The following questions are essential for determination:
(1) Was the action of the Governor in convoking the Legislature at Oklahoma City valid?
(2) Was said legislative body as convoked at said extraordinary session legally constituted?
(3) Is a certain act passed at said session, entitled "An act providing for the permanent location of the seat of government and capital of the state of Oklahoma, creating a board of capital commissioners and defining its powers and duties, authorizing the Governor to accept for capital purposes the proceeds of the sale of land or donations from other sources, and declaring an emergency," a special or local law?
(4) Is the title of said act repugnant to section 57 of article 5 of the Constitution?
(5) Is said act void for the reason that it was not read on three different days in each House?
(6) Is said act violative of the provisions of the Enabling Act requiring that the capital of the state "shall temporarily be at the city of Guthrie and not be changed therefrom previous to A.D. 1913, after which time it shall be located by the electors of said state at an election to be provided for by the Legislature," with *Page 123 the limitation that the Legislature, except as shall be necessary for the convenient transaction of the public business of said state at said capital, shall not appropriate any public moneys of the state for the erection of buildings for capital purposes during such period?
(7) Can the Legislature locate the capital of the state?
1. Section 14 of article 6 of the Constitution of this state provides that the Governor "may convoke the Legislature at, or adjourn it to, another place, when, in his opinion, the public safety or welfare, or the safety or health of the members require it; provided, however, that such change or adjournment shall be concurred in by a two-thirds vote of all the members elected to each branch of the Legislature." The obvious meaning of this provision is that when the Governor convokes the Legislature in session at any place other than the capital, after assembling, each House must separately concur in such convocation by a two-thirds vote of all the members elected to the respective bodies. It is admitted that by a two-thirds vote of all the members elected to each branch of the Legislature such call was separately concurred in, after the Legislature assembled in Oklahoma City. If it was necessary for the Legislature to first meet at Guthrie, the seat of government, and, having concurred in such call, to adjourn to the place at which it was originally convoked, said provision of section 14,supra, must be construed to mean that the Governor may convoke the Legislature at another place other than the capital, when, in his opinion, the public safety or welfare, or the safety or health of the members may require it, provided, however, that such change shall be concurred in by a two-thirds vote of all the members elected to each branch of the Legislature, at a meeting held at the capital before assembling at the place to which it was convoked. Such seems not to be the reasonable construction. It was evidently contemplated by the framers of the Constitution that before the Governor would convoke the Legislature at a place other than the seat of government, an emergency would exist involving the public safety or welfare, or the safety or health of the members *Page 124 requiring such temporary change in the place of assembling, and if such exigency required them to assemble at another place, it would not be reasonable to suppose it was intended, or be reasonably practicable for, the Legislature to first assemble at the seat of government and concur in such call of the Governor, before they could legally assemble at the place to which they were convoked. Such emergency as was contemplated would, in most instances, render that impossible; for instance, in time of war, insurrection, epidemics, or pestilence, etc.
The reasonable construction is that after they were convoked at such other place, when they assembled, unless two-thirds of all the members elected to each branch of the Legislature separately concurred in such call then such call would be a nullity. It appearing that such call was so concurred in after assembling at the place to which they were convoked, the action of the Governor and the Legislature in the premises is conclusive upon, and not subject to be reviewed by, this court.Oklahoma City v. Shields, 22 Okla. 305, 100 P. 559; State exrel. v. Brown, Judge, 24 Okla. 433, 103 P. 762; Martin v.Mott, 12 Wheat. 19, 6 L.Ed. 537; In re Special Session,9 Colo. 642, 21 P. 477; People v. Hatch, 33 Ill. 9; Farrelly v. Cole,60 Kan. 356, 56 P. 492, 44 L. R. A. 464; Taylor v. Beckham,108 Ky. 278, 56 S.W. 177, 49 L. R. A. 258, 94 Am. St. Rep. 357;People v. Rice, 65 Hun, 236, 20 N.Y. Supp. 293; People v.Parker, 3 Neb. 409, 19 Am. Rep. 634; Vanderheyden v. Young, 11 Johns. (N. Y) 150; In re Legislature Adjournment, 18 R.I. 824,27 A. 324, 22 L. R. A. 716; State v. Fair, 35 Wn. 127, 76 P. 731, 102 Am. St. Rep. 897.
2. Section 9, art. 5, of the Constitution of this state, provides:
"The Senate, except as hereinafter provided, shall consist of not more than forty-four members, whose terms of office shall be four years: Provided, that one senator elected at the first election from each even numbered district shall hold office until the fifteenth day succeeding the regular state election in nineteen hundred and eight, and one elected from each odd-numbered district at said first election, shall hold office until the fifteenth day succeeding the day of the regular state election in nineteen hundred *Page 125 and ten: And provided further, that in districts electing two senators the two elected at the first election shall cast lots in such manner as the Legislature may prescribe to determine which shall hold the long and which the short term."
And section 10 of article 5 of the Constitution provides:
"The House of Representatives, unless otherwise provided by law, shall consist of not more than one hundred and nine members who shall hold office for two years. Provided, that the representatives elected at the first election shall hold office until the fifteenth day succeeding the day of the regular state election in nineteen hundred and eight: And provided, that the day on which state elections shall be held shall be fixed by the Legislature.
"(a) The first Legislature shall meet at the seat of government upon proclamation of the Governor on the day named in said proclamation, which shall not be more than thirty days nor less than fifteen days after the admission of the state into the Union. * * *"
Section 40 of the Schedule of the Constitution is as follows:
"The terms of all officers of the state government elected at the time of the adoption of this Constitution shall begin upon the admission of the state into the Union."
Section 41 of the Schedule also provides:
"All persons elected at the time of the adoption of this Constitution to any of the offices provided under the Constitution shall be deemed to have duly qualified upon their taking the oath of office before any officer authorized by law to administer oaths, and executing such bond as may be required by law."
If no provisos had been inserted in sections 9 and 10,supra, it would be clear that it was the intention of the framers of the Constitution that the terms of the members of the House would begin on the date of the admission of the state into the Union, and continue for two years. The ordinance under which the Constitution was submitted to the electors of the proposed state for ratification or rejection, and the first set of state officers, including county and township officers, were elected, at an election held on the 17th day of September in 1907, provided that on Friday following the day on which such election was to be held, to wit, Tuesday, the returns in each county should be canvassed and certified copies or abstracts as to state and district officers, together with the vote as *Page 126 to the Constitution, be immediately returned to the Secretary of the Territory of Oklahoma, and provided that on the 8th day of October, 1907, or as soon thereafter as practicable, the same should be opened, canvassed, and the result certified and transmitted to the President of the United States, as provided in the Enabling Act (Act June 16, 1906, c. 3335, 34 Stat. 267).
The framers of the Constitution evidently recognized that the terms of the members of the Lower House and of the short-term Senators of the First Legislature would be less than two years. In providing for such terms to expire on the fifteenth day succeeding the day of the regular state election in 1908, it was fixing a date certain, not only on which the terms of such members of that Legislature should expire in said year; but also on which the terms of their successors should begin. This is a reasonable construction producing harmony. Any other construction would bring about an unreasonable condition, or an interregnum between the fifteenth day succeeding the day of the regular state election in 1908, and the 1st day of January, 1909. Interregnums are not favored in law. Section 10 of article 23 of the Constitution was adopted, which provides:
"Except wherein otherwise provided in this Constitution, in no case shall the salary or emoluments of any public official be changed after his election or appointment, or during his term of office, unless by operation of law enacted prior to such election or appointment; nor shall the term of any public official be extended beyond the period for which he was elected or appointed: Provided, that all officers within this state shall continue to perform the duties of their office until their successors shall be duly qualified."
This section is cited by the plaintiff in support of his contention that the Legislature was not properly constituted. If plaintiff's contention be true, the framers of the Constitution deliberately fixed the date of the termination of the terms of the members of the Lower House and of the short-term Senators of the First Legislature at a certain date, and then, recognizing that section 3355 of Wilson's Rev. Ann. St. 1903 (section 3110, St. Okla. T. 1893), would be extended in force in the state by virtue *Page 127 of section 2 of the Schedule to the Constitution, in effect operating to extend such terms from the fifteenth day succeeding the day of the regular state election in November, 1908, to the 1st day of January, 1909, by providing that all officers within this state shall continue to perform the duties of their offices until their successors shall be duly qualified. If that was contemplated, why not provide that such members of the House and short-term Senators should hold to January 1, 1909, and not put the framers in the attitude of reaching such a result by such hotchpotch means. This contention is contrary to the spirit of section 10, art. 23,supra. According to plaintiff's contention said section 3355,supra, an act of the Legislature of Oklahoma Territory as it was continued in force by section 2 of the Schedule after the erection of the state, had the effect of extending the terms, not only of all the members of the Lower House, but of the short-term Senators of the First Legislature, which was contrary to the spirit of said section.
The proviso that all officers within this state shall continue to perform the duties of their office until their successors shall be duly qualified does not enlarge on what goes before in said section, but is intended to cover exigencies arising from a failure in an election or appointment, or after an election or appointment being had or made the officer fails to qualify, in which event the incumbent of such office should hold until such qualification was made, showing, the abhorrence of the framers of the Constitution of bringing about an interregnum. The terms of the members of the Lower House and of the short-term Senators of the First Legislature having expired on the fifteenth day after the regular state election in November, 1908, their successors having been duly elected in such state election, when they took the oath of office prescribed by section 1 of article 15 of the Constitution, were duly qualified and succeeded to such office, and it was not within the power of the Legislature of the state to extend the original terms of the members of the Lower House and the short-term Senators of the First Legislature, thereby depriving the representatives coming *Page 128 immediately from the powers of sovereignty of sitting within the legislative halls as representatives of the people.
Further, when we consider the fact that the term of the Governor would expire on the second Monday of January, 1911, and every four years thereafter, there would probably be sufficient intervening time between the date on which the regular state election would be held and the expiration of the Governor's term in which a special or extraordinary session of the Legislature could be convened, we are confirmed in the foregoing conclusion. If there should be a revolt by the people in sentiment against the administration of the executive department resulting in the election of a new Legislature and a new Governor, who would inaugurate a policy different from that of the preceding administration, of the terms of the members of the Lower House and one-half of the Senate expired at the same time as the term of the Governor, it might result in the chief executive calling an extraordinary session of the Legislature and the members thereof to enact laws, when members had been more recently elected by the people with a contrary mandate. It is to be apprehended that the preventing of such was in view when these provisions were incorporated in the Constitution. Sections 9 and 10 of article 5, and 40 and 41 of the Schedule to the Constitution, pertain to the same general subject-matter, and accomplish the same general purpose as section 3355, Wilson's Rev. Ann. St., supra (section 3110, St. Okla. T. 1893).
In Smock v. Farmers' Union State Bank, 22 Okla. 825,98 P. 945, this court said:
"House Bill No. 615 covers the entire grounds of said chapter 8, Wilson's Rev. Ann. St. 1903, and of the four subsuquent acts of the legislature above referred to. It pertains to the same general subject-matter, and seeks to accomplish the same general purpose and in the main is a re-enactment of those statutes in the same language, and we are therefore of the opinion that said act was intended by the Legislature as a substitute for all the laws then existing upon the subject-matter *Page 129 dealt with in that act, and that said former laws were repealed by it."
This rule was again affirmed in Ripey Son v. Art Wall PaperMills, 27 Okla. 600, 112 P. 1119. Under this rule of construction said section 3355 would be repealed by substitution, and therefore was not brought over by section 2 of the Schedule. Both bodies of the Legislature construed these provisions of the Constitution in the organization of their separate bodies and determining their respective memberships. This determination, relating solely to political questions, was by a branch of government co-ordinate to this court. This determination and conclusion reached by the legislative department was also concurred in by the executive department.
It is a recognized rule of construction that if the meaning of a constitutional provision is doubtful, a practical construction thereof by the Legislature will be followed by the courts, if it can be done without doing violence to the fair meaning of the words used in order to sustain the constitutionality of the statute. 8 Cyc. 737, and authorities cited in footnote 82. "Where the questions involved are of a political character, and action depends upon the construction to be given a constitutional provision or statute, courts will not only give great consideration to constructions of such provisions or statutes by the political departments of the government in doubtful cases. * * *" 8 Cyc. 727; Luther v.Borden, 7 How. 1, 12 L.Ed. 581; Griffin's Case, Chase (U.S.) 364, Fed. Cas. No. 5,815, 2 Am. Law T. Rep. U.S. Cts. 93, 8 Am. Law Reg. (N. S.) 358, 3 Am. Law Rev. 784, 2 Balt. Law Trans. 433, 25 Tex. Supp. 623; U.S. v. Lytle, 5 McLean (U.S.) 9, Fed. Cas. No. 15,652.
In Betts v. Commissioners of the Land Owce, 27 Okla. 64,110 P. 769, this court said:
"The Commissioners of the Land Office, a branch of the executive department of the state, having construed such rules and regulations as to include the authority to pay the necessary expenses *Page 130 and cost of such leasing out of the rentals, and the Legislature, after having knowledge of such construction, having failed to make an appropriation therefor, pursuant to section 55 of article 5 of the Constitution, evidently placed a like construction thereon, and the co-ordinate branches of government, to wit, the executive and legislative departments, having so construed said provisions, such concurring construction, though not controlling, is persuasive (Higgins v. Brown, 20 Okla. 355, 94 P. 703; Territory v. LongBell Lbr. Co., 22 Okla. 890, 99 P. 911; City Council, etc.,v. Board of Commissioners, etc., 33 Colo. 1, 77 P. 858), * * *"
We do not feel that we would be justified in declaring the Legislature as organized in Oklahoma City to be an illegal body.
