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Opinion of the Court-Norcross, J.

pleasure, to procure information needed to aid in the performance of his own official duties. He may appoint one or a dozen persons to do the same thing. The compensation may amount to five dollars or five hundred dollars per annum. There is no penalty for his absence from duty or refusal to perform, except his loss of the fee in the given case. If Congress had passed a law requiring the commissioner to appoint a man to furnish each agency with fuel at a price per ton fixed by law high enough to secure the delivery of the coal, he would have as much claim to be an officer of the United States as the surgeons appointed under this statute."

Again, in United States v. Smith, 124 U. S. 525, 532, 8 Sup. Ct. 595, 31 L. Ed. 534, the court said: "An officer of the United States can only be appointed by the President, by and with the advice and consent of the senate, or by a court of law or the head of a department. A person in the service of the government who does not derive his position from one of these sources is not an officer of the United States in the sense of the constitution. This subject was considered and determined in United States v. Germaine, 99 U. S. 508, 25 L. Ed. 482, and in the recent case of United States v. Mouat, 124 U. S. 303, 8 Sup. Ct. 505, 31 L. Ed. 463. What we have here said is but a repetition of what was there authoritatively declared."

In the case of Louisville R. R. Co. v. Wilson, 138 U. S. 501, 505, 11 Sup. Ct. 405, 34 L. Ed. 1023, the court, by Mr. Justice Brewer, said: "The terms 'officers' and 'employees' both alike refer to those in regular and continual service. Within the ordinary acceptation of the terms, one who is engaged to render services in a particular transaction is neither an officer nor an employee. They imply continuity of service, and exclude those employed for a special and single transaction. An attorney of an individual retained for a single suit, is not his employee. It is true he has engaged to render services; but his engagement is rather that of a contractor than of an employee."

The same rule was laid down by the court in Auffmordt v. Hedden, 137 U. S. 310, 11 Sup. Ct. 103, 34 L. Ed. 674, in which the court, passing upon the status of a "merchant appraiser”

Opinion of the Court-Norcross, J.

appointed or selected by the collector of customs under authority of section 2930, Rev. Stats., and whose compensation was payable by the importer, said (page 326 of 137 U. S.. and page 107 of 11 Sup. Ct. [34 L. Ed. 674]): "The merchant appraiser is an expert, selected as an emergency arises, upon the request of the importer for a reappraisal. His appointment is not one to be classified under the civil service law. He is not to be appointed on a competitive examination, nor does he fall within the provisions of the civil service law. He is not a 'clerk' nor an 'agent' nor a 'person employed,' in the customs department, within the meaning of section 6 of the civil service act; nor is he an officer of the United States, required to be appointed by the President, or a court of law, or the head of a department. He is an expert selected as such. Section 2930 requires that he shall be a 'discreet and experienced merchant, familiar with the character and value of the goods in question.' He is selected for the special case. He has no general functions, nor any employment which has any duration as to time, or which extends over any case further than as he is selected to act in that particular case. He is executive agent, as an expert assistant to aid in ascertaining the value of the goods, selected for the particular case on the request of the importer, and selected for his special knowledge in regard to the character and value of the particular goods in question. He has no claim or right to be designated, or to act except as he may be designated."

See, also, the following authorities: People ex rel. Sims v. Fire Commissioners, 73 N. Y. 437; People v. Board of Police, 75 N. Y. 38; Commonwealth v. Fitler, 147 Pa. 288, 23 Atl. 568, 15 L. R. A. 205; Mulholland v. Wood, 166 Pa. 486, 31 Atl. 248; State v. Mason, 61 Ohio St. 62, 55 N. E. 167; Attorney-General v. McCaughey, 21 R. I. 341, 43 Atl. 646; State v. Emerson, 72 Me. 455; Campfield v. Lang, 25 Fed. 128; Frick Co. v. Norfolk Co., 86 Fed. 738, 32 C. C. A. 31; United States v. McCrory, 91 Fed. 295, 93 C. C. A. 515; In re Grunwold, 99 Fed. 705; United States v. Smith, 124 U. S. 525, 8 Sup. Ct. 595, 31 L. Ed. 534; Vane v. Newcombe, 132 U. S. 233, 10 Sup. Ct. 60, 33 L. Ed. 310.

Talbot, C. J., dissenting.

The defendant, John R. Cook, for the reasons given, was not disqualified from locating the "Yuba East Lode" mining claim, described in the complaint, on the 1st day of January, 1904, because of the provisions of section 452, Rev. Stats. U. S. The judgment and order of the trial court are reversed, and a new trial granted.

SWEENEY, J.: I concur.

