effectual, must be good at the time it is made. When perfected, it has the effect of a grant by the United States of the right of present and exclusive possession." Belk v. Meagher, 104 U. S. 279. See, also, Gwillim v. Donnellan, 115 U. S. 45, 5 Sup. Ct. Rep. 1110.

The locators of the Lady of the Hills lode being found by the court below to be citizens of the United States, and therefore competent to make a valid location of that claim, and the court having further found that in making the location they complied with the laws of the United States, the laws of the territory, and the customs, rules, and regulations of miners in the district in which the claim was situated, they did by such location become the grantees of the United States of the exclusive right to the possession of such claim, and did thereby acquire a qualified title to the property, which they were authorized to convey to any person who might desire to purchase the same. The territorial law, as we have seen, authorized an alien to take, hold, and transfer property, real and personal, within this territory. In taking the conveyance from Leary of his interest in the Lady of the Hills claim, Gorman, therefore, violated no territorial law; and if, by reason of his alienage, he was not authorized to hold the same, it was only as against the government of the United States, of which, we think, the government could alone take advantage. that the location of the Lady of the Hills claim, as found by the court, was good and valid at the time it was made, and the mineral lands embraced therein were withdrawn and segregated from the public domain by such location, Gorman, though a alien, could, in our opinion, take, hold, and transfer the same to a qualified person or corporation. The government had instituted no proceedings to dispossess him, and the territory had expressly permitted him to take, hold, and transfer the quali fied title vested in the miner by his location. It is not claimed that when Leary conveyed his interest in the Lady of the Hills claim to Gorman he had any actual intention of abandoning the claim, and we think such a conveyance had no more the effect of abandonment than if the claim had been conveyed by Leary to

Assuming

a citizen. Leary, being one of the owners of a valid and properly located mining claim, had an undoubted right to convey his interest, and such conveyance, whether made to citizen or alien, was in no sense an abandonment of the claim. There was no want of capacity in Leary to convey, but in Gorman to take, that is claimed. There being no abandonment, the only method by which the claim could be appropriated would be by a forfeiture of the same on the ground that the claim was granted to the locators upon the condition subsequent that it should not be held by an alien. But it is well settled that conditions subsequent can only be taken advantage of by the party making the grant. The law, applicable to such conditions subsequent is thus stated by the supreme court of the United States in Schulenberg v. Harriman, 21 Wall. 44: "And it is settled law that no one can take advantage of the non-performance of a condition subsequent annexed to an estate in fee but the grantor or his heirs, or the successors of the grantor, if the grant proceed from an artificial person; and if they do not see fit to assert their right to enforce a forfeiture on that ground the title remains unimpaired in the grantee. The authorities on this point, with hardly an exception, are all one way from the Year Books down. And the same doctrine obtains where the grant upon condition proceeds from the government; no individual can assail the title it has conveyed on the ground that the grantee has failed to perform the conditions annexed. In what manner the reserved right of the grantor for breach of the condition must be asserted so as to restore the estate depends upon the character of the grant. If it be a private grant, that right must be asserted by entry, or its equivalent. If the grant be a public one, it must be asserted by judicial proceedings authorized by law, the equivalent of an inquest of office at common law, finding the tact of forfeiture, and adjudging the restoration on that ground, or there must be some legislative assertion of ownership of the property for breach of the condition, such as an act directing the possession and appropriation of the property, or that it may be offered for sale or settlement. At common law the sovereign could not make an entry in person,

and therefore an office found was necessary to determine the estate; but, as said by this court in a late case: "The mode of asserting or resuming the forfeited grant is subject to the legislative authority of the government. It may be after judicial investigation, or by taking possession directly under the authority of the government without these preliminary proceedings.'" Nicoll v. Railroad Co., 12 N. Y. 121; U. S. v. Repentigny, 5 Wall, 267; Dewey v. Williams, 40 N. H. 222; Hooper v. Cummings, 45 Me. 359; Southard v. Railroad Co.. 26 N. J. Law, 13.

A case in which the facts were substantially the same as in the case at bar came before the supreme court of California in Ferguson v. Neville, 61 Cal. 356. In that case the mining claim was duly located by citizens, transferred by them to aliens, who, after holding it for about a year, conveyed it to a qualified person. After such last conveyance, and while the claim was in the possession of the citizens,-the plaintiffs in that action,--the defendant's grantors made a location of the claim. That court held that the plaintiffs acquired a good title to the claim from the aliens, and in its opinion says: "The title. therefore, passed out of the United States, and was vested in Rose & Rehberg, who, being the owners thereof, had a right to make any sale or disposition of the property not inconsistent with the laws of this state. By Article 1, § 17, of the constitution in force at that time, it was provided that 'foreigners who are or who may hereafter become bona fide residents of this state, shall enjoy the same rights in respect to the possession, enjoyment, and inheritance of property as native-born citizens.' It is admitted in the record in the case that the grantors of plaintiffs, although Chinese, were all of them bona fide residents of the State of California. It is very clear, therefore, that Wing Hung and his co grantees were capable of taking by purchase the mining ground in controversy; and their grantors, having acquired the title of the United States to such mining ground, had a full and complete right to convey the same.

