cast. In the case of the Town of Eufaula, the requisite proportion of all the votes v. Gibson et al., reported in 98 Pac. 570, this cast, then all names of towns voted for on court said: "If the law requires the elimina- said ballot, except the two receiving the tion in computing the whole number on greatest number of votes, shall be dropped; which the majority is to be computed of the and the Governor shall, in like time and 87 ballots found by the referee to be mu- manner, cause to be called and held a second tilated, Checotah, having received 1,664 votes, election, at which only two towns which rewould have a majority of the votes cast. ceived the greatest number of votes cast at If, however, we hold that the term 'votes the first election shall be voted for; and the cast' properly includes not only the votes town receiving the requisite proportion of counted, but also the ballots cast by the the votes at the second election shall be the electors where valid and free from fraud, county seat." Neither of said two towns and which manifest an honest effort on the having received a majority of all the votes part of the voter to participate in the elec- cast, and, there not being more than two tion, but which were so mutilated that they towns voted for at said election, it follows were unintelligible and for this reason could that, under the foregoing provision, no names not be counted for either place, then Checo- of towns are to be dropped at the second tah would not have received a majority." election. The said two towns being the only On page 579 the court further said: "So, candidates in that election and being the in our judgment, the total to be considered, two towns that received the greatest numthe whole number of votes cast upon which ber of votes cast, we conclude that it is the the majority is estimated, should be made duty of the Governor in like time and manup of those votes which are counted for the ner to cause to be held a second election at different propositions and those which have which only the towns of Westville and Stilbeen cast by the qualified electors of the well, which received the greatest number of county making an honest, though unintelli- votes cast at such election, shall be voted for, gible, effort to participate in the making of and the town receiving the greatest number the choice." In this case there is neither of votes cast at such election, to be declared any contention that any of the electors fail-to be the county seat. ing to swear to the affidavit were not otherwise qualified to vote at such election, nor that they did not make an honest though ineffectual effort to participate therein, so as to have their votes counted. As to Salem precinct, there is no contention that any parties voted there other than qualified electors, though there may have been such acts of violence and intimidation by certain parties as to induce the referee to find that such election was void, yet there appears to have been no corruption on the part of the voters. Whilst acts of violence and intimidation by a few parties might be sufficient ground not to count the votes of that precinct, it seems by the rule laid down in the Eufaula Case that they would be computed as votes cast. And neither the number of votes counted for Stilwell nor Westville constituting a majority of the votes cast at such election, no town has received the requisite majority of all the votes cast at such election. Only two towns having been voted for by the electors in such election, the question arises as to whether or not, under the provisions of the Constitution, the election fails, and Westville, on account of a hiatus in the law, remains the county seat of Adair county, or another election shall be held for the purpose of the permanent location of such county seat. Section 6 of article 17 of the Constitution provides: "If a majority of the votes cast in the county at such county seat election shall be in favor of any town, such town shall thereafter be the county seat: *** but, if more than two towns are voted for and no town receive TURNER, J., concurs. KANE, C. J., concurs in the conclusion reached. DUNN and HAYES, JJ., not participating. TRAPP, State Auditor, v. COOK CONST. CO. (Supreme Court of Oklahoma. Nov. 2, 1909.) 1. COLLEGES AND UNIVERSITIES (§ 7*)—RE GENTS AGRICULTURAL BOARD-CONSTITU TION-CONSTRUCTION. Section 31 of article 6, page 203, Snyder's Constitution of Oklahoma, providing that the board of agriculture therein created shall be the board of regents of the state agricultural and mechanical college, and "shall discharge as may be provided such other duties by law," vests the said board of agriculture with the same power, jurisdiction, and authority that was possessed by the board of regents of the agricultural and mechanical college at the time of the adoption of the Constitution. [Ed. Note.-For other cases, see Colleges and Universities, Cent. Dig. § 17; Dec. Dig. § 7.*] 2. COLLEGES AND UNIVERSITIES (§ 7*)-OFFICERS-DUTIES-CONSTITUTIONAL PROVISIONS -CONFLICT. That portion of article 1, c. 37, p. 563, Sess. Laws Okl. 1909, defining the duties of the state board of public affairs, so far as it attempts to confer upon the board of public affairs the powers and duties vested in the board of regents of the state agricultural and mechanical college as the same were conferred by the Constitution, is void. [Ed. Note.