[221 U.S. 559, 560] Messrs. Frank Dale, C. G. Horner, John H. Burford, A. G. C. Bierer, Frank B. Burford, and Benjamin F. Hegler for plaintiff in error.
[221 U.S. 559, 562] Messrs. Charles West, B. F. Burwell, Joseph W. Bailey, W. A. Ledbetter, and C. B. Stuart for defendants in error.
Mr. Justice Lurton delivered the opinion of the court:
This is a writ of error to the supreme court of Oklahoma to review the judgment of that court upholding a legislative act of the state, providing for the removal of its capital from Guthrie to Oklahoma City, and making an appropriation from the funds of the state for the purpose of carrying out the act by the erection of the necessary state buildings. Acts of Oklahoma, December 29, 1910. [221 U.S. 559, 563] The opinion of the supreme court of Oklahoma may be found in 113 Pac. 944.
By an act passed December 7, 1910, the state gave to its supreme court 'original jurisdiction' to entertain any proceeding brought in that court by resident taxpayers of the state to have determined 'the legality of the removal or location, or attempt to remove or locate, the state capital' and certain other state institutions. This act was passed in advance of the removal act here involved, and for the express purpose of providing a speedy method for the determination of constitutional objections which might be urged against the proposed relocation of the seat of the state government. The removal act followed, and this proceeding was at once started in the supreme court of the state by the plaintiff in error, who claimed not only to be a citizen and tax-payer of the state, but also owner of large property interests in Guthrie, which would be adversely affected by the removal of the seat of government, as proposed by the act in question. The validity of the law locating the capital at Oklahoma City was attacked for many reasons which involved only the interpretation and application of the Constitution of the state. These were all decided adversely to the petitioner. We shall pass them by as matters of state law, not subject to the reviewing power of this court under a writ of error to a state court.
The question reviewable under this writ of error, if any there be, arises under the claim set up by the petitioner, and decided against him, that the Oklahoma act of December 29, 1910, providing for the immediate location of the capital of the state at Oklahoma City, was void as repugnant to the enabling act of Congress of June 16, 1906, under which the state was admitted to the Union. 34 Stat. at L. chap. 3335, p. 267. The act referred to is entitled, 'An Act to Enable the People of Oklahoma and of the Indian Territory to Form a Constitution and State [221 U.S. 559, 564] Government and Be Admitted into the Union on an Equal Footing with the Original States,' etc. The same act provides for the admission of Arizona and New Mexico. The first twenty-two sections relate only to Oklahoma. The 2d section is lengthy and deals with the organization of a constitutional convention, and concludes in these words: 'The capital of said state shall temporarily be at the city of Guthrie. . . . 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 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 said period.'
Other sections of the act require that the Constitution of the proposed new state shall include many specific provisions concerning the framework of the government, and some which impose limitations upon the state as regards the Indians therein, and their reservations, in respect of traffic in liquor among the Indians or upon their reservations. The 22d and last section, applicable to Oklahoma, reads thus: 'That the constitutional convention provided for herein shall by ordinance irrevocably accept the terms and conditions of this act.'
The Constitution as framed contains nothing as to the location of the state capital; but the convention which framed it adopted a separate ordinance in these words:
This was submitted along with the Constitution as a separate matter, and was ratified as was the Constitution proper.
The efficacy of this ordinance as a law of the state conflicting with the removal act of 1910 was, of course, a state question. The only question for review by us is whether the provision of the enabling act was a valid limitation upon the power of the state after its admission, which overrides any subsequent state legislation repugnant thereto.
The power to locate its own seat of government, and to determine when and how it shall be changed from one place to another, and to appropriate its own public funds for that purpose, are essentially and peculiarly state powers. That one of the original thirteen states could now be shorn of such powers by an act of Congress would not be for a moment entertained. The question, then, comes to this: Can a state be placed upon a plane of inequality with its sister states in the Union if the Congress chooses to impose conditions which so operate, at the time of its admission? The argument is, that while Congress may not deprive a state of any power which it possesses, it may, as a condition to the admission of a new state, constitutionally restrict its authority, to the extent, at least, of suspending its powers for a definite time in respect to the location of its seat of government. This contention is predicated upon the constitutional power of admitting new states to this Union, and the constitu- [221 U.S. 559, 566] tional duty of guaranteeing to 'every state in this Union a republican form of government.' The position of counsel for the plaintiff in error is substantially this: That the power of Congress to admit new states, and to determine whether or not its fundamental law is republican in form, are political powers, and as such, uncontrollable by the courts. That Congress may, in the exercise of such power, impose terms and conditions upon the admission of the proposed new state, which, if accepted, will be obligatory, although they operate to deprive the state of powers which it would otherwise possess, and, therefore, not admitted upon 'an equal footing with the original states.'
