Lavagnino v. Uhlig

• Decision Date: 04 April 1903
• Docket Number: 1379
• Citation: 26 Utah 1,71 P. 1046
• Court: Utah Supreme Court
• Parties: GIOVANNI LAVAGNINO, Appellant, v. EDMUND H. UHLIG and ALEX McKERNAN, Respondents

71 P. 1046

26 Utah 1

GIOVANNI LAVAGNINO, Appellant, v. EDMUND H. UHLIG and ALEX McKERNAN, Respondents

No. 1379

Supreme Court of Utah

April 4, 1903

Appeal from the Third District Court, Salt Lake County.--Hon. W. C Hall, Judge.

Action by the plaintiff as the owner of the "Yes You Do" mining claim, in support of an adverse claim duly filed by the plaintiff, against the application of the defendants for a patent to the Uhlig No. 1 and the Uhlig No. 2 lode mining claims. From a decree in favor of the defendants, the plaintiff appealed.

AFFIRMED.

N.W Sonnedecker, Esq., for appellant; Charles C. Dey, Esq., of counsel.

The questions involved are: 1. Is the location of the "Yes You Do" void because made by a deputy United States mineral surveyor, who continued to retain a contingent interest in the claim, but who performed no acts in respect to the claim as such deputy? 2. Is it not competent to show upon the trial that the defendants' claims were invalid because at the time they were located the discovery of each of the claims was within the bounds of valid, subsisting prior locations, and did the court not err in excluding the offer by plaintiff of his adverse claim, duly filed, etc and excluding evidence offered showing the invalidity of the defendants' locations, "Uhlig No. 1" and "Uhlig No. 2?"

By section 2319, R. S. U.S., mineral lands are declared to be free and open to exploration and purchase by citizens of the United States.

The only question, therefore, is whether the right of a deputy mineral surveyor to acquire mineral lands is taken away by section 452, R. S. U.S. That section is as follows: "Sec. 452. The officers, clerks and employees in the General Land Office are prohibited from directly or indirectly purchasing or becoming interested in the purchase of any of the public land; and any person who violates this section shall forthwith be removed from his office."

This important question, whether a deputy mineral surveyor who makes no official survey or returns is prohibited by said section 452 from being interested in a mineral location, has received such able and exhaustive treatment in a brief prepared by Mr. Duane E. Fox, of the Washington. D. C., bar, that we shall quote extensively from his argument.

Section 452 must be strictly construed, being a statute against common right, as it operates exceptionally to the prejudice of particular persons. Sutherland on Stat. Con., sec. 366; Coleman v. Hart, 37 Wis. 180.

Applying the foregoing principles of construction to section 452, it is very evident that a mineral surveyor is not within its terms, for he is not an "officer, clerk or employee in the General Land Office." Unless he is clearly within one of the three classes mentioned, the statute can not be applied to him.

All the words are of common use and, applying the rule above stated, we will consider them in detail. But first let it be clearly understood what a "deputy mineral surveyor," so-called (for such designation is not found in any statute), is and what are his duties. He is merely a person authorized by the surveyor general "to survey mining claims" for applicants for patent and at their expense. Any "competent surveyor" may make such surveys. "The surveyor general of the United States may appoint in each land district containing mineral lands as many competent surveyors as shall apply for appointment to survey mining claims." Section 2334, Rev. Stats. U.S.; Mining Circular of June 24, 1899, paragraph 92.

The statute requires no oath of office and no bond; but the department regulations require a bond and an oath as to the correctness of the surveys, as tending to insure the accuracy of the work. Mining Circular, paragraph 95.

He receives an "appointment" from the surveyor general, but such appointment, of itself, gives him no authority to exercise any official or other functions. Although holding such appointment, he can not perform a single act thereunder without further and special designation by the surveyor general to act in each particular case.

Nor does the Government, or its officers, undertake to furnish him with any work whatever. He will be designated by the surveyor general to make a survey only upon request by some applicant. After receiving his appointment, he may never make a survey. He may make fifty or more in a year. That depends upon his ability to find some private citizen who will employ him to do so. His duties are in no sense continuing or permanent but are occasional and temporary.

The Government pays him no compensation whatever for his services nor does it reimburse him for his expenses. If employed at all, he is employed by some private citizen and paid by him, if paid at all. He furnishes his own instruments and employs whatever assistants may be necessary to execute the work.

