CHAPTER VI. SUPPLEMENTAL STATE LEGISLATION. § 111. General features of state statutes. 112. The authority for statutes as expressed in the federal statute. 113. Value and force, likewise limitations upon state statutes. 114. Same-Some state statutes of doubtful validity. 115. Summary of competent state legislation. § 111. General features of state statutes.- All the precious metal bearing states and territories within what is popularly called the public domain,' which includes the territories of Arizona and New Mexico, and the states of California, Colorado, Idaho, Montana, Nevada, North Dakota, Oregon, South Dakota, Washington, Wyoming and Utah, have enacted more or less elaborate provisions embracing the questions of location and location work, discovery, preliminary notice, naming the claim, marking boundaries, and recording the claim; likewise providing for annual labor, and the manner and time of making proofs thereof, and some have provided the manner of forfeiting out a co-owner. But inasmuch as these statutes are given in full in the Appendix, and will be examined in detail under the appropriate heads, their contents will be omitted at this time. We will therefore content ourselves at the present writing with an examination into § 112. The authority for state statutes as expressed in the federal statute.- Congress being the sovereign power in respect of the mineral lands, of course has, and may exercise, plenary authority concerning them. It may be considered as settled that the authority for state legislation upon this question is the same as that delegated to mining 1 See post, Part III, ch. II. districts,' and is found in that provision of the statute which, so far as material to the present inquiry, reads as follows: "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." 2 This, then, is a grant of power over a subject wherein the power of congress is supreme; and, notwithstanding the opinion of one court to the contrary, we adopt the opinion of counsel in that case rather than the opinion of the court, and we think, with entire deference to the learned court, that the opinion of the counsel should have been followed, as it correctly stated the law. We reproduce it: "He who acquires mineral land from the general government cannot divest the grant of the conditions with which it passes. State constitutions can neither abridge the authority of an act of congress, nor strip it of the limitations and conditions it imposes. Congress is powerful, and may ignore, as it does, state constitutions, and, in broad terms, authorize local legislatures, regardless of the constitutions of the state, 'to provide rules for working mines;' rules 'involving easements,' securing the necessary ingress and egress to one mine over another, or other mineral lands, in working such mines." 4 1 In re Monk, 16 Utah, 100; Copper Globe M. Co. v. Allman (Utah, 1901), 64 Pac. Rep. 1019; Johnson v. McLaughlin, 1 Ariz. 493, 4 Pac. Rep. 130; Com'r Williamson to Hale, Sept. 25, 1880, Cop. Min. Lands (2d ed.), 290. 2 R. S. U. S., § 2324. 3 People ex rel. Aspen M. & S. Co. v. Dist. Ct. of Pitkin Co., 11 Colo. 147, 17 Pac. Rep. 298. 4 Id., 17 Pac. Rep. 300. See post, 1070-73. The learned court overlooked the fact that this power was expressly reserved to the United States by the federal constitution, and that therefore any attempt on the part of a state, either by constitutional or legislative provision, to go beyond the authority delegated, is absolutely null and void. The act under consideration in that case was the fifth section of the act of July 26, 1866, as continued in the Revised Statutes, and presumably, for nothing appears to the contrary, that condition appeared in the patent under which the land was held. If so, that was the end of the matter it was a right that congress had exercised and one beyond the power of a state legislature to interfere with. Of course, the state might extend the right of eminent domain over such subjects as the people by their constitution and laws permitted; but it was the evident intention of congress that the right should not be denied as to mining claims, whether patented or not, and that all customs should be given full force. § 113. Value and force, likewise limitations upon state statutes. Congress having legislated upon the subject over which it has plenary power and authority, it manifestly and necessarily follows that state statutes must be strictly supplemental, that is, explaining or extending the provisions of congressional law, and under all circumstances only within the lines which congress has by express provision authorized the state legislature to enact. Whence the further deduction, that any attempt on the part of a state legislature to pass laws relative to forfeitures of co-owners' interests, being a matter upon which congress has already legislated, would be absolutely void. As was said by the supreme court 1 Const. U. S., art. IV, § 3, par. 2; Scott v. Sanford, 19 How. 615; Pollard v. Hagan, 3 How. 212; United States v. Late Corporation, etc. (Mormon Church), 138 U. S. 1, 34 L. ed. 478, 491. 