PUBLICATION OF PROOF NOTICES [Reported, 2 L. D. 205] RATES OF ADVERTISING DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE, Washington, D. C., January 30, 1884. Commissioner McFarland to Registers United States Land Offices: It having come to the knowledge of this office that excessive charges are made by the proprietors of newspapers in certain States and Territories for the publication of notices of intention to make final proof under act of March 3, 1879, you are directed hereafter, in designating papers in which such notices shall be published, to designate only such reputable papers of general circulation nearest the land applied for, the rates of which do not exceed the rates established by State or Territorial laws for the publication of legal notices. Approved by Secretary Teller, January 30, 1884. [Reported, 38 L. D. 131] INSTRUCTIONS RELATIVE TO PUBLICATION OF FINAL-PROOF NOTICES AND CONCERNING THE DISCRETIONARY AUTHORITY OF REGISTERS IN THE SELECTION OF NEWSPAPERS FOR THAT PURPOSE DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE, Washington, D. C., August 11, 1909.1 Registers and Receivers of United States District Land Offices. SIRS: This office is in daily receipt of complaints from editors and publishers of newspapers to the effect that their publications are not accorded the patronage which should be bestowed upon them, in accordance with the law and regulations governing the publication of notices of intended final proofs on entries of public lands. The object of the law requiring publication of such notices is to bring to the knowledge and attention of all persons who are or who might be interested in the lands described therein, or who have information concerning the illegality or invalidity of the asserted claims thereto, the fact that it is proposed to establish and perfect such claims, to the end that they may interpose any objection they may have, or communicate information possessed by them Amended by circular of Apr. 4, 1914 (No. 310), p. 1148. See instructions of Oct. 19, 1929, p. 1149. to the officers of the land department. It is unnecessary to state that this object can not be secured by a notice published in a paper which has no meritorious circulation among the people resident in the locality in which the affected land is situated, and that inattention to or disregard of their duty in this behalf on the part of registers will result in the total subversion of the law and the defeat of its purpose and intent. To the end, therefore, that you may be fully instructed concerning your official obligation in the premises, and that you may be urged to an alert and diligent performance of the duty which the law imposes upon you, your attention is directed to the several rules now to be stated and which should govern and control you in the discharge of your official obligation: First. A notice of intended final proof must be published in a newspaper of established character and of general circulation in the vicinity of the land affected thereby, such paper having a fixed and well-known place of publication. No newspaper shall be deemed a qualified medium of notice unless it shall have been continuously published during an unbroken period of six months immediately preceding the publication of the notice, nor unless it shall have applied for and been granted the privilege of transportation in and by the United States mails at the rate provided by law for second-class matter (secs 427 to 437, inclusive. Postal Laws and Regulations). a privilege available to all newspapers having a legitimate list of subscribers and a known place of publication. Second. The notice must in all cases be published in the newspaper which may be printed and issued at a place nearest to the lands which the notice affects. By the word "nearest" as here used it is not intended that geographical proximity shall be measured on an air line drawn between the land and the place of publication, but by the length of the shortest and principally traveled thoroughfare between such places, being the highway ordinarily used and employed for travel by vehicles of any kind. But this qualification shall not be intended as authorizing any manifest perversion of the spirit of the rule, but simply to dispense with any strict rule based on geographical distance. Third. It is not necessary that the newspaper nominated as the medium of such notice shall be published in the same county as that in which the land lies, or even in the same land district. On the contrary, a newspaper published in an adjoining county, if its place of publication is nearer to the land than that of any other newspaper, must be designated as the agency of publication, if it is also qualified by reason of its general circulation in the vicinity of the affected lands. Fourth. The law invests registers with discretion in the selection of newspapers to be the media of notice in such cases as are here referred to, but that discretion is official in character, and not a purely personal and arbitrary power to be exercised without regard for the object of the law by which it is conferred. It follows that a register's action in the exercise of such discretion is subject to review by this office in any case where it is sufficiently alleged that the discretion has been abused, meaning thereby that it has been exercised in a manner perversive of the object of the law in requiring such notices to be published. This power of review will ordinarily be exercised and made effective in a proper case by holding the final proof to have been preceded by insufficient notice; but it may be resorted to and exercised, in any case in which it may be shown that a register is persistently designating a manifestly inefficient medium of notice, by forbidding the further publication of notices in such a newspaper until it shall have acquired and sufficiently established its possession of the requisite qualifications. In other words, where it has once been determined that a newspaper is not a competent medium of notice, it is within the power of this office to forbid the continued selection of that newspaper as the means of publication without awaiting repeated abuses of discretion on the part of a register and a determination in each separate instance that the notice was ineffectually published. This course of action will, therefore, be pursued whenever it is shown that a register is bestowing his patronage upon an alleged newspaper which is not entitled to that character, being merely a private advertising agency or published for some special purpose and not as a general disseminator of news, or where such paper has no actual bona fide or reasonably meritorious circulation, or is not in fact published at its pretended place of publication, but at some other place. Fifth. Where a register acts in the reasonable and not manifestly unfair and improper exercise of his discretion his decision will not be interfered with or disturbed by this office. The department can not and will not undertake to weigh and nicely calculate the relative efficiency of two or more newspapers published in the same place and alike possessing and enjoying an established character and general circulation; nor will it, as between two papers published at different places, permit any slight and unimportant advantage in the matter of geographical proximity, period of publication, or extent of circulation, possessed by one of such papers over the other, to serve as a sufficient reason for disapproval of the register's conclusion as to which one of such newspapers should be designated as the means of publication. Sixth. It is earnestly desired that you shall severally be at all times careful in your observance of and adherence to the rules which have been here