Ansley v. Ainsworth

Towsend J.

The appellants have filed four assignments •of error, as follows: “First. The court erred in holding that the amended complaint in this cause does not state facts sufficient to constitute a cause of action. Second. The court erred in holding that the amended complaint in this cause does not state facts sufficient to constitute an equitable cause of action, and in holding that the amended complaint in this cause is without equity. Third. The court erred in sustaining the demurrer of the defendants to plaintiffs' amended complaint. Fourth. The court erred in rendering judgment in favor of defendants in this cause upon the demurrer filed herein.” The appellants, in their brief, in discussing said assignments of error, submit five separate propositions, and make an argument and cite authorities in support of each one. They are, in substance, as follows: “First. That the right of coal discoverers and their assigns in the Choctaw Nation is a vested right, under the constitution and laws of the United States. Second. Is the existence of such right in conflict with the laws or the provisions of the treaties between the United States and the Choctaw Nation? Third: If revocable at all, the right could only be revoked in the method provided by the constitution and laws of the Choctaw -Nation, adopted with the authority conferred by the United States in its treaties and legislation. Fourth. The Atoka agreemenadopted by the votes of the Choctaw and Chickasaw Nations, is ineffectual as a revocation of said rights, in view of the duress and coercion alleged against the validity of that agreement-Fifth. The act of congress of June 28, 1898, and the Atoká agreement are both void because of the fact that in the enactment of the one and in the ratification of the other by the congress, and in the provision that the agreement should supersede the act if adopted at an election held in the Choctaw and *316 Chickasaw Nations, the congress of the United States delegated its legislative power, in violation or sections 1 and 7 of article 1 of the constitution of the United States.”

The amended complaint and the demurrer to same were filed, and the judgment of the court below was rendered, on March 31, 1899, about six weeks prior to the handing down of the decision in the case of Stephens vs Cherokee Nation, 174 U. S. 445 , 19 Sup. Ct. 722, 43 L. Ed. 1041 , which was on May 15, 1899, and which decision practically settles the controversy in this action. The citation of that case, in our judgment, furnishes ample authority to authorize this court in an affirmance of the judgment of the court below; but the appeal to this court was not taken until March 14, 1902, long after the decision in the Stephens Case, and hence we can only infer that appellants are not willing to accept the conclusions arrived at in that case, and are desirous to again bring the questions to the attention of that court. This, perhaps, will justify this court in briefly stating its views upon the question presented.

Appellants quote the treaty of 1820 as the basis of their rights. It appears in the preamble of said treaty that the Choc" taws ceded a small portion of their lands in Mississippi for “a country beyond the Mississippi river, where all who live by hunting and will not work may be collected and settled together.” The United States, through its commissioners, agree “to give to each warrior a blanket, kettle, rifle gun, bullet moulds arid nippers, and ammunition sufficient for hunting and defence, for one year. Said warrior shall also be supplied with corn to support him and his family, for the same period, and whilst traveling to the country above ceded to the Choctaw Nation.” 7 Stat. 212 , art. 5. They also agree to furnish them an agent, a blacksmith, and a factor to supply them with goods. This treaty clearly indicates the supervision and guardianship that the government *317 proposed to take of these Indians; and to assume that the words “cede to said nation” means an absolute title to the land is giving a technical character to the said expression wholly at variance with the title then enjoyed by Indians, who never had been granted anything but the right of occupancy. Appellants concede, however, that by the treaty of 1830 it was changed into a base or qualified fee, and subsequently, in 1842, the same was carried into the patent, which is as follows: “Now, know ye that the United States of America, in consideration of the