Argument for Appellants. defines an employee: "One who works for an employer; a person working for salary or wages, applied to any one so working, but usually only to clerks, workmen, laborers, etc., and but rarely to the higher officers of a corporation or government or a domestic servant." An employee is one who is paid wages as distinguished from salary. (People v. Meyers, 33 N. Y. 18.) V. If a mineral surveyor be held to be an employee of the government, then his own assistants employed by him upon the survey are also employees of the government and subject to the prohibition of section 452. The absurd result would follow that nobody could hold a rod or carry a chain in a mineral survey without forfeiting his right to enter public lands. A partial reservation of authority or control in certain respects does not transform the contractor into mere servant. (Wood on Master and Servant, 618; Cooley on Torts, 548; Wharton on Agency, secs. 19, 20.) Thus the requirements that the survey be made in conformity to the general rules of the General Land Office and the instructions of the surveyor-general; that lumber be sawed according to directions given; that a railroad contractor do his work under the supervision and to the satisfaction of the chief engineer, or a builder under the supervision of the architect, or a plumber under the supervision of an official known as the inspector of plumbing-none of these make a contractor a mere employee of anybody. Where a contractor to grade a street "agreed to conform the work to such further directions as should be given by the street commissioner and one of the city surveyors" (which is as full power and authority as is exerted over a deputy mineral surveyor by the surveyorgeneral or any other officer of the land department), the court held: "This clause in the contract does not in any manner affect the case. It does not constitute Foster (the contractor) any more the immediate agent or servant of the defendant than if the provision were not inserted in his contract." (Pack v. Mayor of New York, 8 N. Y. 222; Kelley v. Mayor of New York, 11 N. Y. 432.) VI. "It would seem that there can be no valid objection to this entry as a matter of public policy, unless it be said. Argument for Appellants. that claimant's position as a deputy surveyor gives him an advantage over the rest of the community in locating claims-in other words, his position gives him special information as regards the places where valuable minerals are to be found. I am not of opinion, however, that this objection should be sufficient to work a forfeiture of an entry already made, or to prevent the making of one." This ruling of the land department remained in full force without any modification until the decision in Floyd v. Montgomery, 26 L. D. 122. In that case a deputy mineral surveyor was one of several applicants for patents on a mining claim. His interest in the claim was acquired after location and immediately prior to application for patent. He made the survey and prepared and filed preliminary report and field notes with report on improvements. It being urged that he was disqualified by Rev. Stats. U. S., 452, from obtaining patent, the secretary directed that the deputy mineral surveyor's name be stricken from the final certificate, and the entry passed to patent in the name of the remaining applicants, saying on page 136: "In Herbert McMicken, et al. (10 L. D. 97, on review. 11 L. D. 96), Secretary Noble held that an officer, clerk, or employee in the office of a United States surveyor-general is an officer, clerk, or employee in the General Land Office within the meaning of this section. In Muller v. Coleman (18 L. D. 394) Secretary Smith held that a deputy surveyor is such an employee, and in the Neill case (24 L. D. 393) the present secretary held that a surveyorgeneral is within the inhibition so declared. A circular of similar import was issued September 15, 1890 (11 L. D. 348). From an examination of these authorities and a consideration of the language and manifest purpose of the section, it seems clear that its prohibitive provisions embrace a deputy mineral surveyor. In so far as the cases of State of Nebraska v. Dorrington (2 C. L. L. 647); Dennison v. Willits (11 C. L. O. 261), and Lock Lode (6 L. D. 105) are in conflict with the views expressed in these latter cases they are overruled." VII. Analysis of the statute and of the departmental regulations relative to deputy mineral surveyors, and of the functions of such persons in relation to the land department Argument for Appellants. and to those employing them, shows that their status as regards the government of the United States and the land department is that of mere licensees. The government furnishes him no work at any time. It cannot command him to do any work. It cannot accept any service from him. He is simply authorized to act in behalf of applicants for mineral patents in certain of the necessary preliminary proceedings before the land department. The position of a mineral surveyor is entirely similar to that of any attorney practicing before the department. The function of each is the same-to assist an applicant in his proceedings to obtain title to his land from the United States. Each, before he is permitted to act, is required to pass a test of his competency to render such assistance. Each is required by the regulations of the department, though not by statute, to take an official oath. Each then receives an official paper authorizing him so to render service to applicants for patent. Each thereupon makes with the applicant a contract, express or implied, for his compensation-a contract with which the government has