Hand v. Cook

By the Court,

Norcross, J.:

This is an action brought by the plaintiffs in the eourt below to recover possession of certain mining ground known as the "Triangle,” "Last Shange” and "Bellevue” mining claims, situate in the Ely Mining District, Lincoln County, Nevada, and damages for ore extracted therefrom by the defendants.

It is admitted by the defendants that the premises in controversy were on the 1st day of January, 1903, valid and subsisting mining claims, and the property of the plaintiffs and the defendant Lynch. It was admitted that plaintiffs failed to perform on the ground in controversy the annual labor required for the year 1903, and that on January 1, 1904, the defendant Cook, who was then what is commonly called a "deputy United States mineral surveyor,” went upon the premises in controversy and located a claim 600 feet wide by 1,500 feet long, and called the same the "Yuba East,” which embraced the whole of the said Triangle, Bellevue and Last Shange mining claims.

It was also conceded by the plaintiffs that in the making of the said location all acts were done and performed which were necessary under the law to effect a valid location of the ground in controversy, and that the said Yuba East claim was a valid location, and was the property of the defendant Cook, unless Cook was disqualified from making a valid location of the premises by virtue of the fact of his authority under the laws of the United States to survey mining claims, or unless he was disqualified from locating the premises by virtue of certain alleged contractual relations between him and the plaintiffs, growing out of a certain lease upon the premises, and certain alleged promises by the defendant Lloyd *529 (claimed to be a copartner with Cook) to perform the assessment work for the plaintiffs for the year 1903.

The questions as to the alleged disqualification of Cook to locate the ground by virtue of the lease, or by virtue of any contract by his alleged partner Lloyd.to perform the assessment work for the plaintiffs, were decided by the trial court-against the contention of the plaintiffs. All the issues of fact and of law were decided for the defendants, except that the trial court concluded, as matter of law, that the location of the premises by the appellant John R. Cook was void, for the reason that at the time of making the location he was a person who then held a license under the government of the United States to survey mining claims in the State of Nevada. The only question, therefore, presented upon the appeal is the right of a deputy United States mineral surveyor to. locate a mining claim while holding a commission from the Surveyor-General of the United States to survey mining claims. It is. contended, and has been so held by certain rulings of the General Land Office, that such deputy United States mineral surveyor falls within the prohibition contained in section 452 of the Revised Statutes of the United States. It is therefore further contended that such a surveyor is disqualified from locating a mining claim, and that any attempted location by him is void.

The section in question reads as follows: " Sec. 452. The officers, clerks, and employees in the General Land Office are prohibited from directly or indirectly purchasing or becoming interested in the purchase of any of the public land; and any person who violates this section shall forthwith be removed from his office.”

It will be observed that the section in question imposes a penalty or forfeiture or both, and therefore under all the authorities must be strictly construed. The section quoted is one of the sixteen sections of the Revised Statutes of the ' United States, comprising chapter 3, "The General Land Office,” and which, in turn, is a part of title 11, "The Department of the Interior.” The first section of the chapter, relating to the "General Land Office” (Rev. Stats. U. S., *530 446), provides that there shall be in the Department of the 'Interior a Commissioner of the General Land Office, who shall be appointed by the President, etc.

The next section (section 447) provides that there shall be an officer called the ".Recorder of the General Land Office,” to be appointed by the President, etc.

The next section (section 448) provides that there shall be in the General Land Office a principal clerk of the public lands and a principal clerk on private land claims, to be appointed by the President, and that they shall perform such duties as may be assigned to them by the Commissioner of the General Land Office.

The next section (section 449) provides that there shall be a principal clerk of the surveys, who shall be appointed by the President. He shall direct and superintend the making of the surveys, etc.

The next section provides that the President shall appoint a secretary, whose duty it shall be to sign patents, etc.

The next section (section 451) authorizes appointment of an assistant secretary. The act specifies the salary of each of such officers.