-For other cases, see Colleges and Universities, Cent. Dig. § 16; Dec. Dig. § 7.*] 3. CONSTITUTIONAL LAW (§ 38*)-STATUTES INTENT. A thing within the intent of a constitutional enactment is, for all purposes, to be regarded within the words and terms of the Consti tution; and a legislative enactment, evading the terms and clearly expressed or necessarily implied purposes of the Constitution, is as clearly void as if in express terms forbidden. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 36; Dec. Dig. § 38.*] (Syllabus by the Court.) and do all things necessary to make the college effective as an educational institution. Section 283, art. 18, c. 77 (section 6411), Wilson's Rev. & Ann. St. Okl. 1903. The duties of said board were further and more specifically defined in section 287, art. 18, c. 77 (section 6415), Wilson's Rev. & Ann. St. Okl. 1903, Error from District Court, Logan County; as follows: "The said board of regents shall A. H. Huston, Judge. Action by the Cook Construction Company against M. E. Trapp, State Auditor. Decree for plaintiff, and defendant brings error. Affirmed. Chas. West, Atty. Gen., for plaintiff in error. Juo. H. Burford, for defendant in error. DUNN, J. The question that arises and requires our consideration and determination in this case, as stated by the Attorney General in his brief, is whether the law creating the state board of public affairs vested in it the power and authority to contract for and erect buildings for the board of agriculture acting as a board of regents.of the state agricultural as a board of regents.of the state agricultural and mechanical college, and also to audit the accounts growing out of the exercise of such authority. Involved in the determination thereof is the construction of the following sections of the Constitution and statutes of the territory and state: Section 31 of article 6 of the Constitution, providing for and creating the board of agriculture, fixes its membership at 11 members, all of whom are to be farmers, and provides that: "Said board shall be maintained as a part of the state governbe maintained as a part of the state government, and shall have jurisdiction over all matters affecting animal industry and animal quarantine regulations, and shall be the board of regents of all state agricultural and mechanical colleges, and shall discharge such other duties and receive such compensation as may be provided by law." October 27, 1890, the legislative assembly of the territory of Oklahoma accepted on the part of the territory the provisions of an act of Congress providing for the establishment of agricultural experimental stations, and obligated the territory to comply with all of the provisions thereof. Section 276, art. 18, c. 77 (section 6404), Wilson's Rev. & Ann. St. Okl. 1903. Thereafter an act was passed providing for the location and establishment of an agricultural and mechanical college, which took effect December 25, 1890, and the government and management of the same was vested in a board of regents with the statutory appellation of "agricultural and mechanical college board of regents." Among other things with special reference to their application to the industries of life, agriculture was declared to be one of the leading objects of said college. Section 280, art. 18, c. 77 (section 6408), Wilson's Rev. & Ann. St. Okl. 1903. It was authorized by its regents to take title to real estate, enter into contracts, locate buildings, direct the dispositions of all moneys appropriated by the territorial Legislature or by Congress, or funds arising from the sale of bonds provided for in this act for the agricultural college or experimental station for Oklahoma Territory, and shall have supervision or charge of the construction of all buildings provided for said college or farm. The board of regents shall have power to employ a president and necessary teachers, instructors and assistants to conduct said school and carry on the experimental farm connected therewith, and to appoint a superintendent of ceive three dollars per day for each day actuconstruction of all buildings, who shall really and necessarily engaged in the discharge of his duties not to exceed fifty days in any ally and necessarily engaged in the discharge of his duties not to exceed fifty days in any one year, which sum shall be paid out of the territorial treasury upon the vouchers of said board. The said board shall audit all accounts against the funds appropriated for the use of the agricultural college and experimental station, and the territorial auditor shall issue his warrant upon the territorial treasurer for the amount of all accounts which shall have been audited and allowed by ident and secretary of the same." Other exthe board of regents and attested by the president and secretary of the same." Other extensive executive duties in connection with the administration of affairs of the college tending to give to the said board the entire supervision of affairs of the school