This prosecution is for an alleged violation of section 4 of an act of congress entitled “An act for the sale of timber lands in the states of California, Oregon, Nevada and in Washington Territory,” approved June 3, 1878 (1 Supp. Rev. St. 168). The indictment alleges that the defendant cut timber on certain public lands, but does not allege that he intended to export or dispose of the timber so cut; and the question raised by the demurrer is whether or not such an intent is an essential ingredient of the offense, denounced in said section, of cutting timber on lands of the United States. The section is as follows:

The government contends that the words in said section, “with intent to export or dispose of the same,” qualify only the removal, and not the cutting, of timber. This construction, it seems to me, does not find support either in the grammatical arrangement of the section or in the policy of the law which prompted its enactment. It is true, as claimed by the government, that the overt acts to which, the section relates are three, — the cutting of timber, the destruction of timber, and the removal of timber; and that the statement of the intent to export or dispose of the timber concludes the enumeration of all of these acts; and also it may be conceded that an intent to dispose of timber is wholly inconsistent with its “wanton'’ destruction. Yet it does not follow that the words, “with intent to export or dispose of the same,” qualify only one of the other two overt acts. Even from a grammatical point of view, 'it is more reasonable to apply the qualification to both of the acts, with which it is consistent, and to withhold it only from that one to which, in the nature of tilings, it is inapplicable. The correctness of this view is made manifest by transposing the words “wanton destruction” so as to insert them immediately after the word “unlawful;” The section would then read as follows:

Nor is the proviso to the section inconsistent with this interpretation. This proviso is, as I view it, a specification of the purposes for which timber may be lawfully cut: or removed, and expressly legalizes some acts, both of removal and cutting, which would otherwise be forbidden by the body of the act.' The government, however, contends that the. proviso relates only to the cutting of timber, and that upon the principle, “the expression of one thing is the exclusion of another,” the words, “with intent to export or dispose of the same,"’ in the body of the act, are, in effect, simply an abbreviation of what is detailed in the proviso; and, therefore, to hold that said words relate also to the cutting of timber, makes the proviso superfluous, whereas, if the requirement as to intent be limited to the removal of timber, not only is the act harmonious, but every pari thereof, including the proviso, operative. The government’s argument on this point is as follows:

Conceding that this extract correctly defines the words “export” and “dispose of,” still the argument is fatally vulnerable, and its infirmity lies in the assumption that the proviso relates only to the cutting of timber, not its removal. By this proviso, as analyzed in the foregoing extract from the government’s brief, the lawful acts of a miner and agriculturist, so far as concerns timber on public land, are as follows: “(1) To clear his land in the ordinary working of his mining claim, or (2) to prepare his farm for tillage, or (3) to take the timber necessary to support his improvements.” After making this analysis, it will be observed, the brief proceeds to assume that “no one of these three acts involves a removal of the timber from off the land of the miner or agriculturist. Each of said three acts, however, does involve a cutting of timber, hut the cutting so involved does not involve an exporting of the timber, or a disposition thereof.” This assumption, it seems to me, is erroneous. While it is true that neither of said acts necessarily involves the sale of timber, or its removal from the land where cut, it is equally true that all of them may involve both removal and sale. For instance, if the agriculturist clears his land for tillage, and thus cuts more timber than is necessary to support his improvements, he may lawfully sell the surplus. The Timber Cases, 11 Fed. 81 ; U. S. v. Williams, 18 Fed. 478 . In the former of these cases the court says:

In the case last cited (U. S. v. Williams, supra), at page 478, the court says:

So that the cutting of timber for tillage, made lawful by the proviso, may involve either its removal or sale or both.

Thus it will be seen that the proviso does relate to the removal, as well as the cutting, of timber; and I am satisfied the words, “with intent to export or dispose of the same,” also qualify both the cutting and removal of timber. Nor does this interpretation render the proviso useless, but, as is apparent from what has already been said, the proviso subserves an important end. It limits the scope of the words, “with intent to export or dispose of the same,” by making it lawful for a homestead settler to cut timber, even though he intend at the time to sell it, provided the cutting be done in the necessary preparation of the land for tillage.

The above interpretation is further strengthened by a consideration of the object for which the law ivas passed. . The policy of the government in this and kindred legislation was to protect the timber tin the public domain, except as against certain necessary and specified list's in tillage and mining. Besides these uses, recognized as lawful, there was but one other purpose for which timber on public lands was likely to be taken, namely, its sale. Here was the menace, and,, except as below indicated, the only menace, to timber on the public domain. In some localities the lands of the government were being denuded of their growing trees, not for occupancy and improvement, but solely for exportation and sale of the timber. This was the" mischief, and, outside of w-niton destruction, the only mischief', present to the mind of congress, and against which the section in question was designed to afford a remedy. .The structure of the section, and the whole course of legislation on the subject to which it relates, satisfies me that the words, “with intent to export or dispose of the same,” relate to the cutting, as well as the removal, of timber. This conclusion is approved by derisions in at least two cases, where the section in controversy has been examined. U. S. at Childers, 12 Fed. 586 ; U. S. v. Williams, 18 Fed. 475 . In the first of these two eases occurs this paragraph:

In the latter of the two cases the first paragraph of the syllabus is as follows:

In the body of the opinion, at page 477, occurs the following:

It is true that the precise point now under consideration was not necessarily involved in either one of the two cases cited, but the section in question was critically examined in both, and therefore the opinions are strongly persuasive, although probably not entitled to the same weight they would receive had the point been an essential one. The same may be said of the cases of U. S. v. Garretson, 42 Fed. 22 , and Leatherbury v. U. S., 32 Fed. 780 , with the qualification that, while these cases arose under section 2461, Rev. St. U. S., yet that part of the section construed is substantially the same as the corresponding part of the act of June 3, 1878, now under discussion.

My opinion is, that the indictment is defective, because of its failure to allege that the timber was cut with intent to export or dispose of the same. The demurrer is sustained.