The facts here being found to be that the Phoenix Republican, designated for publication of notice of the Pike's Peak patent application, is a newspaper of established character, of equal circulation in the vicinity of the claims with the News-Herald of Martinez and of greater general circulation, and that the place of publication of the former is really nearer those claims than is that of the latter paper by the respective available routes of travel, it can not be held that the register abused his discretion in the premises or that the requirements of the statute have not been satisfied.

For these reasons the decision of your office must be, and it is, reversed.

TOWNSITE TRUSTEE-EXPENSES-SECTION 11, ACT OF MARCH 3, 1891.

INSTRUCTIONS.

Under section 11 of the act of March 3, 1891, attorney's fees may be properly included in the account of a townsite trustee, as legitimate expenses incident to the execution of his trust, and allowed by the land department, where necessary and not in excess of a just and reasonable amount.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) November 29, 1905. (C. J. G.)

The Department is in receipt of your office letter of November 17, 1905, submitting the correspondence of Porter J. Coston, trustee of the townsite of Nome, Alaska, and in that connection asking for instructions relative to the question of including certain attorney's fees in his account as such trustee.

The appointment of said townsite trustee was made under section 11 of the act of March 3, 1891 (26 Stat., 1095, 1099), which also authorizes the Secretary of the Interior to "provide by regulation for the proper execution of the trust." The fund from which are derived the expenses incident to the execution of his trust by the trustee, is created by levying assessments upon the townsite property. The regulations of August 1, 1904 (33 L. D., 163), under said act, after specifically naming certain purposes for which assessments may be made by the trustee, further prescribes:

and all other legitimate expenses incident to the expeditious execution of his trust.

Thus expenditures in connection with the legitimate work of the townsite trustee are not dependent upon prior legislative authority, as no appropriation is made by Congress for the purpose, and the money does not come out of the United States treasury. Hence the assessment fund is wholly under the control of the land department and it is purely discretionary with said department as to how and for

what purposes in connection with townsite work said fund shall be expended. It is believed that attorney's fees constitute a proper charge in certain cases upon said fund, and the circumstances set forth in the correspondence submitted seem to be sufficiently exceptional to warrant the inclusion of said fees in the "legitimate expenses incident to the work of the trustee. It is not intended, however, by this paper to approve the fees in question, whatever they may be, the account for which has not yet been presented, but only to express the opinion that they may properly be allowed in the event they are found to be necessary and not in excess of a just and reasonable sum. In this connection it may be said that the trustee should exercise special care and judgment in the premises and be reasonably convinced of their necessity before incurring expenses of this character, as the levying of assessments in the first instance is and should be limited to matters necessarily attendant upon the proper execution of his trust.

RIGHT OF WAY-TELEPHONE AND TELEGRAPH LINES-SECTION 3, ACT OF MARCH 3, 1901.

OPINION.

The annual tax upon telephone and telegraph lines referred to in section 3 of the act of March 3, 1901, is conditioned upon two things: (1) The line upon which the tax is sought to be imposed must be upon lands such as the Secretary of the Interior is authorized to subject to the terms of the act, and (2) the line must not be subject to State or Territorial taxation. Where the line upon which the tax is sought to be imposed runs through any of the lands which the Secretary is authorized to subject to the terms of the act, and is not subject to State or Territorial taxation, such line is under the act subject to an annual tax not exceeding five dollars for each ten miles thereof constructed and maintained, regardless of any tax which may be levied and collected by a municipality through which the line runs. Rights of way under the provisions of section 3 of the act of March 3, 1901, are "in the nature of an easement," and are property rights subject to sale or transfer without the consent of the Secretary of the Interior.

The term "line," as employed in section 3 of the act of March 3, 1901, means the right of way granted, and each separate line of poles is held to constitute an independent line, upon which the grantee may place as many wires as he chooses, the tax to be assessed against the property only at the rate of five dollars for each ten miles of line. In towns, where no welldefined system of parallel wires is maintained, each wire will be regarded as covering a separate right of way, and, if otherwise within the terms of the act, is subject to taxation as such.

The act of March 3, 1901, specifically provides that telephone and telegraph lines constructed under its provisions shall be operated and maintained under rules and regulations to be prescribed by the Secretary of the Interior, which carries with it the power to require sworn statements from the person, company, or corporation operating the lines, to the end that the annual tax be properly assessed and collected; but in the event of non

compliance with such requirement, it is not within the power of the Secretary, under executive authority, to close the places of business of the offending parties, any question as to the forfeiture of the right of way being a matter for determination by the courts.

Assistant Attorney-General Campbell to the Secretary of the Interior, (G. B. G.)

October 27, 1905.

By reference of the Acting Secretary my opinion is asked as to certain legal questions arising in course of administration of the act of March 3, 1901 (31 Stat., 1058, 1083), and especially section 3 of that act, which is in full as follows:

That the Secretary of the Interior is hereby authorized and empowered to grant a right of way, in the nature of an easement, for the construction, operation, and maintenance of telephone and telegraph lines and offices for general telephone and telegraph business through any Indian reservation, through any lands held by an Indian tribe or nation in the Indian Territory, through any lands reserved for an Indian agency or Indian school, or for other purpose in connection with the Indian service, or through any lands which have been allotted in severalty to any individual Indian under any law or treaty, but which have not been conveyed to the allottee with full power of alienation, upon the terms and conditions herein expressed. No such lines shall be constructed across Indian lands, as above mentioned, until authority therefor has first been obtained from the Secretary of the Interior, and the maps of definite location of the lines shall be subject to his approval. The compensation to be paid the tribes in their tribal capacity and the individual allottees for such right of way through their lands shall be determined in such manner as the Secretary of the Interior may direct, and shall be subject to his final approval; and where such lines are not subject to State or Territorial taxation the company or owner of the line shall pay to the Secretary of the Interior, for the use and benefit of the Indians, such annual tax as he may designate, not exceeding five dollars for each ten miles of line so constructed and maintained; and all such lines shall be constructed and maintained under such rules and regulations as said Secretary may prescribe. But nothing herein contained shall be so construed as to exempt the owners of such lines from the payment of any tax that may be lawfully assessed against them by either State, Territorial, or municipal authority; and Congress hereby expressly reserves the right to regulate the tolls or charges for the transmission of messages over any lines constructed under the provisions of this act: Provided, That incorporated cities and towns into or through which such telephone or telegraphic lines may be constructed shall have the power to regulate the manner of construction therein, and nothing herein contained shall be so construed as to deny the right of municipal taxation in such towns and cities. That lands allotted in severalty to Indians may be condemned for any public purpose under the laws of the State or Territory where located in the same manner as land owned in fee may be condemned, and the money awarded as damages shall be paid to the allottee.

Specifically, my opinion is desired upon the following questions: First. Does the "annual tax" referred to in the statute apply to local exchanges within towns, or is it confined to long distance and toll lines?

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Second. Does the law contemplate and require that transfers and sales of telephone lines shall be approved by the Department?

Third. Does the term "line," where it occurs in the statute providing for an annual tax "not exceeding five dollars for each ten miles. of line," refer collectively to all the wires which the company may establish upon its right of way, or does it refer to each individual wire, particularly in towns where no well-defined system of parallel wires is maintained?

Fourth. Does this act authorize the Secretary of the Interior to prescribe regulations requiring owners of lines to furnish affidavit disclosing such information as may be necessary in order to facilitate the assessment of damages and the levy of taxes, and may the Secretary of the Interior, in the event of non-compliance with such regulations or with the law, close the places of business of offending parties? Fifth. Will the making of a false affidavit in such cases be subject to prosecution in the Indian Territory?

Responding to this reference categorically, I am of opinion: First. The annual tax referred to in the statute is conditioned upon two things: (1) The line upon which the tax is sought to be imposed must be upon lands such as the Secretary of the Interior is authorized to subject to the terms of the act, and (2) the line must not be subject to State or Territorial taxation. If, therefore, the line upon which the tax is sought to be imposed runs " through any Indian reservation, through any lands held by an Indian tribe or nation in the Indian Territory, through any lands reserved for an Indian agency or Indian school, or for other purpose in connection with the Indian service, or through any lands which have been allotted in severalty to any individual Indian under any law or treaty, but which have not been conveyed to the allottee with full power of alienation," and is not subject to State or Territorial taxation, such line is subject to an annual tax not exceeding five dollars for each ten miles thereof, constructed and maintained. It is not material to this question that the municipality in which such line is found may levy and collect a tax thereon; it is nevertheless subject to the special tax imposed by the act, unless subject to Territorial taxation.

Second. Inasmuch as the right of way granted by the Secretary of the Interior under said act is "in the nature of an easement," it seems clear that the right granted is higher than a personal privilege, and it being a property right is subject to sale or transfer without the consent of this Department.

Third. I am of opinion that the term "line," as employed in said act, means the right of way granted; that the grantee may place as many wires on this line as may seem desirable, and that a tax may be assessed against the property only at the rate of five dollars for each ten miles of line. In towns where no well-defined system of parallel

lines is maintained, it would seem that each wire covers an independent and separate right of way, and if otherwise within the terms of the act would be subject to taxation as such. Each independent line of poles is manifestly an independent line.

Fourth. The act specifically provides that these lines shall be operated and maintained under rules and regulations to be prescribed by the Secretary of the Interior, and I think you may, and that it is your duty to, prescribe such regulations as will secure an orderly administration of the act. This would carry with it the power to require sworn statements from the person, company, or corporation operating these lines, to the end that the annual tax might be properly assessed and collected. I do not think, however, that in the event of non-compliance with these regulations it would be within. the power of the Secretary of the Interior to close places of business under executive authority. Whatever might be said of the power of Congress to confer upon an executive officer such judicial functions as would be necessary to terminate the right granted, no attempt is here made to confer such power on the Secretary of the Interior, and it is clear that any question as to the forfeiture of such right of way would only be cognizable in the courts. I am of the opinion, however, that it would be the duty of the Secretary of the Interior in a proper case to refer the matter to the Department of Justice for such proceedings as seemed proper and necessary in the discharge of the duties imposed upon him by the act.

Fifth. The question as to whether a prosecution for making a false oath in these matters would be cognizable in the courts of the Territory has not arisen, and may never arise. I therefore beg to be excused from answering that question at this time.

Approved:

E. A. HITCHCOCK, Secretary.

SOLDIERS' ADDITIONAL HOMESTEAD-SERVICE-SECTION 2304, R. S.

HERBERT C. JOHNSON.

In computing the period of service of a soldier "who has served in the army of the United States," within the meaning of that phrase as used in section 2304 of the Revised Statutes, the entrance of the soldier into the army will be considered as dating from his muster into the service, and not from his enrollment.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) December 6, 1905. (E. O. P.)

Herbert C. Johnson, assignee of Philander L. Compton, has filed, and the Department has considered, motion for review of its unreported decision of December 14, 1903, denying his application to