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from the decision of the court, to rightly possess. If it appears from the decision of the court that several parties are entitled to separate and different portions of the claim, each party may pay for his portion of the claim, with the proper fees, and file the certificate and description by the surveyor general, whereon the register shall certify the proceedings and judgment roll to the Commissioner of the General Land Office, as in the preceding case, and patents shall issue to the several parties according to their respective rights. Nothing herein contained shall be construed to prevent the alienation of the title conveyed by a patent for a mining claim to any person whatever."

This section plainly recognizes that one who, pursuant to other provisions of the Revised Statutes, has initiated a right to a mining claim, has recorded his location notice and performed the other acts made necessary to entitle to a patent, and who makes application for the patent, publishing the statutory notice, will be entitled to a patent for the land embraced in the location notice, unless adverse rights are set up in the mode provided in the section. Thus clearly providing that if there be a senior locator possessed of paramount rights in the mineral lands for which a patent is sought, he may abandon such rights and cause them in effect to enure to the benefit of the applicant for a patent by failure to adverse, or, after adversing, by failure to prosecute such adverse.

It cannot be denied that under section 2326, if before abandonment or forfeiture of the Levi P. claim, the owners of the Uhlig locations had applied for a patent, and the owners of the Levi P. had not adversed the application, upon an establishment of a prima facie right in the owners of the Uhlig claims, an indisputable presumption would have arisen that no conflict claims existed to the premises described in the location notice. Gwillim v. Donnellar, 115 U. S. 45, 51. And the same result would have arisen had the owner of the Levi P. adversed the application for a patent based upon the Uhlig locations and failed to prosecute and waived such adverse claim.

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In both of the supposed instances the necessary consequence would have been to conclusively determine in favor of the applicant, so far as the rights of third persons were concerned, that the land was not unoccupied public land of the United States, but, on the contrary, as to such persons, from the time of the location by the applicant for the patent, was land embraced within such location and not subject to be acquired by another person. And this result, flowing from the failure of the owner of a subsisting senior location to adverse an application for patent by the owner of an opposing location, or his waiver if an adverse claim is made, must, as the greater includes the lesser, also arise from the forfeiture of the claim of the senior locator before an application for patent is made by the conflicting locator and the consequent impossibility of the senior locator to successfully adverse after the forfeiture is complete.

Of course, the effect of the construction, which we have thus given to section 2326 of the Revised Statutes, is to cause the provisions of that section to qualify sections 2319 and 2324, thereby preventing mineral lands of the United States, which have been the subject of conflicting locations, from becoming quoad the claims of third parties, unoccupied mineral lands, by the mere forfeiture of one of such locations.

In text books (Barringer and Adams, Law of Mines and Mining of the United States, p. 306; Lindley on Mines, 2d ed., pp. 650, 651) statements are found which seemingly indicate that in the opinion of the writers, on the forfeiture of a senior mining location, quoad a junior and conflicting location, the area of conflict becomes in an unqualified sense unoccupied mineral lands of the United States without enuring in any way to the benefit of the junior location. But, in the treatises referred to, no account is taken of the effect of the express provisions of Rev. Stat. section 2326. Moreover, when the cases to which the text writers referred, as sustaining the statements made, are examined, it will be seen that they were decided either before the passage of the adverse claim statutes

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of 1872, or concerned controversies between the senior and junior locators or depended upon the provisions of state statutes. How far such statutes would be controlling, we are not called upon to say, as it is not claimed that there is any statute in Utah in any way modifying the express provisions of section 2326.

As the issue raised by the complaint in this action concerned only the conflict areas and on the trial the invalidity of the Uhlig locations, in respect to the premises in dispute, was attempted to be established solely by proof that the Levi P. was an antecedent location and embraced the grounds in conflict, it follows, from the opinion which we have expressed, that at the time when Smith located the Yes You Do claim as a relocation of the Levi P. claim the land embraced within the location notices of the Uhlig claims, and upon which the Yes You Do overlapped, was not unoccupied mineral lands of the United States, and was consequently not subject to be relocated by Smith, even under the mere hypothesis which we have indulged in, that, as a deputy mineral surveyor, he was not debarred from making the location. For this reason the judgment of the Supreme Court of Utah was right, and it must therefore be

MR. JUSTICE BREWER concurs in the result.

MR. JUSTICE MCKENNA dissents.

Affirmed.

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CUNNIUS, NOW SMITH, . READING SCHOOL DISTRICT.

ERROR TO THE SUPREME COURT OF THE STATE OF PENNSYLVANIA.

No. 165. Argued March 6, 1905.-Decided May 29, 1905.

That the Fourteenth Amendment does not deprive the States of their police power over subjects within their jurisdiction is elementary; and, in determining the validity of a statute, the question before the court is not the wisdom of the statute but whether it is so beyond the scope of the municipal government as to amount to a want of due process of law. The right to regulate concerning the estate or property of absentees is an attribute, which in its very essence belongs to all governments, to the end that they may be able to perform the purposes for which government exists, and in the absence of restrictions, in its own constitution, none of which exists in the State of Pennsylvania, is within the scope of of a state government; nor does the exercise of this power violate the Fourteenth Amendment by depriving the absentee of his property without due process of law in case he is alive when the proceedings are initiated.

Where the provisions of a state statute for administration on the assets of an absentee are reasonable as to the period of absence necessary to create the presumption of death, and create proper safeguards for the protection of his interests in case the absentee should return, it does not violate the due process clause of the Fourteenth Amendment, because it deprives the absentee of his property without notice.

The Pennsylvania statute of 1885, Public Laws, p. 155, providing for the administration of the property of persons absent, and unheard of, for seven or more years, is a valid enactment and is not repugnant to the Fourteenth Amendment because it deprives the absentee of his property without due process of law.

THE legislature of Pennsylvania, in 1885, adopted a law "relating to the grant of letters of administration upon the estates of persons, presumed to be dead, by reason of long absence from their former domicil." Briefly, and in substance, the act provided that upon application made to the register of wills for letters of administration upon the estate of any person supposed to be dead on account of absence for

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seven or more years from the place of his last domicil within the State, the register of wills shall certify the application to the orphans' court, and that said court, if satisfied that the applicant would be entitled to administration if the absentee were in fact dead, shall cause the fact of the application to be advertised in a newspaper published in the county once a week for four successive weeks, giving notice that on a day stated, which must be two weeks after the last publication, evidence would be heard by the court concerning "the alleged absence of the supposed decedent and the circumstances and duration thereof." After providing for a hearing in the orphans' court, the statute empowers that court, if satisfied by the proof that the legal presumption of death is made out, to so decree and cause a notice to be inserted for two successive weeks in a newspaper published in the county, and also, when practicable, in a newspaper published at or near the place beyond the State where, when last heard from, the supposed decedent had his residence. This notice requires the absentee, if alive, or any other person for him, to produce to the court, within twelve weeks from the date of the last insertion of the notice, satisfactory evidence of the continuance in life of the absentee. If, within the period of twelve weeks, evidence is not produced to the court that the absentee is alive, the statute makes it the duty of the court to order the register of wills to issue letters of administration to the party entitled thereto, and such letters, until revoked, and all acts done in pursuance thereof, and in reliance thereupon, shall be as valid as if the supposed decedent were really dead. Power is further conferred upon the orphans' court to revoke the letters at any time on proof that the absentee is in fact alive, the effect of the revocation being to withdraw all the powers conferred by the grant of administration. But it is provided that—

"All receipts or disbursements of assets, and other acts previously done by him," (the administrator) "shall remain as valid as if the said letters were unrevoked, and the administrator shall settle an account of his administration down to

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