ance as a member of a class to which the act in its reach (New York Central R. R. Co. v. is made to apply.

[2] However, we are clear that the classification cannot be held to be arbitrary and unreasonable. The Supreme Court of Texas in sustaining it said (108 Tex. 110, 111, 185 S. W. 561):

Winfield, 244 U. S. 147, 37 Sup. Ct. 546, 61 L. Ed. 1045, L. R. A. 1918C, 439, Ann. Cas. 1917D, 1139; Erie R. R. Co. v. Winfield, 244 U. S. 170, 37 Sup. Ct. 556, 61 L. Ed. 1057, Ann. Cas. 1918B, 662), and the difficulty that so often arises in determining in particular instances whether the employé was employed in interstate commerce at the time of the injury (see Pedersen v. Del., Lack. & West. R. R., 229 U. S. 146, 151, 152, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153; North Carollna R. R. Co. v. Zachary, 232 U. S. 248, 259, 260, 34 Sup. Ct. 305, 58 L. Ed. 591, Ann. Cas. 1914C, 159; Illinois Central R. R. v. Behrens, 233 U. S. 473, 478, 34 Sup. Ct. 646, 58 L. Ed. 1051, Ann. Cas. 1914C, 163; New York Central R. R. Co. v. Carr, 238 U. S. 260, 263, 35 Sup. Ct. 780, 59 L. Ed. 1298; Pennsylvania Co. v. Donat, 239 U. S. 50, 36 Sup. Ct. 4, 60 L. Ed. 139; Shanks v. Del., Lack. & West. R. R., 239 U. S. 556, 559, 36 Sup. Ct. 188, 60 L. Ed. 436, L. R. A. 1916C, 797; Louisville & Nash. R. R. Co. v. Parker, 242 U. S. 13, 37 Sup. Ct. 4, 61 L. Ed. 119; Erie R. R. Co. v. Welsh, 242 U. s. 303, 306, 37 Sup. Ct. 116, 61 L. Ed. 319; Southern Ry. Co. v. Puckett, 244 U. S. 571, 573, 37 Sup. Ct. 703, 61 L. Ed. 1321, Ann. Cas. 1918B, 69), reasonably may have led the Legislature to the view that it would be unwise to attempt to apply the new system to railroad employés, in whatever kind of commerce employed, and that they might better be left to common-law actions with statu*tory modifications already in force (Vernon's, Sayles' Texas Civ. Stat. 1914, arts. 6640

6652), and such others as experience might

show to be called for.

"Employés of railroads, those of employers having less than five employés, domestic servants, farm laborers and gin laborers are excluded from the operation of the act, but this was doubtless for reasons that the Legislature deemed sufficient. The nature of these several employments, the existence of other laws governing liability for injuries to railroad employés, known experience as to the hazards and extent of accidental injuries to farm hands, gin hands and domestic servants, were all matters no doubt considered by the Legislature in exempting them from the operation of the act. Distinctions in these and other respects between them and employés engaged in other industrial pursuits may, we think, be readily suggested. We are not justified in saying that the classification was purely arbitrary."

[3, 4] There is a strong presumption that a Legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience, and that its discriminations are based upon adequate grounds. The equal protection clause does not require that state laws shall cover the entire field of proper legislation in a single enactment. If one entertained the view that the act might as well

have been extended to other classes of employment, this would not *amount to a constitutional objection. Rosenthal V. New York, 226 U. S. 260, 271, 33 Sup. Ct. 27, 57 L.

Ed. 212, Ann. Cas. 1914B, 71; Patsone v. Pennsylvania, 232 U. S. 138, 144, 34 Sup. Ct. 281, 58 L. Ed. 539; Missouri, Kan. & Texas Ry. v. Cade, 233 U. S. 642, 649, 650, 34 Sup. Ct. 678, 58 L. Ed. 1135; International Harvester Co. v. Missouri, 234 U. S. 199, 215, 34 Sup. Ct. 859, 58 L. Ed. 1276, 52 L. R. A. (N. S.) 525; Keokee Coke Co. v. Taylor, 234 U. S. 224, 227, 34 Sup. Ct. 856, 58 L. Ed. 1288; Miller v. Wilson, 236 U. S. 373, 384, 35 Sup. Ct. 342, 59 L. Ed. 628, L. R. A. 1915F,

829.

