Frantz v. Autry

STATEMENT OF FACTS. On June 16, 1906, the congress of the United States passed an act entitled "An Act to Enable the People of Oklahoma and of the Indian Territory to Form a Constitution and State Government and be Admitted into the Union on an equal footing with the Original States," U.S. Stats. L. 59th Congress, chap. 3335.

Under and in conformity with the provisions of this act, members of the constitutional convention were elected, and the convention was duly organized, W. H. Murray being elected its president and John M. Young its secretary.

Thereupon the convention proceeded to the forming of a constitution and state government, and an ordinance for the submission of the same to the qualified voters of the proposed state of Oklahoma for ratification or rejection, August 6, 1907, being the date fixed by said ordinance for the holding of such election, which ordinance also provided for the election of all state, district, county, and township officers, including the members of the legislature and five representatives to congress.

It was also provided that within twenty days after the adoption of such constitution and ordinance by the constitutional convention, which was done on April 22, 1907, the governor of Oklahoma should issue a proclamation calling an election for the sixth day of August, 1907, in the manner prescribed by said ordinance; and that if the governor should fail or neglect to call such election, then the president of the constitutional convention was authorized to issue such proclamation.

Woods and Woodward counties are organized and existing counties of the Territory of Oklahoma, and have been such since the opening of the Cherokee Outlet to settlement in 1893, each of said counties having a full complement of county, township, and city officers. It is proposed by the constitutional convention by one of the provisions of the constitution, to divide the territory which has heretofore composed Woods county into three parts, a portion of the eastern part of said county being designated and established as Alfalfa county, a portion of the southern part as Major county, and the remainder of said county of Woods, together with several congressional townships taken from Woodward county, is designate as Woods county. This action of the convention provides for the establishment of two entirely new counties, to wit, Alfalfa and Major, which do not, at the present time, exist as counties in the Territory of Oklahoma.

By the terms and provisions of the election ordinance, three persons are named and appointed as county commissioners, and one person as county clerk, for each of said Alfalfa and Major counties. The counties are divided into municipal townships and commissioners' districts, to conform to such divisions in the other counties of Oklahoma, and it is further provided in said ordinance that:

"Said county commissioners shall on or before the 8th day of June, A.D. 1907, divide or designate the townships of their respective counties into election precincts and establish the boundaries of the same, and shall designate a polling place in each precinct, and appoint all necessary inspectors of election in the several precincts, whose duties shall be the same as inspectors of election under the laws of the Territory of Oklahoma, and shall also perform all other duties required to be done or performed by the boards of county commissioners pertaining to elections under the laws of the Territory of Oklahoma for elections therein, and shall perform all other duties or acts necessary to the conduct of said elections."

This action was commenced in the district court of Woods county by G. E. Autry, a taxpayer and member of the board of county commissioners of said county, against Frank Frantz, governor of Oklahoma, and W. H. Murray, president of the constitutional convention, John M. Young, secretary thereof, and the other defendants as the said designated county commissioners and county clerks of the counties of Alfalfa and Major, to enjoin the said Frank Frantz, W. H. Murray, and John M. Young from issuing or publishing any proclamation in which said proclamation it is proposed to submit to the electors of the proposed state of Oklahoma, either as a part of the proposed constitution or as a separate ordinance, any clause or provision dividing or purporting to divide Woods county, or changing or in anywise interfering with any township or precinct therein, and to enjoin and restrain the said C. I. Overstreet, C. H. Chowning, C. M. Delzell, M. R. Mansfield, Charles Bowman, J. C. Major, I. J. Corwin and Charles B. Powell from in anywise interfering with or usurping or attempting to usurp any of the duties of the county commissioners or county clerk, or any or either of them, of the county of Woods, in or about the said proposed election or any of the preparations therefor, at or in any part of the territory of the county of Woods as now described and existing, and from in anywise acting or attempting to act in any capacity or to any extent in any election to be held in the said pretended counties of Alfalfa and Major, or either of them.

In the absence of the district judge from the county, application was presented to the probate judge of Woods county, and a temporary order of injunction was granted as prayed for in the plaintiff's petition.

Defendants in the court below, appellants here, interposed a demurrer to the petition, for and upon the grounds that the plaintiff had no legal capacity to sue; that the court had no jurisdiction of the subject-matter of the action; and that the petition did not state facts sufficient to constitute a cause of action. At the same time a motion to dissolve the temporary injunction was filed, for the reasons and upon the grounds above stated, and in addition thereto alleging that the defendants and each of them are only attempting to perform those acts and duties legally imposed upon them by the ordinance of the constitutional convention, and that the convention organized under the laws of congress has legal power and authority to provide by ordinance for the performance of the duties which are imposed upon them.

Upon the presentation and hearing of the demurrer and the motion to dissolve the temporary injunction, the court overruled the same, and held: That the plaintiff had the legal capacity, as a citizen and taxpayer, to maintain this action; that the constitutional convention had no powers conferred upon it, except such powers as are expressly conferred upon it by the enabling act, and such powers as are incidentally necessary to carry into effect the objects and purposes of such act; and denied the power of the convention to divide Woods county, and create new counties thereof, and held that the convention in that respect, acted beyond its express or implied powers; and further held that the convention had no power to provide for the election of county or township officers at the time the constitution is submitted to the voters of the proposed state of Oklahoma for their ratification or rejection.

The defendants thereupon filed a general denial, and the cause was submitted to the court on an agreed statement of facts practically as above stated, and the court thereupon rendered the following final judgment in said cause:

"Now on this 8th day of May, 1907, the parties to the above-entitled cause appeared in open court, by their respective attorneys, and said cause was presented to the court upon the motion of the defendants to dissolve, vacate and set aside the temporary injunction herein, and upon the demurrer to the plaintiff's petition.

"Said cause was duly argued and fully presented and by the court taken under advisement until the 13th day of May, 1907.

"Thereupon, on the 13th day of May, 1907, the parties all appeared by their respective counsel as heretofore, and the court, being duly advised in the premises, finds that the said motion to dissolve the temporary injunction should be overruled, and also that the demurrers presented to the plaintiff's petition should each be overruled; to each and all of which rulings the defendants and each of them duly excepted.

"Thereupon, by leave of court, the defendants filed their answer herein and the plaintiff filed and presented his motion to strike out the second paragraph of said answer, which motion being duly presented, was by the court overruled; to which the plaintiff excepted.

"Thereupon said cause was duly presented and submitted to the court for final determination and judgment upon the agreed statement of facts and the evidence offered, and upon such submission the court, after due consideration, finds all of the issues in favor of the plaintiff and against the defendants and each of them; to which the defendants and each of them duly excepted.

"It is, therefore, by the court considered, ordered and adjudged that the demurrers of the defendants and each of them separately be, and the same are hereby overruled; to which the defendants and each of them duly except.

"It is further considered, ordered and adjudged by the court that the motions of the defendants and each of them separately, to vacate and set aside the temporary injunction heretofore granted be, and the same is by the court hereby overruled; to which the defendants and each of them separately duly except.

"It is further by the court considered, ordered and adjudged that the temporary injunction heretofore granted herein be and the same is hereby made perpetual, and that the defendants Frank Frantz, W. H. Murray and John M. Young, be and they are hereby enjoined and restrained from issuing or publishing any proclamation in or by which said proclamation it is proposed to submit to the electors of the proposed state of Oklahoma, either as a part of the proposed constitution for said state of Oklahoma or as a separate ordinance, any clause, provision or proposition dividing or pretending to divide Woods county, in said Territory of Oklahoma, or changing or pretending to change the lines and boundaries of said county, or making or purporting or pretending to make or describe or bound any new county or counties out of any part of the present territory of the said Woods county, or changing or in anywise, interfering with the said county or the lines thereof or any townships or precincts therein, or any or either of the lines of the said townships or precincts; and enjoining and restraining the said C. I. Overstreet, C. H. Chowning, C. M. Delzell, M. R. Mansfield, Charles Bowman, J. C. Major, I. J. Corwin and Charles B. Powell from in anywise interfering with any of the duties of the county commissioners or county clerk, or any or either thereof, of the said county of Woods, in or about the election proposed to be held in said county on the sixth day of August, 1907, and from in anywise interfering with the duties of the said county commissioners or county clerk of said county of Woods, as the same is now described and exists, in any of the preparations of any kind or character for said election, and enjoining and restraining them from acting or attempting to act in any capacity or to any extent in any election to be held in the pretended counties of Alfalfa or Major, or either thereof, and that the defendants pay the costs herein, taxed at __________ dollars; to all and each part of which the defendants and each of them duly except.

"Thereupon the defendants and each of them separately present their motion for a new trial of said cause; which motion is by the court, after due consideration overruled; to which the defendants and each of them duly except.

"Thereupon, on application of the defendants and each of them, for good cause shown, the court extends the time for making and serving case made herein, and the defendants are given ten days from this date in which to make and serve case made for the supreme court, and the plaintiff is given three days after service of said case made in which to suggest amendments thereto, said case made to be settled on two days' notice in writing."

Upon the record defendants bring the case to this court for review of the said judgment.

A certified copy of the election ordinance, as incorporated in the record, is hereby made a part of this statement of facts, and is as follows, to wit:

"ELECTION ORDINANCE "An Ordinance providing for an election at which the proposed constitution for the proposed state of Oklahoma shall be submitted to the people thereof for ratification or rejection, and submitting separately to the people of the proposed state of Oklahoma the proposed prohibition article making substantially the terms of the enabling act uniformly applicable to the entire state for ratification or rejection, and for the election of certain state, district, county and township officers provided for by said proposed constitution, and for the election of members of the legislature of said proposed state of Oklahoma, and five representatives to congress.

"BE IT ORDAINED, By the convention assembled to form a constitution and state government for the proposed state of Oklahoma:

"Section 1, That in compliance with an act of the congress of the United States of America, entitled, 'An act to enable the People of Oklahoma and of the Indian Territory to form a Constitution and State Government and be admitted into the Union on an equal footing with the Original States; and to enable the people of New Mexico and of Arizona to form a Constitution and State government and be admitted into the Union on an equal footing with the Original States:' approved June 16, 1906, hereinafter mentioned and referred to as the enabling act, and by virtue thereof, an election is hereby called and shall be held on the sixth day of August, in the year of our Lord, one thousand nine hundred and seven in all the voting precincts at said time, in the proposed state of Oklahoma, for the purpose of submitting to the people thereof the question of the ratification or rejection of the constitution framed and adopted by this convention for said proposed state of Oklahoma, and for the adoption or rejection of all questions therewith separately submitted, and at which election the qualified voters of said proposed state shall vote directly for or against the proposed constitution, and for or against any provisions separately submitted. Said election shall, in all respects, be held and conducted in the manner required by the laws of the Territory of Oklahoma for election therein, when not in conflict with the enabling act, and as supplemented by this ordinance, and the returns of said election shall be made to the secretary of the Territory of Oklahoma. who, with the chief justice thereof, and the senior judge of the United States court of appeals for the Indian Territory, shall canvass the same, and if the majority of the legal votes cast on that question shall be for the constitution, the governor of Oklahoma Territory and the judge senior in service of the United States court of appeals for the Indian Territory shall certify the results to the President of the United States, together with the statement of the votes cast thereon, and upon separate articles or propositions, and a copy of said constitution articles, propositions and ordinances, and in all respects comply with the provisions of said enabling act.

