« ForrigeFortsett »
limits of the city of New Orleans, as herein above recited."
the railroad is preparing also to cross from Westwego to the city park, and thence to In stating the purpose of the grant of the Claiborne street. The ordinance then pionew right of way from the point of landing ceeds to provide for arrangements for removat the city park opposite Westwego along ing the market from Claiborne street in order the line of the park over the route indicated, to allow the extension on that street to be the first section in the ordinance declares it built. The argument which is based upon to be given to afford the railroad the "most this ordinance is this, as at the time this practicable route to its designated terminus ordinance was passed, the railroad had east of Carrollton avenue." True it is that crossed from Gouldsboro to Thalia street and in § 6, in referring to the previous obligations established its terminus there, as is recited of the company to establish its terminus, the in the ordinance, hence it is asserted the or words used are that the grantee shall perma-dinance recognizes the fact that the railroad nently establish "its terminus within the was entitled to the extension on Claiborne city limits." But, manifestly, the words "its street despite the fact that it had not estabterminus" as used there refer to its terminus lished its terminus as required by the ordias defined not only in the ordinance in ques-nances from which the right to the extension tion but in the prior ordinances by which the on Claiborne street arose. But this overlooks grant was made. the fact that in the very sentence upon which It being shown by the record that the ter- reliance is placed reference is made to the minus from which the extension along Clai- ordinance giving the corporation the right borne street to Canal was to be made was to build from the city park to the "desig never constructed, and that the crossing from nated" terminus. One portion of the senWestwego to the land in front of the park tence cannot be separated from the other. was also never established, but, on the con- The most that can be said of the argument trary, that the company extended its road advanced, from the text of this ordinance, is down the river to Gouldsboro where it made that it seeks by implication and remote deits main crossing, it needs no reasoning to duction to absolve the company from the demonstrate that the right to the extension obligation imposed upon it when the acces[343 down Claiborne street and the right to the sory right of extension down Claiborne street use of the batture in front of the city park was granted, and thus to enable the company no longer obtains. The claim of the corpora- to retain the incidental right, when it had tion really amounts to this: That, having relieved itself of the obligation upon which had certain accessory rights conferred upon the right rested. It is not to be doubted that it in the event it discharged particular obli- the rule is that contracts are not to be so gations, it can aisregard the obligations, es-violently construed as to destroy rights in cape the burdens resulting therefrom, and yet hold on to all the rights which depended for their existence upon the performance of the obligations which the company has disregarded. The ordinances cannot be properly construed as authorizing an extended track to be built when the point from which the extension was to be made has never come into existence. They cannot be read as dedicating to the use of the *railroad, under the terms of the ordinances, the land in front of the city park, when such use was accorded to the railroad solely to enable it to accomplish a purpose which it has declined to effectuate by carrying its main crossing to another and a far distant point. In reaching these conclusions we are not unmindful of the argument predicated on the supposed effect of ordi-dinance granting the right to cross the river nance numbered 7946, A. S. The title of this ordinance indicates its purpose. It is as follows:
"An ordinance supplementary to ordinances 6695, 6732 and 6938, administration series, granting certain rights to the New Orleans Pacific Railway Company and its assigns, and providing for the selection of a site for the Claiborne market."
consequence of suspensive conditions, but it is also equally obvious that they are not to be so interpreted as to relieve one of the parties to a contract from the obligations resulting therefrom and thereby destroy the suspensive condition plainly written therein. Corporations do not take public grants and privileges by implication, and where express and positive obligations are imposed in making a grant, these obligations cannot, without violating an elementary canon of interpreta tion, be frittered away in consequence of loose implications made by way of reference in subsequent municipal ordinances. The formal contract of lease executed by the city of the batture in front of the city park took its origin from and was sanctioned by the or
from Westwego to the land covered by the lease in order to enable the corporation to carry its tracks from thence to the terminus which it contracted to establish under the original ordinance. It follows, therefore, that the suspensive condition by which the rights of the company under the original ordinance were held in abeyance operates also upon the lease in question.