3. Section 32 of article 5 of the Constitution provides "that no special or local law shall be considered by the Legislature until notice of the intended introduction of such bill or bills shall first have been published for four consecutive weeks in some weekly newspaper published or of general circulation in the city or county affected by such law, stating in substance the contents thereof, and verified proof of such publication filed with the Secretary of State."
In Cordova v. State, 6 Tex. App. 218[6 Tex.Crim. 218], it is said:
"An ordinance passed by the Convention of 1875, which framed our present state Constitution, fixes the terms of the holding of the district court in the county of Bexar to the fourth Mondays in April and October, until otherwise provided by law. Article 5, § 7, of the Constitution, reads as follows: 'The state shall be divided into twenty-six judicial districts, which may be increased or diminished by the Legislature. For each district, there shall be elected by the qualified voters thereof, at a general election for members of the Legislature, a judge, who shall be at least twenty-five years of age, shall be a citizen of the United States, shall have been a practicing attorney or a judge of a court of this state for a period of four years, and shall have resided in the district in which he is elected for two years next before his election; * * * and shall hold the regular term of court at one place in each county twice in each year, in such manner as may be prescribed by law. The Legislature shall have power, by general act, to authorize the holding of special terms, when necessary, and to provide for holding more than two terms of the court in any county, *Page 131 for the dispatch of business.' Article 3, § 57, of the Constitution is as follows: 'No local or special law shall be passed, unless notice of the intention to apply therefor shall have been published in the locality where the matter or thing to be affected may be situated, which notice shall state the contemplated law, and shall be published at least 30 days prior to the introduction into the Legislature of such bill, and in the manner to be provided by law. The evidence of such notice having been published shall be exhibited in the Legislature before such act shall be passed.' The defendant claims that the act of the Legislature which gives five terms of the district court to Bexar county is in contravention of the provisions of the Constitution, and is therefore null and void. All acts of the Legislature must be sustained by the courts, unless they are clearly and undoubtedly repugnant to the Constitution. The judiciary looks to the acts of the Legislature with just respect, and reconciles them with the Constitution, and sustains them, if possible. In expounding a constitutional provision, such construction should be employed as will prevent any clause, sentence, or word from being superfluous, void, or insignificant. The thing to be sought is the thought expressed. Contemporaneous legislative construction is always considered in force. The Constitution, in express terms, having conferred upon the Legislature the power, by general law, to provide for more than two terms of the district court in any county, the Legislature, in passing the act under consideration, has, we believe, kept within its constitutional limits. The act which provides for five terms of the district court of Bexar county is not a 'local' or 'special' law, in the sense in which these terms are used in the Constitution. Said act is on a general subject — the regulation of the courts — which cannot be said to affect the welfare and interest of that district alone."
In State v. Corson, 67 N.J. Law, 178, 50 A. 780, it is said:
"As to the contention that this act is a local or special law regulating the internal affairs of counties and granting exclusive privileges to individuals: The act is said to regulate the internal affairs of counties, because it applies only to the tide waters of Delaware Bay and Maurice river cove, which lie entirely within the counties of Cape May and Cumberland. But, although the area of application is limited to those counties, it clearly does not regulate their internal affairs, for it deals exclusively with property rights of the state, in which every citizen has an interest. That it *Page 132 confers exclusive privileges, however, is apparent. As was said in State v. Post, 55 N.J. Law, 264 [26 A. 683], the right to plant and cultivate oysters on the lands of the state is a privilege, and inasmuch as the statute excludes from the enjoyment of that right every one except the lessees of the state and their licensees, the privilege is an exclusive one. But this fact does not deprive the state of power to appropriate all or any part of its lands under water for the encouragement and protection of the planting and cultivation of oysters, and to grant rights therein for that purpose. Its effect is to require such appropriation to be made by general laws, and it prevents the selection of individuals or corporations as the objects of the state's bounty to the exclusion of other citizens of the state. State v. Post, supra. Is the law, then, a special or local law, and does it exclude any of the citizens of the state from participating in the privileges which it confers? A statute is not special or local merely because it authorizes or prohibits the doing of a thing in a certain locality. It is, notwithstanding this fact, a general law, if it applies to all the citizens of the state and deals with a matter of general concern. Doughty v. Conover, 42 N.J. Law, 193. The application of this principle led this court, in the case cited, to the conclusion that a statutory provision which made it unlawful for any person to net fish during certain periods of the year 'in the waters of Burlington and Atlantic' was not special or local, but general. Although it deals with the lands of the state under tide water only in certain localities, the matters which it regulated are of general, not local, concern. The lands themselves belong to the people of the state, not to the citizens of the counties where they are located."
See, also, Holt v. Mayer Aldermen of Birmingham, 111 Ala. 369, 19 So. 735; City of Pond Creek v. Haskell,21 Okla. 711, 97 P. 338; Anderson v. Ritterbusch, 22 Okla. 761,98 P. 1002.
If said act be a special act, then every act of the Legislature fixing the salary of the Governor of the state, or the terms of the Supreme Court, or locating or making an appropriation for any particular state institution, would be a special act, and in order to change the salary of the Governor, or fix the terms of the Supreme Court, or locate or make an appropriation for such state institution, it would be necessary to first publish a notice as required by section 32 of article 5, supra. This provision of the Constitution *Page 133 should receive a reasonable construction. This notice was required to be published where laws applying solely to particular individuals, or to any particular locality, were sought to be passed for the benefit or prejudice of such locality, in order that they might have an opportunity to appear before the Legislature and remonstrate against the passage of such law if they did not think it was wise. But when such law applies to every part of the state, locating the capital for the entire state, the very fact that it locates it at a particular spot does not make it a special law.
4. Plaintiff urges that the title of the act in question, to wit, "An act providing for the permanent location of the seat of government and capital of the state of Oklahoma, creating a board of capital commissioners and defining its powers and duties, authorizing the Governor to accept for capital purposes the proceeds of the sale of land, or donations from other sources, and declaring an emergency," violates section 57 of article 5 of the Constitution, which provides:
"Every act of the Legislature shall embrace but one subject, which shall be expressed in its title, except general appropriation bills, general revenue bills, and the bills adopting a code, digest, or revision of statutes; and no law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title, but only so much thereof as is revived, amended, extended, or conferred, shall be re-enacted and published at length: Provided, that if any subject be embraced in any act contrary to the provisions of this section, such act shall be void only as to so much of the law as may not be expressed in the title thereof."
In State v Street et al., 117 Ala. 203, 23 So. 807, in an opinion by the late Chief Justice Brickell, it was said:
"* * * We could not hesitate to affirm that the act is free from all just objection as wanting in clearness in the expression of its subject in the title, or of duplicity in the expression of two dissimilar subjects, not having logical and legal connection. It is difficult to conceive of any two matters so treated by common law, and by legislation, and in popular understanding, as constituting but one general subject, as public roads and bridges."
This case was cited with approval by this court in Rea,County *Page 134 Clerk, v. Board of County Commissioners, Lincoln County, et al. (decided at its September, A.D. 1910, term, but not yet officially reported).1 The title of this act relates to the permanent location of the seat of government — or capital of the state; the other parts thereof providing for a board of capital commissioners, to the end that a capitol, or a building for the state officers, may be erected thereon, are cognate to the main subject. Certainly if bridges are cognate to the subject of roads, as the bridge when attached to the soil becomes a fixture and a part of the realty, so will the capitol, or building for the housing of the state officers, when placed upon the grounds where the capital is located, become a part of the same as a fixture. See, also, State exrel. v. Hooker, Judge, 22 Okla. 712, 98 P. 964.
5. It is insisted that the bill was not read upon its passage on three different days in each House, as required by section 34 of article 5 of the Constitution, and for that reason this court should declare the same invalid, although the presiding officer of each House has signed said bill, and the same has been duly approved by the Governor and filed with the Secretary of State. This question has been settled against the contention of plaintiff in Atchison, Topeka Santa Fe Ry. Co. v. State,ante, 113 P. 921. Paragraph 1 of the syllabus is as follows:
"When an enrolled bill has been signed by the Speaker of the House and by the President of the Senate, respectively, in the presence of those bodies immediately after the bill has been read publicly at length, and the same has been approved by the Governor and deposited in the office of the Secretary of State, it is not competent to show from the journals of the House that the act so authenticated, approved, and deposited did not pass in the form in which it was signed by the presiding officers and approved by the Governor."
There is no contention that the bill was not signed by the Speaker of the House and the presiding officers of the Senate, respectively, in the presence of said bodies immediately after the *Page 135 same had been read publicly at length, or that the same had not been approved by the Governor and deposited in the office of the Secretary of State. This being so, it is not competent to show from the journals of the House that the act so authenticated had not been read on three different days in each House.
6. The Enabling Act of Alabama (March 2, 1819, c. 47, 3 Stat. 491, § 6, par. 4) in part provides:
"That the said convention shall provide, by an ordinance irrevocable without the consent of the United States, that the people inhabiting the said territory, do agree, and declare * * *; and that all navigable waters within the said state shall forever remain the public highways, free to the citizens of said state and of the United States, without any tax, duty, impost, or toll therefor, imposed by the said state."
In Pollard et al. v. Hagan et al., 3 How. 212, 11 L.Ed. 565 (decided in 1845), Mr. Justice McKinley, in delivering the opinion of the court, said:
"The contract made between the United States and the state of Georgia was sanctioned by the Constitution of the United States, by the third section of the fourth article of which it is declared that 'new states may be admitted by the Congress into this Union; but no new state shall be formed or erected within the jurisdiction of any other state, nor any state be formed by the junction of two or more states or parts of states, without the consent of the Legislature of the states concerned, as well as of Congress.' When Alabama was admitted into the Union, on an equal footing with the original states, she succeeded to all the rights of sovereignty, jurisdiction, and eminent domain which Georgia possessed at the date of the cession, except so far as this right was diminished by the public lands remaining in the possession and under the control of the United States, for the temporary purposes provided for in the deed of cession, and the legislative acts connected with it. Nothing remained to the United States, according to the terms in the agreement, but the public lands. And, if an express stipulation had been inserted in the agreement, granting the municipal right of sovereignty and eminent domain to the United States, such stipulation would have been void and inoperative, because the United States have no constitutional capacity to exercise municipal jurisdiction, sovereignty and eminent domain, within the limits of a state *Page 136 or elsewhere, except in the cases in which it is expressly granted. * * * Alabama is therefore entitled to the sovereignty and jurisdiction over all the territory within her limits, subject to the common law, to the same extent that Georgia possessed it before she ceded to the United States. To maintain any other doctrine, is to deny that Alabama has been admitted into the Union on an equal footing with the original states, the Constitution, laws, and compact to the contrary notwithstanding. But her rights of sovereignty and jurisdiction are not governed by the common law of England as it prevailed in the colonies before the Revolution, but as modified by our Constitutions. In the case of Martin et al. v. Waddell (16 Pet. 410 [10 L.Ed. 997]), the present Chief Justice, in delivering the opinion of the court, said: 'When the Revolution took place the people of each state became themselves sovereign; and in that character hold the absolute right to all navigable waters, and the soils under them for their own common use, subject only to the rights since surrendered by the Constitution.' Then to Alabama belong the navigable waters, and soils under them, in controversy in this case, subject to the rights surrendered by the Constitution to the United States; and no compact that might be made between her and the United States could diminish or enlarge these rights."
Permoli v. Municipality of New Orleans, 3 How. 590, 11 L.Ed. 739 (decided in 1845), follows and approves the principles announced in the foregoing case.
Section 5 of the Enabling Act for Ohio (Act April 30, 1802, c. 40, 2 Stat. 174), provided that the proposed Constitution should be republican and not repugnant to the ordinance of the 13th of July 1787, 1 Stat. 52, note (1 U.S. Comp. St. 1901, p. lvii) between the original states and the people and the states of the territory northwest of the Ohio river.
In Strader et al. v. Graham, 10 How. 82, 13 L.Ed. 337 (decided in 1850), Mr. Chief Justice Taney, in delivering the opinion of the court, said:
"But it seems to be supposed in the argument that the law of Ohio upon this subject has some peculiar force by virtue of the Ordinance of 1787, for the government of the northwestern territory, Ohio being one of the states carved out of it. One of the articles of this Ordinance provides that 'there shall be neither *Page 137 slavery nor involuntary servitude in the said territory, otherwise than in punishment for crimes whereof the party shall have been duly convicted: Provided always, that any person escaping into the same, from whom labor or service is lawfully claimed in any of the original states, such fugitives may be lawfully reclaimed and conveyed to the person claiming his or her labor or service as aforesaid.' And this article is one of the six which the Ordinance declares shall be a compact between the original states and the said territory, and forever remain unalterable unless by common consent. The article assumes that the six articles which that Ordinance declares to be perpetual are still in force in a state since formed within the territory, and admitted into the Union. If this proposition could be maintained, it would not alter the question. For the regulations of Congress, under the old Confederation or the present Constitution; for the government of a particular territory, could have no force beyond its limits. It certainly could not restrict the power of the states within their respective territories; nor in any manner interfere with their laws and institutions; nor give this court any control over them. The Ordinance in question, if still in force, could have no more operation than the laws of Ohio in the state of Kentucky, and could not influence the decisions upon the rights of the master or the slaves of that state, nor give this court jurisdiction upon the subject. But it has been settled by judicial decision in this court that this Ordinance is not in force. The case of Permoli v. First Municipality, 3 How. 589 [11 L.Ed. 739], depended upon the same principles with the case before us. It is true that the question in that case arose in Louisiana. But the act of Congress of April 7, 1798, c. 28, 1 Stat. 549, extended the Ordinance of 1787 to the then territory of Mississippi, with the exception of the anti-slavery clause; and declared that the people of that territory should be entitled to and enjoy all the rights, privileges, and advantages granted to the people of the territory northwest of the Ohio. And by the act of March 2, 1805, c. 23, 2 Stat. 322, it was enacted that the inhabitants of the then territory of Orleans should be entitled to and enjoy all the rights, privileges, and advantages secured by the ordinance of 1787, and at that time enjoyed by the people of the Mississippi Territory.
