Opinion of the Court.

move to quash the panel or challenge the array of grand jurors for the reasons stated in this motion, it could only be done before the grand jury was empanelled, or at least before the indictment was found. Whether it could be done in that way, we do not now decide. We are clear, however, that a motion to quash the panel of grand jurors by one who has been indicted by such jurors is not proper practice. Gladden v. State, 13 Florida, 623. As we shall show further on, a plea in abatement of the indictment is the proper remedy. We regard the ruling sustaining the motion to strike as equivalent to holding that the motion to quash was not the proper method of raising the question sought to be raised; and, while we do not approve of the practice of moving to strike a motion, we do not see that the defendants have been injured by the form of the ruling complained of.

"We are of opinion that the proper method of presenting the question sought to be presented by this motion is by plea in abatement of the indictment, and not by motion to quash, and that the ruling upon the motion can be sustained upon that ground. It has for many years been the practice in this State, sanctioned by repeated rulings of this court, that all objections to the competency of, and to irregularities in selecting, drawing and empanelling grand jurors, not appearing of record, must be taken advantage of by plea in abatement of the indictment, and not by motion to quash it. Woodward v. State, 33 Florida, 508; Kitrol v. State, 9 Florida, 9; Gladden v. State, supra ; Tervin v. State, 37 Florida, 396. See also State v. Foster, 9 Texas, 65."

The authorities cited in this opinion sustain the propositions laid down. In Kitrol v. The State,,9 Florida, 9, 13, it was said:

"We are, therefore, of the opinion that the incompetency of the grand jurors by whom indictment is preferred may be pleaded by the defendant in abatement."

In Gladden v. The State, 13 Florida, 623, 630, the court uses this language:

"In Massachusetts, New York and other States, it has been held that objections to the legality of the returns of grand

Opinion of the Court.

jurors cannot affect an indictment found by them after it has been received by the court and filed; that such objection must be interposed before indictment found, and even before the grand jury is sworn. But it seems to be now settled that such objection may be made by plea in abatement to the indictment at any time before pleading in bar. This is substantially the rule announced by the Supreme Court of this State in Kitrol v. The State, 9 Florida, 9. The opinion of the Supreme Court of Mississippi in McQuillen v. The State, 8 S. & M. 587, delivered by Chief Justice Sharkey, announces what we consider the true, and correct practice in such a case. Such matters are reached by plea in abatement only, (though in some States a challenge to the array is treated, we do not say properly so, as a substitute for a plea in abatement) and matters in abatement in criminal as well as in civil cases must be pleaded before pleading in bar."

In Burroughs v. The State, 17 Florida, 643, 661, where the validity of the composition of the jury was sought to be challenged on a motion in arrest of judgment, the court said:

"Aside from the fact that there is no such bill of exceptions as is required to present any question of that character to this court, if it had been properly raised, we are of the opinion, that all objections to the legality of grand jurors must be made by plea in abatement to the indictment before pleading in bar. Such is the rule as announced by-this court in Gladden v. The State, 13 Florida, 623."

The force of this decision is not weakened by what was said by the same court in Potsdamer v. The State, 17 Florida, 895, 897:

"The rule is that such objections must be taken by motion. or plea in abatement before pleading to the indictment. It is not proper ground of a motion for a new trial" for Gladden v. The State, and Burroughs v. The State, are both cited as authority. What kind of a motion the Chief Justice had in mind when he spoke of "motion or plea in abatement" is not disclosed. At any rate, such a general statement cannot be considered as overruling prior decisions.

Opinion of the Court.

In Tervin v. The State, 37 Florida, 396, the ruling of the court was expressed in these words (p. 403):

"On the 25th of October, 1895, the defendant moved to quash the indictment and for his discharge upon the ground that 'there is nothing upon the records of this court to show that the grand jurors who found the indictment were drawn in accordance with chapter 1015 of the acts of the legislature of A. D., 1891.' This motion was overruled, and such ruling constitutes the fourth assignment of error. There is no merit in this assignment. If there was any such irregularity in the drawing or empanelling of the grand jury that found the indictment as would render such indictment void or illegal, the proper way to make it appear was by plea in abatement, instead of by motion to quash."

