vol. 52.:, , T
, ,
'Btttmd :ii,
al. W.ASPElt
. "
",
MIN.
&
SMEJ"TING
;Co;,tt 01.
" 'f ': l c'
l,}
,
No. 80. ,
j'
sas.
a.
: ,to,
an exeeute conveyances to a trustee for tile purpoll& of ,brlng!1llgsuit in thei..bel!.alf. Bud t\J.ll trustee delays unreasonably 9db:lgllHW l:I.l'lreupoJ!. ,the claimants bring a bin ,, equity intbeir own nBuies;the 't:rustee'll'llOUid be made '.party defendant, anll it IS not a fatal Db'1eetion llbe1'etothali collotroversy mayiari'e'l!etween the claimants and the trustee, to Rep. 338, afll.rJI:l,ed.
a
. aerore CALllWELL Judge. I
Bunn ,kHatlky, on, , T. A.
M:!lrgaret, and others against the Aspen a, ny, ,.as, rights O,f camp, a, of: Wllham J'll;Wes Wood" one, of the orIgmal dismissed ,the bill onth 13 merits. and comappeals reversed this decree, plainants appealed. the now petiiion for a rebear(see 51 Fed. Rep. 33$,) , " ' ing. Denied. ' , '," George .1,. Bunn, and WolcoU k Vaile, (Lusk, fOf
. from. tb,e Qolorado.' , ' :';, ' '. In Equity. ing &Sm., mmo 8S the
of (he, iU#i ,,'>:'. "',,
'ror the District of ','
:WWn.gS
,',
till"
SANBo,nN"
opposed. , and SRIRAS, District
SHllW!,Piatrl.ct J U P0J;l thefilililg ofthe opinion in tbis ca.use, counllel fol appelleel5 "AAtition for rehearing, supported by bdefs, in which it is strenuously Qontended that the court erred in holding; that it was not ,open to the, appellees to aver that William J. Wood was an alien, andtherefo,re could nQt acquire any right or title in thE? mining claim 10cl\tedl;Jy him in conjunction with ,Fisk and Fitzpatrick. It is. urged that mil}inginterests Fi,gbts form an exception to the rule thllttbe,right to defeat. a title to realty on the ground of alienage is reflea'ved, 'Oij.lytp;the and, reliance is placed upon a clA$s,of v.Oampbell, H6 U. S. 418,,6 Sup. Ct. Rep. 421, il'l a (ijiilh'!9'mr6!?enta.tive. In .case the defenda.n4l., claiming to be the owners of the Omaha lode, filed a survey and plat thereof in the proper land office, and applied for a patent thereto under section 2325 of the Revised Statutes. The plaintiffs, who were the owners of an adjacent mining property, known as the" Highland Boy Lode," filed < ','
BILLINGS
tI: ASPEN
MIN;' &: i8VELTING CO.
251
adve.rlle claim' for a 'patent to a poi'tionof the l:iildcovered by th& survey of defendants. The suit was to determine the right to this disputed portion, the judgment below being in favor of the plaintiffs. In the supreme court a reversal was sought on the ground that the findings of fact did not show. that the plaintiffs were citizens of the United States. Upon this point the supreme court ruled:that"It is true that the mineral lands of the United States'are open tioo and purchase only by citizens of the United Statesi or by those who have declared their intention to become such; and. had the objection been taken in the cOllrt below that such citizenship of the plainti1Js hl\d not been shown, it might. if not obviated. have been fatal,. Tbere is, however. nothing in the record to show that it was raUied below." There can be no question, under the provisions ·of section 2319 of the Revised Statutes, that, when application is made for the issuance of dence of title to mining property, it is necessary to show that the applicant is a citizen of the United States, or has declared his intention to become such, before a conveyance of title can be properly issued; and therefore, as was held by the supreme court in the case just cited, if a party is seeking to procure the title to mining property from the United States, if taken at the proper time" the objection of alienage would prevent the acquirement of title, and such objection may be made by any interested. In such cases the sovereign is a party in fact one to the proceeding, which is a direct one, for the procurement of title, and the objection of alienage, no matter by whom suggested, is based solely upon the right of the government to interpose the fact of alienage as a bar to procuring or bolding an interest in realty. If, however, the grant of title, or the equivalent, is made to an alien, it cannot be attacked by any third party. Thus in GOlierneur v. Robertson, 11 Wheat. 332, it is said: "That an alien can take by deed. and can hold until office found, must now be rel{arded as a positive rule of law, so well established that the reason of the rule is little more than a subject for the antiquary. It no doubt owes its present authority. if not its origin, to a regard to the peace of society and a desire to protect the individ ual trom arbitrary aggression." The fact that when a party is seeking to procure a title to mining property from the United Statea it is open to any third party who asserts an adverse claim thereto to suggest the objection of the alienage of the first claimant does not meet the question arising on the facts of the case at bar. In this case Wheeler and his grantees are claiming the benefit of the location made by Wood, Fisk, and Fitzpatrick, and are claiming the right to the mine, not through some adverse location, but through what was done by the original locators. Wheeler and his grantees are now claiming title to the mine through deeds procured from the heirs of Wood, and it is certainly not open to them to rely upon the deeds as the means whereby they have procured the title to an undivided interest in the mine, and yet, when called to account for the wrongful procurement of the deeds, to deny the validity of the location made by Wood, on the ground of alienage. It was upon this view of the case
252
nDERAL REPORTER.