are granted by the act; but consideration of the foregoing, which are specifically enumerated, are deemed to be sufficient for the purpose of the case now before us. In the petition of defendant in error, who was plaintiff in the court below, it is alleged that, pursuant to a contract entered into under the authority of an act of the Legislature approved June 10, 1908 (Laws 1907-08, p. 93, c. 5, art. 17), providing for the erection of certain buildings to be used by the agricultural and mechanical college, it had earned certain sums of money which were due it, and that the vouchers therefor had been duly approved and properly attested by the board of regents of the said college, but that when presented by the plaintiff to M. E. Trapp, Esq., Auditor of the State of Oklahoma, he declined to draw a warrant upon the State Treasurer for the amount due plaintiff as shown by the said approved voucher, notwithstanding there were at that time suffi.. cient funds in the hands of the treasurer appropriated to that purpose to more than pay said claim, and that the sole cause given for this refusal was that the said voucher had a written Constitution, says: "Written Con- From the foregoing it will be seen that the as may be provided by law." Chief Justice The question then is: Did the board of agriculture, being constituted the board of regents of the agricultural and mechanical college, thereby have fixed and vested in it, by the language used, the duties, powers, and authority of the established territorial board of regents whose place it took, as the same existed at the time of the adoption of the Constitution? If so, necessarily the Legislature could not divest it of these powers nor any part thereof, for, if it could lawfully take a part, it could from time to time take more, and ultimately take all, and thereby defeat the will of the people who fixed the status of this board in the organic law of the state. As we view it, additional duties may be required, but none vested by the Constitution may be taken away by the Legislature. In this conclusion we find support in the adjudications of a number of courts and authorities, of which we note the following: Cooley's Constitutional Limitations (7th Ed.) p. 98; State ex rel. Crawford v. Hastings, 10 Wis. 525; State ex rel. Kennedy v. Brunst, 26 Wis. 412, 7 Am. Rep. 84; Dahnke v. People, 168 Ill. 102, 48 N. E. 137, 39 L. R. A. 197; People ex rel. McEwan v. Keeler, 29 Hun, 175; People ex rel. Bolton et al. v. Albertson, 55 N. Y. 50; People ex rel. Kingsland v. Bradley, 42 How. | ticular officer or department, their exercise Prac. (N. Y.) 423; People v. Raymond, 37 N. Y. 428; In re Railroad Commissioners, 15 Neb. 679, 50 N. W. 276; McCabe et al. v. Mazzuchelli, 13 Wis. 478; State ex rel. Martin v. Doyle, 38 Wis. 92; City of Watertown v. Robinson, 69 Wis. 230, 34 N. W. 139;. State ex rel. Raymer v. Cunningham, 82 Wis. 39, 51 N. W. 1133; State ex rel. Sweet et al. v. Cunningham et al., 88 Wis. 81, 57 N. W. 1119, 59 N. W. 503. and discharge by any other officer or department are forbidden by a necessary and unavoidable implication. Every positive delega-. tion of power to one officer or department implies a negation of its exercise by any other officer, department, or person. If it did not, the whole constitutional fabric might be undermined and destroyed. This result could be as effectually accomplished by the creation of new officers and departments exerSection 2 of article 6 of the Constitution cising the same power and jurisdiction as of the state of Wisconsin provided for a by the direct and formal abrogation of those Secretary of State, and, among other things, now existing, and, although the exercise of declared that "he shall be ex officio auditor." this power by the Legislature is nowhere exThe Legislature of that state provided by pressly prohibited, nevertheless they cannot an act for an officer entitled a "comptroller," do so. The people having in their sovereign and vested in him the authority to "examine capacity exerted the power and determined and pass upon all claims and accounts audit- who shall be their auditor, there is nothing ed by the Secretary of State, and if he shall left for the Legislature to act upon. This find the same properly verified or proved and principle or rule of construing Constitutions authorized by law to be audited, he shall cer- has been often laid down and acted upon by tify that fact upon such claim or account." courts. It is fully sustained by the following Herein, it will be noted, is presented practi- cases recently decided by the Court of Apcally the same question as is presented in the peals of New York: Barto v. Himrod, 8 N. case at bar, except in our judgment our Con- Y. 483, 59 Am. Dec. 506; Sill v. Village of stitution makes more clear and apparent the Corning, 15 N. Y. 297; People v. Draper, duties which would inhere in the board of 15 N. Y. 532. In this last case the court, aftagriculture as a board of regents than does er observing that plenary power in the Legthe language of the Constitution of Wiscon- islature, for all the purposes of civil governsin, wherein the Secretary of State is con- ment, is the rule, and a prohibition to