The mere payment of rent did not change the nature of the suspensive condition or work an estoppel. The right to use the ex-property was limited to the destination stated in the contract. La. Civ. Code, 2711. But this right to use was covered by the suspensive condition, and the contract of lease only evidenced the agreement to use the prop
The preamble of this ordinance recites the two ordinances conferring the right to build the extension on Claiborne street and states this right to be one of maintaining "an tension of its railroad through Claiborne street," and after reciting the fact that the railroad had crossed at Thalia street, and established its terminus there, declares that
far the location may extend in another direc-|S. 222 [38:419]. The locations passed upon
But appellant urges that "those cases are not in point here." We think that they are. The patent in the Flagstaff Case appears to have been the same as here, and besides, whatever the patent here it must be confined to the rights given by the statute which authorizes it.
And after stating that the act of 1872 was more explicit than that of 1866, but the intent of both undoubtedly the same, as it respects lines and side lines, and the right to follow the dip outside of the latter, he proceeded as follows:
"We think that the intent of both statutes is, that mining locations on lodes or veins shall be made thereon lengthwise, in the general direction of such veins or lodes on the surface of the earth where they are discoverable; and that the end lines are to cross the lode and extend perpendicularly downwards, and to be continued in their own direction either way horizontally; and that the right to follow the dip outside of the said lines is based on the hypothesis that the direction of * these lines corresponds substantially with the course of the lode or vein at its apex on or near the surface. It was not the intent of the law to allow a person to make his loca-plication of the same principle. tion crosswise of a vein so that the side lines shall cross it, and thereby give him the right to follow the strike of the vein outside of his said lines. That would subvert the whole system sought to be established by the law. If he does locate his claim in that way his rights must be subordinated to the rights of those who have properly located on the lode. Their right to follow the dip outside of their said lines cannot be interfered with by him. His right to the lode only extends to so much of the lode as his claim covers. If he has located crosswise of the lode, and his claim is only one hundred feet wide, that one hundred feet is all he has a right to. This we consider to be the law as to locations on lodes or veins.
"The location of the plaintiff in error is thus laid across the Titus lode, that is to say, across the course of its apex at or near the surface; and the side lines of the location are really the end lines of the claim, considering the direction or course of the lode at the surface.
"As the law stands, we think the right to follow the dip of the vein is bounded by the end lines of the claim, properly so called; which lines are those which are crosswise of the general course of the vein on the surface. The Spanish mining law confined the owner of a mine to perpendicular lines on every side, but gave him greater or less width according to the dip of the vein. See Rockwell, pp. 56-58 and pp. 274, 275. But our laws have attempted to establish a rule by which each claim shall be so many feet of the vein, lengthwise of its course, to any depth below the surface, although laterally its inclination shall carry it ever so far from a perpendicular. This rule the court below strove to carry out, and all its rulings seem to have been in accordance with it."
This law was followed and applied in Argentine Mining Company v. Terrible Mining Company, 122 U. S. 478 [30: 1140]; and in Iron Silver Mining Company v. Elgin Min. & S. Co. 118 U. S. 196 [30: 98]; King v. Amy & Silversmith Consol. Min. Co. 152 U.
In the Flagstaff Case the lode was claimed, and hence the right to follow it beyond the surface boundaries of the location was claimed. Here the lode is claimed and the right to follow it outside of the surface boundaries, that is, beyond the line f-g to the point . In that case the right contended for was denied on the principle applicable to end and side lines. In this case the right contended for must be denied by the ap
But, appellant asks, admitting for the argument's sake that it (the line g-h) does constitute an end line of the location within the meaning of the law of May 10, 1872, does it constitute the end line of the Contact vein? And in answering the question he says: "The end line of a lode is the boundary line which crosses it regardless of whether it was originally intended as an end line or side line. Four times has this principle been sustained by this court." He then cites the cases we have cited and claims that they "are of course conclusive of this controversy if they are in point."
