And especially is this true in the present case, where the questions have been for several years so earnestly pressed upon the public mind as to what could or should be done in order to allow hydraulic mining to be conducted and carried on within the watersheds of the Sacramento, San Joaquin, and other rivers in the state, without producing injury to other interests of equal value and importance.

Hydraulic mining was for many years one of the principal industries largely carried on in several of the mining counties. The decision in Woodruff v. Mining Co. (rendered in 1884) 9 Sawy. 441, 18 Fed. 753, and generally known as "The Mining Débris Case," was far-reaching in its effects. The blow, judicially made necessary for the preservation of property rights, was a heavy and severe one. It virtually deprived many persons of their means of livelihood, and prevented property owners having vast and valuable mining interests from working upon or in any manner using their property. It not only crippled this industry, but, for the time being, destroyed it, by enjoining the mine owners from further conducting or carrying on their said business. Communities where such operations had been carried on were paralyzed, and scarcely knew what to do. For a time there were more or less attempts to carry on such work by stealth or secrecy, and thus violate the injunctions that had been issued. These efforts, as a matter of course, proved futile. An anti débris organization was formed; guards were employed, who were looked upon as spies by the miners; proceedings were instituted; and, after much delay and difficulty, service was made upon the owners of the mines, and many of them were found guilty of contempt, and heavy fines were imposed. Those contempt proceedings were expensive upon all parties concerned. The United States finally took active steps to prevent injury to the navigable waters of the state. Mine owners then, in their individual capacity, at great expense, erected restraining dams to impound the tailings and débris, and prevent all injurious matter from flowing down into the navigable rivers. This, for a short time, quieted the intense feeling of bitterness that had been engendered, but it did not meet with the success it was hoped would prevail. Proceedings for contempt were again instituted; some of the parties engaged in mining by these methods were found guilty; and occasionally, at other times, were able to prove their innocence as to the particular acts complained of.

In Woodruff v. Mining Co., 45 Fed. 129, 132, the question as to the right to have the original injunction modified was referred to by the court. Thereafter, in U. S. v. North Bloomfield G. M. Co., 53 Fed. 625, which was a suit to enjoin respondent (appellant herein) from continuing its hydraulic mining operations so as to obstruct or endanger the navigation of certain rivers, an injunction was denied. The circuit judge said:

"In arriving at this conclusion, I am not unmindful of the great damage to navigation that has heretofore resulted from the deposit of mining débris in these streams, nor of the important interests that are involved; but I am convinced that, in the case of this particular mine, the contingency has arisen which was contemplated in the decision of this court in the Mining Débris

Case, in providing that the decree might thereafter be modified upon a showing to the court that a plan to obviate the injuries had been successfully executed."

This opinion was rendered October 5, 1892. On the same day the same court rendered a decision in a similar suit of U. S. v. Lawrence, Id. 632, and upon the particular facts of that case ordered an injunc tion to issue as prayed for in the bill. All of these things brought about an organization of the miners having for its purpose, among other things, the procuring of some legislation whereby the right to carry on hydraulic mining might be regulated and protected; that. upon compliance with certain conditions, permits might be given which would authorize and allow people interested in this character of property to pursue their business without further let or hindrance. In all of the proceedings, in the state and national courts, it was conceded that hydraulic mining was not of itself unlawful or necessarily injurious to any one. As was said in Yuba Co. v. Cloke, 79 Cal. 239, 243, 21 Pac. 740, 741:

"The unlawful nature of the business results from the manner in which it is carried on, and the neglect of parties engaged therein to properly care for the débris resulting therefrom, whereby it is allowed to follow the stream, and eventually cause injury to property situated below."

The business of hydraulic mining, if properly conducted, so as to not interfere with the rights of others or with the navigability of the rivers, was never objected to. It was recognized by all classes that, if hydraulic mining could be so conducted and carried on, it would be beneficial, instead of prejudicial, to the state and nation. The agitation of this subject between the miners and agriculturalists, and persons engaged in other business pursuits within the state, brought about the introduction and passage of the act in question, in order to give greater protection to the navigability of the rivers in this state, over which the congress of the United States had jurisdiction, and at the same time to enable the mine owners to avoid the difficulties and disabilities by which they had for so many years been surrounded. The bare statement of these events, in the order of their occurrence, of itself carries conviction to the mind that congress must have intended to make the provisions of the act mandatory. But a careful consideration of the terms of the act makes this result absolutely conclusive. It changed the rules which had hitherto prevailed, and adopted a new system, perhaps not perfect in all its parts, containing provisions which, it is safe to say, were, at the time of its enactment, if not entirely satisfactory to the miners, agreed to by them as giving greater rights and privileges than they had theretofore for many years possessed. The act created a commission "to be known as the 'California Débris Commission," and invested it with certain powers specifically mentioned in its provisions, and gave it jurisdiction over all the mines worked by hydraulic process which are situate within "the territory drained by the Sacramento and San Joaquin river systems in the state of California"; and it declares, in express terms, that hydraulic mining, as defined in section 8 of the act, "directly or indirectly injuring the navigability of said river systems carried on