The power of Congress in respect to the admission of new states is found in the 3d section of the 4th article of the Constitution. That provision is that, 'new states may be admitted by the Congress into this Union.' The only expressed restriction upon this power is that no new state shall be formed within the jurisdiction of any other state, nor by the junction of two or more states, or parts of states, without the consent of such states, as well as of the Congress.
But what is this power? It is not to admit political organizations which are less or greater, or different in dignity or power, from those political entities which constitute the Union. It is, as strongly put by counsel, a 'power to admit states.'
The definition of 'a state' is found in the powers possessed by the original states which adopted the Constitution,-a definition emphasized by the terms employed in all subsequent acts of Congress admitting new states into the Union. The first two states admitted into the Union were the states of Vermont and Kentucky, one as of March 4, 1791, and the other as of June 1, 1792. No terms or conditions were exacted from either. Each act declares that the state is admitted 'as a new and entire member of the United States of America.' 1 Stat. at L. [221 U.S. 559, 567] 191, 189, chaps. 7, 4. Emphatic and significant as is the phrase admitted as 'an entire member,' even stronger was the declaration upon the admission in 1796 of Tennessee [1 Stat. at L. 491, chap. 47] as the third new state, it being declared to be 'one of the United States of America,' 'on an equal footing with the original states in all respects whatsoever,'- phraseology which has ever since been substantially followed in admission acts, concluding with the Oklahoma act, which declares that Oklahoma shall be admitted 'on an equal footing with the original states.'
The power is to admit 'new states into this Union.'
The argument that Congress derives from the duty of 'guaranteeing to each state in this Union a republican form of government,' power to impose restrictions upon a new state which deprive it of equality with other members of the Union, has no merit. It may imply the duty of such new state to provide itself with such state government, and impose upon Congress the duty of seeing that [221 U.S. 559, 568] such form is not changed to one anti-republican,-Minor v. Happersett, 21 Wall. 162, 174, 22 L. ed. 627, 630,-but it obviously does not confer power to admit a new state which shall be any less a state than those which compose the Union.
We come now to the question as to whether there is anything in the decisions of this court which sanctions the claim that Congress may, by the imposition of conditions in an enabling act, deprive a new state of any of those attributes essential to its equality in dignity and power with other states. In considering the decisions of this court bearing upon the question, we must distinguish, first, between provisions which are fulfilled by the admission of the state; second, between compacts or affirmative legislation intended to operate in futuro, which are within the scope of the conceded powers of Congress over the subject; and third, compacts or affirmative legislation which operates to restrict the powers of such new state in respect of matters which would otherwise be exclusively within the sphere of state power.
As to requirements in such enabling acts as relate only to the contents of the Constitution for the proposed new state, little need to be said. The constitutional provision concerning the admission of new states is not a mandate, but a power to be exercised with discretion. From this alone it would follow that Congress may require, under penalty of denying admission, that the organic law of a new state at the time of admission shall be such as to meet its approval. A Constitution thus supervised by Congress would, after all, be a Constitution of a state, and as such subject to alteration and amendment by the state after admission. Its force would be that of a state Constitution, and not that of an act of Congress.
