(dissenting).
The State of Oklahoma has asserted the power to seize and confiscate a shipment of intoxicating liquor, while being transported by a common carrier to the Ft. Sill Military Reservation, which is enclaved within the State of Oklahoma. The asserted power to seize and confiscate the shipment of liquor in question is an attempted exercise of the police power of the State in its purest form, because it relates to a declared public policy, affecting the public morals of the State's inhabitants. The police power of the state is an indispensable prerogative of state sovereignty, and “at times the most insistent, and always one of the least limitable of the powers of government.” Eubank v. Richmond, 226 U.S. 137, 142, 33 S.Ct. 76, 77, 57 L.Ed. 156, 42 L.R.A..N.S., 1123. See, also, Sligh v. Kirkwood, 237 U. S. 52, 59, 35 S.Ct. 501, 59 L.Ed. 835; Clason v. Indiana, 306 U.S. 439, 59 S.Ct. 609, 83 L.Ed. 858; Ziffrin, Inc., v. Reeves, 308 U.S. 132, 60 S.Ct. 163, 84 L.Ed. 128. The wisdom of this declared policy is of course within the peculiar competence of the people of Oklahoma. The effect of the judgment of the lower court, as upheld by the majority, is to enjoin the asserted police power of the State, ancillary to the enforcement of its criminal laws, on the grounds that the laws are rendered inoperative by force of the transcendent Federal law.
It is difficult to discern from the expressions of the majority whether the transcendent power to be vindicated by injunctive process springs from the paramount power of Congress to regulate interstate commerce, or the exclusive power of Congress to exercise authority over all places expressly committed to its jurisdiction by the Federal Constitution. Art. 1, Sec. 8, Clause 17; Art. 6, Clause 2). See Pacific Coast Dairy v. Department of Agriculture, 318 U.S. 285, 63 S.Ct. 628, 87 L.Ed. -; Cf. Penn Dairies v. Milk Control Commission, 318 U.S. 261, 63 S.Ct. 617, 87 L.Ed.-.
In order to clearly define our differences, it should be here noted that I fully agree that the Ft. Sill Military Reservation, although located within the geographical boundaries of the State of Oklahoma, is an enclave wholly and exclusively within the jurisdiction of the Federal government, and that the State of Oklahoma is powerless to regulate any activities conducted thereon, except in respect to matters not material here. Furthermore, the shipment of liquor originated in Illinois, and at the time of its seizure was being transported by common carrier to the Ft. Sill Reservation; was thus moving in interstate commerce, and was entitled to protection and immunity as such, if it be regarded as a legitimate article of interstate commerce, the transportation of which is incidental to legitimate activities conducted within the reservation. Our point of difference is, that in my judgment the State of Oklahoma, by its Constitution and laws, makes it unlawful to possess, transport, furnish, or receive this particular shipment of intoxicating liquor, and it is therefore contraband and subject to seizure and confiscation under the laws of the State, and the Federal Government has by its laws not only consented to the operation of Oklahoma laws in respect to the particular commodity involved, but has also made the same acts a Federal offense when committed within the boundaries of the enclave. Consequently, the shipment is not a legitimate article of interstate commerce; there *280is no governmental function to protect; no legitimate interstate activity to immunize; and, no Federal legislation or policy to vindicate.
By its Constitution, Oklahoma has prohibited and declared unlawful the manufacture, sale, barter, giving away, or furnishing of intoxicating liquor within the State,1 and by its laws has declared unlawful the importation into the State of any intoxicating liquors for beverage purposes;2 or to receive, directly of indirectly, any liquors, the sale of which is prohibited by the laws of Oklahoma, from a common or other carrier, or to possess the same, whether such liquors are intended for personal use or otherwise.3 Oklahoma has also declared that the possession of more than one quart of intoxicating liquor is prima facie evidence of its illegal possession;4 and it is unlawful to keep or maintain any club room where liquor is kept or stored for sale, or for distribution or division among the members of such club.5 Thus by its network of laws, Oklahoma has made it plain that the possession of intoxicating liquors for beverage purposes is contrary to its public policy.
