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"The annual rental, together with all other payments to the United States provided for in this lease, shall be made and paid on or before the first day of April of each and every year during the existence of this lease, beginning with the first day of April, 1891. "The said company further agrees to employ the native inhabitants of said islands to perform such labor upon the islands as they are fitted to perform, and to pay therefor | a fair and just compensation, such as may be fixed by the Secretary of the Treasury; and also agrees to contribute, as far as in its power, all reasonable efforts to secure the comfort, health, education, and promote the morals and civilization of said native inhabitants.

"The said company also agrees faithfully to obey and abide by all rules and regulations that the Secretary of the Treasury has heretofore or may hereafter establish or make in pursuance of law concerning the taking of seals on said islands, and concerning the comfort, morals, and other interests of said inhabitants, and all matters pertaining to said islands and the taking of seals within the possession of the United States. It also agrees to obey and abide by any restrictions or limitations upon the right to kill seals that [114]the Secretary of the Treasury shall judge necessary, under the law for the preservation of the seal fisheries of the United States; and it agrees that it will not kill or permit to be killed, so far as it can prevent, in any year a greater number of seals than is authorized by the Secretary of the Treasury.

"The said company further agrees that it will not permit any of its agents to keep, sell, give, or dispose of any distilled spirits or spirituous liquors or opium on either of said islands or the waters adjacent thereto to any of the native inhabitants of said islands, such person not being a physician and furnishing the same for use as a medicine.

"It is understood and agreed that the number of fur seals to be taken and killed for their skins upon said 'slands by the North American Commercial Company during the year ending May 1, 1891, shall not exceed sixty thousand.

|ing of one male or bull and many females or
cows; that the young or male seals, or bache
iors as they are called, are not admitted to
the breeding ground, but are driven off by
the older males and oftentimes destroyed by
them; that until such bachelor seals arrive
at the age of three or four years they occupy
other portions of the islands and can be
driven away from the breeding ground and
killed without disturbing the seals on the 11
breeding grounds; that a large proportion of
these young bachelor seals may be so killed
without diminishing the birth rate of the
herd, and their skins are a valuable article of
commerce and are more valuable than the
skins of the females or older males; that by
protecting the females and restricting the
capture to the bachelors the fisheries are ca-
pable of a permanent and annual supply of
skins which would afford a valuable source
of revenue.

"Seventh. That after the making of the said lease by the said plaintiff and the said defendant, the said defendant entered upon the enjoyment of the right thereby granted it; but on account of the enforcement by the said plaintiff of the provisions of a convention or agreement made and entered into by the said plaintiff with the government of Great Britain it prohibited and prevented the said defendant, during the years 1890, 1891, and 1892, from taking on the said islands as many seals as might have been taken without diminution of the herd, and far less in each year than the number mentioned in the said lease for the first year; the numbers taken in those years being in 1890, 20,995; in 1891, 13,482; and in 1892, 7,547.

"Eighth. That for the said years of 1890, 1891, and 1892, it was agreed between the Secretary of the Treasury and the said defendant that the said defendant should pay to the said plaintiff for the seal skins taken by it on the said islands the tax and such proportionate part of the rental of $60,000 and the per capita sum of seven dollars sixty-two and one half cents, as the number of seals taken bore to one hundred thousand, except that for 1890 the per capita of seven dollars sixty-two and one half cents was not so reduced.

"The Secretary of the Treasury reserves the right to terminate this lease and all rights "Ninth. That by a convention or agreement of the North American Commercial Company with the government of Great Britain, comunder the same at any time on full and satis-monly called the modus vivendi, the United factory proof that the said company has violated any of the provisions and agreements of this lease, or in any of the laws of the United States, or any Treasury regulation respecting the taking of fur seals or concerning the islands of St. George and St. Paul or the inhabitants thereof."

The circuit court made eighteen findings, including the following:

States promised, during the pendency of the arbitration between those two governments relating to the Behring Sea controversy and the preservation of the seals resorting to those waters, to prohibit seal killing on the said islands in excess of 7,500 to be taken from the islands for the subsistence of the natives, and to use promptly its best efforts to insure the enforcement of the prohibition.

