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zen of the United States, a resident of the county, etc., but is silent as to the citizenship and residence of the other plaintiffs. The action is not brought to recover possession of the property or damages for a trespass thereon, or to quiet title thereto, but is a special action to determine the right of possession preliminary to the right to purchase from the United States. Lands valuable for minerals are reserved from sale, except as otherwise expressly directed by law. Rev. St. U. S. § 2318. All valuable mineral deposits in lands belonging to the United States are free and open to exploration and purchase by citizens of the United States, and those who have declared their intention to become such. Rev. St. U. S. § 2319. A patent for any land claimed and located for valuable deposits may be obtained by any association, person, or corporation authorized to locate a claim under the chapter on mineral lands and mining resources. Rev. St. U. S. § 2325. (1) The right to possession of a mining claim comes through a location, and such location can only be made by a citizen, or one who has declared his intention to become such. (2) An applicant for a patent must have the right to possession, and, as we have seen, must be a qualified locator. (3) Upon the determination of the right to possession, as provided for by section 2326 of the Revised Statutes of the United States, the prevailing party, upon filing a copy of the judgment roll with the register of the land-office, together with the certificate of the surveyor general, showing that the requisite amount of labor has been performed or improvements made, with a description of the premises, and upon paying the proper fees and purchase price of the land, may have a patent to the land, or such portion thereof as he has shown himself to "rightly possess." It would seem to follow that as the right to possession and the right to a patent are made to depend upon citizenship, the complaint, which forms the basis upon which these rights are supported, should show the plaintiffs to possess those qualifications without which the judgment they seek, and the consequences to flow from that judgment, cannot be reached. Where a right is conferred upon a particular class of persons, or by reason of possessing some special qualification or status, he who claims. such right must show himself to belong to the class designated, or to possess the qualification prescribed or the status mentioned as the the basis of the right.

The contention of counsel for appellants is that the complaint shows that the plaintiffs and their predecessors in interest have for 25 years and upwards been the owners, subject only to the paramount title of the United States, and have occupied and worked the mining ground in question, etc.; that their right to the mining ground was acquired prior to the act of congress of May 10, 1872; that the statute is not retrospective; and that by section 2344 of that act their rights are preserved. Section 2344 provides that "nothing contained in this chapter shall be construed to impair in any way rights or in

terests in mining property acquired under existing laws. The question then arises, had the plaintiffs, prior to May 10, 1872, acquired any rights under the then existing laws to be protected by section 2344 of the Revised Statutes?

Upon the discovery of gold in California, and the influx of immigrants following that discovery, it became the duty of the courts organized to meet the novel circumstances surrounding them, and to administer justice in view of all the facts presented. The paramount title to the mineral lands was in the government of the United States. That government, by the act of congress of 1850, (9 U. S. St. 452,) admitting California into the Union, expressly provided that the people of that state, through their legislature or otherwise, should never interfere with the primary disposal of the public lands within its limits, and should pass no law and do no act whereby the title of the United States to, and right to dispose of, said lands should be questioned or impaired. Beyond this action, the general government for several years remained practically a passive spectator of the settlement upon and development of its mineral lands in California. The right of the United States to the lands in question was never seriously questioned, nor was its authority to dispose of such lands at such time and in such manner and to such persons as it should by law provide, doubted.

The legislature of California and its courts, each in its appropriate way, took action in reference to the possessory rights acquired by settlers and locators upon the public domain. As to the public mineral lands of the state, the courts held them open to appropriation and occupancy for mining purposes, and in a multitude of cases adjudicated upon conflicting rights thereto, and growing out of the assertion by individuals of such rights, until a system of jurisprudence governing and controlling in questions relating to mines and mining rights was formulated, and occupies a prominent place in the legal annals of the state. It was founded, to a great extent, in the necessities of the case. The general government was the true owner, but, not asserting its title, the theory was maintained that possession, under the rules and customs established and in force, gave, as to mining property, a right which, except as against the government, would be upheld as though the title were vested in the possessor. Nothing can be found, however, in the legislation or decisions of our courts which militates against the ultimate right of the general government to deal with its lands within our jurisdiction as a proprietor thereof may do. Up to 1866 the United States had not authorized, or, except by its silence, in any way assented to, the occupancy of any of its mineral lands in California, and, instead of having an equitable title thereto, the plaintiffs, in common with all other claimants in possession of mining claims upon public lands, were, as against the government of the United States, subject to be treated as trespassers, and to be punished by fine and imprisonment. 2 U. S. St. 445.

The courts of the United States have steadily held that no license to mine for the precious metals upon the public lands could be implied by reason of the indulgence or tacit encouragment of the government extended to the mining population. U. S. v. Parrott, 1 McAll. 271; U. S. v. Castillero, 2 Black, 17.

If we are correct in these deductions, plaintiffs could not have, and prior to 1866 did not have, as against the government of the United States, or those holding under it, any vested right or equitable title in or to any mining claim in California. The passage of the act of July 26, 1866, (14 U. S. St. 251,) "marked a change in the governmental policy, and introduced a new era in the history of mining enterprise." Weeks, Min. 2. By the first section of that act it was provided

"That the mineral lands of the public domain, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and occupation by all citizens of the United States, and those who have declared their intention to become citizens, subject to such regulations as may be prescribed by law, and subject also to the local customs or rules of miners in the several mining districts, so far as the same may not be in conflict with the laws of the United States."

