right of entry, under the preceding section, of the mines so opened and improved; provided, that when any association of not less than four persons, severally qualified as above provided, shall have expended not less than $5,000 in working and improving any such mine or mines, such association may enter not exceeding 640 acres including such mining improvements.

17 Stat. 607; R. S. 2348.

§ 665. Pre-emption Claims of Coal Land to be Presented within Sixty Days, etc.-All claims under the preceding section must be presented to the register of the proper land district within sixty days after the date of actual possession and the commencement of improvements on the land, by the filing of a declaratory statement therefor; but when the township plat is not on file at the date of such improvement, filing must be made within sixty days from the receipt of such plat at the district office; and where the improvements shall have been made prior to the expiration of three months from the third day of March, 1873, sixty days from the expiration of such three months shall be allowed for the filing of a declaratory statement, and no sale under the provisions of this section shall be allowed until the expiration of six months from the third day of March, 1873.

17 Stat. 607; R. S. 2349.

§ 666. Only One Entry Allowed.-The three preceding sections shall be held to authorize only one entry by the same person or association of persons; and no association of persons, any member of which shall have taken the benefit of such sections either as an individual or a member of any other association, shall enter or hold any other lands under the provisions thereof; and no member of any association which shall have taken the benefit of such sections shall enter or hold any other lands under their provisions; and all persons claiming under section 417 shall be required to prove their respective rights and pay for the lands filed upon within one year from the time prescribed for filing their respective claims; and upon failure to file the proper notice, or to pay for the land within the required period, the same shall be subject to entry by any other qualified applicant.

17 Stat. 607; R. S. 2350.

§ 667. Conflicting Claims. In case of conflicting claims upon coal lands where the improvements shall be commenced after the third day of March, 1873, priority of possession and

improvement, followed by proper filing and continued good faith, shall determine the preference right to purchase. And also where improvements have already been made prior to the third day of March, 1873, division of the land claimed may be made by legal subdivisions, to include, as near as may be, the valuable improvements of the respective parties. The commissioner of the general land office is authorized to issue all needful rules and regulations for carrying into effect the provisions of this and the four preceding sections.

17 Stat. 607; R. S. 2351.

§ 668. Rights Reserved.-Nothing in the five preceding sections shall be construed to destroy or impair any rights which may have attached prior to the third day of March, 1873, or to authorize the sale of lands valuable for mines of gold, silver, or copper.

17 Stat. 607; R. S. 2352.

The act of April 26, 1882, entitled "An act to amend section 2326 of the revised statutes," etc., modifies some of the rulings of the land department. It provides "that the adverse claim required by section 2326 of the revised statutes may be verified by the oath of any duly authorized agent or attorney in fact of the adverse claimant; if residing or at the time being beyond the limits of the district wherein the claim is situated, may make oath to the adverse claim before the clerk of any court of record of the United States or of the state or territory where the adverse claimant may then be, or before any notary public of such state or territory."

"Sec. 2. That applicants for mineral patents, if residing beyond the limits of the district wherein the claim is situated, may make any oath or affidavit required for proof of citizenship before the clerk of any court of record, or before any notary public of any state or territory."

The act approved March 3, 1881, is as follows: "If in any action brought pursuant to section 2326 of the revised statutes, title to the ground in controversy shall not be established by either party, the jury shall so find, and judgment shall be entered according to the verdict. In such case costs shall not be allowed to either party, and the claimant shall not proceed in the land office, nor be entitled to a patent for the ground in controversy, until he shall have perfected his title."

§ 673.

Sales by Corporation, when Presumed Lawful or Otherwise.

$669. Corporations.-Mining corporations in California are sui generis; they are organized and carried on upon principles wholly different from banking, railroad, insurance, and other like commercial corporations having a subscribed capital stock. In mining corporations as ordinarily formed and conducted there is no agreement, either express or implied, that the stockholders shall pay up any particular stock; and there being no contract, they incur no liability.

In re South Mountain Con. M. Co., 8 Saw. 366.

The only liability of purchasers of stock in such corporations is the constitutional and statutory personal liability for their proportion of the debts and liabilities of the corporation, and the liability of their stock to assessment by the corporation.

In re South Mountain Con. M. Co., 8 Saw. 366.

