A discovery of mineral within the limits of a mining claim is
essential to its validity; proximity will not suffice.
An original location is invalidated by readjusting the lines so
as to exclude the point or place of the only prior discovery.
A readjusted location becomes effective as of the date of the
readjustment as though it were a new one, and if the locator is
disqualified at the time of the readjustment, the location is
invalid.
A prohibition against purchase of public lands by officers of
the Land Department and employees is to prevent abuse and inspire
confidence in administration of the land laws, and should be
construed broadly to include officials and employees of subordinate
offices and all methods of securing title to public lands under the
general laws.
A United States mineral surveyor is disqualified under § 452,
Rev.Stat., from making a mining location.
Although the opinion may possibly go beyond the necessities of
the case concerning the statute, if it states the natural effect to
be given to a statute, and that view is accepted and acted upon for
many years by the Department enforcing it, the construction should
not be disturbed.
The general rule of law that an act done in violation of
statutory prohibition is void, and confers no right upon the
wrongdoer,
held applicable in this case and not subject to
the qualification that it was the legislative intent that, under
the circumstances of the case, the statute should not apply.
The fact that a statute prescribes a penalty for the doing of a
prohibited act does not confine the scope of the statute to the
prohibition, or make the prohibited act valid as against parties
other than the government, and so
held as to § 452,
Rev.Stat.
170 F. 31 affirmed.
The facts, which involve the construction of the mining laws of
the United States and conflicting claim thereunder, are stated in
the opinion.
Page 223 U. S. 89
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
This was an action of ejectment, the subject matter of which was
the overlapping portions of two placer mining claims in Alaska, one
known as the Golden Bull and the other as the Bon Voyage. The
plaintiffs claimed the area in conflict as part of the Golden Bull,
and the defendants claimed it as part of the Bon Voyage. The facts,
as they must be accepted for present purposes, are these:
In 1902, the Bon Voyage was located by J. Potter Whittren, he
having previously made a discovery of placer gold within the ground
which he included in the claim. Although not intended to be
excessive, the claim embraced a trifle more than 20 acres, the
maximum area permitted in a location by one person. In 1903,
Whittren, upon ascertaining that fact, drew in two of the boundary
lines sufficiently to exclude the excess, and in doing so left the
point or place of his only prior mineral discovery outside the
readjusted lines. Later in 1903, he made a discovery of placer gold
within the lines as readjusted. At the time of drawing in the lines
and making the subsequent discovery, he was a United States mineral
surveyor, but was not such at the time of the original location. In
1904, the Golden
Page 223 U. S. 90
Bull was located by B. Schwartz, and included a part of the
ground embraced in the Bon Voyage. Neither claim was carried to
patent or entry, and when the action was begun, the defendants were
in possession. The plaintiffs other than Schwartz claimed under
him, and the defendants other than Whittren claimed under
conveyances from him, made after 1904.
Upon the trial, the court, at the instance of the plaintiffs,
directed a verdict in their favor substantially upon the following
grounds, taken collectively: 1. A discovery of mineral within the
limits of a mining claim is essential to its validity; 2. The
original location of the Bon Voyage was invalidated by the
readjustment of its lines whereby the point or place of the only
prior discovery of mineral was left without those lines; 3. The
readjusted location was invalid because, at the time of the
discovery of mineral therein, Whittren, being a United States
mineral surveyor, was disqualified to make a location under the
mining laws. The jury returned a verdict as directed, judgment was
entered thereon, the judgment was affirmed by the Circuit Court of
Appeals for the Ninth Circuit, 170 F. 31, and the case is here upon
certiorari. 216 U.S. 622.
Conceding that the unintentional inclusion of a trifle more than
twenty acres in the Bon Voyage as originally located was an
irregularity which did not vitiate the location, but merely made it
necessary that the excess be excluded when it became known
(
Richmond Mining Co. v. Rose, 114 U.