Having provided for the appointment of the foregoing officers, the next section (the one upon which this case turns) prohibits the officers, clerks, and employees in the General Land Office from purchasing the public lands, under penalty of loss of employment.

Section 2207 of the Revised Statutes of the United States, under title 32, "The Public Lands,” c. 1, provides for the appointment by the President of 'a surveyor-general for certain states and territories therein mentioned, of which Nevada is one.

Section 2319, Rev. Stats. U. S. (chapter 6 of same title), provides: "All valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs *531 or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States.”

Section 2334, Rev. Stats. U. S., contained in the last-mentioned chapter, provides: "The Surveyor-General of the United States may appoint in each land district containing mineral lands as many competent surveyors as shall apply for appointment to survey mining claims. The expenses of the survey of vein or lode claims, and. the survey and subdivision of placer claims into smaller quantities than one hundred and sixty acres, together with the cost of publication of notices, shall be paid by the applicants, and they shall be at liberty to obtain the same at the most reasonable rates, and they shall also be at liberty to employ any United States deputy surveyor to make the survey. The Commissioner of the General Land Office shall also have power to establish the maximum charges for surveys and publication of notices under this chapter; and, in case of excessive charges for publication, he may designate any newspaper published in a land district where mines are situated for the publication of mining notices in such district, and fix the rates to be charged by such paper; and, to the end that the commissioner may be fully informed on the subject, each applicant shall file with the register a sworn statement of all charges and fees paid by such applicant for publication and surveys, together with all fees and money paid the register and the receiver of the land office, which statement shall be transmitted, with the other papers in the case, to the Commissioner of the General Land Office.” '

The foregoing, we think, include 'all such portions of the Revised Statutes of the United States to which reference need be made in order to reach a solution pf the question here presented. If we understand the position of counsel for respondents, and that taken by the lower court, as well as by some of the decisions of the land office, section 452 of the Revised Statutes should be construed to mean substantially as follows: The officers, clerks, and employees of the General Land Office are disqualified from, directly or indirectly, purchasing, or becoming interested in the purchase of, any of *532 the public land, and any and all acts and things done in the way of an attempt to purchase or become interested in the public land are void. Any person who so attempts to purchase or become interested in the public land shall forthwith be removed from his office.

It is contended upon the part of the respondents that the foregoing not only embraces substantially the intention of Congress in enacting the section in question, but that a deputy United States mineral surveyor, appointed under the provisions of section 2334, supra, is an officer, clerk, or employee in the General Land Office.

The main positions taken by counsel for appellants upon the legal questions presented in this case, are as follows: "(1) The statute (section 452, Rev: Stats. U. S.) does not affect the validity of a purchase of public lands by the persons named by it, but the sole consequence of a purchase by them is a loss of employment. (2) If the validity of a purchase is affected, it is only affected in the same manner that a purchase by an agent from his principal at common law was affected, namely, it is merely voidable, and therefore not open to attack by plaintiffs, but only by the government of the United States. (3) Whatever may be the consequences to the 'officers, clerks, or employees in the General Land Office purchasing the public lands, they have no application to a person licensed to Survey mineral lands under section 2334, because such person is not an officer, clerk, or employee in the General Land Office or of the government, or even an employee of the applicant for patent.”

Our attention has not been called to the decision of any court where the question here presented has been passed upon, excepting that of the Supreme Court of Utah in the case of Lavagnino v. Uhlig, 71 Pac. 1046, in which case the Utah court followed the decisions of the land department in Floyd v. Montgomery, 26 Land Dec. Dep. Int. 122, and Frank A. Maxwell, 29 Land Dec. Dep. Int. 76, holding that "a deputy mineral surveyor, while holding such office, is disqualified as a mineral entryman.” The Utah case was .appealed to the Supreme Court of the United States, but was there affirmed upon another point, the question here presented being dis *533 posed of in the following manner: "We therefore come at once to a consideration of that question, and, of course, in doing so assume, for argument's sake, that the section of the Revised Statutes relied upon and the rules and regulations of the land department did.not prohibit a deputy mineral surveyor from making a location of mineral land.” (Lavagnino v. Uhlig, 198 U. S. 452, 25 Sup. Ct. 716, 49 L. Ed. 1119.)

