Jake Marks and others. From the judgment, defendants appeal. Affirmed.

J. F. Wilson and Hawkins, Ross & Anderson, for appellants. T. J. Norton, for appellee.

KENT, C. J. The appellee, the Bradshaw Mountain Railroad Company, in constructing its railroad, found it necessary to cross a certain mining claim known as the "Contention" claim, belonging to the appellants. The company instituted condemnation proceedings for a right of way over the ground, as provided by our statutes, executed the necessary bond, took possession under an order of the court, and built its railroad across the claim. The defendants, the appellants in this court, made answer, alleging damage by reason of the taking of the right of way, in that the railroad passed in the direction of the vein of the claim, and prevented the free use and operation of the mine. They alleged the value of the claim to be $25,000, and the damage resulting from the interference with the free use and operation of the mine to be the sum of $6,000. The plaintiff, in reply, denied that the railroad traversed the vein as specified; alleged that no damage had resulted, or would result, to the defendants by reason of the crossing of the railroad over the premises, or that the free use and operation of the mine was thereby obstructed; and alleged that the construction of the railroad was a benefit to the defendants, rather than an injury. The case was tried on the issues thus raised, the allegations of the complaint as to damage to another mining claim of the defendants, known as the "Lucky Cuss," not being pressed upon the trial or involved in this appeal.

Evidence was introduced at the trial on the part of the defendants to show the value of the mining claim as a whole, and to show that the location of the railroad and the right of way sought to be condemned prevented the free operation of the mine, particularly with regard to the construction of shafts and hoists upon the property, and caused loss and damage to the defendants. No evidence was given as to the value of the strip itself taken by the railroad company. The plaintiff introduced evidence to show that the location of the railroad across the property did not interfere with the free use and operation of the mine, and that the defendants had suffered no damage thereby; and also evidence to show that general and special benefits had resulted to the defendants by reason of the construction of the railroad. The jury were instructed to return specific answers to the questions required by our statutes in condemnation proceedings, and they returned a verdict in the form required. In this verdict they found the ownership of the claim in the defendants; they found the surface value of the right of way "to be the sum of $00"; they assessed the

damages accruing to the claim not included in the right of way, by reason of its severance from the portion taken for the right of way and used in the construction of the railroad, "to be the sum of $00"; and they found that the portion of the claim not taken by the railroad was benefited by the construction of the railroad "in the sum of $00." On this verdict judgment was entered decreeing the plaintiff its right of way across the prop erty, with costs to the defendants.

1. The appellants assign as error the ruling of the trial court in excluding the testimony of one of the owners of the property, the defendant Marks, as to the value of the whole property as a mine. The evidence was excluded, because the witness was unable to testify as to the market value of the property, his knowledge of the value being based upon his knowledge of this mine and the values of similar mines in other localities. We doubt whether the witness brought himself within the rule, as to the competency of such testimony, laid down in the case of Montana Railway Co. v. Warren, 137 U. S. 348, 11 Sup. Ct. 96, 34 L. Ed. 681, as claimed by appellants; but the exclusion of his testimony by the court, if such ruling was error, was not such action as calls for a reversal of the judgment. The appellants were in no way harmed thereby. The testimony sought to be introduced was the opinion of the witness as to the value of the whole property as a mine. It was not an inquiry as to the surface value of the strip taken, or the value of such right of way, but was an inquiry as to the value of the whole property as a mine, and was material, if at all, only as it had a bearing upon the damage, if any, to the operation of the mine by the construction of the railroad across the vein and claim. The defendants introduced two other witnesses to prove such value of the property as a mine, who testified directly and clearly that the value was substantially that alleged in the answer. No evidence was offered by the plaintiff to contradict such testimony as to the value of the property. The evidence of the witness Marks, if admitted, would have been cumulative merely; and as no issue was raised as to such value, or as to the truth of the testimony on the part of the defendants in this regard, the appellants were not injured by the exclusion of the testimony of Marks upon this point.

