In the case of Thos. P. Smith, Secretary of State, et al.,Plaintiffs in Error, v. State ex rel. Hepburn, Defendant inError, infra, 113 P. 932, I based my concurrence in the conclusion reached by the court upon the ground that upon the acceptance of the terms and conditions of the Enabling Act by the Constitutional Convention by ordinance irrevocable, that part thereof which provides that, "the capital of said state shall temporarily be at the city of Guthrie, in the present territory of Oklahoma, and shall not be changed therefrom previous to Anno Domini nineteen hundred and thirteen, but said capital shall after said year be located by the electors of said state at an election to be provided for by the Legislature: Provided, however, that the Legislature of said state, except as shall be necessary for the convenient *Page 214 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," was entitled to the force and effect of a compact between the United States and the people of the proposed state which can be rescinded only by common assent of those who were parties thereto. In the present case I dissent from the opinion of the majority of the court upon the same ground. I have such a high regard for the opinion of my Brothers that it is with hesitation I differ from their judgment, and I doubt that I would have the temerity to do so if it did not appear perfectly clear to me that their opinion in the instant case runs counter to a principle of law which has been sanctioned by the legislative departments of the state and federal governments of this republic ever since its creation, and upheld with practical unanimity by the courts, state and federal, in the comparatively few cases wherein it has been questioned.
Without reviewing generally the powers of a Constitutional Convention to bind the people of a proposed state by accepting the terms of its Enabling Act, we find the power of the Convention whose act is now under consideration very fully, and I think correctly, defined in Frantz et al. v. Autry,18 Okla. 561, 91 P. 193, wherein it is said:
"The delegates to the Convention were not the agents or representatives of Congress, but they were the immediate agents and representatives of the people of the two territories. They derived their power and authority from the people in their sovereign capacity."
Speaking of the power of the Convention, Mr. Justice Hainer, who delivered the opinion of the court, continues:
"The Convention has and can exercise plenary powers subject to the limitations: (1) That the Constitution shall be republican in form; (2) that it shall not be repugnant to the Constitution of the United States and the principles of the Declaration of Independence; (3) that no distinction shall be made on account of race or color; and (4) that the Convention shall accept *Page 215 by ordinance irrevocable all the terms and conditions of the Enabling Act."
In discussing the power of Congress in that regard, the learned justice says:
"It is true that Congress has the power to impose conditions upon a territory as a condition precedent to entitle it to admission as a state."
The opinion in that case decides three questions preliminary to the questions herein involved: (1) The source of the power of the Constitutional Convention to act for the people; (2) that the Convention had the power to accept the terms of the Enabling Act; and (3) that Congress had the power to impose conditions upon the people of the proposed state precedent to its admission. The questions which remain are: (1) Was the provision of the Enabling Act involved herein a proper subject for compact? (2) If it was not, is the action of the Constitutional Convention in relation thereto entitled to the force and effect of a fundamental law, or does it stand upon the footing of an ordinary statutory law repealable at the will of the Legislature? None of the members of the court takes the position that it was a void and futile act; so as far as this case is concerned, it is entitled to the status of (1) a compact; (2) a fundamental law; or (3) an ordinary statutory law repealable at the will of the Legislature.
It seems to me that after rejecting the theory that it was a void and useless act, the only logical conclusion left is that it constitutes a compact, and that there can be but one answer to the question, "Is the provision of the Enabling Act in relation to the temporary location of the capital a proper subject of compact between the United States and the people of the proposed state?" That the Constitutional Convention had the power to bind the people of the state in that respect by fundamental law there can be no question. I cannot understand why it could not do the same by following the directions of the mandate that called it into existence. As far as the acceptance of this particular provision of the Enabling Act is concerned, the action of the Constitutional Convention is as fully ratified and affirmed by the people as if it *Page 216 had been written into the Constitution. When the delegates were elected the people had full knowledge of the proposals contained in the Enabling Act, and that as the price of statehood it would be necessary to accept some of them by ordinance irrevocable, whilst others must be incorporated in the Constitution. Afterwards the action of the Convention in that regard was again ratified by the people when they adopted the Constitution with full knowledge of the action of the Constitutional Convention, and again by accepting statehood after the President issued his proclamation wherein it was reiterated that the terms of the Enabling Act had been fully complied with.
In the case of Hogg v. Zanesville Canal Mfg. Co., 5 Ohio, 410, the point was before the court as to the effect to be given to an irrevocable condition precedent to admission as a state. The Enabling Act of the state of Ohio was adopted by ordinance irrevocable the same as certain conditions named in the Enabling Act were adopted by the people of Oklahoma, and it was suggested in that case, as in this, that it being no part of the Constitution, the people of the state might change it, and, in response to this, the court 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 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."
