ruary 6, 1884, in the case of Denison and 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 ir 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. St., 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 employé in the office of a United States surveyor general is an officer, clerk, or employé 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 is such employé, 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, Dennison and 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. II. Leffing

well, 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 employés 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, Leffingwell had 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

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, etc., 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 'employés' 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 an employé. 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 employé. It is true he has engaged to render services; but his engagement is rather that of a contractor than of an employé." 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 court, passing upon the status of a "merchant appraiser" appointed or selected by the collector of customs under authority of section 2930, Rev. St., 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 knowl

edge 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 (C. C.) 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.

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. St. U. S.

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

SWEENEY, J., concurs.

TALBOT, C. J. (dissenting). It is alleged in the complaint, and admitted in the answer, that the defendant Cook and Lloyd were the grantors to the plaintiffs, excepting Louise Frank, of a part of the ground in dispute. The district court found from the evidence and admissions made on the trial that on the 31st day of December, 1903, and for several years prior thereto, the plaintiffs and defendant Lynch were the owners of the Last Shange, the Triangle, and the Bellevue mining claims in contest; that in June, 1902, there was executed to defendant Lloyd a written lease on the property for one year, to June 17, 1903; that the defendant Cook was at all times during the term of the lease jointly interested with defendant Lloyd; that between the 17th day of June, 1902, and some time in October of that year, both the defendants Cook and Lloyd mined the premises described in the lease as partners thereunder; that in the month of October or November, 1902, when the lease still had more than onehalf of its term of one year to run, they quit the premises and removed their tools, and that neither of them entered thereon again until the latter part of December, 1903. During the year 1902, and after the 17th day of June of that year, Cook and Lloyd did about $500 worth of work on the premises covered by the lease, and more than sufficient to cover the assessment work for that year. The principal plaintiffs in interest lived out of the state, and the defendants resided adjacent to the claims. Possession was not surrendered to plaintiffs at the end of the time specified in the lease, nor were they notified

by the defendants that the latter had quit possession or were ready to surrender the premises. The plaintiffs did not have any labor performed on the claims during the year 1903. In December, 1903, the defendants Cook and Lloyd, still without having surrendered possession to the plaintiffs or having notified the plaintiffs that they had quit the premises, did some work on the claims, giving the appearance that the required assessment was being performed. On the 1st day of January, 1904, the defendant Cook, while he was a United States deputy mineral surveyor, made a relocation under which the ground is now claimed.

On the theory that it makes no difference in whose name a lease or property belonging to a partnership stands, it is urged in respondent's brief that Cook and Lloyd were equally bound and responsible as partners under the lease, and, in addition to the assertion that Cook is disqualified to make the location, it is claimed "that the district court erred in not holding that there was a relationship of trust and confidence existing between the defendants and plaintiffs which precluded them from initiating any rights to the property adverse to the plaintiffs for the reasons, first, that they admit that they are the grantors of the plaintiff; second, they admit that they performed the assessment work for several years for the plaintiffs; third, that they entered into the possession of the ground jointly under a lease made by the plaintiff's on the 17th day of June, 1902, and never at any time notified the plaintiffs that they had abandoned the lease or offered to redeliver possession of the same; fourth, that by their conduct and statements they misled the plaintiffs and respondents by the fact of their coming on the ground at different times during the latter part of the year 1903 and working thereon, and their representations that they were doing the work as assessment work for the plaintiffs." Of the two points relied upon by plaintiffs on the trial, the district court found against them on the contention that Cook was disqualified from relocating the ground which with Lloyd he held under a lease from the plaintiffs without surrendering possession to them, and based the judgment in favor of the plaintiffs on the other ground that Cook was disqualified from locating claims because he was a United States deputy mineral surveyor.

The plaintiffs and respondents are still claiming here that Cook was disqualified by reason of his being such surveyor, but that, if this court holds he was not, the judgment should be sustained on the ground that he could not make the location against his lessors when he had not surrendered possession to them. Against this contention it is said that respondents are not appealing, and that they have not assigned any error against the conclusion of the district judge that Cook was not disqualified as a lessee. Whether, under these circumstances, the facts as

found by the trial court may be considered conclusive unless the defendant expresses dissatisfaction with them, and requests a new trial for the purpose of introducing further evidence, and whether this court could sustain the judgment if it believed the conclusion of law made by the district court that Cook was not disqualified as a lessee was wrong, and on that ground, is not determined, and, as this question is not discussed in the decision, I express no opinion as to whether the judgment ought to be sustained on the ground that the lease was renewed and continued by the failure of Cook and Lloyd to surrender possession and by their working on the ground in December, 1903, six months after the time specified for its termination and for the redelivery of the claims. Fitton v. Hamilton, 6 Nev. 196. Whether Cook and Lloyd, living adjacent to the mine and in possession under the lease from the principal plaintiffs, who were absent from the state, could, without surrendering or attempting to surrender possession, or notifying the plaintiffs that they wanted to surrender possession, and after working on the claims six months after the life of the lease, make a location a few days later, if Cook had not been a deputy mineral surveyor, which would not inure to the benefit of the plaintiffs, and whether the district court should not have found as a conclusion of law that Cook could not acquire rights in the premises against his lessors, and whether the judgment ought not to be affirmed on these grounds on the theory that the findings have correctly and satisfactorily to all parties settled the facts, and that the conclusions of law thereon may be reviewed in this court, without putting the parties to the trouble and expense of another trial, unless there is dissatisfaction with the findings of the district court, and appellants ask for the remanding of the case to enable them to introduce evidence which might establish different facts more favorable to them, are questions which remain undecided here and may necessitate another appeal. Whether the principle announced by this court that a wrong reason assigned for certain rulings by the trial judge will not reverse a correct result applies if the judgment is correct, but has been rendered on an incorrect conclusion of law when the findings of fact, standing unattacked, warrant a conclusion of law which would support the judgment, is not determined. Under such conditions, and where there is no appeal or specification of error by the respondent, should the judgment be sustained or should the case be remanded for a new trial? So much by way of showing that these propositions may be involved, but as they are not considered in the decision I express no opinion in regard to them.