"Sec. 2. On the same day of the election for the ratification or rejection of said constitution, there shall be held by the qualified voters for the proposed state, in accordance with the election laws of the Territory of Oklahoma when not in conflict with the enabling act and as supplemented by this ordinance, an election for officers for a full state government, including all the elective state, district, county and township officers, provided for by the provisions of said constitution, members of the legislature and five representatives to congress, and an election is hereby called for said day and for such purposes. The ballots used in voting for said officers shall be prepared, printed, furnished and distributed as required by the laws of the Territory of Oklahoma for elections therein. The returns of said election shall be made as in this ordinance provided.

"In the counties of Beaver, Blaine, Caddo, Canadian, Cleveland, Custer, Comanche, Dewey, Garfield, Grant, Greer, Kay, Kingfisher, Kiowa, Lincoln, Logan, Noble, Oklahoma, Pawnee, Payne, Pottawatomie, Roger Mills, Washita, Woods, and Woodward, as defined and described in said constitution, said elections shall be held and conducted by the local authorities in their respective counties and voting precincts, in the same manner as now required by the laws of the Territory of Oklahoma for elections therein.

"In the counties of Beaver, Caddo, Comanche, Greer, Payne, Roger Mills and Woodward the local authorities in said respective counties, and the voting precincts therein, shall exercise their functions and perform their duties as such election officers only within the limits of said counties as defined and described in the constitution.

"In the county of Noble, the local authorities, in the exercise of their functions and the performance of their duties as election officers, shall exercise and extend the same to the limits of said county as defined by the constitution.

"Sec. 3. In the counties of Adair, Alfalfa, Atoka, Beckham, Bryan, Carter, Cherokee, Choctaw, Cimmarron, Coal, Craig, Creek, Delaware, Ellis, Garver, Grady, Harper, Hughes, Haskell, Jackson, Jefferson, Johnston, Latimer, LeFlore, Love, Major, Murray, Muskogee, Mayes, Marshall, McClain, McCurtain, McIntosh, Nowata, Okfuskee, Okmulgee, Osage, Ottawa, Pittsburg, Pontotoc, Pushmataha, Rogers, Seminole, Sequoyah, Stephens, Texas, Tillman, Tulsa, Wagoner, and Washington, the local officers and authorities provided for in this ordinance, shall exercise all the functions and perform all the duties within the limits of such counties, townships and voting precincts in the same manner as is now required by the laws of the Territory of Oklahoma for elections therein.

"Sec. 4. That the counties hereinafter named be and they are hereby divided into the following described and numbered commissioners' districts and the following described and numbered or named municipal townships:

"Sec. 5. Any board of county commissioners or a majority of such board, shall have the power at any time prior to the first day of June, Anno Domini, nineteen hundred and seven, to change the boundaries of any municipal township or commissioners district, fixed by the ordinance, and it is especially provided that the boundaries of such township and commissioner's district, after August 6th, nineteen hundred and seven, may be changed in the manner as provided by the laws of the Territory of Oklahoma for the changing of such boundaries: Provided, such changes of boundary lines as to municipal townships and commissioner's districts, if made prior to June 1st, A.D. nineteen hundred and seven, (and no change as to boundaries whatever shall be make during the time intervening between the first day of June, A.D. nineteen hundred and seven and the sixth day of August, A.D. nineteen hundred and seven) shall not operate to change any polling places or to destroy any voting precinct.

"Sec. 6. In each of the counties of Greer, Beaver, Woods, Woodward, and Comanche, (And any other county in the proposed state similarly situated) as defined and described in this constitution, on or before the sixth day of June, A.D. nineteen hundred and seven, the acting board of county commissioners therein or a majority thereof, shall subdivide such county or counties into commissioners districts and townships, and fix election precincts, designate polling places, necessary for the purpose of the election herein provided for. And should such commissioners fail to comply with the provisions of this section by said date, Wm. H. Murray, as president of this convention, shall within five days thereafter, appoint three qualified electors in each of such counties not more than two of whom shall belong to any one political party, to divide such county or counties into commissioners districts and townships, and fix election precincts, and designate polling places for such purpose.

"Sec. 7. Said county commissioners shall on or before the eighth day of June, A.D. nineteen hundred and seven, divide or designate the townships of their respective counties into election precincts and establish the boundaries of the same, and shall designate a polling place in each precinct, and appoint all necessary inspectors of election in the several precincts, whose duties shall be the same as inspectors of election under the laws of the Territory of Oklahoma, and shall also perform all other duties required to be done or performed by the boards of county commissioners pertaining to elections under the laws of the Territory of Oklahoma for elections therein, and shall perform all the duties or acts necessary to the conduct of said board.

"Sec. 8. That the election laws of the Territory of Oklahoma now in force, as far as applicable and not in conflict with the enabling act, including the penal laws of said territory relating to election and illegal voting, are hereby extended and put in force throughout the proposed state of Oklahoma until the legislature of said proposed state shall otherwise provide, and until all persons offending against said laws in the elections aforesaid, shall have been dealt with in the manner therein provided, and the courts of said state shall have power to enforce said laws in the same manner as other criminal laws of said state.

"Sec. 9. On the Friday following the election provided for in this ordinance, the county clerk and the commissioners of each county of said proposed state, or a majority of said commissioners, shall meet at the office of said clerk at ten o'clock A. M. of said day, and shall proceed to canvass the several returns which have been made to that office and determine the persons who have received the greatest number of votes in the county or the several county, township, district and state officers, members of the legislature and representatives to congress, and such findings shall be reduced to writing and signed by said commissioners and attested by the clerk and shall be annexed to the abstract given for such officers. If any two or more persons have an equal number of votes for the same office and a higher number than any other person, the commissioners aforesaid shall proceed to determine by lot which of the two candidates shall be elected. As soon as the commissioners have determined the person who has received the highest number of votes for any office, the county clerk shall make out abstracts of the votes in the following manner: First, the abstract of the votes for state and district officers and members of the legislature on one sheet; Second, the abstract of votes for representative to congress, on one sheet; and third, the abstract of votes for county and township officers on one sheet; and fourth an abstract of the votes cast for or against the proposed constitution and for or against articles separately submitted, which abstracts being certified and signed by the county clerk shall be deposited in his office and certified copies of abstracts for state and district officers, members of the legislature and representatives to congress, shall be placed in separate envelopes, endorsed and directed to the secretary of the Territory of Oklahoma and forwarded immediately by mail. The failure of the clerk to affix his seal to any such certificate shall not invalidate the returns. And said commissioners of each county in said proposed state or a majority thereof shall, at said time and place, also proceed to canvass the returns which have been made to the office of the county clerk of the election held to ratify or reject the constitution or any provision separately submitted, and reduce the result of said canvass to writting, which shall be signed by the said commissioners and attested by the clerk, and the clerk shall make an abstract of the votes cast for or against the ratification of the said proposed constitution, on one sheet and for or against any provision separately submitted, on one sheet which abstract being signed and certified by the county clerk shall be deposited in his office and certified copies thereof, under his official seal, shall be placed in a separate envelope, endorsed and directed to the secretary of Oklahoma, and forwarded immediately by mail.

"The said county clerk shall immediately make out in pursuance of the determination of the said county commissioners, a certificate of election for any person receiving the highest number of votes for any office or in case of a tie who have been decided by lot, to have been elected and deliver the same to the person entitled thereto upon his making application therefor.

"The Governor of the Territory of Oklahoma, the secretary, the auditor, treasurer and attorney general of said territory, or any three of them shall constitute the state canvassing board for the proposed state of Oklahoma. The secretary of the Territory of Oklahoma upon the receipt of the certified abstracts of the votes given in the several counties, directed to be sent to him, shall proceed to open the same and shall record the same in a suitable book to be kept for that purpose, and shall file and carefully preserve them in his office together with the original envelopes in which they were enclosed. If from any county no such abstract of votes shall have been received within ten days after the election aforesaid by the secretary of the Territory of Oklahoma, he shall dispatch a special messenger to obtain a copy of same from the county clerk of such county, and such clerk shall immediately on demand of said messenger make out and deliver to him the copy required, which copy of the abstract of votes aforesaid, the messenger shall deliver to the secretary of the Territory of Oklahoma without delay; the expense of said messenger to be paid by the county clerk failing to make such return.

"For the purpose of canvassing the result of the election the state board of canvassers for the proposed state of Oklahoma shall meet at the office of the secretary of the Territory of Oklahoma, within thirty days after said election, where they shall open the certified abstracts on file in the office of the secretary of the Territory of Oklahoma and proceed to examine and make statements of the whole number of votes given or cast at said election for state and district officers and members of the legislature and representatives to Congress which statement shall show the names of the persons to whom such votes shall have been given for each of the said officers and the whole number given to each distinguishing the several districts and counties in which they are given. They shall certify said statements to be correct and shall subscribe their names thereto and shall determine what persons shall have been by the greatest number of votes duly elected to such offices, and shall endorse and subscribe on each statement a certificate of election and determination and deliver the same to the secretary of the Territory of Oklahoma.

"If any two or more persons have an equal number of votes for members of the legislature or representatives to congress or for any state or district office the said canvassing board shall proceed to determine by lot, in the presence of the candidates, which of the two candidates shall be elected. Reasonable notice shall be given to said candidate of the time when such elections shall be determined, and if such candidates, or either of them, fail to appear, in accordance with such notice, then the board of canvassers shall proceed to determine such election in the absence of the candidates.

"The secretary of the Territory of Oklahoma shall record in his office in a book to be kept by him for that purpose. each certified statement of determination as made by such board of canvassers, and shall without delay make out and transmit to each of the persons thereby declared to be elected, a certificate of his election certified by him under his seal of office, and he shall also forthwith cause a copy of such certified statement of determination to be published in a newspaper published at the capital.

"Sec. 10. The secretary and the chief justice of the Territory of Oklahoma, and the senior judge of the United State court of appeals for the Indian Territory shall within thirty days after the election herein provided for, canvass the returns of said election to ratify or reject the constitution or any provision separately submitted.