"In the case above mentioned, Permoli claimed the protection of the clause in one of the six articles which provides for the freedom of religion, alleging that it had been violated by the First *Page 138 Municipality. And he brought the question before this court, upon the ground that it had jurisdiction under the Ordinance. But the court held that the Ordinance ceased to be in force when Louisiana became a state, and dismissed the case for want of jurisdiction. This opinion is, indeed, confined to the territory in which the case arose. But it is evident that the Ordinance cannot be in force in the states formed in the northwestern territory, and at the same time not in force in the states formed in the southwestern territory, to which it was extended by the present government. For the Ordinance and pledges of the Congress of the old Confederation cannot be more enduring and obligatory than those of the new government; nor can there be any reason for giving a different interpretation to the same words used in similar instruments, because the one is by the old Confederation and the other by the present government. And when it is decided that this Ordinance is not in force in Louisiana, it follows that it cannot be in force in Ohio. But the whole question upon the Ordinance of 1787, and the acts of Congress extending it to other territory afterwards acquired, was carefully considered in Pollard v. Hagan, 3 How. 212 [11 L.Ed. 565]. The subject is fully examined in the opinion pronounced in that case, with which we concur; and it is sufficient now to refer to the reasoning and principles by which that judgment is maintained, without entering again upon a full examination of the question.
"Indeed, it is impossible to look at the six articles which are supposed, in the argument, to be still in force, without seeing at once that many of the provisions contained in them are inconsistent with the present Constitution. And if they could be regarded as yet in operation in the states formed within the limits of the northwestern territory, it would place them in an inferior condition as compared with the other states, and subject their domestic institutions and municipal regulations to the constant supervision and control of this court. The Constitution was, in the language of the Ordinance, 'adopted by common consent,' and the people of the territories must necessarily be regarded as parties to it, and bound by it, and entitled to its benefits, as well as the people of the then existing states. It became the supreme law throughout the United States. And so far as any obligations of good faith had been previously incurred by the Ordinance, they were faithfully carried into execution by the power and authority of the new government. In fact, when the Constitution was adopted, the *Page 139 settlement of that vast territory was hardly begun; and the people who filled it, and formed the great and populous states that now cover it, became inhabitants of the territory after the Constitution was adopted, and migrated upon the faith that its protection and benefits would be extended to them, and that they would in due time, according to its provisions and spirit, be admitted into the Union upon an equal footing with the old states. For the new government secured to them all the public rights of navigation and commerce which the Ordinance did or could provide for; and, moreover, extended to them when they should become states much greater power over their municipal regulations and domestic concerns than the Confederation had agreed to concede. The six articles, said to be perpetual as a compact, are not made a part of the new Constitution, and cannot confer power and jurisdiction upon this court. The whole judicial authority of the courts of United States is derived from the Constitution itself, and the laws made under it.
"It is undoubtedly true that most of the material provisions and principles of these six articles, not inconsistent with the Constitution of the United States, have been the established law within this territory ever since the Ordinance was passed; and hence the Ordinance itself is sometimes spoken of as still in force. But these provisions owed their legal validity and force, after the Constitution was adopted and while the territorial government continued, to the act of Congress of August 7, 1789 [c. 8, 1 Stat. 50], which adopted and continued the Ordinance of 1787, and carried its provisions into execution, with some modifications, which were necessary to adopt its form of government to the new Constitution. And in the states since formed in the territory, these provisions, so far as they have been preserved, owe their validity and authority to the Constitution of the United States, and the Constitutions and laws of the respective states, and not to the authority of the Ordinance of the old Confederation. As we have already said, it ceased to be in force upon the adoption of the Constitution, and cannot now be the source of jurisdiction of any description in this court."
The Enabling Act for Mississippi (March 1, 1817, c. 23, 3 Stat. 348), provided that the Constitution when formed should not be repugnant to the principles of the Ordinance of the 13th of July, 1787, between the people and states of the territory northwest *Page 140 of the Ohio river, so far as the same had been extended to the said territory by the articles of agreement between the United States and the state of Georgia, or of the Constitution of the United States, and also that the said convention should provide by an ordinance irrevocable that the people inhabiting said territory do agree and declare that the river Mississippi, and the navigable waters and rivers leading into the same, or into the Gulf of Mexico, shall be common highways, and forever free, as well to the inhabitants of the said state as to other citizens of the United States, without any tax, duty, impost, or toll therefor, imposed by the said state. The act admitting said state into the Union (December 10, 1817, 3 Stat. 472), declared that the people of the said territory did, on the 15th day of August in that year, by convention, frame for themselves a Constitution and state government in conformity to the principles of the articles of compact between the original states and the people and states in the territory northwest of the river Ohio, etc., and that the state of Mississippi is declared to be one of the United States of America, and admitted into the Union on an equal footing with the original states, in all respects whatever.
In Withers v. Buckley, 20 How. 84, 15 L.Ed. 820, decided by an unanimous opinion, it is said:
"In considering this act of Congress of March 1, 1817, it is unnecessary to institute any examination or criticism as to its legitimate meaning, or operation, or binding authority, farther than to affirm that it could have no effect to restrict the new state in any of its necessary attributes as an independent sovereign government, not to inhibit or diminish its perfect equality with the other members of the confederacy with which it was to be associated. These conclusions follow from the very nature and objects of the confederacy, from the language of the Constitution adopted by the states, and from the rule of interpretation pronounced by this court in the case ofPollard's Lessee v. Hagan, 3 How. 223 [11 L.Ed. 565]."
The Enabling Act of Illinois (April 18, 1818, c. 67, 3 Stat. 428), provided that the Constitution should not be repugnant to the Ordinance of the 13th of July, 1787, between the original *Page 141 states and the people and the states of the territory northwest of the Ohio river, except so much of said articles as related to the boundaries of the states therein to be formed. The resolution of Congress admitting the state (December 3, 1818) declared that the Constitution and state government so formed, being in conformity to the principles of the articles of the compact between the original states and the people and states in the territory northwest of the Ohio river, passed by the people in said territory on the 13th of July, 1787, the state of Illinois is declared to be admitted into the Union on an equal footing with the original states in all respects whatever.
Speaking of the Ordinance of 1787, in Escanaba, etc., Co. v.City of Chicago, 107 U.S. 678-691, 2 Sup. Ct. 193 (27 L.Ed. 442), the court said:
"* * * Although the act of April 18, 1818 (enabling the people of Illinois Territory, to form a Constitution and state government, and the act of August 26th following, admitting the state into the Union), refer to the principles of the ordinance according to which the Constitution was to be formed, its provisions could not control the authority and powers of the state after her admission. Whatever the limitation upon her powers as a government, whilst in a territorial condition, whether from the Ordinance of 1787, or the legislation of Congress, it ceased to have any operative force except as voluntarily adopted by her after she became a state of the Union. On her admission she at once became entitled to and possessed all the rights of dominion and sovereignty which belonged to the original states. She was admitted and could be admitted only on the same footing with them."
In Huse v. Glover (C. C.) 11 Biss. 550, 15 Fed. 292, Mr. Justice Harlan, sitting on the circuit, said:
"Nor do we perceive that the power of the state in this respect is in any degree affected by the Ordinance of 1787, even if that ordinance as to the matters now under consideration be not superseded by the Constitution of the United States. Illinois entered the Union upon terms of equality in all respects with the states which existed at the time the Constitution was formed. In the statute of Virginia, authorizing the cession to the United States of the territory northwest of the Ohio river, and in the deed *Page 142 of cession, one of the conditions prescribed was that the states formed out of that territory should be admitted 'members of the federal Union, having the same rights of sovereignty, freedom, and independence as the other states.' The ordinance itself provided for the admission of the new states 'on an equal footing with the original states, in all respects whatever.' So that, it seems to the court Illinois has as full power and jurisdiction over her navigable streams as Virginia has over the navigable streams within her limits. * * *"
This opinion was approved by the Supreme Court of the United States in Huse v. Glover, 119 U.S. 543, 7 Sup. Ct. 313, 30 L.Ed. 487, in an opinion by Mr. Justice Field, wherein it is said:
"The opinion of that court presents in a clear and satisfactory manner the full answer to them, and nothing can be added to the force of its reasoning. In affirming its conclusions we can do little more than repeat its argument.Huse v. Glover (C. C.) 11 Biss. 550 [15 Fed. 292]. The fourth section of the ordinance for the government of the northwestern territory was the subject of consideration in Escanaba, etc.,Trans. Co. v. Chicago, 107 U.S. 678 [2 Sup. Ct. 185, 27 L.Ed. 442]. We there said that the ordinance was passed before the Constitution took effect; that although it appears by various acts of Congress to have been afterwards treated as in force in the territory, except as modified by them, and the act enabling the people of Illinois Territory to form a Constitution and state government, and the resolution of Congress admitting the state in to the Union, referred to the principles of the ordinance, according to which the Constitution was to be formed, its provisions could not control the powers and authority of the state after her admission; and whatever the limitation of her powers as a government whilst in a territorial condition, whether from the Ordinance of 1787 or the legislation of Congress, it ceased to have any operative force, except as voluntarily adopted by her, after she became a state of the Union; that on her admission she at once became entitled to and possessed of all the rights of dominion and sovereignty which belonged to the original states; that the language of the resolution admitting her was that she is 'admitted into the Union on an equal footing with the original states in all respects whatever'; and that she could, therefore, afterwards exercise the same powers over rivers within her limits *Page 143 as Delaware exercised over Blackbird creek, and Pennsylvania over Schuylkill river."
In this opinion the cases of Pollard v. Hagan, Permoli v.Municipality of New Orleans, and Strader v. Graham, supra, are cited with approval.
In Cardwell v. American River Bridge Co., 113 U.S. 205, 5 Sup. Ct. 423, 28 L.Ed. 959, wherein the Enabling Act for California (September 9, 1850) was construed, the cases ofPollard v. Hagan, Permoli v. Municipality, etc., Strader v.Graham, and Escanaba, etc., v. City of Chicago, supra, as to the foregoing principles, are cited with approval.
In Sands v. Manistee River Improvement Co., 123 U.S. 288, 8 Sup. Ct. 113, 31 L.Ed. 149, in an opinion by Mr. Justice Field, it is said:
"The Ordinance of 1787 was passed a year and some months before the Constitution of the United States went into operation. Its framers, and the Congress of the Confederation which passed it, evidently considered that the principles and declaration of rights and privileges expressed in its articles would always be of binding obligation upon the people of the territory. The Ordinance in terms ordains and declares that the articles 'shall be considered as articles of compact between the original states and people and states in the said territory, and forever remain unalterable unless by common consent.' And for many years after the adoption of the Constitution, its provisions were treated by various acts of Congress as in force, except as modified by such acts. In some of the acts organizing portions of the territory under separate territorial governments it is declared that the rights and privileges granted by the Ordinance are secured to the inhabitants of those territories. Yet, from the very condition on which the states formed out of that territory were admitted into the Union, the provisions of the Ordinance became inoperative except as adopted by them. All the states thus formed were, in the language of the resolutions or acts of Congress, 'admitted into the Union on an equal footing with the original states, in all respects whatever.' Michigan, on her admission, became, therefore, entitled to and possessed of all the rights of sovereignty and dominion which belonged to the original states, and could at any time afterwards exercise full control over the *Page 144 navigable waters except as restrained by the Constitution of the United States and laws of Congress passed in pursuance thereof."
And again the Permoli, Pollard, Escanaba, and Huse Cases are cited with approval.
In Williamette Iron Bridge Co. v. Hatch (C. C.) 19 Fed. 352, Judge Deady said:
"Although the grant of power to Congress to admit new states into this Union (U.S. Const. art. 4, § 3), is unqualified, yet it is well established by the Supreme Court that Congress cannot admit a state upon any other than an equal footing with the other states therein, and therefore cannot as a consideration of such admission, make any valid compact or enactment which shall deny to such state within its limits the municipal powers common to the others. Pollard v. Hagan, 3 How. 233 [11 L.Ed. 565]; Permoli v. New Orleans, 3 How. 589 [11 L.Ed. 739]; Strader v. Graham, 10 How. 92 [13 L.Ed. 337]. The act of 1859 admitting Oregon into the Union contains ([Act Feb. 14, 1859, c. 33, 11 Stat. 383] section 4) four propositions to the people of Oregon concerning the public lands therein, which, in consideration of a valuable grant of public land, they accepted by an act of Legislature of June 3, 1859. Deady Lane's Gen. Laws Or., p. 101. * * * By the first one, as we have seen, it was simply held that Congress cannot, by any compact or condition made with or laid upon the state on her admission into the Union, restrain or limit her municipal power as such state, but that, if the subject of the compact or condition is within the power of Congress to enact or regulate, without the consent of the state, as to declare that the navigable waters therein shall be 'common highways,' it is good as in law."
