STATEMENT OF THE CASE.
On April 5, 1899, the board of county commissioners of Grant county called a special election to be held on May 16, 1899, for the purpose of submitting to the voters of said county the question of changing or relocating the county seat now located at Pond Creek, in said county, under the provisions of ch. 23, of the Statutes of 1893.
It appears that on April 26, 1899, a petition was filed in the office of the county clerk of Grant county, purporting to be signed by fifty-three resident and legal voters of said county, designating the northwest quarter of section 30, township 27 north of range 5, west, in said county, and naming such location "Centerville," as one of the places to be voted for at such special election, for the location of the county seat of said county of Grant,
and requesting that "Centerville" be placed on the certified ballots as a place to be voted for at such special county seat election. The board of election commissioners refused to place or print "Centerville" on the official ballots as a place to be voted for at such special election upon two grounds: (1) That the petition designating the northwest quarter of said section 30, and naming such location "Centerville" and requesting that the same be placed upon the ballots as one of the places to be voted for, fails to state or show that "Centerville" is legally qualified to be voted for at such special election for the county seat, and (2) that there is no such city, town, or village in said county of Grant as "Centerville."
It further appears that prior to the filing and docketing of this case in this court, that an application for a writ ofmandamus was on May 9, 1899, presented at chambers to the chief justice, and an alternative writ was denied. It further appears that on the following day, May 10, 1899, this proceeding was filed and docketed in this court, and at the same time a motion was filed, asking that this court review the application denying the writ of mandamus by the chief justice.
Opinion of the court by
The first question that arises in this case is whether the action of the chief justice in denying an alternative writ ofmandamus presented to him at chambers can be reviewed in this court on motion of the relators.
Section 9 of the Organic Act confers jurisdiction upon the supreme and district courts of this Territory and the respective judges thereof, to grant writs of mandamus in all cases authorized by law. There is no provision in our
statute that authorizes an appeal from the action of the chief justice at chambers to the supreme court. Neither is there any statutory provision which authorizes the right or power of this court to review the action of the chief justice or one of the associate justices of the supreme court at chambers, in refusing to grant a writ of mandamus. In the absence of such statutory provision, we are of the opinion that no such power exists. But, since an order refusing to grant an alternative writ of mandamus by either the chief justice or one of the associate justices is not a bar to a subsequent application to be made to the supreme court, the court will treat and consider the motion and application of the relators in the nature of an original proceeding.
The first contention argued by the respondents is that "Centerville" was ineligible as a county seat candidate under the provisions of the statute relating to the locating and removing of county seats, and that therefore the board of election commissioners properly refused to place or print said place on the official ballots. It is contended that the place upon which "Centerville" was designated is owned wholly by one individual, and that it was wholly unoccupied; that it had no buildings whatever, of any kind or description on it, not even a dwelling house; that no town had been laid out, or platted on the land, and no rights acquired by any person to occupy said land for a town. And that these facts were well known by the board of election commissioners at the time that they refused to designate said place upon the official ballots.
Section 6, chapter 23, of the Statutes of 1893, relating to this subject, among other things, provides that:
"At the election, there shall be written or printed on the ballots to be voted for in that county, the words 'for county seat,' naming the town desired to be voted for."
Thus the law expressly provides that the ballots to be used shall name the "town" and not the "place" to be voted for as county seat. The elector must give the name of the town for which he desires to vote. He must vote for a "town" and not for a "place," unless that place be a town.
It is true, that in Conley v. Lawrence, 14 Kan. 381, the supreme court of Kansas has decided that in the selection of the county seat, the electors are not limited to existing cities and towns, but may choose a site for the new town, and locate the county seat thereon. But, the Kansas statutes under which that decision was rendered and the statutes of this Territory on the same subject are entirely different. The Kansas statute does not provide that the relocation or change of the county seat shall be to a city or a town, but to a place. In Conley v. Fleming, supra, the court said:
"If the majority of the electors of the county are unwilling to select any of the existing towns for a county seat, or prefer to choose a new place, and start a new town therefor, we know nothing to prevent them from doing so. Each elector has to give the 'name of the place' for which he votes. This place may be an incorporated city, village, or an unoccupied quarter section."
