To succeed, therefore, the complainant must show that the implied and substantial part of the stipulation has been violated, and that the defendant has failed to exert itself in good faith to install his apparatus wherever in reason it was feasible. That covenant was the real inducement for the assignment of his patents, and it was from the royalties so arising that he was to be paid. In proof of such a default he instances the four buildings which have been mentioned in the statement of facts. There seem to have been good reasons in each case why the defendant should not have put in the complainant's elevators. In the case of the Ritz-Carleton Hotel, I do not think the defendant need have put in 18 or 20 elevators of a type which it had only tested in its factory. As I have said, that test in my judgment bound it to try the elevators practically, but it is one thing to make practical use and another to put in upon one contract a great bank of so many. In the case of the Metropolitan Tower, it cannot be said that Brown's letter which controlled the architect was the act of the defendant at all, and, even if it were, there were obviously good reasons which justified the defendant declining on such an extraordinary building to put in a device necessarily as yet somewhat experimental. In the case of the Beaver Building the needs of the customer were supplied at less expense, and certainly the defendant was required to do the work as economically as it reasonably could. There remains, therefore, the Park Row Building, and the complainant does not contradict the fact that the negotiations were still pending when he attempted to rescind the contract. This absolves the defendant.

Upon the proofs, therefore, I do not think that the complainant has yet shown any such default as would justify his rescission. In saying this I am aware of the difficulties under which the complainant labors, which may be such as prevent him from obtaining justice even when the defendant is in fact doing him injustice. Those difficulties are, however, inherent in the position in which he has placed himself in giving over his patents to the defendant upon an undertaking which did not define the amount of "practical use," to which they must be put. In so doing he necessarily put himself in their control, and he cannot retreat from the position without some affirmative proof that they have abused that control. The degree to which they could in fact exploit his invention depends upon their business opportunities for its use, and, until he can show that they have failed substantially to avail themselves of some such opportunities, his difficulties necessarily arise from the fact that he has chosen unwisely. Therefore I shall be obliged to dismiss this bill.

However, in view of the fact that in my judgment the defendant is in actual, although not serious default, and in view of the fact that a decree speaks from the time when it is filed, if the complainant so wishes, I will enter no decree but hold the suit open, and he may, if so advised, present further proofs at any time upon application to the court, which will show that the defendant's default is such as goes to the substance of the contract. Moreover, if the complainant sees fit to accept a dismissal, I will impose costs on the defendant.

There is a demurrer to the petition. An answer has also been filed, ac companied by a stipulation of facts, and the whole case submitted to the court upon its merits. There are no facts in the answer and none in the stipulation which, in the opinion of the court, are not raised also by the demurrer, and therefore they are omitted from the opinion.

Youmans & Youmans, for complainants.
C. E. & H. P. Warner, for defendant.

ROGERS, District Judge (after stating the facts as above). The first question which this demurrer raises is whether the tenth section of the act of March 2, 1889, supra, authorizes this proceeding. That depends upon the further question as to whether the petition brings the case stated within the purview of the provisions of the interstate commerce law. In the third section of an act to regulate commerce, approved February 4, 1887 (Act Feb. 4, 1887, c. 104, 24 Stat. 380 [U. S. Comp. St. 1901, p. 3155]), it is provided:

"Sec. 3. That it shall be unlawful for any common carrier subject to the provisions of this act to make or give any undue or unreasonable preference or advantage to any particular person, company, firm, corporation, or locality, or any particular description of traffic, in any respect whatsoever, or to subject any particular person, company, firm, corporation, or locality, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage, in any respect whatsoever."

A critical examination of that section makes it clear that it is unlawful for any common carrier "to make or give any undue or unreasonable preference or advantage to * * * any particular description of traffic, in any respect whatsoever, or to subject any particular description of traffic to undue or unreasonable prejudice or disadvantage in any respect whatsoever." The allegations of the complaint make it clear that the case made is completely covered by that statute; provided intoxicating liquor is an article of commerce and is not prohibited by law from being introduced into that part of the state of Oklahoma known as the Indian Territory. Whether intoxicating liquor is prohibited by law from being introduced into said territory depends upon the question as to whether or not the act of January 30, 1897 (Act Jan. 30, 1897, c. 109, 29 Stat. 506) is still in force as to that territory.