In Higgins v. Brown, Judge, et al., 20 Okla. 355,94 P. 703, and several other cases, this court recognizes the soundness of the rule laid down in the Autry case, and further holds that at least one of the subjects embraced within the Enabling Act was a proper subject of compact, and that its acceptance by the Convention transferred legislative power to the state which, in the absence of such compact, belonged to the United States. The question in Higgins v. Brown, supra, was whether or not Congress, with *Page 217 the concurrence of the state, could provide that the state courts as successors of the territorial courts, could proceed to final determination or render final judgment in criminal cases not of a federal character, pending and not finally disposed of in the district courts of the territory of Oklahoma or in the United States courts of the Indian Territory. It was held that:
"Sections 16 and 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."
Mr. Chief Justice Williams, who delivered the opinion of the court, after an exhaustive review of the Enabling Acts of the several states admitted to statehood prior to Oklahoma, and the decisions bearing upon the question then under discussion, said:
"In the cases of West Virginia, Nevada, Nebraska, Colorado, North and South Dakota, Montana and Washington, Utah and Oklahoma, these states have been admitted by proclamation of the President of the United States, pursuant to the provisions of the Enabling Acts, and Wyoming and Idaho were admitted after they had formed Constitutions, not under an Enabling Act, but by act of Congress. We find that in all the states that were admitted by an act of Congress, and not by proclamation of the President, the state courts, with provisions in the Schedules of their Constitutions permitting such jurisdiction, have exercised the same in cases like the one at bar, and why should the state courts of Oklahoma likewise not exercise like jurisdiction? It undoubtedly is in accordance with the rule laid down in Benner v. Porter, 9 How. 235, 13 L.Ed. 119, being necessary for the Congress to concur in order for the jurisdiction to attach to the state courts. And unquestionably where a state had formed a Constitution and provided therein that the state courts should become the successors of like courts under the territorial form of government, and that as to criminal cases, not of a federal nature, the same should be prosecuted to final judgment in such court; that when Congress admitted such a state into the Union with such a provision in its Constitution it expressly concurred in and agreed to such provision. *Page 218 In the case of West Virginia, Nevada. Colorado, North and South Dakota, Montana, Washington, Utah, and Oklahoma, where the Constitutions were formed under an Enabling Act, and by virtue of that Enabling Act a proclamation was issued by the President of the United States admitting such state or states into the Union under the Constitution thus formed containing like provisions in like manner, did not the federal government concur in such provisions in like manner as if such states had been admitted directly by act of Congress? Should it be urged by counsel that the President had no such constitutional authority, he would be contending for a proposition that would be tantamount to declaring that Oklahoma was not legally in the Union of states. This court certainly will not make such a declaration — will not repudiate the power that brought it into active existence."
The case of Higgins v. Brown, supra, was followed in Ex parteCurlee, 20 Okla. 192, 95 P. 414; Ex parte Bailey,20 Okla. 497, 94 P. 553; Ex parte Brown, 20 Okla. 505, 94 P. 556; Exparte Buchanen, 20 Okla. 831, 94 P. 943. In Ex parte Bailey,supra, after citing section 4 of the Enabling Act, which provides, "And if the Constitution and government of said proposed state are republican in form, and if the provisions of this act have been complied with in the formation thereof, it shall be the duty of the President of the United States, within twenty days from the receipt of the certificate of the results of said election and the statement of the votes cast thereon and a copy of said Constitution, articles, propositions and ordinances, to issue his proclamation announcing the result of said election; and thereupon the proposed state of Oklahoma shall be deemed admitted by Congress into the Union, under and by virtue of this act, on an equal footing with the original states," Mr. Chief Justice Williams continues:
"The only limitation is that the Constitution and state government shall be 'republican in form' and comply with the provisions of said act. All other provisions which the Constitutional Convention had the power to insert by reasonable implication are permitted and concurred in, the act of the President consummating the same." *Page 219
It seems to be well settled that whether a proposed state shall be admitted and whether its government is republican in form are political questions which must be settled by Congress and the people of the proposed state, because Congress alone is vested with the power to admit new states and charged with the duty to guarantee a republican form of government, whilst the people have the power to accept or reject the proposals of Congress. Luther v. Borden et al., 7 How. 1, 12 L.Ed. 581;Martin v. Mott, 12 Wheat. 19, 6 L.Ed. 537; Wilkes v. Dinsman, 7 How. 89, 12 L.Ed. 618; Oklahoma City v. Shields, 22 Okla. 265,100 P. 559; In re Day et al. (C. C.) 27 Fed. 678; RubberCompany v. Goodyear, 9 Wall. 788, 19 L.Ed. 566; JapaneseImmigrant Case, 189 U.S. 86, 23 Sup. Ct. 611, 47 L.Ed. 721;Looe Shee v. North, 170 Fed. 570, 95 C. C. A. 646; Gibbons v.Ogden, 9 Wheat. 1, 6 L.Ed. 23; Martin v. Hunter, 1 Wheat. 304, 4 L.Ed. 97; Prigg v. Commonwealth of Pennsylvania, 16 Pet. 539, 10 L.Ed. 1060; State v. Harris, 2 Bailey (S.C.) 598.