And hence as it appeared from the petition filed in the office of the county clerk that "Centerville" was designated merely as a place, and not a town to be voted for as the location of the county seat of said county, we are clearly of the opinion that the board of election commissioners rightfully refused to recognize said petition, or to
give said location so designated a place on the official ballots.
But a more serious and graver question confronts us in the determination of this case, as argued and presented by the briefs of counsel for the relators and respondents.
The main question presented for our consideration upon the merits of this cause is: Can the location of the county seat of Grant county be changed under the provisions of chapter 23 of the Statutes of 1893, of this Territory? This is a very important question. Not only on account of the property interests which are involved by the various cities and towns directly concerned, but it also presents to some degree a subject that affects the right of local self government, a right that is peculiarly sacred to every American citizen. The determination of this question involves the construction of the Organic Act, the laws of congress, and the statutes of this Territory, upon the subject of the location and changing of county seats.
Two important questions arise in the consideration of this case: (1) Is the removal of county seats located within the boundaries of what was formerly known as the Cherokee Outlet, a rightful subject of legislation? (2) Is it inconsistent with any law of the United States upon that subject?
It is manifest that if ch. 23, of the Statutes of 1893, is not a rightful subject of legislation, or is inconsistent with the laws of the United States, then the power to change or remove the county seat in Grant county under and by virtue of said act of the territorial legislature is absolutely void. The grant of legislative power of this Territory is vested in sec. 6 of the Organic Act which among other things, provides:
"That the legislative power of the Territory shall extend to all rightful subjects of legislation not inconsistent with the constitution and laws of the United States."
That congress has plenary power over the people of the territories and all departments of territorial government, is no longer a question open to discussion. This power of congress arises as a necessary consequence from the right to acquire and hold additional domain, and may be exercised either by the creation of a separate government with delegated authority to legislate for the people of the Territory, or by the enactment of laws directly by congress without the intervention of such local government. In other words, the territories are not organized under the federal constitution, and derive no part of their legislative or judicial functions from that instrument, but they are solely and exclusively the creatures of congress. Congress, subject to the limitations expressly or by implication imposed by the constitution, has full and complete authority over a territory, and may directly legislate for the government thereof. It has the undoubted power to declare a valid law of the territorial legislature void, and a void law valid, regardless of the fact that no such power is expressly or impliedly reserved in the Organic Act. (Murphy v. Ramsey,114 U.S. 15; First National Bank v. County of Yankton,101 U.S. 129; Scott v. Sanford, 19 Howard [U.S.] 393; Clinton v.Englebrecht, 13 Wall. [U.S.] 434; Hornbuckle v. Toombs, 18 Wall. [U.S.] 648.)
Hence, whenever congress legislates upon any subject directly in relation to the government of the people of the Territory, then it ceases to be a rightful subject of territorial legislation, and any law that the legislature of the territory has enacted or enacts upon the same subject which congress has assumed to legislate upon, is inconsistent
with such laws of the United States, and is, therefore, void. The location or changing of county seats is a legislative function. That it is a rightful subject of territorial legislation within the provisions of the Organic Act is indisputable, in the absence of any federal law upon the subject.
It is also true that the general history of the various territorial governments, shows that the location or changing of county seats has not been the policy of congress until recent years, and has been uniformly held by the courts as a rightful subject of territorial legislation. But notwithstanding the fact that this has been the uniform policy of congress, and that such legislation has been upheld by the highest courts of the land, no valid reason can be suggested why congress in its wisdom should not change that policy. This change of policy manifestly appears upon a careful examination of the congressional legislation upon this subject during the past thirteen years.
On July 30, 1886, congress enacted a law that the legislatures of the territories of the United States now or hereafter to be organized, shall not pass local or special laws relating to the locating or changing of county seats. (24 United States Statutes at Large, 170.)
