A deputy marshal of the United States, duly appointed as such
prior to the passage of the Act of March 2, 1889, c. 412, providing
for the opening of the Territory of Oklahoma to settlement, and
prior to the proclamation of the President of March 23, 1889,
fixing the time of the opening of the lands for settlement, and who
entered on said lands and remained there in his official character
prior to the day fixed for said opening, was thereby disqualified
from making a homestead entry immediately upon the lands being
opened for settlement.
Payne, the appellant here, filed his bill of complaint in the
District Court for the County of Logan and Territory of Oklahoma,
First Judicial District, against the present appellees. It was
averred in the bill that, prior to the passage of the Act of
Congress of March 2, 1889, providing for opening the Oklahoma lands
for settlement, the complainant had been
Page 169 U. S. 324
duly appointed and qualified as a deputy marshal of the United
States, and that, after the proclamation of the President on March
23, 1889, declaring that said lands would be open to settlement
after noon of the 22d of April, 1889, complainant, in pursuance of
orders of his superior officer, the marshal of the United States
for the District of Kansas, went into the territory, to the
locality where the United States land office at Guthrie was
located, for the purpose of preserving public order; that, being
rightfully in said territory, and possessed of all the
qualifications required by the act of Congress to authorize an
entry of lands in such territory for the purpose of a homestead,
complainant, after twelve o'clock noon of said April 22, 1889,
settled upon a named quarter section of land at once commenced
digging a well thereon, and claimed the same as his homestead, and
that, on the next day he duly entered said tract of land at the
United States land office in Guthrie, paid the necessary charges
and expenses connected with such entry, and thereafter fully
complied with all other requirements of the homestead law. Though
the bill averred that at the time of his going into the territory
to perform the duties of deputy marshal, complainant "had formed no
purpose or intention in regard to selecting and taking a homestead
when said lands should be duly opened to settlement," nevertheless
it was averred elsewhere in the bill that, in reliance on certain
opinions and assurances of the Commissioner of the General Land
Office and the Secretary of the Interior, claimed to have been
communicated to parties similarly situated as was the complainant,
to the effect that persons so situated were not disqualified from
entering a homestead when the lands became opened to settlement,
complainant remained in the territory, and made the settlement in
question. It was further averred that subsequent to such entry and
settlement, the defendant Fitzgerald went upon and claimed said
tract of land as a homestead, and that other parties, by force, and
against the notice and warning of the complainant, proceeded to
stake off and occupy a large portion thereof as a town-site, in
violation of law and of the prior superior homestead rights of the
complainant. It was also averred
Page 169 U. S. 325
that on May 9, 1889, the town-site claimants instituted
proceedings in the United States land office at Guthrie, Oklahoma,
to obtain a cancellation of the homestead entry of complainant, and
that ultimately such entry was cancelled, the Secretary of the
Interior approving the action of the Commissioner of the General
Land Office in ordering such cancellation on the ground that
complainant was disqualified by his presence in the territory prior
to the time fixed in the proclamation of the President from making
the entry. It was further averred that subsequently the Secretary
of the Interior, in pursuance of the provision of the Act of May
14, 1890, c. 207, appointed the defendants Robertson, Foster, and
Schnell to prove up and enter the tract of land claimed for a
town-site, in trust for the inhabitants of a town to be called
"East Guthrie," and that, after final entry by such trustees, a
patent of the United States was duly issued to them, which it was
claimed vested in said defendants the legal title to the land
covered by the patent.
In conclusion, complainant averred that he had done all things
required by law in order to be entitled to a final patent, and that
he was the equitable owner of the land claimed by him; that the
Secretary of the Interior had misapplied and misconstrued the law
in cancelling the entry of complainant. And he prayed that the
town-site trustees might be divested of the legal title to the
tract in question and it be vested in complainant. The bill was
demurred to upon various grounds, and, the demurrer being
sustained, a decree was thereupon entered dismissing the bill. On
appeal, this decree was affirmed by the supreme court of the
territory, and from the decree of affirmance an appeal was taken to
this Court.
MR. JUSTICE WHITE, after stating the facts in the foregoing
language, delivered the opinion of the Court.
