shall be deemed guilty of a misdemeanor, and upon conviction shall be fined in any sum not exceeding five hundred dollars, and to which may be added imprisonment for any term not exceeding six months.

9. These rules and regulations shall take effect September 1, 1886, and all existing rules and regulations heretofore prescribed under said act inconsistent herewith are hereby revoked.

GENTLEMEN: Section 7 of regulations of August 5, 1886, prescribed under the act of June 3, 1878, to wit: "7. No person will be permitted to fell or remove any growing trees of any kind whatsoever less than eight inches in diameter," will not be regarded as applicable to black or "lodge pole" pine growing in separate bodies upon mineral lands. Very respectfully,

S. M. STOCKSLAGER,
Acting Commissioner.

Approved to take effect the 1st day of June, 1887.

L. Q. C. LAMAR, Secretary.

FORCE AND EFFECT OF RULES AND REGULATIONS BY THE SECRETARY OF THE INTERIOR UNDER THE ACT OF JUNE 3, 1878 (20 STAT., 88).

(a) The rules and regulations as to the cutting of timber upon the public lands of the United States prescribed by the Secretary of the Interior under laws, United States, Forty-fifth Congress, second session, chapter 150, will be considered such an act of the executive department of the United States as the courts will take judicial notice of under Revised Statutes, Montana, division 1, section 625; and it is not necessary to set out such rules in a complaint seeking to recover for an infringement thereof.

(b) Said law is constitutional, and the rules and regulations of the Secretary of the Interior made thereunder are not unconstitutional as trenching upon the domain of the legislative department of the Government.

(c) In the absence of any statutory license in the matter, the cutting

of timber less than 8 inches in diameter constitutes a trespass. (See Land Office Report for 1887, p. 479, case of United States v. Williams and another, supreme court of Montana, January 26, 1887. Judge McLeary.)

At the September term, 1886, of United States district court, Boise City, Idaho, Judge Broderick presiding, four Chinamen (Wing Ling, Ah Sin, et al.) were convicted of timber trespass on the public mineral lands for failing to utilize all of each tree cut that could profitably be used, and to take precautions to guard against the spread of forest fires as required by Department regulations under the act of June 3, 1878. (Circular, August 5, 1886, section 8; see Land Office Report for 1887, p. 480.)

UNITED STATES v. REDER.

District court, South Dakota (69 Fed. Rep., 965).

PUBLIC LANDS-CUTTING TIMBER FROM MINERAL LANDS-INDICTMENT.

On the trial of an indictment for cutting timber from the mineral lands of the United States for purposes other than those connected with building, agricultural, mining, or other domestic uses contrary to the act of June 3, 1878, the intent is wholly immaterial, and it is only necessary to show that the prohibited acts were done.

SAME-REGULATIONS BY SECRETARY OF THE INTERIOR.

One who cuts and removes timber from the mineral lands of the United States and sells the same, or the lumber manufactured therefrom, without taking from the purchaser any statement in writing as to the purposes for which the same is intended to be used, as required by the regulations made by the Secretary of the Interior under the authority of the act of June 3, 1878, is guilty of a violation of that statute and subject to the penalties prescribed by it.

UNITED STATES v. MADISON A. TIPTON.

United States circuit court, South Dakota, western division.

INSTRUCTIONS OF THE COURT, FEBRUARY 18, 1896.

Hon. A. D. THOMAS, Presiding Judge:

It is charged in the indictment that Madison A. Tipton committed the offense set forth on the 3d day of August, 1894, in Pennington County. I wish, in the first place, to advise you that the date alleged in the indictment, the 3d day of August, 1894, is not material when you come to consider the proof. When you come to the proof, it is not necessary to show that the offense, if any was committed, was in fact committed on that particular day alleged in the indictment. The indictment was found and filed in this court the 25th of September, 1895, and if you find that an offense was in fact committed, and committed within three years prior to that time, to wit, the 25th day of September, 1895, that answers the purpose of the statute and the rule of law.

In order that you may definitely understand the issues which you have to find-which you have to determine-I will read the indictment,

or that portion which is material. It is charged that "Madison A. Tipton, late of Pennington County, in said district, on the 3d day of August, 1894, at Pennington County, unlawfully did cut, cause, and procure to be cut a large amount of timber, to wit, a large number of pine trees then and there growing and being on the public lands of the United States, the said trees then and there being and growing in one of the public-land districts of the United States of America, to wit, the State of South Dakota, with the intent then and there to export the same from the State of South Dakota, and with the intent then and there to dispose of the same contrary to the form, force, and effect of the statutes of the United States in such case provided, and contrary to the rules and regulations in pursuance thereof made by the Secretary of the Interior."

You will notice that the gist of the offense charged is the intent; that is, the gist of the offense is that he cut, caused, and procured to be cut timber, as charged, with the intent, first, to export it out of the State of South Dakota, and, second, to dispose of it contrary to the statute and the rules prescribed by the Secretary of the Interior.

To this indictment the defendant has interposed the plea of not guilty, and by that plea has put the prosecution to the proof of all the material allegations of the indictment with that degree of certainty required in all criminal cases.

The indictment seems to have been drawn under section 4, chapter 151, found in the Supplement of the Statutes of the United States, and reads as follows, or that portion which is material for us at present:

"That after the passage of this act" (that was June, 1878) "it shall be unlawful to cut, or cause or procure to be cut, or wantonly destroy, any timber growing on any of the lands of the United States in said States and Territories" (and I would say that this law, by another law, is made applicable to the State of South Dakota. Understand me, this law which I now read is made applicable to this State by law of Congress), "or remove, or cause to be removed, any timber from said public lands with intent to export or dispose of the same." And then provides for punishment and conviction.