On July 19, 1888, congress enacted the following law:
"That the act of the legislative assembly of the Territory of New Mexico, passed February twenty-fourth, eighteen hundred and eighty-seven, entitled, 'An Act Creating the County of San Juan,' be, and the same is hereby ratified and confirmed."
Section 2 of said act reads as follows:
"That nothing in the act approved July 30th, eighteen hundred and eighty-six, entitled an act 'To Prohibit the Passage of Local or Special Laws in the Territories of the
United States, to Limit Territorial Indebtedness and for Other Purposes,' shall be construed to prohibit the creation by territorial legislature of new counties and the location of the county seats thereof." (25 United States Statutes at Large, page 336.)
On May 2, 1890, congress in sec. 4 of the Organic Act of this Territory, among other things provided:
"That for the purpose of facilitating the organization of a temporary government in the Territory of Oklahoma, seven counties are hereby established therein to be known until after the first election in the Territory, as the First county, the Second county, the Third county, the Fourth county, the Fifth county, and the Sixth county, the boundaries of which shall be fixed by the governor of the Territory until otherwise provided by the legislative assembly thereof. The county seat of the First county shall be at Guthrie. The county seat of the Second county shall be at Oklahoma City. The county seat of the Third county shall be at Norman. The county seat of the Fourth county shall be at El Reno. The county seat of the Fifth county shall be at Kingfisher City. The county seat of the Sixth county shall be at Stillwater. The Seventh county shall embrace all that portion of the Territory lying west of the one hundredth meridian, known as the Public Land Strip, county seat of which shall be at Beaver: Provided, That the county seats located by this act may be changed in such manner as the territorial legislature may provide." (26 United States Statutes at Large, 83.)
On March 3, 1891, congress under section 17 of the act opening the Cheyenne and Arapahoe country to settlement, declared:
"That before any lands in Oklahoma are open to settlement it shall be the duty of the secretary of the interior to divide the same into counties which shall contain as near as possible not less than nine hundred square miles in each county. In establishing said county line, the secretary is hereby authorized to extend the lines of the counties
already located so as to make the area of said counties equal as near as may be, to the area of the counties provided for in this act. At the first election for county officers the people of each county may vote for a name for each county, and the name which receives the greatest number of votes shall be the name of the county: Provided, further, That as soon as the county lines are designated by the secretary, he shall reserve not to exceed one-half section of land in each county to be located near the center of said county, for county seat purposes, to be entered under sections twenty-three hundred and eighty-seven and twenty-three hundred and eighty-eight of the Revised Statutes." (26 United States Statutes at Large, 1206.)
On March 3, 1893, congress in opening the Cherokee Outlet to settlement, in sec. 10, of said act, among other things, provided that:
"The president of the United States is hereby authorized, at any time within six months after the approval of this act and the acceptance of the same by the Cherokee Nation as herein provided, by proclamation, to open to settlement any or all of the lands not allotted or reserved, in the manner provided in section thirteen of the act of congress approved March 2, eighteen-hundred and eighty-nine, entitled, 'An Act Making Appropriations for the Current and Contingent Expenses of the Indian Department and for Fulfilling Treaty Stipulations with the Various Indian Tribes, for the Year Ending June Thirtieth, Eighteen Hundred and Ninety, and for Other Purposes.' (Twenty-fifth United States Statutes, page ten hundred and five); and also subject to the provisions of the act of congress approved May second, eighteen hundred and ninety, entitled, 'An Act to Provide a Temporary Government for the Territory of Oklahoma, to Enlarge the Jurisdiction of the United States Court in Indian Territory, and for Other Purposes'; also, subject to the second proviso of section seventeen, the whole of section eighteen of the act
of March third, eighteen hundred and ninety-one, entitled, 'An Act Making Appropriations for the Current Expenses of the Indian Department, and for Fulfilling Treaty Stipulations with Various Indian Tribes, for the Year Ending June Thirtieth, Eighteen Hundred and Ninety-Two, and for Other Purposes'; except as to so much of said acts and sections as may conflict with the provisions of this act." (27 United States Statutes at Large, page 642.)
