MR. JUSTICE HARLAN delivered the opinion of the court.
This is an original suit in this court by the State of Oklahoma against the Atchison, Topeka and Santa Fe Railway Company, a corporation of Kansas.
The case as made by the allegations of the bill, in connection with acts of Congress and with the constitution and laws of Oklahoma, is substantially as will be now stated.
The treaty of April 30, 1803, between the United States and France, by which the Territory of Louisiana was ceded to the United States, provided that the inhabitants of that Territory should be incorporated into the Union and admitted as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages and immunities of citizens of the United States; in the meantime to be maintained and protected in the free enjoyment of their liberty, property and the religion they profess. Art. III. The State of Oklahoma was formed out of a part of this ceded Territory.
By an act of Congress of July 4, 1884, the Southern Kansas Railway Company of Kansas was empowered to locate, construct, own, equip, operate, use and maintain a railway, telegraph and telephone line through the Indian Territory, over a specified route. The act forbade the company to charge "the inhabitants of said Territory a greater rate to freight than the rate authorized by the laws of the State of Kansas for services or transportation of the same kind" and provided that "passenger rates on said railway shall not exceed three cents per mile." And Congress expressly reserved the right to regulate the charges for freight and passengers on the railway as well as messages on telegraph and telephone lines, "until a State government or governments shall exist in said Territory,
within the limits of which said railway or a part thereof shall be located; and then such State government or governments shall be authorized to fix and regulate the cost of transportation of persons and freights within their respective limits by said railway." Congress also reserved "the right to fix and regulate at all times the cost of such transportation by said railway or said company whenever such transportation shall extend from one State into another, or shall extend into more than one State: Provided, however, That the rate of such transportation of passengers, local or interstate, shall not exceed the rate above expressed." §§ 1, 4, c. 179, 23 Stat. 73, 74.
The above grant was accepted by the Southern Kansas Railway Company, and the road now controlled by the appellee, the Atchison, Tokepa and Santa Fe Railway Company, in Oklahoma, is operated under that grant. The bill alleged "that ever since the defendant company took over the operation of said line of railway under said grant it had continuously violated the above condition, in that it has charged the inhabitants of said Territory a greater rate of freight than that authorized by the laws of Kansas for services or transportation of the same kind;" and that the company's tariffs of freight charges show in detail said excessive charges. After setting forth the rates charged in Oklahoma and Kansas, respectively, for carrying, for the same distances, lime, cement, plaster, brick, crude oil and refined oil, the bill proceeds: "That the State of Oklahoma at this time has about two million inhabitants, is developing and building towns, villages and individual farmhouses, and that lime, cement, plaster, brick and stone are very essential to its growth; that at this time in the State of Oklahoma there are very large and extensive petroleum oil wells, and the manufacture or refining of the same is an industry continually growing in said State; that the transportation rates on crude and refined oil, lime, cement, plaster, brick and stone are very
important and essential to the development of said State; and, that the violation by said respondent of the said conditions of said grant is a menace to the future of said State." The State further alleged that if the defendant was permitted further to operate the railroad in violation of the condition of the grant it would be a hindrance to the growth of the State, as well as an injury to the property rights of its inhabitants.
The relief asked was that the grant contained in the above act of Congress be canceled and the property granted by its confirmed and decreed to be in the State of Oklahoma as cestui que trust; that the defendant be perpetually enjoined and restrained, and, pending the determination of this action, be enjoined and restrained from charging the inhabitants of the State of Oklahoma a greater rate of freight than that authorized by the laws of Kansas for services or transportation of the same kind, and from charging "for lime, cement, plaster, brick, stone, crude and refined oil, the rates specified" in its tariff in so far as the same are greater than those authorized for like transportation by the laws of Kansas until the determination of this cause; and that for the continual violation of the terms of the grant it be perpetually enjoined and restrained from operating a railroad in the state of Oklahoma. The bill also contains a prayer for such further or different relief as may be required by the nature of the case and be agreeable to equity and good conscience.
The railroad company filed a demurrer upon the ground that the bill did not show that the State was entitled to the relief asked nor set forth any controversy between the State and the ...