reasonable time in which to elect whether they will accept or not. If they decline to take the property the bankrupt can assert title thereto. American File Company v. Garrett, 110 U. S. 288, 295; Sparhawk v. Yerkes, 142 U. S. 1; Sessions v. Romadka, 145 U. S. 29; Dushane v. Beall, 161 U. S. 513. But that doctrine can have no application when the trustee is ignorant of the existence of the property and has had no opportunity to make an election. It cannot be that a bankrupt, by omitting to schedule and withholding from his trustee all knowledge of certain property, can, after his estate in bankruptcy has been finally closed up, immediately thereafter assert title to the property on the ground that the trustee had never taken any action in respect to it. If the claim was of value (as certainly this claim was according to the judgment below) it was something to which the creditors were entitled, and this bankrupt could not, by withholding knowledge of its existence, obtain a release from his debts and still assert title to the property.

The judgment of the Court of Civil Appeals is reversed, and the case remanded to that court for further proceedings not inconsistent with this opinion.

BUTTE CITY WATER COMPANY v. BAKER.

ERROR TO THE SUPREME COURT OF THE STATE OF MONTANA.

No. 109. Argued December 16, 1904.-Decided January 3, 1905.

While the disposal of the public lands is made through the exercise of legislative power entrusted to Congress by the Constitution, yet Congress prescribing the main and substantial conditions thereof may rightfully entrust to local legislatures the determination of those minor matters as to such disposal which amount to mere regulations.

Regulations made by the local legislatures in regard to the location of min

Argument for Plaintiff in Error.

196 U.S.

ing claims which are not in conflict with the Constitution and laws of the United States are not invalid as an exercise of a power which cannot be delegated by Congress and such regulations must be complied with in order to perfect title and ownership under the mining laws of the United States.

Even if doubts exist were the matter wholly res integra, and although consequences may not determine a decision, this court will pause before declaring invalid legislation long since enacted, and the validity whereof has been upheld by state courts and recognized by this court, and on the faith of which property rights have been built up and countless titles rest which would be unsettled by an adverse decision.

The regulations contained in § 3612 of the Montana Code are not invalid as being too stringent and therefore in conflict with the liberal purpose manifested by Congress in its legislation respecting mining claims.

THE facts are stated in the opinion.

Mr. L. Orvis Evans, with whom Mr. W. W. Dixon was on the brief, for plaintiff in error:

Congress cannot delegate to a State the authority to legislate upon the sufficiency of records of location of mining claims, that being one of the steps in the disposition of public lands. Mares v. Dillon, 75 Pac. Rep. 963.

Congress is vested with authority to regulate the disposal of the public lands. Sec. 3, Art. IV, Const. U. S.; Pollard v. Hagan, 3 How. 224; De Lima v. Bidwell, 182 U. S. 197; Jourdan v. Barrett, 4 How. 169, 185; Russell v. Lowth, 18 Am. Rep. 389; United States v. Hughes, 11 How. 552, 568; United States v. Gratiot, 14 Pet. 526, 537; United States v. Fitzgerald, 15 Pet. 407, 421; 2 Story on Const. § 1328; 2 Tucker on Const. 605.

Not only is the power of disposition in Congress, but the States have no authority whatever in the matter. Irvine v. Marshall, 20 How. 558; Wilcox v. Jackson, 13 Pet. 498; Gibson v. Choteau, 13 Wall. 92, 104; Seymour v. Sanders, 3 Dill. 437; Russell v. Lowth, 21 Minnesota, 167; Miller v. Little, 47 California, 348; Van Brocklin v. Anderson, 117 U. S. 151, 167; Cross v. Harrison, 16 How. 164; Headley v. Coffman, 56 N. W. Rep. 701; Chapman v. Quinn, 56 California, 266, 292; Kissell v. St. Louis, 18 How. 19.

196 U. S.

Argument for Defendant in Error.