Section fourteen of said act reads as follows:
"Before any of the aforesaid lands are open to settlement it shall be the duty of the secretary of the interior to divide the same into counties which shall contain as near as possible not less than five hundred square miles in each county. In establishing said county line the secretary is hereby authorized to extend the lines of the counties already located so as to make the area of said counties equal, as near as may be, to the area of the counties provided for in this act: Provided, That range one west and ranges one, two, three and four east in township 20, shall be attached to, and become a part of Payne county. At the first election for county officers the people of each county may vote for a name for each county, and the name which receives the greatest number of votes shall be the name of such county: Provided, further, That as soon as the county lines are designated by the secretary he shall reserve not to exceed one-half section of land in each county, to be located for county seat purposes, to be entered under sections twenty-three hundred and eighty-seven and twenty-three hundred and eighty-eight of the Revised Statutes. And all reservations for county seats shall be specified in any order or proclamation which the president shall make for the opening of the lands to settlement." (27 United States Statutes at Large, page 645.)
The president's proclamation opening the Cherokee Outlet to settlement on September 16, 1893, among other things proclaimed that:
"Whereas, the thirteenth section of the act approved March second, eighteen hundred and eighty-nine, the act approved May second, eighteen hundred and ninety, and the second proviso of section seventeen, and the whole of section eighteen of the act approved March third, eighteen hundred and ninety-one, are referred to in the tenth section of the act approved March third, eighteen hundred and ninety-three, and thereby made applicable in the disposal of the lands in the 'Cherokee Outlet' hereinbefore mentioned, the provisions of which acts, so far as they affect the opening to settlement and the disposal of said lands, are more particularly set forth hereinafter in connection with the rules and regulations prescribed by the secretary of the interior for the occupation and settlement of the lands hereby opened, according to said tenth section; and
"Whereas, the lands acquired by the three several agreements hereinbefore mentioned have been divided into counties by the secretary of the interior, as required by said last mentioned act of congress, before the same shall be opened to settlement, and lands have been reserved for county seat purposes to be entered under sections twenty-three hundred and eighty-seven, and twenty-three hundred and eighty-eight of the Revised Statutes of the United States as therein required as follows, to-wit: * * * For County L, the southwest quarter of section one, and the southeast quarter of section two, township twenty-five north of range six west of the Indian Meridian, excepting four acres reserved for the site of a court house to be designated by lot and block upon the official plat of survey of said reservation for county seat purposes hereafter to be issued by the commissioner of the general land office; said reservation to be additional to the reservations for parks, schools and other public purposes required to be made by section 22, of the act of May 2, 1890." (28 United States Statutes at Large, pages 1225 and 1226.)
The foregoing acts embrace all the legislation by congress upon this subject. It will thus be seen that the first
express declaration by congress upon the subject of county seats is to be found in the act of July 30, 1886, which prohibits the locating or changing of county seats by the territorial legislature by local or special acts. The next declaration upon this subject is the act of July 19, 1888. The next reference to the subject is in sec. 4, of the Organic Act of this Territory. By the terms of this act the county seats of the seven original counties in Oklahoma were located. Here for the first time congress has specifically and affirmatively located county seats in a territory.
In the absence of any declaration by congress that such location is merely temporary, it must be regarded and construed as a permanent location of the seat of county government, at least so long as the territorial form of government is maintained. That congress considered it so, is apparent from the language of the act itself, which contained a proviso expressly authorizing the territorial legislature to change the county seats so located. This proviso reads as follows:
"Provided, That the county seats located by this act may be changed in such manner as the territorial legislature may provide."
This proviso is clear and emphatic in its scope and operation. It clearly limits the removal or changing of county seats located by the terms and provisions of the Organic Act. But, even if by its terms it did not limit the removal of county seats to those named in the Organic Act, the settled rule of construction restricts the effect of a proviso to the clause immediately preceding it.
