conform to the existing regulations in an essential particular and was finally rejected, October 23, 1891, for that reason. And to avoid an extended statement and discussion respecting an indemnity withdrawal made in 1868 and still another claim to the tract, both of which werc terminated on or shortly before October 23, 1891 (see H. R. Ex. Doc. 246, 50th Cong., 1st Sess.; 26 Stat. 496, c. 1040, § 4; St. Paul & Sioux City R. R. Co., 12 L. D. 541; Creswell Mining Co. v. Johnson, 13 L. D. 440), it will be assumed, without so deciding, that the defendant's claim receives no support from what he did anterior to that date.

Following the final rejection of the first selection there was an interval of six days in which the land was not only free from any claim under the land grant but open to settlement under the homestead law. So, apart from the defendant's earlier efforts, there can be no doubt that by his residence and occupancy during that interval he initiated and acquired a homestead right. He was not disqualified by reason of what he had done before, and, of course, it was not necessary that he should go through the idle ceremony of vacating the land and then settling upon it anew. This is the view uniformly applied in the Land Department. Central Pacific Railroad Co. v. Doll, 8 L. D. 355; La Bar v. Northern Pacific Railroad Co., 17 L. D. 406; Vandeburg v. Hastings & Dakota Railway Co., 26 L. D. 390. See also Moss v. Dowman, 176 U. S. 413. The second selection came after this homestead right had attached and therefore was subordinate to it. In its facts the case is like Sjoli v. Dreschel, 199 U. S. 564, and Osborn v. Froyseth, 216 U. S. 571, and unlike Weyerhaeuser v. Hoyt, 219 U. S. 380, and Northern Pacific Railway Co. v. Wass, 219 U. S. 426, and yet is within the principle recognized and enforced in each, viz., that as between conflicting claims to public lands the one whose initiation is first in time, if adequately followed up, is to be deemed first in right. The Sjoli and Osborn cases involved con

flicts between claims initiated by homestead settlement and claims resting upon railroad indemnity selections subsequently filed, and because the former were first in time they were held to be superior in right. The Weyerhaeuser and Wass cases presented conflicts between railroad indemnity selections and claims initiated, one by an application to purchase under the Timber and Stone Act and the other by a homestead settlement, while the selections were pending, and it was held that the selections gave the better right because they were first in time.

That in point of residence, improvements and cultivation the defendant fully complied with the homestead law is not questioned, but it is contended that he lost his claim by not asserting it in due time at the local land office. It is true that the act of May 14, 1880, 21 Stat. 141, c. 89, § 3, in connection with Rev. Stat.. § 2265, fixed three months from the date of settlement as the time within which the claim should be asserted at the local land office, and that the defendant did not conform to this requirement; but that is not a matter of which advantage can be taken by one who stands in the shoes of the railway company, as does the plaintiff. The statute does not contemplate that such a default shall inexorably extinguish the settler's claim, but only that the land shall be awarded to the next settler in the order of time" who does so assert his claim and otherwise complies with the law. As was said by this court in Johnson v. Towsley, 13 Wall. 72, 90: “We think that Congress intended to provide for the protection of the first settler by giving him three months to make his declaration, and for all other settlers by saying if this is not done within three months any one else who has settled on it within that time, or at any time before the first settler makes his declaration, shall have the better right." The question has been repeatedly considered by the Secretary of the Interior in connection with railroad indemnity selections of lands covered by existing homestead settle

ments which had not been asserted at the local office within the time prescribed, and his ruling has been that "A failure to file an application to enter lands within three months after settlement forfeits the claim to the next settler in order of time, but such default is not one that can be taken advantage of by a railway company." Missouri, Kansas & Texas Railway Co. v. Troxel, 17 L. D. 122, 124; Hastings & Dakota Railway Co. v. Arnold, 26 L. D. 538, 540. We regard that ruling as resting upon a proper conception of the statute.