While the decisions of the land department, on matters of law, are not binding upon the courts, they should not be overruled except when they are clearly erroneous. (Hastings & Co. v. Whitney, 132 U. S. 357, 366, 10 Sup. Ct. 112 33 L. Ed. 363.) In order to arrive at a correct solution of the questions, it will be advantageous to review the several decisions of the land department bearing directly upon the point in controversy; but, before doing so, it will be well to give a brief review of how the section in question came to be incorporated, in its present form, in the Revised Statutes.

The General Land Office was first established April 25, 1812, by act of Congress entitled: "An act for the establishment of a General Land Office in the • Department of the Treasury.” (2 Stat. 716.) Section 10 of this act provided as follows: "No person appointed to an office instituted by this act, or employed in any such office, shall directly or indirectly' be concerned in the purchase of any right, title, or interest, in any public land, either in his own right, or in trust for any other person, or in the name or right of any other person in trust for himself, nor shall take or receive any fee or emolument for negotiating or transacting the business of the office. Any person offending in the premises against the prohibitions of this act shall forfeit and pay one hundred dollars; and upon conviction, shall be removed from office.”

Congress on July 4, 1836, passed "An act to reorganize the General Land Office.” (5 Stat. 107.) This act provided for quite a large number of officers, clerks, and employees, and fixed their salaries. Section 14 of this act provided that" all and every of the officers whose salaries are hereinbefore provided for, are hereby prohibited from directly or indirectly purchasing, or in any way becoming interested in the pur *534 chase of any of the public land; and in case of a violation of this section by such officer, and on proof thereof being made to the President of the United States, such officer so offending shall be forthwith removed from office.” We think it quite clear that both the act of April 25,1812, and that of July 4, 1836, related solely to the General Land Office; i. e., the governmental bureau in Washington charged with the administration of the public lands, and the officers and employees in that bureau. By the act of July 4,1836, which remained in force until the adoption of the Revised Statutes, it is clear, we think, that the prohibitory provisions of section 14 did not apply to any persons other than the officers whose salaries were provided for in that act. Had the language of section 14 been incorporated into the Revised Statutes, without change of verbiage, it is difficult to conceive of its receiving the interpretation given by some of the land decisions to the provisions of section 452 of the Revised Statutes, no matter what that department may have thought of the wisdom of such construction.

The act of June 27,1866, "An act to providefor the revision and consolidation of the statute laws of the United States” (14 Stat. 74), did not authorize the commission to change the manifest .meaning of a statute. The statute provided that "the commission shall bring together all statutes and parts of statutes which, from similarity of subject, ought to be brought together, omitting redundant or obsolete enactments, and making such alterations as may be necessary to reconcile the contradictions, supply the omissions, and amend the imperfections of the original text.”

In the case of Logan v. United States, 144 U. S. 302, 12 Sup. Ct. 617, 36 L. Ed. 429, it was held that it is not to be inferred that Congress, in revising the statutes, intended to change their effect, unless an intention to do so is clearly expressed. To the same effect, see the cases of United States v. Ryder, 110 U. S. 739, 4 Sup. Ct. 196, 28 L. Ed. 308; McDonald v. Hovey, 110 U. S. 629, 4 Sup. Ct. 142, 28 L. Ed. 239; Stewart v. Kahn, 11 Wall. (U. S.) 502, 20 L. Ed. 176; Murdoch v. City of Memphis, 20. Wall. (U. S.) 617, 22 L. Ed. 429; Smyth v. Fiske, 23 Wall. (U. S.) 382, 23 L. Ed. 47.