vo};'52;
that we held that if Wood were had brought suit against the present defendants for the protection of his rights, the latter could not rely upon the plea of alienage to defeat a recovery. If Wood were living, and should, by proceedings in the proper land office or in a court of competent jurisdiction, seek to procure the issuance of a patent as evidence of title, it would be open to anyone claiming an adverse right to th El.property to show that Wood was an alien, and therefore not comtake the tttlej but it would not be open to one whose title is derived from Wood to claim, on the one hand, the benefit of the conveyancefrom him, and;'onthe other; to assert its invalidity. If Wood, duritlg his lifetime, had expended time, labor, and money in the working of the mine, resulting in the accumulation of a sum of money which should be placed in a bank or in t'hehands of his colocator8, could it be possible that to an action for the recovery thereof a plea of alienage could be sucessfully interposed, on the ground that the money was the product of the mining right, and that as an alien Wood could not procure a title thereto? As we viewed the easel it appeared that Wheeler and his grantees were claiming title under the location made by Wood and others, and therefore,in oUlnjudgment, the case was one wherein it must be assumed that the' filing, the location and the possession held thereunder must bedeemedt@have created an interest in<the property in Wood and his colocators',ahd this interest, thus vested, could not be collaterally attacked by parties whose rights were dependent' upon the validity of the location in question. If Wood had applied for the issuanee of a patent 6r otllerevidenceof title, it would have been the duty of offiCers of the Janddepartment to have demanded of his citizensHifJ', M of his declaration 'to' become a failure to furnish the same might have been Jilinl to his claim; and, if there had heElen to the ,property, holding under an interleriRg lostion,thie 1bl.tter ,eould. insist on the objection of alienage. Such objeetiol1',iif however, would only the claim of su.stain the the objecto.r. Herem hes the llleqUltyof the pOSItIon assumed by the appellees III this cause..', LThey claim' title. under. the location made by Wood and others, al1<i 1Ulto them,it must be beld that in fact there was vested inWoodauiinterestinthe mining property, defeasible by the United States, but .not liable to. be questioned collaterally in a proceeding of the nature of ,that now before the court. If, howevet'\(' we are in error in this view of the law, it does not follow that it be granted, for the reason that it is the unanimous opinion of .the court that the evidence in the case shows that in'faotWood, before locating the:mine in question, had declared his intention to become a citizen of the United States. The evidence shows that when' Wood left Canada, iu'1870, he went to Kansas, and while there' he .entered certain of the public lands. There is put in eyiclencea a.declarntion signed by'James Wood, under date of June 27, 1870, and duly recorded in Allen county, Kan., and the
BILLINGS 11. ASPEN MIN. &: SMELTING CO.
