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 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?