premises, and in execution of the agreement and stipulation in the aforesaid treaty, have given and granted, and by these presents do give and grant, unto the said Choctaw Nation, the aforesaid tract of country west of the Mississippi, to have and to hold the same, with all the rights, privileges, immunities, and appurtenances of whatsoever nature thereunto belonging, as intended to be conveyed by the aforesaid article, in fee simple to them and their descendants, to inure to them while they shall exist as a nation and live on it, liable to no transfer or alienation except to the United States, or with their consent.” This latter treaty and patent simply expressed what w'as meant by the treaty of 1820. In 1837 an agreement was made between the Choctaws and Chickasaws. The first article of said agreement is as follows:

“It is agreed by the Choctaws that the Chickasaws shall have the privilege of forming a district within the limits of their country, to be held on the same terms that the Choctaws now hold it, except the right of disposing of it (which is held in common with the Choctaws and Chickasaws) ‘to be called the Chickasaw District of the Choctaw Nation; to have an equal representation in their general council, and‘to be placed on an equal footing in every other respect with any of the other districts of said nation, except a voice in the management of the consideration which is given for these rights and privileges; and the Chickasaw people to be entitled to all the rights and privileges *318 of Choctaws, with the exception of participating in the Choctaw-annuities and the consideration to be paid for these rights and privileges, and to be subject to the same laws to which the Choctaws are; but the Chickasaws reserve to themselves the sole right and privilege of controlling and managing the residue of their funds so far as is consistent with the late treaty between the said people and the government of the United States, and of making such regulations and electing officers for that purpose as they may think proper.” In 1855 a treaty was made between the United States and the Choctaws and Chickasaws, the first, article of which provides as follows: “The following shall constitute and remain the boundaries of the Choctaw and Chickasaw country, namely: Beginning at a point on the Arkansas river one hundred paces east of old Fort Smith, where the western boundary line of the State of Arkansas crosses the said river, and running thence south to Red river; thence up Red river to the point where the meridian of one .hundred degrees west longitude crosses the same; thence north and along said meridian to the main Canadian river; thence down said river to its junction with the Arkansas river; thence dowm said river to the place of beginning. And pursuant to the act of congress approved May 28,1830, the United States do hereby forever secure and guaranty the lands embraced within the said limits to the members of the Choctaw and Chickasaw tribes, their heirs and successors, to be held in common, so that each and every member of either tribe shall have an equal, undivided interest in the whole: provided, however, no part thereof shall ever be sold without the consent of both tribes, and that said land shall revert to the United States if said Indians and their heirs become extinct or abandon the same.” The twenty-first article of said treaty provided as follows: “This convention shall supersede and take the place of all former treaties between the United States and the Choctaws and also of all treaty stipulations between the United States *319 and the Chickasaws and between the Choctaws and the Chickasaws inconsistent with this agreement, and shall take effect, and be obligatory upon the contracting parties from date hereof whenever the same shall be ratified by the respective councils of the Choctaw and Chickasaw tribes and by the President and Senate of the United States.” The right to the possession of the lands being thus held in common thereafter. While the titles were in this condition the Choctaw Nation, in 1859, ordained and established a constitution, which, by section 18 of article 7 provided as follows: “Any citizen of this nation who may find any mine or mine's or mineral waters shall have exclusive right and privilege to work the same so long as he may choose, within one mile in any direction from his works or improvements: provided, however, he does not interfere with the rights of the former settler.”