Page 169 U. S. 326
In sustaining the demurrer, the lower courts passed upon but one
of the grounds stated therein, namely that which asserted that the
complaint did not set forth a cause of action. This contention went
to the merits of the case, and called for a decision of the
question whether the Secretary of the Interior, upon the facts
found by him, properly held that Payne was disqualified from making
his alleged entry. As this is the pivotal point in the case, and
its decision is free from difficulty, we shall confine ourselves in
this opinion to its consideration.
The ruling of the Secretary of the Interior that the settlement
made by complainant was invalid is averred in the bill to have been
based upon the following finding of facts:
"Ransom Payne made homestead entry for the N.W. 1/4 of section
nine (9) on April 23, 1889. Said Ransom Payne was a United States
deputy marshal, duly appointed prior to the passage of the Act of
March 2, 1889 (16 C.L.O. 10, 11), providing for the opening of the
Territory of Oklahoma to settlement, and prior to the proclamation
of the President fixing the day for said opening, and he entered
said territory prior to April 22d and was there at noon of that
day, in obedience to orders issued by his superior officer, and he
was there in the discharge of his official duties. Immediately
after 12 o'clock noon of April 22d, he went upon the land in
question, and commenced to dig a hole in the ground, for a well,
and, as soon as practicable, appeared at the local office and made
his entry. So far as his age, citizenship, etc., are concerned, he
was a qualified homestead claimant, and he bases his claim upon his
prior settlement."
The statute which it is claimed was misconstrued and misapplied
by the Secretary of the Interior in his decision sustaining the
cancellation of Payne's entry is that portion of section 13 of the
Indian Appropriation Act approved March 2, 1889, 25 Stat. 1004, c.
412, which, after stipulating for the disposal of lands acquired
from the Seminole Indians to actual settlers under the homestead
laws only, except as therein otherwise provided, declared that
"until said lands are opened for settlement by proclamation of
the President, no person
Page 169 U. S. 327
shall be permitted to enter upon and occupy the same and no
person violating this provision shall ever be permitted to enter
any of said lands or acquire any right thereto."
It was also claimed that the secretary misconstrued and
misapplied the proclamation of the President of date March 23,
1889, 26 Stat. 1544, fixing the time for the opening of the lands
for settlement, particularly that portion which reads as
follows:
"Now therefore I, Benjamin Harrison, President of the United
States, by virtue of the power in me vested by said act of
Congress, approved March second, eighteen hundred and eighty-nine,
aforesaid, do hereby declare and make known that so much of the
lands, as aforesaid, acquired from or conveyed by the Muscogee (or
Creek) Nation of Indians, and from or by the Seminole Nation of
Indians, respectively, as is contained within the following
described boundaries,
viz., . . ."
"Will at and after the hour of twelve o'clock, noon, of the
twenty-second day of April next, and not before, be open for
settlement, under the terms of, and subject to, all the conditions,
limitations, and restrictions contained in said act of Congress
approved March second, eighteen hundred and eighty-nine, and the
laws of the United States applicable thereto. . . ."
"Warning is hereby again expressly given that no person entering
upon and occupying said lands before said hour of twelve o'clock,
noon, of the twenty-second day of April, A.D. eighteen hundred and
eighty-nine, hereinbefore fixed, will ever be permitted to enter
any of said lands of acquire any rights thereto, and that the
officers of the United States will be required to strictly enforce
the provision of the act of Congress to the above effect."
The question presented is therefore solely this: was the
complainant disqualified, by reason of his entry into the
territory, and his presence there at the hour of the opening of the
territory for settlement, under the circumstances stated in the
finding of the secretary, from making a homestead entry immediately
upon the lands being opened for settlement?
This question is governed by the case of
Smith v.
Townsend, 148 U. S. 490. The
point there presented was whether a
Page 169 U. S. 328
railroad section hand, residing with his family on a railroad
right of way within the territory, and who, by reason of his
employment and residence, was present therein at the hour of noon
on April 22, 1889, could immediately thereafter legally enter upon
public land adjoining said right of way, and claim the same as a
homestead. A construction was rendered necessary of the second
section of the Act of March 1, 1889, 25 Stat. 757, 759, c. 317,
ratifying and confirming an agreement with the Muscogee (or Creek)
Indians whereby a large body of their lands, subsequently included
in the Territory of Oklahoma, had been ceded to the United States.