The purpose of this legislation is obvious. Speaking historically the status of the Indian and that of the Indian Territory were in a transition state. Congress was preparing the Indians for individual allotment, for American citizenship and statehood, and at the same time was endeavoring to guard the Indian from the evil consequences of intoxicating liquor and the sinister designs of unscrupulous people who might take advantage of their weakness for strong drink and despoil them of their properties. While this statute was in force, the act of Congress enabling Oklahoma to become a state was approved June 16, 1906 (Act June 16, 1906, c. 3335, 34 Stat. 267 [U. S. Comp. St. Supp. 1909, p. 155]). It is insisted that the second paragraph of section 3 of that act (31 Stat. 269, 270) repeals the intercourse act of January 30, 1897, supra, which forbade the introduction of intoxicating liquors into the Indian Territory. That section of the enabling act is as follows:

"Second. That the manufacture, sale, barter, giving away, or otherwise furnishing, except as hereinafter provided, of intoxicating liquors within those parts of said state now known as the Indian Territory and the Osage Indian reservation and within any other parts of said state which existed as Indian reservations on the first day of January, nineteen hundred and six, is prohibited for a period of twenty-one years from the date of the admission of said state into the Union, and thereafter until the people of said state shall otherwise provide by amendment of said constitution and proper state legislation. Any person individual or corporate, who shall manufacture, sell, barter, give away, or otherwise furnish any intoxicating liquor of any kind, including beer, ale, and wine, contrary to the provisions of this section, or who shall, within the above-described portions of said state, advertise for sale or solicit the purchase of any such liquors or who shall ship or in any way convey such liquors from other parts of said state into the portions herein before described, shall be punished, on conviction thereof, by fine not less than fifty dollars and by imprisonment not less than thirty days for each offense: Provided, that the Legislature may provide by law for one agency under the supervision of said state in each incorporated town of not less than two thousand population in the portions of said state, hereinbefore described; and if there be no incorporated town of two thousand population in any county in said portions of said state, such county shall be entitled to have one such agency, for the sale of such liquors for medicinal purposes; and for the sale, for industrial purposes, of alcohol which shall have been denaturized by some process approved by the United States Commissioner of Internal Revenue; and for the sale of alcohol for scientific purposes to such scientific institutions, universities, and colleges as are authorized to procure the same free of tax under the laws of the United States; and for the sale of such liquors to any apothecary who shall have executed an approved bond, in a sum not less than one thousand dollars, conditioned that none of such liquors shall be used or disposed of for any purpose other than in the compounding of prescriptions or other medicines, the sale of which would not subject him to the payment of the special tax required of liquor dealers by the United States, and the payment of such special tax by any person within the parts of said state hereinabove defined shall constitute prima facie evidence of his intention to violate the provisions of this section. No sale shall be made except upon the sworn statement of the applicant in writing setting forth the purpose for which the liquor is used, and no sale shall be made for medicinal purposes except sales to apothecaries as hereinabove provided unless such statement shall be accompanied by a bona fide prescription signed by a regular practicing physician, which prescription shall not be filled more than once. Each sale shall be duly registered, and the register thereof, together with the affidavits and prescriptions pertaining thereto, shall be open to inspection by any officer or citizen of said state at all times during business hours. Any person who shall knowingly make a false affidavit for the purpose aforesaid shall be deemed guilty of perjury. Any physician who shall prescribe any such liquor, except for treatment of disease which after his own personal diagnosis he shall deem to require such treatment, shall, upon conviction thereof, be punished for each offense by fine of not less than two hundred dollars or by imprisonment for not less than thirty days, or by both such fine and imprisonment; and any person connected with any such agency who shall be convicted of making any sale or other disposition of liquor contrary to these provisions shall be punished by imprisonment for not less than one year and one day. Upon the admission of said state into the Union these provisions shall be immediately enforceable in the courts of said state."

In considering this question we are compelled to assume that the Congress understood not only the status of the Indian, but also what would be the effect of admitting Oklahoma into the Union as a sovereign state under the Constitution. The very title of the enabling act shows that Congress intended Oklahoma to "be admitted into the Union on equal footing with the original states"; but, if it had intended otherwise, the result would have been the same. Chief Justice

180 F.-64

Taney, in the Dred Scott Decision, 19 How. 446, 15 L. Ed. 691, in discussing the duties and powers of the federal government in acquiring additional territory, and the admission of states into the Union, said:

"There is certainly no power given by the Constitution to the federal government to establish or maintain colonies bordering on the United States or at a distance, to be ruled and governed at its own pleasure; nor to enlarge its territorial limits in any way, except by the admission of new states. That power is plainly given; and if a new state is admitted, it needs no further legislation by Congress, because the Constitution itself defines the relative rights and powers, and duties of the state, and the citizens of the state and the federal government. But no power is given to acquire a territory to be held and governed permanently in that character."

In Sands v. Manistee River Improvement Co., 123 U. S. 289, 8 Sup. Ct. 113, 31 L. Ed. 149, Mr. Justice Field, speaking for the fuli court, in discussing the respective powers of the state of Michigan and the federal government, as affected by the ordinance of 1787, said:

"There was no contract in the fourth article of the ordinance of 1787 re specting the freedom of the navigable waters of the territory northwest of the Ohio river emptying into the St. Lawrence, which bound the people of the territory, or of any portion of it, when subsequently formed into a state and admitted into the Union.