*535 It has also been held by the same court upon numerous occasions that in construing Revised Statutes, where a doubt arises, it is admissible to recur to its connection in the act of which it was originally a part. (Doyle v. Wisconsin, 94 U. S. 51, 24 L. Ed. 64; United States v. Hirsch, 100 U. S. 35, 25 L. Ed. 539; United States v. Bowen, 100 U. S. 513, 25 L. Ed. 631; Meyer v. Car Co., 102 U. S. 11, 26 L. Ed. 59; Bate Refrigerating Co. v. Sulzberger, 157 U. S. 39, 15 Sup. Ct. 508, 39 L. Ed. 601.)

.The same court has also held that reference to the original statutes cannot be had to control Revised Statutes when the meaning thereof is plain. (United States v. Bowen, supra; Arthur v. Dodge, 101 U. S. 36, 25 L. Ed. 948; Vietor v. Arthur, 104 U. S. 499, 26 L. Ed. 633; Deffeback v. Hawke, 115 U. S. 402, 6 Sup. Ct. 95, 29 L. Ed. 423.)

Can it be said that it is plain from the provisions of section 452 of the Revised Statutes that the provisions thereof were intended to apply not only to the officers, clerks, and employees in the General Land Office at Washington, but also to apply to the officers, clerks, and employees of the offices of the various United States surveyors-general in the various states and territories? And, if it cannot be so said, will such a construction be aided by a reference to section 14 of the act of 1836, supral We think it quite-clear that, if it is a proper case for recurrence to the latter act to construe the section in question, so broad an interpretation cannot be made.

The land office has rendered a number of decisions construing the provisions of section 452, supra, some of which have direct reference to its application to deputy mineral surveyors appointed under the provisions of Rev. Stats., 2334, supra.

In the case of Grandy v. Bedell, 2 Land Dec. Dep. Int. 314 (1883), Mr. Secretary Teller, quoting section 452, Rev. Stats., says (page 315): "It will be observed that the section quoted, and this is the only statutory provision bearing on the subject, does not extend to clerks in the district offices, but by its terms is confined to those employed in the General Land Office. Tour office has, however, by rule, extended *536 the operation of this statute so as to include clerks in the local offices; and this department held in the case of State of Nebraska v. Dorrington, 2 Copp, Land Laws, 1882, p. 647, the defendant being at the time of making his timber culture entry a clerk in a local land office, that such fact was sufficient ground for the cancelation of the entry.” The claimant, Bedell, was a receiver’s clerk in the local land office at date of making the timber culture entry .in contest, but at date of initiation of contest by Grandy he had resigned' his position. The secretary therefore held: " Taking these facts into consideration, and the further one that be was not by express provision of law incompetent to make the entry, I am of the opinion that it should be permitted to stand.” The instructions issued by Commissioner McFarland on August 28,1883, and reported in 2 Land Dec. Dep. Int. 313, indicate that in the opinion of the land department there was no statutory inhibition against entries of public land by land department employees outside of those in the General Land Office. The instructions referred to are as follows: " Gentlemen, I am in receipt of the receiver’s letter of July 7,1883, in which the following question is submitted to this office: Is it admissible for a register or receiver or special agent or clerk to make a timber culture entry in a district other than the one in which he is located? I reply that I think such entry, excepting as to special agents, is admissible. The officer or clerk making such entry should state in his affidavit the particular position he holds, that the entry may be intelligently dealt with.”

Subsequently, in 1890, the land department appears to have modified views above expressed, holding in the case of Herbert McMicken, 10 Land Dec. Dep. Int. 97, and 11 Land Dec. Dep. Int. 96, that a clerk or employee in the office of a United States surveyor-general was clerk or employee in the General Land Office, and hence fell within the inhibition of section 452, Rev. Stats.