In Leader Printing Company v. The Territory, 6 Okla. 302, this court held that a proviso or exception in a statute
relates to the paragraph or distinct portion of the enactment which immediately precedes it, unless the contrary intention is clearly apparent from the statute.
Mr. Sutherland in his work on Statutory Construction, in sec. 223, lays down the rule as follows:
"The natural and appropriate office of the proviso being to restrain or qualify some preceding matter, it should be confined to what precedes it, unless it clearly appears to have been intended to apply to some other matters. It is to be construed in connection with the section of which it forms a part, and it is substantially an exception. If it be a proviso to a particular section, it does not apply to others, unless plainly intended. It should be construed with reference to the immediately preceding parts of the clause to which it is attached."
The act opening the Cheyenne and Arapahoe country to settlement by congress, expressly provided for the location of county seats and the establishment of county boundaries. It also authorized the secretary of the interior to extend the lines of the counties already located, so as to make the area of said counties equal, as near as may be, to the area of the counties provided in said act. It also provided that the county seats in each county should be located near the center of the county. It will be observed that this act opening the Cheyenne and Arapahoe country to settlement does not contain the provision that it is opened subject to the act of May 2, 1890, (that is, the Organic Act of this Territory,) and it cannot be contended that the proviso in section four of the Organic Act in reference to county seats is applicable to this act. Hence, the argument of counsel for respondents that the county seats in the seven original counties may be changed by the act of the legislature and that the same
act must therefore be applicable to the newly organized counties, has no force and effect.
And again, the act of congress opening the Cherokee Outlet to settlement in relation to the location of county seats and fixing the boundaries of the counties by congress was simply carrying out the policy adopted in opening the Cheyenne and Arapahoe country to settlement. This act expressly provides that the secretary of the interior shall divide the lands open to settlement into counties which shall contain as near as possible not less than five hundred square miles in each county and in establishing such county lines the secretary is also authorized to extend the line of counties already located so as to make the area of such county equal as near as may be to the area of the counties then to be opened to settlement; and that the county seats shall be designated by the secretary of the interior, and that he shall reserve not to exceed one-half section of land in each county to be located for county seat purposes, and that all reservations for county seats shall be specified in any order or proclamation which the president shall make for the opening of the lands to settlement.
In pursuance to this act of congress, the president of the United States in his proclamation in opening the Cherokee Outlet to settlement on September 16, 1893, designated certain lands for county seat purposes, to-wit: For County L (now Grant county,) the southwest quarter of section one, and the southeast quarter of section two, township twenty-five, north of range six west of the Indian Meridian, excepting four acres reserved for the site of a court house, to be designated by lot and block upon the official plat of said survey of said reservation for county seat purposes, hereafter to be issued by the commissioner
of the general land office; said reservation to be additional to the reservation for parks, schools and other public purposes, required to be made by sec. 22 of the act of May 2, 1890.
How could language more clearly express the intent and purpose of congress to definitely and permanently locate the county seats? But it is ably argued by counsel for the respondents that the location of county seats in the respective counties of the Cherokee Outlet, and the reservation of lands therefor by congress, was for the purpose of facilitating and providing merely a temporary seat of government for the inhabitants thereof, until such time as the territorial legislature in its wisdom may deem proper to change or relocate the same.
But upon examination of the various acts of congress upon this subject, it will be observed that in each instance where congress has intended that its acts should remain in force only for a limited period, or until action should be taken by the territorial legislature, it invariably has used language clearly and unmistakably indicating such intention. This is true not only of the Organic Act of this Territory, but of all legislation by congress in respect to territorial legislation. Thus, when congress adopted the Organic Act of this Territory, and put in force the laws of Nebraska, it expressly declared that they should remain in force until after the adjournment of the first session of the legislative assembly of said Territory. When congress by sec. 15, of the Organic Act located and established the seat of government for the Territory, it expressly provided the mode and manner in which it could be changed by the governor and the legislative assembly.