2 Act of July 26, 1866 (14 Stat. at L. 252); R. S. U. S., § 2338. 3 Johnson v. McLaughlin, 1 Ariz. 493, 4 Pac. Rep. 130; Jupiter M. Co. v. Bodie Cons. M. Co., 11 Fed. Rep. 666; Eberle v. Carmichael, 8 N. M. 169, 42 Pac. Rep. 95. of Montana in an early case, wherein the question under consideration was the provision of the territorial statute requiring the locator in recording his claim to verify the same under oath: "This is an additional burden imposed upon the locator of a mining claim by the territorial legislature. The original act creating the territorial government, provides that the legislative power of every territory shall extend to all rightful subjects of legislation not inconsistent with the constitution and laws of the United States; but no law shall be passed interfering with the primary disposal of the soil.' It is not necessary for us in this case to inquire whether the territorial legislature went beyond its constitutional authority in imposing these additional burdens upon locators of mining claims; but, if it did not, the closeness with which it trenched upon such authority may well be considered as a persuasive reason why the courts should so construe them that they shall not be more burdensome than can be reasonably helped."2 § 114. Same-Some state statutes of doubtful validity. Several of the state legislatures have assumed to legislate upon matters regarding which congress has already enacted statutory provisions. For instance, in the states of Nevada, North Dakota, South Dakota and Wyoming, there are state statutory provisions undertaking to define the extra-lateral rights of the locator. The statute of Wyoming is more nearly an exact copy of the federal statute, and therefore is more nearly of some binding force and effect than either of the others. It is not necessary to make any extended comment here, in view of what was said in the last preceding section, upon the question of the validity of state statutes. upon subjects already provided for by United States law. 1 Citing R. S. U. S., § 1851; McCor. nick v. Varnes, 2 Utah, 355. ? Wenner v. McNulty, 7 Mont. 30; 14 Pac. Rep. 643. See also O'Donnell v. Glenn, 8 Mont. 248, 19 Pac. Rep. 302; McCowan v. McLay, 16 3 R. S. N. Dak. 1899, § 1434; Comp. Laws Nev. 1900, § 211; Laws S. Dak. 1887, § 2005; R. S. Wyo. 1899, § 2551. 4 R. S. U. S., § 2322. The legislators of Wyoming went a step or two farther than those of any other state, and undertook to say, copying again from the federal statutes,' that where claims have been held and worked for a period equal to the statute of limitation the owner shall be entitled to a patent.2 Wherever these statutes are exact reproductions of the federal law they are valuable for the purpose of informing the citizens of the state, fortunate enough to possess them, just what the United States law requires, and to that extent the spirit which prompted their enactment is commendable; but even then it would have been a considerable saving to the taxpayers for ink and paper, as well as a lighter pressure upon the mental machinery of the legislators, if they had contented themselves with the remark, in some appropriate part of the statutes of their state, "Comply with the United States law and you may have a patent for your mining claim." 3 There are also provisions in several of the state statutes to the effect that no location notice shall claim more than one location, and that a notice which does so is absolutely void in some states, while in others it is provided that the location notice is void except as to the first claim described, valid as to it if it can be distinguished from the others, and void otherwise.1 As we will notice in a subsequent section," the courts in all the best-reasoned cases wherein they have had occasion to consider the question, including the supreme court of Idaho, have held that where the boundaries of a claim are excessive, embracing more land than allowed by law, the claim, if otherwise valid, is good for the statutory amount, and void only as to the excess. And just why the lawmakers have seen fit to repudiate such a wholesome rule as this for these statutes, if valid, amount to a repudiation is not quite clear. 1 R. S. U. S., § 2332. 2R. S. Wyo. 1899, § 2560. Idaho Laws 1899. § 8. 4 Comp. Laws Nev. 1900, § 219; R. S. N. Dak. 1899. § 1440; Laws S. |