The case of Benner et al. v. Porter, cited by the learned Chief Justice in the Higgins case, supra, arose out of the failure of Congress to make proper provision for the transfer of cases pending in the territory of Florida upon its admission into the Union as a state. Upon this question, Mr. Justice Nelson, who delivered the opinion for the court, said:
"On the admission of a territorial government into the Union as a state, the concurrence of both the federal and state governments would seem to be required in the transfer of the records, in cases of appropriate state jurisdiction, from the old to the new government. An act of Congress would be incapable of passing them under the state jurisdiction, as would be an act of the Legislature of the state to take the records out of the custody of the federal government. Both should concur. The like concurrent legislation would also seem to be required in respect to cases pending in this court for review on writs of error or appeal from the territorial courts, which appropriately belonged to state jurisdiction, to enable us to send down the mandate to the proper *Page 220 state tribunal for any further proceedings that might be necessary in the case."
Speaking of the duty of Congress in this regard, Mr. Justice Nelson continues:
"It is to be regretted that proper provision had not always been made by Congress, upon a change of government, in respect to the pending business in the territorial tribunals, so as to remove all embarrassment and perplexity on the subject. * * * A very slight attention to the subject by Congress, at the time, would remove all the difficulties that have occurred in several of the states recently admitted."
Under its power to admit new states into the Union and its duty to guarantee to every state a republican form of government, Congress, for more than a century, has exercised the power of framing enabling acts providing for the erection of new states, containing propositions which the people were required to accept as condition precedent to admission. It has been held that contemporary interpretations of the Constitution, practiced and acquiesced in for years, fixes its construction (Stuart v. Laird, 1 Cranch, 299, 2 L.Ed. 115;Martin v. Hunter, 1 Wheat, 304, 4 L.Ed. 97; Bridge Co. v. Dix, 6 How. 507, 12 L.Ed. 535), and this rule was given proper weight in Higgins v. Brown, supra. There is room for the application of the rule in the case at bar. Most of these propositions, if not all of them, consist of grants of legislative authority to the federal government or waivers of the exercise of some function of government by the state, usually for a limited time. These concessions or waivers have been treated by the courts as compacts and not as involuntary exactions forced upon the people by the federal government.White v. Hart, 13 Wall. 646, 20 L.Ed. 685, illustrates this proposition. In that case it was held that:
"The Constitution adopted by Georgia, A.D. 1868 [article 5, § 17] by which it was provided that, 'no court or officer shall have, nor shall the General Assembly give, jurisdiction to try, or give judgment on, or enforce any debt, the consideration of which was a slave, or the hire thereof,' is to be regarded by the court as *Page 221 voluntarily adopted by the state named, and not as adopted under any dictation and coercion of Congress. Congress having received and recognized the said Constitution as the voluntary and valid offering of the state of Georgia, this court is concluded by such action of the political department of the government."