Circuit Judge Sawyer concurred with Judge Deady in the foregoing opinion.
In Williamette Iron Bridge Company v. Hatch, 125 U.S. 1, 8 Sup. Ct. 811, 31 L.Ed. 629, in an opinion by Mr. Justice Bradley, this case is reviewed, wherein it is said:
"This clause in question had its origin in the fourth article of the compact contained in the Ordinance of the Old Congress for the government of the territory northwest of the Ohio, adopted July 13, 1787, in which it was amongst other things declared that 'The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways *Page 145 and forever free, as well to the inhabitants of said territory as to the citizens of the United States, and those of any other states that may be admitted into the Confederacy without any tax, impost, or duty therefor.' 1 Stat. 52. This court has held that when any new state was admitted into the Union from the northwest territory the Ordinance in question ceased to have any operative force in limiting its powers of legislation as compared with those possessed by the original states. On the admission of any such new state, it at once becomes entitled to and possessed of all the rights of dominion and sovereignty which belonged to them. See the cases of Pollard v. Hagan,supra; Permoli v. First Municipality of N. O., 3 How. 489 (11 L.Ed. 739); Escanaba Co. v. Chicago; Cardwell v. AmericanBridge Co.; Huse v. Glover, qua supra. In admitting some of the new states, however, the clause in question has been inserted in the law, as it was in the case of Oregon, whether the state was carved out of the territory northwest of the Ohio, or not; and it has been supposed that, in this new form of enactment, it might be regarded as a regulation of commerce, which Congress has the right to impose. Pollard v. Hagan, 3 How. 212, 230 (11 L.Ed. 565, 574)."
See, also, State of Pennsylvania v. Wheeling, etc., BridgeCo. et al., 13 How. 518, 14 L.Ed. 269.
In Dred Scott v. Sandford, 19 How. 393, 15 L.Ed. 718, in an opinion by Chief Justice Taney, it is said:
"There is certainly no power given by the Constitution to the federal government to establish or maintain colonies bordering on the United States or at a distance, to be ruled and governed at its own pleasure; nor to enlarge its territorial limits in any way, except by the admission of new states. That power is plainly given; and if a new state is admitted it needs no further legislation by Congress, because the Constitution itself defines the relative rights and powers and duties of the state, and the citizens of the state and the federal government. But no power is given to acquire a territory to be held and governed permanently in that character."
In the same case, in a separate opinion concurring, Mr. Justice Campbell said:
"This claim to impose a restriction upon the people of Missouri involved a denial of the constitutional relations between the *Page 146 people of the states, and Congress, and affirmed a concurrent right for the latter, with their people to constitute the social and political system of the new states. A successful maintenance of this claim would have altered the basis of the Constitution. The new states would have become members of a Union defined in part by the Constitution and in part by Congress. They would not have been admitted to this 'Union.' Their sovereignty would have been restricted by Congress as well as the Constitution. The demand was unconstitutional and subversive, but was prosecuted with an energy and aroused such animosities among the people, that patriots, whose confidence had not failed during the Revolution, began to despair for the Constitution."
In Ward v. Race Horse, 163 U.S. 504, 16 L.Ed. 1076, 41 L.Ed. 247, in an opinion by Mr. Justice White, it is said:
"The act which admitted Wyoming into the Union, as we have said, expressly declared that that state should have all the powers of the other states of the Union, and made no reservation whatever in favor of the Indians. These provisions alone considered would be in conflict with the treaty if it was so construed as to allow the Indians to seek out every unoccupied piece of government land and thereon disregard and violate the state law, passed in the undoubted exercise of its municipal authority. But the language of the act admitting Wyoming into the Union, which recognized her coequal rights, was merely declaratory of the general rule."
— Then follows citation of the cases of Pollard v. Hagan, 3 How. 212, 11 L.Ed. 565; Permoli v. Municipality, etc., 3 How. 589, 11 L.Ed. 739; Withers v. Buckley, 20 How. 84, 15 L.Ed. 820; Escanaba Co. v. Chicago, 107 U.S. 678, 2 Sup. Ct. 185, 27 L.Ed. 442; Williamette Iron Bridge Co. v. Hatch, 125 U.S. 1, 8 Sup. Ct. 811, 31 L.Ed. 629, with approval.
In Bolin v. State of Nebraska, 176 U.S. 83, 20 Sup. Ct. 287, 44 L.Ed. 383, in an opinion by Mr. Justice Brown, it is said:
"The argument of the plaintiff in error in this connection is that by these acts the people of Nebraska adopted the Constitution of the United States, and thereby the first eight amendments containing the Bill of Rights became incorporated in the Constitution of the state, and that the right to proceed for felonies, other than by an indictment of a grand jury (as required by the fifth amendment), *Page 147 was taken away from such state. * * * But this court has held in many cases that, whatever be the limitations upon the power of a territorial government, they cease to have any operative force, except as voluntarily adopted after such territory has become a state of the Union. Upon the admission of a state it becomes entitled to and possesses all the rights of dominion and sovereignty which belonged to the original states, and, in the language of the act of 1867 admitting the state of Nebraska [Act Feb. 9, 1867, c. 36, 14 Stat. 391], it stands 'upon an equal footing with the original states in all respects whatsoever.' * * * Not only did Congress in the act of 1867 declare that Nebraska was admitted on an equal footing with the original states, but the whole federal system is based upon the fundamental principle of the equality of the states under the Constitution. The idea that one state is debarred, while the others are granted, the privilege of amending their organic laws to conform to the wishes of their inhabitants is so repugnant to the theory of their equality under the Constitution that it cannot be entertained even if Congress had power to make such discrimination. We are therefore of the opinion that the provision of the Constitution of Nebraska, permitting prosecutions for felony by information, does not conflict with the fourteenth amendment to the Constitution of the United States."
It being within the discretion of Congress to determine when a new state shall be admitted into the Union, it has the arbitrary power, as preliminary to such admission, to require a state to insert a certain provision in its Constitution, or to enact such provision as a law by ordinance, but it is not within the power of Congress to require that such be done so as to be irrevocable on the part of the state without the consent of Congress, when it relates to the local municipal or police concern of the state, and is not embraced within any of the delegated powers of the national government. Louisiana, Ohio, Indiana, Illinois, Michigan, and Wisconsin could have adopted the provisions of the Ordinance of 1787 as a part of their respective Constitutions, or under certain conditions have enacted said provisions into laws by ordinance, and the same would then have been in force in such state, except where it was repugnant to some power delegated to *Page 148 the federal government. Such seems to have been the intimation in the following cases:
In Permoli v. Municipality of New Orleans, supra:
"* * * The laws of Congress were all superseded by the state Constitution; nor is any part of them in force unless they are adopted by the Constitution of Louisiana as laws of the state. * * * "
In Huse v. Glover, 119 U.S. 543, 7 Sup. Ct. 313, 30 L.Ed. 487, supra:
"* * * Whatever the limitations of a power as a government whilst in a territorial condition, whether from the Ordinance of 1787, or the legislation of Congress, it ceased to have operative force, except as adopted by her after she became a state of the Union."
In Sands v. Manistee River Improvement Company, supra:
"The provisions of the Ordinance became inoperative except as adopted by them (states)."
In Strator v. Graham, supra:
"And in the states since formed in the territory, these provisions, so far as they have been preserved, owe their validity and authority to the Constitution of the United States and the Constitutions and laws of the respective states, and not to the authority of the Ordinance of the Old Confederation."
In Boyd v. Nebraska, 143 U.S. 135, 12 Sup. Ct. 375, 36 L.Ed. 103, in an opinion delivered by Mr. Chief Justice Fuller, it was said:
"It follows from these documents that Congress regarded as citizens of the territory all who were already citizens of the United States, and all who had declared their intention to become such. Indeed, they are referred to in section 3 of the Enabling Act as citizens, and by the organic law the right of suffrage and of holding office had been allowed to them. Those whose naturalization was incomplete were treated as in the same category as those who were already citizens of the United States. What the state had power to do after its admission is not the question. Before Congress let go its hold upon the territory, it was for Congress to say who were members of the political community. So far as the original states were concerned, all those who were citizens of such *Page 149 states became upon the formation of the Union citizens of the United States, and upon the admission of Nebraska into the Union 'upon an equal footing with the original states, in all respects whatsoever,' the citizens of what had been the territory became citizens of the United States and of the state."
Congress was expressly authorized by section 8 of article 1 of the federal Constitution to provide for naturalization of foreign subjects, or aliens permanently residing in the United States.
The Enabling Act of Indiana (Act April 19, 1816, c. 57, 3 Stat. 289), provided that the proposed Constitution should not be repugnant to those articles of the ordinance of the 13th day of July, 1787, which are declared to be irrevocable between the original states and the people and states of the territory northwest of the Ohio river; excepting so much of said articles as relates to the boundaries of the states therein to be formed.
The Ordinance accepting the Enabling Act reads in part as follows:
"That we do, for ourselves and our posterity, agree, determine, declare and ordain, that we will, and do hereby accept the propositions of the Congress of the United States, as made and contained in their act of the nineteenth day of April, eighteen hundred and sixteen, entitled 'An act to enable the people of the Indiana Territory to form a state government, and Constitution, and for the admission of such state into the Union, on an equal footing with the original states;' * * * and we do, moreover, for ourselves and our posterity hereby declare and ordain, that this ordinance and every part thereof, shall forever be and remain irrevocable and inviolate, without the consent of the United States, in Congress assembled, first had and obtained for the alteration thereof, or any part thereof."
In Depew v. Board of Trustees of the Wabash and Erie Canal,5 Ind. 8, it is said:
"On the 13th day of July, 1787, prior to the adoption of the Constitution of the United States, the celebrated ordinance for the government of the territory northwest of the Ohio river was passed, containing, among a great many other stipulations, one providing that the navigable waters, etc., should be free, etc. Afterwards, in September, 1787, was framed the Constitution of the United *Page 150 States, which was subsequently ratified by the states, and which, as the states of the northwest entered into the confederacy under it, formed a new compact of government for them, and being later than the ordinance superseded it, so far, at least, as to abrogate all restraint upon the powers of the states formed out of said northwestern territory, not existing upon the powers of the original states; and so we understand the Supreme Court of the United States, in Pollard's Lessee v.Hagan, 3 How. 212 [11 L.Ed. 565], to have unanimously decided. In other words the states of this confederacy are equal under the Constitution. Everything that one has power to do, each has power to do, so far as restraint from prior compact, or the general government, is concerned."
In Williams v. Hert (C. C.) 110 Fed. 166, Baker, District Judge, said:
"It is contended by counsel for the petitioner that by the foregoing ordinances and provisions the right of the people of the state of Indiana to trial by jury on an indictment by a grand jury in the case of all felonies is made an irrevocable and inviolate guaranty of their liberties. Hence it is insisted that the Constitution and laws of this state authorizing the trial of felonies by the court on an information are invalid, because the Congress has never released the state from the obligations of the foregoing acts and ordinances. It is impossible, however, to maintain that the United States holds in trust for the people of the state of Indiana all the great elemental principles of liberty contained in the Ordinance and secured by it to the people of the Indiana Territory, during its existence. The people of the state are sovereign, except in so far as their sovereignty has been surrendered to the national government. This state has never surrendered to the general government its powers to provide for the peace and security of the people and to define and punish criminal offenses committed in violation of its laws. It was admitted into the Union 'on an equal footing with the original states in all respects whatever.' The Ordinance of 1787 and the other acts above quoted have ceased to operate as limitations on the powers of the state. This state possesses all the sovereign powers possessed by any one of the original states of the Union in all respects whatever. This is affirmed in many cases by the Supreme Court. Pollard v. Hagan, 3 How. 212, 11 L.Ed. 565;Permoli v. First Municipality of New Orleans, 3 How. 589, 11 L.Ed. 739; Strader v. Graham, 10 How. 82, 13 L.Ed. 337; *Page 151 Escanaba L. M. Transp. Co. v. City of Chicago, 107 U.S. 678, 2 Sup. Ct. 185, 27 L.Ed. 442; Huse v. Glover, 119 U.S. 543, 7 Sup. Ct. 313, 30 L.Ed. 487; Bridge Co. v. Hatch, 125 U.S. 1, 8 Sup. Ct. 811, 31 L.Ed. 629; Bolln v. State, 176 U.S. 83, 20 Sup. Ct. 287, 44 L.Ed. 382."
In Hinman et al. v. Warren et al., 6 Or. 409, it is said:
"But it is contended that this sovereignty did not attach until the state was admitted into the Union. This is true, but it is also equally true that the United States government has no constitutional or statutory authority to so act towards a territory, or so dispose of the lands within a territory, as to make it impossible to admit such territory upon an equal footing with the other states of the Union. In all matters which touch the sovereignty, the general government is, in the very nature of our system, simply a protector thereof until the territory assumes the ample powers of a state, and becomes thereby enabled to assert and protect its own sovereignty.Pollard's Lessees v. Hagan, supra."