The exclusion of farm laborers and domes

tic servants from the compulsory scheme of the New York Workmen's Compensation Act was sustained in New York Central R. R. Co. v. White, 243 U. S. 188, 208, 37 Sup. Ct. 247, 61 L. Ed. 667, L. R. A. 1917D, 1, Ann. Cas. 1917D, 629, upon the ground that the Legislature reasonably might consider that the risks inherent in those occupations were exceptionally patent, simple, and familiar. The same result has been reached by the at-state courts generally. Opinion of Justices, 209 Mass. 607, 610, 96 N. E. 308; Young v. Duncan, 218 Mass. 346, 349, 106 N. E. 1; Hunter v. Colfax Coal Co., 175 Iowa, 245, 287, 154 N. W. 1037, 157 N. W. 145, L. R. A. 1917D, 15, Ann. 'Cas. 1917E, 803; Sayles v. Foley, 38 R. I. 484, 490-492, 96 Atl. 340. Similar reasoning may be applied to cotton gin laborers in Texas; indeed, it was applied to them by the Supreme Court of that state, as we have seen. And the exclusion of domestic servants, farm laborers, casual employés, and railroad employés engaged in interstate commerce was sustained in Mathison v. Minneapolis Street Ry. Co., 126 Minn. 286, 293, 148 N. W. 71, L. R. A. 1916D, 412.

[5] The burden being upon him who tacks a law for unconstitutionality, the courts need not be ingenious in searching for grounds of distinction to sustain a classification that may be subjected to criticism. But in this case adequate grounds are easily dis

cerned. As to the exclusion of railroad employés, the existence of the federal Employers' Liability Act of April 22, 1908, c. 149, 35 Stat. 65 (Comp. St. §§ 8657-8665), as amended by act April 5, 1910, c. 143, 36 Stat. 291, applying exclusively as to employés of common carriers by rail injured while employed in interstate commerce, establishing liability for negligence and exempting from liability in the absence of negligence in all cases with

159

160

The exclusion of employés where not more [ Victor Chemical Works v. Industrial Board, than four or five are under a single employer 274 Ill. 11, 113 N. E. 173, Ann. Cas. 1918B, is common in legislation of this character, 627; Mathison v. Minneapolis Street Ry. Co., and evidently permissible upon the ground 126 Minn. 286, 148 N. W. 71, L. R. A. 1916D, that the conditions of the industry are dif- 412; Shade v. Cement Co., 93 Kan. 257, 144 ferent and the hazards fewer, simpler, and Pac. 249; Sayles v. Foley, 38 R. I. 484, 96 more easily avoided where so few are em- Atl. 340; Greene v. Caldwell, 170 Ky. 571, ployed together; the Legislature, of course, 186 S. W. 648, Ann. Cas. 1918B, 604; Hunter being the proper judges to determine precise- v. Colfax Coal Co., 175 Iowa, 245, 154 N. W. ly where the line should be drawn. Classifi- 1037, 157 N. W. 145, L. R. A. 1917D, 15, Ann. cation on this basis was upheld in Jeffrey Cas. 1917E, 803. The Ohio law was sustained Mfg. Co. v. Blagg, 235 U. S. 571, 576-577, by this court against special attacks in Jef35 Sup. Ct. 167, 59 L. Ed. 364, and has been frey Mfg. Co. v. Blagg, 235 U. S. 571, 576, 35 sustained repeatedly by the state courts. Sup. Ct. 167, 59 L. Ed. 364, and the Iowa State v. Creamer, 85 Ohio St. 349, 404, 405, law in Hawkins v. Bleakly, 243 U. S. 210, 213, 97 N. E. 602, 39 L. R. A. (N. S.) 694; Borg- et seq., 37 Sup. Ct. 255, 61 L. Ed. 678, Ann. nis v. Falk Co., 147 Wis. 327, 355, 133 N. W. Cas. 1917D, 637. 209, 37 L. R. A. (N. S.) 489; Shade v. Cement Co., 93 Kan. 257, 259, 144 Pac. 249; Sayles v. Foley, 38 R. I. 484, 491, 493, 96 Atl. 340.