2. The defendants next assign as error the introduction of testimony, on the part of the plaintiff, showing the general benefits accruing to this and other property in the locality, and the general increase in market value of such properties, by the construction of the railroad; and also the instruction of the court that the jury might consider whether there had been such general benefits or general increase, in assessing the benefit, if any, accruing to the mine by reason of the construction of the railroad. We do not deem it necessary to determine whether the testi

mony introduced with respect to the benefits that had accrued, and referred to by counsel, was testimony of general benefits, or whether it was testimony of direct and special benefits accruing to the individual piece of property in question, or whether error was committed in the introduction of such testimony, or in the charge of the court; for, so far as the present case is concerned, the admission of the evidence on this point, and the instructions to the jury in regard thereto, afford no grounds for a reversal of the judgment. The jury found that no damages had been suffered, hence there could be no set-off for benefits; and, furthermore, the jury specifically found that no benefits whatever accrued to the mine by reason of the construction of the railroad. The defendants, therefore, were in no way injured by the admission of the evidence or the instructions of the court.

3. It is next urged "that appellants are entitled to recover from the appellee the full value of the land actually taken, and for all injuries appreciably resulting from the construction of the railroad to that part of the mining claims not taken by the appellee." This contention states two correct legal propositions:

It is quite clear that the owner of land sought to be condemned for a right of way is entitled to the full value of the land actually taken. In the case at bar the jury found that the land actually taken had no value at all. We have some doubt whether a verdict which did not even award nominal damages for land taken, but which found that such land, as land, had no value at all, could ordinarily be upheld, where there was any evidence at all given as to such value. We think, as a rule generally applicable to such cases, the jury should find the land of some value, if only of a nominal value. This rule, however, can have no application here, for this question and the right to recover for the value of the strip taken by the railroad was expressly waived by the defendants upon the trial, and in the presence of the jury. The jury were therefore at liberty to render a verdict that the land was worthless under such waiver by the defendants of any claim of damage therefor. This waiver on the part of the defendants for any claim for the value of the right of way is repeated in the following statement in the appellants' reply brief, to wit: "It is admitted that the sole element of damage claimed by appellants is the inconvenience, obstruction, and extra expense to which they are put in the development and operation of the Contention mining claim by the construction of appellee's railroad upon and across said claim." There was therefore no error in the finding of the jury as to the value, or want of value, in the land actually taken.

It is also quite clear that the owner is entitled to compensation for the injuries resulting from the construction of the railroad to the portion of the land not taken by the

railroad. The jury found that no such injury had been suffered. But this was a clear issue of fact submitted to them upon conflicting testimony as to whether or not such injury had been suffered. There being substantial evidence to support their verdict in this regard, we are not at liberty to disturb it.

The contention of the defendants as to these two questions, therefore, while correctly stating the law in regard to damages in condemnation proceedings, under the facts in this case affords no ground for a reversal of the judgment.

4. It is further urged that the statute allowing the plaintiff in condemnation proceedings to be let into the use of the property before condemnation is decreed is unconstitutional, as permitting private property to be taken for public use without just compensation, in that the Legislature has assumed arbitrarily to determine that 10 per cent. interest upon the compensation awarded, from the date at which possession is taken, shall be adequate compensation for the use and occupation pending the condemnation proceedings. This question was not raised in the court below, and we do not think it necessary to determine it here. If the contention of the appellants be correct, it would invalidate only that portion of the act relating to possession prior to the final decree which is objected to. It would have no effect here upon the legality of the subsequent proceedings, or the judgment rendered herein. In this case, inasmuch as the jury found that the defendants suffered no damage at all in the premises, it is of no consequence to the defendants whether or not the law provides for the full measure of damages when such have been sustained.

Upon the facts of the case we think that no error was committed that calls for a reversal of the judgment, and that the verdict should stand. The judgment of the court below is therefore affirmed.

DOAN and DAVIS, JJ., concur.

(8 Ariz. 385)

BERREYESA v. TERRITORY. (Supreme Court of Arizona. March 26, 1904.),

OBTAINING MONEY BY FALSE PRETENSESWHAT CONSTITUTES.

1. Where it is customary for the county to pay interpreters a certain amount per day for services in criminal cases before justices, one who, knowing of such custom, and using the routine required to obtain the payment, obtains money from the county by false pretenses that he had rendered such services, is guilty of obtaining money under false pretenses, though there was no law authorizing the county to pay for such services.

Appeal from District Court, Maricopa County; before Justice Edward Kent.

Santiago Berreyesa appeals from a conviction. Affirmed.

Street & Alexander, for appellant. W. Wells, Atty. Gen., for the Territory.