In Case v. Toftus (C. C.) 39 Fed. 730, 5 L. R. A. 684, Judge Deady said:
"In Hinman v. Warren, 6 Or. 408, the court went further, and held that the United States cannot dispose of the tide lands, even in a territory. This decision is also based on the dogma of state sovereignty; that is, the sovereignty of a state infuturo, which is yet, so to speak, in utero, or the womb of time, and may never be born. The proposition is supported by the assertion 'that the United States government has no constitutional or statutory authority to so act towards a territory, or so dispose of the lands within a territory, as to make it impossible to admit such territory upon an equal footing with the other states of the Union.' In Gould on Waters, § 40, it is said that this is the only adjudication upon the subject of the power of the national government, 'while holding the title to the soil of the tide waters,' to make a valid conveyance of the same. The author adds: 'The decisions of the Supreme Court of the United States have been thought to lead to the conclusion reached in Hinman v. Warren, but it would seem that there is no very direct expression of such a view in the opinions of that court.' The doctrine that new states must be admitted into the Union on an 'equal footing' with the old ones does not rest on any express provision of the Constitution, which simply declares (article 4, § 3): 'New states may be admitted by Congress *Page 152 into this Union,' but on what is considered and has been held by the Supreme Court to be the general character and purpose of the union of the states, as established by the Constitution — a union of political equals. Pollard v. Hagan, 3 How. 233 (11 L.Ed. 575); Permoli v. Municipality No. 1 of New Orleans, 3 How. 609 (11 L.Ed. 748); Strader v. Graham, 10 How. 92 (13 L.Ed. 341.)"
Supported in Goodtitle v. Kibbe, 9 How. 477, 13 L.Ed. 220;Doe v. Beebe et al., 13 How. 25, 14 L.Ed. 35; Gilman v.Philadelphia, 3 Wall. 726, 18 L.Ed. 96; Mumford v. Wardwell, 6 Wall. 436, 18 L.Ed. 756; Weber v. Harbor Commissioners, 18 Wall. 66, 21 L.Ed. 798; County of St. Clair v. Lovingston, 23 Wall. 68, 23 L.Ed. 59; Barney v. Keokuk, 94 U.S. 337, 24 L.Ed. 224; Bridge Co. v. U.S., 105 U.S. 491, 26 L.Ed. 1143; Packer v.Bird, 137 U.S. 671, 11 Sup. Ct. 210, 34 L.Ed. 819; Manchesterv. Mass., 139 U.S. 261, 11 Sup. Ct. 559, 35 L.Ed. 159; Hardinv. Jordan, 140 U.S. 381, 11 Sup. Ct. 808, 838, 35 L.Ed. 428;Knight v. U.S. Land Ass'n, 142 U.S. 183, 12 Sup. Ct. 258, 35 L.Ed. 974; Shively v. Bowlby, 152 U.S. 1, 14 Sup. Ct. 548, 38 L.Ed. 331; Lowndes v. Huntington, 153 U.S. 30, 14 Sup. Ct. 758, 38 L.Ed. 615; Water Power Co. v. Water Com'r, 168 U.S. 360, 18 Sup. Ct. 157, 42 L.Ed. 497; Niles v. Cedar Point Club,175 U.S. 308, 20 Sup. Ct. 124, 44 L.Ed. 171; Scranton v. Wheeler,179 U.S. 182, 21 Sup. Ct. 48, 45 L.Ed. 126; Mobile Transp. Co. v.Mobile, 187 U.S. 483, 23 Sup. Ct. 170, 47 L.Ed. 266; Kansas v.Colorado, 206 U.S. 93, 27 Sup. Ct. 655, 51 L.Ed. 956; U.S. v.Chandler Dunbar Co., 209 U.S. 451, 28 Sup. Ct. 579, 52 L.Ed. 881; Ill. Cent. R. Co. v. Illinois, 146 U.S. 435, 13 Sup. Ct. 110, 36 L.Ed. 1018.
In United States ex rel. Friedman et al. v. U.S. Express Co. (D.C.) 180 Fed. 1006, Rogers, District Judge, said:
"It must therefore be conceded that, when Oklahoma was admitted under the federal Constitution into the Union as a state, the act of admission gave to her all the powers and devolved upon her all the duties which belong to the other states under the Constitution, anything in the Enabling Act to the contrary notwithstanding. *Page 153 She could come into the Union in no other way. By virtue of the Constitution her admission fixed her status and that of her people, to the people of other states, to the other states themselves, and to the federal government. Congress cannot exact of a state — even a state coming into the Union — the surrender or waiver of any of the constitutionally inherent powers of sovereignty under the Constitution or such as belong to the other states; nor can a state either surrender or stipulate away any of its sovereignty or render itself less sovereign than the other states."
In Edwards v. Leseur, 132 Mo. 410, 33 S.W. 1130, 31 L. R. A. 815, it is said:
"* * * Neither the Convention nor the Legislature had power, in this respect, to irrevocably bind the people of the state. The right of the people to establish their seat of government at pleasure involves a governmental subject, about which there can be no irrepealable law."
In Armstrong et al. v. Board of County Commissioners ofDearborn County, 4 Blackf. (Ind.) 208, appellants there claimed a vested right in the location of a county seat by virtue of certain legislation attempting to locate forever such seat of county government at a certain point. It is said:
"If the claim be available, it clothes the appellant with the power of controlling the general policy of the state, the rights of the people of that country, and the administration of justice in it. The state itself is stripped of one of the inherent and essential attributes of sovereignty."
In Newton et al. v. Board of County Commissioners, MahoningCounty, 26 Ohio St. 618, it is said:
"The power to establish and remove county seats is one which cannot be parted with by legislative contract. It is not the subject of contract. No case of authority is cited by counsel, and it is presumed none can be shown, sustaining or enforcing any such contract; while several cases are adduced ([Armstrong v. Board of Com'rs of Dearborn County], 4 Blackf. [Ind.] 208; [Alley v. Denson], 8 Tex. 297; [Adams v. LoganCounty], 11 Ill. 336; [Harris v. Shaw], 13 Ill. 456) to show that it is a contract which there is no legislative power to make." *Page 154
This case being reviewed by the Supreme Court of the United States (100 U.S. 548-559, 25 L.Ed. 710), it is said:
"The police power of the states, and that with respect to municipal corporations, and to many other things that might be named, are of the same absolute character. Cooley, Const. Lim., p. 232; Regents v. Williams, 9 Gill. J. [Md.] 365 [31 Am. Dec. 72]. In all these cases there can be no contract and no irrepealable law, because they are 'governmental subjects,' and hence within the category before stated. * * * The same reasoning pushed a step further in the same direction would involve the same result with respect to the seat of government of the state. If the state capital were sought to be removed, under the circumstances of this case with respect to the county seat, whatever the public exigencies or the force of the public sentiment which demanded it, those interested, as were the plaintiffs in error, might, according to their argument, effectually forbid and prevent it; and this really could be brought about by means of a bill in equity and a perpetual injunction. It is true that the state cannot be sued without its consent, but this would be a small obstacle in the way of the assertion of so potent a right. Though the state cannot be sued, its officers whose acts were illegal and void may be.Osborn v. Bank, 9 Wheat. 738, 6 L.Ed. 204; Davis v. Gray, supra [16 Wall. 203, 21 L.Ed. 447]. A proposition leading to such a consequence must be unsound. The parent and the off-spring are alike. Armstrong v. Com'rs, 4 Blackf. [Ind.] 208."
Tucker on the Constitution, vol. 1, p. 614, says:
"The states have confided to the Congress as their agent the admission of a state into the Union under the Constitution. Can this constitutional authority in Congress be construed as to invest Congress as an agent with powers to impose conditions upon the new members which the Constitution has not prescribed? And, if so, does the new state enter the Union shorn of its powers pro tanto by the agent authorized to open its doors to the new commonwealth without any such condition? The better opinion would clearly be that Congress could not impose as an obligation upon a state at the time of its admission into the Union such a restriction as it had no original power to enact or enforce."
Burgess, in his Political Science and Constitutional Law (volume 2, p. 163), says: *Page 155
"The conclusion is that the Constitution recognizes no natural right to commonwealth powers in any population, but views these powers as a grant from the sovereign, the state, which latter employs the Congress to determine the moment from which the grant shall be taken. When the Congress discharges this function, however, the commonwealth powers, both as to local government and participation in general government, are vested in the given population by the Constitution, not by the Congress. I cannot convince myself that the Congress has the right to determine what powers the new commonwealth shall or shall not exercise, although I know that the Congress has assumed to do so in many cases. I think the Constitution determines these questions for all the commonwealths alike. Certainly a sound political science of the federal system could never countenance the possession of such a power by the Congress. Its exercise might lead to interminable confusion. In fact, its possession is inimical to the theory of the federal system. As we have seen, that system can only really obtain, where the power-disturbing organ exists back of both the general government and the commonwealths."
Willoughby, in his recent work on the Constitutional Law of the United States (volume 1, p. 238, 1910), says:
"The Constitution, without distinguishing between the original and new states, defines the political privileges, which the states are to enjoy, and declares that all powers not granted to the United States shall be considered as reserved 'to the states.' From this it almost irresistibly follows that Congress has not the right to provide that certain members of the Union, possessing full statehood, shall have their constitutional competences in any manner less than that of their sister states. According to this, then though Congress may exact of territories whatever conditions it sees fit as requirements precedent to their admission as states, when admitted as such, it cannot deny to them any of the privileges and immunities which the other commonwealths enjoy."
In Stearns v. Minnesota ex rel., 179 U.S. 223, 21 Sup. Ct. 73, 45 L.Ed. 174, in an opinion by Mr. Justice Brewer, it is said:
"When Minnesota was admitted into the Union, and admitted on the basis of full equality with all other states, there were within its limits a large amount of lands belonging to the national government. The Enabling Act (Feb. 26, 1857, 11 Stat. 166, c. 60), authorizing the inhabitants of Minnesota to form a constitutional *Page 156 and state government, tendered certain propositions to the people of the territory, coupled in section 5 with this proviso (11 Stat. 167, c. 60): 'The foregoing propositions herein offered are on the condition that the said Convention which shall form the Constitution of said state shall provide, by a clause in said Constitution, or an ordinance, irrevocable without the consent of the United States, that said state shall never interfere with the primary disposal of the soil within the same, by the United States, or with any regulations Congress may find necessary for securing the title in said soil to bona fide purchasers thereof; and that no tax shall be imposed on lands belonging to the United States, and that in no case shall nonresident proprietors be taxed higher than residents.' * * * That these provisions of the Enabling Act and the Constitution, in form at least, made a compact between the United States and the state, is evident. In an inquiry as to the validity of such compact this distinction must at the outset be noticed. There may be agreements or compacts attempted to be entered into between two states, or between a state and the nation, in reference to political rights and obligations, and there may be those solely in reference to property belonging to one or the other. That different considerations may underlie the question as to the validity of these two kinds of compacts or agreements is obvious. It has often been said that a state admitted into the Union enters therein in full equality with all the others, and such equality may forbid any agreement or compact limiting or qualifying political rights and obligations; Whereas, on the other hand, amere agreement in reference to property involves no question ofequality of status; but only of the power of a state to dealwith the nation or with any other state in reference to suchproperty. The case before us is one involving simply anagreement as to property between a state and the nation." (Italics ours.)
The prohibition against compacts or agreements between the several states contained in section 3, art. 4, of the federal Constitution, without the consent of the federal Congress, was intended as a limitation upon the states so as to prevent the increase of power among such states by such compacts so as not to become a menace or interference with the supremacy of the United States in the exercise of the delegated rights of the national power. (Stearns v. Minnesota, supra.) Article 10 (tenth amendment) *Page 157 provides that the powers not delegated to the federal government by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. A contract or compact may be entered into by the federal government with the state or any individual relative to any property held by it under such delegated powers, such contract being sustained on the ground that it relates to property or proprietary rights, or with the state relative to matter within the exercise of such delegated or national authority. When it comes to a compact with a state, relative to matters pertaining exclusively to its municipal sovereignty, how can it be said that the federal government is acting by virtue of any delegated powers in making such contract or compact? And if it is not acting within such delegated powers, so far as it seeks to irrevocably restrict the state as to its reserved power, by article 10 its act is void. As was said by Mr. Justice Brewer in Stearns v. Minnesota, supra., the intention in not permitting states to contract or enter into compacts between themselves, without the consent of Congress, was for the protection of the national government, thereby preventing encroachment against its delegated powers. The converse is true under the provision of article 10, wherein it is expressly provided that all powers not delegated are retained by the states, for by means of compact the delegated powers could be increased and the retained powers of the state thereby minimized, the federal Constitution amended by such compact, and the powers of the state relative to municipal sovereignty reduced and greatly impaired under the pretense of a contract or compact.
Willoughby, volume 1, p. 240, supra, says:
"Beginning with the admission of Nevada, in 1864, the promises exacted of territories seeking admission as states assumed a more political character. Of Nevada it was required that her Constitution should harmonize with the Declaration of Independence, and that the right to vote should not be denied persons on account of their color. Of Nebraska, admitted in 1867, it was demanded that there should be no denial of the franchise or any other right on account of race or color, Indians excepted. Of the states that had attempted secession, still more radical were the requirements *Page 158 precedent to the granting to them of permission again to enjoy the other rights which they had for the time being forfeited. Of all of them it was required that there should be, by their laws, no denial of the right to vote except for crime; and of three, that negroes should not be disqualified from holding office, or be discriminated against in the matter of school privileges. Finally, Utah, when admitted as a state in 1894, was required by Congress by the Enabling Act to make by 'ordinance irrevocable without the consent of the United States and the people of the United States, provisions for perfect religious toleration, and for the maintenance of public schools free from sectarian control; and that polygamous or plural marriages are forever abolished.' It would seem that as regards the enforceability of these contracts, a distinction is to be made between those that attempt to place the state under political restrictions not imposed upon all the states of the Union by the federal Constitution, and those which seek the future regulation of private, proprietary interests. The first class of these agreements the Supreme Court has repeatedly held are not enforceable against the state after it has been admitted into the Union."