The section referred to declared the ceded land to be part of the
public domain and subject to homestead entry. The concluding
sentence of the section read as follows:
"Any person who may enter upon any part of said lands in said
agreement mentioned prior to the time that the same are opened to
settlement by act of Congress shall not be permitted to occupy or
to make entry of such lands or lay any claim thereto."
A construction was also required of the substantially similar
provision contained in the Act of March 2, 1889, heretofore quoted,
and of the "warning" notice contained in the proclamation of March
23, 1889, which we have also heretofore referred to. To aid in
construing these provisions, resort was had to the history of the
times in order to ascertain the reason of the statutes, as well as
their meaning, and the conclusion was deduced (p.
148 U. S. 496)
that the purpose of the legislative provisions referred to was
"to secure equality between all who desired to establish
settlements in that territory. The language is general and
comprehensive:"
"Any person who may enter upon any part of said lands . . .
prior to the time that the same are opened to settlement . . .
shall not be permitted to occupy or to make entry of such lands or
lay any claim thereto. . . . Until said lands are opened for
settlement by proclamation of the President, no person shall be
permitted to enter upon and occupy the same, and no person
violating this provision shall ever be permitted to enter any of
said lands, or acquire any right thereto."
"No exception
Page 169 U. S. 329
is made from the general language of these provisions, and it
was evidently the expectation of Congress that they would be
enforced in the spirit of equality suggested by the generality of
the language."
And, again at page
148 U. S. 500,
the Court observed:
"The evident intent of Congress was, by this legislation, to put
a wall around this entire territory and disqualify from the right
to acquire, under the homestead laws, any tract within its limits,
everyone who was not outside of that wall on April 22d. When the
hour came, the wall was thrown down, and it was a race between all
outside for the various tracts they might desire to take to
themselves as homesteads."
Subsequently, conceding that Smith, the appellant in the case,
was lawfully on the right of way of the railroad company, and that
he possessed all the qualifications prescribed by the general
homestead law, it was said (p.
148 U. S.
500):
"He did not have the qualifications prescribed by this statute,
and there is nothing to prevent Congress, when it opens a
particular tract for occupation, from placing additional
qualifications on those who shall be permitted to take any portion
thereof. That is what Congress did in this case. It must be
presumed to have known the fact that on this right of way were many
persons properly and legally there. It must also have known that
many other persons were rightfully in the territory -- Indian
agents,
deputy marshals, mail carriers, and many others.
And if it intended that these parties, thus rightfully within the
territory on the day named, should have special advantage in the
entry of tracts they desired for occupancy, it would have been very
easy to have said so. The general language used in these sections
indicates that it was the intent to make the disqualifications
universally absolute. It does not say 'any person who may
wrongfully enter,' etc., but 'any person who may enter' --
'rightfully or wrongfully' is implied. There are special reasons
why it must be believed that Congress intended no relaxation of
these disqualifications on the part of those on the company's right
of way, for it is obvious that when a railroad runs through
unoccupied territory, like Oklahoma, which on a given day is opened
for settlement,
Page 169 U. S. 330
numbers of settlers will immediately pour into it, and large
cities will shortly grow up along the line of the road, and it
cannot be believed that Congress intended that they who were on
this right of way in the employ of the railroad company should have
a special advantage of selecting tracts just outside that right of
way, and which would doubtless soon become the sites of towns and
cities."
And in concluding its opinion the court held that
"one who was within the territorial limits at the hour of noon
of April 22d was, within both the letter and spirit of the statute,
disqualified to take a homestead therein."
The reasoning of the opinion to which we have referred is fully
applicable to the facts of the case under review. Indeed, the very
character of case now presented was referred to in illustration. In
accordance with the views there expressed, we must therefore hold
that, as the appellant was within the territory just prior to and
at the moment of the time when the land first became legally open
to settlement, he was disqualified at that time from entering upon
and claiming lands therein as a homestead. Manifestly Congress did
not intend that one authorized to enter the territory in advance of
the general public, solely to perform services therein as an
employee of the government, should be at liberty, immediately on
the arrival of the hour for opening the territory to settlement, to
assume the status of a private individual and "actual settler" and
make selection of a homestead, thus clearly securing an advantage
in selection over those who, obedient to the command of the
President, remained without the boundaries until the time had
arrived when they might lawfully enter.
Affirmed.