It is under this provision of the Choctaw constitution tha the “vested right” that appellants insist that they possess was secured. The court below, as quoted in the brief of appellees, very clearly states why such a vested right could not exist, and we approve his conclusions. They are as follows: “‘Article 1 of the treaty of 1855, after defining the boundaries of the Choctaw and Chickasaw Nations, provides as follows: “And pursuant to an act of congress approved May 28, 1830, the United States do hereby forever secure and guaranty the lands embraced within said limits to the members of the Choctaw and Chickasaw tribes, their heirs and successors, to hold in common, so that each and every member of either tribe shall have an equal undivided interest in the whole: provided, however, no part thereof shall ever be sold without the consent of both tribes, and that said lands shall revert to the United States if said Indians and their heirs become exitnct or abandon the same.” Article 11 of the treaty of 1866 in part provides: “Whereas, the land occupied by the Choctaw and Chickasaw Nations, and described in *320 the treaty between the United States and said nations of June 22, 1855, is now held by the members of said nation in common,” etc. Whether the treaty of 1855 be taken as an interpretation of the terms of the grant made by the parties to it, or as the ingrafting of a new condition in it, is immaterial, because, in any view of the case, after the execution of the treaty its terms would be binding. Therefore the United States had been treating with the Choctaws alone in relation to their lands. Now' anew]oarty iii interest appears. The Chickasaws, with the consent of the United States, had bought an interest in them, and itbecame necessary to define the rights and title of all. I think there can be no doubt but that these Indians hold their lands as tenants in common, at least since the treaty of 1855; but by that treaty the United States is made to guaranty to each Indian an enjoyment of an equal undivided share of these lands, and the Choctaw's agree with the Chickasaws that it shall be done. The constitution, containing the provision by virtue of which the plaintiff claims title, was not adopted until 1860, — five years after the treat}' of 1855 was ratified, — and neither the United States nor the Chickasaw Nation w'ere'parties to it. The United States had the right, by virtue of its superior soverignty over these Indian tribes, and its guardianship over their wards, which has alw'ays been recognized, to make such an agreement with them and enforce it. If the eighteenth section of article 7 of the Choctaw constitution was intedned to vest an indefeasible title to the coal mines in the discoverer, it would be in violation of twm of the provisions of the treaty of 1855; First, it would be an appropriation and a sale of the realty without the consent of the Chickasaw's; and, second, it would be in violation of that clause of the treaty which provides that the lands shall be held in common, so that each and every member of either tribe shall have an equal, undivided, interest in the whole. 1 therefore hold that, if the language of the constitution is to be construed as granting to the discoverer of mines in the Choctaw' Nation an indefeasible *321 title or right to the mine discovered by him as to the undertying coal it is void, as being in conflict with the treaty of 1855.’” And in Stephens vs Cherokee Nation, 174 U. S. 445 , 19 Sup. Ct. 722, 43 L. Ed. 1041 , Chief Justice Fuller (on page 488, 174 U. S. page 738, 19 Sup. Ct., and page 1041, 43 L. Ed.) says “The lands and moneys of these tribes are public lands and public moneys, and are not held in individual ownership, and the assertion by any particular applicant that his right therein is so vested as to preclude inquiry into his status involves a contradiction in terms.”

The Atoka agreement provides as follows: “It is agreed that all the coal and asphalt within the limit of the Choctaw and Chickasaw Nations shall remain and be the common property of the members of the Choctaw and Chickasaw tribes (freedmen excepted), so that each and every member shall have an equal and undivided interest in the whole. All agreements heretofore made by any person or corporation with any member or members of the Choctaw and Chickasaw Nations the object of which was to obtain such member or members’ permission to operate coal or asphalt, are hereby declared void.” It certainly appears that the right of discoverers of coal, under the Choctaw constitution, as asserted in this action, are in conflict with the foregoing provisions. It is too late for the contention made by appellants to have any standing. The control exercised by congress over these Indians has been upheld by the Supreme Court of the United States in numerous cases. Chief Justice Fuller, in the case of Stephens vs Cherokee Nation, 174 U. S. 484 , 19 Sup Ct.. 736, 43 L. Ed. 1041 , says: .