In Blue Jacket (Kansas Indians) v. Board of Commissioners ofthe County of Johnson, 5 Wall. 737, 18 L.Ed. 672, it is said:
"If the tribal organization of the Shawnees is preserved intact and recognized by the political department of the government as existing, then they are a people 'district from others,' capable of making treaties, separated from the jurisdiction of Kansas, and to be governed exclusively by the government of the Union. If under the control of Congress from necessity, there can be no divided authority. If they have outlived many things, they have not outlived the protection afforded by the Constitution, treaties, and laws of Congress. It may be that they cannot exist much longer as a distinct people in the presence of the civilization of Kansas, 'but until they are clothed with the rights and bound to all the duties of citizens' they enjoy the privileges of total immunity from state taxation."
This compact comes, not within the class that attempts to place the state under political restrictions not imposed upon the other states of the Union by the federal Constitution, but within *Page 159 that which seeks the future regulation of property or proprietary interests.
Under section 8 of article 1 of the Constitution, one of the specific rights delegated by the several states was to regulate commerce with the Indian tribes. Section 3 of article 4 provides that "Congress shall have the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in the Constitution shall be so construed as to prejudice any claims of the United States, or of any particular state." Under these provisions the Congress of the United States had authority to regulate the government of this tribe of Indians, the title of said reservation being held by the United States for the benefit of the tribe; just as the title to public domain is held by the United States for the benefit of the citizens of all the states.
The compact that was sustained in the case of the Kansas Indians, supra, related to a proprietary interest, and was incident to the exercise, after the admission of the state, of a delegated federal power, and is not in point. As to the case of Green v. Biddle, 8 Wheat. 1, 5 L.Ed. 547, that was a compact by virtue of the first paragraph of section 3 of article 4 of the federal Constitution, which provided that "new states may be admitted by the Congress into this Union; but no new state shall be formed or erected within the jurisdiction of any other state; not any state be formed by the junction of two or more states, or parts of states, without the consent of the Legislature of the states concerned as well as of Congress."
The seventh article of the compact made between Virginia and Kentucky, as incorporated in the Kentucky Constitution, upon the separation of the latter from the former state, declares that all private rights and interests in lands therein derived from the laws of Virginia prior to separation shall remain valid and secure under the laws of the proposed state and shall be determined by the laws now existing in this state. These lands had formerly been the property of the commonwealth of Virginia. Having obtained *Page 160 its independence as a result of the Revolution, and succeeded to the proprietary rights of the Crown to the public lands within that state, this compact falls in that class, pertaining to private property or proprietary interests. For that reason it is not a case in point.
Again, that part of the compact involved in Green v. Biddle,supra (seventh article), was incorporated in the Kentucky Constitution, and it requires no argument to demonstrate that a statute enacted by the Legislature must fall when coming in conflict with a provision of the Constitution. Also the foregoing conclusion as to the effect of the decision in the case of Green v. Biddle is settled in Kentucky Union Co. v.Kentucky, 31 Sup. Ct. at page 181, 55 L.Ed. —, where, in an opinion by Mr. Justice Day, it is said:
"We think the effect of these decisions is to declare that while the Virginia compact prevents the cutting down of the titles secured under the state of Virginia, prior to its date, so as to take away substantial rights incident to the title, as was the case in Green v. Biddle, supra, it did not mean to prevent the state, upon notice and hearing, from requiring the registration of land titles for taxation, or, in default thereof, from forfeiting such titles to the state. These laws do not have the effect of taking away legitimate rights secured by the old grants, but enable the new sovereign to enforce against such lands, as well as others, the taxing laws of the state. It was, of course, recognized that the land would pass under the dominion of a new state, which would require revenues for its support, and while the title obtained from the state of Virginia was protected, it was not intended that it should be immune from constitutional laws having the effect to subject such lands to the taxing power of the new sovereignty, and to require their owners, by all proper methods, to contribute their share to the public burdens of the state."
See, also, German Ins. Co. v. Com., 133 S.W. 793; Stinson on Popular Law Making (1910), p. 272.
In Hogg v. Zanesville Canal Manufacturing Company, 5 Ohio, 410, it is said:
"This portion of the Ordinance of 1787 is as much obligatory upon the state of Ohio as our own Constitution. In truth it is more; for the Constitution may be altered by the *Page 161 people of the state, while this cannot be altered without the assent both of the people of this state and of the United States through their representatives. It is an article of compact, and until we assume the principle that the sovereign power of the state is not bound by compact, this clause must be considered obligatory."
This case cannot be considered as an authority. In Graham v.Strader, supra, the Supreme Court of the United States held that the Ordinance of 1787 fell with the admission of Ohio into the Union, and thereafter had no binding effect upon the state. That has been the universal holding in every state that was carved out of the northwest territory. Not only the Supreme Court of the United States, but the Supreme Court of every other state has so held, except that of Ohio, and that of itself destroys the effect of the holding of this court. But even if the Ordinance of 1787 had been attempted to be brought over by compact under the holding in Pollard v. Hagan, that clause of the Ordinance, to wit, "That the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants of the said Territory as to the citizens of the United States and those of any other state that may be admitted into the Confederacy, without any tax, impost, or duty therefor," could be sustained as a proper exercise of delegated federal power by virtue of section 8, art. 1, as incident to the regulation of commerce, etc. InPollard v. Hagan, supra, it is said:
"The declaration, therefore, contained in the compact entered into between them when Alabama was admitted into the Union 'that all navigable waters within the said state shall forever remain public highways, free to the citizens of said state, and of the United States, without any tax, duty, or toll therefor, imposed by the said state,' would be void if inconsistent with the Constitution of the United States. But is this provision repugnant to the Constitution? By the eighth section of the first article of the Constitution power is granted to Congress 'to regulate commerce with foreign nations, and among the several states.' If, in the exercise of this power, Congress can impose the same restrictions upon the *Page 162 original states, in relation to their navigable waters, as are imposed by this article of the compact on the state of Alabama, then this article is a mere regulation of commerce among the several states, according to the Constitution, and, therefore, as binding on the other states as Alabama."
The same applies also to Duke v. Cahawba Navigation Co.,10 Ala. 82, 44 Am. Dec. 472, as the provision there under consideration is the same as that contained in Pollard v.Hagan, and was within the delegated federal powers. It cannot be considered in point where it is sought to restrict irrevocably the municipal sovereignty of the state.
In Minnesota v. Batchelder, 1 Wall. 108, 17 L.Ed. 551, the contract related to a grant of public lands or federal proprietary rights. Cooper v. Roberts, 18 How. 173, 15 L.Ed. 340, pertains also to a compact in which public lands or federal proprietary rights were granted to a new state. In this case the opinion is by Mr. Justice Campbell. It is difficult to see how this case can be cited to sustain a compact imposing an irrevocable restriction as to the local, municipal, or police power of a new state, in the light of the excerpt by Mr. Justice Campbell, supra, quoted from the Dred Scott Case.
Beecher ex rel v. Wetherby et al., 95 U.S. 517, 24 L.Ed. 440, is the same as Cooper v. Roberts, supra, relating to grant of lands and is not in point.
The case of Bennett v. Boggs, Baldw. 60, 3 Fed. Cas. 221, involved the validity of a compact between New Jersey and Pennsylvania, made in 1783. It has never been doubted that the colonies under the Confederation had authority to make compacts. The case of Spooner v. McConnell et al., 1 McLean, 337, 22 Fed. Cas. 939, Mr. Justice McLean sitting on the circuit, held that certain parts of the Ordinance of 1787, under the government of the northwest territory, remained in force in the state of Ohio after its admission into the Union. This decision was rendered in December, 1838. That in Straderv. Graham, supra, was made by the Supreme Court of the United States in 1850, wherein the contrary *Page 163 was held, to wit: That the Ordinance of 1787 was superseded by the adoption of the Constitution of the United States, which placed all the states of the Union on a perfect equality; this would not be the case if the Ordinance continued to be in force after its adoption. That opinion was fully concurred in by Justices Wayne, McKinley, Daniel, Nelson, Woodbury, and Greer. Justice McLean concurred in the conclusion, and not in that part of the opinion which held that the ordinance of 1787 was superseded by the federal Constitution. Mr. Justice Catron also took the contrary view to that of the majority. This opinion, with the dissent, shows that Spooner v. McConnell was repudiated by the Supreme Court of the United States.
As to the obiter of Justice McLean in Spooner v. McConnell etal., supra, wherein it is said:
"The state has been admitted into the Union on an equal footing with the original states. And yet the state is bound by compact not to tax the lands of the United States, nor until the expiration of five years after they have been sold. The power to tax is an incident to sovereignty. Does this exemption take away or lessen this power? If it does, in the sense contended, then the state of Ohio was not admitted into the Union, with the same powers of sovereignty as the original states. This consequence is not obviated by the fact that this was a restriction imposed, with the consent of the state, for an equivalent. If it be an abridgment of the sovereign power of the state, the objection stands in its full force. The compact not to tax was the voluntary act of the people of the state, but not more so than was the compact by the same people that the navigable waters should be common highways. And this exemption from taxation is as much a restriction on the exercise of the sovereign power, as the exemption of the navigable streams from obstruction by the same power. The right to authorize works on a navigable stream, which may, to some extent, obstruct its navigation by the sovereign power of the state, is not less clear, on general principles, than the right to tax. By compact with the federal government, the national road that lies within the state is to be kept in repair by tolls imposed by the state for that purpose. The state cannot, under this compact, vacate this *Page 164 road, as it may all public roads established by its authority; and does this compact abridge the sovereignty of the state?"
As heretofore pointed out in Stearns v. Minnesota, supra, there is a distinction between an agreement or compact, qualifying political rights, and one placing restrictions upon property or proprietary rights, which distinction is approved by Willoughby on the Constitution, vol. 1, § 115, p. 242. Thisdictum by Mr. Justice McLean does not fall alone by this distinction, but it has been expressly repudiated by the Supreme Court of the United States.
In Stone v. State of Mississippi, 101 U.S. 814, 25 L.Ed. 1079, wherein the state by quo warranto sought to oust a certain lottery company from doing business in the state, defendant claimed the right under a certain act of the Legislature of issuing and vending lottery tickets, neither the act, nor the Constitution, nor the general laws of the state at any time having reserved the right to repeal the same. The court, in passing on the question, said:
" 'That the framers of the Constitution did not intend to restrain states in the regulation of their civil institutions, adopted for internal government, and that the instrument they have given us is not to be so construed.' The present case, we think, comes within this limitation. We have held, not, however, without strong opposition at times, that this clause protected a corporation in its charter exemptions from taxation. While taxation is, in general, necessary for the support of the government, it is not part of the government itself. Government was not organized for the purpose of taxation, but taxation may be necessary for the purpose of government. As such, taxation becomes an incident to the exercise of the legitimate functions of government, but nothing more. No government, dependent on taxation for support, can bargain away its whole power of taxation, for that would be, substantially, abdication. All that has been determined thus far is that for a consideration it may, in the exercise of a reasonable discretion, and for the public good, surrender a part of its powers in this particular. But the power of governing is a trust committed by the people to the government, no part of which can be granted away."
No legislative body or agency on the part of the state can divest *Page 165 itself or the state of the right to exercise the police power when it is necessary to protect the peace, good morals, health or property of the people. Birmingham Mineral R. Co. v.Parsons, 100 Ala. 662, 13 So. 602, 27 L. R. A. 263, 46 Am. St. Rep. 92; Barlow v. Gregory, 31 Conn. 261; People v. Hawley,3 Mich. 330; Beer Co. v. Massachusetts, 97 U.S. 25, 24 L.Ed. 989; Stone v. Mississippi, 101 U.S. 814, 25 L.Ed. 1079;Slaughterhouse Cases, 16 Wall. 36, 21 L.Ed. 394; FertilizingCo. v. Hyde Park, 97 U.S. 659, 24 L.Ed. 1036; New Orleans GasCo. v. Louisiana Light Co., 115 U.S. 650, 6 Sup. Ct. 252, 29 L.Ed. 516.
Hancock v. Walsh, 3 Woods, 351, 11 Fed. Cas. 403, related to a colonization contract made by the republic of Texas with an individual, thus pertaining to property or proprietary rights, and comes within the distinction made in Stearns v. Minnesota,supra. Besides, when such contract was made Texas was a republic and not a member of the federal Union.
In Gray v. Davis, 1 Woods, 420, 10 Fed. Cas. 1007, an act of the Legislature of Texas, whereby a railroad company was incorporated and granted lands, was held to be a contract between the state and the company, within the meaning of section 10 of article 1 of the Constitution of the United States. This is undoubtedly the law. This case was affirmed 16 Wall. 203, 21 L.Ed. 447. The same rule is announced in Marsh etal. v. Burroughs et al., 1 Woods. 464, Fed. Cas. No. 9,112.
In Virginia v. West Virginia, 11 Wall. 39, 20 L.Ed. 67, was involved a compact between two states, which was assented to by an act of Congress, coming within section 3 of article 4 of the Constitution of the United States.
In Ft. Leavenworth R. Co. v. Lowe, 114 U.S. 525, 5 Sup. Ct. 995, 29 L.Ed. 264, the contract was incident to a valid exercise of federal power under article 1, § 8, of the federal Constitution.
In United States v. Partello (C. C.) 48 Fed. 670, it was held that as to Indian reservations Congress might have jurisdiction *Page 166 over the same and under any treaty made in pursuance thereof. Congress has authority to legislate with reference to the Indian country, whether it is within a state or territory.U.S. v. Yellow Sun, 1 Dill. 272, Fed. Cas. No. 16212; U.S. v.McBratney, 104 U.S. 621, 21 Sup. Ct. 924, 45 L.Ed. 1032; Ft.Leavenworth R. Co. v. Lowe, 114 U.S. 525, 5 Sup. Ct. 995, 29 L.Ed. 264.