"Sixth. The said islands of St. George and St. Paul in the territory of Alaska are the breeding ground of a herd of seals which in the early spring moves northward to Behring Sea, and are the habitat of that herd during the summer and fall of each year; that the ant of the benefit of its said lease. seals land in great numbers upon the said "Eleventh. That the Secretary of the Treas islands and divide into families, each consist-ury did not exercise the discretion conferred

"Tenth. That pursuant to such agreement 116] the United States prohibited and prevented the said defendant from taking any seals whatever from the said islands during the year 1893, and thus deprived the said defend

upon him by section 1962 of the Revised Stat-skins could have been sold, namely, $300,000. utes to limit the right of killing seals when leaves as the net loss sustained by the said necessary for the preservation of such seals, defendant in consequence of the breach of its and did not so limit or restrict the right of the said lease by the said plaintiff, the sum of said defendant to take seals under its said lease for the year 1893, and that during that year it was not necessary or even desirable for the preservation of such seals to limit the killing of the seals upon the said islands to the said number of 7,500 specified in the said modus vivendi.

"Twelfth. That in the year 1893 the United States government itself, through the agents of the Treasury Department, took up on the said islands 7,500 seals; that the said defendant was permitted to co-operate in se lecting the seals so killed, and to take, and it did take and retain the skins of those seals, and in this way, and in this way only, the defendant received those 7,500 skins.

$142,187.50, which is due and owing to the said defendant by the said plaintiff; and that its claim therefor would he a proper matter of counterclaim or credit in this action, if the conditions prescribed by § 951 of the United States Revised Statutes had been complied with by the said defendant."

"Eighteenth. The defendant did not present to the accounting officers of the Treas ury for their examination any claim for damages by reason of the losses alleged to have been incurred by the defendant by reason of the action of the United States in entering into the said convention or modus vivendi with Great Britain and limiting the catch of seals upon the said islands to 7,500; and such "In accordance with the power reserved to claim was not disallowed by the accounting him in said contract, the Secretary of the officers of the Treasury in whole or in part, Treasury at the commencement of the seal- and it was not proved to the satisfaction of[118] killing season for the year ending April 1, the court that the defendant was at the time 1894, fixed the compensation of the natives of the trial of this action in possession of upon the islands of St. Paul and St. George vouchers not before in its power to procure, to be paid to them by the defendant for kill- or that the defendant was prevented from ing the seals, sorting the skins, and loading exhibiting its said alleged claim at the Treasthem on board the defendant's steamer, at 50 ury by absence from the United States or by cents for each skin taken from the islands dur- unavoidable accident." ing the said season; and defendant paid to the natives said compensation, to wit, the sum of $3,750.

The circuit court made these conclusions of law:

sum of $94,687.50, with interest thereon from the first day of April, 1894; and the said plaintiff is entitled to recover in this action said sum, with interest as aforesaid, from the said defendant.

"First. That the said defendant, having "Thirteenth. That 20,000 bachelor seals received the said 7,500 seal skins taken from could have been killed upon the said islands the said islands during the year 1893, is liable during the year 1893 in the customary way, to pay the said plaintiff therefor the said without injury to or diminution of the herd, and the said defendant would have taken that number had it been permitted so to do. "Fourteenth. That if the said defendant had been allowed to and had taken in the year 1893, under its said lease, 20,000 seal [117]*skins, there would have been due to the said plaintiff the $60,000 rental and for the per capita of seven dollars and sixty two and one half cents and the revenue tax of two dcllars per skin, the sum of $192,500, making together the sum of $252,500-that is, twelve dollars and sixty-two and one half cents for each seal skin taken; that for the 7,500 rereived by the said defendant, as above set forth, it owes to the said plaintiff the said sum of twelve dollars and sixty-two and one half cents apiece, amounting to the sum of $94,687.50.