The case of Permoli v. New Orleans, 3 How. 589, 609, 11 L. ed. 739, 748, is in point. By the act of February 20, 1811 [2 Stat. at L. 641, chap. 21], the people of the territory of Orleans were empowered to form a Constitution and state government. The 3d [221 U.S. 559, 569] section of that act prescribed, among other things, that it should 'contain the fundamental principles of civil and religious liberty.' The act of 1812, admitting the state, provided, that 'all other the conditions and terms contained in the 3d section . . . shall be considered, deemed, and taken, fundamental conditions and terms, upon which the said state is incorporated in the Union.' [2 Stat. at L. 703, chap. 50.] It was claimed that a certain municipal ordinance was in violation of religious liberty, and therefore void, as repugnant to the act under which the state had been admitted to the Union. Dealing with those terms of the enabling and admitting acts in respect to the contents of the Constitution to be adopted by the people of the territory seeking admission as a state, this court, speaking by Mr. Justice Catron, said:
So far as this court has found occasion to advert to the effect of enabling acts as affirmative legislation affecting the power of new states after admission, there is to be found no sanction for the contention that any state may be deprived of any of the power constitutionally possessed by other states, as states, by reason of the terms in which the acts admitting them to the Union have been framed.
The case of Pollard v. Hagan, 3 How. 212, 11 L. ed. 565, is a most instructing and controlling case. It involved the title to the submerged lands between the shores of navigable waters within the state of Alabama. The plaintiff claimed under a patent from the United States, and the defendant under a grant from the state. The plaintiff relied upon two propositions which are relevant to the question here. One was that, in the act under which Alabama was admitted to the Union [3 Stat. at L. 489, chap. 47], there was a stipulation that the people of Alabama forever disclaimed all right or title to the waste or unappropriated lands lying [221 U.S. 559, 571] within the state, and that they should remain at the sole disposal of the United States; and a second, that all of the navigable waters within the state should forever remain public highways and free to the citizens of that state and of the United States, without any tax, duty, or impost imposed by the state. These provisions were relied upon as a 'compact' by which the United States became possessed of all such submerged lands between the shores of navigable rivers within the state.
The points decided were:
First, following Martin v. Waddell, 16 Pet. 410, 10 L. ed. 1012, that prior to the adoption of the Constitution, the people of each of the original states 'hold the absolute right to all their navigable waters and the soil under them for their own common use, subject only to the rights since surrendered by the Constitution.'
Second. That Alabama had succeeded to all the sovereignty and jurisdiction of all the territory within her limits, to the same extent that Georgia possessed it before she ceded that territory to the United States.
Third. That to Alabama belong the navigable waters, and soils under them.
The court held that the stipulation in the act under which Alabama was admitted to the Union, that the people of the proposed states 'forever disclaim all rights and title to the waste or unappropriated lands lying within the said territory, and that the same shall be and remain at the sole and entire disposition of the United States,' cannot operate as a contract between the parties, but is binding as law. As to this the court said:
Fourth. As to the stipulation in the same admission act that all navigable waters within the state should forever remain open and free, the court, after deciding that to the original states belonged the absolute right to the navigable waters within the states and the soil under them for the public use, 'subject only to the rights since surrendered by the Constitution,' said:
The plain deduction from this case is that when a new state is admitted into the Union, it is so admitted with all of the powers of sovereignty and jurisdiction which pertain to the original states, and that such powers may not be constitutionally diminished, impaired, or shorn away by any conditions, compacts, or stipulations embraced in the act under which the new state came into the Union, which would not be valid and effectual if the subject of congressional legislation after admission.
This deduction finds support in Permoli v. New Orleans, 3 How. 589, 11 L. ed. 739, from which we have heretofore used an excerpt; and in Strader v. Graham, 10 How. 82, 13 L. ed. 337; Withers v. Buckley, 20 How. 84, 93, 15 L. ed. 816, 820; Escanaba & L. M. Transp. Co. v. Chicago, 107 U.S. 678, 688 , 27 S. L. ed. 442, 446, 2 Sup. Ct. Rep. 185; Van Brocklin v. Tennessee (Van Brocklin v. Anderson) 117 U.S. 151, 160 , 29 S. L. ed. 845, 848, 6 Sup. Ct. Rep. 670; Huse v. Glover, 119 U.S. 543 , 30 L. ed. 487, 7 Sup. Ct. Rep. 313; Sands v. Manistee River Improv. Co. 123 U.S. 288, 296 , 31 S. L. ed. 149, 151, 8 Sup. Ct. Rep. 113; Ward v. Race Horse, 163 U.S. 504 , 41 L. ed. 244, 16 Sup. Ct. Rep. 1076; Bolin v. Nebraska, 176 U.S. 83, 87 , 44 S. L. ed. 382, 383, 20 Sup. Ct. Rep. 287.