In Dick v. United States, 208 U.S. 340, 28 Sup. Ct. 399, 52 L.Ed. 521, the syllabus is as follows:
"The words 'Indian country,' as used in U.S. Rev. St. § 2139, as amended and re-enacted by the act of July 23, 1892 c. 234, 27 Stat. 260, forbidding the introduction of intoxicating liquors into such country, do not, standing alone, embrace territory in which, at the time, the Indian title had been extinguished, and over which, with its inhabitants, the jurisdiction of the state, for all purposes of government, was full and complete. The stipulation in the agreement of May 1, 1893, between the United States and the Nez Perce Indians, that the federal laws prohibiting the introduction of intoxicating liquors into the Indian country shall, for a period of twenty-five years, apply to the lands thereby ceded to the United States and to those retained by the Indians and to those allotted to them in severalty, was a valid regulation, based upon the treaty-making power of the United States and upon the power of Congress to regulate commerce with the Indians, and was not an invasion of the sovereignty of the state of Idaho, which had, by the act of 1890 (Act July 3, 1890, c. 656, 26 Stat. 215), been admitted into the Union upon an equal footing with the other states."
In that case the contention of the accused was that the United States had no jurisdiction over lands within the state which were owned in fee by white citizens, although they may have once been the property of an Indian tribe, and were acquired by the United States subject to the condition that the acts of Congress relating to a named subject should remain in force, for a prescribed period, over such territory. Relative thereto, in an opinion by Mr. Justice Harlan, it is said:
"In determining the extent of the power of Congress to regulate commerce with the Indian tribes, we are confronted by certain principles that are deemed fundamental in our governmental system. *Page 167 One is that a state, upon its admission into the Union, is thereafter upon an equal footing with every other state and has full and complete jurisdiction over all persons and things within its limits, except as it may be restrained by the provisions of the federal Constitution or by its own Constitution. Another general principle, based on the express words of the Constitution, is that Congress has power to regulate commerce with the Indian tribes, and such power is superior and paramount to the authority of any other state within whose limits are Indian tribes. These fundamental principles are of equal dignity, and neither must be so enforced as to nullify or substantially impair the other. In regulating commerce with the Indian tribes Congress must have regard to the general authority which the state has over all persons and things within its jurisdiction. So, the authority of the state cannot be so exerted as to impair the power of Congress to regulate commerce with the Indian tribes."
This act of Congressional legislation was sustained under the provision of the federal Constitution (section 8, art. 1) specifically granting to Congress the power to regulate or control commerce with the Indians, and is a well-recognized grant of authority. This decision merely construed that authority to apply to the conditions therein named. But where in the federal Constitution is there any delegated federal authority to temporarily designate the capital of a state and to require that sovereign state, admitted upon an equality with the original states of the Union, to stipulate, by irrevocable compact, or otherwise, that it will not remove it for a certain designated time? How can this be said to be an incident to any delegated national authority?
U.S. v. Celestine, 215 U.S. 278, 30 Sup. Ct. 93, 54 L.Ed. —, arose within the limits of an Indian reservation, as did U.S.v. Sutton, 215 U.S. 291, 30 Sup. Ct. 116, 54 L.Ed. —, and was incidental to a proper exercise of federal power under section 8, art. 1, of the Constitution of the United States.
The case of Romine v. State et al., 7 Wn. 215, 34 P. 924, which related to certain lands granted by the federal government to the state, involved a property or proprietary interest, and there is no question but that such a contract is binding. We repeat *Page 168 that there is not a solitary adjudicated case where the question was directly involved which has not been repudiated by the United States Supreme Court, which holds the federal government, except where it is by the exercise of a federal power which could be exercised by Congress as well after the admission of a state as before, could make a compact and irrevocably limit the police or municipal or internal power of the state after its admission.
In Higgins v. Brown, Judge, et al., 20 Okla. 355,94 P. 703, it was held that sections 16 to 20, inclusive, of the Enabling Act for Oklahoma (Act June 16, 1906, c. 3335, 34 Stat. 276, 277), as amended March 4, 1907, c. 2911, 34 Stat. 1286, 1287, when concurred in by the state of Oklahoma by the adoption of sections 27 and 28 of the Schedule to the Constitution, being a proper exercise of power by the Congress under article 4, § 3, of the Constitution of the United States, are valid. It was held that the offense of murder therein charged came within a local law for the government of territories, the prosecution of which may be continued in the state courts after the admission of such territory as a state, on the theory that had the Indian Territory been treated by Congress as an Indian reservation proper, section 2145 of the Revised Statutes of the United States, as a general federal statute, would have applied, but section 31 of the act of May 2, 1890, c. 182, 26 Stat. 94, specifically causing such statute to apply to the area embraced within the boundaries of Indian Territory, it was as much a local law for the government of the territory as were the statutes of Arkansas extended to the Indian Territory by said act. This construction is in entire harmony with the decision of the Supreme Court of the United States in Pickett v. United States, 216 U.S. 456, 30 Sup. Ct. 265, 54 L.Ed. —, wherein it is said:
"It was, therefore, altogether competent for Congress to provide, as it did in the fourteenth section of this Enabling Act, for the transfer of jurisdiction in respect of all crimes against the United States — for the act must be read as applying to crimes under the general (italics our own) criminal law of the United *Page 169 States — to the federal courts provided by the same act. If this could not be done, the change from a territorial condition to that of a state would operate as an automatic amnesty for crimes committed against the general (italics our own) laws of the United States within districts exclusively under its jurisdiction, and not within the jurisdiction of any state, for the court of the state could not be empowered to prosecute against the laws of another sovereignty."
Section 31 of the act of May 2, 1890, is not a general law of the United States, but one applying specially to the Indian Territory. Said section of the Enabling Act having provided for the transfer of all pending criminal actions, not transferred to the United States Circuit or District Court in the state, to the state courts to be proceeded with, held and determined by the courts of said state, etc., pursuant to section 22 of the original Enabling Act, and the Constitutional Convention, by ordinance irrevocable accepted the terms and conditions thereof, it is insisted that this is a compact relating to the municipal sovereignty of the state imposed by Congress. Said case is not in point to sustain the irrevocable binding force of the compact as to the location of the capital. If the crime charged in that case involved the violation of a general statute of the United States, it would be a crime against the national sovereignty, and, as said by Mr. Justice Lurton in the Pickett Case, could not be delegated by compact or otherwise to the state to prosecute. But when it is an offense against a local or special law of the United States in force in a territory or particular area, Congress, in enacting such special or local law by virtue of section 3, art. 4, of the Constitution of the United States, is the agent of the sovereignty of the state in futuro, or, as has been said, inutero — the womb of time. When the state undertook to prosecute such offenses, it was neither adding to nor impairing any local sovereignty. It was assuming burdens formerly borne by its agent. However, it would have been permissible for Congress (the agent) to have constituted a special tribunal to have prosecuted these pending cases, or criminal actions that arose, up to the time of the admission of the state, against special or local laws. Hendrix v. U.S. (decided by the Supreme Court of *Page 170 the United States at its December, 1910, term) 31 Sup. Ct. 193, 55 L.Ed. —. When the compact was made as to the prosecution of cases against local or special federal laws, the federal government, under its power to govern territories and to provide in its discretion for the admission of new states, was surrendering a power as to the prosecution of such cases to the new state that it was exercising for the unborn commonwealth. The same applies also to Ex parte Bailey, 20 Okla. 497,94 P. 553.
Again, if, as said in the Pickett Case Congress could not delegate, by compact or otherwise, a part of its national sovereignty to the state of Oklahoma, to wit, could not empower state courts to prosecute crimes committed against the national sovereignty, is not the converse equally true that the state cannot by compact irrevocably surrender a part of its municipal sovereignty?
Section 1321, p. 200, vol. 2 (5th Ed.) Story on Constitutions, is cited by the plaintiff as supporting his contention that the compact as to the temporary location of the capital was irrevocably binding. At the time the preliminary acts were taken for the admission of the state of Missouri into the Union, an attempt was made by the House to impose a restriction as to slavery on the state as a condition of its admission. The debates at that time show that the restriction was imposed in the House by a very small majority, it being strenuously insisted in the debates of that body at that time that the federal government had no power to irrevocably bind the state as to any internal or municipal governmental power. In the Senate this restriction was stricken out, and in lieu thereof a clause was inserted that "all the territory ceded by France to the United States under the name of Louisiana, which lies north of thirty-six degrees and thirty minutes north latitude, not included within the limits of the state contemplated by that act, slavery and involuntary servitude, otherwise than in the punishment of crimes, whereof the parties shall have been duly convicted, shall be and is hereby forever prohibited." None of said territory then was embraced in any state of the Union. In 1854 this act was repealed, and one of the reasons given for it was *Page 171 that it was contended that Congress had no right to impose such a condition upon the states after they were admitted. It would seem that the action of Congress on the slavery question, as to the right to impose a restriction upon a state, could not be considered as an authority in favor of or against the plaintiff. (Dred Scott v. Sanford, supra). As to the requirement of Louisiana that all the proceedings of its courts after it became a state should be printed in the English language, nowhere within the proceedings of that debate is there any contention that the state was irrevocably bound as to such governmental limitations. At the time of the passage of the Enabling Act for the admission of Utah when the polygamy requirements were inserted as a condition of its admission, nowhere does it appear in the debates to have been urged that the power to irrevocably bind the state as to the exercise of its police or municipal governmental powers was urged. At the time of the passage of the Enabling Act for the admission of Oklahoma, by far the greater majority of the great lawyers of the Senate specifically stated and urged that it was beyond the power of Congress to shackle an unborn state and bring it into the Union with her police or local governmental powers irrevocably restricted. Mr. Story in section 1321, supra, citedBiddle v. Green, supra, as an authority that a restriction may be imposed upon state sovereignty. In section 1403, at page 276, Story on the Constitution, we find:
"The latter clause, 'compacts and agreements,' might then very properly apply to such as regarded what might be deemed mere private rights of sovereignty; such as questions of boundary; interests in land situate in the territory of each other; and other internal regulations for the mutual comfort and convenience of states bordering on each other. Such compacts have been made since the adoption of the Constitution. The compact between Virginia and Kentucky already alluded to, is of this number. Compacts settling the boundaries between states are, or may be, of the same character. In such cases, the consent of Congress may be properly required in order to check any infringement of the rights of the national government; and, at the same time, a total prohibition to enter into any compact or agreement might be attended with permanent inconvenience or public mischief." *Page 172
Judge Story recognized in Biddle v. Green the same distinction as did Mr. Justice Brewer in Stearns v. Minnesota,supra.
This state was admitted under an enabling act (June 16, 1906), entitled "An act to enable the people of Oklahoma and of the Indian Territory to form a Constitution and state government and be admitted into the Union on an equal footingwith the original states." (Italics ours.)
Section 30 of the Bill of Rights of the Constitution of Massachusetts, as framed in the midst of the Revolution by a convention composed of such men as Samuel and John Adams, John Hancock, Robert T. Paine, James Bowdoin, Samuel Holton, Nathaniel Gorham, Increase Sumner, James Sullivan, Caleb Strong, Levi Lincoln, William Cushing, John Lowell, George Cabot, and Benj. Goodhue, is as follows:
"In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them. To the end it may be a government of law and not of men."
It has been said that the membership of this Convention embraced "a union of talent and patriotism such as the country had never seen up to that time, and whose superior has not been since." Robert C. Winthrop's Addresses and Speeches, Boston, 1886, vol. 4, 171.
The power of the judiciary to declare an act repugnant to the Constitution has been exercised by the Supreme Court of the United States, beginning in 1803 with Marbury v. Madison, 1 Cranch, 137, 2 L.Ed. 60 to this day without a single dissent as to such power. With the provisions of the fourteenth amendment that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor to deny to any person within its jurisdiction the equal protection of the laws," resting upon every state, *Page 173 and the Supreme Court of the United States as the final tribunal to determine whether such has been done, it would be futile for a state court at this late date to set up the doctrine that this is a government of men and not a government of law.
The different state courts have exercised the power of declaring statutes to be unconstitutional, beginning with Rhode Island in 1787, when the invalidity of a statute passed by the General Assembly of that state in 1786, depriving parties charged with certain offenses of the right of a trial by jury, was held to be void (Coxe on Judicial Powers and Constitutional Legislation, pp. 234, 246), and North Carolina in 1787, the same month when the Convention to frame the Constitution of the United States was gathering at Philadelphia, held an act of the Legislature of that state, depriving certain persons of the right of a trial by a jury, to be unconstitutional, saying:
"That by the Constitution every citizen had undoubtedly a right to a decision of his property by a trial by jury. For that if the Legislature could take away this right, and require him to stand condemned in his property without a trial, it might with as much authority require his life to be taken away without a trial by jury, and that he could stand condemned to die, without the formality of any trial at all; that if the members of the General Assembly could do this, they might with equal authority, not only render themselves the legislators of the state for life, without any further election of the people, from thence transmit the dignity and authority of legislation down to their heirs male forever. But that it was clear that no act they could pass, could by any means repeal or alter the Constitution, because if they could do this they would, at the same instant of time, destroy their own existence as a Legislature, and dissolve the government thereby established. Consequently the Constitution (which the judicial power was bound to take notice of as much as of any other law whatever) standing in full form as the fundamental law of the land, notwithstanding the act on which the present motion was grounded, the same act must of course, in that instance, stand as abrogated and without any effect." (Bayard et ux. v.Singleton, 1 Mart. [N.C.] 5.)