"Sec. 11. The canvass and returns of said election for the ratification or rejection of the constitution, and propositions submitted, and for all officers authorized by the constitution, except as otherwise provided in the enabling act and the supplementary provisions of this ordinance shall be made in accordance with the election laws of the Territory of Oklahoma.

"Sec. 12. Whenever a vacancy occurs in the office of county commissioner provided for by this ordinance such vacancy shall be filled by appointment by the governor of the Territory of Oklahoma within three days from the date that he is notified of such vacancy, such notice is to be given by the county clerk, and where the governor fails to fill such vacancy within said time, said vacancy shall be filled by appointment by Wm. H. Murray as president of the constitutional convention: Provided, however, that if the vacancy is caused by death or resignation, the person appointed to fill the vacancy shall be appointed from the same political party to which such officer belonged, and he shall serve as if he had been originally named by this ordinance.

"Sec. 13. Wherever a vacancy occurs in the office of county clerk, provided for in this ordinance, such vacancy shall be filled by appointment by the board of county commissioners, and where such board of commissioners fail or refuse for three days, to fill such vacancy, the same shall be filled by appointment by Wm. H. Murray as president of the constitutional convention: Provided, however, if the vacancy is cause by death or resignation, the person appointed to fill the vacancy shall be appointed from the same political party to which such officer belonged, and he shall serve as if he had been originally named by this ordinance.

"Sec. 14. All officers appointed and provided for in this ordinance shall, before entering upon the discharge of their duties, take an oath or affirmation to support the constitution and the laws of the United States, the terms of the enabling act, and of this ordinance, and to well and faithfully discharge the duties of their respective offices, and all inspectors, judges and clerks of said election shall take an oath or affirmation in conformity with and as required by the election laws of the Territory of Oklahoma.

"Sec. 15. The governor of the Territory of Oklahoma and two qualified electors by him appointed one from each of the two political parties that cast the largest number of votes in said proposed state in the election of delegates to the constitutional convention, shall constitute a board of election commissioners for the purpose of the election herein provided for. Such appointments shall be made at least thirty days previous to said elections, and if prior to that time the chairman of the central committee of the proposed state, of either of such parties, shall nominate in writing a member of his own party for said appointment, the Governor of the territory shall appoint such nominee. In case of the death, disability or refusal to serve of either appointee, the governor of the territory shall notify the chairman of the central committee of such appointee's political party, and such chairman may, within three days thereafter, recommend a successor, who shall thereupon be appointed: Provided, that if such chairman shall fail to make recommendations of appointment within the time specified, the governor of the Territory of Oklahoma shall make such appointments of his own selection from such political party.

"It shall be the duty of said board to prepare and distribute the ballots, stamps and election supplies for the election of all officers for whom the qualified electors of the proposed state are entitled to vote, for representatives to congress, and all members of the legislature, and all officers provided by the constitution for whom the voters of more than one county are entitled to vote, in compliance with the provisions of said constitution and of the election laws of the Territory of Oklahoma. Said board shall also prepare and distribute ballots, stamps and election supplies for the election for the ratification or rejection of the proposed constitution and for or against any provisions separately submitted. The said board shall perform and exercise such other duties as may be prescribed by the election laws of the Territory of Oklahoma and by this ordinance.

"In event that the governor of the Territory of Oklahoma shall fail or refuse to act or perform the duties aforesaid, such duties shall be exercised and performed by Wm. H. Murray as president of the convention.

"Sec. 16. In each county in the proposed state, the county clerk and two persons by him appointed, one from each of the two political parties that cast the largest number of votes in said proposed state at the election of delegates to the constitutional convention, shall constitute the county board of election commissioners. Said appointments shall be made in all respects as the appointments for the board of election commissioners hereinbefore provided for or required to be made by the governor of the Territory of Oklahoma, except that the privilege of nomination shall belong to the chairman of the county central committee of the two parties aforesaid.

"It shall be the duty of such board to prepare and distribute the ballots and election supplies for all officers to be voted for in such counties or who are to be voted for other than those who are to be voted for by all the electors of the proposed state, and members of the legislature and district officers as hereinbefore provided in compliance with the provisions of this ordinance, and said board shall perform such other duties as provided for by the election laws of the Territory of Oklahoma, and by this ordinance.

"In the event any county clerk shall fail or refuse to perform or discharge any of the duties aforesaid, or be disqualified, the county commissioners shall appoint some one to act as county clerk in the performance of such duties.

"Sec. 17. In the event any of the county commissioners in any county of the proposed state shall fail or refuse or be disqualified to perform any of the duties required by this ordinance or the election laws of the Territory of Oklahoma the governor of the territory shall appoint some one in his stead: Provided, that such appointment shall be made form the same political party as that to which such commissioner belonged.

"In the event the governor of the Territory of Oklahoma shall fail or refuse to make due action thereon, and to make such appointment within three days after he shall be notified of such failure or refusal or disqualification or disability, on the part of such commissioner, such appointment shall be made by Wm. H. Murray as president of this convention.

"Sec. 18. Nominations for all state, district, county and township offices may be made as provided for under the primary election laws of the Territory of Oklahoma, and said election laws, in connection with election laws of the Territory of Oklahoma, be and are as aforesaid hereby put in force and effect throughout the proposed state of Oklahoma: Provided, that in cities and towns of the Indian Territory and the Osage Indian Reservation having a population of twenty-five hundred inhabitants or more as shown by any official census taken either under the auspices of the United States government or such municipal corporations, the qualified electors therein shall register up to the 18th day of May, A.D., 1907, in order to be entitled to vote therein at any primary election held on or after the 23rd day of May, A.D. 1907, and prior to August sixth A.D. 1907, And Provided Further, that any person having registered at the election of delegates to the constitutional convention, or any municipal election during 1907, shall not be required to further register in order to vote at such primary election or elections; And Provided Further, that any person who shall be prevented from registering by reason of sickness or necessary absence from such city or town, which fact may be shown as provided by the laws of Oklahoma Territory, or shall be prevented by the clerk or recorder of such city or town failing or refusing to register then such elector shall be allowed to vote at such election.

"Sec. 19. The submission of the proposed constitution for the proposed state of Oklahoma, and the separate provision, to the people of said proposed state, for ratification or rejection, shall be upon the same ballot in the following form:

"SHALL THE CONSTITUTION FOR THE PROPOSED STATE OF OKLAHOMA BE RATIFIED?

" YES.

" NO.

"SHALL THE PROVISION FOR STATE-WIDE PROHIBITION BE ADOPTED?

" YES.

" NO.

"And ballots used in voting for or against the proposed constitution, and for or against any provisions separately submitted shall contain no other matters to be voted on at such election and shall be prepared, printed, furnished and distributed by the board of election commissioners for the proposed state as required by the laws of the Territory of Oklahoma for elections therein, not in conflict with the provisions of the enabling act and as supplemented by this ordinance and shall when voted be deposited in ballot boxes separate from any others used at said election. Said election shall in all respects be held and conducted in the manner required by the laws of the Territory of Oklahoma for elections therein when not in conflict with the provisions of the enabling act, and as supplemented by the provisions of this ordinance, and the returns thereof shall be made as provided by said enabling act as hereinbefore set out.

"Sec. 20. There shall be submitted separately and in the manner herein provided, the separate provision adopted by this convention and referred to as a separate provision for state-wide prohibition, at the same time and on the same ballot, at which said proposed constitution is to be submitted for ratification or rejection, said proposition being as to whether or not the manufacture, sale, barter, giving away or otherwise furnishing intoxicating liquors shall be prohibited in the proposed state for a period of twenty-one years from the date of its admission into the Union, and thereafter until the people of the state shall otherwise provide by amendment of said constitution and proper state legislation, said provision being in words and figures as follows, to wit:

"The manufacture, sale, barter, giving away, or otherwise furnishing, except as hereinafter provided, of intoxicating liquors within this state, or any part thereof, is prohibited for a period of twenty-one years from the date of the admission of this state into the Union, and thereafter until the people of the state shall otherwise provide by amendment of this 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 this state, advertise for sale or solicit the purchase of any such liquors, or who shall ship or in any way convey such liquors from one place within this state to another place therein, except the conveyance of a lawful purchase as herein authorized, shall be punished, on conviction thereof, by fine not less than fifty dollars and by imprisonment not less than thirty days of each offense: Provided, that the legislature may provide by law for one agency under the supervision of the state in each incorporated town of not less than two thousand population in this state; and if there be no incorporated town of two thousand population in any county in this 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 a special tax required of liquor dealers by the United States, and the payment of such special tax by any person within this state shall constitute primafacie 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 writting setting forth the purpose for which the liquor is to be 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 the 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 of not less than one year and one day. Upon the admission of this state into the Union these provisions shall be immediately enforceable in the courts of this state: Provided, that there shall be submitted separately at the same election at which this constitution is submitted for ratification or rejection, and on the same ballot, the foregoing provision, entitled 'Prohibition,' on which ballot shall be printed:

"SHALL THE PROVISION FOR STATE-WIDE PROHIBITION BE ADOPTED ?

" YES.

" NO.

"And, Provided further, that if a majority of the votes cast for and against state-wide prohibition are for statewide prohibition, then said provision entitled 'Prohibition,' shall be and form a part of this constitution and be in full force and effect as such as provided therein; but if a majority of said votes shall be against state wide prohibition, then the provisions of said article shall not form a part of this constitution, and shall be null and void. If a majority of the votes cast for or against said provision are for state wide prohibition, then said provision entitled 'Prohibition' shall be and form a part of the proposed constitution.

"Sec. 21. It shall be the duty of the governor of the Territory of Oklahoma, as such, within twenty days after the date of the adoption of this ordinance, to issue his proclamation giving public notice of the elections herein provided for, and to cause said proclamation to be published for a period of sixty days in some daily newspaper of general circulation within the proposed state of Oklahoma, and in the event of the failure or refusal or disqualification on the part of such governor to act, such proclamation shall be issued and publication caused to be made by Wm. H. Murray as president of this convention, and if he shall fail or refuse or be disqualified from issuing such proclamation, the same shall be issued and caused to be published as aforesaid by John M. Young as secretary of this convention.

"Sec. 22, That the provisions of this ordinance shall apply to the elections to be held and to the officers to be elected on the 6th day of August in the year of our Lord, one thousand nine hundred and seven.

"Sec. 23. In the event the governor of the Territory of Oklahoma should fail or refuse to act as herein provided, and to appoint two qualified electors from each of the political parties that cast the largest number of votes in said proposed state in the election of delegates to the constitutional convention, to constitute a board of election commissioners for the purposes of the elections herein provided for or perform any other duties imposed by law or this ordinance upon him with respect to said elections, such duty shall be performed by Wm. H. Murray as president of this convention in the same manner as would devolve upon the governor, and with the same powers as if he were then and there governor of the Territory of Oklahoma, and in the event said Wm. H. Murray, as president, should fail or refuse to perform such acts and duties as aforesaid such acts and duties shall be performed by John M. Young as secretary of this convention in the same manner and with the same powers as if he were then and there the governor of said territory.

