The act of congress on this subject is perhaps open to the criticism that it attempts to deprive a person of property without due process of law. Ordinarily, forfeitures may only be adjudged by courts of competent jurisdiction, after a full investigation as to the facts.* It might be held that the act contemplates, after the failure on the part of the co-owner to comply with the forfeiture notice, the institution of a judicial action for the purpose of adjudging a forfeiture. In any event, as was said by Judge De Witt, speaking for the supreme court of Montana, the statute must be strictly construed." If compliance with the provisions of the act of congress is insufficient to divest the title of the co-owner, we do not see how the state may supplement it by laws which do not contemplate the institution of judicial proceedings. If the federal law is sufficient, there is no necessity for state legislation. We do not think that this subject is within the legitimate scope of state or territorial legislation. A state might create a lien in favor of the co-owner who pays more than his proportion of the annual expenditures, and authorize proceedings to foreclose that lien; but to sanction a forfeiture through the method of ex parte proceedings is repugnant to the spirit of the law. It may be accomplished under the federal law. But we deny the right of the state to legislate, except within the lines herein suggested. 'Mills' Annot. Stats., § 3137. * Laws of 1897, p. 103, § 11; Comp. Laws of Nevada (1900), § 218. Rev. Stats., § 2324. Schulenberg v. Harriman, 21 Wall. 44; Hammer v. Garfield M. and M. Co., 130 U. S. 291, 9 Sup. Ct. Rep. 548; King v. Mullen, 171 U. S. 420, 18 Sup. Ct. Rep. 925; Pennoyer v. Neff, 95 U. S. 714, 733. Brundy v. Mayfield, 15 Mont. 201, 208, 38 Pac. 1067. ♦Id., 15 Mont. 201, 206, 38 Pac. 1067. See, also, Turner v. Sawyer, 150 U. S. 578, 585, 14 Sup. Ct. Rep. 192; post, § 646. (7) Specifying the character of deposits which may be located under the placer laws.— Montana.1 While all the substances named in the Montana act fall within the definition of the term "mineral," as we understand it,2 making legislation of this character unnecessary, yet the state has no right by its legislature to construe federal laws. A provision like the foregoing would be eminently proper in a congressional law, and if enlarged and adopted by congress, it would have the effect of removing the ambiguities and uncertainties now existing. But we cannot understand how it is within the power of a state to dictate to the national government what substances it shall dispose of under its mineral laws. - 252. Drainage, easements, and rights of way for mining purposes. By section twenty-three hundred and thirty-eight of the Revised Statutes, it is enacted, that "As a condition of sale, in the absence of necessary legislation by congress, the local legislation of any "state or territory may provide rules for working mines, involving easements, drainage, and other necessary means to their complete development, and those "conditions shall be fully expressed in the patent." 66 Arizona, Colorado, and Wyoming have enacted laws providing for and regulating drainage of mines; and in the following territories and states we find local legislation prescribing methods of obtaining easements 1 Gold or other deposit of minerals, including building-stone, limestone, marble, clay, sand, and other mineral substances having a commercial value. Pol. Code, 1895, § 3610. $ Ante, § 98. Rev. Stats., 1887, §§ 2352-2357; Id. (1901), §§ 3252-3257. Rev. Stats. of Wyoming (1899), § 2535. and rights of way for mining purposes and providing for condemnation proceedings: This class of legislation, in the states at least, is not, strictly speaking, supplemental to the federal law. It is more in the nature of independent legislation, the validity and operative force of which is to be determined from a consideration of the limitation upon legislative action prescribed by the organic laws of the respective states. In the case of The People ex rel. Aspen M. and S. Co. v. District Court, considered by the supreme court of Colo 'Laws of 1881, p. 167; Rev. Stats. (1887), p. 314; Id. (1901), § 2445, subd. 5. Code Civ. Proc., as amended, 1895, § 1238. 3 Mills' Annot. Stats., § 3158. Acts 1877, 1881; Rev. Stats., 1887, §§ 3130-3142; Civ. Code (1901), §§ 2572-2574. As to mining tunnels: Id., §§ 3575-3578. Pol. Code, 1895, §§ 3630-3640; Code Civ. Proc., § 2211; Laws of 1899, p. 125 (subds. 4 and 5). And see Glass v. Basin M. and C. Co., 22 Mont. 151, 55 Pac. 1047. 