Thus, for the first time in the history of the country, its public domain was opened to exploration for mines and mineral, and to the occupation of such mines as might exist and be discovered therein. The first section of the act was general in its application, and applied alike to veins or lodes of quartz or other rock in place, bearing gold, silver, cinnabar, or copper, and to placer or gravel mines. The license to explore, enter, occupy, and mine was general; but the subsequent sections of the same act, providing for securing title from the government by claimants, applied only to veins or lodes of quartz or other rock in place. So, too, the right or license to explore and occupy for mining purposes was limited to citizens of the United States, and to those who had declared their intention to become such.

It follows that if plaintiffs were not citizens, and had not declared their intention to become such, they did not acquire any vested right to possession under the act of 1866, and, as a consequence, had no rights to be preserved by the act of 1872. Rev. St. U. S. § 2344. The act of congress of May 10, 1872, repealed the first section of the act of 1866, but retained the same provision in reference to the necessity of citizenship of locators as that contained in the repealed section. It goes further than the act of 1866, by providing that any person, association, or corporation authorized to locate a claim under that act, who had complied with the terms of the act, might obtain a patent for land claimed and located for valuable deposits. Placer claimants might procure patents to their claims, but, like locators, they must be citizens, or must have declared their intention to become such. The right is given, not to all persons indiscriminately, but to a particular class of individuals, and the pleadings in these

special cases should show that the persons who seek to avail themselves of the special privileges conferred by the act of congress are within the class thus privileged.

There is nothing in this view of the case in conflict with Ferguson v. Neville, 61 Cal. 356. In that case the mining claim had been regularly located by American citizens of lawful age, who conveyed to Chinamen, who, after holding for about one year, conveyed to Ferguson, who was a citizen, and competent to locate and purchase mining claims. This court held that, by the original location, a qualified title vested in the locators; that under article 1 of section 17 of the constitution, in force at that time, foreigners who were bona fide residents of the state could purchase and hold property; and, having conveyed to Ferguson before the location was made under which Neville claimed, the conclusion was reached that plaintiffs had a good title. Had the location in that instance been made by the foreigners, the case would have been parallel with this, and it would, probably, have been held that no right to the claims was acquired by such an attempted location.

We must not be understood as holding that in all actions in relation to mining claims it is necessary for plaintiffs to aver citizenship. We are discussing the requirements of a complaint in the special case provided by the act of congress to determine the right of possession of a mining claim, under the laws of congress, in which the successful party becomes entitled on the judgment-roll to apply for a patent,—a case in which the parties must connect themselves with the title of the government, and show compliance with the acts of congress,-and our conclusions are limited to such action.

We are of opinion, as stated at the outset, that the former judgment herein should stand as the judgment of the court.

We concur: FOOTE, C.; BELCHER, C. C.

BY THE COURT. For the reasons given in the foregoing opinion the judgment as to plaintiff McConnell is reversed, with directions to the court below to overrule the demurrer to his complaint, with leave to the defendants to answer within 10 days after being notified thereof. In other respects the judgment is affirmed.

(68 Cal. 54)

SMITH V. DUNN. (No. 11,102.)

Filed November 24, 1885.


The word "fees," as used in section 165 of the California county government act of March 14, 1883, includes commissions, estimated by a percentage allowed by law, on sums of money received or collected. Such percentages should, under section 168 of the same act, be paid into the respective county treasuries, and be set aside as a separate fund, known as the "Salary Fund," to be applied to the payment of official salaries.


In bank. Appeal from superior court, county of Yolo.
The Attorney General, for appellant.

Frank S. Sprague, for respondent.

THORNTON, J. This action was brought by plaintiff, as treasurer of Yolo county, to procure a writ of mandate to compel the defendant, as state comptroller, to make a settlement with the petitioner, allowing certain commissions claimed to be due to the county above mentioned, and certain mileage due respondent. This claim is made under the act of May 17, 1861, (see St. 1861, p. 453, §§ 107, 108,) the act of March 5, 1870, (St. 1869-70, p. 164, § 13,) and section 3428 of the Political Code.

It is said that the law making these allowances has been repealed by the act approved March 14, 1883, entitled "An act to establish a uniform system of county and township governments." We are referred to sections 164 and 165 of this act. By section 164 it is enacted that "the salaries and fees provided for in this act shall be in full compensation for all services of every kind and description rendered by the officers therein named, their deputies and assistants." The same section excepts from the foregoing certain commissions allowed the assessor, estimated by a percentage of the amount of the taxes on personal property collected by him under section 3820 of the Political Code, and on the poll-taxes also collected by him. In many of the counties the constables are to be compensated by fees allowed by law at the date of the passage of the act, or afterwards. These fees are in part commissions, estimated by a percentage. It is provided, by section 165 of this act, as follows: "All salaried officers of the several counties of this state shall charge and collect for the use of their respective counties, and pay into the county treasury on the first Monday in each month, the fees now or hereafter allowed by law in all cases, except the percentage heretofore allowed such officers, and excepting, also, such fees as are a charge against the county."

Now it is argued that inasmuch as "percentages" are not required in so many words to be paid into the county treasury, but "fees" are, that percentages and fees refer to different things, and that the officers have no right to retain and pay such percentages into the treasury. We cannot concur in this view. The word "fees," in its popular and common acceptation, includes the commissions, estimated by a percentage allowed by law, on sums of money received or collected, We think the word "fees" is used with such signification in the section cited from the county government act.

This view is sustained by section 168 of the same act, which provides that, "for the purpose of paying the salaries provided for in this act, all fees directed to be paid into the county treasury shall be set apart therein as a separate fund, to be known as the 'Salary Fund,' to be applied to the payment of said salaries. The act provides for compensation to most of the officers named in it by fixed salaries, and, by way of providing the means of paying these salaries, orders

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