"Sec. 24. In the event there should be any county or counties in said proposed state as defined and described in the constitution, where the same shall not have been divided into commissioner districts by July 6th, 1907, the commissioners for such county shall at said election be elected therefrom at large.

"Sec. 25. No voting precinct in this state shall be established so that it shall be divided by the boundary line of any municipal township, commissioner's district, county or congressional district.

"Sec. 26. Within ten days after the adoption of this ordinance or as soon thereafter as practicable, the county clerk and the county commissioners appointed herein shall meet at the county seat of their respective counties and subscribe the oath required by this ordinance and execute bond for the faithful performance of their duties in the penal sum of one thousand ($1,000) dollars, which bond may be approved by any delegate to the constitutional convention residing in the county or by Wm. H. Murray, as president of this convention.

"Thereupon the board of county commissioners of each of said counties shall procure a suitable book in which the oath and bond aforesaid and all the proceedings shall be entered.

"I hereby certify that the above and foregoing passed after third reading upon roll call, this 22nd day of April, at 4:32 o'clock p.m., Anno Domini, 1907.

"WM. H. MURRAY.

"President of the Constitutional Convention.

"ATTEST "JOHN McLAIN YOUNG.

"Secretary of the Constitutional Convention."

Opinion of the court by In compliance with the power granted in the enabling act, the people of Oklahoma and Indian Territory elected one hundred and twelve delegates, fifty-seven of whom were elected from the Territory of Oklahoma, and fifty-five of whom were elected from the Indian Territory. These delegates were invested with the power and charged with the duty and responsibility of forming a constitution and state government for the proposed state of Oklahoma.

THE FUNDAMENTAL RIGHTS AND POWERS OF THE CONVENTION. The first question for our consideration is: What is a constitutional convention, and what is the nature of its fundamental rights and powers?

It was contended by the plaintiff in the court below, defendant in error here, that the power and authority of the constitutional convention is derived solely from the powers granted in the enabling act, and that every power granted to the convention must be found and expressed therein, except such implied powers as may be necessary to carry into effect the express grant of power; that the power granted by the enabling act embraces no legislative grant; but confers only the powerof a committee to adopt and propose fundamental propositions which upon ratification may become the fundamental law of the state and this was the view of the trial court; and it is earnestly urged in this court by counsel for defendant in error as the true doctrine. In our opinion, this contention is clearly untenable, and cannot be sustained by the authorities.

In a territory the source of all power is congress. But in the formation of a constitution and state government the power emanates from the people. The delegates to the convention were not the agents or representatives of congress, but they were the immediate agents and representatives of the people of the two territories. They derived their power and authority from the people in their sovereign capacity. And this is in harmony with the principles of the Declaration of Independence, which declares that "Governments are instituted among men, deriving their just powers from the consent of the governed," and is in keeping with the doctrine announced by Lincoln when he uttered the immortal words, that this is "A government of the people, by the people, and for the people."

In Benner v. Porter, 9 How. 241, the supreme court of the United States, in speaking of the source of power, with reference to the admission of the Territory of Florida, said:

"The convention being the foundation of all political power, from which flowed that which was embodied in the organic law, were, of course, competent to prescribe the laws and appoint the officers under the constitution, by means whereof the government could be put into immediate operation."

The convention, therefore, was created by the direct action of the people, and in the discharge of its powers, duties, and obligations, it performs one of the highest and most important acts of popular sovereignty. Nor is the contention well founded that the convention possesses no legislative powers, and that it acts in the mere capacity of a committee toadopt and propose fundamental propositions which are to be submitted to a vote of the people for ratification or rejection. The convention has and can exercise plenary powers subject to the limitations: (1) That the constitution shall be republican in form: (2) That it shall not be repugnant to the constitution of the United States and the principles of the Declaration of Independence: (3) That no distinction shall be made on account or race or color: and (4) That the convention shall accept by ordinance irrevocable all the terms and conditions of the enabling act.

It is true that congress has the power to impose conditions upon a territory, as a condition precedent to entitle it to admission as a state. Accordingly, congress placed certain restrictions and limitations upon the convention, which it was required to incorporate into the constitution, and to be ratified by the people. These limitations and restrictions, when ratified by the people, become a part of the fundamental law of the state. When, therefore, congress authorized the people of Oklahoma and Indian Territory to form a constitution and state government and be admitted into the Union on an equal footing with the original states, it meant that it should be admitted on equal terms with the original states. Hence, the enabling act was not a limited or restricted grant, but it was an absolute grant, subject to the constitution of the United States, and the limitations and restrictions imposed in the enabling act as a condition precedent to such admission.

In Permoli v. First Municipality, 3 How. 609, the supreme court of the United States had before it the construction of the act of congress of February 20, 1811, authorizing the people of the Territory of Orleans to form a constitution and state government, and in the course of the opinion the court said:

"By the act of April 8, 1812, Louisiana was admitted according to the mode prescribed by the act of 1811. Congress declared it should be on the conditions and terms contained in the 3rd section of that act, which should be considered, deemed and taken, as fundamental conditions and terms upon which the state was incorporated in the union.

"All congress intended, was to declare in advance to the people of the territory, the fundamental principles their constitution should contain, this was in every way proper under the circumstances; the instrument having been duly formed, and presented, it was for the national legislature to judge whether it contained the proper principles, and to accept it if it did or reject it if it did not. Having accepted the constitution and admitted the states, 'On an equal footing with the original states in all respects whatever,' in express terms, by the act of 1812, congress was concluded from assuming that the instructions contained in the act of 1811 had not been complied with. No fundamental principles could be added by way of amendment, as this would have been making part of the state constitution; if congress could make it in part, it might, in the form of amendment, make it entire."

In Escanaba Co. v. Chicago, 107 U.S. 638, the supreme court of the United States, speaking by Mr. Justice Field, said:

"Although the act of April 18, 1818, c. 67, enabling the people of Illinois Territory to form a constitution and state government, and the resolution of congress of Dec. 3, 1818, declaring the admission of the state in the Union, refer to the principles of the ordinance according to which the constitution was to be formed, its provisions could not control the authority and powers of the state after her admission. Whatever the limitations upon her powers as a government whilst 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."

In Ward v. Race Horse, 163 U.S. 514, which involved the interpretation of a provision of the enabling act of Wyoming, Mr. Justice White, after reviewing the authorities, said:

"The enabling act declares that the state of Wyoming is admitted on equal terms with the other states, and this declaration which is simply an expression of the general rule, which presupposes that states, when admitted into the Union, are endowed with powers and attributes equal in scope to those enjoyed by the states already admitted, repels any presumption that in this particular case congress intended to admit the state of Wyoming with diminished governmental authority."

From these decisions it will be observed that all congress intended was to declare to the people of Oklahoma and Indian Territory the fundamental principles which should be incorporated in the proposed constitution, and when the constitution is formed and a full state government provided, it should be submitted to the people for ratification or rejection, and when approved by the people it is to be submitted to the President of the United States, who is charged by congress with the duty to determine whether the constitution is republican in form, whether it is repugnant to the constitution of the United States and the principles of the Declaration of Independence, and whether the terms and conditions imposed in the enabling act have been complied with.

Judge Story, in his work on the Constitution, vol. 1 (5 ed.), section 338, declares:

"The true view to be taken of our state constitutions is that they are forms of government ordained and established by the people in their original sovereign capacity to promote their own happiness and permanently to secure their rights, property, independence, and common welfare."

Judge Cooley, in his work on Constitutional Limitations, an page 68, in discussing the attributes and objects of a constitution, says:

"In considering state constitutions we must not commit the mistake of supposing that, because individual rights are guarded and protected by them, they must also be considered as owing their origin to them. These instruments measure the powers of the rulers, but they do not measure the rights of the governed. What is a constitution, and what are its objects? It is easier to tell what it is not, than what it is. It is not the beginning of a community, nor the origin of private rights; it is not the fountain of law, nor the incipient state of government; it is not the cause but consequence, of personal and political freedom; it grants no rights to the people, but is the creature of their power, the instrument of their convenience."

In 1894 the state of New York had under consideration the revision of its state constitution. One of the first questions that arose in the convention was the ascertainment of the rights and powers of the convention to pass upon the election and qualifications of one of its members. This question was referred to the judiciary committee, of which committee the Honorable Elihu Root, now secretary of state, and one of the ablest lawyers and statesmen of this country, was chairman. In his report to the convention, he says:

"The convention has been created by the direct action of the people and has been by them vested with the power and charged with the duty to revise and amend the organic law of the state.

"The function with which it is thus charged is a part of the highest and most solemn act of popular sovereignty and in its performance the convention has and can have no superior but the people themselves.

"No court or legislature or executive officer has authority to interfere with the exercise of the powers or the performance of the duties which the people have enjoined upon this, their immediate agent."

And, again, in stating the nature of a constitutional convention, he says:

"A constitutional convention is a legislative body of the highest order. It proceeds by legislative methods. Its acts are legislative acts. Its function is not to execute or interpret laws, but to make them. That the consent of the general body of electors may be necessary to give effect to the ordinances of the convention no more changes their legislative character than the requirement of the governor's consent changes the nature of the action of the senate and assembly."

And, again, in speaking of the importance of the independence of the convention, he uses this language:

"It is far more important that a constitutional convention should possess these safeguards of its independence than it is for an ordinary legislature; because the convention acts are of a more momentous and lasting consequence and because it has to pass upon the power, emoluments and the very existence of the judicial and legislative officers who might otherwise interfere with it. The convention furnishes the only way by which the people can exercise their will, in respect of these officers, and their control over the convention would be wholly incompatible with the free exercise of that will." Proceedings of the New York Constitutional Constitution, 1894, pages 79-80.

Mr. Bryce, in his excellent work on the American Commonwealth, vol. 1, page 436, says:

"A state constitution is really nothing but a law madedirectly by the people voting at the polls upon a draft submitted to them. The people of a state when they so vote act as a primary and constituent assembly, just as if they were all summond to meet in one place like the folk-notes of our Teutonic forefathers, it is only their numbers that prevents them from so meeting in one place, and oblige the vote to be taken in a variety of polling places. Hence the enactment of a constitution is an exercise of direct popular sovereignty to which we find few parallels in modern Europe, though it was familiar enough to the republic of antiquity and has lasted until now in some of the cantons of Switzerland."

