LII GRAND fl.
STATHS.
677
LJIl
GRAND
v.
UNITED
(Circuit Court, E. D. 1'ea;as. July 6, 1882.) CoNSTITUTIONAL LAW-AMENDMENTS INHIBITING STATE LEGISLATION.
Where a. state has been guilty of no violation of the provisions of the thirteenth, fourteenth, and fifteenth amendments to the constitution of the United private individuals who, States, no power is conferred on congress to acting without any authority fronl the state, and it may be in defiance of law, invade the rights of the citizen which are protected by such amendments. 80, where an act of congress is directed exclusively against the action of· individuals, and not of the states, the law is broader than the amendments by which it is attempted to be justified, and is without constitutional warrant.
Error to the District Court for the Eastern District of Texas. On October 11, 1881, the United States attorney ror the eastern district of Texas filed an information against Israel Le Gralld,the plaintiff in error, William Ridley, and William Laney, in which it was charge.d .that on May 31, 1881, in the county of Camp, and within the eastern district of Texas, the plaintiff in error and the said Ridley and Laney did conspire together and go in disguise upon the premises of one. Dennis Bolton, a. free. male citizen of the United States, and of the state of Texas, who was of the African.race an.d descent, and of the black complexion, for the purpose of depriving him of the equal protection of the laws of the United States and of the state of Texas on account ofbia said race and color, and especially f<>r the purpose of depriving him, the said Bolton, on account of his said race and color, of his right and privilege to give .evidence in a certain criminal prosecution pending before one J. T·. Covington, a justice of the peace of said county of Camp, in the name of the state of Texas, against the said William Ridley and one Robert Carr, and to prevent the said justice of the peace from giving and securing to said Dennis Bolton the equal protection of the laws, to-wit, the right to testify in behalf of the state of Texas in said criminal prosecution, and to prevent the said justice from securing to him, the said Bolton, immunity from personal danger from and at the hands of said Ridley, Le Grand, and Laney; and that said defendants, for the purpose of effecting said conspiracy, having gone upon the premises of said Bolton, did upon said premises assault and shoot and inflict great bodily harm upon the person of the said Bolton. Only one of the defendants named in the information-namely, the plaintiff in error -was arrested by the marshal. He was arraigned,and pleaded not v.12a.no.7-37
guilty, and was put upon trial. The jury returned a verdict of guilty, and he was adjudgedbythei{)our£ itO' pay a·fine of $500, and to be imprisoned, at hard labor, for the term of five years in the penitentiary at Chester, in the state of Illinois. This writ of error is prosecuted to reverse that judgment. Oharles A. Culberson, for plaintiff in error. F;dward Guthridge, U. S. Atty., for the United States. WOODS, Justice. :Many points have. been presented by counsel for the plaintiff in error, in which a reversal of the judgment is demanded.Some of them are based upon alleged etrorsqf the court in its charges to the jury. As t4e charge\'J complained of are not incm;porated in any bill of exceptions, but are inserted by the clerk without any authentication by the judge, they are not properly presented, and cannot be COnsidered. There are, however, other gr.ounds properly presented hymotion in arrest of judgment, upon which a reversal of the judgment is asked. I am of opinionithatone of these grounds is well taken; and as it is not only fatal to the judgment in thiscaset but also to any prosecution in aUnited,States court for the acts charged in the information, it will be alont'! considered. Theground referred to Wlts in substance as follows: Because the act of congress upon which the prosecution rests was passed without any constitu-' tional warrant. The law, the'violation of which is charged in the information; is that part of section 2 of the act of April 20, 1871, (17 St. 13-14,) which now constitutes section 5519 of the Revised Statutes of the. United States. It declares: "If two or more persons in any state or territory conspire or go in disguise; on the highway or on the premises of another; for the purpose of depriving, either directly or indirectly, any person or elass of persons of the equal protection of the laws, or of equal privileges and i)llmunities under the laws, or constituted authorities of any for the purpose of preventing or hindering state or territory from giving or securing to all persons within such state or territory the equal protection of the laws, each of said persons shall be punished by a fine of not less than $500 nor more than $5,000, or by imprisonment with or without hard labor not less than six months nor more than six years, or by both said fine and imprisonment."