"Fifteenth. The defendant could have sold 12,500 more seal skins if it had been allowed to take the same cn the said islands during the year 1893, at the average market price of twenty-four dollars for each skin; which for the said number of 12,500 which it might have taken, but was prevented from taking by the act of the government of the United States, would amount to $300,000; that for such 12,500 seal skins the said defendant would have been liable to pay, according to the terms of its lease if it had taken 20,000 seal skins during that year, the sum of twelve dollars and sixty-two and one half cents each, amounting to $157,812.50, which, being deducted from the price at which such

"Second. That by reason of the breach of the said lease by the said plaintiff, prohibiting the said defendant from taking any seal skins during the year 1893, the said plaintiff is liable to the said defendant for the said sum of $142,187.50, with interest thereon from the first day of December, 1894.

"That on account of the same claim of the said defendant against the said plaintiff for damages for breach of the said lease not having been presented to and disallowed by the accounting officers of the Treasury, it cannot be allowed as a counterclaim or credit in this action, and the said counterclaim is therefore dismissed, but not on the merits thereof, and without prejudice to the right of the said defendant to enforce the same by any other proper legal proceeding."

Mr. James C. Carter for plinta in error.

Mr. John W. Griggs, Attorney General, for defendant in error.

Mr. Chief Justice Fuller delivered the opinion of the court:

By the act of July 27, 1868 (15 Stat. at L 240, chap. 273), the laws of the United States relating to customs, commerce, and naviga tion were extended over all the mainland, is

as he pleases in its downward course outside [tion. "Our laws have attempted to establish the vertical side lines. But he can pursue a rule by which each claim shall be so many the vein in its depth only outside the vertical feet of the vein, lengthwise of its course, to side lines of his location, for the statute pro- any depth below the surface, although latervides that the "right of possession to such ally its inclination shall carry it ever so far [89] outside *parts of such veins or ledges shall from a perpendicular." Flagstaff Silver Minbe confined to such portions thereof as lie be-ing Company v. Tarbet, 98 U. S. 463, 468 tween vertical planes drawn downward as [25: 253, 255]. above described, through the end lines of their locations, so continued in their own direction that such planes will intersect such exterior parts of such veins or lodes."

These conclusions find support in the following decisions: Stevens v. Williams, 1 McCrary, 480, 490, in which is given the charge of Mr. Justice Miller to a jury, in the course of which he says: "You must take all the evidence together; you must take the point where it ends on the south, where it ends on the north, where it begins on the west and is lost on the east, and the course it takes; and from all that you are to say what is its general course. The plaintiff is not bound to lay his side lines perfectly parallel with the course

This places a limit on the length of the vein beyond which he may not go, but it does not say that he shall not go outside the vertical side lines unless the vein in its course reaches the vertical planes of the end lines. Nowhere is it said that he must have a vein which either on or below the surface extends from end line to end line in order to pursue that vein in its dip outside the vertical side or strike of the lode, so as to cover it exactly. lines. Naming limits beyond which a grant does not go is not equivalent to saying that nothing is granted which does not extend to those limits. The locator is given a right to pursue any vein, whose apex is within his surface limits, on its dip outside the vertical side lines, but may not in such pursuit go beyond the vertical end lines. And this is all that the statute provides. Suppose a vein enters at an end line, but terminates half way across the length of the location, his right to follow that vein on its dip beyond the vertical side lines is as plainly given by the statute as though in its course it had extended to the farther end line. It is a vein, "the top or apex of which lies inside of such surface lines extended downward vertically" and the same is true if it enters at an end and passes out at a side line.