The charge in this indictment is cutting, causing and procuring to be cut, with the intent stated in the indictment.

Now, it has been shown by the evidence on the part of the Government that these lands from which the timber was alleged to have been taken and cut, or rather cut, were mineral lands of the United States, and therefore it is proper for me to read you another law, which must be taken in connection with the statute which I have just read. That is the law of June 3, 1878, found in 20 Statutes at Large, 88, chapter 150: "That all citizens of the United States and other persons bona fide residents of the States of Colorado," etc. (including Dakota), "and all other mineral districts of the United States shall be, and are hereby, authorized and permitted to fell and remove for building, agricultural,

mining, or other domestic purposes any timber or other trees growing or being upon the public lands, said lands being mineral and not subject to entry under existing laws of the United States except for mineral entry, in either of said States, Territories, or districts of which such citizens or persons may be at the time bona fide residents, subject to such rules and regulations as the Secretary of the Interior may prescribe for the protection of the timber and of the undergrowth growing upon such lands, and for other purposes."

It is provided in section 3 of the act which I have just read as follows: "Any person or persons who shall violate the provisions of this act or any rules and regulations in pursuance thereof made by the Secretary of the Interior shall be deemed guilty of a misdemeanor," and upon conviction shall be punished as prescribed in that statute.

The law is that it is competent for the Congress of the United States to provide in this class of cases as well as others, and it has been the constant practice of Congress to provide that the head of the Department, in this case the Secretary of the Interior, shall make rules and regulations for the proper carrying out of the law, the proper execution of it, provide various details, and when the rules and regulations of the head of the Department, in this case the Secretary of the Interior, are made pursuant to the law they have the force and effect of law, become a part of the law.

While from section 4, which I first read, it would be a violation of the statute to cut or cause to be cut timber with the intention to export or dispose of the same, the law I just read-that, is the mineral law so called-permits certain persons to cut and remove timber from the mineral lands under certain conditions. It is necessary to remember what those conditions are. In other words, under section 4, which I first read, it is an offense to cut and remove timber, as you have heard there, with the intent to export or dispose of it contrary to the statute, contrary to the law which you have heard there. Now, the Government has granted a license to certain parties on certain conditions to cut timber and procure it to be cut upon the mineral lands of the United States, as in the statute I have read to you.

You will have to remember and consider whether this timber, if caused or procured to be cut, was cut under the regulations prescribed by this statute, and in accordance with certain rules of the Secretary of the Interior, to which I will call your attention.

First, who are the persons that may cut? Citizens of the United States, and other persons, bona fide residents of the State of South Dakota. They are authorized and permitted to fell and remove, for what? For building, for agricultural, for mining, or other domestic purposes. If upon the mineral lands of the United States, as therein designated, subject to such rules and regulations as the Secretary of the Interior may prescribe for the protection of the timber and undergrowth, and for other purposes.

The Government owns these lands; it owned them at the time stated in the indictment, and it had a right to provide that no person should go upon those lands and cut or procure to be cut any timber for any purpose. It had a right to do that; but it saw fit to grant a license to certain persons under certain conditions by which timber might be cut, or some portion of it, as you have heard. The Government giving that license had a right to prescribe the conditions under which persons could exercise that license. Therefore it has, as you have heard, prescribed certain conditions designated in the statute, and it is therein provided that cutting, removing, etc., must be subject to the rules and regulations prescribed by the Secretary of the Interior.

Now, the Secretary of the Interior has prescribed certain rules. Two of those rules I will read and call your attention to. The courts and juries take judicial notice of those rules. They need not be proven as a part of the evidence. We take notice of them as of the law when made pursuant to the authority of Congress. I advise you these rules are made by the Secretary of the Interior pursuant to an act of Congress. The first is rule 3: "No person not a citizen or bona fide resident of a State, Territory, or other mineral district provided for in said act is permitted to fell or remove timber from mineral lands therein." (No person not a citizen or bona fide resident of the State.) "And no person, firm, or corporation felling or removing timber under this act shall sell or dispose of the same, or the lumber manufactured therefrom, to any other than citizens and bona fide residents of the State and Territory where such timber is cut, nor for any other purpose than for the legitimate use of said purchaser for the purposes mentioned in said act," namely, for building, mining, agriculture, or other domestic purposes.

Rule 4: "Every owner or manager of a sawmill or other person felling or removing timber under the provisions of this act shall keep a record of all timber so cut and removed, stating time when cut, names of parties cutting the same, or in charge of the work, and describing the land from whence cut by legal subdivisions if surveyed, and as near as practicable if not surveyed, with a statement of the evidence upon which it is claimed that the land is mineral in character, and stating also the kind and quantity of lumber manufactured therefrom, together with the names of parties to whom any such timber or lumber is sold, dates of sale, and the purposes for which sold; and shall not sell or dispose of such timber or lumber made from such timber without taking from the purchaser a written agreement that the same shall not be used except for building, agricultural, mining, or other domestic purposes within the State or Territory; and every such purchaser shall further be required to file with said owner or manager a certificate, under oath, that he purchases such timber or lumber exclusively for his own use, and for the purposes aforesaid."

Now, you have noticed as I have read to you and called your attention to the statute, that by section 3 "any person or persons who shall