The plaintiff in error insists that the constitution of the United States nowhere confers on congress the power to pass such an act, and the question for solution, therefore, is under what clause of the constitution, if any, can this legislation be sustained. The fifteenth amendment can have no application. That amend· ment relates to the right of citizens of the United States vote. It
does not confer the right of suffrage on anyone. It merely invests citizens of the United States with the constitutional right of tion from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude. U. S. v. Reese, 92 U. S. 214; U. S. v. Cruikikank, 92 U. S. 542; S. C. 1 Woods, 322· .Section 5519 of the United States Revised Statutes has no refer., once to this right. The ;right guarantied by the fifteenth amendment is protected by sections 4 and 5 of the act of May 31, 1870, (16 St. 141;) sections 5506, 5507, Rev. St· . It requires no argument to show that a law which, according to the theory of the prosecution, and, which in fMt is intended to protect among other things the. right of the citizen to give evidence in the courts, cannot be based on an article of the constitution which simply protects the right of the citizen to the elective franchise against discrimination on account of his race, color, or previous condition of slavery. Nor can authority for this legislation under review be found in the fourteenth amendment to the constitution. The only part of that amendment which can have any bearing upon-the question in hand is the :first and fifth sections. The first section declares: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the states wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law, )lor deny to any nerson within its jurisdiction the equal protection of the laws."
The ,fifth section declares: "The congress shall have power to enforce by appropriate legislation the provisions of this article." It is perfectly clear, from the language of the first section above quoted, that when a state has been guilty of no violation of its provisions the section does not confer on congress the power to punish private individuals who, acting without any authority from the state, and it may be in defiance of its laws, invade those rights of the citizen which are protected by the amendment. The scope of the two sections of the amendment above quoted has been defined in the supreme court of the United States in several cases. Thus, in U. S. v. Cruikshank, 92 U. S. 542, it was declared by the court, Mr. Justice Miller delivering its opinion, that the fouramendment prohibits a state from depriving a,ny person of life,
580
DDEIU,L· .BEPOBTlllB.
liberty, or property without due process of law, or from denying to any person the equal protection of the laws; but this provision does not add anything to the rights of one citizen as against another. It simply furnishes an additional guaranty against any encroachment by the states upon the fundamental rights which belong, to every citizen as a member of society. The duty of protecting all its citizens in the enjoyment of an equality of rights was originally by the states, and it still remains 'there. The only obligation resting upon the United States is to see that the states do not deny the right. This the amendment guaranti13s, and'no more. The power of the national government is limited to the enforcement of this guaranty. So, in Virginia v. Rives, 100 U. S.813, it was declared by Mr. Justice Strong "that the provisions of the fourteenth amendment [those iibdve quoted] have reference to state action exclusively, and not to any action of private individuals." So, also, in U. S.v. Cruikshank, 1 Woods, 316, it was declared by Mr. Justice Bradley, speaking of the 'same provision of the fourteenth amendment: "It is a guaranty of protection against the acts of the state government itself. It is a guaranty against the exertion of arbitrary and tyrannical power on the part of the government and 'legislation of the state, not a guaranty against the commisflion of individual offences; and the power of congress, whether expr,essor implied, to legislat,efor the of 8uch aguaranty does not'extend to passage of laws the suppression of crime within the states.. The enforcerIlent of the guaranty does not require or authorize congress to perform the dutythat the gU!lranty itself supposes It tobe the duty of the state to perform, arid which i.t requires the state to,p61'form." <, , " · . " , ' , " ' .
Recurring to section 5519 of the Revised Statutes we find that it is directed exclusively against the action of individuals, and of the states; "if two or more persons in any state or territory'donspire or go in disguise upon the highway 01' premises of another," etc. And the information in this case, which follows the statute, charges an offence against three private individuals. It is, therefore, evident that no warrant can be found in the fourteenth amendment for the passage by congress of section 5519 of the Revised Statutes. The thirteenth amendment declares that "neither slavery nor involuntary servitude, except as a punishment of crime whereof the party shall have been duly convicted, shall exist within the United States, or anyplace subject to their jurisdiction. Congress shall have power to enforce this article by appropriate legislation." Does this amendment clothe congress with the authority to pass the tion under consideration? It may be conceded· that this amendment