[6] The discrimination that results from the operation of the *act as between the employés of different employers engaged in the same kind of work, where one employer be comes a subscriber and another does not, furnishes no ground of constitutional attack upon the theory that there is a denial of the equal protection of the laws. That the acceptance of such a system may be made optional is too plain for question; and it necessarily follows that differences arising from the fact that all of those to whom the option is open do not accept it must be regarded as the natural and inevitable result of a free choice, and not as a legislative discrimination. They stand upon the same fundamental basis as other differences in the conditions of employment arising from the variant exercise by employers and employés of their right to agree upon the terms of employment. And see Borgnis v. Falk Co., 147 Wis. 327, 354, 133 N. W. 209, 37 LA R. A. (N. S.) 489; Mathison v. Minneapolis Street Ry. Co., 126 Minn. 286, 294, 148 N. W. 71, L. R. A. 1916D, 412.

In recent years many of the states have passed elective workmen's compensation laws not differing essentially from the one here in question, and they have been sustained by well-considered opinions of the state courts of last resort against attacks based upon all kinds of constitutional objections, including alleged denial of the equal protection of the laws; usually, however, from the standpoint of the employer. Sexton v. Newark District Telg. Co., 84 N. J. Law, 85, 86 Atl. 451; Id., 86 N. J. Law, 701, 91 Atl. 1070; Opinion of Justices, 209 Mass. 607, 96 N. E. 308; Young v. Duncan, 218 Mass. 346, 106 N. E. 1; Borgnis v. Falk Co., 147 Wis. 327;1 State v. Creamer, 85 Ohio St. 349, 97 N. E. 602, 39 L. R. A. (N. S.) 694; Diebeikis v. Link-Belt Co., 261 Ill. 454, 104 N. E. 211, Ann. Cas. 1915A, 241; Crooks v. Tazewell Coal Co., 263 Ill. 343, 105 N. E. 132, Ann. Cas. 1915C, 304; 1133 N. W. 209, 37 L. R. A. (N. S.) 489.

[7] Stress is laid upon the point that the Texas act, while optional to the employer, is compulsory as to the employé of a subscribing employer. Our attention is not called to any express provision prohibiting a voluntary agreement between a subscribing employer and one or more of his employés taking them out of the operation of the act; but probably such an agreement might be held by the courts of the state to be inconsistent with the general policy of the act. The Supreme Court, in the case before us, did not intimate that such special agreements would be permissible; and hence it is fair to assume that all who remain in the employ of a subscribing employer, with notice that he has provided for payment of compensation by the association or by an authorized insurance company, will be bound by the provisions of the act.

But a moment's reflection will show the impossibility of giving an option both to the employer and to the employé and enabling them to exercise it in diverse ways. The provisions of the act show that the legislative purpose is that it shall take effect only upon acceptance by both employer and employé. The former accepts by becoming a subscriber; the latter by remaining in the service of the employer after notice of such acceptance. And we see in this no ground for holding that there is a denial of the equal protection of the laws as between employer and employé. They stand in different relations to the common undertaking, and it was permissible to recognize this in determining how they should accept or reject the new system. The employer provides the plant, the organization, the capital, the credit, and necessarily must control and manage the operation. In the nature of things his contribution has less mobility than that of the employé, who may go from place to place. seeking *satisfactory employment, while the employer's plant and business are comparatively, even if not absolutely, fixed in position. Again, in order that the new scheme of compensation should be a success, the Legislature deemed it proper, if not essential, that

