The power to locate its own seat of government, to change the
same, and to appropriate its public money therefor, are essentially
state powers beyond the control of Congress.
The power given to Congress by Art. IV, § 3, of the Constitution
is to admit new States to this Union, and relates only to such
States as are equal to each other in power and dignity and
competency to exert the residuum of sovereignty not delegated to
the Federal Government.
The constitutional duty of Congress of guaranteeing to each
State a republican form of government does not import a power to
impose upon a new State, as a condition to its admission to the
Union, restrictions which render it unequal to the other States,
such as limitations upon its power to locate or change its seat of
government.
No prior decision of this court sanctions the claim that
Congress, in admitting a new State, can impose conditions in the
enabling act, the acceptance whereof will deprive the State when
admitted of any attribute of power essential to its equality with
the other States.
Congress may embrace in an enabling act conditions relating to
matters wholly within its sphere of powers, such as regulations of
interstate commerce, intercourse with Indian tribes, and
disposition of public lands, but not conditions relating wholly to
matters under state control such as the location and change of the
seat of government of the State.
The Constitution not only looks to an indestructible union of
indestructible States,
Texas v.
White, 7 Wall. 700,
74 U. S. 725,
but to a union of equal States as well.
The legislature of Oklahoma has power to locate its own seat of
government, to change the same, and to appropriate money therefor,
notwithstanding any provisions to the contrary in the Enabling Act
of June 16, 1906, 34 Stat. 267, c. 3335, and the ordinance
irrevocable of the convention of the people of Oklahoma accepting
the same.
113 Pac.Rep. 944, affirmed.
Page 221 U. S. 560
The facts, which involve the constitutionality of a legislative
act of Oklahoma, providing for the removal of the capital of the
State from Guthrie to Oklahoma City, are stated in the opinion.
Page 221 U. S. 562
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. (Act of Oklahoma, December 29, 1910)
not yet published.
Page 221 U. S. 563
The opinion of the Supreme Court of Oklahoma may be found in 113
Pac.Rep. 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 plaintiffs in
error, who claimed not only to be citizens and taxpayers of the
State, but also owners 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 petitioners. 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 petitioners, and decided
against them, 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.
267, c. 3335. The act referred to is entitled "An act to enable the
people of Oklahoma and the Indian Territory to form a constitution
and state
Page 221 U. S. 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 second 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 twenty-second and last
section applicable to Oklahoma reads thus: "That the constitutional
convention provided for herein shall, by ordinance irrevocable,
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:
"SEC. 497. Enabling Act accepted by Ordinance Irrevocable. Be it
ordained by the Constitutional Convention for the proposed State of
Oklahoma, that said Constitutional Convention do, by this ordinance
irrevocable, accept the terms and conditions of an Act of Congress
of the United States, entitled 'An Act to Enable the People
Page 221 U. S. 565
of Oklahoma and the Indian Territory to form a Constitution and
State Government and be admitted into the Union on an equal footing
with the original States, and to Enable the People of New Mexico
and Arizona to form a Constitution and State Government and be
admitted into the Union on an equal footing with the original
States,' approved June the sixteenth, Anno Domini, Nineteen Hundred
and Six."
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 constitutional
Page 221 U. S. 566
duty of guaranteeing to "every State in this Union a republican
form of government." The position of counsel for the appellants 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 third section of the fourth 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.
Page 221 U. S. 567
189, 191. Emphatic and significant as is the phrase admitted as
"an entire member," even stronger was the declaration upon the
admission in 1796 of Tennessee, 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."
"This Union" was and is a union of States, equal in power,
dignity and authority, each competent to exert that residuum of
sovereignty not delegated to the United States by the Constitution
itself. To maintain otherwise would be to say that the Union,
through the power of Congress to admit new States, might come to be
a union of States unequal in power, as including States whose
powers were restricted only by the Constitution, with others whose
powers had been further restricted by an act of Congress accepted
as a condition of admission. Thus, it would result, first, that the
powers of Congress would not be defined by the Constitution alone,
but in respect to new States, enlarged or restricted by the
conditions imposed upon new States by its own legislation admitting
them into the Union; and, second, that such new States might not
exercise all of the powers which had not been delegated by the
Constitution, but only such as had not been further bargained away
as conditions of admission.
