Mares v. Dillon
| Decision Date | 21 March 1904 |
| Citation | 75 P. 963,30 Mont. 117 |
| Parties | MARES v. DILLON. |
| Court | Montana Supreme Court |
Commissioners' Opinion. Appeal from District Court, Lewis and Clarke County J. M. Clements, Judge.
Action by Frank Mares against Richard Dillon, in support of an adverse claim to a mining location. From a judgment in favor of plaintiff, defendant appeals. Affirmed.
T. J Walsh, for appellant.
H. G. & S. H. McIntire, for respondent.
Appellant Dillon, made application to the United States Land Office for a patent to the Black Eagle quartz lode mining claim. Respondent, Mares, filed two adverse claims in the Land Office against this application--one based upon the Gold Hill quartz lode claim, and one based upon the Gold Rocky Hill quartz lode claim, with both of which the surface of the Black Eagle was in conflict. Within the time allowed by the statute of the United States, respondent instituted two suits, in support of his adverse claims (one on each of his locations), in the district court of Lewis and Clarke county. In the appeals under consideration, the suit based upon the Gold Hill location is involved. The action was tried by a court and jury, and from the judgment entered in favor of the validity of the Gold Hill location, and from an order overruling his motion for a new trial, appellant appeals.
Validity of State Statute.
Counsel for appellant insists, with great force and much reason, that the statutes of Montana requiring certain acts to be performed by one locating a mining claim, in addition to the requirements of the acts of Congress (section 3610 et seq Pol. Code), are in violation of section 3. art. 4. of the Constitution of the United States, which provides: "The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular state." Also, that these requirements are inconsistent with the provisions of the acts of Congress in regard to the location of mines, and therefore void. Also, if these provisions of the state statute are held to be permitted or recognized by the acts of Congress, then such acts, to that extent, are in violation of the above section of the Constitution of the United States. The question of the constitutionality and validity of our present statute, and of the provisions of the territorial statutes of a somewhat similar character, have been before this court and its predecessor, the Supreme Court of the territory, quite frequently, and we find that, whenever this question was discussed and decided by either court, the validity and constitutionality of these statutes have been uniformly upheld. In O'Donnell v. Glenn, 8 Mont. 248, 19 P. 302, the court for the first time directly considered the point made, relative to the constitutionality of the acts of the Legislative Assembly of the territory, and holds such legislation valid. Chief Justice McConnell says: "By the reservation to itself of the sole right to dispose of the soil in the first instance, Congress meant to make title to its purchasers, and receive the product of the sales, and not to regard those local regulations, looking to the acquisition of possessory rights merely, and their manner of enjoyment, as an interference with its prerogatives." Of course, some distinction might be drawn between the legislative acts of a territory and of a state, as to whether they conflict with the acts of Congress, the former being always under the direct control and supervision of Congress, while the latter, if upon proper subjects of legislation, are entirely beyond congressional control. In Metcalf v. Prescott, 10 Mont. 283, 25 P. 1037, this court had the matter under consideration for the first time, and says: The question came up for consideration again in this court in the case of McCowan v. Maclay, 16 Mont. 234, 40 P. 602, and Mr. Justice De Witt says: The question was again before this court in the case of Berg v. Koegel, 16 Mont. 266, 40 P. 605. The court say: "This decision [of the court below] is made upon the authority of McCowan v. Maclay, 16 Mont. 234 , to the effect that our statute requiring the location notice to be verified is not in conflict with the laws of the United States upon the subject of the location of mining claims." It was again before this court in the case of Purdum v. Laddin 23 Mont. 387, 59 P. 154, where the court uses the following language: "That the Legislative Assembly had power to enact sections 3610 to 3613 of the Political Code is, in this state, too firmly established to permit of serious discussion or doubt; and that the provisions of these sections are mandatory, reasonable, and not in conflict with any act of Congress, seems clearly within the principles announced or tacitly recognized in O'Donnell v. Glenn, 8 Mont. 248 , McCowan v. Maclay, 16 Mont. 234 , and Sanders v. Noble, 22 Mont. 119 ." It was again before this court for consideration in the case of Baker v. Butte City Water Co., 28 Mont. 222, 72 P. 617, and the court said: "The question as to the right of the Legislature to provide rules for the marking of the boundaries of mining claims, and providing for a record of such location, and what the recorded paper must contain, has so long been recognized in this state, and has so many times been approved by this court, that it would be useless to enter again into any consideration of the questions so decided." To now hold these statutes unconstitutional or void, would be to reverse these uniform decisions, which have been followed and relied upon for many years; and this should not be done unless, in the opinion of the present court, such result would be the only one possible to be reached from a consideration of the questions. We would not, therefore, be justified in such a conclusion, if, after a careful investigation, we
felt any doubt as to their correctness. We cannot say that we have an "abiding conviction" that these decisions are erroneous, but, at most, only that we have serious doubts as to their correctness.
While the Supreme Court of the United States has not, to our knowledge, had the question presented to it in the same form that it is presented in this case, yet that court has indirectly at least, in many instances, held that the Legislatures of the states might enact laws supplemental to the act of Congress relative to the location, possession, and working of a mining claim. Erhardt v. Boaro, 113 U.S. 527, 5 S.Ct. 560, 28 L.Ed. 1113; Iron Silver Mining Company v. Elgin M. & S. Co., 118 U.S. 196, 6 S.Ct 1177, 30 L.Ed. 98; Enterprise M. Co. v. Rico-Aspen M. Co., 167 U.S. 108, 17 S.Ct. 762, 42 L.Ed. 96; Parley's Park S. M. Co. v. Kerr, 130 U.S. 256, 9 S.Ct. 511, 32 L.Ed. 906. The same doctrine is held by the Court of Appeals of the Ninth Circuit, in Northmore v. Simmons, 97 F. 386, 38 C. C. A. 211. The Supreme Court of Nevada has reached the same conclusion in Sisson v. Sommers, 24 Nev. 379, 55 P. 829, 77 Am. St. Rep. 815. Also the Supreme Court of Utah, in Copper Globe Min. Co. v. Allman, 64 P. 1019. Questions of the construction of the federal Constitution and statutes can be finally settled only by the Supreme Court of the United States. This court should not assume the authority to declare any acts of Congress to be in violation of the provisions of the Constitution of the United States, except in cases entirely clear and free from doubt. Such decision by this court would only be binding within the state, and then only until the question should be finally decided by the Supreme Court of the United States. Again, if this court should hold these statutes void because in conflict with the federal Constitution or acts of Congress, and locations should thereafter be made not complying with their requirements, and the Supreme Court of the United States should afterward decide to the contrary and hold them valid, all locations made in the interim, not complying with their requirements, would be void. This would be a calamity which should be avoided if possible. On the other hand, if this court holds these statutes valid, all locations must comply with their requirements in order to have any validity, and, if the Supreme Court of the United States should afterward decide that they were void, no one would be injured, because all locations made in conformity with these statutes would surely be valid, even if the statutes were void, as all the...
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