such manner and to such extent as to warrant the inference that it is present there."

[2-4] So, also, it was said by Judge Hawley, of this circuit, in Doe v. Springfield Boiler & Mfg. Co., 104 Fed. 684, 687, 44 C. C. A. 128, 131:

"The general consensus of opinion is that the corporation must transact within the state some substantial part of its ordinary business by its officers or agents appointed and selected for that purpose, and that the transaction of an isolated business act is not the carrying on or doing business in a state."

Just what may be meant in that statement by the phrase "some substantial part of its ordinary business" is perhaps indefinite; but I think, upon reason and authority, it may be said that if the corporation is engaged in a more or less continuous effort, not merely casual, sporadic, or isolated, to conduct and carry on within the state some part of the business in which it is usually and generally engaged, it may be said with due and becoming propriety to be "doing business" within such state. Copper Mfg. Co. v. Ferguson, 113 U. Š. 727, 5 Sup. Ct. 739, 28 L. Ed. 1137; Vaughn Machine Co. v. Lighthouse, 64 App. Div. 138, 71 N. Y. Supp. 801; Neyens v. Worthington, 150 Mich. 580, 114 N. W. 404, 18 L. R. A. (N. S.) 142; Penn Collieries v. McKeever, 183 N. Y. 98, 75 N. E. 935, 2 L. R, A. (N. S.) 127.

Within these limits and upon the facts adduced in the cases at bar, there can be no conclusion other than that each of the defendant corporations is doing business within the state of California. The other questions in the case are as to the sufficiency of the service had.

[5, 6] In the Tractor Company Case service was had upon a corporation that was in every sense of the word a "business agent" of the defendant in California. Some criticism is indulged in because of the fact that the complaint alleges, as adverted to hereinabove, that defendant's principal place of business in California was in Los Angeles. Obviously, however, no service could have been made upon defendant's business agent at its place of business in Los Angeles. So to do would have been for plaintiffs to have served themselves in a suit by them against defendant. Such would doubtless have failed to comply with the due process requirements of the law. St. Clair v. Cox, 106 U. S. 350, 1 Sup. Ct. 354, 27 L. Ed. 222. There is no reason, however, why, though defendant's principal place of business in California may have been, as alleged, in Los Angeles, service could not have been made upon an appropriate business agent located elsewhere within the state. Although, in view of the holding of the sufficiency of the service on the business agent of defendant, the question of the sufficiency of the service upon the secretary of state is not necessary to a decision herein, yet, since motion has been made to quash it, I am constrained to hold that such motion should be granted. Such service was had pursuant to the provisions of section 405 of the Civil Code of California. which is contained in title 1, part IV, of said Code, entitled "Foreign Corporations," and provides as follows:

"Designation of Person on Whom Process may be Served-Service on Secre tary of State Valid, When.-Every corporation other than those created by

or under the laws of this state must, at the time of filing the certified copy of its articles of incorporation, file in the office of the secretary of state a designation of some person residing within the state upon whom process issued by authority of or under any law of this state may be served. A copy of such designation, duly certified by the secretary of state, is sufficient evidence of such appointment. Such process may be served on the person so designated, or, in the event that no such person is designated, then on the secretary of state, and the service is a valid service on such corporation."

This section would seem to be in conflict with the provisions of section 411 of the Code of Civil Procedure heretofore referred to, which provides how summons in a civil action "must be served," and in the face of such conflict it might be contended with some show of reason that, in a case involving the question of sufficiency of service of summons, the provisions of the Code of Civil Procedure should control. However, that contention seems to be foreclosed by the decision of the Supreme Court of the state of California in Olender v. Crystalline Mining Co., 149 Cal. 482, 484, 86 Pac. 1082, where the court seems to hold that the act providing for service upon the secretary of state is a "substitute" for the service formerly prescribed by the Code of Civil Procedure. In my judgment, however, in so far as section 405, supra, purports to provide for service of process upon a foreign corpoFation by substituted service upon the secretary of state, it fails to comply with the due process clause of the federal Constitution and is, to that extent, void.

[7] I am aware, of course, that this precise question was passed upon adversely to the conclusion just announced by the Supreme Court of California in the Olender Case, supra. I am also aware, however, that it is the duty of this court to declare the law, in so far as rights secured under the federal Constitution are concerned, untrammeled by decisions of state courts, which in this respect, at least, are not binding upon it.

