Argument for Plaintiff in Error.

221 U. S.

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.

Mr. Frank Dale, Mr. C. G. Hornor and Mr. John H. Burford, with whom Mr. A. G. C. Bierer, Mr. Frank B. Burford and Mr. Benj. F. Hegler were on the brief, for plaintiff in error:

The people of Oklahoma, under the enabling act, secured a republican form of government. State v. Harris (S. C.), 2 Bailey, 598. There is considerable diversity between the enabling acts of the States. As to Arkansas, there are provisions which are not in any respect similar to those of Oklahoma. So also as to Alabama, Louisiana, Missouri and other States.

In California, the people prepared and presented a constitution and Congress admitted the State upon such constitution, with express provisions limiting the powers of the people under their constitution; so as to Mississippi and Michigan. In the Utah enabling act there is a provision against plural marriage which does not appear in many of the enabling acts. See special provisions also in the Nebraska act. Brittle v. The People, 2 Nebraska, 198; and see collection of enabling acts in Thorpe's American Charters and Constitutions, vols. 1 to 7 inclusive.

As to what is meant by the term "equality," see Spooner v. McConnell, 1 McClain, 337, holding that 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 in rank-equal in their powers of sovereignty. They only differ, under such conditions in those restrictions, which, in the exercise of their own

221 U.S.

Argument for Plaintiff in Error.

powers, they may have voluntarily imposed upon themselves. See also Hogg v. Zanesville Canal Co., 5 Ohio, 416.

At the time Congress passed the law Oklahoma was a Territory and Congress had the unquestioned right to deal with the matter involved. Church v. United States, 136 U. S. 1; Thompson v. Utah, 170 U. S. 343.

Congress has not repealed the law. It is not claimed that a repeal was intended; so, if repealed, it must be by implication, and repeals by implication are not favored.

For other cases, involving compacts between States and the United States, and which sustain appellant's contention, see Bennett v. Boggs, Fed. Cas. No. 1,319; Vaughan v. Williams, 3 McClain, 530, Fed. Cas. No. 16,903; Minnesota v. Bachelder, 1 Wall. 109, 114; Virginia v. West Virginia, 11 Wall. 39; White v. Hart, 13 Wall. 646; Marsh v. Burroughs, 1 Woods, 463; Romine v. State of Washington, 34 Pac. Rep. 924; Brittle v. The People, 2 Nebraska, 198, Green v. Biddle, 8 Wheat. 1; Hawkins v. Barney's Lessee, 5 Pet. 456; Albee v. May, Fed. Cas. No. 134; Hancock v. Walsh, 3 Woods, 351; Gray v. Davis, 1 Woods, 430; United States v. Partello, 48 Fed. Rep. 670; The Kansas Indians, 5 Wall. 737; Beecher v. Wetherby, 95 U. S. 517, 522; People v. Roberts, 18 How. 173; Boyd v. Thayer, 143 U. S. 135.

The cases cited and quoted by the court in the majority opinion below do not sustain the decision.

In the formation of the Federal Union, each of the original colonies, upon entering the Union, surrendered some of its sovereign powers, and deprived itself of the power to exercise others.

Each State which has come into the Union since the formation of the Government of the United States has, either at the request or upon requirement of Congress, temporarily or permanently deprived itself of the power to exercise some of the attributes of sovereignty. And by so doing the State has not been admitted upon an unequal VOL. CCXXI-36

footing with other States. Equality among the States, or as termed by the courts, an equal footing with the original States, means the possession of sovereignty, the power to exercise the functions of a republican form of government, not necessarily in the same manner or to the same extent. Ableman v. Booth, 21 How. 506; Vattel's Law of Nations, 3, 193, 196, 229; Baker's Int. Law, 24, 27, 43, 94.

The compact of the enabling act was entered into by the high contracting parties for good and sufficient reasons of state, which is all the consideration that is needed to support a public treaty, compact or convention. Of course in the present case there was a "consideration" in the ordinary sense. Wheaton, Int. Law, 377; Maxey's Int. Law, 26, 27; 1 Moore's Dig. Int. Law, 19; Grotius, B. 1, c. 3, §§ 16, 18; Matheny v. Golden, 5 Oh. St. 368.

Many of the Territories have yielded portions of sovereignty in order to become States (the brief refers to numerous instances).

The contemporary and departmental interpretation and stare decisis sustain plaintiff in error.

Mr. Charles West, Attorney General of Oklahoma, Mr. B. F. Burwell and Mr. J. W. Bailey, with whom Mr. C. B. Stuart and Mr. W. A. Ledbetter were on the brief, for defendant 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. (Act of Oklahoma, December 29, 1910) not yet published.

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

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