the payment of compensation to the injured | rules of conduct, are subject to legislative employés or their dependents should be ren- modification. And a plan imposing upon the dered secure, and the losses to individual em- employer responsibility for making compenployers distributed, by a system of compensation for disabling or fatal injuries irresation insurance, in which it was deemed im- spective of the question of fault, and requirportant that all employés of a given employer ing the employé to assume all risk of damshould be treated alike. Still further there ages over and above the statutory schedule, are reasons affecting the contentment of the when established as a reasonable substitute employés and the discipline of the force, ren- for the legal measure of duty and responsidering it desirable that all serving under a bility previously existing, may be made comcommon employer should be subject to a pulsory upon employés as well as employers. single rule as to compensation in the event N. Y. Central R. R. Co. v. White, 243 U. S. of injury or death arising in the course of 188, 198-206, 37 Sup. Ct. 247, 61 L. Ed. 667, the employment. These and other consider- L. R. A. 1917D, 1, Ann. Cas. 1917D, 629; ations that might be suggested fully justified Mountain Timber Co. v. Washington, 243 U. the legislative body of the state in determin- S. 219, 234, 37 Sup. Ct. 260, 61 L. Ed. 685, ing that acceptance of the new system should Ann. Cas. 1917D, 642. rest upon the initiative of the employer, and that any particular employé who with notice of the employer's acceptance dissented from the resulting arrangement should be required to exercise his option by withdrawing from the employment. The relation of employer and employé being a voluntary relation, it was well within the power of the state to permit employers to accept or reject the new plan of compensation, each for himself, as a part of the terms of employment; and in doing this there was no denial to employés of (Argued Jan. 10 and 13, 1919. Decided March the equal protection of the laws within the meaning of the Fourteenth Amendment.

3, 1919.)

No. 598.

This disposes of all contentions made under the equal protection clause.

All objections to the act on constitutional grounds being found untenable, the judgment under review is Affirmed.

(249 U. S. 12)

BUTTE & SUPERIOR COPPER CO., Limit-
ed, v. CLARK-MONTANA REALTY
CO. et al. .

1. COURTS 382(5)-FEDERAL JURISDICTION -STATEMENT OF GROUNDS IN PLEADINGSCONSTRUCTION OF STATUTES.

[8,9] It is argued further that there is a deprivation of liberty and property without due process of law in requiring employés, Plaintiffs' statement of grounds of suit in willingly or unwillingly, to accept the new federal District Court, founded on Montana system where their employer has adopted it. statute relating to determination of adverse Of course there is no suggestion of a depri- claims, which showed that controversy was over vation of vested property *in the present case, extralateral rights in mining claim and involved since the law was passed in April and took more than $3,000, and the construction of Rev. effect in September, while the plaintiff's in- St. §§ 2322, 2324, 2325, and 2332 (Comp. St. §§ juries were received in the following Decem- 4618, 4620, 4622, 4631), which are foundation of ber, after he had been notified of his employ- rights to mining claims, held to sufficiently show that jurisdiction of District Court was er's acceptance of the act. What plaintiff not rested on diversity of citizenship, and heuce has lost, therefore, is only a part of his lib-decision of Court of Appeals was not final. erty to make such contract as he pleased with a particular employer and to pursue 2. MINES AND MINERALS his employment under the rules of law that previously had obtained fixing responsibility upon the employer for any personal injuries the plaintiff might sustain through the negligence of the employer or his agents. But, as has been held so often, the liberty of the citizen does not include among its incidents any vested right to have the rules of law remain unchanged for his benefit. The law of master and servant, as a body of rules of conduct, is subject to change by legislation in the public interest. The definition of negligence, contributory negligence, and assumption of risk, the effect to be given to them, the rule of respondeat superior, the imposition of liability without fault, and the exemption from liability in spite of fault-all these, as

3. MINES AND MINERALS 27(1), 38(17)CONFLICTING LOCATIONS PRIORITY RIGHTS.

Priority of right in mining claims is not determined by date of entries or patents of the re spective claims, but by discovery and locatior, which may be shown by testimony other than the entries and patents.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

29(5)—MINING LOCATION-DEFECTS-PARTIES ENTITLED TO

OBJECT.

Locator of mining claim, claiming rights conflicting with adjoining claim having priority of location, but subsequent patent, could not, having knowledge of the possession and working of the claim, base any rights on failure of prior locator to comply with a Montana territorial statute relating to declaratory statement.