By force, of the Assimilative Crimes Act,6 any act or thing committed or omitted within the Ft. Sill Military Reservation, which is not made penal by an act of Congress, but which if committed or omitted within the State of Oklahoma, would be a violation of its criminal laws, is a violation of Federal law and punishable as such. Furthermore, by express Federal enactment, it is unlawful for any person to sell or deal in beer, wine, or any intoxicating liquors on the Military Reservation. Act of Feb. 2, 1901, 31 Stat. 7S8, 10 U.S.C.A. § 1350. It follows therefore that it is a violation of the Federal law to import intoxicating liquors into the Reservation; to receive intoxicating liquors from a common or other carrier, whether intended for personal' use or otherwise; to sell or otherwise furnish the same; and, the possession of more than one quart of intoxicating liquor on the reservation is prima facie evidence of its illegal possession. Furthermore, it is unlawful to maintain a club room in which intoxicating liquor is kept, or stored, for distribution among the members of the club.
It thus becomes sufficiently plain that the transportation of the intoxicating liquor is not incidental to any legitimate activities upon or within the Military Reservation, but would be illegal and contraband at the point of its destination. It is thereh fore not a legitimate article of interstate-commerce. Interstate immunity against the-operation of state criminal laws does not extend to articles moving in interstate commerce to an unlawful destination. If this-be true, then the maxim, ex dolo malo nonoritur actio, has cogent application, and', there is no justifiable basis for injunctiverelief by a Federal court.
In order to make out a case in equity, the-majority hold that it is not unlawful to possess the liquor in question for one’s personal use in Oklahoma, and it is therefore not unlawful to possess it on the Military Reservation. This conclusion is reached by-holding the State sthtute (Laws of 1917, ch.. 186, p. 350, Sec. 1, 37 O.S.A. § 38, making it unlawful to receive the liquor from a common or other carrier, or to possess it, whether intended for personal use or other*281■wise, unconstitutional. Thus, it is said that the shipment violated no law- — State or Federal; that its seizure and confiscation by the State officials was an unwarranted interference with interstate commerce, and the common carrier is therefore entitled to injunctive relief. It is a sufficient answer to say that state criminal laws are not lightly nullified by Federal courts of equity on the grounds that they are unconstitutional. The State Act, thought to be unconstitutional, became law in 1917; it has been before the Oklahoma' courts for interpretation and construction, its constitutionality has not been challenged, and I do not think we are warranted in lightly setting it aside in order to justify injunctive relief in these ■circumstances. Moreover, no one is on trial for the violation of any of these acts. We ;are concerned with their validity only insofar as they express the public policy of the •sovereign State of Oklahoma. Our purpose is to ascertain whether the power asserted in pursuance of these acts, so offends the paramount Federal law as to justify the exercise of Federal equity powers to vindicate the national policy.
The 21st Amendment prohibits the importation or transportation of intoxicating liquors into the State of Oklahoma, and the State of Oklahoma is empowered to forbid such importation and transportation unfettered by the commerce clause of the Constitution. See also Webb-Kenyon Act, 49 Stat. 877, 27 U.S.C.A. § 122. State Board v. Young’s Market Co., 299 U.S. 59, 57 S.Ct. 77, 81 L.Ed. 38; Mahoney v. Triner Corp., 304 U.S. 401, 58 S.Ct. 952, 82 L.Ed. 1424; Indianapolis Brewing Co. v. Liquor Control Commission, 305 U.S. 391, 59 S.Ct. 254, 83 L.Ed. 243; Ziffrin, Inc., v. Reeves, 308 U.S. 132, 60 S.Ct. 163, 84 L.Ed. 128. But the 21st Amendment is not applicable where exclusive jurisdiction is in the United States, without power in the ■state to regulate alcoholic beverages. Collins v. Yosemite Park & Curry Co., 304 U.S. 518, 538, 58 S.Ct. 1009, 82 L.Ed. 1502. But unlike the Yosemite Park case, there are no legitimate activities to protect, and no Federal legislative policy to vindicate. This is not a case of jurisdictional jealousy between the Federal and State sovereignties; the Federal Government has not asserted any power which may reside in it to insure the safe conduct of the shipment, nor has the consignee invoked the jurisdiction of the court. Only the interstate carrier seeks relief, and the equities of its case rest upon the legitimacy of the articles which it transported and seeks to protect.