DAVIS, J. The appellant was convicted of the crime of obtaining money under false pretenses, alleged to have been committed in presenting to the board of supervisors of Maricopa county, and obtaining the allowance and payment of, a fraudulent demand on said county for per diem services as interpreter, which services he falsely pretended had been rendered by him at the trial of certain criminal cases before a justice of the peace in that county. The indictment was demurred to on the ground that the facts stated did not constitute a public offense, and the overruling of the demurrer is assigned as

error.

It is contended on the part of the appellant that at the time of the alleged offense (January 31, 1903) there was no provision of law authorizing the payment by the county of compensation to interpreters for services in criminal cases, and that as such a claim could not under any circumstances, become a legal charge against the county, the allowance and payment thereof could not, in contemplation of law, be induced by any false pretense made in relation to it. We consider this view to be fallacious. Carried to its logical sequence, it would permit the wrongdoer to construct a shield out of the very ignorare upon which his criminal artifice had successfully played. The demurrer does not necessarily involve the question of whether a claim for interpreter's fees was, under the existing statutes, a lawful charge against the county. In pleading the particular circumstances of the offense, the indictment sets forth that it was the rule and custoa of the courts to pay interpreters an establishei rate per diem for services in criminal cases before justices of the peace, and that this was well known to the defendant. The averments thus disclose that the county, by its proper officers and agents, was proceeding upon the theory that the law authorized the payment of claims of this character. If the defendant, with a knowledge of the prevailing custom as to the allowance and payment of such claims, and using the routine required therefor, knowingly and designedly obtained from the county compensation for services which he had never rendered, and he accomplished this end by means of the false representation and pretense that such services had in fact been performed by him, an offense was committed, irrespective of whether the county was acting under a mistaken theory of the law. The strict responsibility to which the supervisors are held in Avery v. Pima County (Ariz.) 60 Pac. 702, for a disbursement of county funds without authority of law, can in no way have an effect to lessen the guilt of the beneficiary who has procured the unlawful payment by criminal means. The civil liability on the one hand may exist co

1. The word "merchandise," defined in Rev. St. U. S. § 2766 [U. S. Comp. St. 1901, p. 1861], to include goods, wares, and chattels of every description capable of being imported, includes placer gold.

2. The petition in a proceeding by the government for the forfeiture of goods imported into the country contrary to law, which alleged that the goods were imported without being invoiced or entry made with any collector of customs, and without declaration to the proper revenue officer, and that some person fraudulently brought into the country from a foreign coun try goods which should have been invoiced, declared, and entered according to the law, with intent to defraud the government, sufficiently charged a violation of Rev. St. U. S. § 2851 et seq. U. S. Comp. St. 1901, p. 1901), and 1 Supp. Rev. St. U. S. p. 745 et seq., providing that all merchandise imported into the country must be invoiced, which invoice shall be produced to the consul, and requiring that a declaration shall be filed with the collector of the port at the time of entry.

3. As the fees authorized by Rev. St. U. S. § 2851 [U. S. Comp. St. 1901, p. 1901], providing that, for every verification of an invoice and certificate, the consul shall be entitled to receive a fee of $2.50, belong to the United States, the importation of nondutiable goods without the same being invoiced, or entry thereof being made, and without declaration being made, is an act injurious to the government and fraudulent.

4. Act Cong. June 22, 1874, c. 391, par. 16, 18 Stat. 189, making it the duty of the court, in all actions to declare the forfeiture of merchandise by reason of a violation of the revenue laws, to submit to the jury whether the acts were done with intent to defraud the government, is repealed by Act Cong. June 10, 1890, c. 407, § 29, 26 Stat. 141 [U. S. Comp. St. 1901, p. 1897], and hence the intent of the person violating the revenue laws is immaterial.

Appeal from District Court, First District; before Justice Davis.

Proceedings by the United States for the forfeiture of six parcels of placer gold imported into the United States contrary to law. From a judgment for the government, the claimant appeals. Affirmed.

Barnes & Martin, for appellant. Frederick S. Nave, U. S. Atty., and John H. Campbell, Asst. U. S. Atty.