§ 670. Leading Cases on the Law of Ultra Vires.-Corporations possess such powers, and such only, as the law of their creation confers upon them; and when created by public acts of the legislature, parties dealing with them are chargeable with

notice of their powers and the limitation upon them, and can not plead ignorance in avoidance of the defense of ultra vires.

Franklin Co. v. Lewiston Savings Institution, 68 Me. 43.

The leading case in England upon the subject of ultra vires is that of the East Anglican Railway Co. v. The Eastern Counties Railway Co., 11 C. B. 775. The opinion is given at length in Field's Ultra Vires. In that case it was held that a railway company incorporated by act of parliament can not, even with the assent of its shareholders, legally enter into a contract i volving the application of any of its funds to purposes foreign from those for which it is incorporated. Any member of a corporation may by himself, in his own sole right, sue to prevent or put a stop to proceedings of any kind which are ultra vires. Zabriskie v. Cleveland, C. & C. R. R. Co., How. 381.

As to parties, form of suit, and when it is necessary to sue in the name of the state by consent of the attorney general, see Green's Brice's Ultra Vires, 685–714.

In a case in the state of Nevada it was held that the " corporators" of a corporation are the stockholders, not the trustees; and that the board of trustees had no power to direct the filing of a petition to have the mining corporation adjudged a bankrupt.

Matter of the Lady Bryan M. Co., 2 Abb. 527. ·

The acts of the de facto officers of a mining corporation are valid whenever they concern third persons who had a previous right to demand the act, or have paid a valuable consideration for it.

Savage v. Ball, 17 N. J. Eq. 142.

In an action to enforce a lien upon a mining claim in Utah, owned by a corporation organized under the laws of Great Britain, and for an injunction and receiver, the plainti had a decree for $290,000 and interest. An injunction was granted and receiver appointed by the district court. On appeal the supreme court held that a corporation has no powers except such as are granted by its charter or by necessary implication; that the plaintiff was not an innocent party; that it was not necessary to show that he had actual knowledge that the corporation had no power; that he was bound to take notice of the director's powers, he being one of the incorporators and one of the first board of directors; that courts of equity have no power to dissolve corporations nor to appoint a receiver for a corporation in the absence of a statute conferring that power; and that where

by the terms of a contract one party is bound to do a certain thing, and the other can perform his part at his own option, the contract is not mutual nor binding on either party.

Irwin Davis v. Flagstaff M. Co., 2 Utah, 74; Neal v. Hill, 16 Cal. 145. § 671. Implied Powers.-It is a necessary incident of a mining corporation that it shall have power to contract and bind itself to those dealing with it in matters within the intent of the charter, even though the charter contains no express grant or power to contract or make debts.

Wood Hydraulic H. M. Co. v. King, 45 Ga. 34.

Corporate Purposes and Powers-Smelling-works.-A corporation created "for the purpose of raising and smelting lead ores" has power to purchase smelting-works, with all the appurtenances which are necessary to carry on the business, and to assume a contract entered into by their vendors, providing means for transporting their ores when smelted to market. Moss v. Averill, 10 N. Y. 449.

If in making such purchase some articles should be inIcluded (to wit, shanties, with stoves, etc.) which were not needed for the business of the corporation, the contract would not be thereby rendered void if the purchase altogether were made in good faith, for the sole purpose of prosecuting its legitimate business.

Moss v. Averill, 10 N. Y. 449.

Judicial Conclusions from Corporate Name-Injunction-NoteUltra Vires.-Where a corporation organized in Illinois had borrowed large sums of money which it had used in Colorado territory, for which money it had given its notes, now held by Ballard and others, the court refuses to issue an injunction at the instance of a stockholder, to restrain the collection of such notes, on the ground of the corporation having exceeded its powers by operating beyond the state, because: 1. From the very corporate name of the company, "North Star Gold and Silver Mining Company," the complainant must have known that it was not intended to mine in the state of Illinois; 2. That in any event the contract was an executed one, and one of which the corporation had already received all the benefit, to which class of contracts, at such stage, corporations can not object that they were ultra vires; 3. That a stockholder who failed to apply for a restraining writ while the contract remained executory will be presumed to have assented to such contract.

Bradley v. Ballard, 55 Ill. 413.