“ As to the general power of congress, Ave need not revieAV the decisions on the subject, as they are sufficiently referred to by Mr. Justice fiarían in Cherokee Nation vs Southern Kansas R. Co., 135 U. S. 641, 653 , 10 Sup. Ct. 969, 34 L. Ed. 295 , from Avhose opinion Ave quote as follows:' 'The proposition that the Cherokee Nation is soArcreign in the sense *322 that the United States is sovereign, or in the sense that the several states are sovereign, and that that nation alone can exercise the power of eminent domain within its limits, finds no support in the numerous treaties with the Cherokee Indians or in the decisions of this court, or in the acts of congress defining the relations of that people with the United States. From the beginning of the government to the present time, they have been treated as “wards of the nation,” “in a state of pupilage,” “dependant political communities,” holding such relations to the general government that they and their country, as declared by Chief Justice Marshall in Cherokee Nation vs Georgia, 5 Pet. 1, 17 , 8 L. Ed. 25 . “are considered by -foreign nations, as well as by ourselves, as being so completely under the sovereignty and dominion of the United States that any attempt to acquire their lands, or to form a political connection with them, would be considered by all as an invasion of our territory and an act of hostility.” It is true, as declared in Worcester vs Georgia, 6 Pet. 515, 557, 569 , 8 L. Ed. 483 , that the treaties and laws of the United States contemplate the Indian Territory as completely separated from the states, and the Cherokee Nation, as a distinct community, and, in the language of Mr. Justice'McLean in the same case (page 583, 6 Pet., and page 483, 8 L. Ed.), that, “in the executive, legislative, and judicial branches of our government we have admitted, by the most solemn sanction, the existence of the Indians as a separate and distinct people, and as being vested with rights which constitute them a state or separate community.” But that falls far short of saying that they are a sovereign state, with no superior within the limits of its territory. By the treaty of New Echota (1835) the United States covenanted and 'agreed that the lands ceded to the Cherokee Nation should at no future time, without their consent, be included within the territorial limits or jurisdiction of any state or territory, and that the government would secure to that nation “the right by their national councils to make and carry into *323 effect all such laws as they may deem necessary for the government of the persons and property within their own country, belonging to their people or such persons as have connected themselves with them”; and b}r the treaties of Washington (1846 and 1866) the United States guaranteed to the Cherokees the title and possession of their lands, and jurisdiction over their country. Revision of Indian Treaties, pp. 65, 79, 85. But neither these nor any previous treaties evinced any intention upon the part of the government to discharge them from their condition of pupilage or dependency, and constitute them a separate, independent, sovereign people, with no superior within its limits. This is made clear by the decisions of this court rendered since the cases already cited. In U. S.vs Rogers, 4 How. 567, 572 , 11 L. Ed. 1105 , the court, referring to the locality in which a particular crime had been committed, said: “It is true that it is occupied by the tribe of Cherokee Indians. But it has been assigned to them by the United States as a place of domicile for the tribe, and they hold and occupy it with the consent of the United States ,and under their authority. * * * We think it too firmly and clearly established to admit of dispute that the Indian tribes residing within the territorial limits of the United. States are subject to their authority.” In U. S. vs Kagama, 118 U. S. 375, 379 , 6 Sup. Ct. 1109, 30 L. Ed. 228 , the court, after observing that the Indians were 'within the geographical limits of the United States, said: “The soil and the people within these limits are under the political control of the government of the United States, or of the states of the Union. There exist within the broad domain of sovereignity but these two. * * * They wrere, and always have been, regarded as having a semi-independent position when they preserved their tribal relations; not as states, not as nations, not as possessed of the full attributes of sovereignty, but as a separate people, with the power of regulating their internal and social relations, and thus far not brought under the laws of the Union, or of the state within whose limits *324 they resided. * * * The power of the general government over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection, as well as to the safety of those among whom they dwell. It must exist in that government because it has never existed anywhere else, because the theatre of its exercise is within the geographical limits of the United States, because it has never been denied, and because it