*

*

It is not pretended there has been an inquest of office,' or that any steps were ever taken on behalf of the government

to seize the land, or in any manner to test the right of Wing Hung and his co-grantees to hold the same; but the case simply shows that after there was divestiture of the title of the United States by a valid location under the rules and customs of the vicinity by a locator, in accordance with the mining laws, and after an adverse possession and occupancy, long continued, and still existing at the time, the defendant's grantors attempted to acquire the title to the mining ground in controversy by a second location. We are of the opinion that they acquired no right or title by such location, and that the new trial was properly granted." This case was commented on by the same court, and the law as there laid down approved, in the subsequent case of Lee Doon v. Tesh, 68 Cal. 43, 6 Pac. Rep. 97, and 8 Pac. Rep. 621. The respondents rely with much con- ' fidence upon the decisions made in the cases of Chapman v. Toy Long, 4 Sawy. 28, and Tibbitts v. Ah Tong, 4 Mont. 536, 2 Pac. Rep. 759. The decision in the former case was made by Judge DEADY on a motion for a provisional injunction, and seems to have been based largely upon a section of the constitution of Oregon, which provided that "No Chinaman, not a resident of the state at the adoption of the constitution, shall ever hold any real estate or mining claim or work any mining claim therein." Section 8. Art. 15, Const. Or. In the latter case the decision was made by a divided court, and the law as laid down in the opinion of the dissenting judge more nearly expresses the views entertained by this court, as applicable to the questions involved in this case. We are of the opinion, therefore, that the second conclusion of law, as stated by the learned court below,-that the conveyance by Leary to Gorman, an alien, was in effect an absolute abandonment and forfeiture of the Lady of the Hills claim, was erroneous; and, as the judgment rendered in favor of the defendants seems to have been based mainly upon this conclusion of law, the judgment must be reversed, and a new trial granted; and it is so granted; and it is so ordered. All the judges concurring.

1.

STATE V. FIRST NATIONAL BANK OF CLARK.

Section 4, Chapter 866, U. S. St. 1888, in respect to the jurisdiction of state courts in all actions by or against national banks, refers exclusively to civil actions, and the right of the state to punish a national bank for a violation of its police laws cannot be predicated upon it. 2. For any public offense which it can commit, a corporation may be indicted the same as a natural person.

3. A national bank, or any other corporation which congress, in the exercise of its legal powers, may authorize to be organized and operated, must be allowed to pursue the business and purpose of its organization, and exercise all the powers necessary or incident to such business without any restraint by or accountability to state laws; but, in the absence of other expresssion by congress; this is the extent of its exemption from subjection to state legislation.

4. The state law makes the taking of illegal interest a misdemeanor, and, in case of a corporation, punishes the same by fine. To require a national bank to so pay money to the state is not necessarily such an interference with the proper discharge of its duties to the government as will make such requirement invalid.

5. One of the powers included in the authorized business of a national bank is to receive interest on loans, which power is thus defined in the law: "Every association may take, receive, reserve, and charge, on any loan or discount made, or upon any note, bill of exchange, or other evidences of debt, interest allowed by the laws of the state or territory where the bank is located, and no more," etc.

6. A state law, making it a misdemeanor for the bank to do an act which the creative law has expressly refused to authorize or allow it to do, cannot "interfere with or impair its efficiency in performing its funetions," or, if enforced against it, "incapacitate it from discharging its duties."

7.

With a few exceptions, having no pertinency in this case, the police power in the United States belongs to and resides in the states.

8. The police power of the state yields to the act of congress, for it is "the supreme law of the land;" but it yields only when and to the extent that an enforcement of the police law would interfere with the act of congress, or with the free exercise of rights conferred, or the discharge of duties enjoined, by it.

9. State sovereignty remains unabridged for the punishment of all crimes committed within the limits of a state, except so far as they have been brought within the sphere of federal jurisdiction by the penal laws of the United States.

10. The provisions of Section 30 of the act referred to, declaring what results should follow the taking by a national bank of a greater interest than that allowed by law, is only a declaration of the legal effect of taking such unlawful interest upon the rights of the parties under the