4. MINES AND MINERALS PATENTS-PRESUMPTIONS.

In the absence from the record of an adverse suit, there is no presumption that anything was considered or determined on application for patent, except the question of rights to the surface.

27(1)-CONFLICT

5. MINES AND MINERALS
ING LOCATIONS-PRIORITY.

A prior locator of a mining claim, after a valid discovery, has title to veins and lodes whose tops or apices are within location, though subsequent adjoining locator obtained a prior

patent.

6. APPEAL AND ERROR FINDINGS OF FACT.

44-LOCATIONS-1 States District Court for the District of Montana by a bill filed therein by the appellees Clark-Montana Realty Company and Elm Orlu Mining Company against appellant Butte & Superior Copper Company, Limited, under a statute of Montana authorizing an action to be brought by any person against another who claims an estate or interest in real property adverse to him, for the purpose of determining such adverse claim.

The appellees (plaintiffs in the suit) obtained a decree in the District Court quieting their title and decreeing an accounting. Clark-Montana Realty Co. v. Butte & Supe1094(2)-REVIEW-rior Copper Co., 233 Fed. 547. The decree was affirmed by the Circuit Court of Appeals, 248 Fed. 609, 160 C. C. A. 509. To review the latter action this appeal is prosecuted.

In a suit involving extralateral rights in mining claim, finding of facts by District Court .on conflicting evidence, approved by the Circuit Court of Appeals, will not be disturbed by

the Supreme Court.

7. MINES AND MINERALS DEED-RIGHTS CONVEYED.

We are confronted with a motion to dis

miss on the ground that the decree of the Circuit Court of Appeals was final, the juris34-QUITCLAIM diction of the District Court having been, in legal effect, rested, it is asserted, upon diversity of citizenship. To judge of the morequires a consideration of appellees' statement of their grounds of suit. An outline of them is only necessary.

Where owner of a mining location E., who also owned one-fourth interest in adjoining location tion B., quitclaimed to adjoining owner the onefourth interest, with its rights, together with all dips, spurs, angles, etc., the deed passed no interest that did not belong to that claim, and did not denude E. of extralateral rights that the law conferred on it. 8. EQUITY 427(1)—DECREE-SUIT TO DETERMINE MINING RIGHTS RESERVATION OF QUESTION.

In a suit to determine extralateral rights in adjoining mining claims, where the court found as a fact that apex of veins in dispute was in location of plaintiff, but the facts as developed were not clear as to where the apex passed out of such location, the court properly reserved such question.

Appeal from the United States Circuit Court of Appeals for the Ninth Circuit.

Suit by the Clark-Montana Realty Company and the Elm Orlu Mining Company against the Butte & Superior Copper Company. From a judgment of the Circuit Court of Appeals (248 Fed. 609, 160 C. C. A. 509), affirming a decree for complainants (233 Fed. 547), defendant appeals. Decree affirmed.

[1] At the outset we may say there is a diversity of citizenship, the parties being respectively corporations of Washington and Arizona, and it was so averred.

Messrs. William Wallace, Jr., of Helena, Mont., W. H. Dickson, of Salt Lake City, Utah, J. Bruce Kremer, of Butte, Mont., and William Scallon, of Helena, Mont., for appellant. Mr. John P. Gray, of Cœur d'Alene, Idaho, for appellees.

The predecessors of appellees (so run the allegations) on April 18, 1875, discovered a vein or lode of mineral-*bearing rock in the ground described as the Elm Orlu. Discovery was followed by location of the claim and other acts of its appropriation prescribed by the mining laws, proof of which was duly made; and such steps were taken that on December 30, 1882, application for patent was made and patent issued for the claim January 31, 1884. The locators and their successors in interest held, worked, possessed and actually occupied the claim continuously from the date of discovery for more than five years thereafter and during all that time were in the open, notorious, exclusive and uninterrupted possession of it.

The Clark-Montana Realty Company became the owner of the claim and entitled to its possession and of all veins, lodes or ledges having their tops or apices therein throughout their entire depth between the end lines of said claim extended northerly in their own direction. That company leased the claim to appellee, Elm Orlu Mining Company, which is occupying it by virtue of the lease. The appellant is the owner of the Black

*Mr. Justice MCKENNA delivered the opin- Rock, Jersey Blue, Admiral Dewey and Silion of the Court.

ver Lode Mining Claims which adjoin the Elm Orlu claim on its north side. Their locations progressed to patent.