These compacts between the sovereign people and the federal government have embraced a wide range of subjects, but they all have this essential quality in common — the subjects treated would have been rightful subjects of legislation by the state or government that relinquished them, if the compact had not been entered into. Some of the most common subjects embraced within such compacts are agreements not to require any religious test as a qualification for holding office; that no plural marriages shall be permitted; that the land of nonresidents shall not be taxed at a higher rate than the lands belonging to residents; not to claim any interest in the public or waste lands belonging to the United States; that judicial proceedings shall be carried on in the English language; that navigable waters shall be free to all persons, etc. Besides the foregoing class of compacts between the federal government and the people of a proposed state, compacts between states concerning governmental affairs have been very common. The history of the earliest attempts of the states to form a Union discloses that each claimed and exercised the right to make its own compacts, surrendering as much or little of its sovereignty to the federal government as in its judgment seemed proper, and this right has been uniformly upheld by the courts. In Ft.Leavenworth R. Co. v. Lowe, 114 U.S. 525, 5 Sup Ct. 995, 29 L.Ed. 264, wherein a compact between Kansas and the United States concerning a military reservation was upheld, Mr. Justice Field, in speaking of the relation of the states to the federal government, said:
"In their relation to the general government, the states of the Union stand in a very different position from that which they hold to foreign governments. Though the jurisdiction and authority of the general government are essentially different from those of the state, they are not those of a different country, and *Page 222 the two, the state and general government, may deal with each other in any way they may deem best to carry out the purposes of the Constitution. It is for the protection and interests of the states, their people and property, as well as for the protection and interests of the people generally of the United States, that forts, arsenals, and other buildings for public uses are constructed within the states. As instrumentalities for the execution of the powers of the general government, they are, as already said, exempt from such control of the United States as would defeat or impair their use for those purposes; and if, to their more effective use, a cession of legislative authority and political jurisdiction by the state would be desirable, we do not perceive any objection to its grant by the Legislature of the state. Such cession is really as much for the benefit of the state as it is for the benefit of the United States. It is necessarily temporary, to be exercised only so long as the places continue to be used for the public purposes for which the property was acquired or reserved from sale. When they cease to be thus used, the jurisdiction reverts to the state."
And in dealing with each other it does not appear to have made any difference whether the question involved pertains to a political or property right. Most of these compacts deal with the political features of the subjects embraced within their purview, and consist of limitations upon the power to legislate upon the subjects mentioned; no property rights existing between the contracting sovereignties being directly involved. The question of property rights usually arose by some citizen or taxpayer contending that his rights in that respect would be affected by the enforcement or violation of the compact as the case might be, and in that particular this case is similar to the rest.
Spooner v. McConnell, 22 Fed. Cas. 939, contains an interesting discussion of the general question now under consideration, and Mr. Justice McLean, who delivered the opinion, satisfactorily answers the contention that to give to the provision of the Enabling Act under discussion and its acceptance the force and effect of a compact would be restrictive of the sovereign power of the state, as follows: *Page 223
"It is a well-established principle that no political change in a government annuls a compact made with another sovereign power or with individuals. The compact is protected by that sacred regard for plighted faith, which should be cherished alike by individuals and organized communities. A disregard of this great principle would reject all the lights and advantages of civilization, and throw us back on the age of vandalism. This compact was formed between political communities and the future inhabitants of a rising territory, and the states which should be formed within it. And all who became inhabitants of the territory made themselves parties to the compact. And this compact so formed could only be rescinded by the common assent of those who were parties to it. When application was made to Congress by the people of the eastern part of the territory, to authorize the call of a Convention to form a Constitution, modifications of certain provisions of the compact were proposed, some of which were embodied in the Constitution subsequently formed, and others of them, after various alterations, were also inserted. But that provision of the compact which declared that the navigable waters falling into the St. Lawrence and the Mississippi, and the carrying places between them shall be common highways and forever free, etc., was not proposed to be modified. * * * 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 shall 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. 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 terms 'sovereign power of a state' are often used without any very definite idea of their meaning, and they are *Page 224 often misapplied. Prior to the formation of the federal Constitution, the states were sovereign in the absolute sense of the term. They had established a certain agency, under the Article of Confederation, but this agency had little or no power beyond that of recommending to the states the adoption of certain measures. It could not be properly denominated a government, as it did not possess the power of carrying its acts into effect. The people of the states by the adoption of the federal Constitution imposed certain limitations in the exercise of their powers which appertain to sovereignty. But the states are still sovereign. They are bound by the compact not to exercise certain powers which they have delegated to the federal government, and the citizens of the state are bound to respect and obey the powers thus delegated. But this compact, or federal Constitution, was voluntarily formed by the people of the states, in their sovereign capacity, and may be changed, at their pleasure, in the mode provided. The sovereignty of a state does not reside in the persons who fill the different departments of its government, but in the people from whom the government emanated, and who may change it at their discretion. Sovereignty, then, in this country, abides with the constituency and not with the agent. And this remark is true both in reference to the federal and state governments. If the people of a state, in their sovereign capacity, enter into a compact, either from motives of sound policy or for a valuable consideration paid, that certain lands within the state shall be exempt from taxation, or that certain navigable rivers shall remain unobstructed, the sovereignty of the state is no more affected than it is by every