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true and real boundary between the States. Such ratification was mutually made by each State in consideration of the ratification of the other." 5

§ 113. Compact Between the States and the United States.

Closely connected with the question of compacts of the States, inter se, is that of compacts between the individual States and the United States.

Of compacts of this character which have been entered into, the greater number have been made at the time the States in question have been admitted as States into the Union, and have attempted to place such States under restrictions not directly deducible from the federal Constitution, and are, therefore, restrictions not resting upon the other States. To this extent they have been in violation of the general principle of the equality of the States. This principle, it may be said, is not expressly stated in the federal Constitution, but would seem to be implied in the general nature of that instrument.

The Constitution, without distinguishing between the original and new States, defines the political privileges which the States

5 The opinion continues: "The Constitution does not state when the consent of Congress shall be given, whether it shall precede or follow the compact made, or whether it shall be express or may be implied. In many cases the consent will usually precede the compact or agreement, as to where it is to lay a duty of tonnage, to keep troops or ships of war in time of peace, or to engage in war. But where the agreement relates to a matter which could not well be considered until its nature is fully developed, it is not perceived why the consent may not be subsequently given. Story says that the consent may be implied, and is always to be implied when Congress adopts the particular act by sanctioning its objects and aiding in enforcing them; and observes that where a State is admitted into the Union, notoriously upon a compact made between it and the State of which it previously composed a part, there the act of Congress, admitting such State into the Union, is an implied consent to the terms of the compact. Knowledge by Congress of the boundaries of a State, and of its political subdivisions, may reasonably be presumed, as much of its legislation is affected by them, such as relates to the territorial jurisdiction of the courts of the United States, the extent of their collection districts, and of districts in which process, civil and criminal, of their courts may be served and enforced."

6 See article "Are the States Equal under the Constitution?" by W. A. Dunning, in Political Science Quarterly, III, 425.

are to enjoy, and declares that all powers not granted to the United States shall be considered as reserved "to the States." From this it almost irresistibly follows that Congress has not the right to provide that certain members of the Union, possessing full statehood, shall have their constitutional competences in any manner less than that of their sister States. According to this, then, though Congress may exact of territories whatever conditions it sees fit as requirements precedent to their admission as States, when admitted as such, it cannot deny to them any of the privileges and immunities which the other Commonwealths enjoy.

§ 114. Equality of the States.

The principle of the equality of the States had its origin before the adoption of the Constitution itself. In the acts of cession by the several States through which the old Confederacy obtained the control of the Northwest Territory, it was provided that from this vast area new States should, from time to time, be organized, which should be admitted to the Confederacy, with the same sovereign rights enjoyed by other States.

The famous Northwest Ordinance of 1787, re-enacted by the Congress of the United States in 1789, after laying down the general conditions upon which statehood was to be accorded, declared that the States, so admitted, should be "on an equal footing with the original States in all respects whatever."

Notwithstanding, however, this requirement of equality, Congress at an early date began the practice of exacting from would-be States various promises by the terms of which they were to hold themselves bound after their admission to the Union and until Congress should release them. Thus, for example, beginning in 1802 with Ohio, the first State formed from the Northwest Territory, it was demanded by Congress that that State, when admitted, should pass an ordinance, irrevocable without the consent of Congress, not to tax for five years all public lands sold by the United States; and a requirement substantially similar was demanded of many of the States later formed. When Missouri was admitted in 1821 it was required to declare that its Constitution

should never be so construed as to permit its legislature to pass a law excluding citizens of other States from the enjoyment of any of the privileges and immunities granted them by the federal Constitution.7

Beginning with the admission of Nevada in 1864, the promises exacted of Territories seeking admission as States assumed a more political character. Of Nevada it was required that her Constitution should harmonize with the Declaration of Independence and that the right to vote should not be denied persons on account of their color. Of Nebraska, admitted in 1867, it was demanded that there should be no denial of the franchise or any other right on account of race or color, Indians excepted. Of the States that had attempted secession, still more radical were the requirements precedent to the granting to them of permission again to enjoy the other rights which they had for the time being forfeited. Of all of them it was required that there should be, by their laws, no denial of the right to vote except for crime; and of three, that negroes should not be disqualified from holding office, or be discriminated against in the matter of school privileges. Finally, Utah, when admitted as a State in 1894, was required by Congress by the Enabling Act to make "by ordinance irrevocable without the consent of the United States and the people of the United States, provisions for perfect religious toleration and for the maintenance of public schools free from sectarian control; and that polygamous or plural marriages are forever abolished."

