280 U.S.

306
50 S.Ct. 103
74 L.Ed. 445

WILBUR, Secretary of the Interior,

v.
UNITED STATES ex rel. KRUSHNIC.
No. 63.
Argued Dec. 6, 1929.
Decided Jan. 6, 1930.

The Attorney General and Mr. George C. Butte, of San Juan, Porto Rico,
for petitioner.
[Argument of Counsel from pages 307-310 intentionally omitted]
Messrs. Chester I. Long, of Wichita, Kan., and Langdon H. Larwell and
Charles S. Thomas, both of Denver, Colo., for respondent.
[Argument of Counsel from pages 311-313 intentionally omitted]
Mr. Justice SUTHERLAND delivered the opinion of the Court.

The disposition of this case depends upon the construction and application of
section 2324 R. S. (U. S. C. title 30, 28 (30 USCA 28)), and the effect upon
its provisions of section 37 of the Mineral Leasing Act of February 25, 1920, c.
85, 41 Stat. 437, 451 (U. S. C. title 30, 193 (30 USCA 193)). Section 2324
R. S., which has its origin in section 5 of the Mining Act of 1872 (c. 152, 17
Stat. 91, 92 (30 USCA 28)), provides:

'On each claim located after the 10th day of May, 1872, and until a patent has
been issued therefor, not less than $100 worth of labor shall be performed or
improvements made during each year. * * * and upon a failure to comply with
these conditions, the claim or mine upon which such failure occurred shall be
open to relocation in the same manner as if no location of the same had ever
been made, provided that the original locators, their heirs, assigns, or legal
representatives, have not resumed work upon the claim after failure and before

such location.'
3

By section 2325, R. S. (U. S. C. title 30, 29 (30 USCA 29)), provision is

made for issuing patents for claims located under the mining laws. One of the
prerequisites, and the only one in respect of labor, is that the claimant must
show 'that $500 worth of labor has been expended or improvements made upon
the claim by himself or grantors.'

The Leasing Act of 1920 (41 Stat. 437) effected a complete change of policy in
respect of the disposition of lands containing deposits of coal, phosphate,
sodium, oil, oil shale, and gas. Such lands were no longer to be open to location
and acquisition of title, but only to lease. But section 37 (U. S. C. title 30, 193
(30 USCA 193)) contains a saving clause protecting 'valid claims existent at
date of the passage of this Act and thereafter maintained in compliance with the
laws under which initiated,' and declaring that they 'may be perfected under
such laws, including discovery.'

On October 1, 1919, respondent and seven associates, all qualified under the
law, located a tract of land in Garfield county, Colo., under the name of Spad
No. 3 placer claim. The land contained valuable deposits of oil shale, and was
open to appropriation under the mining laws of the United States. Spad No. 3
placer claim formed one of a group of six oil placer claims, numbered Spad No.
1, 2, 3, 4, 5, and 6, respectively, all located and owned by the same persons,
and lying adjacent to each other. The assessment year 1920, at act of Congress,
was extended until July 1, 1921. Prior to that date, annual labor amounting in
value, it was asserted, to more than $600 was performed on claims numbered 4,
5, and 6, with the intention that said labor should apply to the entire group.

Subsequently, respondent acquired the interest of his colocators in the Spad No.
3, and, during and for the assessment year 1921, performed thereon assessment
labor of an admitted value of more than $100, and continued to perform labor
and make improvements on the claim until the aggregate value exceeded $500.
On September 25, 1922, he applied for a patent, and, having complied with the
statutory requirements and paid the purchase price, obtained final receiver's
receipt on December 16, 1922. No relocation of the claim was ever attempted,
nor was the valid existence or maintenance of the claim ever challenged in any
wise by the United States, or by any one, prior to the issue of the receiver's
receipt. Thereafter, a proceeding against the entry was instituted by the
Commissioner of the General Land Office; and that officer, after consideration,
held the claim null and void upon the sole ground of insufficient assessment
labor for the year 1920. This holding was affirmed by the Secretary of the
Interior.

In all the proceedings before the land officers amd the Secretary, it was
conceded, as it is here conceded, that the claim was valid and existent when the
Leasing Act was passed; and that no reason existed, or now exists, for
withholding a patent, save the alleged failure of assessment labor for the
assessment year 1920. The Secretary held that by such failure all rights to the
claim became extinguished and could not be saved or revived by a resumption
of work.

Thereupon, respondent applied by petition to the Supreme Court of the District

of Columbia for a writ of mandamus to compel the Secretary to issue a patent to
the claim. After a hearing on rule to show cause, that court discharged the rule
and dismissed the petition. Upon appeal this judgment was reversed by the
Court of Appeals for the District. 58 App. D. C. 332, 30 F.(2d) 742.

Two questions are presented for determination: (1) Did the Leasing Act of 1920
have the effect of extinguishing the right of the locator, under section 2324 (30
USCA 28), to save his claim under the original location by resuming work
after failure to perform annual assessment labor? (2) Is the case a proper one
for the writ of mandamus?