DOAN, J. In this case a customs officer of the government found the claimant, after his arrival within the United States, having in his possession six parcels of placer gold. This gold the officer seized and delivered to the collector of customs of the United States for the District of Arizona, at Nogales, who held the same in his custody as forfeited to the United States. The claimant demanded the gold, as the owner thereof, from the collector of customs, which demand was refused. Thereupon the government commenced proceedings by information to have the said gold forfeited on the ground that it had been imported from Mexico contrary to law, and that it was liable to seizure and forfeiture. The claimant filed a demurrer and answer to the information, and alleged that he was the owner of the said six parcels of gold, and made claim to the same. After a general demurrer the claimant demurred specially to the information upon the ground "that said information does not state facts sufficient to authorize the court to grant the relief prayed for, because, (1) said petition does not state that the United States was in any manner injured or defrauded out of any revenue or customs duties; (2) for the reason that said six parcels of placer gold were not dutiable goods, and parties have the right to import the same without the payment of any duties whatsoever, and the United States is not injured or defrauded by the failure to declare the same, as alleged." The demurrers were overruled by the court, to which ruling the claimant excepted, and the cause proceeded to trial before a jury upon the answer of the claimant, in which he denied any intention to defraud the government of the United States in any way or at all, and alleged that the said goods were seized and taken from him in the territory of Arizona, in the United States, and that the same were at the time of the seizure aforesaid lawfully in his possession, and denied that the said goods, or any part thereof, were ever imported from a foreign country into the United States. After hearing the evidence on the issues of fact raised in the answer, and receiving the instructions of the court, the jury returned a verdict in favor of the government, whereupon the court rendered judgment declaring the gold forfeited to the United States of America, and ordering its disposal in accordance with the revenue and customs laws of the United States in such cases made and provided. instructions as given by the court, counsel for claimant then and there excepted; and to the refusal of the court to give the instructions requested by claimant, said counsel also excepted. From the judgment of the court and the denial of the motion for a new trial, the claimant appealed.

To the

The claimant does not appear to rely upon the general demurrer or his denial of the importation of the goods, but contends that, the goods not being dutiable, the government was

not defrauded of its revenue, and for that reason the goods cannot be forfeited to the government under our revenue laws. There are some 26 assignments of error, based upon the overruling of the demurrers, the admission of evidence, the several instructions. given either in the charge of the court or on motion of the government, the refusal of the several different instructions requested by the claimant, and the denial of the motion for a new trial. These are all, however, directed to the liability to forfeiture of nondutiable goods, and the case, as a whole, presents fairly, fully, and only the one question whether nondutiable goods can be forfeited for entry in violation of the statutes providing for their importation. To this the counsel have addressed themselves in their brief, and this we consider the controlling legal issue in the case.

The first assignment of error presents this question, the decision of which determines the entire case of the appellant. It reads: "The court erred in overruling the demurrer to the libel for the reason that the petition does not state facts sufficient to constitute a cause of action. It does not state that the United States was in any manner injured or defrauded out of any revenue or customs duties. The six parcels of placer gold were not dutiable goods. Parties have a right to import gold without the payment of duties, and the government is not injured or defrauded by the failure to declare the same as alleged." The allegations of the information attacked by this demurrer alleged that the goods seized were "fraudulently and clandestinely imported and brought into the said United States from the republic of Mexico * * * contrary to law; that is to say, without the same being invoiced or entry. thereof being made with any collector of customs of the said United States, and without declaration thereof being made to any proper revenue officer of the said United Statescontrary to the statute in such cases made and provided. And for that some person before the time of said seizure

* *

* * * did fraudulently and knowingly import and clandestinely bring into the said United States from the republic of Mexico the said placer gold, the same being then and there goods and merchandise which should have been invoiced, declared, and entered according to law, and without invoice, declaration, or entry of the same, and with the intent to defraud the said United States, contrary to the form of the statute in such cases made and provided. Wherefore, by reason of the premises, and by force of the statute aforesaid, it became and is forfeited to the said United States." The statute under which the proceeding was had provides: "Sec. 3082 [Rev. St. U. S. (U. S. Comp. St. 1901, p. 2014)]. If any person shall fraudulently or knowingly import or bring into the United States * * * any merchandise, contrary to law, such merchandise

*

shall be forfeited. * The definition of the word "merchandise" given in section 2766, Rev. St. U. S. [U. S. Comp. St. 1901, p. 1861]-"The word merchandise, as used in this title, may include goods, wares and chattels of every description capable of being imported"-is sufficiently broad to include placer gold. The law contrary to which the importation of any merchandise subjects it to forfeiture provides that all merchandise imported into the United States must be invoiced, and that such invoices shall be produced to the consul, vice consul, or commercial agent of the United States, and that, whenever merchandise imported into the United States is entered by invoice, a declaration shall be filed with the collector of the port at the time of entry by the owner, importer, assignee, or agent. Rev. St. U. S. § 2851 et seq. [U. S. Comp. St. 1901, p. 1901]; 1 Supp. Rev. St. U. S. p. 745 et seq. The allegations of the information were sufficient to charge noncompliance with, and thereby the violation of, the revenue law above cited, and the demurrer was properly overruled.

