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by himself and J. L. Lasater, by giving his own note in renewal thereof, would not uphold a recovery from the bank on account of usurious interest in the former note. Brown v. Marion National Bank, 169 U. S. 416. The payment contemplated by the statute is an actual payment, and not a further promise to pay, and was not made until the bank, in June, 1901, received its money. Prior to the renewal by A. M. Lasater, in October, 1900, there were only two or three small cash payments on the indebtedness.
We shall not stop to inquire whether J. L. Lasater can avail himself of the final payment made by A. M. Lasater. The Court of Appeals held that he could, reaching this conclusion on the authority of cases like Hough v. Horsey, 36 Maryland, 184; Richardson v. Baker, 52 Vermont, 617, to the effect that the grantee of mortgaged property, who in consideration of the purchase agrees to pay off the mortgage, cannot raise the question of usury, that being a personal right of the original debtor.
The Court of Appeals also held that the claim for usurious interest was one which survived the death of the person in •whom the right of action was vested, and under the laws of Texas a part of his estate, and consequently one that could be sold and bought like any other chose in action. If so, that claim passed to the trustee in bankruptcy under section 70 of the bankrupt law, which, in describing the property passing to the trustee, names “property which prior to filing of the petition he could by any means have transferred."
The question then presented is whether this right of action having once passed to the trustee in bankruptcy was retransferred to J. L. Lasater upon the termination of the bankruptcy proceedings, he having returned no assets to his trustee, and having failed to notify him or the creditors of this claim for usury, and beginning this action within less than two months after the final discharge of the trustee. We have held that trustees in bankruptcy are not bound to accept property of an onerous or unprofitable character, and that they have a
reasonable time in which to elect whether they will accept or not. If they decline to take the property the bankrupt can assert title thereto. American File Company v. Garrett, 110 U. S. 288, 295; Sparhawk v. Yerkes, 142 U. S. 1; Sessions v. Romadka, 145 U. S. 29; Dushane v. Beall, 161 U. S. 513. But that doctrine can have no application when the trustee is ignorant of the existence of the property and has had no opportunity to make an election. It cannot be that a bankrupt, by omitting to schedule and withholding from his trustee all knowledge of certain property, can, after his estate in bankruptcy has been finally closed up, immediately thereafter assert title to the property on the ground that the trustee had never taken any action in respect to it. If the claim was of value (as certainly this claim was according to the judgment below) it was something to which the creditors were entitled, and this bankrupt could not, by withholding knowledge of its existence, obtain a release from his debts and still assert title to the property. The judgment of the Court of Civil Appeals is reversed, and
the case remanded to that court for further proceedings not inconsistent with this opinion.
BUTTE CITY WATER COMPANY v. BAKER.
ERROR TO THE SUPREME COURT OF THE STATE OF MONTANA.
No. 109. Argued December 16, 1904.-Decided January 3, 1905.
While the disposal of the public lands is made through the exercise of leg
islative power entrusted to Congress by the Constitution, yet Congress prescribing the main and substantial conditions thereof may rightfully entrust to local legislatures the determination of those minor matters as to
such disposal which amount to mere regulations. Regulations made by the local legislatures in regard to the location of min
Argument for Plaintiff in Error.
196 U. 8.
ing claims which are not in conflict with the Constitution and laws of the United States are not invalid as an exercise of a power which cannot be delegated by Congress and such regulations must be complied with in order to perfect title and ownership under the mining laws of the United
States. Even if doubts exist were the matter wholly res integra, and although con
sequences may not determine a decision, this court will pause before declaring invalid legislation long since enacted, and the validity whereof has been upheld by state courts and recognized by this court, and on the faith of which property rights have been built up and countless titles rest which
would be unsettled by an adverse decision. The regulations contained in g 3612 of the Montana Code are not invalid
as being too stringent and therefore in conflict with the liberal purpose manifested by Congress in its legislation respecting mining claims.
The facts are stated in the opinion.
Mr. L. Orvis Evans, with whom Mr. W. W. Dixon was on the brief, for plaintiff in error:
Congress cannot delegate to a State the authority to legislate upon the sufficiency of records of location of mining claims, that being one of the steps in the disposition of public lands. Mares v. Dillon, 75 Pac. Rep. 963.
