Argument for the United States.

196 U.S.

680, 692; Caha v. United States, 152 U. S. 211, 218, 220; In re Kollock, 165 U. S. 526; United States v. Ormsbee, 74 Fed. Rep. 207, 209; United States v. City of Moline, 82 Fed. Rep. 592, 598; Wilkins v. United States, 96 Fed. Rep. 837, 839, 841; United States v. Dastervignes et al., 122 Fed. Rep. 30; The Cin. Wil. & Z. Railroad Company v. Commissioners of Clinton County, 1 Ohio St. 77, 87; Lock's Appeal, 72 Pa. St. 22; P. F. Smith, 491, 498, 499; Port Royal Mining Company v. Hagood et al., 2 Law Rep. Ann. 841, 843, 844.

As to the phrase "and for other purposes," see United States v. Mullan Fuel Co., 118 Fed. Rep. 663; Cong. Rec., Part 4, 45th Cong., 2d Sess., p. 3328.

The construction of an act of Congress by those charged with its execution should not be disregarded by the judiciary unless the construction be clearly wrong. United States v. Johnston, 124 U. S. 236; Heath v. Wallace, 138 U. S. 573; Hawley v. Diller, 178 U. S. 476. If there be a doubt as to the meaning of Congress the construction given by the Executive Department should control. Pennoyer v. McConnaughy, 140 U. S. 1; United States v. Hill, 120 U. S. 169; United States v. Philbrick, 120 U. S. 52.

"Roasting" ore is not a "mining" purpose. For definition of "smelt" and "mining," see Standard Dictionary; Century Dictionary; United States v. Richmond Mining Co., 40 Fed. Rep. 415; 2 Snyder on Mining Law, § 134. See also act of March 3, 1891.

The statute does not plainly indicate the sense in which Congress used the word "domestic." That word appears to have four possible meanings:

(1) Belonging to the house or household and its relations. (2) Addicted or adapted to family life, etc. (3) Tame. (4) Of or pertaining to one's own State or country. It will be conceded that the sense in which Congress used the word is embraced either in No. 1 or No. 4. But the real intention is rendered obscure by the use of the word "other." The specific enumeration, "building, agricultural, and mining," is of no.

value whatever if the word "other" means "local," because Congress could casily have said "for domestic purposes" without any specific cnumeration. We urge upon the court the simple proposition that Congress used the word "domestic" as belonging to the household.

If the real intention of Congress cannot be ascertained from the act itself, or from the meaning of the words used therein, we urge that the character of the act must be considered and the proper rules of construction applied. The statute is permissive. Statutes which grant property privileges are to be construed most strictly in favor of the Government and a usc not unequivocally authorized by the language of the act must be excluded. Sutherland, Stat. Const. § 378; Slidell v. Grandjean, 111 U. S. 412, 437; Central Transp. Co. v. Pullman Co., 139 U. S. 24, 49; United States v. Daste.vignes, 118 Fed. Rep. 199; Endlich, § 354.

Mr. Alfred B. Cruikshank for appellee:

The acts of defendant come well within the permissive provisions of § 24 of the Act of June 3, 1878, c. 150. The phrase "domestic purposes" means the same as "local purposes For prior judicial constructions of the word "domestic," sec United States v. Richmond Mining Co., 40 Fed. Rep. 415; United States v. Copper Queen Con. Mining Co., 185 U. S. 495. Roasting ore is a mining purpose within the meaning of the act. See Webster; Encyclopedia Brittanica. The statute is remedial and should be liberally construed in favor of the citizen. Sec Endlich, § 354.

Rule 7 of the Interior Department did not make defendant's acts unlawful.

The rule is to be interpreted as not including the roasting of ore in its prohibition of smelting. The difference between roasting and smelting is not merely technical but substantial. In smelting a chemical change in the ore itself is produced; in roasting there is no such process or result. Smelting includes fusion; roasting does not. For some of the accepted definiVOL. CXCVI—14

tions of smelting and roasting, see Webster, Worcester and Standard Dictionaries.

