other materials for its posts, piers, stations, and other needful uses in the construction, maintenance, and operation of said lines of telegraph, and may pre-empt and use such portion of the unoccupied public lands subject to pre-emption through which its said lines of telegraph may be located as may be necessary for its stations, not exceeding forty acres for each station; but such stations shall not be within fifteen miles of each other.

SEC. 2. That telegraphic communications between the several departments of the government of the United States and their officers and agents shall, in their transmission over the lines of any of said companies, have priority over all other business, and shall be sent at rates to be annually fixed by the Postmaster-General.

SEC. 3. That the rights and privileges hereby granted shall not be transferred by any company acting under this act to any other corporation, association, or person: Prorided, however, That the United States may at any time after the expiration of five years from the date of the passage of this act, for postal, military, or other purposes, purchase all the telegraph lines, property, and effects of any or all of said companies at an appraised value, to be ascertained by five competent, disinterested persons, two of whom shall be selected by the Postmaster-General of the United States, two by the company interested, and one by the four so previously selected. SEC. 4. That before any telegraph company shall exercise any of the powers or privileges conferred by this act, such company shall file their written acceptance with the Postmaster-General of the restrictions and obligations required by this act.

The recent decision of the supreme court in the case of The City of Richmond v. The Southern Bell Telephone and Telegraph Company (174 U. S., ) is against the above contention of the Inland Telephone and Telegraph Company. In that case the Southern Bell Telephone and Telegraph Company filed a bill for an injunction to restrain the city of Richmond, its agents, officers and all others from cutting, removing or in any way injuring the company's lines, poles and wires within that city and from preventing or interfering with the exercise of the rights claimed by the company under the act of July 24, 1866, supra, and also from taking proceedings to inflict and enforce fines and penalties on said company for exercising its alleged rights. The circuit court granted the injunction as prayed, and its decree, though modified in certain particulars, was affirmed by the circuit court of appeals. The case presented the question whether a telephone line was a telegraph line within the meaning and intent of the said act of 1866 and upon that question the court said:

But independently of any question as to the extent of the authority granted to "telegraph" companies by the act of 1866, we are of opinion that the courts below erred in holding that the plaintiff, in respect of the particular business it was conducting, could invoke the protection of that act. The plaintiff's charter, it is true, describes it as a telephone and telegraph company. Still, as disclosed by the bill and the evidence in the cause, the business in which it was engaged and for the protection of which against hostile local action it invoked the aid of the federal court, was the business transacted by using what is commonly called a "telephone," which is described in an agreement between the Western Union Telegraph Company and the National Beil Telephone Company, in 1879, as "an instrument for electrically transmitting or receiving articulate speech."

It may be that the public policy intended to be promoted by the act of Congress of 1866 would suggest the granting to telephone companies of the rights and privi

leges accorded to telegraph companies. And it may be that if the telephone had been known and in use when that act was passed, Congress would have embraced in its provisions companies employing instruments for electrically transmitting articulate speech. But the question is, not what Congress might have done in 1866 nor what it may or ought now to do, but what was in its mind when enacting the statute in question. Nothing was then distinctly known of any device by which articulate speech could be electrically transmitted or received between different points, more or less distant from each other, nor of companies organized for transmitting messages in that mode. Bell's invention was not made public until 1876. Of the different modes now employed to electrically transmit messages between distant points, Congress in 1866 knew only of the invention then and now popularly called the telegraph. When therefore the act of 1866 speaks of telegraph companies, it could have meant only such companies as employed the means then used or embraced by existing inventions for the purpose of transmitting messages merely by sounds of instruments and by signs or writings.