In the conclusion reached by my associates that Cook was not disqualified as a United States deputy mineral surveyor for making locations I am unable to agree. The language in section 452, that "the officers, clerks

and employés in the General Land Office are prohibited from directly or indirectly purchasing or becoming interested in the purchase of any of the public land," plainly contains a prohibition against officers, clerks, or employés in the Land Office purchasing. or becoming interested, directly or indirectly, in the purchase of the public lands, and, in addition, a penalty by removal from office is added. The argument in the spacious brief of more than 100 printed pages, that the citizens, and not the government, own the land, and that Congress cannot deprive the citizen of his rights, is more sentimental than of legal force. Although our laws are most liberal in this regard, allowing citizens rights reserved in the crown in other countries, that the agricultural, timber, grazing, swamp, and mineral lands on the public domain belong to the government as against any citizen, and are subject to the laws of Congress, is an elementary proposition too clear for dispute. The language of the act being plain, it ought not to be varied by reference to any former acts which it supersedes and repeals. AS the location of mining claims is the first step toward the acquiring and purchasing of them from the government, and the officers, clerks, and employés in the Land Office are prohibited from purchasing or becoming interested in the purchase of the publie lands, it follows that they ought to be considered as prohibited from making locations. Full force and fair interpretation should be given to the words used. The holding of the majority of the court that the penalty clause of the statute only is effective, and that the word "prohibit" which it contains does not prohibit, is equivalent to the elimination and judicial repeal of the prohi bition enacted by Congress. No penalty or forfeiture is to be implied which is not clearly expressed, but the court has no more right to eliminate penalties or prohibitions which are plainly provided in an act of Congress than it has to impose others which are not expressed. The intention or purpose of the act should not be construed away by technicalities or fine distinctions. I hold to the broader construction that clerks, officers, and employés in the General Land Office include officers, clerks, and employés in the offices of the surveyors general and the local land offices, which are merely arms or branches of the General Land Office. Within the letter of the act, a United States deputy mineral surveyor is a deputy because so specified and is generally so called, and, as far as I am aware, is without other designation. He is commissioned and required to give bond and qualify. His duties are regulated by the acts of Congress, and the rules of the Land Office, and are performed under its supervision for the aid of the government in disposing of the mineral lands. Although paid by the claimant, he acts for the government as much, if not more, in the proceedings to obtain patent for mines than for the claim

ant, and as much as other officers who are paid a fee by the claimant. His work is directed, supervised, and may be rejected by the Surveyor General, the Commissioner of the General Land Office, and the Secretary of the Interior. He must be appointed and qualified under the statute and government regulations, possibly more fully than clerks and employés of the Land Office generally, before he can act, and, in one sense, he is selected, employed by, and works for the United States. If there be any doubt as to whether his designation in the statute as a deputy and the other provisions do not bring him within the letter of the law, he comes within its spirit, and, if the letter kills, the spirit ought to control and give life to the statute. When we look to the object and purpose of the restriction by Congress against the acquiring of the public land by the officers, clerks, and employés in the Land Office, stronger reasons are apparent for prohibiting the deputy surveyors from locating mining claims than for placing such restraint upon other officers. His professional training and work on the ground in surveying for patent and which he could not be selected to do until he has first been appointed deputy by the surveyor general gives him opportunities which no other officer has, and might enable him to discover that the apex of the most valuable ledge was outside of the claim, and thereby enable him to locate and hold it against the claimant by whom he had been employed, and whose confidence he ought to respect and whose interests he ought to protect. He would also by reason of his employment be able first to know whether claims exceeded the maximum length allowed by the statute and to locate the surplus or fractional ground himself before notifying and giving an opportunity to his employer to locate it. Restrictions which apply to the principal should apply to the deputy, who has equal or greater opportunities to take advantage of his employment, to the detriment of persons whose rights he ought to conserve and who pay for the services he renders in aiding the Land Office in the proceedings for patent. The deputy being plainly within the spirit of the act, if not also within the letter, and having greater opportunities to use to his own advantage the position he holds under the statute than the persons who are clearly prohibited from making locations, if by judicial construction he is not disqualified from making them, Congress ought to amend the law either by repealing the prohibition as to the others, or by making it apply to deputy mineral surveyors in terms too plain for dispute so it will operate fairly upon all.

In Lavagnino v. Uhlig, supra, the Supreme Court of the United States were careful to express no opinion regarding the right of a deputy mineral surveyor to make locations, and stated that, under the circumstances existing in that case, a consideration of the question was unnecessary. The decisions re