act of incorporation, where exclusive privileges are given to a company or an individual. Certain objects on which the sovereign power may act are, by its own consent, withdrawn from its action; but this does not divest the state of any attribute of its sovereignty. If certain lands be exempt from taxation, the general power to tax is not affected; and so as to any exclusive right or privilege which is vested by compact or act of incorporation. A state cannot divest itself of its essential attributes of sovereignty. It cannot enter into a compact not to exercise its legislative and judicial functions, or its elective rights; because this would be to change the form of government which is guaranteed by the federal Constitution. But it is earnestly contended that the rights asserted by the complainant, are wholly incompatible with the sovereignty of the state, and with the provision that the state *Page 225 was admitted on an equal footing with the original states. Does this provision mean that the new state shall exercise the same powers and in the same modes, as are exercised by any other state? Now this cannot be the true construction of the provision, for there cannot be found, perhaps, any two states in the Union whose legislative, judicial, and executive powers are in every respect alike. If the argument be sound that there is no equal footing short of exact equality in this respect, then the states are not equal. But if the meaning be that the people of the new state, exercising the sovereign powers which belong to the people of any other state, shall be admitted into the Union, subject to such provisions in their fundamental law as they shall have sanctioned, within the restrictions of the federal Constitution, then the states are equal — equal in rank, equal in their powers of sovereignty; and only differ in their restrictions, which, in the exercise of those powers, they may have voluntarily imposed upon themselves. Thus a state may, in her Constitution, prohibit the Legislature from incorporating banks, or in fact from passing any act of incorporation; and yet this state would be admitted into the Union on an equal footing with the other states. The same powers were exercised in forming a Constitution, but in the distribution of the powers of the state government they were not given to the same extent, nor were they to be exercised in the same manner. But this produces no inequality. The states are equal, inasmuch as each has, by its own voluntary will, established its own government, and has the power to alter it. This is the principle on which the state governments are established, and consequently they all stand upon an equal footing. They have the same basis; have been formed according to the will of the people, and may be changed at their discretion. If then, there is nothing in the Constitution of the state which is repugnant to the compact in the ordinance in relation to navigable waters, and the parties to the compact have in no form annulled it, and it is not inconsistent with that equality which the state of Ohio claims with the original states, it follows that this compact is in full force, and is a subject of judicial cognizance."
In Green v. Biddle, 8 Wheat. 1, 5 L.Ed. 547, an occupying claimant's act passed by the Legislature of the state of Kentucky was held to be invalid upon the ground that it was in violation of *Page 226 the compact between the states of Virginia and Kentucky contained in the act of the Legislature of Virginia of December 18, 1789, and ratified by the Convention which framed the Constitution of Kentucky, and included in the Constitution of that state as one of its fundamental articles. Both parties to the suit claimed title to the land in controversy under patents from the state of Virginia prior to the erection of the district of Kentucky into a state. The compact was to the effect that all private rights and interests in the land within said district of Kentucky derived from the law of Virginia prior to such separation shall remain inviolate and secure under the laws of the proposed state, and shall be determined by the laws now existing in this state (Virginia). The occupying claimant's act passed by the Legislature of Kentucky materially changed the private rights and interests of the parties in the lands in controversy, as they existed under the laws of the state of Virginia, contrary to the terms of the compact. The case was twice before the court. On the first submission the opinion was prepared by Mr. Justice Story, and on rehearing by Mr. Justice Washington; present, Mr. Chief Justice Marshall, and Justices Johnson, Livingston, Todd, Duvall, and Story. Both opinions upheld the compact. On the first hearing there was no appearance or brief on behalf of one of the parties but on rehearing Henry Clay appeared asamicus curiae. Mr. Clay contended that the limitations imposed by the compact upon the state of Kentucky were not of a character which said state was bound to respect, for the reason that the state of Kentucky in its sovereign capacity could not be bound by the compact, as it required it to surrender part of its sovereignty. Discussing this contention, Mr. Justice Washington said:
"The next objection, which is to the validity of the particular clause of the compact involved in this controversy, rests upon a principle, the correctness of which remains to be proved. It is practically opposed by the theory of all limited governments, and especially of those which constitute this Union. The powers of legislation granted to the government of the United States, as *Page 227 well as to the several state governments, by their respective Constitutions, are all limited. The article of the Constitution of the United States, involved in this very case, is one amongst many others, of the restriction alluded to. If it be answered that these limitations were imposed by the people in their sovereign character, it may be asked, was not the acceptance of the compact the act of the people of Kentucky in their sovereign character? If, then, the principle contended for be a sound one, we can only say that it is one of a most alarming nature, but which, it is believed, cannot be seriously entertained by any American statesman or jurist. Various objections were made to the literal construction of the compact, one only of which we deem it necessary particularly to notice. That was that if it be so construed as to deny to the Legislature of Kentucky the right to pass the act in question, it will follow that that state cannot pass laws to affect lands, the title to which was derived under Virginia, although the same should be wanted for public use. If such a consequence grows necessarily out of this provision of the compact, still we can perceive no reason why the assent to it by the people of Kentucky should not be binding on the Legislature of that state. Nor can we perceive why the admission of the conclusion involved in the argument should invalidate an express article of the compact in relation to a quite different subject. The agreement, that the rights of claimants under Virginia should remain as valid and secure as they were under the laws of that state, contains a plain, intelligible proposition, about the meaning of which it is impossible there can be two opinions. Can the government of Kentucky fly from this agreement, acceded to by the people in their sovereign capacity, because it involves a principle which might be inconvenient, or even pernicious to the state, in some other respect? The court cannot perceive how this proposition could be maintained."