So, by sec. 7 of the Organic Act the governor was authorized in the first instance to appoint the various officers
of the Territory, and thereafter such power was to be vested in the legislature. So, by section 23 of the Organic Act, making reservations for certain public highways, provision was made that such highways may be vacated by "any competent authority," thus permitting the legislature to make provision for the manner of vacating such highways.
These various provisions then clearly establish the fact that when congress enacts any law which it intends to be of a temporary character, it expressly so states in the act itself. And when it does not use such language in the act itself, it is manifestly the intent and purpose of congress that such a measure shall remain in force until it is modified or repealed by that body.
But again, it is earnestly contended by counsel for respondents, that the act of congress opening the Cherokee Outlet to settlement expressly provided that it should be opened subject to the Organic Act, and being opened subject to the Organic Act it necessarily put in force proviso 1, of sec. 4 of said act.
It is true that the act of congress in declaring the Cherokee Outlet open to settlement did use the term "subject to the act of May 2, 1890." (that is, the Organic Act of Oklahoma). But a careful examination of the act and the president's proclamation issued in pursuance thereof, clearly discloses the fact that the words were used in relation to the disposal of public lands, and had no reference whatever to the subject of county seats now under consideration. This construction is clearly apparent when it is remembered that sec. 1 of the Organic Act provides that:
"Whenever the interest of the Cherokee Indians in the land known as the Cherokee Outlet shall have been extinguished and the president shall make proclamation thereof, said Outlet shall thereupon and without further legislation become a part of the Territory of Oklahoma."
Hence, when the Cherokee Outlet was opened to settlement by the proclamation of the president it eo instanti became a part of the Territory of Oklahoma, and subject to all the provisions of the Organic Act, except so far as it was in conflict with this act. And when congress in sec. 10 of said act, used the words, that the Cherokee Outlet shall be opened, among other things, "subject to the Organic Act," it undoubtedly had reference to the mode and manner of disposing of public lands. And, moreover, section 10 of said act, contains the following exceptions: "Except as to so much of said acts and sections as may conflict with the provisions of this act."
This exception could have only been intended for one purpose, and that is, that the Cherokee Outlet was opened to settlement subject to the provisions of the Organic Act, except so far as it conflicted in any wise with the provisions of this act. The contention, therefore, that proviso 1 of sec. 4 of the Organic Act is applicable, is clearly untenable.
These various acts of congress fixing the boundaries of the counties and locating the county seats therein, are in clear and unmistakable terms. There is nothing in these acts that indicates that it was the intent and purpose of congress to make them temporary, or that they could be changed by any act of the territorial legislature. Then by what right or power can these county seats be changed or removed from their present location? Can they be changed or removed by virtue of an act of the territorial
legislature? Can the laws of the territorial legislature supersede or nullify the acts of congress? These questions must be emphatically answered in the negative. The rule is well settled by an unbroken current of decisions of the supreme court of the United States, that where the subject of legislation is within both the legislative power of the United States and of a state or territory, the exercise of such power by congress precludes the authority of the legislature to exercise such power. As early as 1824, in construing the federal constitution, the question arose whether the power of congress to regulate foreign and interstate commerce is exclusive, or whether the states have concurrent authority to any extent over the same subject.
In Gibbon v. Ogden, 9 Wheaton, 1, Chief Justice Marshall, in discussing this subject said:
"The sole question is, can a state regulate commerce with foreign nations and among the states, while congress is regulating it?
* * * It has been contended that, if a law passed by a state, in the exercise of its acknowledged sovereignty, comes into conflict with a law passed by congress in the pursuance of the constitution, they affect the subject, and each other like equal opposing powers. But the framers of our constitution foresaw this state of things, and provided for it by declaring the supremacy not only of itself, but of the laws made in pursuance to it. The nullity of any act inconsistent with the constitution is produced by the declaration that the constitution is the supreme law. The appropriate application of that part of the clause which confers the same supremacy on laws and treaties is to such acts of the state legislatures as do not transcend their powers, but, though enacted in the execution of acknowledged state powers, interfere with, or are contrary to the laws. In every case, the act of congress or the
treaty is supreme, and the law of the state, though enacted in the exercise of powers not controverted, must yield to it."