LE
V. UNITED STATES.
ts81
gives power to congress, not only to protect- the persooa.l freedom of the enfranchised citizens, but to remove from them every badge and restraint of slavery and involuntary servitude. . Congress has by virtue of this amendment declared "that all per· sons within the jurisdiction of the United States shall have the same state and territory · · · to give evidence ... · · right in as is enjoyed by white persons." Act of May8!, 1870,§ 16, (16 st. 144; Rev. St. 1977.) The power of congress to do this has been recog· nized by at least two of the justices of the supreme court. Mr. Justice Swayne in U. S. v. Rhodes, 1 Abb. (U. S.) 28, and Mr. Justice Brad. ley in U. S. v. Cruikshank, 1 Woods, 808. Conceding, then, that cohgress had the power by virtue oithe thirteenth amendment to confer enfranchised th,ereby the same right to testify as is on the enjoyed by white persons, and to punish. the invasion of that right, the question remains, has that power been exercised by appropriate legislation by the passage of section 5519 of the Revised Statutes? I feel constrained by the authority of the supreme court of the United States to say t'hat it has not. Under the section referred to, it would be an offence for'two or more white perSOIlS to conspire,etc., to prevent another white person in a court of from enjoying the right and privilege of tice.. It would be an offence for two or more colored persons, enfranchised slaves, to conspire with the same purpose, against Or Jvhite izen, or against a colored citizen who had ever been a slave. It is, therefore,perfectly clear that the Jaw is broader than the amendrUEmt by which it is attempted to be justified., It covers cases both witbin and outside of its provisions. The law under which two or more free white men could be punished for conspiring to deprive another free white man of the right to testify, .cannot be based on the amendment which prohibits slavery and involuntary servitude. The thirteenth amendment does not, therefore, authorize the law in question. Upon this question the case of U. S.v. Reese, 92 U. S. 214, is in point. In that case the supreme court had under consideration the constiutionality of the third andfoUl"th sections of the act of May 81, 1870, (16 St. 140; Rev. St. §§ 2007, 2008, 5506.) The third section of this act made it an offence for any judge, inspector, or other officer of election whose duty it was under the cir.i cumstilnces therein stated to receive, count, etc., a vote of any citizen, to wrongfully refuse to receive and count the same; and the fourth section made it an offence for any person, by force, bribery, etc.,
or
,582
FEDERAL REPORTER.
other unlawful means, to hinder or delay, eta., any citizen from doing any act required to be done to qualify him to vote or from voting at any election. The attempt was made to sustain these sections as warranted by the fifteenth amendment to the constitution of the United States. But the supreme court held it not to be appropriate legislation under that amendment. The ground of the decision was tl:\at the sections referred to were broad enough, not only to punish those who hindered and delayed the enfranchised colored citizen from voting on account of his race, {lolor, or previous condition of servitude, but also those who hindred and delayed the free white citizen. The court, speaking by Mr. Chief Justice Waite, said: "It would certainly be dangerous if the legislature could not set a net large enough to catch all possible offenders and leave it to the courts to step inside and say who could be rightfully detained, and who should be at large. This would to some extent substitute the judicial for the legislative department of the government. The courts enforce the legislative will when ascertained if within the constitutional grant of power. But if congress steps outside of its constitutional limitation and attempts that which is beyond its reach, the courts are authorized to, and when called upon must, annul its encroachments upon the reserved rights of the states and the people. And the court declared that it could not limit the statute so far as to bring it within We must therefore decide the constitutional power of congress and that congress has not as yet provided by appropliate legislation for tha punishment of the offence charged in the indictment."
This decision is directly in point and shows that the section of the law upon which the information in this case is based is not warranted by the thirteenth amendment. It is true that the information alleges that the defendants conspired against Bolton on account of his race and color. But the act of congress cannot be helped by the information. If the law is without constitutional warrant, no averments of the pleader can give it vitality. 'There is only one other clause in the constitution of the United States which, in the remotest degree, can be supposed to sustain the section under consideration. I refer to section 2 of article 4, which declares the citizens of each state should be entitled to all the privileges and immunities of citizens of the sev eral states. But this section, like the fourteenth amendment, is directed against state action. Its object was to place the citizens of each state upon the same footing with citizens of other states to relieve them from the disabilities of alienage in other states, and inhibit discriminative legislation against them by other states. Paul. v. Virginia, 8 Wall. 168. It was never supposed that under it con·
LE GRAND
V.