evidence satisfies us that the declarant, James Wood,was the William James Wood who was one oHhe locators of the Emma mine in 1880. Having thus declared his intention to become a citizen of the United States,he was legally entitled to locate a mine upon the public lands, and hi.s title thereto is not open to attack on the ground of alienage. Under the facts established by the evidence in the case, it therefore appears that William J. Wood, at the date of his death, was the legal owner of an undivided one-third interest in the Emma mine, and this interest passed to such persons as, under the laws of Colorado, were entitled to share in the distribution of his estate. These distributees were his widow and children, se\'eral of whom were then residents of the United States. We find nothing in the record that would justify the holding that Wood's interest had become forfeited to his colocators, and therefore the title to the interest vested in Wood at the time of his death passed to his widow and children. It is not claimed that :Matilda, William H., Thomas E., or Hiram A. Wood have conveyed or released their interests to anyone, and there is no ground upon which Wheeler or his J!;rantees can assert a right to the interests belonging to the parties just named. The interests of the widow, Mrs. Billings, James O. and CharlesE. Wood, are claimed by appellees by reason of the execution of the deeds e;xecuted by these parties under the circumstances detailed in the opinion originally filed, and which were held to be voidable for the reasons therei.n stated. We have reviewed the evlight of the 'argumepts contained in the briefs of counsel, idence in submitted 'with the petition for rehearing, but we find no sufficient ground fOILdoubting the'correctneBsof the conclusion reached in the first 'We cannot agree with counsel that the representations made to Mrs·.Billings and her sons were purely the expressiop of opinions uponqqestions of law. They embraced also statements of fact; interit is true. with statements of law, but the ultimate effect of which wast'O misrepresent the facts material to be understood Ctfld·considered by these parties in determining whether they would execute the releases sought from them. Upon the whole, we find no reason to beresult in a different conclusion upon either lieve the law or facts, and the petition for a rehearing is therefore denied. In the brief submitted on behalf of counsel for appellants it is 'suggested that the order heretofore made requiring Richard J. Doyle to be made a party to this suit should be rescinded, mainly on the ground that making him a party may lead to disputes between the appellants and Doyle touching his rights. We remain of the opinion that Doyle should be made a party. It is due to the appellees that all parties who may be in position to assert rights to any portion of Wood's share in this mining property should be made parties to this action, so that the one proceeding may adjudicate such rights, and the one accounting be all that is necessary . !f,as suggested, any question arises between Doyle and appellants, growing out of the deeds of trust executed by Mrs. Billings and bet' two sons to'Doyle, the issues presented thereby need not interfere with the p!!()gress'of the accounting in the main cause. The
,254 trial: taurt i to deal ,witH ,the situation as inria.y arise; and to:so cQtldul:ltrthe, funher proceedings 'as to reach a final ieondusion with :the gnatef3t, and at theJeast' cost. : ' . We see 11? neqessi.1j)] fprIl;lo<;lifyiQg the order in the case In anyp,an1<;-qlari:1mQ. tlierefor;e entry now made is: $imply that the petition for rehearing is. denied.
In re (Oircuit
ApPOINTMENT OF SUPERVISORs·. S. D. Georgw"
oowrt,
w.:n.
November,1892.)
1.
CONGR.ESSIOlifAL ELECTIONS MENT. ..
Rev. St. §§ 2011, 2012, proV'idingfor the appointment of' supervisors of. congressional,election,on prOpe,!' application to t\le circuit jwlge,decl-ares t\l!l.t"thejudge, wit\liII' bot less than ,ten' days prior to the registrilHon, if' one t\lere be, or, if no registration be requitilld,"within not lesathan ten days prior to the election. shall open the circuit the,most convenie\lt point in thE! "when so opened shall proceed to appc;l1nt and commission from day to daY and from time to time, " etc. Held, registration, where. necessary, is not.such an integral part ,of the election. as tol1eqJi.il'!'l an application for the appointment of. a .supervisor of the election to' be made Within 10 days plioI' to the registrpotiQn,' rather than 10 days prior to the eleotion. . . The local registration laws of Georgia for the oountles of the state, which differ in material features as to the time, place, methods,anCl necessary qualifioationsfor reglstratio,l1, do not affect the appointment of federal supervisors of a general eleotion{becanse,theyare unconstitutional and void, underConst. Ga. 1877, art.'2,5 9, proviaing that' "the general' assembly maYP'l'ovlde from time to time for the a1;1 and article 1, 54, providing tjJ.at" 'ofa general nature. shall have uniform operation throughout the state,and no shall be enacted' in' any case tor. whioh pro'O'lsion has been made. by, an. exis:ting general j"since was already made by a prior general law, (Code, § 1278,) whioh empowers "any qualified voter for members of the general assembly to vote tor ailf oandidate or upon any question which is submitted 'to all the voters of the state, In any county in the state, and for any candidateorqu\lstion w\lich ill submitted to au the votera in any district' or circuit, in any county ot the district or circuit in which is embraoed the county of the voter's residenoe. " ', :
FEDERAL SUPERVISORS .
" ApPLICATIOl!'S FOIt APPOINT. ' '
,So
CoNSTITUTIONAL; LAw-LOCAL LEGIS1,.ATION-ELECTIONS--REGISTR.,rtON LAWS.
8.
SAMB-FBDBRAL SUTUTBS.
,laws are also void in that theY are ,in confUct with Rev. St. U.S. § 2005, which requires that all aftlcers oharged with the duty of furnishing to oitizens an oppQrtunityto qualify as voters under state laws shall give equal opportunity therefor. ,to q1tizens of the United States.
At LllW.,Applicationa for the appointment of supervisors of the for andre.presentatives in congress for WilkinsoI+ and Richmop.q counties, in, ,the southern district of Georgia. .,t\.pplications 1
certain provisions of. title. 26 of the JWvised circuit judge, uponpro.per application, is empowered to .appoint and co.mmissionsupervisors to guard and acrutinize elections. Vnder sectipn 2014 of the Revised Statutes, whenever the