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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.

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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

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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.

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Acting upon the belief that they were fully authorized, nearly all, if not all, the States in the mining regions have passed statutes prescribing additional regulations in respect to the location of mining claims, some having been in force for more than a score of years.

This court has in many cases recognized the validity of such state legislation. In Belk v. Meagher, 104 U. S. 279, 284, Chief Justice Waite, speaking for the court, declared that “a location is not made by taking possession alone, but by working on the ground, recording, and doing whatever else is required for that purpose by the acts of Congress and the local laws and regulations."

In Erhardt v. Boaro, 113 U. S. 527, it appeared that there were no mining regulations prescribed by the miners of the district, and it was said by Mr. Justice Field (p. 536):

“We are therefore left entirely to the laws of the United States and the laws of Colorado on the subject. And the laws of the United States do not prescribe any time in which the excavations necessary to enable the locator to prepare and record a certificate shall be made. That is left to the legislation of the State, which, as we have stated, prescribes sixty days for the excavations upon the vein from the date of discovery, and thirty days afterwards for the preparation of the certificate and filing it for record. In the judgment of the legislature of that State this was reasonable time."

Kendall v. San Juan Mining Company, 144 U. S. 658, turned on the question of compliance by the locator with a regulation prescribed by the statutes of Colorado concerning the record of locations, and the decision was that a failure to comply rendered the attempted location invalid. In Shoshone Mining Company v. Rutter, 177 U. S. 505, it was held that a suit brought in support of an adverse claim was not one of which a Federal court necessarily had jurisdiction, because, as said (p. 508):

“In a given case the right of possession may not involve any question under the Constitution or laws of the United

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States, but simply a determination of local rules and customs, or state statutes, or even only a mere matter of fact."

Other cases containing similar recognition might also be cited.

The validity of such state legislation has been affirmed by the Supreme Courts of several States. See in addition to the present case Wolfley v. Lebanon Mining Co., 4 Colorado, 112; O'Donnell v. Glenn, 8 Montana, 248; Metcalf v. Prescott, 10 Montana, 283, 293; Purdum v. Laddin, 23 Montana, 387; Sisson v. Sommers, 24 Nevada, 379; Copper Globe Mining Co. v. AUman, 23 Utah, 410; Northmore v. Simmons, 97 Fed. Rep. 386.

In 1 Lindley on Mines, 2d ed., sec. 249, the author says:

“State statutes in reference to mining rights upon the public domain must, therefore, be construed in subordination to the laws of Congress, as they are more in the nature of regulations under these laws than independent legislation.

“State and territorial legislation, therefore, must be entirely consistent with the Federal laws, otherwise it is of no effect. The right to supplement Federal legislation conceded to the State may not be arbitrarily exercised; nor has the State the privilege of imposing conditions so onerous as to be repugnant to the liberal spirit of the Congressional laws. On the other hand, the State may not by its legislation dispense with the performance of the conditions imposed by the national law, nor relieve the locator from the obligation of performing in good faith those acts which are declared by it to be essential to the maintenance and perpetuation of the estate acquired by location. Within these limits the State may legislate.”

What is the ground upon which the validity of these supplementary regulations prescribed by a State is challenged? It is insisted that the disposal of the public lands is an act of legislative power, and that it is not within the competency of a legislature to delegate to another body the exercise of its power; that Congress alone has the right to dispose of the public lands, and cannot transfer its authority to any state legislature or other body. The authority of Congress over the

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