His location may be made one way or the other, and it may so run that he crosses it the other way. In such event his end lines become his side lines, and he can only pursue it to his side lines, vertically extended, as though they were his end lines, but if he happens to strike out diagonally, as far as his side lines include the apex, so far he can pursue it laterally." Wakeman v. Norton, decided by the supreme court of Colorado, June 1, 1897, 49 Pac. 283, in which Mr. Justice Goddard, whose opinions, by virtue of his long experience as trial judge in the mining districts of Leadville and Aspen, as well as on the supreme bench of the state, are entitled to great consideration, said, p. 286: "In instructing the jury that, in order to give any extralateral rights, it was essential that the apex or top of a vein should on its *course pass [91] Our conclusions may be summed up in these through both end lines of a claim, the court propositions: First, the location as made on imposed a condition that has not heretofore the surface by the locator determines the ex-been announced as an essential to the exertent of rights below the surface. Second, the cise of such right in any of the adjudicated end lines, as he marks them on the sur- cases." Fitzgerald v. Clark, 17 Mont. 100 face, with the single exception hereinafter no- [30 L. R. A. 803], a case now pending in this ticed, place the limits beyond which he may court on writ of error. Tyler Mining Comnot go in the appropriation of any vein or pany v. Last Chance Mining Company, court veins along their course or strike. Third, of appeals, ninth circuit, decided by Circuit every vein "the top or apex of which lies in Judge McKenna, now a justice of this court, side of such surface lines extended downward Circuit Judge Gilbert and District Judge vertically" becomes his by virtue of his Hawley, 7 U. S. App. 463. Consolidated Wylocation, and he may pursue it to any oming Gold Mining Company v. Champion depth beyond his vertical side lines, al-Mining Company, circuit court northern disthough in so doing he enters beneath the trict California, decided by Hawley, District surface of some other proprietor. Fourth, the Judge, 63 Fed. Rep. 540. Tyler Mining Comonly exception to the rule that the end lines pany v. Last Chance Mining Company, cirof the location as the locator places them es- cuit court district of Idaho, decided by Beatthe course [90]tablish the limits beyond which he may not ty District Judge, who in go in the appropriation of a vein on its course of his opinion pertinently observed: "What or strike is where it is developed that in fact reason under the law can De assigned the location has been placed, not along, but why these rights shall not apply when across, the course of the vein. In such case the law declares that those which the locator called his side lines are his end lines, and those which he called end lines are in fact side lines, and this upon the proposition that it was the intent of Congress to give to the locator only so many feet of the length of the vein, that length to be bounded by the lines which the locator has established of his loca

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his location is such that his ledge passes through it in some other way than from end to end? The law does not say that his ledge must run from end to end, but he is granted this right of following all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of his surface lines.' Upon the fact that an apex is within his surface lines, all his underground

tinuance of such lease to be paid into the Treasury of the United States; and the Secretary of the Treasury is hereby empowered and authorized to make all needful rules and regulations for the collection and payment of the same, for the comfort, maintenance, education, and protection of the natives of said islands, and also for carrying into full effect all the provisions of this act."

pany shall, in addition to the penalties and forfeitures herein provided, forfeit the whole number of the skins of seals killed in that year, or, in case the same have been disposed of, then such person or company shall forfeit the value of the same.

"Sec. 1969. In addition to the annual rental required to be reserved in every lease, as provided in section nineteen hundred and sixtythree, a revenue tax or duty of two dollars is laid upon each fur-seal skin taken and shipped from the islands of Saint Paul and Saint George, during the continuance of any lease, to be paid into the Treasury of the United

These provisions as well as others from the prior legislation were carried forward into the [122] Revised Statutes, approved June 22, 1874, $8 1954 to 1976 constituting chapter 3 of title 23, relating to the territory of Alaska, and §§ 1956 to 1976 thereof to the subject un-States; and the Secretary of the Treasury is der consideration.

By 1960 the killing of any fur seals upon the islands or their adjacent waters was forbidden, except during June, July, September, and October in each year, etc., with the same proviso as in the 1st section of the act of

1870.

Sections 1962, 1963, 1968, 1969, 1972, and 1973 were as follows:

empowered to make all needful regulations for the collection and payment of the same, and to secure the comfort, maintenance, education, and protection of the natives of those islands, and also to carry into full effect all the provisions of this chapter except as otherwise prescribed."

"Sec. 1972. Congress may at any time hereafter alter, amend, or repeal sections from nineteen hundred and sixty to nineteen hundred and seventy-one, both inclusive, of this chapter.