In Wilson v. Blackbird Creek, Marsh County, 2 Peters, 245, Chief Justice Marshall speaking upon this subject used the following language:
"If congress had passed any act which bore upon the case; any act in execution of the power to regulate commerce, the object of which was to control state legislation over those small navigable creeks into which the tide flows, and which abound throughout the lower country of the middle and southern states; we should feel not much difficulty in saying that a state law coming in conflict with such act would be void."
In Cooley v. Wardens of Philadelphia, 12 Howard 299, the supreme court of the United States declared that:
"The grant of commercial power to congress does not contain any terms which expressly exclude the states from exercising an authority over its subject matter. If they are excluded, it must be because the nature of the power thus granted to congress requires that a similar authority should not exist in the states. * * * It is not the mere existence of such a power, but its exercise by congress, which may be incompatible with the exercise of the same power by the states, and that the states may legislate in the absence of congressional regulations."
The power of congress to enact uniform laws upon the subject of bankruptcy does not deprive the states or territories of the power to pass laws dealing with the same subject, when there is no national bankruptcy law in existence. But, as soon as congress adopts a measure of this character, all state and territorial laws relating to bankruptcy or insolvency are thereby superseded and suspended until the national law shall be repealed.
In discussing this subject Chief Justice Marshall, inSturges v. Crowninshield, 4 Wheaton 122, lays down the following rule:
"It has been said, that congress has exercised this power; and, by doing so, has extinguished the power of the states which cannot be revived by repealing the law of congress. We do not think so. If the right of the states to pass a bankrupt law is not taken away by the mere grant of that power to congress, it cannot be extinguished; it can only be suspended, by the enactment of a general bankrupt law. The repeal of that law cannot, it is true, confer the power on the states; but it removes a disability to its exercise, which was created by the act of congress."
The states have power to legislate on the subject of militia. Congress is vested with the same power. In the case ofHouston v. Moore, 5 Wheaton, 1, a question arose as to whether a member of the state militia could be punished by court martial under the laws of his state, while called into the service of the United States under laws of congress. Mr. Justice Washington asserts the doctrine that laws need not be repugnant or inconsistent in order to render the state law inoperativce, but the exercise of the power by the superior power excludes the right of the inferior power to exercise such right. In this case he says:
"Congress has power to provide for organizing, arming and disciplining the militia; and it is presumable that the framers of the constitution contemplated a full exercise of all these powers. Nevertheless, if congress had declined to exercise them, it was competent to the state governments to provide for organizing, arming and disciplining their respective militia, in such manner as they might think proper. But congress has provided for all these subjects, in the way which that body must have
supposed the best calculated to promote the general welfare, and to provide for the national defense. After this, can the state governments enter upon the same ground — provide for the same objects as they may think proper, and punish, in their own way, violations of the laws they have so enacted? The affirmative of this question is asserted by the defendant's counsel, who, it is understood, contend that unless such state laws are in direct contradiction to those of the United States, they are not repugnant to the constitution of the United States.
"From this doctrine I must, for one, be permitted to dissent. The two laws may not be in such absolute opposition to each other, as to render the one incapable of execution, without violating the injunctions of the other; and yet, the will of the one legislature may be in direct collision with that of the other. This will is to be discovered as well by what the legislature has not declared, as by what they have expressed. Congress for example, has declared, that the punishment for disobedience of the act of congress, shall be a certain fine; if that provided by the state legislature for the same offense be a similar fine, with the addition of imprisonment or death, the latter law would not prevent the former from being carried into execution, and may be said, therefore, not to be repugnant to it. But surely the will of congress is, nevertheless, thwarted and opposed.
"This question does not so much involve a contest for power between the two governments, as the rights and privileges of the citizen, secured to him by the constitution of the United States, the benefits of which he may lawfully claim.