S. 576,
114 U. S. 580;
McIntosh v. Price, 121 F. 716;
Zimmerman v.
Funchion, 161 F. 859), we come to consider whether the
location was invalidated when, by the readjustment of its lines, it
was left without a mineral discovery therein. The mining laws,
Rev.Stat. §§ 2320, 2329, make the discovery of mineral "within the
limits of the claim" a prerequisite to the location of a claim,
whether lode or placer, the purpose being to reward the
Page 223 U. S. 91
discoverer and to prevent the location of land not found to be
mineral. A discovery without the limits of the claim, no matter
what its proximity, does not suffice. In giving effect to this
restriction, this Court said, in
Gwillim v. Donnellan,
115 U. S. 45, that
the loss of that part of a location which embraces the place of the
only discovery therein is "a loss of the location." Possibly what
was said went beyond the necessities of that case, critically
considered, but it illustrates what naturally would be taken to be
the effect of the statute, and as that view of it has been accepted
and acted upon for twenty-five years by the Land Department and by
the courts in the mining regions, it should not be disturbed now.
It follows that when, in 1903, Whittren excluded from the Bon
Voyage the only place at which mineral had been discovered therein,
he lost the location. That his purpose was not to give up the
location, but only to eliminate the excess in area, is immaterial,
because, although free to exclude any other part of the claim and
to retain that embracing the discovery, he excluded the latter, and
thereby caused the location to be without a discovery within its
limits. Possibly, as was suggested in argument, the discovery was
excluded because it was not deemed sufficiently promising to make
its retention advisable, but, however that may have been, its
exclusion defeated the location and left the lands therein "open to
exploration and subject to claim for new discoveries."
Ibid.
As no adverse right had intervened at the time of Whittren's
subsequent discovery of mineral within the limits of the readjusted
location, it must be conceded that that location became effective
as of that time, just as if he had then marked those limits anew (2
Lindley on Mines, §§ 328, 330), unless he was then disqualified to
make a location by reason of his having become a United States
mineral surveyor, and so it is necessary to consider whether such a
surveyor is within the prohibition of Rev.Stat.
Page 223 U. S. 92
§ 452, and, if so, whether that prohibition made the readjusted
location void, or only voidable at the instance of the government.
That section reads:
"The officers, clerks, and employees in the General Land Office
are prohibited from directly or indirectly purchasing or becoming
interested in the purchase of any of the public land, and any
person who violates this section shall forthwith be removed from
his office."
Mineral surveyors are appointed by the surveyor general under
Rev.Stat. § 2334, and their field of action is confined to the
surveying of mining claims and to matters incident thereto. They
act only at the solicitation of owners of such claims, and are paid
by the owners, not by the government; but their charges must be
within the maximum fixed by the Commissioner of the General Land
Office, and their work must be done in conformity to regulations
prescribed by that officer. They are required to take an oath, and
to execute a bond to the United States, as are many public
officers. Within the limits of their authority, they act in the
stead of the surveyor general and under his direction, and in that
sense are his deputies. The work which they do is the work of the
government, and the surveys which they make are its surveys. The
right performance of their duties is of real concern not merely to
those at whose solicitation they act, but also to the owners of
adjacent and conflicting claims and to the government. Of the
representatives of the government who have to do with the
proceedings incident to applications for patents to mining claims,
they alone come in contact with the land itself, and have an
opportunity to observe its situation and character, and the extent
and nature of the work done and improvements made thereon, and it
is upon their reports that the surveyor general makes the
certificate required by Rev.Stat. § 2325, which is a prerequisite
to the issuance of a patent.
See Mining Regulations of
July 26, 1901, paragraphs
Page 223 U. S. 93
90, 115-169, 31 L.D. 474, 489, 493; Gowdy v. Kismet Gold Mining
Co. 24 L.D.191, 193. The resume of their authority and duties, and
of their relation to the surveyor general and the General Land
Office, satisfies us that they are within the prohibition of § 452.