Neither is there anything in the cases referred to by counsel for plaintiff in error against this ruling. So we have not merely the declaration of the court in this particular case as to the practice to be observed, but a declaration supported by many prior decisions. Obviously it is the settled rule in the State.

These are all the matters called to our attention by counsel, and in them appearing no error, the judgment of the Supreme Court of Florida is

Affirmed.

MR. JUSTICE HARLAN did not hear the argument or take part in the decision of this case.

Statement of the Case.

NORTHERN PACIFIC RAILWAY COMPANY v. SODERBERG.

APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIR

CUIT.

No. 61. Argued December 12, 1902.-Decided February 23, 1903.

1. Although the jurisdiction of the United States Circuit Court be originally invoked on the ground of diverse citizenship, the attribute of finality cannot be impressed upon the judgment of the Circuit Court of Appeals unless it appear that the original jurisdiction was dependent entirely upon such diversity of citizenship, and where the case made by the plaintiff depends upon the proper construction of an act of Congress with the contingency of being sustained by one construction, and defeated by another, it is one arising under the laws of the United States, and this court has jurisdiction thereof under section 1 of the act of 1888. 2. Lands valuable solely or chiefly for granite quarries are mineral lands within the exception and the meaning of the provisions of the act of Congress of July 2, 1864, granting, under conditions therein stated, every alternate odd-numbered section of public land not mineral to the amount of twenty alternate sections per mile on each side of its line to the Northern Pacific Railroad Company. The word mineral reed not be construed as synonymous with metalliferous.

Land grant statutes should receive a strict construction, and one which supports the contention of the government rather than that of the individual-the sovereigu rather than the grantee. Nothing passes by implication.

THIS was a bill filed by the Railway Company in the Circuit Court for the District of Washington to enjoin the defendant Soderberg from taking, removing or disposing of granite from a quarter section of land of which he had taken possession under a mineral location, and for an account of the granite quarried or removed.

The bill alleged the incorporation of the Northern Pacific Railroad Company under an act of Congress of July 2, 1864, with power to construct a railroad from Lake Superior to Puget Sound, with a branch line via Columbia River to Portland; the grant of every alternate odd-numbered section of public

Counsel for Appellant.

land, not mineral, to the amount of twenty alternate sections per mile, on each side of the line when passing through the Territories; acceptance of the act by the Railroad Company; a joint resolution of Congress approved May 31, 1870, authorizing the company to issue bonds for the construction of the road, with a privilege to the company of building its main road by the valley of the Columbia River, with a branch across the Cascade Mountains to Puget Sound; the definite location on March 26, 1884, of the Cascade branch of the road; the completion and acceptance of the road coterminus with its public lands; the conveyance on August 3, 1896, of all its property to the Northern Pacific Railway Company, which has since continuously operated such road.

The bill further alleged that the quarter section in dispute was rough, mountainous land, the principal value of which consisted in the existence of a ledge of granite of good merchantable quality, and valuable for building stone; that the defendant in 1898 entered upon this quarter section and began to quarry, remove and dispose of such granite under a mineral location of the land in question, contending that such land is excepted from the general land grant, and that the question whether this land is mineral or non-mineral has not yet been determined by the department. Wherefore an injunction was prayed.

The answer raised no issue of fact, but averred that the lands were mincral in character and as such excepted from the grant, and that defendant having complied with the rules and regulations of the Land Department and made the proper proof, it was assumed aud decided that the defendant was entitled to a patent. That he paid the proper fees to the receiver, who forwarded the proofs and records to the Land Department with a recommendation that a patent issue. The patent, however, does not seem to have been actually issued until after the beginning of this suit. The court heard the case upon a stipulation of facts and entered a decree dismissing the bill, and quieting the title of the defendant to the lands in question. 99 Fed. Rep. 506. On appeal to the Circuit Court of Appeals this decree was affirmed. 104 Fed. Rep. 425.

Mr. C. W. Bunn and Mr. James B. Kerr for appellant.