Congress is vested with authority to regulate the disposal of the public lands. Sec. 3, Art. IV, Const. U. S.; Pollard v. Hagan, 3 How. 224; De Lima v. Bidwell, 182 U. S. 197; Jourdan v. Barrett, 4 How. 169, 185; Russell v. Lowth, 18 Am. Rep. 389; United States v. Hughes, 11 How. 552, 568; United States v. Gratiot, 14 Pet. 526, 537; United States v. Fitzgerald, 15 Pet. 407, 421; 2 Story on Const. § 1328; 2 Tucker on Const. 605.
Not only is the power of disposition in Congress, but the States have no authority whatever in the matter. Irvine v. Marshall, 20 How. 558; Wilcox v. Jackson, 13 Pet. 498; Gibson v. Choteau, 13 Wall. 92, 104; Seymour v. Sanders, 3 Dill. 437; Russell v. Louth, 21 Minnesota, 167; Miller v. Little, 47 California, 348; l'an Brocklin v. Anderson, 117 U. S. 151, 167; Cross v. Harrison, 16 How. 164; Headley v. Coffman, 56 N. W. Rep. 701; Chapman v. Quinn, 56 California, 266, 292; Kissell v. St. Louis, 18 How. 19.
Argument for Defendant in Error.
Congress has no right to delegate that power. The Constitution does not give it the authority to delegate it. A legislative body has no power of delegation in the matter of making laws. Cooley Const. Lim., 6th ed., 137; Field v. Clark, 143 U. S. 649; Wayman v. Southard, 10 Wheat. 48; Re Rahrer, 140 U. S. 545.
Congress never has delegated, or attempted to delegate, to the State, the authority claimed to have been exercised.
If Congress did delegate the authority to the State, the act of the State, the agent, becomes the act of the National Government, the principal, and is to be finally construed by this court.
Submitted by Mr. Robert B. Smith and Mr. J. E. Healy for defendant in error:
So long have state and local regulations been recognized, either expressly or by implication in this court, that they have become a rule of property under which mining titles have been perfected and under which rights have grown up.
The statutes of the United States, $$ 2322, 2323, 2324, Rev. Stat., give full recognition to local and state rules and regulations, seemingly recognizing that under mining laws everywhere such local rules have ever existed where mining has been carried on. Lindley on Mines, 2d ed. $$1 to 25; O'Donnell v. Glenn, 19 Pac. Rep. 305; Baker v. Water Company, 72 Pac. Rep. 617; Jackson v. Roby, 109 U. S. 440; Erhardt v. Boaro, 113 U. S. 527; Shoshone Mining Co. v. Rutter, 177 U. S. 505; Telluride Co. v. Railway Co., 175 U. S. 639; De Lamar Co. v. Nesbitte, 177 U. S. 524; Speed v. MacCarthy, 181 U. S. 275; Blackburn v. Portland Mining Co., 175 C. S. 571.
The act of Montana of July 1, 1895, was modeled after the Colorado law in the main, and was not adopted in Montana very long before it was copied in Nevada. Sisson v. Sommers, 55 Pac. Rep. 829; Purdum v. Laddin, 59 Pac. Rep. 153.
MR. JUSTICE BREWER delivered the opinion of the court.
This was an action of ejectment brought in the District Court of Silver Bow County, Montana. The dispute was between two locations of the same mining ground. The defendant's location was adjudged invalid by the trial court, and its decision was affirmed by the Supreme Court of the State, on the ground of a failure to comply with certain Montana statutes. 28 Montana, 222. These statutes contained regulations concerning the location of mining claims in addition to those prescribed by Congressional legislation, and the question is as to the validity of those additional requirements.
Section 2319, Rev. Stat., provides that “All valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States."
Section 2322 gives to the locators the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, “so long as they comply with the laws of the United States, and with State, Territorial, and local regulations not in conflict with the laws of the United States governing their possessory title.”
Section 2324 contains this grant of authority:
“Sec. 2324. The miners of each mining district may make regulations not in conflict with the laws of the United States, or with the laws of the State or Territory in which the district is situated, governing the location, manner of recording, amount of work necessary to hold possession of a mining claim, subject to the following requirements: The location must be distinctly marked on the ground so that its boundaries can