Under the decision in MeMicken’s case, supra, a general circular was issued by the land department, dated September 15, 1890, and reported in 11 Land Dec. Dep. Int. 348, stating that: "In accordance with said decision, all officers, *537 clerks, and employees in tbe offices of tbe surveyors-general, tbe local land offices, and tbe General Land Offices, or any persons, wherever located employed under tbe supervision of tbe Commissioner of tbe General Land Office, are,, during sucb employment, prohibited from entering, or becoming interested, directly or indirectly, in any of tbe public lands of tbe United States.”

Tbe above rule has since been generally adhered to by the department, although in tbe case of Winans v. Beidler, 15 Land Dec. Dep. Int. 266, decided in 1892, tbe land department appears to have again modified its views as to tbe construction of section 452, Rev. Stats., bolding that Winans, who was employed as a copyist in the General Land Office at Washington, could perfect a homestead entry made shortly before bis appointment to sucb position.

Tbe first reported case in which tbe land department passed upon tbe right of a deputy mineral surveyor to make entry Of lands is Denison v. Willits, 11 Copp, Land Owner, 261 (1884), in which Commissioner McFarland said: " There seems to be no valid objection as to tbe right of a deputy surveyor to make a mineral entry, in which case he cannot act in any other capacity than that of claimant.”

The next case in which the question arose was that of Lock Lode, 6 Land Dec. Dep. Int. 105, wherein the secretary said: "But one question is in this case, viz., the right of a deputy mineral surveyor to make a mineral entry in the district for which he is appointed.” He then quotes section 2319, Rev. Stats., declaring all mineral deposits on public lands to be open to exploration and purchase, and adds: "Section 2325 of the United States Eevised Statutes provides that any one authorized to locate a mineral claim may procure a patent for the same upon compliance with certain requirements and conditions therein specified. Deputy surveyors are appointed by the surveyor-general of each surveying district, under and by virtue of the authority conferred in section 2334 of United States Eevised Statutes. Under this section, the surveyors-general of the several districts appoint as many competent deputy surveyors for mining claims as may apply to them for such appointment, and give bond in the sum of $10,000 *538 for the faithful performance of their duties. A mineral claimant then has the option of employing any one of said deputies to do his surveying with whom he can make a suitable contract; it being always understood that the claimant is to bear all the expenses of notices, surveys, etc. It was ruled by your office, February 6, 1884, in the case of Denison v. Willits, 11 Copp, Land Owner, 261, the only time the question has ever been raised, so far as can be ascertained, that a deputy mineral surveyor may make mineral land entries in his own district, but in that event he cannot act in any other capacity than that of claimant. It would seem that there can be no valid objection to this entry as a matter of public policy, unless it be said that claimant’s position as a deputy surveyor gives him an advantage over the rest of the community in locating claims; in other words, his position gives him special information as regards the places where valuable minerals are to be found. I am not of opinion, however, that this objection should be sufficient to work a forfeiture of an entry already made, or to prevent the making of one.”

This ruling of the land department remained in full force without any modification until the decision in Floyd v. Montgomery, supra. In that case a deputy mineral surveyor was one of seven applicants for patents on. a mining claim. His interest in the claim was acquired after location and immediately prior to application for patent. He made the survey, and prepared and filed preliminary report and field notes with report on improvements. It being urged that he was disqualified by section 452, Rev. Stats., from obtaining patent, the secretary directed that the deputy mineral surveyor’s name be stricken from the final certificate, and the entry passed to patent in the name of the remaining applicants, saying (page 136): "In Herbert McMicken, et al., 10 Land Dec. Dep. Int. 97, on review 11 Land Dec. Dep. Int. 96, Secretary Noble held that an officer, clerk, or employee in the office of a United States surveyor-general is an officer, clerk, or employee in the General Land Office within the meaning of this section. In Muller v. Coleman, 18 Land Dec. Dep. Int. 394, Secretary Smith held that a deputy surveyor *539 is snob employee, and in the Neill case, 24 Land Dec. Dep. Int. 393, the present secretary held that a surveyor-general is within the inhibition so declared. A circular of similar import was issued September 15, 1890 (11 Land Dec. Dep. Int. 348). From an examination of these authorities and a consideration of the language and manifest purpose of the section, it seems clear that its prohibitive provisions embrace a deputy mineral surveyor. In so far as the cases of State of Nebraska v. Dorrington, 2 Copp, Land Laws, 647, Denison v. Willits, 11 Copp, Land Owner, 261, and Lock Lode, 6 Land Dec. Dep. Int. 105, are in conflict with the views expressed in these later cases, they are overruled.”

