route, and over which the editions of the paper are or may be transported by the usual and available means of conveyance. The distance in contemplation is that which must actually be traveled to bring the paper into the neighborhood of the claim, in order that the intended office of the notice may in that vicinity be performed.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) November 28, 1905.

(F. H. B.) January 25, 1904, The Pike's Peak Gold and Copper Mining Company filed application (No. 653) for patent to the Pike's Peak and certain other lode mining claims, Prescott, Arizona, land district; and the "Phoenix Republican," published at Phoenix, Arizona, was designated by the register as the newspaper in which notice of the application should be published.

February 8, 1904, Eli S. Perkins filed protest, alleging the current publication of the notice in the designated newspaper at Phoenix, distant, as further alleged, at least forty miles from the claims in an air line and probably fifty miles by the usually traveled route; that for a long time prior to the date of the patent application protestant has published the "News-Herald," a newspaper of established character and general circulation in the vicinity of the claims and elsewhere, at Martinez, about twenty-eight miles in a direct line and by the usually traveled route from the claims in question; and that the News-Herald is nearest the claims and is the newspaper in which the notice should have been published. Wherefore, protestant prayed that a hearing be ordered, to the end that he might furnish evidence to sustain the allegations of his protest.

Hearing was accordingly ordered and had, at which appearance was made and testimony submitted by and on behalf of both parties. March 29, 1904, the local officers, finding from the evidence little difference as to distance of the two papers from the claims, the Phoenix Republican to be a bona fide newspaper of established character and general and the greater circulation, held that greater publicity had been given the notice by its publication in the latter paper and that the register had not abused his discretion in the premises. Protestant thereupon appealed to your office.

In the course of its decision of September 19, 1904, your office, having examined the evidence, found therefrom, in substance and effect, that, geographically measured, Martinez is the nearer of the two towns to the claims in question, by from three to six miles, depending upon the particular points of each from which measurements are taken; that there are no direct routes of travel between Martinez and the claims, to reach either of which from the other a circuitous route must be followed; that from Phoenix to the claims the route of travel is comparatively direct, and, as far as accessibility is concerned, the

latter town is nearer than Martinez; that practically all business relations on behalf of these and other claims in the vicinity are with Phoenix, the place of the Pike's Peak company's offices and the postoffice address of most residents of the mining district in which the claims in question are situate; that it does not appear that either newspaper has any considerable circulation in the immediate vicinity of the claims involved, few persons probably being resident there; that both may be called newspapers of general circulation, having subscribers in most of the towns in that section; that both appear to be established newspapers, and there is little choice between them in this respect; and that, whilst it would appear that a notice published in the Phoenix Republican would be most likely to attract the attention of persons having interests in the region of the claims involved, it is also true that the News-Herald is such a newspaper as is contemplated by the statute and mining regulations and is published actually nearer the land embraced in the application for patent. Wherefore, citing the cases of Tough Nut and Other Lode Claims (32) L. D., 359) and Northern Pacific Railway Company (Ibid., 611), it was held that the designation of the Phoenix Republican was erroneous, the conclusion in that behalf reached by the local officers in the present controversy was reversed, and it was directed that the register designate another newspaper, for republication of the notice, falling within the intendment of the statute and the official regulations.

The applicant company has appealed to the Department. Several assignments of error are set out, those of which it is essential to consider being, in substance, that your office erred in observing geographical or direct-line measurements, instead of usually traveled routes, as governing in the selection of a newspaper; that it erred in holding that in designating the Phoenix Republican in this case the register abused his discretion; and erred in deciding the case upon authority of the two cases cited, supra.

First considering the evidence submitted in the case it may be said that the findings of the local officers and your office are sustained by it. It also appears, by undisputed testimony, that by the available routes of travel between the mining claims and the respective towns the distance to Phoenix is actually less. The general circulation of the Phoenix Republican is shown to be considerably greater than that of the News-Herald, of Martinez, and it was expressly admitted that the former is and was a newspaper "of established character and general circulation in the vicinity of the claims in question in Yavapai and Maricopa counties."

Upon the whole the Department is unable to agree with the conclusion reached by your office, and is constrained to hold that the appellant company's assignments of error, as above, are well founded.

The facts here disclosed are not parallel to those of either case cited by your office, and this case is not controlled by either of them, as will readily appear.

In the first case so cited-Tough Nut and Other Lode Claims—it was held that the register of the Prescott, Arizona, land office had abused his judicial discretion in the designation of the newspaper in which the publication in that case occurred, for the reason, as the facts were found, that two other bona fide newspapers of established character and general circulation in the vicinity of the claims involved were published at a point "at least six miles nearer" the claims, "either by an air line or by the usually traveled route." There appeared in that case to be no justification for the designation of the more remote paper in which the notice was published; and the record strongly suggested that the register's judgment in that behalf had been influenced by the receiver's ownership of that paper.

In the case of Northern Pacific Railway Company, the second case cited by your office, notice (pursuant to section 2335, Revised Statutes) of a hearing ordered to determine the character of certain lands, theretofore classified as mineral by the commissioners appointed under the act of February 26, 1895 (28 Stat., 683), was published in a newspaper many miles more remote from the lands than certain other existing and bona fide papers, in which, too, notices of the prior classification had appeared. The latter papers were respectively about twelve and eighteen miles nearer than the paper in which publication occurred, and the requirement of the statute had plainly not there been met.