UNITED STATES.
gress could pass a law which would punish any pri-vate citizen forst} invasion of the rights of his fellow-citizen conferred by the statil"of which both were residents. .' I have, therefore, been unable to find any constitutional authority for the enactment of section 5519 of the Revised Statutes. The decisions of the supreme court above referred to leave no constitutional ground for the act to stand on. As, therefore, thereis no valid law by which the judgtrientofthe district court in this case can be sustained, its Judgment must .be ]:eversed and the cause remanded with directions to discharge the'pris. oner. CONSTITUTI01Ul: LAw '-THIRTEENTH AMENDMENT. Article 13 of the amendments to the eonstitutionoftheUnited States was not intended to afford relief to parties unlawfullydeprived,of their liberty; its purpose is satisfied when such restraint is rendered illegal.(a) The object, of this amendment waS to deprive both congress a.nd the respective states of the power: to reduce any person .to the condition of .sIa,very or involuntary servitude, except as a punishment for criniej(b) the term servitude having a larger significance than slavery.(c) . The utmost effect of this ame.ndment is to declare the colored as freaas the white race, and to give ·them nothing more than freedom;(d) and is a positive prohibition of slavery.(e) . That personal servitude was meant is shown by the useof the word" im:olulltary,"(f) which includes an indenture of apprenticeship in violation 'of state law.(g) 'l'he second section of thisamendillent authorizes congress to pass such laws as are appropriate, but not to annul state- laws or control their operations;(h) and imports nothing more than to uphold the emancipating section and a violation of the liberty of the enfranchised race,(i) and any legislation which practically tends to secure the full enjoyment of personal freedom is appropriate.(j) So, a law which only permits the same class of persons to testify against a black man in a matter where personal property is concerned, tends to enforce this amendment.(k) This amendment does not authorize congress to pass laws for the punishment of offences against persons of the colored race-that belongs to the state government.(l) FOURTEENTH AMENDMENT. 'l'he main purpose of the fourteenth amendment was to establish the citizenship of the negro; to secure to the colored race the benefit of the freedom previously accorded to them.(a) It does not add anything to the rights of a citizen as against another, but only furnishes (a) People v. Brady, 40 Oal. 198. See In rott, 1 Fed. Rep. 481. (b) People v. Washington, 28 Oal. 658. (c) Slanghter-house Oases, 16 Wall. 69; of Turner, 1 Abb. U. S. 84. (c!) Bowlin v. Oom. 2 Bush. 6. (e) U. S. v. Oruikshank, 92 cr. S. 543; Woods,30S. (f) Slaughter-house Oases, 16 Wall. 69; Ilf Turner, 1 Abb. cr. S. 84.
re Par. Matter S. O. 1
Matter
(I<) U. S. V. Rhodes, 1 Abb. U. S. People v. Washington, 33 Oal. 658. (1) U. S. V. Oruikshank, 1 Woods, 308. (a) Slaughter.house,Oaoes, 16 Wall. 36 j Frasher V. State, 3 Tex. oCt. App. 267.
(B') Matter or Turner, 1 Abb, U. S. 84. (h) People v. Brady, 40 Oal. 198. (I) Bowlin v. Oom. 2 Bush, 6, (J) People v. Washington, 38 Oal. 658.
a guaranty of protection against the acts of the stalo government;(b) but not a guaranty, against the commission of individual offell(:es ;(c) and has reference to state action exclusively, and not to any act of private individuals.(d) It is an inhibition on the states denying to them the power to deprive citi. zens of the equal protectionof the laws, and giving to congress the power to enforce the provision.(e) It applies to all the instrumentalities and agencies employed in the administration of its government, its executive, legislative, and jUdicial departments, and to the subordinate legislatures or divisions of its counties or cities.(f) By this amendment congress had the right to pass the civil-rights bill, which is constitutional ;(g) but it can only legislate in protection of the rights of citizens of the United States, as such;(h) and it was not intended to transfer the protection of all civil rights to the federal government, nor to bring within the power of congress the entire domain of civil rights heretofore belonging exclusively to the several states.