In Eakin et al. v. Raub et al., 12 Serg. R. (Pa.) 330, the only *Page 174 case where there appears to be even a dissent as to such power, it is said:
"Maintaining, as I do, the power and the duty of the court to decide on the constitutionality of all the acts of the Legislature, yet it is one which all courts will approach with caution and circumspection, and with every proper respect for a co-ordinate branch of the government, and with great reluctance will they pronounce an act of the Legislature unconstitutional, and only when it comes in undoubted collision with the Constitution of the United States, or with that of this state. But it is a duty, however irksome, which they are bound to perform, without regard to personal considerations; for no principle can be better established — none more conducive to personal liberty and security of property; none of which the people of this country can more justly boast; none which so pre-eminently distinguishes our American Constitutions over every other country and government — than the doctrine, which has prevailed since their formation, in the courts of all these states from Maine to Georgia that the people possess the sovereign right to limit their lawgiver, and that acts contrary to the Constitution are not binding as laws. The concurrence of statesmen, of legislators, and of jurists, uniting in the same construction of the Constitution, may insure confidence in that construction."
Section 2 of article 6 of the federal Constitution is as follows:
"This Constitution and the laws of the United States, which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding."
How can a judge be bound by the Constitution of the United States and all laws or treaties made pursuant thereto, unless he is to determine whether the same are made pursuant thereto? As a legal question, the power of the courts of this republic to declare an act unconstitutional, when in fact it is, seems to be long ago settled. With every proper and reasonable respect for the co-ordinate branches of the state government and the acts of Congress of the United States under the authorities and reasons heretofore set out, I have reached the conclusion, beyond a reasonable doubt, *Page 175 that the irrevocable restriction sought to be imposed upon the state by the federal Congress is void, and with the universal recognized authority of the judiciary to declare not only acts of the Legislature, but also those of Congress, when the question is properly raised and such repugnancy appears to a moral certainty, to be void, it is so declared in this instance. Neither Congress nor the Constitutional Convention had any power to bind the state irrevocably, by compact or otherwise, as to the location of its seat of government temporarily at the city of Guthrie, and not to be changed therefrom previous to Anno Domini 1913, and after said year to be located by the electors of said state at an election to be provided for by the Legislature.
As the irrevocable part of the compact at least falls — that is, that part of it wherein it seeks to irrevocably bind the state so that it cannot change the seat of government prior to 1913, nor thereafter except by a vote of the electors of the state at an election to be provided for by the Legislature — the question arises as to whether that part of the compact as a part of an ordinance passed by the Convention temporarily fixing the seat of government stands, and, if so, what is its effect and how can it be repealed? For the purpose of this case it will be assumed that it stands as a part of an ordinance (State of Pennsylvania v. Wheeling, etc., Bridge Co., et al., 13 How. 518, 14 L.Ed. 249) temporarily locating the seat of government at Guthrie. In Frantz et al. v. Autry, 18 Okla. 561,91 P. 193, it is said:
"An ordinance as used in this act (referring to the Enabling Act) has the force and effect of a legislative enactment or law for the purpose therein named. Manifestly, it is a law which is essential to carrying into effect the objects for which the Convention was created. Thus we speak of the famous Ordinance of 1787, which created a government of that portion of the territory of the United States northwest of the Ohio river and known as the 'Northwest Territory.' It will thus be seen that Congress conferred direct and express power and authority upon the Convention to pass an appropriate ordinance to submit the Constitution to the people for its ratification or rejection, at an election at a time fixed in said *Page 176 Ordinance, by the Convention. Such an ordinance, when once adopted by the Convention, has the force and effect of a statute law. The distinction between a Constitution and an ordinance is this: The Constitution is a permanent fundamental law of the state. It is of a stable and permanent character. As is appropriately held in Van Horne v. Dorrance, 2 Dall. 308 [1 L.Ed. 391]: 'The Constitution of a state is stable and permanent, and not to be worked upon by the temper of the times, nor to rise and fall with the tide of events; notwithstanding the competition of opposing interests, and the violence of contending parties, it remains firm and immovable, as a mountain midst the strife of storms, or a rock of the ocean amidst the raging of the waves.' But under the terms of the Enabling Act, it is prospective in its operation only. That is, it does not become operative until it is ratified by the people and approved by the President of the United States. On the other hand, an ordinance, as used in this act, refers to a merely temporary law, its object being to carry into effect the formation of the Constitution and fundamental law of the state, to provide a mode of means for an election of a full state government, including the members of the Legislature and five representatives to Congress, and becomes operative immediately upon its adoption."
Section 22 of the Enabling Act (June 16, 1906) provided that "the Constitutional Convention provided for herein shall, by ordinance irrevocable, accept the terms and conditions of this act." When the irrevocable part falls, that part of the ordinance, if any remains, is simply an ordinance in a legislative sense. At the time the Constitution was finally framed and submitted by the Convention, its members were aware of the construction that had been placed on the term "ordinance" in said Enabling Act, by the court in Frantz et al.v. Autry et al., members of the Convention being attorneys for the side procuring such holding. Practically all the provisions of the Enabling Act required to be agreed to or continued by compact by irrevocable ordinance, were incorporated in the Constitution. See article 1, Federal Relations; article 11, State School Lands; sections 2, 26, 27, 28, and 36 of the Schedule; and paragraph relating to Osage county, in section 8, art. 17, of the Constitution. Such provisions, except as they may be contracts inviolable, were then subject to amendment under *Page 177 the initiative and referendum provisions for the amending of the Constitution. Section 2, art. 5, and article 24 of the Constitution; section 1, art. 2, Const. Many provisions in the Enabling Act were required to be incorporated or provided for in the Constitution, as, for instance, the toleration of religious worship, prohibition as to manufacture, etc., of intoxicating liquor, the assumption of the debts of the territory of Oklahoma by the state, public schools, and the right of suffrage. See section 3 of the Enabling Act. The fact that the Constitutional Convention incorporated into the Constitution provisions of the Enabling Act, other than those specifically required, and omitted that relative to the temporary location of the capital, is significant. And especially is this so, as the Convention accepting the terms of the amendments to the Enabling Act (March 4, 1907), made the same a part of the Constitution, not accepting the same by ordinance. Section 28 of the Schedule.
There are only two kinds of provisions known in written law; one fundamental and subject to be changed only by amendment of the Constitution or new Constitution, and the other legislative or statutory, and subject to be repealed by legislative action, or bodies exercising sovereign legislative authority.
If this ordinance is of a fundamental character and not repealable as a statute, it can neither be repealed by the Legislature, nor by the people through the initiative and referendum in a legislative capacity. There being no way provided in the organic law for its amendment or repeal, if it is fundamental law it could only be abrogated by calling a new Constitutional Convention. The only rational conclusion is that the Constitutional Convention sought to do only what it was required to do by its acceptance of that provision by an ordinance. Contracts, as a rule, by states and municipalities, are created by legislative acts or legislative ordinances. In the Richmond Mayoralty Case, 19 Grat. (Va.) at page 712, it is said that "if a Convention, in framing the Schedule, should plainly show an intention to place any of its provisions beyond *Page 178 the control of the Legislature, such provision, being the act of the representatives of the sovereignty of the state without any constitutional restrictions, would be as effectual and binding as if they were embodied in the Constitution itself." Obviously, if such rule applies to the Schedule, much more so would it apply to an Ordinance, and the burden would rest upon the plaintiff to plainly show that it was the intention of the Convention to make such Ordinance a fundamental law and place it beyond the power of legislative action. The foregoing provisions incorporated in the the Constitution, as well as the history of the action of that Convention, stand like a stone wall against such contention. If it is not irrevocable and the other part temporary, obviously it was not contemplated by the framers, or the people, that it was so fundamental that it could not be changed or repealed by the Legislature, especially when it was specially provided (section 7, art. 5, Const.):
"The reservation of the powers of the initiative and referendum in this article shall not deprive the Legislature of the right to repeal any law, propose or pass any measure, which may be consistent with the Constitution of the state and the Constitution of the United States."
In section 85, p. 84, Jameson on Constitutional Conventions, it is said:
"Ordinary laws are enactments and rules for the government of civil conduct, promulgated by the legislative authority of a state, or deduced from long-established usage. It is an important characteristic of such laws that they are tentatory, occasional, and in the nature of temporary expedients. Fundamental laws, on the other hand, in politics, are expressions of the sovereign will in relation to the structure of the government, the extent and distribution of its powers, the modes and principles of its operation, and the apparatus of checks and balances proper to insure its integrity and continued existence. Fundamental laws are primary, being the commands of the sovereign establishing the governmental machine, and the most general rules for its operation. Ordinary laws are secondary, being commands of the sovereign, having reference to the exigencies of time and places resulting from the ordinary working of the machine. Fundamental laws precede ordinary laws in point of time, and embrace the settled policy of the state. Ordinary *Page 179 laws are the creatures of the sovereign, acting through a body of functionaries existing only by virtue of the fundamental laws and express, as we have said, the expedient, or the right viewed as the expedient, under the varying circumstances of time and place."
A constitutional convention for a proposed state has the inherent authority to do those things that are necessary to create the machinery for the submission of the Constitution to the people for approval or rejection, and to provide a temporary set of officers. Frantz et al. v. Autry et al.,18 Okla. 561, 91 P. 193. That is a legislative act. Likewise it would have the inherent authority to provide a temporary seat of government. This is the exercise of a purely legislative power. When the Congress, as the agent of the unborn sovereign state, provided, as was done in this case (section 4 of the Enabling Act), that the Constitution shall be submitted to the people for ratification or rejection, at which election "the qualified voters for said proposed state shall vote directly for or against the proposed Constitution, and for or against any provisions separately submitted," it was contemplated that the entire Constitution should be submitted to the people for ratification or rejection. In Ex parte Birmingham A. R. Co.,145 Ala. 530, 42 So. 123, it is said:
"In the case of Stewart v. Crosby, 15 Tex. 546, the ordinance was upheld because it was appended to the Constitution as a part of the fundamental law of the land and was adopted by the people along with the Constitution. Besides, the Supreme Court of Texas, in the case of Quinlan v. H. T. C. Ry Co., 89 Tex, 376, 377, 34 S.W. 738, in commenting on the Crosby Case, supra, says: 'We are of the opinion, however, that the ordinance was not valid. The Convention which met on June 1, 1868, was assembled in pursuance of an act of Congress passed March 23, 1867. It was called for the purpose of framing a Constitution for the state, with a view to its restoration to the Union. The Constitution to be framed by it was to be submitted for ratification to a vote by the people. See Act Cong. March 23, 1867, c. 6, §§ 3, 4, 15 Stat. 2, 3; 2 Paschal's Dg. p. 1093. The act of Congress did not invest the Convention with the power of independent legislation. It is *Page 180 true that the question of the propriety of incorporating any specific provisions into the fundamental law was for the sole determination of the Convention.' "
Acts of the Constitutional Conventions, other than incorporating provisions (fundamental) in the Constitution of the state are here referred to as independent legislation. Where the ordinance is framed as a part of the Constitution it is, of course, a fundamental law, and can only be changed by amendment of the Constitution or a new Constitution. We can find no case in which an ordinance has been held as a part of the fundamental law where the Constitution was submitted to the electors for ratification or rejection, unless the ordinance was also submitted. There are cases in which the ordinance was appended to the Constitution as a part thereof where said Constitution was adopted and promulgated without having been first submitted to the electors for ratification or rejection, holding such ordinance to be a part of the fundamental law.Kamper v. Hawkins, 1 Va. Cas. 20; Brenner v. Porter, 9 How. 235, 13 L.Ed. 119. There is nothing in Willis v. Kalmbach,109 Va. 475, 64 S.E. 342, 21 L. R. A. (N. S.) 1009, to the contrary. We have not been able to find any case holding, the Constitution having been submitted to the electors for ratification or rejection, and an ordinance passed by the same Convention not being submitted, such ordinance to be a part of the Constitution or fundamental law of the state. The Enabling Act for New Mexico and Arizona (June 20, 1910, c. 310, 36 Stat. 559, 560, 570, 571) provides that such Convention shall provide by ordinance irrevocable, "No election shall be called or provided for prior to the thirty-first day of Dec., 1925," and that such ordinance by proper reference shall "be made a part of any Constitution that shall be formed." Obviously this is a congressional interpretation that when the Constitution is to be submitted to the electors for ratification or rejection, an ordinance not also submitted does not become a part of the fundamental law of the state. This ordinance comes under the head of "independent legislation" defined *Page 181 in Stewart v. Crosby, supra, and approved in Ex parteBirmingham A. R. Co., supra.
The views herein expressed as to the invalidity of the Enabling Act pertain only to that provision of the same locating the capital and prohibiting the removal of the same prior to 1913, and have no reference to those provisions granting lands or moneys to the state, or pertaining to matters incident to the exercise of delegated federal powers.
The questions of law here involved no doubt affect many parties intensely. I have nothing to do with the policies, the motives, or the acts that brought about such conditions. That was a matter for the consideration of other departments of this state government and their constituencies. The conclusions herein reached as to the law are, to my mind, clear, and such being the case my duty is plain. The demurrer to the plaintiff's petition is sustained, petition dismissed, and judgment rendered against the plaintiff.
TURNER, C. J., and HAYES, J., concur; DUNN and KANE, JJ., dissent.
1 Rehearing Pending.