AH HEE v. CRIPPEN, 19 Cal. 491

Field, C. J. delivered the opinion of the Court Baldwin, J. and Cope, J. concurring. The sixty-fourth

section of the Revenue Act of 1860 declares that no person who is not a citizen of the United States, or who has not previously declared his intention to become such, (Californian Indians excepted) shall be allowed “ to take gold from the mines of this State, or hold a mining claim therein,” without a license as subsequently provided by the act.

The plaintiff is a Chinaman, and, of'course, is not a citizen of the United States, or entitled to become such under any existing legislation of Congress, and was engaged in mining upon the Mariposa estate, the property of Fremont and others, under a lease from the owners. The defendant is Sheriff of Mariposa county, and the property in controversy was seized by him in the enforcement of the license tax, claimed of the plaintiff under the

section in question. The point for determination is, whether the

section refers to mines contained in lands which are the private property of individuals, as well as to those in the public lands of the State, or of the United States. We are clearly of the opinion that it refers only to mines in the public lands. The owners of the Mariposa estate derive their title under a grant of the former Mexican Government and a patent from the United States issued upon its confirmation. That patent invested the patentee with the ownership of the precious metals which the land may contain.

It transferred to him all interests which the United States possessed in the soil, and everything imbedded in or connected therewith. (Moore v. Smaw, and Fremont v. Flower, 17 Cal. 200.) By force of this instrument, therefore, the owners possess whatever “ mining claims ” exist upon the estate, and their rights in that respect can neither be enlarged nor diminished by any license from the State. They hold such claims independent of the

section in question, and may extract the gold themselves, or allow others to extract it, upon such terms as they may judge most advantageous to their interests. Our conclusion as to the limitation which the general language of the

section must receive, is strengthened by a consideration that a like limitation has uniformly been applied to language equally comprehensive in previous statutes. For example: the Act of 1850, “for the better regulation of the mines, and the government of foreign miners,” in its first

section declares that “ no person who is not a native or natural born citizen of the United States, or who may not have become a citizen under the treaty of Guadalupe Hidalgo, (all native Californian Indians excepted) shall be permitted to mine in any part of this State without having first obtained a license ” according to the provisions of the act. Yet, that the Legislature must have intended the prohibition against mining without a license, to apply only to mining on the public lands, notwithstanding the broad terms used, is evident from the fourteenth

section of the same act. By that section, it is made the duty of the Governor, so soon as he shall be officially informed of the passage of a law by Congress assuming the control of the mines of the State, to issue his proclamation requiring all collectors of licenses to foreign miners to stop the issuing of licenses. The legislation thus anticipated plainly referred to the public lands which were subject to the disposition and control of Congress. Judgment affirmed.