(i) Privileges and immunities as mentioned in· this amendment includes such as are derived from or recognized by the constitution, (j). and are not identical with those referred to in section 2 of article 4 of the constitution ;(k) nor does this amendment add; to the privileges and immunities existing at the time of its adoption.(l) States may passlaw8 to regulate the privileges and immunities of its own citizens provided they do not abridge the privileges and immunities of citizens of the United States.(m) So they may pass laW8 for the protection of the lives, health, and property of their citizens,(n) as laW8 prohibiting miscegenation.(o) So the state may regulate the right to practice a profession, as of the law, or medicine,(p) or the right to sell intOXicating liquors,(q) or the right of fishery,(r) or the right to trial by jury;(s) or it may legislate as to the rules of evidence ;(t) and may exclude Chinese from the right to testify where a. white man is a partYi(u) and for or against negroes, equally with whites. under the civil-rights bill ;(v) so a state may impose a more severe, punishment for adultp,1:y or fornication where the parties are of different races,(w) or (6) Virginia v. Rives, 100 U. S. 313; U. S··· Cruikshank, 11 Woods, 316; S. C. 92 U. S. 643; Ward v. Flood, 48 Cal. 36; Van Valkenburg v. Brown, 43 Cal. 43; but see U. S. v;Hall, 13 Int. R. R. 181. (c) U. S..... Cruikshank. 1 Woods, 316. (d) Virginia v. RlyeS, 100 U. S. 313. See Wells v. State, 3 Lea. 70. (e) Strander West Virginia, 100 U. s. 303. (j) Ah Kow Nunan, b Saw)'. 652. (g) Smith v. Moody, 26 Ind. 307; In re Tnrner, 1 Abb. U. S. 88; Chase, 157. (h) Cully v. Bait., etc., R. Co. 1 Hugbes,6361 U. S. v. Cruikshank, 92 U. S. 660; S. C. 1 Woods, 308. (i) Slanghter.honse Cases, 16 Wall. 36 ; Frasber
v. State,3 Tex. Ct. App. 2\;7. (j) State v. McCann, 21 Ohio St. 199. (k) Slanghter.hoose Cases, 16 Wall. 71; Live stock, etc., Ass. v. Crescent City, 1 Abb. U. S. 398; U. S. v. Anthony. 11 Blatchf. 2{»; See Ex parte Hobbs, 1 Woods, 542. (I) Miner v. Happersett, 21 Wall. 162; Ward v. Flood,48 Cal. 36 : Frasher v. State, 3 Tex. Ct. App. 9>1.
v. Rotland, etc., R. Co. 27 vi. 149 ; New York v. Miln,l1 Pet. 1021 U.S.v.CruikshanJl:,92U.s. 642: 1 Woods, 308, (0) Walker v. Sauvlnet, 92 U. S. 90. see Fra. sher v. State, 3 Tex. Ct. App. State v. Gib. son, 36 Ind. 389; Ex parte Hobbs, 1 Woods,537; Goss v. State, 24 Alb. Law J. 118. (P) Bradwell v. State, 16 Wall. 130; lJ. S. v. Anthony,l1 BJatchf. 201; Mason v. Illinois, 94 U. S. 113; Ex palte Spinney, 10 Nev. 323. (q) Hal'. cmeyer v. Iowa, 18 Wall. 129. (r) McCready v. Virgipia, 94 U. S. 391. (.) Walker v. Sauvinet, 92 U. S. 90. (I) People v. Brady, 40 Cal. ISS; Duffy v. Hal. son,40 Cal. 240. See State v. Rash, 1 Honst. Or. 0.271. (u) People v. Brady, 40 Cal. 198; overruling People v. Washington, 36 Cal. 658. (11) People v. Washington, 36 Cal 658. (to) Ford v. State, 53 Ala. 150; Ellis v. State, 42 Ala. 525; Green v. State, 58 Ala. 100-
(m) Slaughter.honle Cases, 16 Wall. 36. (n) Slaughter.house Cases. 16 Wall.36; Thorpe
LE GBAND
585
may inflict a penalty on a white person for marrying a negro, (x) or it may provide for the education of colored children in schools distinct from schools for white children.(lI) This amendment does not relate to territorial or municipal arrangements, or political subdivisions made for different portions of the state.(z) FIFTEENTH AMENDMENT. This amendment invests citizens of the United States with a new right within the protecting power of congress.(a) away the authority of the state to discriminate against citizens of the United States on account of race, color, or previous condition of ,servitude ;(b)'1?ht the power of the state upon all other grouI1ds, including that ,of sex, remaios intact. (c) It does not confer the right 'of suffrage on any one;(d) but its adoption rendered inoperative a provisioll in the then-existing a state whereby the right of suffrage was limited to the white race. (e) By this amendment all persons born in 'the United States are citizens thereof aM capable of becoming voters, but the provision is not self-executing.(f) The provisions of this amendment extend to a statute conflning selections of jurors to persons possessing the qualifications of eleetors.