That prohibition is addressed not merely to the officers of the
General Land Office, or to its officers and clerks, but to its
"officers, clerks, and employees." These words, taken collectively,
are very comprehensive, and easily embrace all persons holding
positions under that office and participating in the work assigned
to it, as is the case with mineral surveyors. The purpose of the
prohibition is to guard against the temptations and partiality
likely to attend efforts to acquire public lands, or interests
therein, by persons so situated, and thereby to prevent abuse and
inspire confidence in the administration of the public land laws.
So understanding the letter and purpose of the prohibition, we
think it embraces the location of a mining claim by a mineral
surveyor. True, it is addressed to officers, clerks, and employees
"in the General Land Office," and is directed against "the purchase
of any of the public land" by them; but in view of the terminology
common to public land legislation, we think the reference to the
General Land Office is inclusive of the subordinate offices or
branches maintained under its supervision, such as the offices of
the surveyors-general and the local land offices, and that the term
"purchase" is inclusive of the various modes of securing title to
or rights in public lands under the general laws regulating their
disposal.
That the construction which we here place upon § 452 is the one
prevailing in the Land Department is shown in its circular of
September 15, 1890, 11 L.D. 348, wherein it is said:
"All officers, clerks, and employees in the offices of the
surveyors general, the local land offices, and the General Land
Office, or any persons, wherever located, employed under the
supervision of the Commissioner
Page 223 U. S. 94
of the General Land Office, are, during such employment,
prohibited from entering or becoming interested, directly or
indirectly, in any of the public lands of the United States."
The published decisions of the Secretary of the Interior,
although disclosing instances in which that construction has been
departed from or doubted, Dennison and Willets, 11 Copp's
Land-Owner 261; Lock Lode, 6 L.D. 105; W. H. Leffingwell, 30 L.D.
139, show that in the main it has been closely followed. McMicken,
10 L.D. 97, and 11 L.D. 96; Muller v. Coleman, 18 L.D. 394; John S.
M. Neill, 24 L.D. 393; Floyd v. Montgomery, 26 L.D. 122, 136; Frank
A. Maxwell, 29 L.D. 76; Alfred Baltzell, 29 L.D. 333; Seymour K.
Bradford, 36 L.D. 61.
In principle, the recent case of
Prosser v. Finn,
208 U. S. 67, goes
far to sustain the view here expressed. There, a special agent of
the General Land Office, whose field of duty was in the State of
Washington, made an entry of public land under the timber culture
law, and thereafter in all respects complied with that law. But it
was held by this Court that he was, in every substantial sense, an
employee in the General Land Office, and therefore was within the
prohibition of § 452.
The general rule of law is that an act done in violation of a
statutory prohibition is void and confers no right upon the
wrongdoer; but this rule is subject to the qualification that when,
upon a survey of the statute, its subject matter, and the mischief
sought to be prevented, it appears that the legislature intended
otherwise, effect must be given to that intention.
Miller v.
Ammon, 145 U. S. 421,
145 U. S. 426;
Burck v. Taylor, 152 U. S. 634,
152 U. S. 649;
Connolly v. Union Sewer Pipe Co., 184 U.
S. 540,
184 U. S. 548.
Here, we think the general rule applies. The acts described in §
452 are expressly prohibited under penalty of dismissal. There is
in its language nothing indicating that its scope is to be
confined
Page 223 U. S. 95
to the exaction of that penalty,
Prosser v. Finn,
supra, or that acts done in violation of it are to be valid
against all but the government. Nor is there anything in its
subject matter or in the mischief sought to be prevented which
militates against the application of the general rule. On the
contrary, it is reasonably inferable from the language of the
section and the situation with which it deals that it is intended
that violations of its shall be attended by the ordinary
consequences of unlawful acts. We therefore are of opinion that the
readjusted location was void.
Affirmed.