The news-herald., 1904-02-13


nal-Miner as the newspaper in
which to publish the notice of APP
plication for patent, had not abused
the discretion lodged in him by the
statute, and affirmed the finding of
the local officers.
Protestants have appealed to the
Department. Section 1925 of the
Revised Statutes provides that
when an application for patent
to a mining claim is filed:
The Register of the Land Office
shall publish a notice
that such application has been
made, for the period of sixty days
in a newspaper to be by him desig
mated as published nearest to such
claim
Paragraph No. 50 of the Mining
Regulations in force at the time
the application for patent was filed
(25 l.. d., 561, 57S) and now in
force as Paragraph AZ of the Min
ing Regulations (38 l.. d., 474,
1927, is 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 news
paper published nearest the land" :"
The provisions of the statute re-
quiring publication of the notice is
intended to diffuse information
" respecting the application for
patent in the vicinity of the claim
and among those whose residence
or presence in the locality bespeak
their interest in the claim or their
knowledge thereof. (26, L. d., 145,
147. The primary purpose of
said provision, as is plainly mani
ifest, is to bring such notice to the
attention of persons who may have
adverse interests in the land en-
braced in the claim applied for, in
order that they may have an OPP
portunity to assert and protect
such interests.
Congress regarded that by the
publication of the notice in news
paper " nearest to the claim " the
intent and purpose of the statute
would be best accomplished, but
conferred upon the Register discre-
tionary power to determine, under
the supervision of the Commits
sioner of the General Land Office
and the Secretary of the Interior,
what publications are newspapers,
within the contemplation of the
statute, and to designate the news
paper nearest the claim in which
the notice should be published.
This discretionary power should
be used wisely, and in accordance
with the statutes and the rules and
regulations of the Land Depart
ment, and not arbitrarily or indiffer-
emily. 1t is subject to review, and,
if abused, subject to correction by
the Commissioner of the General
Land Office, and by the Secretary
of the Interior. 1t cannot be en-
larged or diminished except by
Congress.
In constituting the provisions of
the statute which confers this
power, the Department in Condor
ct al. V. Mammoth Mining Co. Con
review, Is L. D., $50, 331), quoted
with approval the following Ian
guage contained in the circular let
ter of April 21, 1885, directed to
Registers and Receivers, viz:
"You have no discretion under
the law to designate any other than
the newspaper nearest the land
for such purpose, when such paper
is a newspaper of general circula-
ton as defined in said circular" j"
And in the same case, at page
334, in respect to said provision, it
was held as follows:
"This means that. the Register
shall publish the notice of such ap-
plication in paper to be by him des-
ignated as being the newspaper pub
| lished nearest to such claim, not by