The supreme court of the territory disregarded the final action of the Land Department as expressed in the opinion of the Acting Secretary on the rehearing, and decreed that Potter held the land in trust for the defendant and appellee on two grounds: First, because the final action of the Department was held to be a violation of the provisions of the law opening the land in question to settlement; and second, because, as stated by the court, 'We feel the less hesitation in reversing the conclusion of the last tribunal of the Land Department 'on review,' not only because the conclusion we now arrive at is that which must necessarily be arrived at upon the facts (italics ours), but also because it was the one accepted by the Secretary of the Interior, as well as the Commissioner of the General Land Office.' The conclusion of the court, that the final action of the Land Department was contrary to law, was rested upon what was deemed to be the controlling effect of the rulings in Smith v. Townsend, 148 U.S. 490, 37 L. ed. 533, 13 Sup. Ct. Rep. 634; Payne v. Robertson, 169 U.S. 323, 42 L. ed. 764, 18 Sup. Ct. Rep. 337, and Calhoun v. Violet, 173 U.S. 60, 43 L. ed. 614, 19 Sup. Ct. Rep. 324. But the decisions relied upon do not sustain the conclusion which the court deduced from them. In all three of the cases the only question decided was the validity of an entry made by one who was within the inhibited territory at the time when the land was opened by law for settlement. The cases, therefore, did not involve whether one who was outside of the territory at the moment of time when the land was opened lost his right to take part in the race into the territory because, at a time previous to that moment, he had been within the territory in question. Indeed, not only was the question which this case presents not embraced within the decisions upon which the court below based its conclusion, but it was expressly excluded from the rulings made in the cases in question. Thus, in Smith v. Townsend, in referring to the statute and the President's proclamation opening the land for settlement, it was said in the concluding passage of the opinion (p. 501, L. ed. p. 536, Sup. Ct. Rep. p. 638):
'It may be said that if this literal and comprehensive meaning is given to these words it would follow that anyone who after March 2 and before April 22 should chance to step within the limits of the territory would be forever disqualified from taking a homestead therein. Doubtless he would be within the letter of the statute; but if, at the hour of noon on April 22, when the legal barrier was by the President destroyed, he was in fact outside of the limits of the territory, it may perhaps be said that if within the letter he was not within the spirit of the law, and, therefore, not disqualified from taking a homestead. Be that as it may,-and it will be time enough to consider that question when it is presented,-it is enough now to hold that one who was within the territorial limits at the hour of noon April 22 was, within both the letter and the spirit of the statute, disqualified to take a homestead therein.'
The court below having, then, erroneously held that the case was controlled by the previous adjudications of this court, we are called upon to determine the question which was expressly reserved in Smith v. Townsend; that is, whether one who was outside of the legal barrier at twelve o'clock M. on April 22, the day and time when that barrier was removed by operation of law and the terms of the proclamation of the President, was disqualified from participating in the race for the land because, prior to that date and within the prohibited period, he had been within the territory which was S. 490, 37 L. ed. 533, 13 Sup. Ct. Rep. 634, statutes and proclamation of the President by which this question is controlled were fully set out in Smith v. Townsend, 148 U.S. 490, 37 L. ed 533, 13 Sup. Ct. Rep. 634, and need not be at length restated. Suffice it to say, that the provisions opening the land for settlement, regulating the mode of settlement, and the President's proclamation executing these statutes, are found in the act of March 1, 1889 (25 Stat. at L. 757, chap. 317), the act of March 2, 1889 (25 Stat. at L. 980 and 1005, chap. 412), and the proclamation of the President of March 23, 1889 (26 Stat. at L. 1546). The first of these acts contained the provision that '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.' The act of the subsequent day (March 2, 1889) contained the following provision: