Empire Copper Co. v. Henderson

• Decision Date: 28 December 1908
• Citation: 99 P. 127,15 Idaho 635
• Parties: EMPIRE COPPER COMPANY, a Corporation, Respondent, v. C. M. HENDERSON, Ex-officio Auditor and Recorder of Custer County, Appellant
• Court: Idaho Supreme Court

99 P. 127

15 Idaho 635

EMPIRE COPPER COMPANY, a Corporation, Respondent, v. C. M. HENDERSON, Ex-officio Auditor and Recorder of Custer County, Appellant

Supreme Court of Idaho

December 28, 1908

CONSTRUCTION OF STATUTE-FEE FOR RECORDING PROOF OF ANNUAL ASSESSMENT WORK.

1. In construing an act of the legislature the court should ascertain and give effect to the legislative intent where that can be ascertained.

2. Where the language of a legislative enactment is clear, then the court cannot speculate upon the intentions of the legislature, but must accept the interpretation of the act as it appears therein.

3. Under the provisions of Rev. Stat., sec. 3101, as amended by an act of February 14, 1899 (Laws of 1899, p. 237), and an act of March 13, 1899 (Laws of 1899, p. 440), the fee for recording the affidavit of proof of labor is fifty cents for each claim named in such affidavit.

(Syllabus by the court.)

APPEAL from the District Court of the Sixth Judicial District of the State of Idaho, for Custer County. Hon. J. M. Stevens, Judge.

An application by respondent for mandamus to compel appellant as ex-officio auditor and recorder of Custer county, to file an affidavit of proof of labor upon thirty-three mining claims for a fee of fifty cents. Judgment for plaintiff. Defendant appeals. Reversed.

Judgment reversed. Costs awarded to the appellant.

W. J Lamme, for Appellant.

The general intent of the act should be kept in view in determining the scope and meaning of any part. (Sutherland Stat. Constr., sec. 239; State v. Roby, 142 Ind 168, 51 Am. St. Rep. 174, 41 N.E. 145, 33 L. R. A. 213.) The golden rule of construction is to give effect to the ordinary and popular meaning of words employed in a statute unless it is clear that the law-making power intended otherwise. (2 Sutherland Stat. Constr., 2d ed., sec. 390; Baker v. Payne, 22 Ore. 335, 29 P. 787; Quigley v. Gorman, 5 Cal. 418, 63 Am. Dec. 139; Weill v. Kenfield, 54 Cal. 111; Maillard v. Lawrence, 16 How. (U. S.) 251, 14 L.Ed. 925.) Statutes will be construed with a view to ascertain the intent of the law-making power, and to give force and meaning to the language used. (Idaho Mutual Co-operative Inc. Co. v. Meyers, 10 Idaho 294, 77 P. 628.)

Nathan H. Clark, and Chase A. Clark, for Respondent.

It is admitted by demurrer that all these locations are contiguous and developed by common source. Therefore, we contend that, in the broader sense of the term, we have one mining claim composed of these thirty-three locations, and that on that claim composed of these locations we have performed the necessary amount of work. This is the construction placed upon a similar statute by the United States supreme court in the case of St. Louis Smelting & Refining Co. v. Kemph, 104 U.S. 636, 26 L.Ed. 875.

STEWART, J. Ailshie, C. J., and Sullivan, J., concur.

OPINION

STEWART, J.

The respondent presented to the defendant, as county recorder, for record an affidavit showing that $ 100 worth of work was performed and made upon and for the benefit of each of thirty-three separate mining claims at the expense of the Empire Copper Company, owners of said claims. The appellant demanded as a filing fee $ 16.50, or fifty cents for each claim named in said affidavit. The respondent tendered to appellant fifty cents, and demanded that said affidavit be filed and respondent refused to file the same. Thereupon, respondent applied to the district court for a writ of mandate, and after trial the district court issued a writ of mandate compelling appellant to file said affidavit upon the payment of fifty cents. The appeal is from the final judgment. The only issue presented upon this appeal is, whether when more than one claim is embraced in an affidavit proving annual assessment work upon mining claims, the county recorder is entitled to charge and receive more than fifty cents for filing such affidavit, or fifty cents for each claim named therein.

The solution of this question depends upon the construction to be given to sec. 3101 as amended by the act of February 14, 1899 (Laws of 1899, p. 237), and the act of March 13, 1899 (Laws of 1899, p. 440). This section reads:

"Within sixty days after any time set or period allowed for the performance of labor, or making improvements upon any lode, or placer claim, the person in whose behalf such work or improvement is performed or some person for him must make and record an affidavit in substance as follows:

"State of Idaho

County of , ss.

"Before me, the subscribed, personally appeared , who being first duly sworn says that at least dollars worth of work for improvements were performed or made upon claim, situate in mining district, county of , State of Idaho: That such expenditure was made by, for, or at the expense of , owner of said claim, for the purpose of holding said claim, and all stakes, monuments or trees marking boundaries of said claims are in proper place and positions.

"

"Subscribed and sworn to before me this day of , 189 .

"

"The fee for administering the oath and recording the foregoing affidavit, when taken before the county recorder or deputy mining recorder, shall be fifty cents; the fee for recording the same when the oath is taken before any other officer authorized to administer oaths, shall be fifty cents.

"Such affidavit, or a certified copy thereof in case the original is lost, shall be prima facie evidence of the performance of such labor. The failure to file such affidavit shall be considered prima facie evidence that such labor has not been done."

This section as amended becomes part of the general law in relation to "the manner of locating lode, quartz and placer claims; to determine boundaries thereof; to provide for discovery shafts or cross-cuts; to determine the form of location certificates; to provide for the location of abandoned claims, assessment work, and proof thereof, and for amendment of location notices; to provide for...