The decision in that case is planted squarely upon the ground that the agreement between Virginia and Kentucky was inviolate, because it constituted a compact between the two states, and Kentucky could not abrogate it by legislative enactment, or by amending her Constitution, because it was a compact acceded to by her people in their sovereign capacity, which could only be rescinded by the common assent of those who were parties to it. That *Page 228 Mr. Justice Story, who sat in the case and who attained great fame as a jurist and as a writer on the Constitution, so understood the principle therein enunciated, and that it might be applied to merely political questions, is apparent from the following, taken from his commentaries on the Constitution (volume 2, § 1321):
"At the time when the preliminary measures were taken for the admission of the state of Missouri into the Union, an attempt was made to include a restriction prohibiting the introduction of slavery into that state, as a condition of the admission. On that occasion the question was largely discussed whether Congress possessed constitutional authority to impose such a restriction upon the ground that the prescribing of such a condition is inconsistent with the sovereignty of the state to be admitted, and its equality with the other states. The final result of the vote which authorized the erection of that state seems to establish the rightful authority of Congress to impose such a restriction, although it was not then applied. In the act passed for this purpose, there is an express clause that in all the territory ceded by France to the United States under the name of Louisiana, which lies north of 36 degrees, 30 min. N. Lat., not included within the limits of the state of Missouri, 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. An objection of a similar character was taken to the compact between Virginia and Kentucky, upon the ground that it was a restriction upon state sovereignty. But the Supreme Court had no hesitation in overruling it, considering it as opposed by the theory of all free governments, and especially of those which constitute the American Republic."
In the case of Blue Jacket, for Himself and Other Members ofthe United Tribe of Shawnee Indians, Residing in Kansas, v.Board of Commissioners of County of Johnson, 5 Wall. 737, 18 L.Ed. 667, the question involved was the right of the state of Kansas to tax the lands belonging to the United Tribe of Shawnee Indians residing in that state, notwithstanding the compact between the state and the United States to the contrary. The state contended that this compact impinged upon its sovereignty. Mr. Justice Davis, who delivered the opinion of the court, said: *Page 229
"There can be no question of state sovereignty in the case, as Kansas accepted her admission into the family of states on condition that the Indian rights should remain unimpaired and the general government at liberty to make any regulation respecting them, their lands, property, or other rights, which it would have been competent to make if Kansas had not been admitted into the Union."
In Virginia v. West Virginia, 11 Wall. 39, 20 L.Ed. 67, a compact involving a boundary question between those states was upheld. The third, fourth, and fifth paragraphs of the syllabus indicate the subject involved and the holding of the court:
"(3) The ordinance of the organic convention of the commonwealth of Virginia, under which the state of West Virginia was organized, and the act of May 13, 1862, of the said commonwealth, constitute a proposition of the former state that the counties of Jefferson and Berkeley and others might, on certain conditions, become part of the new state; and the provisions of the Constitution of the new state concerning those counties are an acceptance of that proposition.
"(4) The act of Congress admitting the state of West Virginia into the Union at the request of the commonwealth of Virginia, with the provisions for the transfer of these counties in the Constitution of the new state, and in the acts of the Virginia Legislature, is an implied consent to the agreement of those states on that subject.
"(5) The consent required by the Constitution to make valid agreements between the states need not necessarily be by an express assent to every proposition of the agreement. In the present case the assent is an irresistible inference from the legislation of Congress on the subject."