10

1. The rule is established by innumerable decisions of this Court, and of state

and lower federal courts, that, when the location of a mining claim is perfected
under the law, it has the effect of a grant by the United States of the right of
present and exclusive possession. The claim is property in the fullest sense of
that term; and may be sold, transferred, mortgaged, and inherited without
infringing any right or title of the United States. The right of the owner is
taxable by the state; and is 'real property,' subject to the lien of a judgment
recovered against the owner in a state or territorial court. Belk v. Meagher, 104
U. S. 279, 283, 26 L. Ed. 735; Manuel v. Wulff, 152 U. S. 505, 510-511, 14 S.
Ct. 651, 38 L. Ed. 532; Elder v. Wood, 208 U. S. 226, 232, 28 S. Ct. 263, 52 L.
Ed. 464; Bradford v. Morrison, 212 U. S. 389, 29 S. Ct. 349, 53 L. Ed. 564.
The owner is not required to purchase the claim or secure patent from the
United States; but, so long as he complies with the provisions of the mining
laws, his possessory right, for all practical purposes of ownership, is as good as
though secured by patent. While he is required to perform labor of the value of
$100 annully, a failure to do so does not ipso facto forfeit the claim, but only
renders it subject to loss by relocation. And the law is clear that no relocation
can be made if work be resumed after default and before such relocation.

11

Prior to the passage of the Leasing Act, annual performance of labor was not
necessary to preserve the possessory right, with all the incidents of ownership
above stated, as against the United States, but only as against subsequent

relocators. So far as the government was concerned, failure to do assessment

work for any year was without effect. Whenever $500 worth of labor in the
aggregate had been performed, other requirements aside, the owner became
entitled to a patent, even though in some years annual assessment labor had
been omitted. P. Wolenberg et al., 29 L. D. 302, 304; Nielson v. Champagne
Mining and Milling Co., 29 L. D. 491, 493.
12

It being conceded that the Spad No. 3 'was a valid claim existent on February
25, 1920,' the only question is whether, within the terms of the excepting clause
of section 37 (30 USCA 193), the claim was 'thereafter maintained in
compliance with the laws under which initiated.' These words are plain and
explicit, and we have only to expound them according to their obvious and
natural sense.

13

It is not doubted that a claim initiated under section 2324, R. S., could be
maintained by the performance of annual assessment work of the value of
$100; and we think it is no less clear that, after failure to do assessment work,
the owner equally maintains his claim, within the meaning of the Leasing Act,
by a resumption of work, unless at least some form of challenge on behalf of
the United States to the valid existence of the claim has intervened; for as this
court said in Belk v. Meagher, supra, at page 283 of 104 U. S., 26 L. Ed. 735:
'His rights after resumption were precisely what they would have been if no
default (that is, no default in the doing of assessment labor) and occurred.'
Resumption of work by the owner, unlike a relocation by him, is an act not in
derogation, but in affirmance, of the original location; and thereby the claim is
'maintained' no less than it is by performance of the annual assessment labor.
Such resumption does not restore a lost estate (see Knutson v. Fredlund, 56
Wash. 634, 639, 106 P. 200); it preserves an existing estate. We are of opinion
that the Secretary's decision to the contrary violates the plain words of the
excepting clause of the Leasing Act.

14

2. While the decisions of this Court exhibit a reluctance to direct a writ of

mandamus against an executive officer, they recognize the duty to do so by
settled principles of law in some cases. Lane v. Hoglund, 244 U. S. 174, 181,
37 S. Ct. 558, 560, 61 L. Ed. 1066, and cases cited. In Roberts, Treasurer, v.
United States, 176 U. S. 221, 231, 20 S. Ct. 376, 379, 44 L. Ed. 443, referred to
and quoted in the Hoglund Case, this Court said:

15

'Every statute to some extent requires construction by the public officer whose
duties may be defined therein. Such officer must read of law, and he must
therefore, in a certain sense, construe it, in order to form a judgment from its
language what duty he is directed by the statute to perform. But that does not

necessarily and in all cases make the duty of the officer anything other than a
purely ministerial one. If the law direct him to perform an act in regard to
which no discretion is committed to him, and which, upon the facts existing, he
is bound to perform, then that act is ministerial, although depending upon a
statute which requires, in some degree, a construction of its language by the
officer. Unless this be so, the value of this writ is very greatly impaired. Every
executive officer whose duty is plainly devolved upon him by statute might
refuse to perform it, and when his refusal is brought before the court he might
successfully plead that the performance of the duty involved the construction of
a statute by him, and therefore it was not ministerial, and the court would on
that account be powerless to give relief. Such a limitation of the powers of the
court, we think, would be most unfortunate, as it would relieve from judicial
supervision all executive officers in the performance of their duties, whenever
they should plead that the duty required of them arose upon the construction of
a statute, no matter how plain its language, nor how plainly they violated their
duty in refusing to perform the act required.'
16

See, also, Ballinger v. United States ex rel. Frost, 216 U. S. 240, 250, 30 S. Ct.
338, 54 L. Ed. 464.

17

In this case, the Secretary interpreted and applied a statute in a way contrary to
its explicit terms, and in so doing departed from a plain official duty. A writ of
mandamus should issue directing a disposal of the application for patent on its
merits, unaffected by the temporary default in the performance of assessment
labor for the assessment year 1920; and that further proceedings be in
conformity with the views expressed in this opinion as to the proper
interpretation and application of the excepting clause of the Leasing Act of
February 25, 1920 (30 USCA 193) and of section 2324, Revised Statutes of
the United States (30 USCA 28). A writ in that form follows the precedent
established by this Court in respect of the writ of injunction in Payne v. Central
Pac. Ry. Co., 255 U. S. 228, 238, 41 S. Ct. 314, 65 L. Ed. 598, and Payne v.
New Mexico, 255 U. S. 367, 373, 41 S. Ct. 333, 65 L. Ed. 680, as being better
suited to the occasion than that indicated by the District Court of Appeals. As
so modified, the judgment of that court is

18

Affirmed.