That the power of Congress to regulate commerce among the states involves the control of the navigable waters of the United States over which such commerce is conducted is undeniable; but it is equally well settled that the control of the state over its internal commerce involves the right to control and regulate navigable streams within the state until Congress acts on the subject. This has been the uniform holding of this court since Wilson v. Black Bird Creek Marsh Co. 2 Pet. 245, 7 L. ed. 412; Gilman v. Philadelphia, 3 Wall. 713, 18 L. ed. 96; Escanaba & L. M. Transp. Co. v. Chicago, 107 U.S. 678, 683 , 27 S. L. ed. 442, 445, 2 Sup. Ct. Rep. 185.
Many of the cases cited above presented the question as to whether state regulation of its own navigable waters, valid as an exercise of its power as a state until Congress should regulate the subject, was invalid because that 'plenary power' had been cut down, not by a regulation [221 U.S. 559, 574] of the general subject by Congress, but as a result of a supposed compact, condition, or restriction accepted by the state as a condition upon which it was admitted into the Union.
It may well happen that Congress should embrace in an enactment introducing a new state into the Union legislation intended as a regulation of commerce among the states, or with Indian tribes situated within the limits of such new state, or regulations touching the sole care and disposition of the public lands or reservations therein, which might be upheld as legislation within the sphere of the plain power of Congress. But in every such case such legislation would derive its force not from any agreement or compact with the proposed new state, nor by reason of its acceptance of such enactment as a term of admission, but solely because the power of Congress extended to the subject, and therefore would not operate to restrict the state's legislative power in respect of any matter which was not plainly within the regulating power of Congress. Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1, 9 , 31 S. L. ed. 629, 632, 8 Sup. Ct. Rep. 811; Pollard v. Hagan, supra.
No such question is presented here. The legislation in the Oklahoma enabling act relating to the location of the capital of the state, if construed as forbidding a removal by the state after its admission as a state, is referable to no power granted to Congress over the subject, and if it is to be upheld at all, it must be implied from the power to admit new states. If power to impose such a restriction upon the general and undelegated power of a state be conceded as implied from the power to admit a new state, where is the line to be drawn against restrictions imposed upon new states. The insistence finds no support in the decisions of this court. In Withers v. Buckley, 20 How. 84, 92, 15 L. ed. 816, 819, where it was contended that certain legislation of the state of Mississippi, interfering with the free navigation of one of the navigable streams of the state, con- [221 U.S. 559, 575] flicted with one of the stipulations in the act under which the state had been admitted to the Union, Congress not having otherwise legislated upon the subject, it was said:
In Escanaba & L. M. Transp. Co. v. Chicago, cited above, it was contended that the control of the state of Illinois over its internal waters had been restricted by the ordinance of 1787, and by the reference to that ordinance in the act of Congress admitting the state. [3 Stat. at L. 428, chap. 67.] Concerning this insistence, this court, speaking by Mr. Justice Field, said:
In Ward v. Race Horse, 163 U.S. 504 , 41 L. ed. 244, 16 Sup. Ct. Rep. 1076, the necessary equality of the new state with the original states is asserted and maintained against the claim that the police power of the state of Wyoming over its wild game had been restricted by an Indian treaty made prior to the admission of the state of Wyoming.
In Bolln v. Nebraska, 176 U.S. 83, 87 , 44 S. L. ed. 382, 383, 20 Sup. Ct. Rep. 287, it appeared that the act under which Nebraska had been admitted [14 Stat. at L. 391, chap. 36] had, among other things, required the convention organized to form a Constitution for the proposed state to adopt for the people of that state the Constitution of the United States. This was done. It was claimed as a result that the power of the state to authorize the prosecution of a felony by information had been restricted, because the United States could, under one of the amendments to the Constitution, prosecute only by indictment. In respect to this claim the court said:
We are unable to find in any of the decisions of this court cited by counsel for the plaintiff in error anything which contravenes the view we have expressed. Green v. Biddle, 8 Wheat. 1, 5 L. ed. 547, involved the question as to whether a compact between two states, assented to by Congress, by which private land titles in Kentucky, derived from Virginia before the separation of Kentucky from Virginia, 'should remain valid and secure under the laws of the proposed state of Kentucky, and should be determined by the laws now existing in this (Virginia) state.' By subsequent legislation of the state of Kentucky these titles were adversely affected. This court held that this legislation impaired the obligation of a valid contract within that clause of the Constitution forbidding such impairment. Neither does Virginia v. West Virginia, 11 Wall. 39, 20 L. ed. 67, have any bearing here. The question there was one of a compact between the two states, assented to by Congress, concerning the boundary between them. Both the cases last referred to concerned compacts between states, authorized by the Constitution when assented to by Congress. They were therefore compacts and agreements [221 U.S. 559, 578] sanctioned by the Constitution, while the one here sought to be enforced is one having no sanction in that instrument.