In 1887 the Postmaster General submitted to the Attorney General the question whether a telephone company or line, offering to accept the conditions prescribed in Title LXV of the Revised Statutes (being the act of 1866), could obtain the privileges therein specified. Attorney General Garland replied: "The subject of Title LXV of Revised Statutes is telegraphs. In all its sections the words 'telegraph,' 'telegraph company' and 'telegram' define and limit the subject of the legislation. When the law was made, the electric telegraph, as distinguished from the older forms, was what the lawmakers had in view. The electric telegraph, when the law was made, as to the general public, transmitted only written communications. Its mode of conduct is yet substantially the same. This transmission of written messages is closely analogous to the United States mail service. Hence the acceptance of the provisions of the law by the telegraph company was required to be filed with the Postmaster General, who has charge of the mail service. Under the several sections embraced in the Title, in consideration of the right of way and the grant of the right to pre-empt forty acres of land for stations at intervals of not less than fifteen miles, certain privileges as to priority of right over the line, also the right to purchase, with power to annually fix the rate of compensation, were secured to the government. Governmental communications to all distant points are almost all, if not all, in writing. The useful government privileges which formed an important element in the legislation would be entirely inapplicable to telephone lines, by which oral communications only are transmitted. A purchase of a telephone line certainly was not in the mind of the lawmakers. In common and technical language alike, telegraphy and telephony have different significations. Neither includes all of the other. The science of telephony as now understood was little known as to practical utility in 1866, when the greater part of the law contained in the Title was passed. Telephone companies therefore are not within the 'category of the grantees of the privileges conferred by the statute.' If similar privileges ought to be granted to telephone companies, such a grant would come within the scope of legislative rather than administrative power." (19 Opin. 37.)

....

It is not the function of the judiciary, because of discoveries after the act of 1866, to broaden the provisions of that act so that it will include corporations or companies that were not, and could not have been at that time, within the contemplation of Congress The conclusion that the act of 1866 confers upon telephone companies the valuable rights and privileges therein specified is not authorized by any explicit language used by Congress, and can be justified by implication only. But we are unwilling to rest the construction of an important act of Congress upon implication merely; particularly if that construction might tend to narrow the full control always exercised by the local authorities of the States over streets and alleys within their respective jurisdictions. If Congress desires to extend the provisions

H

of the act of 1866 to companies engaged in the business of electrically transmitting articulate speech-that is, to companies popularly known as telephone companies, and never otherwise designated in common speech-let it do so in plain words. It will be time enough when such legislation is enacted to consider any questions of constitutional law that may be suggested by it.

It is clear under this authoritative decision of the supreme court that no grant or authority exists in the act of 1866 for the construction of the aforesaid telephone lines across the Umatilla and the Fort Hall Indian reservations. Except as to that portion of the Rocky Mountain Bell Telephone Company's line which is upon the right of way of the Utah Northern railroad, I am unable to find any grant or authority for the construction of either line within the limits of these reservations, and am of opinion that, with this exception, the companies in question by entering upon and constructing their respective lines unlawfully invaded and trespassed upon the reservations, and are liable, therefore, to be dealt with as trespassers.

The eleventh section of the act of September 1, 1888 (25 Stat., 452, 456), entitled

An act to accept and ratify an agreement made with the Shoshone and Bannack Indians, for the surrender and relinquishment to the United States of a portion of the Fort Hall reservation, in the Territory of Idaho, for the purpose of a town-site, and for the grant of a right of way through said reservation to the Utah and Northern Railway Company, and for other purposes,

authorizes the use of the lands taken by said railway company thereunder for its right of way and station grounds—

for such purposes only as shall be necessary for the construction, maintenance, and convenient operation of a railway, telegraph or telephone lines.

It is not deemed material under the quoted provision, so far as the United States or the Indians are concerned, whether the railway company constructs, maintains and operates the telephone line or permits or authorizes another party to do so. As to that portion of its line within the limits of the reservation which is on the railroad company's right of way, I am of opinion that the Rocky Mountain Bell Telephone Company is not a trespasser against the government or the Indians.

The Indians within the United States stand in their relation to the United States as wards to a guardian (Cherokee Nation v. The State of Georgia, 5 Peters, 1, 17; Worcester v. State of Georgia, 6 Peters, 515, 559; United States v. Kagama, 118 U. S., 375; Choctaw Nation v. United States, 119 U. S., 1, 27; and Stephens v. Cherokee Nation, 174 U. S., 445, 481). In view of the paramount authority of Congress over the Indian tribes and of the duties imposed on the government by their condition of dependency, congress has from time to time passed laws for the government of the Indian country. By section 441 of the Revised Statutes the Secretary of the Interior is charged with the supervision of public business relating to the Indians; and by section 463 is committed to the Commissioner of Indian Affairs, under the

direction of the Secretary of the Interior, and agreeably to such regulations as the President may prescribe, "the management of all Indian affairs, and all matters arising out of Indian relations." Sections 2147 and 2149 of the Revised Statutes, respectively, provide:

SEC. 2147. The superintendent of Indian affairs, and the Indian agents and subagents, shall have authority to remove from the Indian country all persons found therein contrary to law; and the President is authorized to direct the military force to be employed in such removal.