"The ordinance of 1787 was passed a year and some months before the Constitution of the United States went into operation. Its framers, and the Congress of the confederation which passed it, evidently considered that the principles and declaration of rights and privileges expressed in its articles would always be of binding obligation upon the people of the territory. The ordinance in terms ordains and declares that its articles 'shall be considered as articles of compact between the original states and the people and states in the said territory, and forever remain unalterable unless by common consent.' And for many years after the adoption of the Constitution, its provisions were treated by various acts of Congress as in force, except as modified by such acts. In some of the acts organizing portions of the territory under separate territorial governments, it is declared that the rights and privileges granted by the ordinance are secured to the inhabitants of those territories. Yet from the very conditions on which the states formed out of that territory were admitted into the Union, the provisions of the ordinance became inoperative except as adopted by them. All the states thus formed were, in the language of the resolutions or acts of Congress, ‘admitted into the Union on an equal footing with the original states in all respects whatever. Michigan, on her admission, became, therefore, entitled to and possessed of all the rights of sovereignty and dominion which belonged to the original states, and could at any time afterwards exercise full control over its navigable waters except as restrained by the Constitution of the United States and laws of Congress passed in pursuance thereof. Permoli v. First Municipality of New Orleans, 3 How. 589, 600 [11 L. Ed. 739]; Pollard v. Hagan, 3 How. 212 [11 L. Ed. 565]; Escanaba Co. v. Chicago, 107 U. S. 678, 688 [2 Sup. Ct. 185, 27 L. Ed. 442]; Van Brocklin v. Tennessee, 117 U. S. 151, 159 [6 Sup. Ct. 670, 29 L. Ed. 845]; Huse v. Glover, 119 U. S. 543, 546 [7 Sup. Ct. 313, 30 L. Ed. 487]."

This principle was approved by Mr. Justice Bradley, speaking for the full court, in Williamette Iron Bridge Co. v. Hatch, 125 U. S. 9, 8 Sup. Ct. 815 (31 L. Ed. 629), where this language occurred:

"This court has held that, when any new state was admitted into the Union from the North West Territory, the ordinance in question ceased to have any operative force in limiting its powers of legislation as compared with those possessed by the original states. On the admission of any such

new state, it at once became entitled to and possessed all the rights of dominion and sovereignty which belonged to them. See the cases of Pollard's Lessee v. Hagan, supra; Permoli v. First Municipality, 3 How. 589 [11 L. Ed. 739]; Escanaba Co. v. Chicago; Cardwell v. American Bridge Co. [113 U. S. 205, 5 Sup. Ct. 423, 28 L. Ed. 959]; Huse v. Glover, qua supra."

In Bolln v. Nebraska, 176 U. S. 88, 20 Sup. Ct. 289 (44 L. Ed.. 382), Mr. Justice Brown said:

"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.''

The same principle is approved in Ward v. Race Horse, 163 U. S. 511, 16 Sup. Ct. 1076, 41 L. Ed. 244, where Mr. Justice White, beginning with Pollard v. Hagan, 3 How. 212, 11 L. Ed. 565, reviews a number of cases and upheld the doctrine stated.

It must therefore be conceded that, when Oklahoma was admitted under the federal Constitution into the Union as a state, the act of admission gave to her all the powers and devolved upon her all the duties which belong to the other states under the Constitution, anything in the enabling act to the contrary notwithstanding. She could come into the Union in no other way. By virtue of the Constitution her admission fixed her status and that of her people, to the people of other states, to the other states themselves, and to the federal government. Congress cannot exact of a state-even a state coming into the Union-the surrender or waiver of any of the constitutionally inherent powers of sovereignty under the Constitution or such as belong to the original states; nor can a state either surrender or stipulate away any of its sovereignty or render herself less sovereign than the other states. Bearing these principles in mind, Congress knew that the moment Oklahoma was admitted into the Union as a state that the laws regulating interstate commerce must apply to Oklahoma as to all the other states; it knew that the power over intrastate commerce would inure to the state of Oklahoma by the act of admission; it knew that Oklahoma must enact its own laws regulating intrastate commerce, for the simple reason that the power to enact such laws had not been granted to Congress; it knew that the great body of laws traceable to the police power of the state must be enacted by the state for the same reason. Congress knew that intoxicating liquors were articles of commerce, so far as the interstate commerce law was concerned, and that no state could prohibit their introduction within its borders. Leisy v. Hardin, 135 U. S. 100, 10 Sup. Ct. 681, 34 L. Ed. 128; Vance v. Vandercook, 170 U. S. 438, 18 Sup. Ct. 674, 42 L. Ed. 1100; Adams Express Co. v. Kentucky, 214 U. S. 218, 29 Sup. Ct. 633, 53 L. Ed. 972; Atlantic Coast Line v. Wharton, 207 U. S. 328, 28 Sup. Ct. 121, 52 L. Ed. 230; U. S. Rev. St. § 5258;1 sections 238, 239, 240 of the act of March 4, 1909 (Act March 4, 1909, c. 321, 35 Stat. 1136, 1137 [U. S. Comp. St. Supp. 1909, p. 1464]), entitled "An act to codify, revise and amend the penal laws of the United States, wherein regulations for the shipment of intoxicating liquors from one state or territory to another state or territory are provided, and heavy penalties prescribed for violating the same.

1 U. S. Comp. St. 1901, p. 3564.