Beecher v. Wetherby, 95 U.S. 517 , 24 L. ed. 440, involved the validity of the grant of every sixteenth section in each township for school purposes. The grant was made by the act providing for the organization of a state government for the territory of Wisconsin, and purported to be upon condition that the proposed state should never interfere with the primary disposal of the public lands of the United States, nor subject them to taxation. The grant was held to operate as a grant taking effect so soon as the necessary surveys were made. The conditions assented to by the state were obviously such as obtained no force from the assent of the state, since they might have been exacted as an exertion of the proper power of Congress to make rules and regulations as to the disposition of the public lands. Minnesota v. Batchelder, 1 Wall. 109, 17 L. ed. 551, is another case which involved nothing more than an exertion by Congress of its power to regulate the disposition of the public lands.
The case of the Kansas Indians (Blue Jacket v. Johnson County) 5 Wall. 737, 18 L. ed. 667, involved the power of the state of Kansas to tax lands held by the individual Indians in that state under patents from the United States. The act providing for the admission of Kansas into the Union provided that nothing contained in the Constitution of the state should be construed to 'impair the rights of person or property now pertaining to the Indians in said territory, so long as such rights shall remain unextinguished by treaty between the United States and such Indians.' [12 Stat. at L. 127, chap. 20.] It was held that so long as the tribal organization of such Indians was recognized as still existing, such lands were not subject to taxation by the state. The result might be well upheld either as an exertion of the power of Congress over Indian tribes, with whom the United States had treaty relations, or as a contract by which the state had agreed to forego taxation of Indian lands,-a contract quite [221 U.S. 559, 579] within the power of a state to make, whether made with the United States for the benefit of its Indian wards, or with a private corporation for the supposed advantages resulting. Certainly the case has no bearing upon a compact by which the general legislative power of the state is to be impaired with reference to a matter pertaining purely to the internal policy of the state. See Stearns v. Minnesota, 179 U.S. 223 , 45 L. ed. 162, 21 Sup. Ct. Rep. 73.
No good can result from a consideration of the other cases cited by plaintiff in error. None of them bear any more closely upon the question here involved than those referred to. It anything was needed to complete the argument against the assertion that Oklahoma has not been admitted to the Union upon an equality of power, dignity, and sovereignty with Massachusetts or Virginia, it is afforded by the express provision of the act of admission, by which it is declared that when the people of the proposed new state have complied with the terms of the act, that it shall be the duty of the President to issue his proclamation, and that '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.' The proclamation has been issued and the Senators and Representatives from the state admitted to their seats in the Congress.
Has Oklahoma been admitted upon an equal footing with the original states? If she has, she, by virtue of her jurisdictional sovereignty as such a state, may determine for her own people the proper location of the local seat of government. She is not equal in power to them if she cannot.
In Texas v. White, 7 Wall. 700, 725, 19 L. ed. 227, 237, Chief Justice Chase said in strong and memorable language that 'the Constitution, in all of its provisions, looks to an indestructible Union, composed of indestructible states.'
In Lane County v. Oregon, 7 Wall. 76, 19 L. ed. 104, he said: [221 U.S. 559, 580] 'The people of the United States constitute one nation, under one government; and this government, within the scope of the powers with which it is invested, is supreme. On the other hand, the people of each state compose state, having its own government, and endowed with all the functions essential to separate and independent existence. The states disunited might continue to exist. Without the states in union there could be no such political body as the United States.'
To this we may add that the constitutional equality of the states is essential to the harmonious operation of the scheme upon which the Republic was organized. When that equality disappears we may remain a free people, but the Union will not be the Union of the Constitution.
Mr. Justice McKenna and Mr. Justice Holmes dissent.