ville was not discriminated against in favor of like shipments to the same points. To say that there was a discrimination between shipments of intoxicants and other commodities does not make a case of discrimination or preference where the denial of such shipments is based, as is the case here,, wholly and solely upon an illegal restraint upon that kind of interstate commerce, is to reason in a circle, for the question comes back at last to the validity of the law forbidding such shipments. There was no discrimination if the law was valid, and the result must turn, not upon any administrative question or questions of fact within the scope of the power of the Commission, but upon the validity of the legislation which controlled the action of the carrier. That is a question of general law for a judicial tribunal, and one not competent for the Commission as a purely administrative body.

The decision in the case of Texas & Pacific Railway v. Abilene Cotton Oil Co., 204 U. S. 426, is not applicable here. The question there was one of the reasonableness of a rate. Such a question is primarily one of administrative character, and the propriety of a prior resort to the Commission to obtain a ruling upon the question of reasonableness involved the very heart of the whole statute. That there might be uniformity in rate-making necessarily required a resort to that body as a basis for a common law recovery of an excessive charge.

The result is that the decree of the court below must be

Affirmed.

223 U. 8.

Syllabus.

WASKEY v. HAMMER.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.

No. 84. Argued December 7, 1911.-Decided January 22, 1912.

A discovery of mineral within the limits of a mining claim is essential to its validity; proximity will not suffice.

An original location is invalidated by readjusting the lines so as to exclude the point or place of the only prior discovery.

A readjusted location becomes effective as of the date of the readjustment as though it were a new one, and if the locator is disqualified at the time of the readjustment, the location is invalid.

A prohibition against purchase of public lands by officers of the Land Department and employés is to prevent abuse and inspire confidence in administration of the land laws, and should be construed broadly to include officials and employés of subordinate offices and all methods of securing title to public lands under the general laws. A United States mineral surveyor is disqualified under § 452, Rev. Stat., from making a mining location.

Although the opinion may possibly go beyond the necessities of the case concerning the statute, if it states the natural effect to be given to a statute, and that view is accepted and acted upon for many years by the Department enforcing it, the construction should not be disturbed.

The general rule of law that an act done in violation of statutory prohibition is void and confers no right upon the wrongdoer, held applicable in this case and not subject to the qualification that it was the legislative intent that under the circumstances of the case the statute should not apply.

The fact that a statute prescribes a penalty for the doing of a prohibited act does not confine the scope of the statute to the prohibition, or make the prohibited act valid as against parties other than the Government, and so held as to § 452, Rev. Stat.

170 Fed. Rep. 31, affirmed.

THE facts, which involve the construction of the mining laws of the United States and conflicting claims thereunder, are stated in the opinion.

Argument for Petitioners.

223 U.S.

Mr. Albert Fink, with whom Mr. W. H. Metson, Mr. Ira D. Orton and Mr. E. H. Ryan were on the brief, for petitioners:

This case is a purely possessory action between two individuals and not a patent proceeding.

Notwithstanding § 2319, Rev. Stat., Manuel v. Wulff, 152 U. S. 505; McKinley Mining Co. v. Alaska Mining Co., 183 U. S. 563, hold that no one other than the Government can question the validity of the location on ground of non-citizenship.

Location by an alien is voidable and not void and free from attack by any one except the Government. Shea v. Nilima, 133 Fed. Rep. 209, 215; Tornanses v. Melsing, 109 Fed. Rep. 711; Lone Jack M. Co. v. Megginson, 82 Fed. Rep. 89; Billings v. Aspen M. & S. Co., 52. Fed. Rep. 250; Holdt v. Hazard, 102 Pac. Rep. 540. See also Shamel on Mining Law, 108; Morrison's Mining Rights, 13th ed. 308; Lindley on Mines, § 233; Martin's Mining Law, § 98; Costigan on Mines, § 263; Ricketts on Mines, § 163.

The cases arising under the National Banking Acts are analogous, and this court has uniformly held that securities taken in violation of law are enforceable by the banks, when their validity has been questioned by private persons, the same being voidable only at the instance of the Government on office found. National Bank v. Matthews, 98 U. S. 621, 627; Oates v. National Bank, 100 U. S. 239, 249; National Bank v. Whitney, 103 U. S. 102, 103; Reynolds v. Bank, 112 U. S. 405; Schuyler National Bank v. Gadzen, 191 U. S. 451.

In the case of contracts of foreign corporations made in violation of state statutes, no one can question their validity except the sovereign on direct proceedings instituted for that purpose. Fritts v. Palmer, 132 U. S. 282; Seymour v. Slide, 153 U. S. 523.