In Goodrich v. Moore, 2 Minn. 49, the supreme court of Minnesota declared that a constitutional convention is the highest legislative assembly recognized in law, invested with the power of enacting or framing the supreme law of the state, and in the course of the opinion, Mr. Justice Atwater, speaking for the court, said:

"But even had the legislature intended and attempted to claim and exercise the act of providing a printer for the constitutional convention, it would have been an unauthorized and unwarrantable interference with the rights of that body. The admission of such a right in the legislature would place the convention under its entire control, leaving it without authority even to appoint or elect its own officers, or adopt measures for the transaction of its legitimate business. It would have less power than a town meeting, and be incompetent to perform the objects for which it convened. It would be absurd to suppose a constitutional convention had only such limited authority. It is the highest legislative assemblyrecognized in law, invested with the right of enacting orframing the supreme law of the state. It must have plenary power for this and over all the incidents thereof. The fact that the convention assembled by authority of the legislature renders it in no respect inferior thereto.

In Sproule v. Fredericks, 11 So. 472, the supreme court of Mississippi, in discussing the powers of the convention says:

"It is the highest legislative body known to freemen in a representative government. It is supreme in its sphere. It wields the powers of sovereignty, specially delegated to it, for the purpose and the occasion, by the whole electoral body, for the good of the whole commonwealth. The sole limitation upon its powers is that no change in the form of government shall be done or attempted. The spirit of republicanism must breathe through every part of the framework, but the particular fashioning of the parts of this framework is confided to the wisdom, the faithfulness, and the patriotism of this great convocation, representing the people in their sovereignty. The theorizing of the political essayist and the legal doctrinaire, by which it is sought to be established that the expression of the will of the legislature shall fetter and control the constitution-making body, or, in the absence of such attempted legislative direction, which seeks to teach that the constitutional convention can only prepare the frame of a constitution and recommend it to the people for adoption, will be found to degrade this sovereign body below the level of the lowest tribunal clothed with ordinary legislative powers."

In Loomis v. Jackson, 6 W. Va. 613, in discussing the powers of the constitutional convention, Judge Woods, speaking for the court, on page 708 of the opinion, said:

"I have had no difficulty in reaching the following conclusions upon the constitutional questions presented in this specification, viz:

"First, that a constitutional convention lawfully convened does not derive its powers from the legislature, but from the people:

"Second, that the powers of a constitutional convention are in the nature of sovereign powers:

"Third, that the legislature can neither limit or restrict them in the exercise of these powers."

In the recent case of Montana ex rel. Haire v. Rice,204 U.S. 291, which came up on appeal from the decision of the supreme court of Montana, it was held that:

"In granting lands for educational purposes to Montana, sec 17, of the enabling act of February 22, 1889, 25 Stat. 676, to be held, appropriated, etc., in such manner as the legislature of the state should provide, congress intended to designate, and the act will be so construed, such legislature as should be established by the constitution to be adopted, and which should act as a parliamentary body in subordination to that constitution; and it did not give the management and disposal of such lands to the legislature or its members independently of the methods and limitations prescribed by the constitution of the state."

The facts in this case were substantially as follows: By section 17 of the enabling act for Montana grants were made to the state in the following terms:

"To the state of Montana: For the establishment and maintenance of a school of mines, one hundred thousand acres; for state normal school, one hundred thousand acres; for agricultural colleges, in addition to the grant hereinbefore made for that purpose, fifty thousand acres; for the establishment of a state reform school, fifty thousand acres; for the establishment of a deaf and dumb asylum, fifty thousand acres; for public buildings at the capital of the state, in addition to the grant hereinbefore made for the purpose, one hundred and fifty thousand acres.

"* * * And the lands granted by this section shall be held, appropriated and disposed of exclusively for the purposes herein mentioned, in such manner as the legislatures of the respective states may severally provide."

The constitutional convention of Montana adopted an ordinance designated as "Ordinance No. 1," entitled "Federal Relations," which ordained that "The state hereby accepts the several grants of land from the United States to the state of Montana, * * * upon the terms and conditions therein provided." An act of the legislative assembly of the state of Montana, approved February 2, 1905, authorized and directed the state board of land commissioners to sign and issue interest-bearing bonds to the amount of $75,000, for the principal and interest of which the state of Montana should not be liable, and directed the state treasurer to sell the bonds. Section 7 directed that:

"The moneys derived from the sale of said bonds shall be used to erect, furnish and equip an addition to the present state normal school building at Dillon, Montana, and shall be paid out for such purpose by the state treasurer upon vouchers approved by the executive board of the state normal school, and allowed and ordered paid by the state board of examiners."

Section 12, article XI, of the constitution of the state of Montana is as follows:

"The funds of the state university and all other state institutions of learning, from whatever source accruing, shall forever remain inviolate and sacred to the purpose for which they were dedicated. The various funds shall be respectively invested under such regulations as may be prescribed by law, and shall be guaranteed by the state against loss or diversion. The interest of said invested funds, together with the rents from leased lands or properties, shall be devoted to themaintenance and perpetuation of these respective institutions."

It will thus be seen that by the terms of the enabling act it was provided that the lands granted to the state were for theestablishment and maintenance of a school of mines, and for a state normal school, etc., and that the lands thus granted should "Be held, appropriated and disposed of" exclusively for the purposes therein named, and "In such manner as the legislature of the state may provide." The constitution expressly provided that "The interest of said invested funds, together with the rents from leased lands or properties, shall be devoted to the maintenance and perpetuation of these respective institutions." Notwithstanding the limitations placed upon these lands and funds by the state constitution, the legislature of the state of Montana authorized and directed the state board of land commissioners to issue bonds the proceeds of which were to be used to erect, furnish and equip an addition to a state normal school, upon the theory that the enabling act conferred such power upon the legislature, regardless of the limitations placed upon it by the state constitution.

It was contended in that case, as it is here, that the provisions of the enabling act, in respect to the disposition of these lands and funds controlled over the provisions contained in the constitution. The supreme court of the United States denied this contention, and held that in executing the authority entrusted to it by congress, the legislature must act in subordination to the state constitution. Mr. Justice Moody, in delivering the opinion of the court, on pages 299, 300 uses the following language:

"In support of it the plaintiff in error argues that the grant of all the land by the enabling act was by an ordinance accepted by the state 'Upon the terms and conditions therein provided;' that the legislature of the state was by the last clause of section 17 appointed as agent of the United States, with full power to dispose of the lands in any manner which it deemed fitting, provided only that the lands or their proceeds should be devoted to normal school purposes, and that, therefore, in the execution of this agency the legislature was not and could not be restrained by the provisions of the state constitution. It is vitally necessary to the conclusion reached by these arguments that the enabling act should be interpreted as constituting the legislature, as a body of individuals and not as a parliamentary body, the agent of the United States. But it is not susceptible of such an interpretation. It granted the lands to the state of Montana, and the title to them, when selected, vested in the grantee. In the same act the people of the territory, about to become a state, were authorized to choose delegates to a convention charged with the duty of forming a constitution and state government. It was contemplated by congress that the convention would create the legislature, determine its place in the state government, its relations to the other governmental agencies, its methods of procedure, and, in accordance with the universal practice of the states, limit its powers. It is not to be supposed that congress intended that the authority conferred by section 17 of the enabling act upon the legislature should be exercised by mere ascertainment of its will, perhaps when not in stated session, or by a majority of the votes of the two houses, sitting together, or without the assent of the executive, or independently of the methods and limitations upon its powers prescribed by its creator. On the contrary, the natural inference is that congress, in designating the legislature as the agency to deal with the lands, intended such a legislature as would be established by the constitution of the state. It was to a legislature whose powers were certain to be limited by the organic law, to a legislature as a parliamentary body, acting within its lawful powers, and by parliamentary methods, and not to the collection of individuals, who for the time being might happen to be members of that body that the authority over these lands was given by the enabling act. It follows, therefore, that in executing the authority entrusted to it by congress, the legislature must act in subordination to the state constitution, and we think that in so holding the supreme court of the state committed no error."

But counsel for defendant in error rely upon the case ofWells v. Bain, 75 Pa. St. 39, in support of their contention that the convention possesses only such powers as are expressly granted in the enabling act, and such implied or incidental powers as are necessary to carry into effect the express powers thus granted by congress, and that if the convention exceeds such powers, then the powers of the courts can be invoked to enjoin or restrain it from submitting such propositions in the constitution or ordinance to a vote of the people. In this case, it appears that an act of the legislature authorized, in pursuance of a vote of the people, the election of delegates to a convention to revise and amend the constitution, and directed the convention to submit the proposed amendments to the voters of the state at such time and "In such manner as the convention shall prescribe," but also directed that the election to decide for or against the amendments "Shall be conducted as the general elections of this commonwealth are now by law conducted." By the then existing election laws, the elections were conducted by inspectors. The convention, by an ordinance, appointed certain persons to have direction of the election on amendments, to fill vacancies, to appoint judges and inspectors, etc. And it was there held that the part of the ordinance relating to the election was in conflict with the election laws enacted by the state legislature, and was therefore void. But in this case there was no attempt to enjoin the submission of the constitution, or any of its provisions, to a vote of the people; nor was there any attempt to restrain or enjoin the convention, its officers or delegates, from discharging their functions. But the action was instituted after the convention had completed its labors, and it had for its object the sole purpose of enjoining that portion of the ordinance which attempted to create election officers which were unauthorized, and who were attempting to supplant or supersede the officers who were charged, as it was there contended and held, with the duty of conducting such election by virtue of an act of the legislature, which provided for the election of delegates to amend and revise the constitution. This decision seems to be in irreconcilable conflict with the decisions of the highest courts of the land. The convention was authorized by a direct vote of the people to revise and amend the state constitution. The power of the convention to revise and amend the constitution was not a delegated power derived from the legislature, but it derived its power directly from the people. And in the performance of the powers and duties and obligations resting upon the convention, it could have no superior but the people themselves. Manifestly, to hold otherwise would be to degrade the powers of the convention below the level of the lowest legislative or municipal body. Clearly, such is not the office, functions, and powers of the constitutional convention. This decision was severely criticised at the time by the ablest members of the bar of the state, and was repudiated by the constitutional convention of New York of 1894, which was composed of some of the greatest lawyers and most eminent statesmen of our times.