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
deprives 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
Page 221 U. S. 568
such form is not changed to one anti-republican --
Minor v.
Happersett, 21 Wall. 162,
88 U. S. 174,
88 U. S. 175 --
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 States 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 laws 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. First
Municipality, 3 How. 589,
44 U. S. 609,
is in point. By the act of February 20, 1811, the people of the
Territory of Orleans were empowered to form a constitution and
state government. The third
Page 221 U. S. 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 the conditions and terms contained in said third
section should be considered, deemed and taken as fundamental
conditions and terms upon which the said State is incorporated into
the Union."
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:
"All Congress intended was to declare in advance to the people
of the territory the fundamental principles their constitution
should contain; this was every way proper under the circumstances;
the instrument having been duly formed and presented, it was for
the national legislature to judge whether it contained the proper
principles, and to accept it if it did or reject it if it did not.
Having accepted the constitution and admitted the state 'on an
equal footing with the original States in all respects whatever,'
in express terms, by the act of 1812, Congress was concluded from
assuming that the instructions contained in the act of 1811 had not
been complied with. No fundamental principles could be added by way
of amendment, as this would have been making part of the state
constitution; if Congress could make it in part, it might, in the
form of amendment, make it entire. The conditions and terms
referred to in the act of 1812 could only relate to the
stipulations contained in the second proviso of the act of 1811,
involving rights of property and navigation, and, in our opinion,
were not otherwise intended. "
Page 221 U. S. 570
The reference by Justice Catron to the terms and conditions in
act of 1812 is to a provision in the act of February 20, 1811 (2
Stat. 641, 642), quite common in enabling acts, by which the new
State disclaimed title to the public lands and stipulated that such
lands should remain subject to the sole disposition of the United
States, and for their exemption from taxation, and that its
navigable waters should forever remain open and free, etc. Such
stipulations, as we shall see, being within the sphere of
congressional power, can derive no force from the consent of the
State. Like stipulations, as well as others in respect to the
control by the United States of large Indian reservations and
Indian population of the new State, are found in the Oklahoma
enabling act. Whatever force such provisions have after the
admission of the State may be attributed to the power of Congress
over the subjects, derived from other provisions of the
Constitution, rather than from any consent by or compact with the
State.
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's Lessee v.
Hagan, 3 How. 212, 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,
there was a stipulation that the people of Alabama forever
disclaimed all right or title to the waste or unappropriated lands
lying
Page 221 U. S. 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, that, prior to the adoption
of the Constitution, the people of each of the original States
"held the absolute right to all of their navigable waters and
the soil under them for their 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
State
"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:
"Full power is given to Congress 'to make all needful rules and
regulations respecting the territory or other property of the
United States.' This authorized the passage of all laws necessary
to secure the rights of the United States to the public lands, and
to provide for their sale, and to protect them from taxation. "
Page 221 U. S. 572
"And all constitutional laws are binding on the people, in the
new states and the old ones, whether they consent to be bound by
them or not. Every constitutional act of Congress is passed by the
will of the people of the United States, expressed through their
representatives, on the subject matter of the enactment, and, when
so passed, it becomes the supreme law of the land, and operates by
its own force on the subject matter, in whatever State or Territory
it may happen to be. The proposition, therefore, that such a law
cannot operate upon the subject matter of its enactment without the
express consent of the people of the new State, where it may happen
to be, contains its own refutation, and requires no farther
examination. The propositions submitted to the people of the
Alabama Territory, for their acceptance or rejection, by the act of
Congress authorizing them to form a constitution and state
government for themselves, so far as they related to the public
lands within that Territory, amounted to nothing more nor less than
rules and regulations respecting the sales and disposition of
public lands. The supposed compact relied on by the counsel for the
plaintiffs, conferred no authority, therefore, on Congress to pass
the act granting to the plaintiffs the land in controversy."