[8] It is noticed that no provision is made in the section of the Civil Code referred to for the sending of any notice by the secretary of state to the corporation sought to be subjected to the jurisdiction of the state tribunal. In this respect the case is essentially different from that of Mutual Reserve Association v. Phelps, 190 U. S. 147, 158, 23 Sup. Ct. 707, 47 L. Ed. 987, and is brought within the terms of the decisions in King Tonopah Mining Co. v. Lynch (D. C.) 232 Fed. 485; Southern Ry. Co. v. Simon (C. C.) 184 Fed. 959, and Pinney v. Providence Loan Co., 106 Wis. 396, 82 N. W. 308, 50 L. R. A. 577, 80 Am. St. Rep. 41. The Circuit Court in the Simon Case, supra, states the controlling principle in simple yet apt language:

"It is fundamental that the method of citation should be fairly calculated to bring home to the defendant actual notice of the pendency of the action and allow him a reasonable time to put in his defense."

If the California statute contained some provision, such as was found in the Phelps Case, supra, for a notification by the secretary of state of the defendant corporation of the fact of service and the pendency of suit, it then might fairly be presumed that official action in such behalf would be promptly and properly performed, and that defendant would in due course be given notice of the pending litigation.

The fact that no provision was made for direct appointment by the foreign corporation of the secretary of state as its agent to receive service of process I consider to be immaterial. If it came into the state to do business, presumably it came in intending to comply with and be bound by the laws of the state regarding such a corporation as it was, and it would not be unreasonable to hold that it accepted the privilege of doing business subject to the limitation that service upon the secretary of state, followed by notice to it, should be considered as sufficient. However, the California statute like the Nevada statute and the Louisiana statute contains no provision for notice to the defendant, and in that respect it could easily, and would probably, be true, as is so clearly stated by Judge Farrington in the Lynch Case, supra, that defendant would have absolutely no knowledge at all of the existence of the litigation or of the fact of service. To intimate that, under such circumstances, it nevertheless may be bound, and a valid judgment secured against it, shocks the conscience and demonstrates that such attempted service constitutes a want of compliance with the due process clause of the Constitution. For these reasons I am constrained to hold, as above indicated, the provision of section. 405 above referred to unconstitutional.

[9] Service in the Portrait Company Case, though made upon the secretary of the corporation, was not made, in my judgment, in compliance either with the law of the state of California or the general law controlling the situation. Subdivision II of section 411 of the Code of Civil Procedure, heretofore referred to, provides for service upon the secretary of a foreign corporation "doing business and having [maintaining?] a managing or business agent, cashier, or secretary within this state." This I am persuaded means that service pursuant to this section can be had upon one of the officers mentioned only in the event that he is engaged in the state in a representative capacity for the corporation in the capacity indicated.

Under the general law it would seem that the mere casual presence of an officer of the corporation in the state, not engaged in the business of the corporation, will not suffice to warrant service of process as against the corporation upon him. St. Clair v. Cox, 106 U. S. 350, 358, 1 Sup. Ct. 354, 27 L. Ed. 222. It seems clear from the evidence adduced that Paine was in California purely in his private capacity on a pleasure trip, and not in any wise as representative of defendant corporation. The secretary of a corporation, away from its domicile, "does not carry the corporation in his pocket." Louden Machinery Co. v. American Malleable Iron Co. (C. C.) 127 Fed. 1008. For this reason I am constrained to hold that motion to quash service of summons as made upon him should be granted. Premo Co. v. Jersey-Creme Co., 200 Fed. 352, 118 C. C. A. 458, 43 L. R. A. (N. S.) 1015.

[10, 11] It is apparent, from the papers before the court, that there is a managing or business agent of the defendant Portrait Company residing and conducting the business of the corporation in California, to wit: Frank S. Huffman, road manager for entire state, located in Oakland, Cal., and it would seem as if valid service of process might be had upon him. He seems to be of sufficient rank to justify the

conclusion that it is "reasonably certain that the corporation would be notified of the service." Denver & R. G. R. R. v. Roller, 100 Fed. 738, 741, 41 C. C. A. 22, 25 (49 L. R. A. 77). The question has not been presented or argued in the case, but it would seem, upon reason, as if it were competent for the court now to authorize the issuance of process out of this court in order that service may be had upon the managing agent of defendant aforesaid. Clark v. Wells, 203 U. S. 164, 27 Sup. Ct. 43, 51 L. Ed. 138.

Appropriate orders quashing service of summons upon the secretary of state in the one case and upon the secretary of the company in the other will be entered and an order made providing for the issuance of process for service upon the road manager as hereinabove indicated.

MINTZER et al. v. NORTH AMERICAN DREDGING CO. (District Court, N. D. California, Second Division. August 28, 1916.)

No. 184.