The regulation of the Secretary is illegal and invalid. Cases cited by the Government are inapplicable both as to meaning of phrase "for other purposes" and as to construction of statute.

MR. JUSTICE MCKENNA delivered the opinion of the court.

Action brought by the United States against the appellee, which we shall call the Copper Company, for the sum of $38,976.75, the value of timber cut and removed from certain unsurveyed mineral land in the Territory of Arizona.

The timber or wood was alleged to have been cut by one Rafael Lopez, a resident and citizen of Arizona, and amounted to 6,496 cords, of the value of $6 per cord, or the sum of $38,976.75.

It is alleged that the timber belonged to the United States, and "was used and consumed by the said defendant for the purpose of roasting ore at the United Verde Copper mines, said mines being the property of defendant herein, at Jerome, Yavapai County, Arizona Territory, in violation of the act of Congress of June 3, 1878, 20 Stat. 88, c. 150, and of the rules and regulations of the Secretary of the Interior, promulgated under the authority of said act of Congress."

The Copper Company demurred to the complaint. The demurrer was sustained. The United States refused to amend, and judgment was entered for the Copper Company. It was affirmed by the Supreme Court of the Territory.

Section 1 of the act of June 3, 1878, upon which the action is based, is as follows:

"That all citizens of the United States and other persons, bona fide residents of the State of Colorado or Nevada, or either of the Territories of New Mexico, Arizona, Utah, Wyoming, Dakota, Idaho, or Montana, 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 on 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 whieh 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: Provided, The provisions of this act shall not extend to railroad corporations."

Section 2 makes it the duty of registers and receivers to ascertain whether any timber is being cut in violation of the provisions of the act, and, if so, to notify the Commissioner of the General Land Office thereof.

Section 3 makes violations of the act or of the rules and regulations made by the Secretary of the Interior misdemeanors, punishable by fine, not exceeding $500, "to which may be added imprisonment for any term not exceeding six months."

Among the regulations promulgated by the Secretary of the Interior were the following:

"4. The uses for which the timber may be felled or removed are limited by the wording of the act to 'building, agricultural, mining, or other domestic purposes.'

"5. No timber is permitted to be felled or removed for purposes of sale or traffic, or to manufacture the same into lumber or for any other use whatsoever, except as defined in section 4 of these rules and regulations.

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"7. No timber is permitted to be used for smelting purposes, smelting being a separate and distinct industry from that of mining.

"10. These rules and regulations shall take effect February 15, 1900, and all existing rules and regulations heretofore

prescribed under said act by this department are hereby rescinded."

The contention of the United States is that roasting ore is smelting, and that smelting is not a purpose permitted by the act of Congress, and is besides forbidden by the regulations of the Secretary of the Interior.

Roasting ore is defined by the Supreme Court of the Territory in its opinion as follows:

"It is a matter of common knowledge that in this Territory the roasting of ore at the mines from which it is taken is ordinarily accomplished by piling the ore and the wood mingled with it in piles in the open air, and by igniting the wood the fire is communicated to the sulphurous or other combustible ingredients in the ore, and thus by the heat generated by its own combustion and that of the wood mingled with it, the volatile substances are driven off in vapor, smoke, and gases from the ore thus treated. By this treatment the ores that are extremely sulphide or highly charged with other volatile substances are relieved from a large portion thereof, and are the more readily treated by smelting or other processes of reduction, and besides require less fluxing material for such reduction, and are also lighter in weight, and for that reason when shipped to other points for smelting or further treatment of any kind cost less for freight."

The court distinguished this process from smelting, and. decided that it is, in practice, a part of mining. It is a step, the court reasoned, in the extraction of the ore from the mine, and the separation of the ore from the rock enclosing it. Roasting ore, therefore, is preparation for smelting, but not smelting, which, according to all of the definitions, is something more than melting-it is obtaining the metal by heat and such reagents as develop it. Roasting is done crudely in the open air by burning wood and ore mingled in a pile. Smelting is the function of an organized plant. But roasting ore, regarding the production of metal only is a preliminary step ta smelting, and counsel for the Government makes much of