(u) And the exclusiotrof a citizen of African descent from the grand jury and from the petit jti.ry,ia a {, violation of their personal rights.(h)-[ED. (,) EX parte Francois, 3 Woods, 367. 'Bee Ex parte Kinney, 8 Hughes, 9; Ellis Y.,StiLte,42 Ala·. 520. , (y) Ward v. Flood, 48 Cal. 36; 00& y.Oarter, 481nd. m; State ,v. McCann, 21 Ohln St. 129; U. S. v. Buntin, 10 Fed. Rep. 730, and note, 736. Missouri Y. Lewis, 101 U. S. 22. (a) U. S. v. Reese, 92 U. S.218; U. 8. v. Cru''''_ .hank, 92 U. S. 642; S. 0.1 Woods, 308. (6) U. S. v. Reese. 92 U. S. :/18; U. S. Y. Cruikshank, 92 U. 8. 642; 1 Woods,8OS; U. S. v. Pe. tersburg Jndges, 14 Am. L. Reg. 105; Van Valken. burg v. Brown, 43 Cal.43; Wood Y. )'itzgerald, aOr.li6lI. (c) Van Valkenburg v. Brown',43 Cal: 43. (II) Miner y. HapperJllltt, 21 Wall. 178;;U. S. Y. CrUikshank, 92 U. 8. 665; 1 Woods, 308; U. S. ,. Beese, 92 U. S. 214; Alithony v. Haldem8i1;1 ERn. 6Q; HedgmanT. Mlcl1. 61; IT. S.Y. Petersburg Judges, 14 Am. L. Reg. 105. ' (0) Neal Y. Delaware, 103 U. S. 370" , (f) Spencerv. BORrd,l McArth.169. See8eelel Y. Enox, 2 Woods, 368. ! , (B') Neal v. Dell\ware, 103 U; , (h) Strander v. Weet Virginia, 100 U. S. 303; Virginia v. Rives, ld. 315; Ex parte' Virginia, 14. 339. But a. to selection or Juron see In reConnty Jullge., 8 Hughee, 616.
586
,EDERAL
UNITED STATES V. CHILDEBS.
(DiBtrict Oourt, D. Orego,n. June 27, 1882.) GRANT TO THE NORTHERN PACIFIC RAILROAD COMPANY.
By the act.. of July 2, 1864, (13 8t. 365) the sections along tb,e line of the Northern Pacific Railroad Company, for 40 miles on either,side of the line in the territories and 20 miles in thestafes, is apart and devoted to construction of the road of said' corporation; but said act is not a present grant of said lands to said corporation, but only in effect an agreement or provision that the same shall be conveyed t.o it absolutely when and as fast as ally 25 miles of said road is constructed and accepted by the United States; and in the mean time the legal title to the unearned and unpatented sections is in the United States, who may, therefore, maintain legal proceedings against anyone that unlawfully cuts timber thereon.
Information for Cutting Timber on Public Lands. J. F.WatBon,for plaintiff. DEADY, D. J. The defendant is accused by the information herein of the crime of cutting timber on the pnblic lands of the Unite,d States, within the jurisdiction of this court, with the intent to dispose of the same, contrary to the statute of, the United States. The defendant pleads "not guilty," and. submits the case to the Murt for judgment upon the following statement of facts, which it is agreed between him. self and the district attorney shall stand' be' Qo:o.sidered. as the special verdict of a jury; duly found and given in the, case, npon a trial of the issue made by said plea,. to-wit: .·· That the defendant, in the year 1880, went upon the north-east t of section 1, of township 2 north, range 8 east, of the Wallamet meridian, situate on the south bank of the Columbia river, near Shell Rock, about 12 miles above the Cascades, in the county of Wasco. and state of Oregon, under a contract with the Northern Pacific Railroad Company to purchase the same of it in five years thereafter, with a permit therein to cut timber thereon for the improvement of the premises; that the defendant built a house thereon and constructed a flume upon which to float wood to the river, and afterwards sold his improvements upon the premises to a third person for $1,000, and abm.doned them; that during his occupancy of the premises he cut about 600 tree'8 from about 10 acres of the same, from which he made about 1,200 cords of firewood, that he boated to the Dalles, a distance of about 28 miles, and sold it for $4,800; that said timber was worth while uncut about 50 cents a tree. or 25 cents a cord; and that the premises are within the limits of the grant to the Northern Pacific Railroad Company, as provided in sections 3 and 4 of the act of July 2, 1864, (13 St. 365,) granting lands to aid in the construction of said railway, but being as yet' unearned' and unpatented because ·not opposite to and coterminous with' any' complete section' or portion of the road of said corporation." . ..I?., .. ,
