Opinion
No. 2726.
November 30, 1926.
Harry E. Pratt, of Fairbanks, for plaintiff.
Louis K. Pratt, of Fairbanks, for defendant Kelly.
The applicable statutes involved are as follows:
Act of Congress approved December 31, 1920 ( 41 Stat. 1084 [U.S. Comp. St. § 4620h]), providing:
"That the period within which work may be performed or improvements made for the year 1920, upon mining claims as required under section 2324 of the Revised Statutes of the United States, is hereby extended to and including the first day of July, 1921; so that work done or improvements made upon any mining claim in the United States or Alaska on or before July 1, 1921, shall have the same effect as if the same had been performed within the calendar year of 1920: Provided, that this act shall not in any way change or modify the requirements of existing law as to work to be done or improvements made upon mining claims for the year 1921."
Act of Congress approved August 24, 1921 ( 42 Stat. 186 [ 30 USCA § 28]), reading as follows:
"That section 2 of 'An act to amend sections 2324 and 2325 of the Revised Statutes of the United States concerning mineral lands,' approved January 22, 1880, be, and the same is hereby, amended to read as follows:
"'Sec. 2. That section 2324 of the Revised Statutes of the United States be amended by adding the following words: "Provided, that the period within which the work required to be done annually on all unpatented mineral claims located since May 10, 1872, including such claims in the territory of Alaska, shall commence at 12 o'clock meridian on the 1st day of July succeeding the date of location of such claim: Provided, further, that on all such valid existing claims the annual period ending December 31, 1921, shall continue to 12 o'clock meridian July 1, 1922."'"
Also section 4 of chapter 10 of the Session Laws of Alaska 1915, page 13, which reads as follows:
"And it is further provided, that a survey of the claim or claims by a United States mineral surveyor may be credited to annual assessment work, but in no case shall the credit for such survey and its attendant expense, exceed the required assessment for one year on the claim or claims surveyed. When credit is sought for such work or improvement, the claimant must file in the recorder's office in the district in which the claim is situated the field notes of the survey, together with a voucher showing the cost of such survey, properly attested by the surveyor, incorporated into the proof of annual labor as in case of other class of labor or improvements, as provided for in section seven (7) of this act."
It is the contention of the plaintiff that the claimed assessment work done in June, 1921, on said mining claim, is inadequate as such work and improvements for the annual labor year ending July 1, 1922; that the section of the act of the Alaska Legislature above quoted is in conflict with the general laws of the United States; and that the cost of $60 in making the survey of the claim cannot legally be considered as part of the assessment work for said year. It is not disputed that this expenditure of $60 was made, although the agreed facts recite that this amount was "charged." No contention is made that the expenditure of $40 additional in protecting the cabins thereon from fire and flood, by digging ditches and cutting brush and grass, does not legally constitute assessment work to that amount.
This argument is disputed by the defendant Kelly, administrator, who claims that this survey, made under the law of the Legislature, legally constitutes a portion of the assessment work for the said year, and that the same, together with the $40 additional in protecting the cabin from fire and flood, actually constitutes the required assessment work for said year, and that, if it does not, and if the right and title of the estate and administrator Kelly became forfeited on the expiration of the assessment year ending July 1, 1922, for failure to do sufficient work, the plaintiff should have located the said mining claim during the assessment year ending July 1, 1923, and should not have waited until the administrator had performed sufficient assessment work for said year and for the year following, and, further, that the resumption of work by the said administrator during said years to the knowledge of plaintiff estops the plaintiff from claiming that the mining claim was forfeited for failure to do assessment work for the assessment year ending July 1, 1922.
It may be conceded now, as it was by counsel on both sides during the argument, that the section above quoted from chapter 10 of the Alaska Legislature of 1915 is unconstitutional, being in conflict with the general laws of the United States as to the character of work done and improvements necessary to be made upon a mining claim to constitute annual assessment work. The survey of a mining claim does not meet the requirements either of the law or judicial opinion as to the character of work and improvements which legally constitute annual assessment work; but, if this were not so, and survey work under said statute is entitled to be regarded as annual assessment work, plaintiff contends that the defendants failed wholly to observe the further requirement of said section of the statutes, by failing to file in the recorder's office field notes of the survey and vouchers showing the cost thereof, properly attested by the surveyor and incorporating the same into the proof of annual labor provided for in section 7 of said act.