In Frank A. Maxwell, 29 Land Dec. Dep. Int. 76, and Alfred Baltzell, Id. 333, the department again ruled that a deputy mineral surveyor was disqualified by the statute from making entry, basing said decision solely on Floyd v. Montgomery, supra.

The next and last ruling of the department on this question was in the case of W. H. Leffingwell, 30 Land Dec. Dep. Int. 139 (1900), holding that a deputy mineral surveyor who has no interest, real or contingent, in a mining claim at the date of the survey thereof by him, nor at the date of the application for patent thereto, but- who subsequently makes entry thereof, does not come within the spirit of section 452 of the Revised Statutes, prohibiting employees of the General Land Office from ''purchasing or becoming interested in the purchase of the public lands”; the secretary saying: "Without at the present time considering the correctness of the conclusions arrived at in the case of Floyd, et al., v. Montgomery, et al., 26 Land Dec. Dep. Int. 122, 136, and similar cases in so far as it was therein held that the prohibitive provisions of said section embrace a deputy mineral surveyor, it is sufficient- to say that the facts in this case, as disclosed by the record, are materially different from those stated in the cases referred to. Independently of the statute, it would be within the power of the land department in making regulations for the survey of mining claims to provide against the survey thereof by one interested in the claim; the reason therefor being manifest. In the case under consideration, *540 Leffingwell bad no interest, real or contingent, in the claim involved at the date of the survey thereof by him, or at the date of the application for patent thereto, and, under these circumstances, it is not believed that he is within the spirit of the statute or circular above quoted.”

It thus appears that until 1898 no doubt was expressed by the land department as to the right of a deputy mineral surveyor to make a mineral entry; the department in two decisions expressly ruling that he had such right. In Floyd v. Montgomery, supra, the department reversed its previous decisions, and held that a mineral surveyor was prohibited by the statute from making entry. While in the Leffingwell case, supra, the secretary did not express an opinion as to the correctness of the rulings of the department in the case of Floyd v. Montgomery, and other similar cases, there is a strong inference, at least, that the rulings in those cases are not so clearly correct that the question they determine may not be the subject of further consideration by the department.

Commenting upon these various decisions of the land department, Lindley, in his work on Mines, says: "The land department at one time held that they (deputy mineral surveyors) were not prohibited from making mineral entries within the district for which they are appointed. By subsequent rulings it was determined that they came within the inhibition of section 452 of the Revised Statutes, and were prohibited from entering or becoming interested in any of the public lands of the United States. The latest expression by the department on the subject has a tendency to suggest the incorrectness of these later rulings. The existing land department regulations seem to limit the disqualification of the deputy surveyor to the making of surveys of mineral claims in which he holds an interest, thus intimating that he may lawfully locate and hold a claim, but could not survey it for a patent.” (Lindley on Mines, 2d ed. 661.)

A careful examination of the points presented in this ease convinces us that the rulings of the land department, in so far as they hold or infer that a deputy mineral. surveyor is disqualified to locate a mining claim because of the provisions of Revised Statutes, sec. 452, are erroneous. In the *541 view we take of this case, it is not necessary to pass upon all the legal questions presented in the able argument of counsel, for the position, we think, is well .taken that a deputy mineral surveyor is not an officer, clerk, or employee in the General Land Office, even if we should consider that the office of United States surveyor-general is a part of'the General Land Office and subject to the inhibition of section 452, Rev. Stats., supra, a question we do not pass upon. .