6 Comp. Laws, § 120; Stats. 1887, pp. 102, 103, §1; Comp. Laws (1900), § 281. 'Comp. Laws (1897), §§ 2328-2336. Comp. Laws of Dak., 1887, §§ 2016-2028; Rev. Codes N. D., 1899, § 5956 (subds. 4 and 5). Comp. Laws of Dak. (1887), §§ 2016-2028; Grantham's Annot. Stats. S. D. (1899), §§ 2674-2686. 10 Laws of 1896, p. 316; Rev. Stats., § 3588, as amended-Laws of 1901, p. 19. "Laws of 1897, p. 95; Ballinger's Annot. Codes and Stats., § 4282; Laws of 1899, p. 261. 12 Laws of 1888, p. 84, § 5; Rev. Stats. of Wyoming (1899), §§ 2536, 3059; Rev. Stats. (1887), § 525. Lindley on M.-29 rado,1 it was urged that section twenty-three hundred and thirty-eight of the Revised Statutes imposed upon mineral lands acquired under the mining laws conditions which could not be ignored by the states; that they amounted practically to a burden charged upon the land and a limitation of the estate conveyed. Therefore, that these provisions were above and beyond state legislation upon the subject of eminent domain; that the state could not by its constitution abridge or curtail the privileges sanctioned by the law of congress; and that the doctrine of public "utility" in no way controlled this class of easements. The contention, however, was not sustained. The supreme court of Colorado was of the opinion that, so far as the territories were concerned, congress might authorize the organization of a local government, with authority to enact laws, or it might legislate directly for the government of the territory. But upon the admission of a territory into the union as a sovereign state, the right of local self-government passes to the state. The power of legislation thereafter resides in the people of the state, and is absolute and uncontrolled save as to the enumerated powers reserved to the national government by the federal constitution and the restraints upon state legislation imposed by that instrument. Other limitations upon the powers of the legislative department of a state are to be found in the state constitution. One of the powers of state sovereignty which may be exercised in the regulation and control of private property is termed the right of eminent domain. The exercise of this power within the states by the federal government extends only to appropriations by the United States for sites for post-offices, court-houses, '11 Colo. 147, 17 Pac. 298. See, also, Woodruff v. North Bloomfield G. M. Co., 18 Fed. 774, 775. forts, arsenals, light-houses, custom-houses, and other public uses. "The foregoing principles," said the supreme court of Colorado, "declaratory of the sovereign powers "pertaining to the federal and state governments re"spectively, do not sustain the broad proposition of "counsel that congress may ignore state constitutions "and authorize local legislatures, regardless of state "constitutions, to pass laws providing rules for the "working of mines and involving easements upon min"eral lands. It is the solemn duty of the courts of a "state to enforce the state constitution as the paramount "law, whenever an act of the state legislature is found "to be clearly in conflict therewith. Assuming that the "state constitution is a valid instrument, the authority of congress to authorize the state legislature to pass "laws upon any subject in conflict therewith cannot "be admitted. But congress has not assumed to exer"cise such a power. The rules and easements intended 66 to be authorized by the fifth section of the congres"sional act of July 26, 1866,1 were evidently such as "should be enacted in accordance with the fundamental "law of the state or territory. Considered with refer"ence to the territories, the section is unobjectionable in any view of the question, since, as we have seen, the power of congress to govern them is absolute. "As applicable to state governments, the provision may "be regarded as authorizing them to supplement the "act of congress with necessary and proper rules and "requirements, to be observed by citizens who have "availed or might avail themselves of the privilege . given to explore, occupy, and mine the mineral lands "of the public domain with a view to acquiring title "thereto. In so far as the provisions of the act may "be regarded as conferring power upon the state legis"lature, to regulate the manner of using and operating "mining claims, with a view to the protection of the "rights of the several claimants, and to render avail"able their respective locations, by imposing restraints on the mode of operating and using them, including Now embodied in § 2338, Rev. Stats. |