"If, in a specified case, the people have thought proper to bestow certain powers on congress as the safest depository of them, and congress has legislated within the scope of them, the people have reason to complain that the same powers should be exercised at the same time by the state legislatures. To subject them to the operation
of two laws upon the same subject, dictated by distinct wills, particularly in a case inflicting pains and penalties, is, to my apprehension, something very much like oppression, if not worse. In short, I am altogether incapable of comprehending how two distinct wills can, at the same time, be exercised in relation to the same subject, to be effectual, and at the same time compatible with each other. If they correspond in every respect, then the later is idle and inoperative; if they differ, they must, in the nature of things, oppose each other, so far as they do differ. If the one imposes a certain punishment for a certain offense, the presumption is, that this was deemed sufficient, and, under all circumstances, the only proper one. If the other legislature impose a different punishment, in kind or degree. I am at a loss to conceive how they can both consist harmoniously together.
"I admit that a legislative body may, by different laws, impose upon the same person, for the same offense, different and cumulative punishments; but then it is the will of the same body to do so, and the second, equally with the first, is the will of that body. There is, therefore, and can be, no opposition of wills. But the case is altogether different, where the laws flow from the wills of distinct, co-ordinate bodies.
"This course of reasoning is intended as an answer to what I consider a novel and unconstitutional doctrine, that in cases where the state governments have a concurrent power of legislation with the national government, they may legislate upon any subject on which congress has acted, provided the two laws are not in terms, or in their operation, contradictory and repugnant to each other.
"Upon the subject of the militia, congress has exercised the powers conferred on that body by the constitution, as fully as was thought right, and has thus excluded the power of legislation by the states on these subjects execpt so far as it has been permitted by congress, although it should be conceded, that important provisions
have been omitted, or that others which have been made might have been more extended, or more wisely devised."
And, again the authority vested in congress by the constitution of the United States to fix standards of weights and measures is another illustration of the powers which were deemed proper to be confided to the national legislature for the purpose of securing uniformity on account of the relation to trade and commerce. So far, however, nothing has been done by congress in the execution of this power except to provide a standard troy pound for the regulation of the coinage, and to pass a permissive statute for the use of the metric system throughout the United States. In the meantime, and until congress shall act, each state or territory has the right and power to adopt its own standard for the regulation of weights and measures. But, if congress should at any time proceed to adopt a uniform national system, all state or territorial laws, to the extent that they might be inconsistent herewith, would be suspended and superseded.
Applying these well settled principles to the case under consideration, we must come to the conclusion that the subject of fixing the boundaries of the counties of this Territory, and the location and changing of the county seats therein, is a rightful subject of legislation under the Organic Act until such time as the national legislature legislates or enacts a law upon that subject. But, when congress legislates upon the subject, as it clearly appears from the various enactments heretofore quoted in this opinion, then that subject ceases to be a rightful subject of legislation, and is inconsistent and incompatible with the laws of the United States. And it must therefore follow, that any
act passed by the legislature upon the same subject is suspended and superseded, until the law of congress is modified or repealed. In other words, any law enacted by the inferior body upon the same subject must yield to the superior power.
We are clearly of the opinion that ch. 23 of the Statutes of 1893 of this Territory, is inconsistent with the letter and spirit of secs. 10 and 14 of the act of congress of March 3, 1893, providing for the opening of the Cherokee Outlet to settlement, inconsistent with the nature and purpose of said act authorizing the secretary of the interior to reserve certain lands for county seat purposes and to locate county seats thereon, and inconsistent with the proclamation of the president declaring said lands open to settlement and designating the seats of county government in the respective counties therein.
We, therefore, hold that the act of the territorial legislature providing for the changing of county seats, so far as it affects the lands opened to settlement by the act of congress of March 3, 1893, and embraced in what was formerly known as the Cherokee Outlet is void.
The peremptory writ of mandamus is, therefore, refused. The costs of this proceeding are taxed to the relators.
Burford, C. J., concurs fully; Burwell, J., concurs in the result, but not as to the reasoning; McAtee, J., and Irwin, J., concurring in the judgment of the court, but upon different grounds, and dissenting from the reasoning of the majority opinion.
Separate opinion by