Under the law of 1866 a patent could be issued for only one vein. 14 Stat. at L. 251. The act of 1872 gave to all locations theretofore made, as well as to those thereafter made, all veins, lodes, and ledges the top or apex of which lie inside of the surface lines. Section 3 of the act, which is also § 2322 of the Revised Statutes, is as follows:
"The locators of all mining locations heretofore made, or which shall hereafter be made, on any mineral vein, lode, or ledge, situated on the public domain, their heirs and assigns, where no adverse claim exists on the tenth day of May, eighteen hundred and seventy-two, so long as they comply with the laws of the United States, and with state, territorial, and local regulations not[306} in conflict with the laws of the United States governing their possessory title, shall have the exclusive right of possession and enjoy. ment of all the surface included within the lines of their locations, and of all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically, although such veins, lodes, or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical side lines of such surface locations. But their right of possession to such outside parts of such veins or ledges shall be confined to such portions thereof as lie between vertical planes drawn downward, as above described, through the end lines of
their locations, so continued in their own di- lies inside of such surface lines extended rection that such planes will intersect such downward vertically,' becomes his by virtue exterior parts of such veins or ledges And of his location, and he may pursue it to any nothing in this section shall authorize the lo-depth beyond his vertical side lines, cator or possessor of a vein or lode which ex- although in so doing he enters beneath the tends in its downward course beyond the surface of some other proprietor; fourth, vertical lines of his claim to enter upon the the only exception to the rule that the end surface of a claim owned or possessed by lines of the location as the locator places another." Act of May 10, 1872, § 3; § 2322, them establish the limits beyond which he U. S. Rev. Stat. may not go in the appropriation of a vein on Appellant's right upon the Contact vein is its course or strike is where it is developed given by this statute. What limits this that, in fact, the location has been placed right extralaterally? The statute says ver- not along but across the course of the vein. tical planes drawn downward through the In such case, the law declares that those end lines of location. What end lines? which the locator called his side lines are his Those of and as determined by the original end lines and those which he called end lines location and lode, the circuit court of appeals are in fact side lines, and this, upon the propdecided. Those determined by the direction osition that it was the intent of Congress to of the newly discovered lodes, regardless give to the locator only so many feet of the 308 whether they were originally intended as length of the vein, that length to be bounded end lines or side lines, the appellant, as we by the lines which the locator has estabhave seen, contends. The court of appeals lished of his location. Our laws have atwas right. Against the contention of ap-tempted to establish a rule by which each pellant. the letter and spirit of the statute oppose, and against it the decisions of this court also oppose.
claim shall be so many feet of the vein, lengthwise of its course, to any depth below the surface, although laterally its inclination The language of the statute is that the shall carry it ever so far from a perpendicu"outside parts" of the veins or ledges "shall lar." Flagstaff Silver Mining Company be confined to such portions thereof as lie Tarbet, 98 U. S. 463-468 [25: 253-255]. between vertical planes drawn downwards These propositions we affirm, with the adthrough the end lines of their loca-dition that the end lines of the original veins tions And Mr. Justice Field, shall be the end lines of all the veins found speaking for the court, said, in Iron Silver within the surface boundaries. Min. Co. v. Elgin Mining & S. Co. 118 U. S. 196-198 [30: 98, 99]:
The appellant contends that by agreement, by acquiescence, and by estoppel the lo-line f-g has become the end line between the two claims.
"The provision of the statute, that the 1807]cator is entitled throughout their entire depth to all the veins, lodes, or ledges, the This contention is attempted to be suptop or apex of which lies inside of the surface ported by (a) A relocation of the New lines of his location, tends strongly to show Years Extension claim by which it is asthat the end lines marked on the ground serted it recognized anu designated the line must control. It often happens that the f-g as the northerly end line of the Providence top or apex of more than one vein lies with-claim. (b) The testimony of the superinin such surface lines, and the veins may have different courses and dips, yet his right to follow them outside of the side lines of the location must be bounded by planes drawn vertically through the same end lines. The planes of the end lines cannot be drawn at a right angle to the courses of all the veins if they are not identical."
The court, however, did not mean that the end lines, called such by the locator, were the true end lines, but those which crosswise of the general course of the vein on the surface."
tendent as to what took place between him and the directors before sinking the Champion shaft, and afterwards between him and a cotenant of complainant (appellant).