in said territory, other than as permitted under the provisions of this act, is hereby prohibited and declared unlawful." It further, and in equally explicit terms, declares that mine owners who desire to work by this process "must file with said commission a verified petition, setting forth such facts as will comply with the law and the rules prescribed by said commission." It provides the steps that shall be taken by the commission after the receipt of said petition, and designates the methods, and specifies the manner, in which the preliminary operations for the construction of restraining dams or impounding works at the mines shall be conducted; and upon the completion thereof, and compliance with all the details mentioned in the act, it declares that "permission shall thereupon be granted to the owner or owners of such mine or mines to commence mining operations, subject to the conditions of said order and the provisions of this act." The act is intended to apply, and does apply, to appellant herein, and all others who had, previous to the passage of the act, constructed impounding works. They are placed upon the same plane, subject to the same law, and the rules and regulations adopted by the commission, as those who had not erected such works, but are compelled to do so before engaging in hydraulic mining. The act provides "that if said commission shall be of opinion that the restraining and other works already constructed at the mine or mines shall be sufficient to protect the navigable rivers of said system, and the work of said commission, then the owner or owners of such mine or mines may be permitted to commence operations." 27 Stat. 509, § 15.

It would serve no useful purpose to further discuss other provisions in the law. The references already made, and provisions heretofore quoted, clearly show that the act means just what it says. When it declares that certain things must be done before any permit is given, it means that they shall be done; and if these things are not done, as therein provided, no permit can be issued, and if none is procured the working of the mine by the hydraulic process is prohibited and made unlawful. It would also be a waste of time to discuss in detail the kind and character of cases that are to be found in the books wherein the word "may" is construed as meaning "shall," or the word "must," under rare and exceptional provisions, has been held to mean "may." It is enough to say that the language and terms of the act in question, when viewed in the light of the history of the times, and all the surrounding conditions, are clear, certain, positive, and mandatory. Any other view would unquestionably lead to absurd results, which all courts declare should be avoided in the construction of any statute. There would be no positive protection either to the miners, farmers, or the government; litigation and strife, which it was the object of the statute to avoid, would continue to reign supreme.

We have suggested that the act might not be perfect in all its parts. It would not be difficult to criticise some of its provisions, and to mention others that were not absolutely essential or necessary to have been inserted. One instance is pointed out in the opinion of the circuit judge, viz. that the provisions in section 10,

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which require a conveyance from the mine owners so as to vest in congress the power to make regulations concerning the manner in which the work thereon might be conducted, were wholly unnecessary, as that power is vested without any conveyance being required. The argument of counsel as to the provisions of section 10 may, therefore, be eliminated from the case, not because they are unconstitutional, but upon the ground that congress has the unquestioned power to regulate the business of hydraulic mining without requiring any conveyance from the mine owners, as will hereinafter fully

appear.

The power of congress to pass the act in question, mandatory in its requirements, as we construe it, notwithstanding the array of authorities cited by appellant, cannot, in our opinion, at this late day, be judicially questioned. Congress has the power and authority to control commerce and navigation on the navigable portions of the Sacramento and San Joaquin rivers and their tributaries, and to prevent any obstruction on such streams, or the performance of any act, by any person or persons, which would tend in any manner to interfere with interstate or foreign commerce.