"Sec. 1962. For the period of twenty years from the first of July, eighteen hundred and seventy, the number of fur seals which may be killed for their skins upon the island of "Sec. 1973. The Secretary of the Treasury St. Paul is limited to seventy-five thousand is authorized to appoint one agent and three per annum; and the number of fur seals assistant agents who shall be charged with which may be killed for their skins upon the the management of the seal fisheries in Alasisland of St. George is limited to twenty-ka, and the performance of such other duties five thousand per annum; but the Secretary as may be assigned to them by the Secretary of the Treasury may limit the right of kill- of the Treasury." ing, if it becomes necessary for the preservation of such seals, with such proportionate reduction of the rents reserved to the government as may be proper; and every person who knowingly violates either of the provisions of this section shall be punished as provided in the preceding section.

"Sec. 1963. When the lease heretofore made by the Secretary of the Treasury to The Alaska Commercial Company,' of the right to engage in taking fur seals on the islands of Saint Paul and Saint George, pursuant to the act of July 1, 1870, chapter 189, or when any future similar lease expires, or is surrendered, forfeited, or terminated, the Secretary shall lease to proper and responsible parties, for the best advantage of the United States, having due regard to the interests of the government, the native inhabitants, their comfort, maintenance, and education, as well as to the interests of the parties heretofore engaged in trade and the protection of the fisheries, the right of taking fur seals on the islands herein named, and of sending a vessel or vessels to the islands for the skins of such seals for the term of twenty years, at an annual rental of not less than fifty thousand dollars, to be reserved in such lease and se[123]cured by a deposit of United States bonds to that amount, and every such lease shall be duly executed in duplicate, and shall not be transferable."

"Sec. 1968. If any person or company, under any lease herein authorized, knowingly kills, or permits to be killed, any number of seals exceeding the number for each island in this chapter prescribed, such person or com

Pending the adoption of the Revised Statutes, and on March 24, 1874 (18 Stat. at L. 24, chap. 64), the act of July 1, 1870, was amended so as to authorize the Secretary of the Treasury to designate the months in which fur seals "may be taken for their skins on the islands of St. Paul and St. George, in Alaska, and in the waters adjacent thereto, and the number to be taken on or about the islands respectively." Thus the Revised Statutes were in effect amended so that[124] whereas by § 1960 the months of June, July, September, and October had been designated as the months in which fur seals might be taken on the islands and in the waters adjacent thereto, for their skins, and by § 1962 the maximum number which might be killed on the island of St. Paul was limited to 75,000, and on the island of St. George to 25,000, per annum, the Secretary of the Treasury was authorized by the amendatory act to designate the months in which fur seals might be taken, and the number to be taken on or about each island respectively. The times of killing and the number to be killed were left to the judgment of the Secretary of the Treasury.

Manifestly the object the government had in view throughout this legislation was the preservation by proper regulations of the furbearing animals of Alaska, including, and particularly, the fur seals.

The first twenty years being about to expire the Secretary of the Treasury on December 24, 1889, advertised for proposals "for the exclusive right to take fur seals upon the islands of St. Paul and St. George, Alaska,

as it can prevent, in any year a greater num-
ber of seals than is authorized by the Secre-
tary of the Treasury."

for the term of twenty (20) years from the | first day of May, 1890 agreeably to the provisions of the statutes of the United States." Among other things, the advertisement It was also agreed that "the annual rental, stated: "The number of seals to be taken together with *all other payments to the Unit-[126] for their skins upon said islands during the ed States provided for in this lease, shall be year ending May 1, 1891, will be limited to made and paid on or before the first day of sixty thousand (60,000), and for the succeed-April of each and every year during ing years the number will be determined by the Secretary of the Treasury, in accordance with the provisions of law."