(a) The relocation does not in terms recognize the line f-g as the northern end line of the Providence. Its recitals are:
"And whereas, part of this claim as originally described and as hereby relocated conflicts with the rights granted by the let"areters patent of said Providence mine, said Lot No. 40, now, therefore, so much of this claim, both for lode and surface ground, as originally designated, conflicting, or now conflicts, with any portion of the surface or lode, claims or rights granted by said patent, is and are hereby abandoned."
This court in Del Monte Mining Co. v. Last Chance Mining Co., decided at the present term, 171 U. S. 55 [ante, 72], reviewed the cases we have cited, and, speaking for the court, Mr. Justice Brewer said:
"Our conclusion may be summed up in these propositions: First, the location as made on the surface by the locator determines the extent of rights below the surface; second, the end lines, as he marks them on the surface, with the single exception hereinafter noticed, place the limits beyond which he may not go in the appropriation of any vein or veins along their course or strike; third, every vein, the top or apex of which
"Which portion of this claim so abandoned is described as follows: All that portion of the above-described New Years Extension claim for surface and lode which lies south of the northern boundary line of said Providence mine, which runs north 43 degrees, 10 minutes east, across the southeastern corner of this claim."
It will be observed by reference to figure 1 that the northern boundary of the Provi-  dence is not one line, but two lines, and it is
provided shall be liable to seizure and con- | licenses, from fines and forfeitures, fees for
"Sec. 2193. Any merchant, trader, manu-
Section 2196, which corresponded to § 12 of the act of March 12, 1877, was amended by the substitution of the word "control" for the word "central," and read as follows:
"The department of agriculture shall establish an agricultural experiment and fertilizer control station, and shall employ an analyst, skilled in agricultural chemistry. It shall be the duty of said chemist to analyze such fertilizers and products as may be required by the department of agriculture, and to aid as far as practicable in suppressing fraud in the sale of commercial fertilizers. He shall, also, under the direction of said department, carry on experiments on the nutrition and growth of plants, with a view to ascertain what fertilizers are best suited to the various crops of this state; and whether other crops may not be advantageously grown on its soil, and shall carry on such other investigations as the said department may direct. He shall make regular reports to the said department, of all analyses and experiments made, which shall be furnished, when deemed needful, to such newspapers as will publish the same. His salary shall be paid out of the funds of the department of agriculture." The following was substituted for § 2205:  Whenever any manufacturer of fertilizers or fertilizing materials shall have paid the charges hereinbefore provided his goods shall not be liable to any further tax whether by city, town, or county."
Section 2208 remained unamended, and provided: "All moneys arising from the tax on
The various errors assigned question the decree on the grounds, in general, that the court should have held the act of January 21, 1891, to be in violation of the third clause of § 8, and of the second clause of § 10, of article 1 of the Constitution of the United States; that the charge required to be paid was so excessive that the act could not be sustained as a legitimate inspection law; or as a valid exercise of the police power; and that it was neither, because it was not limited to articles produced in the state, and because it did not relate to the health, morals, or safety of the community.
The second clause of § 10 of article 1 of the Constitution reads: "No state shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts, laid by any state on imports or exports, shall be for the use of the Treasury of the United States; and all such laws shall be subject to the revision and control of the Congress.".
The words "imports" and "exports," as
The clause recognized that the inspection
Considered as an inspection law and as not
agriculture received from the charge on fer-laws making any substantial diversion of the
of the latter contention.
By § 2206 of the Code of 1883, the board of agriculture was directed to "appropriate annually, of the money received from the tax on fertilizers, the sum of five hundred dollars for the benefit of the North Carolina Industrial Association, to be expended under the direction of the board of agriculture.”