THE COURTS HAVE NO POWER TO RESTRAIN OR ENJOIN THE CONVENTION. The convention being vested with legislative powers and functions its acts and proceedings, in the performance of such duties, are not subject to judicial control or interference. The power of the courts to enjoin or restrain the convention, its officers or delegates, from exercising the rights, powers, and duties confided to them must, therefore, be denied. Nor have the courts the power or jurisdiction to enjoin or restrain the submission of the constitution or any proposition contained therein to a vote of the people. This conclusion it seems to us, is self-evident. No case has been cited, and we are unable, by the most diligent research, to find a case, from the foundation of the government down to the present time where any court has ever restrained or enjoined a constitutional convention, its officers or members: Nor has any case been cited or found where the constitution, or any of the propositions contained therein, was ever enjoined by any court prior to the time the constitution was adopted. If, therefore, the convention, or its officers and delegates, could be enjoined by the courts from exercising legislative functions, such as the creating and defining of counties in Oklahoma or Indian Territory, or on defining and describing the boundaries of the counties in the proposed state, and which in effect would divide or change the counties as they now exist in the Territory of Oklahoma, and if this part of the constitution could be restrained and enjoined from being submitted to a vote of the people, then we can perceive of no sound reason why any other portion of the constitution could not be attacked in the courts and its constitutionality determined in advance of the submission of such question or proposition to the vote of the people. To concede the power of the courts to enjoin and restrain the convention in the exercise of its powers in incorporating any legislative matter that it may deem appropriate therein, on the ground that it is unconstitutional and void, in advance of the submission of the same to the people for ratification or rejection, and prior to the time that it is approved by the President, would, it seems to us, lead to interminable litigation, and the inevitable result would be to tie the hands of the convention and indefinitely postpone the submission of the constitution or any of its provisions, to a vote of the people. Fortunately, such is not the law. If the constitution, or any of its provisions, is repugnant to the constitution of the United States or any of the terms and conditions of the enabling act, these questions can be litigated and determined at the appropriate time. The moment the constitution is ratified by the people, and approved by the President of the United States, then every section, clause, and provision therein becomes subject to judicial cognizance. That the courts will not interfere by injunction, or otherwise, with the exercise of legislative or political functions, is well settled by a long line of adjudicated cases which we will review at some length, owing to the great importance of the questions involved in this case.

As early as 1831 this question was before the supreme court of the United States in a suit brought by the Cherokee Nation against the state of Georgia, 5 Pet. 1. This was a bill in equity brought by the Cherokee Nation, praying an injunction to restrain the state of Georgia from the execution of certain laws of that state, which it was alleged would annihilate the Cherokee Nation as a political society, and seize for the use of Georgia the lands of the nation which had been assured to them by the United States, in solemn treaties repeatedly made and still in force. The opinion of the court in this case was delivered by Mr. Chief Justice Marshall, and in the course of the opinion, on page 18, the learned chief justice says:

"A serious additional objection exists to the jurisdiction of the court. Is the matter of the bill the proper subject for judicial inquiry and decision? It seeks to restrain a state from the forcible exercise of legislative power over a neighboring people, asserting their independence; their right to which the state denies. On several of the matters alleged in the bill, for example, on the laws making it criminal to exercise the usual powers of self-government in their own country, by the Cherokee Nation, this court cannot interpose; at least, in the form in which these matters are presented.

"That part of the bill which respects the land occupied by the Indians, and prays the aid of the court to protect their possession, may be more doubtful. The mere question of right might, perhaps, be decided by this court, in a proper case, with proper parties. But the court is asked to do more than decide on the title. The bill required us to control the legislature of Georgia, and to restrain the exertion of its physical force. The propriety of such an interposition by the court may be well questioned; it savors too much of the exercise of political power, to be within the proper province of the judicial department. But the opinion on the point respecting parties makes it unnecessary to decide this question.

"If it be true, that the Cherokee Nation have rights, this is not the tribunal in which those rights are to be asserted. If it be true, that wrongs have been inflicted, and that still greater are to be apprehended, this is not the tribunal which can redress the past or prevent the future. The motion for an injunction is denied."

In the case of The State of Mississippi v. Johnson, 4 Wall. 475, the supreme court of the United States was asked to restrain and enjoin Andrew Johnson, then President of the United States, and a citizen of Tennessee, from enforcing the acts of congress of March 2 and 23 1867, commonly known as the "Reconstruction Acts" on the ground that such acts were unconstitutional and void. Chief Justice Chase, speaking for the court, in the course of the opinion said:

"Congress is the legislative department of the government; the President is the executive department. Neither can be restrained in its action by the judicial department; though the acts of both, when performed, are, in proper cases subject to its cognizance."

And, again, he says:

"It is true that a state may file an original bill in this court. And it may be true, in some cases, that such a bill may be filed against the United States. But we are fully satisfied that this court has no jurisdiction of a bill to enjoin the President in the performance of his official duties; and that no such bill ought to be received by us. * * * * * The motion for leave to file the bill is, therefore, denied."

In the case of State of Georgia v. Stanton, 6 Wall. 50, the supreme court of the United States had before it for decision a bill in equity, filed by the state of Georgia, seeking to enjoin the secretary of war, and other officers who represented the executive authority of the United States, from carrying into execution certain acts of congress, on the ground that such execution would annul and totally abolish the existing state government of the state and establish another and different one in its place. In other words, would overthrow and destroy the corporate existence of the state by depriving it of all the means and instrumentalities whereby its existence might, and otherwise would, be maintained. It was held that the bill called for a judgment upon a political question, and would therefore not be entertained by the court. Mr. Justice Nelson, speaking for the court, on page 77 of the opinion, says:

"That these matters, both as stated in the body of the bill, and, in the prayers for relief, call for the judgment of the court upon political questions, and, upon rights, not of persons or property, but of a political character, will hardly be denied. For the rights for the protection of which our authority is invoked, are the rights of sovereignty, of political jurisdiction, of government, of corporate existence as a state, with all its constitutional powers and privileges. No case of private rights or private property infringed, or in danger of actual or threatened infringement, is presented by the bill, in judicial form, for the judgment of the court."

In New Orleans Water Works Company v. New Orleans,164 U.S. 471, the supreme court of the United States had under consideration the question whether the court would enjoin and restrain a municipal council in the exercise of its powers as a legislative body, and it was there held that:

"A court of equity cannot properly interfere with, or in advance restrain the discretion of a municipal body while it is in the exercise of powers that are legislative in their character."

In the court of the opinion, Mr. Justice Harlan, speaking for the court, says:

"If it be said that a final decree against the city, enjoining it from making such grants in the future, will control the future action of the city council of New Orleans, and will, therefore, tend to protect the plaintiff in its rights, our answer is that a court of equity cannot properly interfere with, or in advance restrain, the discretion of a municipal body while it is in the exercise of powers that are legislative in their character. It ought not to attempt to do indirectly what it could not do directly. In view of the adjudged cases, it cannot be doubted that the legislature may delegate to municipal assemblies the power of enacting ordinances that relate to local matters, and that such ordinances, if legally enacted, have the force of laws passed by the legislature of the State and are to be respected by all. But the courts will pass the line that separates judicial from legislative authority if by any order or in any mode they assume to control the discretion with which municipal assemblies are invested, when deliberating upon the adoption or rejection of ordinances proposed for their adoption. The passage of ordinance by such bodies are legislative acts which a court of equity will not enjoin. Chicago v. Evans, 24 Ill. 52, 57: Des Moines Gas Co. v. Des Moines, 44 Iowa, 505; 1, Dillon on Mun. Corp. sec. 308, and notes; 2 High on Injunctions, sec. 1246. If an ordinance be passed and is invalid, the jurisdiction of the courts may then be invoked for the protection of private rights that may be violated by its enforcement. Page v. Case, 34 Maryland, 558, 664; Baltimore v.Radecke, 49 Maryland, 217, 231."

In State ex rel. Rose v. Superior Court of Milwaukee County, decided by the supreme court of Wisconsin February 27, 1900, and reported in 48 L. R. A. 819, it was held that the passage of an ordinance of the city of Milwaukee was a legislative power and that a court of equity had no jurisdiction to restrain the common council from passing the same. In this case the court had under consideration the validity of an ordinance which the common council of the city of Milwaukee attempted to enact. The action was instituted in the superior court of Milwaukee county, having for its object the restraining and enjoining of the common council from enacting the ordinance. The court granted the injunction as prayed for. Notwithstanding the injunction, the common council violated the orders of the court, and proceeded to enact the ordinance. The members were accordingly cited to appear before the court, to show cause why they should not be punished for contempt. Upon the hearing, a majority of the common council admitted to the trial court that they had severally violated the injunction order in question. The only excuse given for the violation was that the court was without jurisdiction to make the order. Therefore, the sole legal question presented was whether the court had jurisdiction of the subject-matter. The trial court held that it had jurisdiction of the subject-matter of the action, and adjudged the common council guilty of contempt. Upon this order and judgment of the trial court, application was made to the supreme court for a peremptory writ of prohibition, to prohibit the execution of the judgment, and, upon a full hearing and consideration, the writ was awarded, the supreme court holding that the trial court was without jurisdiction of the subject-matter of the action. In the course of the opinion, Mr. Chief Justice Cassoday, speaking for the court, says:

"The power so vested in the common council is, within the limits prescribed, a discretionary power; and we must hold that a court of equity has no jurisdiction to restrain the common council from exercising such discretion, especially at the suit of a private party. It is said that the amendment to the ordinance, as originally proposed, was not submitted to a committee as required. It is enough to say that a court of equity has no place in the chamber of the common council to supervise or superintend the proceedings of that body, while engaged in the exercise of legislative or discretionary functions. The common council of Milwaukee, like other legislative bodies and courts, is liable to commit errors which may be fatal to its action; but that does not take away its power to act."

In The Des Moines Gas Co. v. The City of Des Moines, 44 Iowa, 505, it was said by the supreme court of Iowa, having this question under consideration:

"The general assembly is a co-ordinate branch of the state government, and so is the law-making power of public municipal corporations within the prescribed limits. It is no more competent for the judiciary to interfere with the legislative acts of the one than the other. But the unconstitutional acts of either may be annulled. Certainly the passage of an unconstitutional law by the general assembly could not be enjoined. If so, under the pretense that any proposed law was of that character, the judiciary could arrest the wheels of legislation."

It is evident, then, from a consideration of the authorities, that the constitutional convention is a legislative body of the highest order, and that it cannot be interfered with by injunction in the exercise of its powers. This being true, the convention was given the power, and it was made its duty, to do two things: First, to form a constitution; and second, to form a state government.

THE CONSTITUTION AND STATE GOVERNMENT. First, let us briefly examine the difference between the federal and state governments. Judge Cooley, in his great work on Constitutional Limitations (7 ed.), page 11, states this distinction as follows:

"The government of the United States is one of enumeratedpowers; the national constitution being the instrument which specifies them, and in which authority should be found for the exercise of any power which the national government assumes to possess. In this respect it differs from the constitutions of the several states, which are not grants of powers to the states, but which apportion and impose restrictions upon the powers which the states inherently possess."

Mr. Chief Justice Waite, in United States v. Cruikshank,92 U.S. 549, states the true doctrine as follows:

"The government of the United States is one of delegated powers alone. Its authority is defined and limited by the constitution. All powers are not granted to it by that instrument are reserved to the state or to the people. No rights can be acquired under the constitution or laws of the United States except such as the government of the United States has the authority to grant or secure. All that cannot be so granted or secured are left under the protection of the states."