SEC. 2149. The Commissioner of Indian Affairs is authorized and required, with the approval of the Secretary of the Interior, to remove from any tribal reservation any person being therein without authority of law, or whose presence within the limits of the reservation may, in the judgment of the Commissioner, be detrimental to the peace and welfare of the Indians; and may employ for the purpose such force as may be necessary to enable the agent to effect the removal of such person.

Relative to the exercise of the authority to remove persons under sections 2147 and 2149 Assistant Attorney General Shields in an opinion dated October 19, 1889, said:

Whether a person is in an Indian country "without authority" of law, or whether his "presence within the limits of the reservation" is "detrimental to the peace and welfare of the Indians" must be determined primarily by the enlightened judgment of the Commissioner of Indian Affairs. But, if so found, with the approval of the Secretary of the Interior, the offending person or persons may be summarily removed from any tribal reservation.

This opinion has received the approval of several Secretaries of the Interior, and I concur in the views expressed therein.

While authority is thus explicitly given to remove persons from tribal reservations, I am not aware of any express statutory authority for the removal therefrom of the property of trespassers. I think, however, that such express authority is not necessary. The authority to remove property, brought upon a reservation without authority of law, or the presence of which upon a reservation is detrimental to the peace and welfare of the Indians, seems necessarily to follow from the authority to remove persons under like circumstances, and from the general power of management of Indian affairs with which the Commissioner of Indian Affairs, acting under the direction of the Secretary of the Interior, is clothed.

I am therefore of opinion that the Commissioner of Indian Affairs, with the approval of the Secretary, may remove from these reservations the agents and employes of these companies, and also the wires, poles and other property of the companies where the same are upon the reservations without authority of law as aforesaid.

The propriety of citing each company to withdraw its agents and employes, and its wires, poles and other property within a stated time, before exercising the aforesaid authority to remove them from the reservations, will be so readily appreciated as to render any suggestion upon that point unnecessary on my part.

The method of proceeding against the companies for any injury done or damage inflicted by their unlawful invasion of and trespass upon the reservations is by the institution of appropriate actions in the courts. Approved, July 1, 1899.

E. A. HITCHCOCK,

Secretary.

DEVER ET AL. v. AYARS.

Motion for review of departmental decision of March 6, 1899, 28 L. D., 169, denied by Secretary Hitchcock, July 1, 1899.

MINING CLAIM-PATENT-EXPENDITURE.

MAYFLOWER GOLD MINING CO.

A single application may embrace, and a single patent issue for placer and lode claims, where the land involved lies in one body or piece, has been claimed or located for valuable deposits, and the several claims have a common ownership Under an application for mineral patent, which embraces several locations held in common, and is made and passed to entry prior to July 1, 1898, proof of an expenditure of five hundred dollars on the group of claims is sufficient, under amended rule 53 of the mining regulations.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.)

July 3, 1899.

(G. B. G.)

July 13, 1895, the Mayflower Gold Mining Company made its application for a patent under section 2325 of the Revised Statutes for the Beaver Springs placer No. 1, the Beaver Springs placer No. 2, and the Mayflower and Highland Chief lode claims.

These claims are contiguous, the two placer claims adjoining each other, the Mayflower lode adjoining the Beaver Springs placer No. 2 on the southwest, and the Highland Chief lode adjoining the Beaver Springs placer No. 1 on the northwest.

An entry of these claims was allowed, and patent certificate issued October 12, 1895. This entry was before the Department once before upon another question. Elda Mining and Milling Company . Mayflower Gold Mining Company (26 L. D., 573).

August 18, 1898, your office, upon an examination of the evidence submitted in support of the application for patent, found that the said Highland Chief and Mayflower lode claims were contiguous to but not embraced within either of the placer claims, and held that "there is no authority under the mining laws for embracing in an application for patent a lode and a placer claim, where the lode is not within the exterior limits of the placer location." The claimant company was thereupon notified that it would be required to elect whether it desired to retain in its entry the placer claims or one of the lode claims (the