By chapter 308 of the laws of 1885 (Laws N. Č. 1885, 553), the establishment of an industrial school was provided for, to the establishment and maintenance of which the board was directed by the 4th section to apply their surplus funds, not exceeding $5,000 annually.
money to be derived from the charge on fertilizers of 25 cents per ton, to any other purposes than those connected with the necessary expenses of inspection. It is ingeniously ar gued that as § 6 of chapter 410 of the laws of 1887 repealed by substitution § 4 of chapter 308 of the laws of 1885, the repeal thereof by chapter 348 of the laws of 1891 revived the latter section, and hence that $5,000 of the amount arising from the present charge on fertilizers became appropriated to the industrial school, it being asserted that the funds of the department were in fact derived therefrom; and also that the appropriation out of the state treasury of $500 to the industrial association by chapter 426 of the laws of 1891 was an additional appropriation, and did not repeal § 2206 of the Code, which directed the board of agriculture to appropriate that sum to that association.
By chapter 410 of the laws of 1887 (Laws (352]N. Č. 1887, 718), *the name of the industrial school was changed to "The North Carolina These positions do not commend themCollege of Agriculture and Mechanic Arts,” selves to our judgment. As to the approand the board was required by § 6 to turn priation of $500, we think, under the circumover to that institution annually "the whole stances, that it was intended to be in lieu of residue of their funds from licenses on ferti- the former appropriation of that amount; lizers remaining over and not required to con- and as to the revival of the act of 1885 by the duct the regular work of that department." repeal of the repealing act of 1887, we regard But by chapter 348 of the laws of 1891 the doctrine that the repeal of a repealing (Laws N. C. 1891, 404), the provision last act revives the first act as wholly inapplica above given was stricken out, and by § 5 of ble. In our opinion such a conclusion would the act $10,000 for the year 1891 and $10,000 be opposed to the obvious legislative intenfor the year 1892 were appropriated to the tion in the enactment of the law of 1891. college; and by chapter 426 of the laws of This act imposed a charge of 25 cents per ton 1891 (Laws N. C. 1891, 491) an annual ap-on commercial fertilizers, and the purpose of propriation of five hundred dollars was made the charge was declared to be to defray the to the North Carolina Industrial Association. These appropriations were made from the state treasury, and both acts contained the usual repealing clauses.
By § 2198 and subsequent sections of the act of 1883, the geological survey of the state, the geological museum, the appointment of the state geologist, and matters pertaining thereto, were dealt with, and various expenditures connected therewith were authorized to be paid out of the general fund of the agricultural department, the sources of which were apparently not confined to what might be derived from the license tax in respect of fertilizers.
By chapter 409 of the laws of 1887 (Laws 1887, 714), so much of the sections of the act pertaining to the state geologist as required the department to fix the compensation, to regulate the expenditures, or pay out of their funds the salary and expenses of the state geologist, was repealed.
Section 14 of this act empowered the department to expend from the amount arising from the tax on fertilizers for 1887-88, the expenses for the completion of the oyster survey; but by chapter 338 of the laws of 1891 (Laws 1891, 369), provision was made for defraying the expenses of the regulation of the oyster industries of the state from other sources.
We agree entirely with the circuit court that the legislation of 1891 not only amended the Code in the matter of the requirement of 353]the privilege tax of $500, *but repealed all
expenses of inspection only. The previous laws had imposed a tax of $500 per brand upon every brand and description of fertilizer, and declared the same to be a privilege tax. It is impossible to impute to the gen eral assembly the intention, in repealing parts of the Code which had been declared unconstitutional, to revive earlier laws which might render the amended law liable to the same objections.
Entertaining these views of the legislative intention, it does not appear to us that evidence tending to show that money collected(354) from this source was applied to other than the purposes for which it was received should be entered into on this inquiry into the va lidity of this act. If the receipts are found to average largely more than enough to pay the expenses, the presumption would be that the legislature would moderate the charge. But treating the question whether the charge of 25 cents per ton was shown to be so excessive as to demonstrate a purpose other than that which the law declared, as a judicial question, we are satisfied that comparing the receipts from this charge with the neces sary expenses, such as the cost of analyses, the salaries of inspectors, the cost of tags, express charges, miscellaneous expenses of the department in this connection, and so on, we cannot conclude that the charge is so seriously in excess of what is necessary for the ob jects designed to be effected, as to justify the imputation of bad faith and change the character of the act.