In Hancock v. Walsh, Commissioner of the General Land Officeof Texas, 3 Woods, 351, Fed. Cas. No. 6,012, the state of Texas sought to evade the terms of the joint resolution of the Congress of the United States for the annexation of Texas which provided that Texas be allowed, as one of the conditions of annexation, to retain the vacant unappropriated lands within her limits, to be applied to the payment of the debts and liabilities of the republic of Texas. The court held it was not within the *Page 230 power of the state government to refuse to comply with the terms of the compact. In discussing the question under consideration, Mr. Circuit Judge Woods, who delivered the opinion of the court, said:
"Whether it be a treaty or a contract, it is alike within the clause of the Constitution of the United States which forbids a state from impairing the obligation of contracts. Green v.Biddle, 8 Wheat. 1 [5 L.Ed. 547]. If it is to be considered a treaty, it is protected by the second clause of article 6 of the Constitution of the United States, which declares, 'This Constitution and the laws of the United States, shall be the supreme law of the land.' If this is a treaty, the Legislature of Texas can no more repeal or annul it than it can annul or repeal a clause in the Constitution of the United States. If it is to be considered as a contract it is equally beyond the power of the Legislature; for a state is as much forbidden by the Constitution from passing laws to impair the obligation of contracts made by herself as by other parties. By no device that a state can resort to can she escape this constitutional prohibition. It is perfectly clear that she cannot authorize her agents to violate her own contracts by leaving it to their discretion whether they shall violate them or not."
United States v. Partello (C. C.) 48 Fed. 670, and UnitedStates v. McBratney, 104 U.S. 621, 26 L.Ed. 869, illustrate the different situations that arise in matters concerning jurisdiction over Indian reservations situated with a state at the time of statehood, where there is a compact relating to this subject and where there is not. In the Partello case there was a compact, and it was held that the United States courts had jurisdiction over the crime of rape committed by a white man upon a white woman upon an Indian reservation, because the people of the state had full power to relinquish to the United States such jurisdiction, and did so, whilst in the McBratney case the Supreme Court of the United States held that under the act admitting Colorado into the Union the United States had no jurisdiction of the crime of murder committed by one white man upon another on the Ute Reservation, for the reason that the admission act of Colorado, wherein that reservation was situated, "contains *Page 231 no exception of the Ute Reservation, or of jurisdiction over it," clearly indicating that it would have made a difference in the rule laid down in that case if it had. Ward v. Race Horse,163 U.S. 504, 16 Sup. Ct. 1076, 41 L.Ed. 244, is another case of this class. The majority opinion was prepared by the present Chief Justice, who distinguished that case from the case of the Kansas Indians, supra, as follows:
"The first case (that of the Kansas Indians) involved the right of the state to tax the land of Indians owned under patents issued to them in consequence of treaties made with their respective tribes. The court held that the power of the state to tax was expressly excluded by the Enabling Act. The second case (that of the New York Indians) involved the right of the state to tax land embraced in an Indian reservation, which existed prior to the adoption of the Constitution of the United States. Thus these two cases involved the authority of the state to exert its taxing power on lands embraced within an Indian reservation, that is to say, the authority of the state to extend its powers to lands not within the scope of its jurisdiction, whilst this case involves a question of whether where no reservation exists a state can be stripped by implication and deduction of an essential attribute of its governmental existence. Doubtless the rule that treaties should be so construed as to uphold the sanctity of the public faith ought not to be departed from."
There are other federal cases bearing directly upon the same question, among which may be mentioned Beecher v. Wetherby,95 U.S. 517, 24 L.Ed. 440, which upholds a compact between the United States and the people of the proposed state of Wisconsin, concerning grants of land to the new state; Cooperv. Roberts, 18 How. 173, 15 L.Ed. 338, where a similar clause in a compact between the state of Michigan and the United States is upheld; Boyd v. Nebraska, 143 U.S. 135, 12 Sup. Ct. 375, 36 L.Ed. 103, a compact between the United States and Nebraska relating to naturalization was sustained; and State ofMinnesota v. Batchelder, 1 Wall. 109, 17 L.Ed. 551, recognizes the validity of such compacts. The state courts seem to be in harmony with the federal courts on this question. Hogg v.Zanesville Canal *Page 232 Mfg. Co., 5 Ohio, 410; Brittle v. People, 2 Neb. 198; Romine v.State et al., 7 Wn. 215, 34 P. 924; Duke v. Cahawba Nav.Co., 10 Ala. 82, 44 Am. Dec. 472.