In Gibbons v. Ogden, 9 Wheat. 1, 190, 195, Chief Justice Marshall said:

"If commerce does not include navigation, the government of the Union has no direct power over that subject, and can make no law prescribing what shall constitute American vessels, or requiring that they shall be navigated by American seamen. Yet this power has been exercised from the commencement of the government, has been exercised with the consent of all, and has been understood by all to be a commercial regulation. All America understands, and has uniformly understood, the word 'commerce' to comprehend navigation. It was so understood, and must have been so understood, when the constitution was framed. The power over commerce, including navigation, was one of the primary objects for which the people of America adopted their government, and must have been contemplated in forming it. The convention must have used, the word in that sense, because all have understood it in that sense, and the attempt to restrict it comes too late. * But, in regulating commerce with foreign nations, the power of congress does not stop at the jurisdictional lines of the several states. It would be a very useless power, if it could not pass those lines. The commerce of the United States with foreign nations is that of the whole United States. Every district has a right to participate in it. The deep streams which penetrate our country in every direction pass through the interior of almost every state in the Union, and furnish the means of exercising this right. If congress has the power to regulate it, that power must be exercised whenever the subject exists. If it exists within the states, if a foreign voyage may commence or terminate at a port within a state, then the power of congress may be exercised within a state."

In Gilman v. Philadelphia, 3 Wall. 713, 724, the court said:

"Commerce includes navigation. The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States which are accessible from a state other than those in which they lie. For this purpose they are the public property of the nation, and subject to all the requisite legislation by congress. This necessarily includes the power to keep them open and free from any obstruction to their navigation, interposed by the states or otherwise; to remove such obstructions when they exist; and to provide, by such sanctions as they may deem proper, against the occurrence of the evil and for the punishment of offenders. For these purposes congress possesses all the powers which existed

in the states before the adoption of the national constitution, and which have always existed in the parliament in England. It is for congress to determine when its full power shall be brought into activity, and as to the regulations and sanctions which shall be provided."

Such has uniformly been the construction given to that clause of the constitution which confers upon congress the power to regulate commerce. From an early period in the history of the government it has been so understood and determined. Willson v. Marsh Co., 2 Pet. 245; Cooley v. Board, 12 How. 299; State of Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. 421; South Carolina v. Georgia, 93 U. S. 4, 10; Mobile Co. v. Kimball, 102 U, S. 691; Bridge Co. v. U. S., 105 U. S. 470, 475, 479; Escanaba & L. M. Transp. Co. v. City of Chicago, 107 U. S. 678, 682, 2 Sup. Ct. 185; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 5 Sup. Ct. 826; In re Debs, 158 U. S. 564, 15 Sup. Ct. 900; New York, N. H. & H. R. Co. v. People, 165 U. S. 628, 631, 17 Sup. Ct. 418; Railway Co. v. Parsons, 20 C. C. A. 481, 74 Fed. 408, 411; U. S. v. City of Moline, 82 Fed. 592; Craig v. Kline, 65 Pa. St. 399, 411, 414.

This admitted control upon the part of the general government over the navigable waters within the respective states is absolute. Does it not, therefore, necessarily follow that, in the exercise of such dominion and control, congress can determine and declare what constitutes an obstruction, injury, or interference to the navigable waters of the state, or an obstruction to commerce thereon, as well as to determine and declare what acts shall be performed, and what character of works shall be constructed, in order to prevent injury to the navigable waters or an obstruction to commerce?

In Miller v. Mayor, etc., 109 U. S. 385, 393, 3 Sup. Ct. 228, 232, the court held that it was competent for congress, having authorized the construction of a bridge of a given height over a navigable water, to empower the secretary of war to determine whether the proposed structure would be a serious obstruction to navigation, and to authorize changes in the plan of the proposed structure. The construction of the bridge in that case was made, under the statute, to depend upon the determination of the secretary of war as to whether the bridge when built would conform to the prescribed conditions of the act "not to obstruct, impair or injuriously modify the navigation of the river." The act further provided that until the secretary approved the plan and location, and notified the company of the same in writing, the bridge should not be built or commenced. In the course of the opinion the court said:

"It is contended by the plaintiff with much earnestness that the approval of the secretary of war of the plan and location of the bridge was not conclusive as to its character and effect upon the navigation of the river, and that it was still open to him to show that, if constructed as proposed, it would be an obstruction to such navigation, as fully as though such approval had not been had. It is argued that congress could not give any such effect to the action of the secretary, it being judicial in its character. There is in this position a misapprehension of the purport of the act. By submitting the matter to the secretary congress did not abdicate any of its authority to determine what should or should not be deemed an obstruction to the navigation of the river. It simply declared that, upon a certain fact being established, the bridge should be deemed a lawful structure, and employed