nothing to do. VIII. It may be admitted that the land office has decided that a, deputy mineral surveyor is within the prohibitions of the statute under discussion. But we have shown that the department has also decided that he is not within the provisions of that section. But if this court desired to be bound hand and foot by the decisions of the land department, it could not decide this case upon any precedent made by that office, for to decide this cause it is necessary to decide not only whether the mineral surveyor is within the provisions of the law, but, if the court decides that he is, it must then determine the consequences as applied to the facts of this case. The land department furnishes no precedent for a decision of this point. It is true that it has rejected an application for patent made by a mineral surveyor, and received one, too, as we have shown; but the rejection of an application for patent is not a decision that a location of the ground for which patent is sought is void, so that it may be treated as a nullity by all the world. It is the duty of the land department to reject the application of Argument for Respondent. an alien for patent to mineral ground, but we have fully shown in this brief that the circumstances that an alien may not obtain a patent does not render a location made by him a nullity; but, on the contrary, his location is valid, and effectually withdraws the ground from subsequent location by a citizen. So that the fact that the land department has rejected as well as received a mineral surveyor to become a patentee of mineral lands, determines nothing as to the validity or invalidity of a location made by him. F. R. McNamee, for Respondent: I. The duties of the commissioner as to surveys are, in the language of the statute, done through the offices of the surveyor-general, and these offices are branches or integral parts of the central office, and, as stated by Secretary Noble: "I am of the opinion that section 452 of the Revised Statutes by the substitution of the general words used therein for the special prohibition contained in prior legislation on the subject was intended to extend the disqualification to acquire public lands to officers, clerks, and employees in any of the branches or arms in the public service under the control and supervision of the commissioner in the discharge of his duties relating to the survey and sale of the public land. Moreover, in construing a statute, it is proper to take into consideration the mischief it was passed to obviate. (Sedwick, Stat. and Com. Law, 202.) The object of section 452 was evidently to remove from the persons designated the temptation and power, by virtue of the opportunities afforded them by their employment, to perpetrate frauds and obtain an undue advantage in securing public lands over the general public, by means of their earlier and readier access to the records relating to the disposal of, and containing valuable information as to, such lands. Officers, clerks, and employees in the offices of the surveyors-general fall clearly within the mischief contemplated by the statute, and the reason of the law applies to them with equally as much force as to those in the central office at Washington. Statutes and regulations of this kind are based upon grounds of such public policy, and their strict enforcement is essential to the public service. Argument for Respondent. (Muller v. Coleman, 18 L. D. 394; Neill Case, 24 L. D. 393; Frank A. Maxwell, 29 L. D. 76; Alfred Baltzell, et al., 29 L. D. 333.)" II. In Manuel v. Wulff, 152 U. S. 505, Chief Justice Fuller, speaking for the court, says: "By section 2322 it is provided that when such qualified persons have made discovery of mineral lands and complied with the law they shall have the exclusive right to possession and enjoyment of the It has, therefore, repeatedly been held that mining claims are property in the fullest sense of the word, and may be sold, transferred, mortgaged, and inherited without infringing the title to the United States, and when a location is perfected it has the effect of a grant by the United States of the right of present and exclusive possession. (Forbes v. Gracey, 94 U. S. 762; Belk v. Meagher, 104 U. S. 279; Gwillim v. Donnellan, 115 U. S. 45; Noyes v. Mantle, 127 U. S. 348)." So it would seem that the location of a mining claim is without doubt a purchase of public lands within the spirit and purpose of the prohibition contained in section 452, as stated in the able opinion filed in this case by the trial judge. "When the object of the prohibition statute is plainly to prevent the doing of the prohibited thing, an act done in violation of it, according to the great weight of authorities, is an illegal act from the doing of which no legal right can be acquired. The statute may contain a prohibition alone, a prohibition and a penalty, or frequently, where there is a penalty and no prohibition, the prohibition from the imposition of the penalty. Where the statute contains both a positive prohibition and a penalty for its violation it is considered a very strong ground for holding that an act in contravention of it is illegal and a right asserted under such act void." (15 Am. & Eng. Ency. Law, 2d ed. 938, 939, 940, and cases in the reporter's notes.) As further stated in said opinion, "where a title is asserted by one who has acquired his alleged title by violation of the prohibition of section 452, it would seem that the plain language of the section, as well as its manifest object, would require the court to declare the asserted title to be void. To say that one, who for the public good is expressly prohibited from locating a mining |