The foregoing cases illustrate the wide range of subjects which the courts have held to be proper subjects of compact between the states and the states and the United States. If the far greater number and diversity of subjects concerning which the people of proposed states and the United States have deemed it expedient to enter into compacts which are now and for years have been in force unquestioned, and under which the respective sovereignties are working out their common destiny without any apparent consciousness of inequality on that account, could be spread before us within any reasonable space, it would be obvious that Mr. Justice Field did not state the rule too broadly in Ft. Leavenworth R. Co. v. Lowe, supra, when he said:
"Though the jurisdiction and authority of the general government are essentially different from that of the state, they are not those of a different country, and the two, the state and the general government, may deal with each other in any way they deem best to carry out the purposes of the Constitution."
Utah furnishes what up to that time was a novel example of such dealing. The Enabling Act of Utah provides that the Constitutional Convention "shall provide by ordinance irrevocable without the consent of the United States and the people of said state, * * * that polygamous or plural marriages are forever prohibited." The ordinance was adopted in accordance with the terms of the Enabling Act as follows:
"The following ordinance shall be irrevocable without the consent of the United States and the people of this state: First. Perfect toleration of religious sentiment is guaranteed. No inhabitant of this state shall ever be molested in person or property on account of his or her mode of religious worship; but polygamous or plural marriages are forever prohibited."
This ordinance has never received judicial interpretation so far as I am aware, but a Senator from that state was tried before the United States Senate for violation of the anti-polygamy law, and *Page 233 its validity, or that it was to be given the force and effect of a compact, was not even questioned by the eminent lawyers who appeared on either side of that celebrated case.
There is a like provision in our Enabling Act which we accepted. We also agreed not to limit the authority of the United States pertaining to Indians; that perfect toleration of religious sentiment shall be secured; that we will not manufacture, sell, barter, or give away intoxicating liquors in that part of the state formerly known as Indian Territory for a period of 21 years, etc. All of these agreements limit somewhat the legislative power of the state, and of course, if the view of the majority of the court as expressed by Justice Williams is sound, the state may repudiate these solemn compacts without consulting the federal government or the sovereign people of the state. I cannot give my assent to that proposition. It seems to me that the agreement not to move the state capital until 1913 and not to appropriate any public moneys of the state for the erection of buildings for capital purposes during such period, involves the least important subject embaced within the Enabling Act, and if the compact in relation to that cannot be upheld, the power of compact between the federal government and the people of a proposed state is limited indeed, and heretofore has been very little understood by the contracting parties. It is incomparably inferior to the subject of the compact between Virginia and Kentucky upheld inGreen v. Biddle, supra. Of that subject Mr. Justice Story said:
"Titles to land cannot be acquired or transferred in any other mode than that prescribed by the laws of the territory where it is situate. Every government has, and from the nature of sovereignty must have, the exclusive right of regulating the descent, distribution, and grants of the domain within its own boundaries; and this right must remain until it yields it up by compact or conquest."
The right of sovereign states to enter into compacts with each other is itself one of the highest attributes of sovereignty. The power exists in full vigor in every state which has not parted with this portion of its natural sovereignty. The limitation upon this *Page 234 great power sanctioned by the majority opinion constitutes to my mind a far greater restriction upon the sovereignty of the state than the exercise by the sovereign people of the proposed state of the power to bind the state, by compact with the United States, not to remove her capital prior to 1913.
The Enabling Act contained propositions only not binding until accepted by the people of the proposed state. The people were free to accept or reject those propositions; indeed Arizona whose admission was provided for by the same Enabling Act did reject some of its proposals and refused statehood on the terms proposed. Oklahoma could and probably would have done the same if the people had not been satisfied with the terms of her Enabling Act. If, after statehood, the state becomes impressed with the idea that the terms imposed by the Enabling Act and accepted by the people in their sovereign capacity impinge so greatly upon her rights as a sovereign state that she cannot longer tolerate them, before she would be permitted to repudiate them, if equitable principles were applied, she would be required to tender back to the United States the boon of statehood, return the $5,000,000 school fund, and the priceless heritage of school and public building lands acquired through the Enabling Act and its acceptance, and restore everything of value which she received by virtue thereof.
Municipalities as well as individuals ought inviolably to observe their compacts and their promises. Vattel says (Laws of Nations, 196):
"This great truth is generally acknowledged by all nations; the reproach of perfidy is esteemed by sovereigns a most atrocious affront, yet he who does not observe a treaty is certainly perfidious, since he violates his faith."
In this conclusion I am authorized to say Mr. Justice DUNN concurs. *Page 235