A contest between mining claims as to the right to the ores that may be not only inside the surface lines of the claims but outside their vertical side lines-dip or extralateral rights. It was commenced in the United

In the Elm Orlu claim there is a vein or lode known as the Rainbow lode, which crosses the west end line of the Elm Orlu For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

claim and proceeds in an easterly direction [tion that the construction and application of through it. It was upon this lode that the the designated sections of the Revised Statdiscovery of the claim was made. Its down- utes are involved, and, turning to them, we ward course through the side line of the claim find that they are the foundation of the drawn vertically is northerly and it extends rights to mining claims and express the condownward and passes below the surface of ditions of their acquisition and extent, and, appellant's claims. it would seem, are often the basis of controversies as to them and the solution of the controversies. And realizing this, we may suppose, appellees were at pains to set out the conditions and steps they observed, and lest there might be omission, and in remedy of it if there should be, they availed them

Appellant claims an estate or interest adverse to appellees' in the Rainbow lode, the exact nature of which claim is unknown to appellees, but it is false and groundless.

The value of the Elm Orlu claim is given, and it is averred that appellant has by means of secret underground works in its posses- selves by appropriate allegations of section sion willfully penetrated the *Rainbow lode | 2332, R. S.; that is, they alleged that they and has extracted and is extracting large were in the actual, open, exclusive and unamounts of ore therefrom, the exact amount interrupted possession of the Elm Orlu, workbeing unknown, but exceeding in value the ing the same for more than five years (the sum of $50,000. period of limitation under section 2332) continuously from the date of discovery. And counsel admitted upon a question from the bench at the oral argument, that the allegation had jurisdictional purpose and that resort was had to the federal court that appellees might avail themselves of the proThere is an averment, however, that re-visions of section 2332 and of Clipper Mining quires notice. It is as follows: Co. v. Eli Mining Co., 194 U. S. 220, 226, 24 Sup. Ct. 632, 48 L. Ed. 944, the Supreme Court of Montana having decided that a notice of location which failed to comply, as appellees' did, with a statute of Montana was defective. The allegation, therefore, was part of appellees' case-fortified the other allegations as grounds of suit and recoveryand made the suit one involving the construction and application of that section. The motion to dismiss is, therefore, denied.

It is prayed that appellant declare its title and, when declared, that it be adjudged with out merit; that appellees' title be established and appellant enjoined from further assertion of rights adverse to appellees, and for an accounting.

"That the jurisdiction of the United States District Court for the District of Montana over this suit is invoked and depends upon two grounds, to wit:

"(1) Upon the ground that the construction and application of sections 2322, 2324, 2325, and 2332 of the Revised Statutes of the United States (Comp. St. §§ 4618, 4620, 4622, 4631) are involved, and the amount in controversy exceeds in value the sum of three thousand ($3,000) dollars, exclusive of interest and costs, all of which will appear from the facts hereinafter set forth. "(2)

The averment is explicit and, we may assume, had a purpose; but appellees do not wish to be taken at their word. The confidence they thought and expressed when invoking the powers of the court in the first instance and providing, we may assume, for review in case of an adverse decision-they now recant and urge that it should not be used to question or disturb their success or become an avenue of relief to their antagonist. This is not unusual and counsel has cited prior examples and the action of the

court therein.

The principle of decision which the court then announced is familiar. It is that the ground of jurisdiction in the District Court and ultimately in this court on appeal from the Circuit Court of Appeals is the statement of the suing party of his cause of suit. And there must be substance in it, not mere verbal assertion or the anticipation of defenses. Taylor v. Anderson, 234 U. S. 74, 34 Sup. Ct. 724, 58 L. Ed. 1218; Hull v. Burr, 234 U. S. 712, 720, 34 Sup, Ct. 892, 58 L. Ed. 1557.

Has appellees' statement these defects? As we have seen, there is a confident asser