Deputy mineral surveyors are appointed without limit, and for no particular time, by the Surveyor-General of the United States, under the provisions of section 2324, Rev. Stats., supra. They are not required to keep an office at any particular place, or at all. They do not remain under the direction or supervision of the surveyor-general. They are not obliged to perform any service, either for the government or any individual. They are simply persons who have been designated as having the requisite qualifications to make a proper survey of mining claims. If they perform any services at all, it must be as a matter of private contract between themselves and the mining claimant. They receive no salary or compensation whatever from the government; nor does the government supply them with instruments or assistants while engaged in making a mineral survey. They have no access to the official records of the surveyor-general’s office, other than that afforded any private citizen. A deputy mineral surveyor may never make a survey after his appointment, or he may make fifty or more in a year. The duties of a mineral surveyor are exclusively professional, and in no sense those of a clerk. He keeps no records or accounts, he registers no act of any superior. He has no custody of public property or papers. His duties consist, when employed by the owner of a mining claim, in making for such owner a survey thereof, showing improvements thereon, with preliminary plat and field notes of survey. When the field notes and preliminary plat of survey have been filed with the surveyor-general, his duty in the premises is ended, except it be to correct an error made by him.

In the leading case of United States v. Germaine, 99 U. S. 508, 25 L. Ed. 482, the court, by Mr. Justice Miller, laid down *542 the definition of a federal officer, saying (page 509 of 99 U. S.): "The constitution for purposes of appointment very clearly divides all its officers into two classes. The primary class requires a nomination by the President and confirmation by the senate. But foreseeing that when offices become numerous, and sudden removals necessary, this mode might be inconvenient, it was provided that in regard to officers inferior to those specially mentioned Congress might by law vest their appointment in the. President alone, in the courts of law, or in the heads of departments. That all persons who can be said to. hold an office under the government about to be established under the constitution were intended to be included within one or the other of these modes of appointment there can be but little doubt.”

In that case the defendant, Germaine, who was a civil surgeon appointed by the commissioner of pensions, under section 4777, Rev. Stats., was indicted for extortion as an officer of the United States, but the court held that he was not such officer, saying further (page 511): "If we look to the nature of defendant’s employment, we think it equally clear] that he is not an officer. In that case (United States v. Hartwell, 6 Wall. 385,18 L. Ed. 830), the court said the term embraces the ideas of tenure, duration, emolument, and duties, and that the latter were continuing and permanent, not occasional or temporary. In the case before us, the duties are not continuing and permanent, and they are occasional and intermittent. The surgeon is only to act when called on by the commissioner of pensions in some special case', as when some pensioner or claimant of a pension presents himself for examination. He may make fifty of these examinations in a year, or none. He is required to keep no place of business for the public use. He gives no bond, and takes no oath, unless by some order of the commissioner of pensions of which we are not advised. No regular appropriation is made to pay his compensation, which is two dollars for every certificate of examination, but it is paid out of money appropriated for paying pensions in his district, under regulations to be prescribed by the commissioner. He is but an agent of the commissioner, appointed by him, and removable by him at his *543 pleasure, to procure information needed to aid in the performance of his own official duties. He may appoint one or a dozen persons to do the same thing. The compensation may amount to five dollars or five hundred dollars per annum. There is no penalty for his absence from duty or refusal to perform, except his loss of the fee in the given case. If Congress had passed a law requiring the commissioner to appoint a man to furnish each agency with fuel at a price per ton fixed by law high enough to secure the delivery of the coal,' he would have as much claim to be an officer of the United States as the surgeons appointed under this statute.”