The proper and orderly function of our dual system of government is achieved only through a delicate and meticulous balance of Federal and state sovereignty. Each is supreme within the domain delegated or reserved to it by the Federal Constitution, yet both operate to regulate the conduct and behavior of one united people. This delicate balance of power is attained, and maintained, only by a solicitous regard for the power of each sovereign in relation to the general welfare of the governed. The boundaries between the two are indistinct, and only broadly delineated by the Constitution. It is the province of the courts to maintain that essential balance by assuring to each sovereignty the full measure of respect for its laws and ordinances. This balance is not maintained by the utilization of Federal injunctive process, to insure safe conduct of a shipment of intoxicating liquor from without the State to a Military Reservation located within the State, whereat it would be a violation of Federal law to receive, sell, or possess the same. Injunctions by Federal courts against the operation of state laws should, in all events, be based upon considerations of necessity for national dominance. In my judgment, the necessity does not exist here, and the injunction should have been denied.
Prohibition Ordinance to the Oklahoma Constitution. Following Schedule § 43.
Laws 1939, Secs. 1-5, 37 O.S. 41-45. See Hayes v. United States, 10 Cir., 112 F.2d 417; Epps v. United States, 10 Cir., 112 F.2d 931; Flippin v. United States, 8 Cir., 121 F.2d 742, certiorari denied, 314 U.S. 677, 62 S.Ct. 184, 86 L.Ed. 542; Hinkle v. United States, 8 Cir., 115 F.2d 217.
Laws 1917, ch. 186, Sec. 1, 37 O.S.A. § 38. See DeHasque v. Atchison, etc., Ry. Co., 68 Okl. 183, 173 P. 73, L.R.A. 1918F, 259; Baldridge v. State, 80 Okl. 85, 194 P. 217; Walker v. State, 18 Okl.Cr. 661, 197 P. 520.
Laws 1913, ch. 26, p. 48, Sec. 6, Laws 1923-24, ch. 123, p. 144, Sec. 1, Laws 1933, ch. 153, p. 339, Sec. 3, 37 O.S.A. § 82. See Morse v. State, 63 Okl.Cr. 445, 77 P.2d 757; Whitwell v. State, 72 Okl.Cr. 192, 114 P.2d 489, 490; Haltom v. State, 58 Okl.Cr. 117, 50 P.2d 744, 746; Hull v. State, 61 Okl.Cr. 12, 65 P.2d 423, 425; Stump v. State, 66 Okl.Cr. 391, 92 P.2d 616, 619; Knighton v. State, 64 Okl.Cr. 322, 79 P.2d 1030, 1032; Robinson v. State, 71 Okl.Cr. 75, 108 P.2d 196, 198.
Sec. 3610, R.L.1910, Laws of 1927, ch. 13, Sec. 1, 37 O.S.A. § 6.
Cr.Code § 289, as last amended June-6, 1940, 54 Stat. 234, 18 U.S.C.A. § 468. See United States v. Paul, 6 Pet. 141, 8 L.Ed. 348; Franklin v. United States, 216 U.S. 559, 568, 30 S.Ct. 434, 54 L.Ed. 615; United States v. Press Publishing Co., 219 U.S. 1, 8, 31 S.Ct. 212, 55 L.Ed. 65, 21 Ann.Cas. 942.