Notice of each application for patent to a mining claim is required by the statute (Sec. 2325, R. S.) to be published, at the instance of the register," in a newspaper to be by him designated as published nearest to such claim." As has frequently been said, that officer is thus invested with discretion in the matter, but a judicial discretion which may be reviewed and controlled by your office and the Department to prevent its abuse. That discretion, within prescribed limits, is thus given him with the manifest object of carrying into effect the purpose of the statute itself. As said in departmental instructions of February 3, 1898 (26 L. D., 145, 146–7) :

The statute clearly seems to indicate that the register is given some discretion in the selection of the newspaper. It may sometimes happen, as in the case of Bretell v. Swift, that the newspaper nearest the land, geographically measured, is not the paper nearest to the land by the usually traveled route, and is not the paper best calculated to secure publicity of the notice in the neighborhood of the claim. The statute is not simply that the publication shall be in a newspaper "published nearest to such claim," but is that the publication shall be "in a newspaper to be by him [the register] designated as published nearest to such claim." There are three elements in this requirement: First, the publication shall be in a newspaper; second, that newspaper shall be the one "pub

lished nearest to such claim;" and third, the register shall designate and determine what newspaper is "published nearest to such claim." As applied to newspapers, printing is not the sole act of publication. To be published within the meaning of this statute, a newspaper must be circulated, that is, it must be distributed as a means of disseminating news. The performance of the register's duty, under the statute, requires the exercise by him of reasonable judgment and discretion, both in determining what is a newspaper and in determining which of several papers is the one published nearest to the claim. He should not act arbitrarily or indifferently in the matter, but should be guided by the purpose of the statute in requiring publication, which is the diffusion of information and notice respecting the application for patent in the vicinity of the claim and among those whose residence or presence in that locality bespeak their interest in the claim or their knowledge thereof.

In the course of those instructions the Department reaffirmed the views expressed in the case of Condon et al. v. Mammoth Mining Co. (on review, 15 L. D., 330, 334), in which, discussing the provision of the statute in question, it was held

that this means that the register shall publish the notice of such application in a paper to be by him designated as being the newspaper published nearest to such claim, not by actual measurement in a direct line between newspaper offices in the same town or city, but in the nearest town or city in which a paper or papers of established character and general circulation is published. Unquestionably, under this statute, when several newspapers are published in the same town or city, the register may designate whichever in his judgment will best subserve the public interests and which will give the widest notice to the public that the entrymen are seeking title to a mine. From these views it follows, that in this matter the register has some discretion in the designation of the newspaper, as to its established character as a newspaper, its stability and general circulation and the like. But it is a legal discretion and in its exercise his act is certainly subject to review and control by your office and the Department, and where it is shown that he has abused such discretion, your office, as well as the Department, has the power to set aside his action in order to avoid injustice or unfair discrimination, or an ignoring of the provisions of the law and the rules and regulations of the Department.

The Department does not entertain the view that geographical or air-line measurements should be applied in determining, for the purpose of the statutory notice, which of two or more newspapers published at different points is nearest the mining claim concerned. Under such an inflexible rule the register would have little room for the exercise of judgment and discretion in the determination of that question to the end that the statutory purpose might be best subserved. The circular of April 21, 1885, it is true, established a hard and fast rule in that respect, afterward incorporated into paragraph 37 of the mining regulations approved December 10, 1891, whereby it was declared that the register had "no discretion under the law to designate any other than the newspaper. . . . of general circulation that is published nearest the land, geographically measured." But this construction was discarded in the ensuing revision of the regula

tions, December 15, 1897, and supplanted by the provisions of paragraph 52 thereof (25 L. D., 561, 578), retained in the like-numbered paragraph of the regulations of June 24, 1899 (28 L. D., 594, 603), and in paragraph 47 of the present regulations (31 L. D., 474, 482), as follows:

The register shall publish the notice of application for patent in a paper of established character and general circulation, to be by him designated as being the newspaper published nearest the land.

The omission, from the revision following the regulations of 1891, of the words "geographically measured," and the judgment and discretion to be employed by the register in determining in each case the proper newspaper, within the intent and meaning of the statute, for publication of notice, are subjects of remark and discussion in the departmental instructions of February 3, 1898, supra.

By the newspaper published nearest a mining claim, within the contemplation of the statute, is meant, as the Department regards it, the nearest in point of practicable accessibility; that is, nearest by the distance from the claim involved over the most nearly direct traversable route, and over which the editions of the paper are or may be transported by the usual and available means of conveyance. An objective, distant five miles in a straight line but distant ten miles by the only available route, is for practical purposes the greater distance removed. The purpose of the statute demands its practical application, and the distance in contemplation is that which must actually be traveled to bring the paper into the neighborhood of the claim, in order that the intended office of the notice may in that vicinity be performed. The use of the expression "usually traveled route," in this connection, however, may be misleading, inasmuch as the route "usually" traveled in a particular locality might not be the shortest of the available and traversable routes, within the intendment of the statute.

The register, in the exercise of the judgment and discretion lodged in him, must determine in every instance what is a newspaper, that is, whether of established character and general circulation, where it is actually published, its circulation in the vicinity of the mining claim involved and as compared with the like circulation of other papers of equal standing in other respects, and which among all of them is published nearest the claim according to the distance necessary to be covered by each to reach the neighborhood of the latter— all within the intent and meaning of the statute and to promote to the utmost its object, "which is the diffusion of information and notice respecting the application for patent in the vicinity of the claim and among those whose residence or presence in that locality bespeak their interest in the claim or their knowledge thereof."