Again, in United States v. Smith, 124 U. S. 525, 532, 8 Sup. Ct. 595, 31 L. Ed. 534, the court said: "An officer of the United States can only be appointed by the President, by and with the advice and consent of the senate, or by a court of law or the head of a department. A person in the service of the government who does not derive his position from one of these sources is not an officer of the United States in the sense of the constitution. This subject was considered and determined in United States v. Germaine, 99 U. S. 508, 25 L. Ed. 482, and in the recent case of United States v. Mouat, 124 U. S. 303, 8 Sup. Ct. 505, 31 L. Ed. 463. What we have here said is but a repetition of what was there authoritatively declared.”

In the case of Louisville R. R. Co. v. Wilson, 138 U. S. 501, 505, 11 Sup. Ct. 405, 34 L. Ed. 1023, the court, by Mr. Justice Brewer, said: " The terms ' officers ’ and ' employees ’ both alike refer to those in regular and continual service. Within the ordinary acceptation of the terms, one who is engaged to render services in a particular transaction is neither an officer nor án employee. They imply continuity of service, and exclude those employed for a special and single transaction. An attorney of an individual retained for a single suit, is not his employee. It is true he has engaged to render services; but his engagement is rather that of a contractor than of an employee.”

The same rule was laid down by the court in Auffmordt v. Hedden, 137 U. S. 310, 11 Sup. Ct. 103, 34 L. Ed. 674, in which the court, passing upon the status of a "merchant appraiser” *544 appointed or selected by the collector of customs under authority of section 2930, Rev. Stats., and whose compensation was payable by the importer, said (page 326 of 137 U. S., and page 107 of 11 Sup. Ct. [34 L. Ed. 674] ): "The merchant appraiser is an expert, selected as an emergency arises, upon the request of the importer for a reappraisal. His appointment is not one to be classified under the civil service law. He is not to be appointed on a competitive examination, nor does he fall within the provisions of the civil service law. He is not a 'clerk nor an 'agent’ nor a 'person employed,’ in the customs department, within the meaning of section 6 of the civil service act; nor is he an officer of the United States, required to be appointed by the President, or a court of law, or the head of a department. He is an expert selected as such. Section 2930 requires that he shall be a ' discreet and experienced merchant, familiar with the character and value of the goods in question.’ He is selected for the special case. He has no general functions, nor any employment which has any duration as to time, or which extends over any case further than as he is selected to act in that particular case. He is executive agent, as an expert assistant to aid in ascertaining the value of the goods, selected for. the particular case on the request of the importer, and selected for his special knowledge in regard to the character and value of the particular goods in question. He has no claim or right to be designated, or to act except as he may be designated.”

See, also, the following authorities: People ex rel. Sims v. Fire Commissioners, 73 N. Y. 437; People v. Board of Police, 75 N. Y. 38; Commonwealth v. Fitler, 147 Pa. 288, 23 Atl. 568, 15 L. R. A. 205; Mulholland v. Wood, 166 Pa. 486; 31 Atl. 248; State v. Mason, 61 Ohio St. 62, 55 N. E. 167; Attorney-General v. McCaughey, 21 R. I. 341, 43 Atl. 646; State v. Emerson, 72 Me. 455; Campfield v. Lang, 25 Fed. 128; Frick Co. v. Norfolk Co., 86 Fed. 738, 32 C. C. A. 31; United States v. McCrory, 91 Fed. 295, 93 C. C. A. 515; In re Grunwold, 99 Fed. 705; United States v. Smith, 124 U. S. 525, 8 Sup. Ct. 595, 31 L. Ed. 534; Vane v. Newcombe, 132 U. S. 233, 10 Sup. Ct. 60, 33 L. Ed. 310.

*545 The defendant, John R. Cook, for the reasons given, was not disqualified from locating the "Yuba East Lode” mining claim, described in the complaint, on the 1st day of January, 1904, because of the provisions of section 452, Rev. Stats. U. S.

The judgment and order of the trial court are reversed, and a new trial granted.

Sweeney, J.: I concur.