The Circuit Court of Appeals for the Ninth Circuit, in the case of Betsch v. Umphrey, 270 F. 45, has held that no claim can be forfeited for failure to file proof of annual labor as required by section 7 of chapter 10 of the Laws of the Alaska Legislature of 1915; that it is the labor, and not proof of it, that is required. Therefore failure of the defendant to observe the provisions of section 4 of said act, requiring certain particulars concerning the survey to be stated and incorporated in the proof of annual labor, as provided in section 7, would not prevent defendant in this case from claiming the benefit of the cost of making the survey of the claim as part of his assessment work.
The fact is, and is conceded to be, that the defendant Kelly relied upon the provision of section 4 of said act of the Legislature, which undertook to prescribe "that a survey of the claim or claims by a United States mineral surveyor may be credited to annual assessment work," and the court is confronted with the following question for determination, namely: Shall a miner's claim be forfeited on the ground of failure to do assessment work, when the work done and claimed as assessment work is specifically prescribed by the law, but such law is an invalid act of the law-making power?
No court or tribunal that I am aware of has passed upon this identical question. Nor has any court that I know of heretofore been called upon to pass upon the constitutionality of section 4 of the act of the Alaska Legislature above quoted, prescribing that the survey of a mining claim by a United States mineral surveyor may be credited to annual assessment work.
Is a miner to be deprived of his property solely because he takes this law of the Legislature at its face value? Is he not justified in following the law as it is written? Is a court of equity to aid one who attempts to relocate his property with knowledge of the existing law, and of what the original owner has done and claims, and after he had stood by silently and inactive until the original owner has done further annual assessment work for two succeeding years, before he enters upon the ground to make a relocation? I hold that in equity and good conscience the defendant cannot be charged with shortcomings of the Legislature, nor penalized to the extent of the loss of his property, by claiming in good faith as part of his assessment work what the solemn act of the Legislature permits him to claim. "Obey the law and forfeit your property" is a doctrine too false and startling to win the approving conscience of the chancellor. The work done and improvements made by Kelly, administrator, on the property in controversy during the annual assessment year ending July 1, 1922, if it did not constitute legal and full assessment work on said property for said year, will be considered as such under the facts. Equity regards the substance, and not the form, of the transaction, and will relieve a party from the consequences of his own inadvertence. 10 R.C.L. §§ 75, 130.
It is further contended by the plaintiff that the assessment work claimed by the defendant Kelly for the year ending July 1, 1922, was actually done in June, 1921, and that the act of Congress first above quoted extended the time for doing such work for the year 1920 until July 1, 1921, and that, therefore, this work was actually done within the assessment year ending July 1, 1921, and can be counted for that year only.
In this connection it is only necessary to point out that the proviso in said statute is that this act "shall not in any way change or modify the requirements of existing law as to work * * * or improvements * * * on mining claims for the year 1921." I take this proviso to mean that the act, while extending the time to July 1, 1921, for doing the work for the year 1920, does not attempt to interfere with work or improvements for the year 1921, and that on mining claims for the year 1921 the annual labor or improvements might be made at any time within the calendar year of 1921.
This was the existing law of Congress when the work claimed by the defendant Kelly was done in June, 1921. He claimed the work as work for that year at that time, and the requisite work having been done at that time, as I have heretofore held, his rights were not, nor were the rights of the estate, affected by the further passage of the Act of Congress approved August 24, 1921, which changed the period for doing annual assessment work from the calendar year to the fiscal year, and which further provided that "on all such valid existing claims the annual period ending December 31, 1921, shall continue to 12 o'clock meridian July 1, 1922." This latter act in no way affected the rights of the defendant Kelly, administrator, as the work which he had done in June, 1921, was already done before the passage of this act and in compliance with the provisions of the proviso in the Act of Congress approved December 31, 1920.
I therefore hold that the right and title of the estate of Byrne and of the defendant Kelly, as administrator, in the property in controversy, did not become forfeited on July 1, 1922, nor thereafter, and that said claim was a valid and subsisting placer mining claim when the attempted relocation thereof was made in April, 1924, by the plaintiff, and that such attempted relocation was void.
Findings of fact and conclusions of law and decree may be submitted in accordance with this opinion.