There were twelve proposals or bids, of which the North American Commercial Company put in three, numbered 10, 11, and 12, each of which offered a gross sum as rental, and, in addition to that and the revenue tax, a royalty per capitem. The three bids set forth the advertisement at length. No. 10 contained a proviso that the proposal was made on the express condition that the United States should not through the Secretary of the Treasury, or otherwise, limit the skins to be taken to any number less than 100,000 [125]skins per annum *after the first year of the lease; and No. 12 made the express condition that the United States should protect the exclusive right of the fur-seal fisheries in and within the islands and the waters known as the "Behring Sea." No. 11 contained no such express conditions, and it was this bid which was accepted by the government. The lease in question was thereupon entered into "in pursuance of chapter 3 of title 23, Revised Statutes," as it recites.

the existence of this lease, beginning with the
first day of April, 1891." The lease also pro-
vided that the number of fur seals to be
taken and killed for their skins during the
year ending May 1, 1891, should not exceed
60,000.

1. It is contended on behalf of the com-
pany that, conceding that the right of kil
ing in 1893 had been duly limited to 7,500
seals, and that it took and received that num-
ber of skins as full performance of the cove-
nants of the lease on the part of the govern-
ment, it is entitled under § 1962 of the Re-
vised Statutes to a proportionate reduction
of the rent reserved, that is, in the proportion
that 7,500 bears to 100,000; and that this re-
duction applies to the per capita of $7.621⁄2
for each fur-seal skin taken and shipped by
it, as well as to the $60,000 annual rental.
On this theory, the company tendered to the
United States, before action brought, the
sum of $23,789.50, being $15,000 for the tax
on 7,500 skins; $4,500, three fortieths of the
annual rental; and $4,289.50, three fortieths
of the full royalty on the skins.

The latter branch of this contention may be dismissed at once as untenable. By the terms of the lease, the per capita of $7.621⁄2 for each and every skin was not a part of the annual rental. The lease is explicit that the annual rental is the sum of $60,000, and that in addition the lessee shall pay the revenue duty of $2 per skin, and also pay the further sum of this royalty on each and every skin. United States bonds were to be de posited "to secure the prompt payment of the sixty thousand dollars rental above referred to," and "the annual rental, together with all other payments to the United States provided for in this lease," was to be paid on or before the 1st of April of each and every year.

We think the rent reserved as such was this specified annual rental, and that the per capita payment was in the nature of a bonus in the sense of an addition to the stated consideration.

By its terms, the company undertook, in consideration of the lease for twenty years of "the exclusive right to engage in the business of taking fur seals on the islands of St. George and St. Paul, in the territory of Alaska, and to send a vessel or vessels to said islands for the skins of such seals," "to pay to the Treasurer of the United States each year during the said term of twenty years, as annual rental, the sum of sixty thousand dollars, and in addition thereto agrees to pay the revenue tax or duty of two dollars upon each fur-seal skin taken and shipped by it from the islands of St. George and St. Paul, and also to pay to said Treasurer the further sum of seven dollars sixty-two and one half cents apiece for each and every fur-seal skin taken and shipped from said islands, . and to secure the sixty thousand dollars rental above referred to" to deposit United States bonds of the face value of fifty thousand dollars; and further "faithfully to obey and *The Secretary was to lease to the best ad-[127] abide by all rules and regulations that the vantage to the United States, and that inSecretary of the Treasury has heretofore or cluded the right to accept an offer of this may hereafter establish or make in pursuance kind; and while the per capita was a part of law concerning the taking of seals on said of the return to the government, it does not islands, and concerning the comfort, morals, follow that the provision for reduction had and other interests of said inhabitants, and reference to anything else than the specified all matters pertaining to said islands and the rental, nor is any other construction comtaking of seals within the possession of the pelled by the fact that the per capita might United States. It also agrees to obey and exceed the rental. Natural causes might diabide by any restrictions or limitations upon minish the catch so that this would not be the right to kill seals that the Secretary of so, and, at all events, the construction of the the Treasury shall adjudge necessary, under words of the statute and contract cannot be the law, for the preservation of the seal fish-controlled by the amount of the reduction eries of the United States; and it agrees that in one view rather than the other. Of course it will not kill, or permit to be killed, so far at the time the lease was made it is evident

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