Had the real facts been disclosed to the Land Department, viz., that the defendant was residing upon and occupying the land in virtue of a lawful homestead settlement antedating the second indemnity selection, it would have been the duty of the Secretary of the Interior to disapprove the selection, and no doubt he would have done

But the real facts were not disclosed. On the contrary, it was claimed and alleged by the agent who acted for Sage, trustee, in making the selection, that the land was then vacant and unappropriated, and on that representation the Secretary's approval was given. Thus, the title was wrongfully obtained by one who was not entitled to it, and another who had earned the right to receive it was prevented from obtaining it when subsequently he came to assert his right before the Land Department. Whatever may have been the cause of the defendant's delay in so asserting his right, there is no suggestion that he either knew of or acquiesced in the representation that the land was vacant and unappropriated, or that he was in any wise apprised of the filing, pendency or approval of the second selection until after the land had passed out of the jurisdiction of the Land Department by the certification under the land grant. In short, the proceeding was essentially ex parte, and he was neither heard nor given an opportunity to be heard.

In these circumstances we think it is a necessary conVOL. CCXXVII-34

clusion that the title acquired by Sage, trustee, was held by him in trust for the defendant, and that it is now held upon a like trust by the plaintiff, who took with full notice and knowledge of the defendant's occupancy and claim. Rector v. Gibbon, 111 U. S. 276, 291; Widdicombe v. Childers, 124 U. S. 400, 405; Duluth & Iron Range Railroad Co. v. Roy, 173 U. S. 587.

As the state courts proceeded upon the theory that the second selection gave the better right notwithstanding the defendant's claim was first in time, the judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

Reversed.

ROSS v. STEWART.

ERROR TO THE SUPREME COURT OF THE STATE OF

OKLAHOMA.

No. 140. Submitted January 23, 1913.-Decided February 24, 1913.

Congress has power to invest a townsite commission with power to determine contests between rival claimants to lots in a townsite in Indian lands acquired and thrown open to settlement.

The acts providing for designation, surveying and platting townsites in the Cherokee lands and disposing thereof plainly show the intent of Congress to commit the appraisal and disposal of the lots to the commission created by the acts, subject to supervision by the Secretary of the Interior.

The provisions of the acts do not contemplate the determination of conflicting possessory claims without inquiry into the merits. All reasonable presumptions must be indulged in support of the action of administrative officers to whom the law entrusts proceedings determining priority of claims; and in the absence of material error of law, or of misrepresentation or fraud practiced on or by them, their action should stand approved by the court.

The presumption is that a contest has been commenced in time, otherwise it would not have been entertained.

Where the party to a contest and his attorney have been notified that

no answer had been filed on his behalf, and they take no steps to correct this omission, and the case is decided adversely to him, the failure to file the answer furnishes no ground for avoiding the decision.

One failing to answer raises no issue entitling him to a hearing, and he cannot afterwards be heard to complain that he was denied a hearing. A hearing and decision on a contest where the contestant files no answer after notice is not an ex parte proceeding, but an adversary proceeding. Misrepresentation and fraud that will entitle a contestant to open a decision in a land contest must be such as prevented him from presenting his side of the controversy or the officer deciding it from considering it. It is not enough to charge falsity in pleadings or perjury of witnesses. Estes v. Timmins, 199 U. S. 391. 25 Oklahoma, 611, affirmed.

THE facts, which involve the title to land in a townsite of the Cherokee country and the power of the Townsite Commission to settle contests, are stated in the opinion.

Mr. W. H. Kornegay for plaintiff in error.

Mr. Joseph C. Stone, Mr. Charles G. Watts and Mr. Jess W. Watts for defendant in error.

MR. JUSTICE Van Devanter delivered the opinion of the court.

A lot in the townsite of Sallisaw, in the Cherokee Nation, is here in dispute. The conflicting claims are both founded upon the legislation of Congress providing for the designation, survey and platting of townsites in the Cherokee lands, and the appraisal and disposal of the lots. Acts, June 28, 1898, 30 Stat. 495, 500, c. 517, § 15; May 31, 1900, 31 Stat. 221, 237-238, c. 598; July 1, 1902, 32 Stat. 716, 722, c. 1375, §§ 38-58, 65. After the townsite was