"Neither the surveyor general nor the commissioner of the General Land Office has jurisdiction to settle differences, relative to the payment of charges for field work, between deputy mineral surveyors and claimants. These are matters of private contract and must be enforced in the ordinary manner, i. e., in the local courts." Manual of Instructions for the survey of the Mineral Lands of the United States, page 5.

The product of his work, when he has entirely completed it, has no official character and acquires none until approved by the surveyor general.

If then the status of a mineral surveyor is that of a private citizen up to the time when he files his survey notes with the surveyor general, is his status changed by that act, and does he then become an "officer, clerk or employee in the General Land Office?" Certainly not, for, at that moment, "the duty of the deputy mineral surveyor ceases." Mining Circular, paragraph 95. Nor can the subsequent approval of the survey have that effect.

With this knowledge of the duties of a mineral surveyor, and construing the statute either liberally, as might safely be done, or strictly, as must be done, is he an officer of the United States?

"An office is a public station, or employment, conferred by the appointment of Government. The term embraces the ideas of tenure, duration, emolument and duties." United States v. Hartwell, 6 Wall. 385; Mechem on Public Officers, sec. 4.

A mineral surveyor is not within this definition. Sovereign powers are exercised by virtue of the sovereignty and not by the permission of individuals. But, as shown in the preceding subdivision, a mineral surveyor can perform no act without the consent of the individual whose property is affected thereby.

Nor does the fact that a surveyor "appointed" under section 2334 is required by the department, though not by the statute, to give a bond, make him an officer. For the Government, in the exercise of the sovereign power, has the right "to enter into any contract not prohibited by law and found to be expedient in the just exercise of the powers confided to it by the Constitution." United States v. Hodson, 10 Wall. 395; 13 Opinions of the Attorney-General, 588; United States v. Maurice, 26 Federal Cases, page 1218.

Nor does the fact that a surveyor "appointed" under section 2334 is required by the department, though not by the statute, to take the official oath prescribed by section 1757, Rev. Stats. U.S., make him an officer. Throop v. Langdon, 40 Mich. 685.

There is no authority of law for requiring a surveyor of mining claims to take the oath of office, for such oath need only be taken by officers, as defined by the Constitution. 1 Decisions of Comptroller of the Treasury, 540; United States v. Hedrick, 16 Court of Claims Reports 88; 12 Opinions of the Atty.-Gen. 521.

A mineral surveyor is not a "clerk in the General Land Office." "A clerk is one employed in an office, public or private, for keeping records and accounts, whose business it is to write or register, in proper form, the transactions of the person, tribunal, or body for which he is clerk." Bouvier, Law Dictionary.

The duties of the clerks in the General Land Office are not different from those stated in the definition. Although they are intrusted with large discretion and responsibility, their acts, in legal contemplation, are only to register the acts of the commissioner, by whose signature effect is given to what they have done. The duties of a mineral surveyor are in no sense those of a clerk. He keeps no records or accounts, he registers no acts of any superior, he has no custody of public property or papers.

A mineral surveyor is not an "employee in the General Land Office." An employee is one who is paid wages as distinguished from salary. People v. Meyers, 33 N.Y.S. R. 18; McCluskey v. Cromwell, 11 N.Y. 593; Maillard v. Lawrence, 16 How. 261.

A mineral surveyor receives from the Government neither salary nor wages, nor any compensation whatever, and is not therefore an employee of the Government. Unless the Government would be liable for his compensation, either originally or upon default of the applicant who engaged his services, he does not sustain that relation to the Government. United States v. Meigs, 95 U.S. 748; Gilmore v. Simpson, 16 L. D. 549.

The prohibition of section 452 applies to "officers, clerks and employees in the General Land Office," and to no others. The word "in" ought to need no definition. Its plain and ordinary meaning is "inside of" or "within" and that meaning is sufficient to satisfy the statute. Grandy v. Bedell, 2 L. D. 315.

A mineral surveyor is not "in" the General Land Office; he performs no duties there and he is not listed in the Government Blue Book as a part of its personnel. To apply the statute to him requires a violent strain of the word used, which the law does not permit. Gilmore v Simpson, 16 L. D. 549; Washington Market...