TALBOT, C. J., dissenting:

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It is alleged in the complaint, and admitted in the answer, that the defendants Cook and Lloyd were the grantors to the plaintiffs, excepting Louisa Frank, of a part of the ground in dispute. The district court found from the evidence and admissions made on the trial that on the 31st day of December, 1903, and for several years prior thereto, the plaintiffs and defendant Lynch were the owners of the Last Shange, the Triangle, and the Bellevue mining claims in contest; that in June, 1902, there was executed to defendant Lloyd a written lease on the property for one year, to June 17, 1903; that the defendant Cook was at all times during the term of the lease jointly interested with defendant Lloyd; that between the 17th day of June, 1902, and some time in October of that year, both the defendants Cook and Lloyd mined the premises described in the lease as partners thereunder; that in the month of October or November, 1902, when the lease still had more than one-half of its term of one year to run, they quit the premises and removed their tools, and that neither of them entered thereon again until the latter part of December, 1903.

During the year 1902, and after the 17th day of June of that year, Cook and Lloyd did about five hundred dollars worth of work on the premises covered by the lease, and more than sufficient to cover the assessment work for that year. The principal plaintiffs in interest lived out of the state, and the defendants resided adjacent to the claims. Possession was not surrendered to plaintiffs at the end of the time specified in the lease, nor were they notified by the defendants that the latter had quit possession or were ready to surrender the premises. The plaintiffs did not have any

VOL. XXIX-35

Talbot, C. J., dissenting.

labor performed on the claims during the year 1903. In December, 1903, the defendants Cook and Lloyd, still without having surrendered possession to the plaintiffs or having notified the plaintiffs that they had quit the premises, did some work on the claims, giving the appearance that the required assessment was being performed. On the 1st day of January, 1904, the defendant Cook, while he was a United States deputy mineral surveyor, made a relocation under which the ground is now claimed.

On the theory that it makes no difference in whose name a lease or property belonging to a partnership stands, it is urged in the respondent's brief that Cook and Lloyd were equally bound and responsible as partners under the lease, and, in addition to the assertion that Cook is disqualified to make the location, it is claimed "that the district court erred in not holding that there was a relationship of trust and confidence existing between the defendants and plaintiffs which precluded them from initiating any rights to the property adverse to the plaintiffs for the reasons, first, that they admit that they are the grantors of the plaintiffs; second, they admit that they performed the assessment work for several years for the plaintiffs; third, that they entered into the possession of the ground jointly under a lease made by the plaintiffs on the 17th day of June, 1902, and never at any time notified the plaintiffs that they had abandoned the lease or offered to redeliver possession of the same; fourth, that by their conduct and statements they misled the plaintiffs and respondents by the fact of their coming on the ground at different times during the latter part of the year 1903 and working thereon, and their representations that they were doing the work as assessment work for the plaintiffs." Of the two points relied upon by plaintiffs on the trial, the district court found against them on the contention that Cook was disqualified from relocating the ground which with Lloyd he held under a lease from the plaintiffs without surrendering possession to them, and based the judgment in favor of the plaintiffs on the other ground that Cook was disqualified from locating claims because he was a United States deputy mineral surveyor.

Talbot, C. J., dissenting.

The plaintiffs and respondents are still claiming here that Cook was disqualified by reason of his being such surveyor, but that, if this court holds that he was not, the judgment should be sustained on the ground that he could not make the location against his lessors when he had not surrendered possession to them. Against this contention it is said that respondents are not appealing, and they have not assigned any error against the conclusion of the district judge that Cook was not disqualified as a lessee. Whether, under these circumstances, the facts as found by the trial court may be considered conclusive unless the defendant expresses dissatisfaction with them, and requests a new trial for the purpose of introducing further evidence, and whether this court could sustain the judgment if it believed the conclusion of law made by the district court that Cook was not disqualified as a lessee was wrong, and on that ground, is not determined, and, as this question is not discussed in the decision, I express no opinion as to whether the judgment ought to be sustained on the ground that the lease was renewed and continued by the failure of Cook and Lloyd to surrender possession and by their working on the ground in December, 1903, six months after the time specified for its termination and for the redelivery of the claims. (Fitton v. Hamilton, 6 Nev. 196.)

Whether Cook and Lloyd, living adjacent to the mine and in possession under the lease from the principal plaintiffs, who were absent from the state, could, without surrendering or attempting to surrender possession, or notifying the plaintiffs that they wanted to surrender possession, and after working on the claims six months after the life of the lease, make a location a few days later, if Cook had not been a deputy mineral surveyor, which would not inure to the benefit of the plaintiffs, and whether the district court should not have found as a conclusion of law that Cook could not acquire rights in the premises against his lessors, and whether the judgment ought not to be affirmed on these grounds on the theory that the findings have correctly and satisfactorily to all parties settled the facts, and that the conclusions of law thereon may be reviewed in this court, without putting the

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