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:
"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 it to the United States. To maintain any other doctrine
is to deny that Alabama has
Page 221 U. S. 573
been admitted into the union on an equal footing with the
original States, the constitution, laws, and compact to the
contrary notwithstanding."
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.
First Municipality, 3 How. 589, from which we have
heretofore used an excerpt, and in
Strader v.
Graham, 10 How. 82;
Withers v.
Buckley et al., 20 How. 84,
61 U. S. 93;
Escanaba Co. v. Chicago, 107 U. S. 678,
107 U. S. 688;
Van Brocklin v. Tennessee, 117 U.
S. 151,
117 U. S. 160;
Huse v. Glover, 119 U. S. 543;
Sands v. River Co., 123 U. S. 288,
123 U. S. 296;
Ward v. Race Horse, 163 U. S. 504;
Bollin v. Nebraska, 176 U. S. 83,
176 U. S.
87.
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
Willson v. Black Bird Creek
Marsh Co., 2 Pet. 245;
Gilman v.
Philadelphia, 3 Wall. 713;
Escanaba Co. v.
Chicago, 107 U. S. 678,6
107 U. S.
83.
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
Page 221 U. S. 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.
Williamette Bridge Co. v.
Hatch, 125 U. S. 1,
125 U. S. 9.
Pollard's Lessee 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,
61 U. S. 92,
61 U. S. 93,
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, conflicted
Page 221 U. S. 575
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 considering this act of Congress of March 1st, 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, nor 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 of
Pollard's Lessee v. Hagan, 3 How. p.
44 U. S.
223."
In
Escanaba 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. Concerning this insistence, this court, speaking by Mr.
Justice Field, said:
"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 of 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. The language of the
resolution admitting her is 'on an equal footing with the original
States in all respects whatever.' 3 Stat. 536. Equality of
constitutional right and power is the condition of all the States
of the Union, old and new.
Page 221 U. S. 576
Illinois, therefore, as was well observed by counsel, could
afterwards exercise the same power over rivers within her limits
that Delaware exercised over Black Bird Creek, and Pennsylvania
over the Schuylkill River.
Pollard's Lessee v. Hagan, 3
How. 212;
Permoli v. First Municipality, id., 44 U. S.
589;
Strader v. Graham, 10
id.
51
U. S. 82."
In
Ward v. Race Horse, supra, 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
Bollin v. Nebraska, 176 U. S.
83,
176 U. S. 89, it
appeared that the act under which Nebraska had been admitted 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:
"But conceding all that can be claimed in this connection, and
that the State of Nebraska did enter the Union under the condition
of the Enabling Act, and that it adopted the Constitution of the
United States as its fundamental law, all that was meant by these
words was that the State acknowledged, as every other State has
done, the supremacy of the Federal Constitution. The first section
of the act of 1867, admitting the State into the Union, declared:
'that it is hereby admitted into the Union upon an equal footing
with the original States in all respects whatsoever.' It is
impossible to suppose that, by such indefinite language as was used
in the Enabling Act, Congress intended to differentiate Nebraska
from her sister
Page 221 U. S. 577
States, even if it had the power to do so, and attempt to impose
more onerous conditions upon her than upon them, or that, in cases
arising in Nebraska, a different construction should be given to
her constitution from that given to the constitutions of other
States. 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, it stands 'upon an equal footing with the original States
in all respects whatsoever.'"
We are unable to find in any of the decisions of this court
cited by counsel for the appellants anything which contravenes the
view we have expressed.
Green v. Biddle,
8 Wheat. 1, 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, have any bearing here. The
question there was one of 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
Page 221 U. S. 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,
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.
Bachelder, 1 Wall. 109, 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, 5 Wall. 737, 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 persons or property pertaining to the
Indians of said territory so long as such rights shall remain
unextinguished by treaty with such Indians."
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
Page 221 U. S. 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.
No good can result from a consideration of the other cases cited
by plaintiffs in error. None of them bears any more closely upon
the question here involved than those referred to. If 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,
74 U. S. 725,
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, he said:
Page 221 U. S. 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 a 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.
Judgment affirmed.
MR. JUSTICE McKENNA and MR. JUSTICE HOLMES dissent.