Chief Justice Marshall, in the celebrated case ofMcCulloch v. Maryland, 4 Wheat. 409, in speaking of the division of sovereignty appertaining to the United States and to the states, declared:

"Does it belong to one more than to another? In America, the powers of sovereignty are divided between the government of the Union, and those of the states. They are each sovereign, with respect to the objects committed to it and neither is sovereign, with respect to the objects committed to the other."

What then is a state constitution, and what are its attributes?

Judge Story, in his work on the Constitution, vol. 1, sec. 339, says:

"A constitution is in fact a fundamental law or basis of government, and falls strictly within the definition of law as given by Mr. Justice Blackstone. It is a rule of action prescribed by the supreme power in a state, regulating the rights and duties of the whole community. It is arule, as contradistinguished from a temporary or sudden order; permanent, uniform and universal."

The late Justice Miller, of the supreme court of the United States, in his valuable work on the Constitution, page 70, says:

"A constitution in the American sense of the word is the written instrument by which the fundamental powers of government are established, limited, and defined, and by which those powers are distributed among the several departments for their safe and useful exercise for the benefit of the body politic."

In Vanhorne v. Dorrance, 2 Dall. 308, the court defines a constitution as follows:

"What is a constitution? It is the form of government, delineated by the mighty hand of the people, in which certain first principles of fundamental laws are established. The constitution is certain and fixed; it contains the permanent will of the people, and is the supreme law of the land; it is paramount to the power of the legislature, and can be revoked or altered only by the authority that made it."

In Phoebe v. Jay. 1 Ill. (Breese) 286, 271 the supreme court of Illinois declared that:

"The term 'Constitution,' as applied to government, is the form of government instituted by the people in their sovereign capacity, in which, first, the principal and fundamental laws are established. A constitution is the supreme, permanent, and fixed will of the people in their original, unlimited, and sovereign capacity and in it are determined the conditions, rights and duties of every individual of the community."

The supreme court of Indiana, in the case of In re Denny,156 Ind. 104, 59 N.E. 359; said:

"In our system of government, a written constitution is the highest expression of law; none other emanates directly from the sovereign people themselves. It is the deliberate and affirmative utterance of the sovereign majority."

In Taylor v. Governor, 1 Ark. 27, it is said:

"What is a constitution? The constitution of an American state is the supreme, organized, and written will of the people acting in convention and assigning to the different departments of the government their respective powers. It may limit and control the action of these departments, or it may confer upon them any extent of power not incompatible with the federal compact. By an inspection and examination of all the constitutions of our own country they will be found to be nothing more than so many restrictions and limitations upon the departments of the government and the people."

In 8 Cyc. 717, the doctrine is clearly stated as follows:

"A state constitution consists of a number of fundamental laws passed by, and alterable and repealable alone by the people; it is superior to the will of the legislature, the validity of whose acts is determined by its provisions."

Citing with approval Taylor v. Governor, 1 Ark. 21, 27; Lynnv. Polk, 8 Lea. (Tenn.) 121, 165; and Bates v. Kimball, 2 D. Chipm. (Vt.) 77, 84, where it is said:

"When the people associate and enter into compact for the purpose of establishing government, that compact, whatever may be its provisions, or in whatever language it may be written is the constitution of the state, revocable only by the people, or in the manner they prescribe."

In short, the constitutional convention, subject to the constitution of the United States and the limitations and restrictions contained in the enabling act, had full power and authority to incorporate in the constitution any provision which it deemed appropriate.

But this does not mean, as it was stated by the learned trial court, that if such power is conceded to the convention, it had "The power to repeal all laws, abolish all institutions, and displace all officers, from the highest to the very lowest." No such power was confided to the convention, nor has it exercised such powers. Clearly, to repeal existing laws of the territory, and to displace any existing officers, would be to act in direct opposition to the express provisions of section 6 of the enabling act, which provides:

"And the said representatives, together with the governor and other officers provided for in said constitution, shall be elected on the same day of the election for the ratification or rejection of the constitution; and until said officers are elected and qualified under the provisions of such constitution and the said State is admitted into the Union, the territorialofficers of Oklahoma Territory shall continue to discharge the duties of their respective offices in saidterritory."

But, the grant by congress to form a constitution and state government carries with it everything that is essential to effectuate its object. We are unable to perceive how a state government could be created, and officers for a full state government provided for, unless the convention had the power to fix and define the counties within the entire state, and to provide by ordinance for necessary temporary election machinery, and for putting the state government into operation when the constitution is ratified by the people and the President issues his proclamation admitting the state into the Union on an equal footing with the original states.

This leads us to the next question: What is a state government, within the purview of the enabling act?

The convention was not only authorized to form a constitution, but it was expressly authorized and empowered to form a state government. It seems to us that the creation of counties and townships is absolutely essential and indispensable to the formation of a state government. In fact, counties and townships have been inseparable parts of every state government since the admission of the original thirteen states into the Union. Indeed, such counties antedate the adoption of the federal constitution. And it will be presumed that when congress authorized the people of Oklahoma and Indian Territory to form a constitution and state government and be admitted into the Union on an equal footing with the original states, it intended that such a state government should be formed. No particular form of government was prescribed, and the only limitations thereon are that the constitution and state government shall be republican in form, and not repugnant to the federal constitution and the principles of the Declaration of Independence, etc.

It is to be presumed that congress knew the conditions existing in the Indian Territory, and knew that no counties had been formed or created therein, and that it was absolutely essential for the convention to create counties, and to provide the necessary machinery for holding the election for submitting the constitution to a vote of the people. It also knew that the Territory of Oklahoma contained organized counties, and that each county had a full complement of county officers, and that they were exercising their powers and duties as such under the laws of Oklahoma Territory, except the Osage Indian Reservation, which was an unorganized county, and attached to Pawnee county, under the organic act, for judicial purposes. There was no inhibition placed upon the convention against creating and defining the counties in the proposed state, and the only inhibition placed upon the convention is that provided in section 21, with reference to the Osage Indian Reservation, where it is declared:

"That the constitutional convention may by ordinance provide for the election of officers for a full state government, including members of the legislature and five representatives to congress, and shall constitute the Osage Indian Reservation a separate county, and provide that it shall remain a separate county until the lands in the Osage Indian Reservation are allotted in severalty and until changed by the legislature of Oklahoma."

In the absence of any express prohibition upon the convention, it had full and complete power to establish and define all the counties in the proposed state, as a necessary incident to the formation of a state government. The power to form a state government clearly implies the power to create and define every county within the limits of the new state, the only limitation upon the convention in this respect being that the Osage Indian Reservation shall remain a separate county until the lands in the Osage Indian Reservation are allotted in severalty, and until changed by the legislature of the state of Oklahoma.

Manifestly, the territorial government and all the counties organized thereunder were intended to be for temporary purposes only, and to remain as such until the state government was created and organized. It is difficult to perceive how the convention could have organized a full state government without defining and fixing the boundaries of the counties throughout the entire state. In this connection, it must be borne in mind that the convention was not created for the purpose of forming a government for Oklahoma or Indian Territory, but they were charged with the power, duty, and responsibility of forming a state government for all the people of the proposed state of Oklahoma, and in fixing the boundaries of the counties throughout the entire state, there were no limitations whatever placed upon the convention, except with reference to the Osage Indian Reservation, as above stated. Accordingly, the convention did, by the terms and provisions of the constitution, fix and define and name each of the counties of the proposed state, and designated the county seats therein, and also provided how the county lines might be changed, or the county seats removed. The wisdom, expediency, or propriety, of such action is a question that was peculiarly confided to the convention, and is not the subject at this time of judicial cognizance.

That counties and townships are parts of a state government is so well settled by the adjudicated cases, that it is no longer open to serious judicial controversy.

In Board of County Commissioners of Greer County v. Watson, 7 Oklahoma, 174, this court, speaking by Chief Justice Burford, defined a county as follows:

"A county is an involuntary political and civil division of the territory, created by statute to aid in the administration of governmental affairs, and possessed of a portion of the sovereignty. All the powers with which it is entrusted are the powers of the sovereignty which created it, and all the duties with which it is charged are the duties of the sovereignty."

In Commissioners of Tolbert County v. Queen Anne's County,50 Md. 245, it is said:

"A county is one of the territorial divisions of the state created for public and political purposes connected with the administration of the state government."

This language was quoted with approval by the supreme court of the United States in Washer v. Bullitt County, 110 U.S. 562.

In Commissioners of Laraminee County v. Commissioners ofAlbany County, 92 U.S. 310, it was said by the supreme court of the United States:

"Corporations of the kind are properly denominated public corporations, for the reason that they are but parts of the machinery employed to carry on the affairs of the state."

And in the course of the opinion, on page 311, Mr. Justice Clifford, speaking for the court, said:

"Institutions of this kind, whether called counties or towns, are the auxiliaries of the state in the important business of municipal rule, and cannot have the least pretention to sustain their privileges or their existence upon any thing like a contract between them and the legislature of the state, because there is not and cannot be any reciprocity of stipulation, and their objects and duties are utterly incompatible with every thing of the nature of compact. Instead of that, the constant practice is to divide large counties and towns, and to consolidate small ones, to meet the wishes of the residents, or to promote the public interests, as understood by those who control the action of the legislature. Opposition is sometimes manifested; but it is every where acknowledged that the legislature possesses the power to divide counties and towns at their pleasure, and to apportion the common property and the common burdens in such a manner as to them may seem reasonable and equitable. School Society v. School Society, 14 Conn. 469;Bridge Co. v. East Hartford, 16 Id. 172; Hampshire v. Franklin16 Mass. 76; North Hemstead v. Hemstead, 2 Wend. 109;Montpelier v. East Montpelier, 29 Vt. 20; Sill v. Conning,15 N.Y. 197; People v. Draper, Id. 549; Waring v. Mayor, 24 Ala. 701;Mayor v. The State, 15 Md. 376; Ashby v. Wellington, 8 Pick. 524; Baptist So. v. Candia, 2 N.H. 20; Denton v. Jackson, 2 Johns. Ch. 320."

In the case of Eagle v. Beard, 33 Ark. 497, it is said:

"The political power is composed of representatives from counties. Through them justice is administered, the revenue collected, and the local police rendered effective Neither the courts of justice, nor the executive of the state, can perform any important function, except in the tribunals, or through the offices of the counties."

In Woots v. Colfax., 10 Neh. 552, 7 N.W. 269; Ch. Justice Maxwell, quoting from 7 Mass., 169, says:

"A county is a mere local subdivision of the state created by it without the request or consent of the people residing therein. * * * County organization is created almost exclusively with a view to the policy of the state at large. * * * With scarcely an exception all the powers and functions of the county organization have a direct and exclusive reference to the general policy of the state, and are in fact but a branch of the general administration of that policy."

