the act under consideration.; but the mode of procedure has always been by the general government, through its attorney-general, in the nature of what is termed office found,, *142whereby the alien trespasser was ejected from the premises, which then became jpublioi jwris, and resort to legislative confiscation and forfeiture were never had; and if this principle of the common law has in fact been engrafted into the Organic Act, it could have no greater effect than a simple continued recognition of that principle; but I do not think that, by any known rule of construction, it can even be inferred that any such principle is contained in the Organic Act of this Territory.
When the framers of the great fundamental law of the land provided, “ The congress shall have power to dispose of and make all needful rules and regulations respecting the Territory or other property belonging to the United States,” they did not intend thereby that the congress should delegate thaf power to some other inferior legislative assembly, else they would have so said. Neither did congress so understand or intend, when it created and organized this Territory, for it is thereby and therein provided, that all Territorial legislation shall be consistent with the constitution and with the Organic Act; and that no law shall be.enacted by the legislative assembly of the Territory in any wise interfering with the primary disposal of .the soil.
It is urged, in support of the'validity of this so-called “Alien Law,” that it is not an interference with the primary disposal of the soil, but that it is only a “ rule ” or sort of police regulation, regulating the possessory tenures to the public mines; and that such right so to regulate and rule the same is recognized by the various acts of congress, passed July 26, 1866, July 9, 1870, and May 10, 1872, whereby the mineral lands of the public domain are declared free and open to exploration, occupation and purchase by citizens of the -United States, and those who have declared their intentions to become such, under regulations provided by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States.
These acts of congress do most unquestionably recognize in local legislative assemblies, as well as in properly organized assemblies of miners in them respective mining districts, the authority to regulate the exploration, occupation and purchase from- one another of such unoccupied parts of the public mineral domain as *143may be within their respective local jurisdictions, so far as the same may be applicable thereto and not inconsistent with the constitution and laws of the United States.
But the extent to which these local legislative bodies can regulate these possessory tenures of the public domain seems to be the all-absorbing question to be determined. All that local legislation has done, or may do, can, by the congress, be undone and wholly abrogated. It cannot only do this, but it can repeal all laws upon the subject, and enact others in their stead; and I am of the opinion that congress, in assuming control over the Territorial domain under the constitution, and in passing laws regulating the same, has only recognized the right of local legislation, so as to make rules for the amount to be located, the manner of working the same, together with necessary rules to the complete development thereof, and appropriation of the minerals therefrom. And this is the extent of recognized local legislation thereon. Any attempt by local enactment, whereby to oust one person from a possessory right acquired under the act of. congress granting freedom to the mines without title, and putting another in possession thereof, whether the possession from which he may be ousted be lawful or unlawful, is an unauthorized assumption of power, and void. Such an act, although it may not, in fact nor in fee, dispose of the soil, is nevertheless an interference with the primary disposal of the soil. It deprives the once occupant thereof from holding and working the same, and by its operation pretends to transfer, under judicial proceedings, a once acquired possessory right, whereby the citizen is prohibited and prevented from taking up or entering upon the same, or the government from conveying the same by patent, as otherwise the citizen or government might.
Had the government, after the passage of this act, issued its patent to the defendant for the very mining ground in questionj whether authorized or unauthorized, would it not be absiu’d to claim that the Territorial legislature could assume such superiority over the general government as to cancel or annul it ? Certainly not. But this is no more absurd and inconsistent than is the Territorial act itself. That act declares that an alien has not, cannot, and shall not have any interest in placer mining ground within *144tbe Territory, and by tbe same ancoro vide for tbe forfeiture of that no interest, and for a sale and eOOTsqyance thereof.
What, I ask, is to be forfeited ? WLaiMobe sold and conveyed ? Simply a trespass, and that, too, that wa§not a trespass to the Territory, nor to any of its property, but ifVtrespass at all, a. trespass upon tbe lands of tbe general government, over which tbe Territory could not exercise any control, for, as I have abeady shown, such power was reserved to the congress, and it has from time to time ever since exercised such control by seemingly proper and legitimate legislation.
Of this reserved power in tbe constitution I think there can be no doubt. Tbe language used in section 6 of our Organic Act is borrowed from those of tbe earlier Territories — Dakota, Nevada, Nebraska and Colorado, where it has ever been understood as containing a full reservation of tbe right of congress over tbe Territories’ and tbe public domain.
So strongly has congress emphasized its power over tbe public domain that in the acts admitting States into tbe Union tbe people are required to agree and declare that they forever disclaim a/ny right or title to the unappropriated lands within the Territory. See for instance tbe enabling act of Nebraska, approved April 19, 1864.
If, then, a State cannot control or interfere with tbe disposal of tbe public lands within its boundaries, nor deny to any person within its jurisdiction tbe equal protection of tbe laws (although congress may, and has), much less can a Territory.
I am therefore of tbe opinion that tbe said act, entitled “An act to provide for tbe forfeiture to tbe Territory of placer mines held by aliens,” is inconsistent with tbe Organic Act of tbe Territory, repugnant to tbe constitution of the United States, and therefore void.