It is conceded that the six parcels of placer gold were not dutiable goods, and that parties have a right to import the same without the payment of duty; but the further statement, both in the demurrer and in the assignment of error, that the government is not injured or defrauded by the failure to declare the same, as alleged, does not necessarily follow, and is not correct. Paragraph 2851, Rev. St. U. S., provides: "For every verification of an invoice and certificate before a consul or commercial agent, such consul or commercial agent shall be entitled to demand and receive from the person making the same, a fee of two dollars and fifty cents." This is a provision of the law in general terms, from which nondutiable goods are not excepted. The law relative to invoices and declarations plainly states that all merchandise imported into the United States must be invoiced, and that, whenever merchandise imported into the United States is entered by invoice, a declaration shall be filed with the collector of the port at which the entry is made, and that, for every verification of an invoice and certificate before a consul or commercial agent, such consul or commercial agent shall be entitled to demand and receive a fee. That the law contemplates this invoice and declaration in the case of nondutiable as well as dutiable goods is evidenced by the provisions of section 4 of the act of June 10, 1890, c. 407, 26 Stat. 131, 1 Supp. Rev. St. U. S., p. 745 [U. S. Comp. St. 1901, p. 1889], which provides that the Secretary of the Treasury may make regulations by which books, magazines, and other periodicals published and imported in successive parts, numbers, or volumes, and entitled to be entered free of duty, shall require brt one declaration for the entire series. The Mention of this special ruling in regard to one class of nondutiable goods shows conclusively that the effect of this law on nondutiable

goods was not overlooked at the time of the congressional legislation, but that the invoice and declaration were intended to be made for nondutiable as well as dutiable goods. In conformity with this construction of the law, the United States Supreme Court held in the case of U. S. v. Mosby, 133 U. S. 273, 10 Sup. Ct. 327, 33 L. Ed. 625, that there can be no entry of nondutiable goods without a properly certified invoice, and that, as required by the consular regulations, "all invoices of importations from countries in which there are 'consular officers' must, before the shipment of the merchandise, be produced to and authenticated by the United States consular officer nearest the place of shipment for the United States." In reference to this provision of the law, Mr. Justice Blatchford, in the opinion, further said: "It is entirely clear that the question of determining whether goods to be shipped will, when imported into the United States, be free from duty, is a question which cannot be left to the determination of a consul. It often involves intricate points of fact and of law, and must be as wholly cognizable by the proper officers and tribunals of the United States appointed for the purpose, as the question of the proper rate of duty on dutiable goods"-and therefore held that the fees received by the consul, collector, or agent of the United States for the verification of such invoices and certificates are for official services, and belong to the United States. To the same effect, Phelps v. Siegfried, 142 U. S. 602, 12 Sup. Ct. 391, 35 L. Ed. 1128. This being the case, the importation of nondutiable goods without invoicing the same and obtaining the certificate of such consular agent, and without entering the same by formal declaration at a port of entry at the office of the collector of customs, is not only contrary to law, but does injure and defraud the gov ernment to the extent of the fees for the verifications and certificates required in such cases by the revenue laws.

The claimant asked the court to instruct the jury that, before forfeiture could be made, it must be determined that the said gold was imported into the United States with the intent to defraud the United States, and excepted to the refusal of the court to so instruct. In this the claimant relied upon paragraph 16 of the act of June 22, 1874, c. 391, 18 Stat. 189, which makes it the duty of the court, in all actions to declare the forfeiture of any goods, wares, or merchandise by reason of any violation of the revenue laws, to submit to the jury, as a distinct and separate proposition, whether the alleged acts were done with intent to defraud the United States, and to require upon such proposition a special finding by such jury, and provides that in such cases, unless intent to defraud shall be so found, no forfeiture shall be imposed. This provision is cited with approval by the Supreme Court of the United States in Friedenstein v. U. S., 125 U. S. 224, 8 Sup. Ct. 838, 31 L. Ed. 736. But paragraph 16 of the act