175 F.2d 486 | 9th Cir. | 1949
These are consolidated cases in which appellees sought and obtained judgment quieting their title to two placer
In the condition of the record, containing as it does no affirmative showing either way on the latter subject, the crucial inquiry is upon which party rested the burden of proof relative to the performance of annual labor. If by the law as it existed at the time of the trial the burden of proving performance was cast upon appellees the judgment below must be reversed, whereas if it was incumbent on appellant to prove non-performance an affirmance is indicated. The answer to the inquiry turns on the effect to be given certain acts of Congress pertaining to mineral locations in Alaska. -
The first clause of § 26 of Ch. 786 of the law of June 6, 1900, 31 Stat. 329, 48 U.S.C.A. § 381, making further provision for the government of Alaska, provided that “the laws of the United States relating to mining claims, mineral locations, and rights incident thereto are hereby extended to the District of Alaska.”
It is familiar law that under this statute the good faith resumption and diligent prosecution of labor on a mining claim forestalls relocation notwithstanding prior failure to do the required representation work. Also, it is settled by the decisions that a junior locator who claims a forfeiture because of the failure of the locator or owner to perform annual labor has the burden of proving it by clear and convincing evidence. Hammer v. Garfield Mining Co., 130 U.S. 291, 301, 9 S.Ct. 548, 32 L.Ed. 964; Quigley v. Gillett, 101 Cal. 462, 35 P. 1040; Lindley on Mines (3d Ed. 1914) Vol. 2, § 645, pp. 1605-1606. This rule is not declared by the statute but is merely expressive of the traditional hostility of the law toward the enforcement of penalties and forefeitures. Lindley, supra, § 645.
On March 2, 1907 Congress passed what is known as the Waskey Act, 34 Stat. 1243, 48 U.S.C.A. § 384, shown on the margin.
We turn to the congressional legislation of May-31, 1938, 52 Stat. 588, previously noticed, the relevant portions of which are shown on the margin.
The trial court believed that the 1938 Act effected a repeal of the Waskey Act in its entirety, including the provisions permitting the filing of an affidavit of the performance of assessment work and prescribing the effect on the burden of proof of the failure to file the affidavit. This is
Finally, we turn to the condition of the record and to the bearing this discussion has upon the case before us. During many of the years intervening between 1908 and 1938 — years unaffected by the occasional suspensions by Congress of the annual labor requirement — no affidavit of performance of labor appears to have been filed in respect of appellees’ locations, nor does the record contain evidence that labor was actually 'performed on the claims in any of such years. In short, appellees failed on the trial to
The district court made no finding in respect of the validity of appellant’s locations, on the theory, no doubt, that a finding of that nature was unnecessary in view of the conclusion reached. Presumably findings on that subject can be made on the present record, but if thought necessary further evidence may be taken on the point.
The decree is reversed and the cause remanded for further proceedings not inconsistent with this opinion.
The remaining provisions of the section, not here pertinent, dealt with the right- to mine for precious metals in the tidal waters of Bering Sea. ' ■ • •
“An Act To amend the laws governing labor or improvements upon mining claims in Alaska.
“Be it enacted by the Senate and House of Representatives of the United States of America'in Congress assembled, That during each year and until patent has been issued therefor, at least one hundred dollars’ worth of labor shall be performed or improvements made on, or for the benefit or development of, in accordance with existing law, each mining claim in the district of Alaska heretofore or hereafter located. And the locator or owner of such claim or some other person having knowledge of the facts may also make and file with the said recorder of the district in which the claim shall be
“To amend section 26, title I, chapter 1, of the Act entitled ‘An Act making further provision for a civil government for Alaska, and for other purposes,’ approved June 6, 1900.
“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 26, title I, chapter 1, of the Act entitled ‘An Act making further provision for a civil government for Alaska, and for other purposes,’ approved June 6, 1900 (31 Stat. 321), is amended to read as follows:
“ ‘Sec. 26. The laws of the United States relating to mining claims, mineral locations, and rights incident thereto are hereby extended to the Territory of Alaska: * * *.’ ”
Consult H.Rep.No.1648, 75th Cong., 3d Sess.
The general view on this subject is summarized in 50 Am.Jur., Statutes, § 553, as follows: “A later law which is merely a re-enactment of a former law does not repeal an intermediate act which has qualified or limited the first one, but the intermediate act will be deemed to remain in force and to qualify or modify the new act. in the same manner as it did the first.”
Many of the cases indicate that the canon of construction stated is not'applicable where the re-enacting act and the intermediate act are'so inconsistent with each other that they can not stand together. Consult cases cited in the opinion of the trial court, 74 F. Supp. 917, 922, and following.
Many of the western states have statutes providing for the re-cording of proofs of labor. At least two of these statutes, those of Idaho and New Mexico, Sec. 47-606, Idaho Code; Compiled Laws of New Mexico 1897, § 2315, contain virtually the same provisions as those of the Waskey Act relative to the shifting of the burden of proof. If these local enactments are inconsistent with the paramount mining laws of Congress they could hardly have escaped condemnation during the many decades they have been on the books, yet so far as we are advised their validity has never been successfully challenged. In discussing the Idaho and New Mexico statutes Lindley has expressed the view that this class of state legislation is unobjectionable. “The several states,” he observes, “have a right to define the nature, degree, and effect of evidence, within rational limits, and we do not think these provisions unreasonable.” Lindley on Mines, 3d Ed., § 636, p. 1583.