In Commissioners of Hamilton County v. Mighels, 7 Ohio St, 107, Justice Brinkerhoff says:

"Counties are legal subdivisions of the state, created by the sovereign power of the state, of its own sovereign will, without the particular solicitation, consent, or concurrent action of the people who inhabit them."

In Ward v. County of Hartford, 12 Conn. 406, Chief Justice Williams speaking of the court, says:

"The state is divided into counties for public purposes, and particularly for the more convenient administration of justice."

In Gooch v. Gregory, 65 N.C. 143, the court says:

"A county is a municipal corporation created by law for public and political purposes and constitutes part of the government of the state."

It follows that the convention had the undoubted right to define and fix the boundaries of every county in the proposed state, and to change existing counties, if they deemed it appropriate, and to define legislative and judicial districts in order that a full state government might be put into operation, and to provide for the necessary machinery to submit the constitution to a vote of the people for ratification or rejection.

THE CONVENTION MAY PROVIDE FOR THE ELECTION OF STATE, COUNTY, AND OTHER OFFICERS PROVIDED FOR IN THE CONSTITUTION.

By section 21 of the enabling act it is provided:

"That the constitutional convention may by ordinance provide for the election of officers for a full state government, including members of the legislature and five representatives to congress."

And by the last clause of section 6 of said act, it is provided:

"And the said representatives, together with governor andother officers provided for in the said constitution, shall be elected on the same day of the election for the ratification or rejection of the constitution; and until said officers are elected and qualified under the provisions of such constitution and the said state is admitted into the Union, the territorial officers of Oklahoma Territory shall continue to discharge the duties of their respective offices in said Territory."

It will thus be seen that congress granted the power and authority to the convention to provide by ordinance for the election of officers for a full state government. What, then, is a full state government within the meaning of this act? In our opinion, officers for a full state government includes not only the state officers whose power and duties are co-extensive with the limits of the state, but includes all the officers whose duties are in any manner connected with the administration of the state government. Hence, we think the convention had the power to provide in the ordinance for the election of all the officers which were provided for in the constitution, from the highest to the lowest. It seems to us to hold otherwise would be to place a very strained and narrow interpretation upon the language used in the act, that the convention may by ordinance provide for the election of officers for a full state government. And since we have already decided that the counties and townships are necessary and indispensable parts of the state government, it must follow, as an inevitable conclusion, that the convention had the power to provide for the election of state, county, and others officers provided for in the constitution.

THE ORDINANCE. What is an ordinance, and what are it objects? Section 4 of the enabling act provides:

"That in case a constitution and state government shall be formed in compliance with the provision of this act the convention forming the same shall provide by ordinance for submitting said constitution to the people of said proposed state for its ratification or rejection at an election to be held at a time fixed in said ordinance." etc.

It will thus be seen that the enabling act provides that the convention "Shall provide by ordinance for submitting said constitution to the people", etc. The language here used is clear, specific, and mandatory in its terms.

An ordinance, as used in this act, has the force and effect of a legislative enactment or law for the purposes therein named. Manifestly, it is a law which is essential to carrying into effect the objects for which the convention was created. Thus we speak of the famous ordinance of 1787, which created a government of that portion of the territory of the United States northwest of the Ohio river, and known as the Northwest Territory.

It will thus be seen that congress conferred direct and express power and authority upon the convention to pass an appropriate ordinance to submit the constitution to the people for its ratification or rejection, at an election at a time fixed in said ordinance, by the convention. Such an ordinance, when once adopted by the convention, has the force and effect of statute law.

The distinction between a constitution and an ordinance is this: The constitution is a permanent fundamental law of the state. It is of a stable and permanent character. As is appropriately said in Vanhorne v. Dorrence, 2 Dall. 308;

"The constitution of a state is stable and permanent, not to be worked upon by the temper of the times nor to rise and fall with the tide of events; notwithstanding the competition of opposing interests, and the violence of contending parties, it remains firm and immovable, as a mountain amidst the strife of storms, or a rock in the ocean amidst the raging of the waves."

But, under the terms of the enabling act, it is prospective in its operation only. That is, it does not become operative until it is ratified by the people, and approved by the President of the United States. On the other hand, an ordinance, as used in this act, refers to a merely temporary law, its object being to carry into effect the formation of the constitution and fundamental law of the state, to provide a mode and means for an election of a full state government, including the members of the legislature and five representatives to congress, and because operative immediately upon its adoption.

Section 1 of the election ordinance adopted by the convention on April 22, 1907, provides as follows:

"Said election shall, in all respects, be held and conducted in the manner required by the law of the Territory of Oklahoma for elections therein, when not in conflict with the enabling act, and as supplemented by this ordinance, and the returns of said election shall be made to the secretary of the Territory of Oklahoma, who, with the chief justice thereof, and the senior judge of the United States court of appeals for the Indian Territory, shall canvass the same, and if a majority of the legal votes cast on that question shall be for the constitution, the governor of Oklahoma Territory, and the judge senior in service of the United States court of appeals for the Indian Territory shall certify the results to the President of the United States, together with a statement of the votes cast thereon, and upon separate articles or propositions, and a copy of said constitution, articles, propositions, and ordinances, and in all respects comply with the provisions of said enabling act."

And section 8 of said ordinance provides:

"That the election laws of the Territory of Oklahoma now in force, as far as applicable and not in conflict with the enabling act, including the penal laws of said territory relating to election and illegal voting, are hereby extended and put in force throughout the proposed state of Oklahoma until the legislature of said proposed state shall otherwise provide, and until all persons offending against said laws in the elections aforesaid, shall have been dealt with in the manner therein provided, and the courts of said state shall have power to enforce said laws in the same manner as other criminal laws of said state."

It will thus be seen that the convention, in its ordinance, expressly put in force the election laws of Oklahoma, as far as applicable and not in conflict with the enabling act, including the penal laws of said territory relating to election and illegal voting, and expressly provides that the courts of said state shall have power to enforce said laws in the same manner as other criminal laws of said state, until all persons offending against said laws shall have been dealt with in the manner therein provided.

It seems to us that it was clearly the duty of the convention in its ordinance, to provide the necessary machinery for holding such election in all the newly created counties of the proposed state. The officers created in the new counties in the Indian Territory and Oklahoma Territory were merely for the temporary purpose of providing the necessary election machinery to carry into effect the object of the convention. These offices are merely temporary, and they do not supersede or supplant any of the existing officers, who are charged with the power and duty under the election ordinance to carry into effect the duties devolving on them, and they possess and exercise no powers, except such as granted for the purpose of carrying into effect the provisions of the election ordinance. The manifest intention of the enabling act was that the convention should by ordinance make uniform and specific provisions throughout the proposed state for the holding of said election.

IS THE CONSTITUTION REPUBLICAN IN FORM? But one question remains, and that is: Is the proposed constitution republican in form?

Article 4 section 4 of the constitution of the United States provides that:

"The United States shall guarantee to every state in this Union a republican form of government."

And section 3 of the enabling act provides that:

"The constitution shall be republican in form, and make no distinction in civil or political rights on account of race or color and shall not be repugnant to the constitution of the United States and the principles of the Declaration of Indepence."

This leads us to the inquiry: In whom is lodged the power and authority to decide when the government is republican in form?

In the case of Luther v. Borden, 7 How. 42, the supreme court of the United States, speaking by Chief Justice Taney says:

"The fourth section of the fourth article of the constitution of the United States provides that the United States shall guarantee to every state in the Union a republican form of government, and shall protect each of them against invasion; and on the application of the legislature or of the executive (when the legislature cannot be convened) against domestic violence.

"Under this article of the constitution it rests with congress to decide what government is the established one in a state. For as the United States guarantee to each state a republican government, congress must necessarily decide what government is established in the state before it can determine whether it is republican or not. And when the senators and representatives of a state are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character is recognized by the proper constitutional authority. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal."

And in Texas v. White, 7 Wall. 730, the supreme court of the United States had occasion to reiterate this same doctrine, where it is said:

"But the power to carry into effect the clause of guaranty is primarily legislative power, and resides in congress, 'Under the fourth article of the constitution, and rests with congress to decide what government is the established one in a state. For, as the United States guarantee to each state a republican government congress must necessarily decide what government is established in the state, before it can determine whether it is republican or not.' "

By section 4 of the enabling act it is provided:

"And if the constitution and government of said proposed state are republican in form, and if the provisions of this act have been complied with in the formation thereof, it shall be the duty of the President of the United States, within twenty days from the receipt of the certificate of the result of said election and the statement of the votes cast thereon and a copy of said constitution, articles, propositions, and ordinances to issue his proclamation announcing the result of said election; and thereupon the proposed state of Oklahoma shall be deemed admitted by congress into the Union, under and by virtue of this act, on an equal footing with the original states."

It will thus be seen that the power to determine whether the constitution is republican in form is primarily a legislative power, and resides in congress; but this power was delegated by congress to the President, and this question is not the subject of judicial cognizance.

We therefore hold that the constitutional convention has the power and authority to submit to the people of the proposed state of Oklahoma the provisions in the constitution providing for the creation of the counties of Alfalfa and Major of territory formerly embraced in Woods county, that under the terms of the enabling act, authorizing and directing the convention to provide by ordinance for an election to submit the constitution to a vote of the people for ratification or rejection, and for the election of officers for a full state government, the convention had the authority, to create the necessary election machinery in these counties, in order that the constitution might be submitted to a vote of the people, and that the ordinance providing for such election machinery in Alfalfa and Major counties is valid. It follows that the temporary injunction granted by the probate judge, restraining and enjoining the governor of Oklahoma, and the president and secretary of the constitutional convention from issuing or publishing any proclamation in which it is sought to submit to the electors of the proposed state of Oklahoma, as a part of said constitution, the creation of the counties of Alfalfa and Major, and which restrained and enjoined the officers provided for in the ordinance from exercising the powers and duties of the election officers in said counties was improvidently issued, and that the district court committed error in refusing to dissolve the injunction, and in overruling the demurrer to the petition, and in entering the decree making the temporary injunction perpetual.

THE DECREE. The judgment of the district court of Woods county is therefore reversed and in order that there may be no inconvenience or delay in carrying into effect the decree of this court is hereby ordered, considered, adjudged and decreed that the judgment of the district court of Woods county be and the same is hereby vacated, set aside, and held for naught; and it is further ordered, considered, adjudged and decreed that the injunction granted in said cause is hereby dissolved, vacated, set aside, and held for naught, and the said cause is hereby dismissed at the costs of the plaintiff.

Pancost, J. who presided in the court below, not sitting; Irwin, J. dessenting; Burwell, J., dissenting in part and concurring in part; all other Justices concurring.