alone can enforce its laws on all the tribes.” The latest utterance upon this general subject is in Choctaw Nation vs U. S., 119 U. S. 1, 27 , 7 Sup. Ct. 75, 30 L. Ed. 306 , where the court, after stating that the United States is a sovereign nation, limited only by its own constitution, said: “On the other hand', the Choctaw Nation falls within the description in the terms of our constitution, not of an independent state or sovereign nation, but of an Indian tribe. As such, it stands in a peculiar relation to the United States. It was capable, under the terms of the constitution, of entering into treaty relations with the governmenl! of the United States, although, from the nature of the case, subject to the power and authority of the laws of the United 'States when congress should choose, as it did determine in the act of March 3, 1871, embodied in section 2079 of the Revised Statutes, to exert its legislative power.' ” And it is further decided that whenever congress does supersede a treaty, and •any question arises, it is not within the sphere of judicial cognizance. “It is well settled that an act of congress may supersede a prior treaty, and that any questions that may arise are beyond the sphere of judicial cognizance, and must be met by the political department of the government. ‘It need hardly be said that a treaty cannot change the constitution, or be held valid if it be in violation of that- instrument. This results froiii the nature and fundamental principles of our government. The effect of treaties and acts of congress, when in conflict, is not settled by the constitution. But the question is not involved in any doubt as to its proper solution. A treaty may supersede *325 a prior act of congress, and an act of congress may supersede a prior treaty. Foster vs Neilson, 2 Pet. 253, 314 , 7 L. Ed. 415 . Taylor vs Morton, 2 Curt. 454 , Fed. Cas. No. 13,799. In the cases referred to, these principles were applied to treaties with foreign nations. Treaties-with Indian nations within the jurisdiction of the United States, whatever considerations of humanity and good faith may be involved and require their faithful observance, cannot be more obligatory. * * * In the ease under consideration the act of congress must prevail as if the treaty were not an element to be considered/' The Cherokee Tobacco, 11 Wall. 616 , 20 L. Ed. 227 . That was a‘case where an act of congress extended the revenue laws, as respected tobacco, over the Indian territories, regardless of provisions in prior treaties that exempted tobacco raised by Indians on their reservations.” Thomas vs Gay, 169 U. S. 271 , 18 Sup. Ct. 340, 42 L. Ed. 740 .

The power of congress over these Indians being thus unlimited, if congress saw fit, in its wisdom, to adopt the Atoka agreement, and authorize the Choctaw and Chickasaw Nations to also adopt it, any provisions of former treaties, constitutions, or contracts existing under them, in conflict with the same, are simply abrogated and annulled, and the courts cannot take cognizance of the questions thus arising. It will also be observed: "The constitutional inhibition against the passage of laws impairing the obligation of contracts is a limitation upon the powers of the state, but not upon those of congress.” Evans-Snider-Buel Co. vs McFadden, 44 C. C. A. 494 , 105 Fed. 293 .

The question of duress and coercion, which, it is argued, was exercised by congress in the adoption of the Atoka agreement, involves an investigation into the motives and influences that controlled congress in this enactment. This is also beyond the sphere of judicial cognizance. “It is beyond the power of this *326 court to question the good faith of congress, and' it is never to be presumed that an act of a legislature is not bona fide. As was said by Chief Justice Fuller in the case of United States vs Old Settlers, 148 U. S. 466 , 13 Sup. Ct. 650, 37 L. Ed. 509 , in reviewing the case of U. S. vs Arredondo, 6 Pet. 691 , 8 L. Ed. 547 : ‘ It will be perceived that this decision is not authority for the proposition that a court may be clothed with power to annul a treaty on the ground of fraud or duress in its execution. * * * Unquestionably a treaty may be modified or abrogated by an act of congress, but the power to make and unmake is essentially political, and not judicial, and the presumption is wholly inadmissible that congress sought in this instance to submit the good faith of its own action or the action of the government to judicial decision.’ In the case of Whitney vs Robertson, 124 U. S. 190, 194 , 8 Sup. Ct. 456, 31 L. Ed. 386 , Justice Field states with approval the effect of the decision of Taylor vs Morton, 2 Curt. 454, 459 , Fed. Cas. No. 13,799, as follows: ‘Whether the" consideration of a particular stipulation of the treaty had been voluntarily withdrawn by one party, so that it was no longer obligator on the other; whether the views and acts of a foreign' sovereign had given just occasion to the legislative department of our government to withhold the execution of a promise contained in a treaty, or to act in direct contravention of such promise, — were not judicial questions; that the power to determine these matters had not been confided to the judiciary, which has no suitable means to exercise it, but to the executive and legislative departments of our government; and that they belong to diplomacy and legislation, and not to the administration of the laws. And he (Curtis) justly observed, as a necessary consequence of these views, that, if the power to determine these matters is vested in congress, it is wholly immaterial to inquire whether by the act assailed it has departed from the treaty or not, or whether such departure was by accident or design, and, if the latter, whether the reasons were good or bad. In these *327 views we fully concur.”' Mr. Chief Justice Chase, in Ex parte McCardle, 7 Wall. 514 , 19 L. Ed, 264, uses the following language: “We are not at liberty to.inquire into the motives of the legislature. We can only examine into its power under the constitution, and the power to make exceptions to the jursidiction of this court is given by express words.” So, also, Chief Justice Marshall, in the case of Fletcher vs Peck, 6 Cranch, 130 , 3 L. Ed. 162 , in discussing this subject, says: “It may well be doubted how far the validity of a law depends upon the motives of its framers, and how far the particular inducements operating on the members of the supreme sovereign power of a state to the formation of a contract by that power are examinable in a court of justice. If the principle be conceded that an act of the supreme power might be declared null by a court in consequence of the means which procured it, still there would be much difficulty in saying to what extent those means must be applied to produce this effect. * * * If a majority of the legislature be corrupted, it may well be doubted whether it be within the province of the judiciary to control their conduct; and, if less than a majority act from impure motives, the principle by which judicial interference would be regulated is not clearly discerned.”

The proposition of appellants that the act of congress and the Atoka agreement are both void because congress^ delegated its legislative power, in violation of sections 1, 7, art. 1, of the constitution of the United States, is not supported in its application to the legislation in question. Section ■ 29 of said act provides: “That the agreement made by the commission to the Five Civilized Tribes with commissions representing the Choctaw and Chickasaw tribes of Indians, on the 23d day of April, 1897, as herein amended, is hereby ratified and confirmed and the same shall be of full force and effect if ratified before the 1st day of December, 1898, by a majority of the whole number of votes cast by the members of said tribes at an election held for that pur *328 pose; and the executives of said tribes are hereby authorized and directed to make public proclamation that said agreement shall be voted on at the next general election, or at any special election, to be called by such executives for the purpose of voting on said agreement; and at the election held for such purpose all male members of each of said tribes qualified to vote under his tribal laws shall have the right to vote at the election precinct most convenient to his residence, whether the same be within the bound of his tribe or not: provided, that no person whose right to citizenship in either of said tribes or nations is now contested in original or appellate proceedings before any United States court, shall be permitted to vote at said election; provided, further, that the votes cast in both said tribes or nations shall be fortwith returned duly certified by the precinct officers to the national secretary of said tribes or nations, and shall be presented by said national secretaries to a board of commissioners consisting of the principle chief, and a national secretary of the Choctaw Nation, the governor and national secretary of the Chickasaw Nation, and a member of the commission to the Five Civilized Tribes, to be designated by the chairman of said commission;, and said board shall meet without delay at Atoka, in the Indian Territory, and canvass and count said votes and make proclamation of the' result; and if said agreement as amended be' so ratified, the provisions of this act shall then apply only to said tribes where the same do not conflict with the provisions of said agreement; but the provisions of said agreement, if so ratified, shall not in any manner, affect the provisions of section fourteen of this act.” In Stephens vs Cherokee Nation, supra, Chief Justice Fuller, on page 466, 174, U. S. page 730, 19 Sup. Ct., and page 1041, 43 L. Ed., says: “Section 29 (of the Curtis Law) ratified the agreement made by the commission with the commissions representing the Choctaw and Chickasaw tribes, April 23, 1897, as amended by the act, and provided for its going into effect if ratified