8

It would seem that as regards the enforceability of these contracts, a distinction is to be made between those that attempt to place the State under political restrictions not imposed upon all the States of the Union by the federal Constitution, and those which seek the future regulation of private, proprietary interests.

7 A superfluous requirement, for with or without such a promise, a State is, and was then, constitutionally unable to deprive any one of the rights guaranteed by the federal Constitution.

8 By the adoption of the Fourteenth and Fifteenth Amendments, some of these limitations have been made applicable to all the States and thus an equality, as to them, created.

The first class of these agreements the Supreme Court has repeatedly held are not enforceable against the State after it has been admitted into the Union.

In Pollard v. Hagen' the court held that a stipulation of an act of Congress passed for the admission of the State of Alabama into the Union that "all navigable waters within the said State shall forever remain public highways, free to the citizens of said State, and of the United States, without any tax, duty, impost or toll therefor, imposed by said State" did not give to the United States any greater control of the navigable waters of that State than was possessed by the Federal Government over the waters of any other State.10

11

In Escanaba v. Lake Michigan Transportation Co.11 the court declared, relative to certain limitations placed upon the governing powers of Illinois while in a territorial condition: "Whatever the limitations upon her powers as a government while 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."

And in Boln v. Nebraska12 it was declared: "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

93 How. 212; 11 L. ed. 565.

10 Cf. Strader v. Graham, 10 How. 82; 13 L. ed. 337; Weber v. Harbor Commissioners, 18 Wall. 57; 21 L. ed. 798; Sands v. Manistee River Imp. Co., 123 U. S. 288; 8 Sup. Ct. Rep. 113; 31 L. ed. 149; Shively v. Bowlby, 152 U. S. 1; 14 Sup. Ct. Rep. 548; 38 L. ed. 331.

11 107 U. S. 678; 2 Sup. Ct. Rep. 185; 27 L. ed. 442.

12 176 U. S. 83; 20 Sup. Ct. Rep. 287; 44 L. ed. 382.

sovereignty which belongs 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 whatever."

In the foregoing cases reference was had, as appears from the quotations, to States created out of Territories. There would seem to be, however, no reason why the same doctrine should not be applied to the political limitations exacted of a number of the Southern States at the time of their readmission to full constitutional privileges after the period of the Civil War and Reconstruction.

§ 115. Contracts Regarding Proprietary Interests.

Turning now to a consideration of the continued validity and enforceability of compacts between the States and General Government with reference to proprietary interests, one finds the comparatively recent case of Stearns v. Minnesota13 most illuminating. That case involved the construction and application of an agreement made by the State with the United States at the time. of its admission to the Union, with reference to public lands, within its boundaries, owned by the United States. The court in its opinion say: "That these provisions of the Enabling Act and the Constitution, in form at least, made a compact between the United States and the State, is evident. In an inquiry as to the validity of such a compact this distinction must at the outset be noticed. There may be agreements or compacts attempted to be entered into between two States, or between the State and the Nation, in reference to political rights and obligations, and there may be those solely in reference to property belonging to one or to the other. That different considerations may underlie the question as to the validity of these two kinds of compacts or agreements is obvious. It has often been said that a State admitted into the Union enters therein in full equality with all the others, and such equality may forbid any agreement or compact limiting or qualifying political rights and 13 179 U. S. 223; 21 Sup. Ct. Rep. 73; 45 L. ed. 162.

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