So as to cases arising under ultra vires acts of corporations. Cowell v. Springs Co., 100 U. S. 55, 60; Jones v.

223 U.S.

Argument for Petitioners.

Habersham, 107 U. S. 174; Blair v. City of Chicago, 201 U. S. 450.

In cases arising under Indian Reservation Acts, where entry of one disqualified is valid on its face, no one but the Government through its land department can question the entry. McMichael v. Murphy, 197 U. S. 304; Hodges v. Colcord, 193 U. S. 192.

For analogous cases, see also Webber v. Spokane &c., 64 Fed. Rep. 208; Sanders v. Thornton, 97 Fed. Rep. 863; Brown v. Schlerer, 118 Fed. Rep. 987; Blodgett v. Lanyon Zinc Co., 120 Fed. Rep. 893; Waterbury v. McKinnon, 146 Fed. Rep. 737-739; Dunlap v. Mercer, 156 Fed. Rep. 545; Newchatel v. New York, 49 N. E. Rep. 1043; Ledebuhr v. Wisconsin Trust Co., 88 N. W. Rep. 607, 609; Meyers v. Campbell, 44 Atl. (N. J.) 863; Camp v. Land, 122 California, 167.

There are only two decisions reported on the question whether a deputy surveyor can make a mineral location, one adverse to such right, Lavignino v. Uhlig, 71 Pac. Rep. (Utah) 1047, and one favorable in Nevada, Hand v. Cook, 92 Pac. Rep. (Nevada), 3. There have, however, been other cases decided by the Land Department on this subject; as to these see 2 Lindley on Mines, 2d ed., § 661; Seymour v. Bradford, 37 Land Dec. 61; Leffingwell Case, 30 Land Dec. 139; In re Lock Lode, 6 Land Dec. 105; Dennison v. Willits, 11 Land Dec. 261; 26 Land Dec. 122, 136.

While the construction so given by a Department of the Government to any law affecting its arrangements is certainly entitled to great respect, still, however, if it is not in conformity to the true intendment, and provisions of the law, it cannot be permitted to conclude the judgment of a court of justice. United States v. Dickson, 15 Pet. 161, and see also United States v. Moore, 95 U. S. 760, 763; Quinby v. Colon, 104 U. S. 420, 426; Hastings & Dak. R. R. Co. v. Whitney, 132 U. S. 357, 366.

Argument for Petitioners.

223 U. S.

A deputy mineral surveyor, is not either an "officer, clerk or employé" in the General Land Office. See § 10, act of April 25, 1812, establishing a General Land Office, 2 Stats. 716; act of July 4, 1836, reorganizing the General Land Office, 5 Stats. 107; §§ 2207, 2319, 2334, Rev. Stat.; act of May 16, 1872, c. 152, § 1, 17 Stat. 91; act of May 17, 1884; General Mining Circular of December 18, 1903, 31 Land Dec: 453, 489; 32 Land Dec. 367.

A deputy mineral surveyor has no duties whatever to perform outside of the surveying of the mining claims owned by private parties by whom he is employed.

A deputy mineral surveyor is not an officer within the provisions of § 452. United States v. Hartwell, 6 Wall. 385; United States v. Germaine, 99 U. S.. 508; United States v. Mouat, 124 U. S. 303, 307; United States v. Smith, 124 U. S. 525, 532.

A deputy mineral surveyor is not a clerk in the General Land Office. As to definition of clerk, see Bouvier's Law Dictionary; People v. Fire Commissioners, 73 N. Y. 437, 442; Satterlea v. Police Board, 75 N. Y. 38; People v. Fire Commissioners, 73 N. Y. 437, 442.

A deputy mineral surveyor is not an employé in the General Land Office. As to definition of employé see Century Dictionary; Standard Dictionary; McCluskey v. Cromwell, 11 N. Y. 593.

A United States mineral surveyor receives no compensation from the United States of any kind or character. He is therefore not an employé of the Government. United States v. Meiggs, 95 U. S. 748; Ex parte Burdell, 32 Fed. Rep. 681; Powell v. United States, 60 Fed. Rep. 689, 690; People v. Ahearn, 110 N. Y. Supp. 306; United States v. McDonald, 72 Fed. Rep. 898; Louisville, E. & St, L. R. Co. v. Wilson, 138 U. S. 501, 505; Auffmordt v. Hodden, 137 U. S. 310; see also Vance v. Newcomb, 124 U. S. 311; Pack v. The Mayor &c. of New York, 8 N. Y. 222; Campfield v. Lane, 25 Fed. Rep. 128; Kelly v. The Mayor of