Congress has no right to delegate that power. The Constitution does not give it the authority to delegate it. A legislative body has no power of delegation in the matter of making laws. Cooley Const. Lim., 6th ed., 137; Field v. Clark, 143 U. S. 649; Wayman v. Southard, 10 Wheat. 48; Re Rahrer, 140 U. S. 545.

Congress never has delegated, or attempted to delegate, to the State, the authority claimed to have been exercised.

If Congress did delegate the authority to the State, the act of the State, the agent, becomes the act of the National Government, the principal, and is to be finally construed by this

court.

Submitted by Mr. Robert B. Smith and Mr. J. E. Healy for defendant in error:

So long have state and local regulations been recognized, either expressly or by implication in this court, that they have become a rule of property under which mining titles have been perfected and under which rights have grown

up.

The statutes of the United States, §§ 2322, 2323, 2324, Rev. Stat., give full recognition to local and state rules and regulations, seemingly recognizing that under mining laws everywhere such local rules have ever existed where mining has been carried on. Lindley on Mines, 2d ed. §§ 1 to 25; O'Donnell v. Glenn, 19 Pac. Rep. 305; Baker v. Water Company, 72 Pac. Rep. 617; Jackson v. Roby, 109 U. S. 440; Erhardt v. Boaro, 113 U. S. 527; Shoshone Mining Co. v. Rutter, 177 U. S. 505; Telluride Co. v. Railway Co., 175 U. S. 639; De Lamar Co. v. Nesbitte, 177 U. S. 524; Speed v. MacCarthy, 181 U. S. 275; Blackburn v. Portland Mining Co., 175 U. S. 571.

The act of Montana of July 1, 1895, was modeled after the Colorado law in the main, and was not adopted in Montana very long before it was copied in Nevada. Sisson v. Sommers, 55 Pac. Rep. 829; Purdum v. Laddin, 59 Pac. Rep. 153.

MR. JUSTICE BREWER delivered the opinion of the court.

This was an action of ejectment brought in the District Court of Silver Bow County, Montana. The dispute was between two locations of the same mining ground. The defendant's location was adjudged invalid by the trial court, and its decision was affirmed by the Supreme Court of the State, on the ground of a failure to comply with certain Montana statutes. 28 Montana, 222. These statutes contained regulations concerning the location of mining claims in addition to those prescribed by Congressional legislation, and the question is as to the validity of those additional requirements.

Section 2319, Rev. Stat., provides that "All valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States."

Section 2322 gives to the locators the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, "so long as they comply with the laws of the United States, and with State, Territorial, and local regulations not in conflict with the laws of the United States governing their possessory title."

Section 2324 contains this grant of authority:

"SEC. 2324. The miners of each mining district may make regulations not in conflict with the laws of the United States, or with the laws of the State or Territory in which the district is situated, governing the location, manner of recording, amount of work necessary to hold possession of a mining claim, subject to the following requirements: The location must be distinctly marked on the ground so that its boundaries can

be readily traced. All records of mining claims hereafter made shall contain the name or names of the locators, the date of the location, and such a description of the claim or claims located by reference to some natural object or permanent monument as will identify the claim."

Section 2332 makes the statute of limitations for mining claims of a State applicable for certain purposes to mining claims under the Government.

Section 2338 reads as follows:

"As a condition of sale, in the absence of necessary legislation by Congress, the local legislature of any State or Territory may provide rules for working mines, involving easements, drainage, and other necessary means to their complete development; and those conditions shall be fully expressed in the patent."

Section 2339 contains this clause:

"Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same."

In 1893 Congress passed an act (28 Stat. 6) relieving from the necessity of the annual labor for that year, "so that no mining claim which has been regularly located and recorded as required by the local laws and mining regulations shall be subject to forfeiture for non-performance of the annual assessment for the year eighteen hundred and ninety-three," and a similar statute was enacted in 1894 in respect to the annual labor for that year. 28 Stat. 114.

While in the above sections there is not that direct grant of authority to the State to legislate respecting locations as there is to miners to make regulations, yet there is a clear recognition of such legislation. All these statutory provisions, except the last two sections referred to, were embodied in the legislation of 1872, and have been in force ever since.