1. NAVIGABLE WATERS 39(4)-RIGHTS OF RIPARIAN OWNERS-IMPROVEMENT OF CHANNELS.

Whatever may be the rights of riparian proprietors in the land underlying a navigable stream below mean high-water line, they are held in subordination to the public right of navigation and the coincident right to employ all appropriate means to improve the channel for such purpose. [Ed. Note. For other cases, see Navigable Waters, Cent. Dig. § 21.] 2. NAVIGABLE WATERS 37(7)—LANDS UNDER WATER-CONSTRUCTION GRANT.

OF

Where the state granted a tract of marsh or tide land, which was intersected by many tidal sloughs or creeks, some of considerable magnitude and others dwindling to mere ditches or rivulets, and neither the channel of one of such streams nor the land underlying it was excepted from the grant, the grantee had a valid legal title to the land through which the stream ran, including the soil underlying the channel, even though the stream was navigable.

[Ed. Note.-For other cases, see Navigable Waters, Cent. Dig. §§ 212215.]

3. NAVIGABLE WATERS 39(4)-RIGHTS OF RIPARIAN OWNERS-IMPROVEMENT OF CHANNELS.

Even for the purpose of improving a stream for purposes of navigation, there is no right to take and carry away the soil underlying the stream and belonging to the riparian proprietor without compensation, and to sell it to another for the betterment of his land.

[Ed. Note. For other cases, see Navigable Waters, Cent. Dig. § 21.] 4. EVIDENCE 10(5)-NAVIGABLE WATERS 1(7)-EVIDENCE OF NAVIGABILITY-JUDICIAL NOTICE.

While courts take judicial cognizance of the navigable character of large and well-known bodies of water, as to those of a more insignificant character, the history and nature of which are less known, the fact of navigability must be established by evidence, and the burden of proof rests on the party asserting that character.

[Ed. Note. For other cases, see Evidence, Cent. Dig. § 13; Navigable Waters, Cent. Dig. §§ 12-15.]

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

5. NAVIGABLE WATERS 1(3)-TEST OF NAVIGABILITY.

The mere depth of water does not place a stream in the category of a navigable waterway, other essentials being absent; nor will the want of depth or capacity in part of its course take a stream out of that category, if the other characteristics are present.

[Ed. Note. For other cases, see Navigable Waters, Cent. Dig. § 7.]

6. NAVIGABLE WATERS 1(4)-TEST OF NAVIGABILITY.

That a stream is one in which the tide ebbs and flows does not necessarily tend to demonstrate its navigable character.

[Ed. Note.-For other cases, see Navigable Waters, Cent. Dig. § 8.] 7. NAVIGABLE WATERS 1(1)-WHAT CONSTITUTES-NAVIGABLE STREAM.

A tract of marsh or tide land, largely submerged at flood tide, was intersected by many tidal sloughs or creeks, one of which was, in its lower reaches, as wide as 100 feet or over, with a depth of from 2 feet or less at low tide in its shallowest parts to approximately 7 or 8 feet at its flood, and deepening somewhat towards its mouth. A grant of such lands did not except such stream, and it had never been meandered by the state, or designated as a navigable stream by statute. It had never been used or regarded as navigable, other than for duck boats or punts for hunting and fishing, until within a few years, when an oil company established a plant on adjoining land, and on a few occasions took small amounts of material to its plant on the flood tide by power boats and scows of light draft. It ran wholly through unimproved private property, and was not accessible or available to the public, or to any private industry other than the oil company's plant, and, though within the corporate limits of a city, it was at least a quarter of a mile from the nearest established street. Held, that it was not a navigable stream, which could be improved for purposes of navigation against the wishes of the riparian proprietor.

[Ed. Note. For other cases, see Navigable Waters, Cent. Dig. §§ 5, 11, 16.]

In Equity. Suit by Lucio M. Mintzer and others against the North American Dredging Company, in which the City of Richmond intervened. Decree for plaintiffs.

J. K. Johnson and W. P. Johnson, both of San Francisco, Cal., for plaintiffs.

D. J. Hall, of Richmond, Cal., for intervener.
Earl D. White, of Oakland, Cal., for defendant.

VAN FLEET, District Judge. This is a bill to enjoin the defendant from further proceeding to dredge out and deepen a certain waterway or channel traversing lands alleged to belong to the plaintiffs' testator, and from carrying away the earth or soil therefrom, as constituting a willful and malicious trespass and waste, and to recover damages for the waste and injury already done.

The answer of the defendant denies any ownership or right of any kind in the plaintiffs in the land involved, and sets up that the channel in question is "known and designated as the south channel of the San Pablo Canal, all within the city limits of the city of Richmond, county of Contra Costa, state of California, and that said channel is, and has been for many years last past, a navigable waterway, with a public terminus, connecting the said city of Richmond with the San Pablo Bay and the Bay of San Francisco," and that "for many years last

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