before December 1, 1898, by a majority of *329 the whole number of votes cast by the members of said tribes at an election held for that purpose.” And on page 491, 174 U. S., page 739, 19 Sup. Ct., and page 1041, 43 L. Ed., he says: “The act (the Curtis Law) provided further for the resubmission of the two agreements, with certain specified modifications,— that with the Choctaws and Chickasaws and that with the Creeks, —for ratification, to a popular vote in the respective nations, and that, if ratified, the provisions of these agreements, so far .as differing from the act, should supersede it. The Choctaw and Chickasaw agreement was accordingly so submitted for ratification August 24, 1898, and was ratified by a large majority, but whether or not the agreement with the Creeks was ratified does not appear. * * * The agreement with the Choctaw and Chickasaw tribes contained a provision continuing the tribal government,' as modified, for the period of eight years from March 4, 1898, but provided that it should ‘not be construed to be in any respect an abdication by congress of power at any time to make needful rules and regulations respecting said tribes.’ For reasons already given, we regard this act, in general, as not obnoxious to constitutional objection, * * * ” Mr. Sutherland, in his work on Constitutional Construction, uses this language: “If an act is adopted by the legislature as a law, and, pursuant to its provision, it is submitted to the people, and on their expression of approval or disapproval as a fact or event the act, by its terms, does or does not take effect, the only question is whether the legislature can pass a law to take effect on such a contingency. The authorities would seem now to have established the doctrine, though not universally, that the result of a popular vote is a contingency on which laws may be enacted to take effect.” Mr. Cooley, in his work on Constitutional Limitation (6th Ed., p. 137), says: “A statute may be conditional and its taking effect may be made to depend upon some subsequent event.” The remarks of Coulter, J., in Com. vs Painter, 10 Pa. 214, 216 , are peculiarly applicable to this case, and are in *330 part as follows: “A strong illustration of the faculty of the legislative -power in this respect may be found in the act of congress of the 9th of July, 1846, submitting the question of the retrocession of the county of Alexandria, in the District of Columbia, to the State of Virginia, to a vote of the qualified electors of that county. Virginia had previously enacted a law signifying her willingness to take back the county whenever the same should be receded by the congress of the United States. Congress enacted the law of the 9th of July, 1846, submitting the question to the qualified electors, and providing the machinery for the eléction, and enacting that, if a majority of the electors shall be against accepting the provisions of the act, it shall be void and of no effect, but, if a majority of votes shall be in favor of accepting, then it shall be in full force, and in that event it shall be the duty of the President to inform the Governor of Virginia of the result of the election, and that the law is consequently in force. Many of the most profound constitutional lawyers in the Union were in congress at that time, and the State of Virginia never hesitated to accept the retrocession because the congress of the United States delegated to the people the decision of the question.” In the case of Bank of Rome vs Village of Rome, 18 N. Y. 38 , it is held that an act of the legislature which by its terms is to take effect immediately, but which confers on certain municipal officers certain powers not to be exercised until the inhabitants of the municipality have approved the act by vote, is constitutional, and is not a delegation of legislative power. See, also, People vs Salomon, 51 Ill. 37, 52-55 ; Clarke vs Rogers, 81 Ky. 43 ; State vs Parker, 26 Vt. 357 ; State vs O’Neill, 24 Wis. 149 . ‘The event or change of circumstances on which a law may be made to take effect must be such as, in the judgment of the legislature, affects the question of the expediency of the law, — an event on'which the expediency of the law in the opinion of the lawmakers depends. On this question of expediency the legislature must exercise its *331 own judgment definitely and finally. When a law is made to take effect upon the happening of such an event, the legislature, in effect, declares the law inexpedient if the event should not happen, but expedient if it should happen. They appeal to no other man or men to judge for them in relation to its present or future expediency. They exercise that power themselves, and then perform the duties which a constitution imposes upon them.” Cooley, Const. Lim. 144.

We have thus very briefly referred to the elaborate arguments of appellants in support of their assignments of error, but, being of the opinion that the judgment of the court below was correct, it is therefore affirmed.