stated and prescribed for your governance, to the end that the new numerous and urgent complaints of alleged discrimination, and charges to the effect that the object of the law is not observed in the choice of newspapers for the publication of final-proof notices, may be at least greatly diminished in number, as well as to the further end that such as may be received shall be without fundation of fact or in law. Seventh. Persons seeking to establish their right to a legal title to any public lands are not authorized to interfere with the discretion of the register in the choice of a newspaper in which to publish notice of their claims; nor will any designation of a newspaper made by a register, in the reasonable exercise of that discretion, be disturbed on the ground that the claimant recommended another newspaper. All other conditions being equal, it will be entirely proper to accord favorable consideration to a claimant's nomination of a newspaper. though acceptance of such a nomination will not be enjoined upon you. 57720-30-73 Eighth. None of the rules herein stated respecting the designation of the newspaper are intended to apply to, or govern, publication of notice concerning proof proposed to be offered in support of an application for the purchase of lands chiefly valuable for their timber or stone, under the act of Congress of June 3, 1878 (20 Stats. 89), as extended by the act of Congress of August 4, 1892 (27 Stats. 348), nor to the purchase of Alaskan coal lands under the act of Congress of April 28, 1904 (33 Stats. 525). Publication of such notices must be procured by the applicants, in newspapers selected by them, but this privilege does not exempt them from the obligation to select a newspaper published nearest to the lands to which the application relates, and such paper must be in all other respects a competent medium of notice, in accordance with the principles which have been stated. You will give to all applicants under this act due counsel and instruction concerning the duty imposed upon them in respect of publication of notice, to the end that they may not ignorantly err in the choice of newspapers through which to communicate such notice. PROCEDURE IN CASES OF COMPLAINTS Ninth. No appeal will lie from the action of the register in refusing to name any particular newspaper as an agency for the publication of notices concerning claims to public lands. But any editor or proprietor of a newspaper who believes and desires to charge that a notice of proof in support of any claim to public land has been published in a paper disqualified by the rules and principles herein stated, to serve as the medium of such notice, may file in the district land office from which such notice emanated a written and verified protest against the acceptance of the proof submitted in accordance with such notice. Such protest should set forth all material and essential facts within the knowledge of the protestant, or of which he has reliable information and which he believes to be true, and which, if duly established by proof, would require a determination that the newspaper in which the notice was published was and is not a reputable and established publication, printed, in good faith, for the diffusion of local and general news; or that it is and was not the paper published nearest to the land affected by said notice, and that there is another newspaper published at a place nearer to said lands, equally well qualified in all respects to convey notice of the claim thereto asserted; or any other cause of disqualification expressed and defined in and by the foregoing several rules. Tenth. Any such protest must be accompanied by copies of at least three successive editions of the paper against whose efficiency as a means of notice the protest is directed, and by as many like copies of the paper published by protestant, and alleged to have been a more efficient agency of notice than was the paper actually chosen. It should, in addition to other facts hereby made essential, disclose the relative number of actual paying subscribers supporting the said two newspapers; the number of papers actually distributed in the county in which said papers are published and in the county in which the land is situated; and the number of papers mailed to bona fide subscribers at the post office nearest to the land to which such notice relates. It should state the length of time during which each of said newspapers has beer actually and continuously published, immediately preceding the date of the protest; and, if either of said papers has been denied, or has never applied for, entry as secondclass matter in the post office at the place of publication, that fact should be stated. Eleventh. Where any protest has been filed in the manner herein prescribed it shall be the duty of the register and receiver to immediately consider same and to proceed thereon as in other cases of protests against final proofs. If they should conclude that the facts. stated in the protest are insufficient to warrant an order for a hearing, they will render decision to that effect and duly notify the protestant thereof, at the same time advising him of his right to prosecute an appeal to this office, in the manner and within the time prescribed by the rules of practice. After the expiration of the period during which an appeal may be prosecuted, they will, if no such appeal be filed, forward the protest and accompanying exhibits to this office, with their decision thereon, as in cases of unappealed contests, together with a separate report by the register concerning the facts within his knowledge, and bearing, in a material manner, on the merits of the question presented by the protest. Twelfth. In all cases where no appeal is prosecuted from a decision by the register and receiver dismissing a protest, that decision will be considered final as to the facts; and acquiscence therein by this office will be refused only when it is manifest that it was error to determine that no proper ground of protest was sufficiently alleged. Thirteenth. The law imposes upon registers the duty of procuring the publication of proper final-proof notices, and charges the claimant with no obligation in that behalf, except that he shall bear and pay the cost of such publication. Registers should accordingly exercise the utmost care in the examination of such notices and in the comparison thereof with the records of their offices, to the end that they may not go to the printer containing any erroneous description of the entered land, or designating an officer not authorized to receive the proof, or that they shall not be for any other reason insufficient. It is equally important that a notice correct in all of these particulars shall not be published in a newspaper manifestly disqualified as a means of publication and clearly incapable of bringing the notice to the attention of the people dwelling in the vicinity of the lands to which it relates." Neglect of the duty above defined, resulting in a requirement of republication, should not visit its penalty upon the claimant. In all such cases, therefore, the register by whom the publication was procured will be required to effect the necessary republication at his own proper expense. If an error is committed by the printer of the paper in which the notice appears, the register may require such printer to correct his error by publishing the notice anew for the necessary length of time, and for his refusal to do so may decline to designate his said paper as an agency of notice in cases thereafter arising.2 Approved, August 11, 1909., S. V. PROUDFIT, Acting Commissioner. JESSE E. WILSON, Acting Secretary. (Laws and extracts from former regulations omitted.) 2 See revision, p. 1148. |