exerstituted auditor. In the consideration of this cise a particular power an exception, and question when it was presented, the Supreme that the Constitution contains but few posCourt of Wisconsin, in an opinion prepared itive restraints upon the legislative powers, by the able jurist Chief Justice Dixon, says, say: 'But the affirmative prescriptions, and in the case of State ex rel. Crawford v. Hast- the general arrangement of the Constitution, ings, supra: "The question arises whether, are far more fruitful of restraints upon the under the foregoing provision of the Consti- Legislature. Every positive direction contution, the Legislature have the power to tains an implication against anything concreate a second auditor or officer authorized trary to it, or which would frustrate or disto perform the same duties, whose concur- appoint the purpose of that provision. rence is necessary before the acts of the con- form of the government, the grant of legislastitutional auditor shall take effect. We think tive powers itself, the organization of exthey have not, and that the functions of ecutive authority, the erection of the printhat officer cannot, in whole or in part, be cipal courts of justice, create implied limtransferred to, or be exercised concurrently, itations upon lawmaking authority, as strong or otherwise, by any person or officer. It as though a negation was expressed in each falls directly within the rule that the ex- instance.' This rule of construction extends press mention of one thing implies the ex- to every part of the instrument, and, if a vioclusion of another. Expressio unius est ex-lation of it is allowed in the case of the auclusio alterius. This rule applies as forcibly ditor, it is difficult to see why it should not to the construction of written Constitutions be in the case of any other officer or departas other instruments, and, if its observance ment. Thus, the Legislature might with equal ought in any degree to depend upon the char- propriety create new courts of justice, usurpacter or importance of the instrument under ing and exercising the same power and juconsideration, then no other cases demand so risdiction as those established by the people, rigid an adherence to it. A Constitution be- and a new executive, to correct the mistakes ing the paramount law of a state; designed and control the action of the one chosen by to separate the powers of government and them. It seems to us clear that the Legislato define their extent and limit their exer- ture could do neither, and that so much of cise by the several departments, as well as the act under consideration as attempts to to secure and protect private rights, no other transfer to the so-called comptroller the funcinstrument is of equal significance. It has tions of auditor, and to clothe him with aubeen very properly defined to be a legisla- thority to control or reverse the acts of that tive act of the people themselves in their officer, is unconstitutional and void." sovereign capacity, and, when the people This case is cited approvingly by the Suhave declared by it that certain powers shall preme Court of Wisconsin and other courts The a sheriff in name merely, while all the duties and substance of the office might be exercised by and belong to an officer appointed by some other authority. We therefore conclude that it was not competent for the Legislature to take from the constitutional office of sheriff a part of the office itself, and transfer it to an officer appointed in a different manner, and holding the office by a different tenure from that which was provided for in the Constitution." The foregoing quotations are sufficient in our judgment to show the force given provisions of this character where they have been brought into question. The other authorities we have cited likewise support and shed additional light on the subject. The underlying reason therefore is forcibly set forth in the case of People ex rel. Bolton et al. v. Albertson, supra, wherein the Court of Appeals of New York, in its consideration, said: "A written Constitution must be interpreted and effect given to it as the paramount law of the land, equally obligatory upon the Legislature as upon other departments of government and individual citizens, according to its spirit and the intent of its framers, as indi Among them may be noted the case of State | not elected by the people; for this would be ex rel. Kennedy v. Brunst, supra. Section 4 to secure to the electors the right to choose of article 6 of the Constitution of Wisconsin provides for the office of sheriff. Nowhere within it does it define the powers, rights, or duties which shall attach to such office. Thereafter an act of the Legislature provided for a house of correction for the county of Milwaukee and constituted thereof the jail of the county, and made the inspector of this house of correction ex officio the jailer of the county, giving to him the exclusive charge and custody of the jail and of the prisoners in the same. A contest ensued between this inspector and the sheriff; the latter contending that the Legislature lacked the power to strip from him as sheriff his rights as jailer, urging that, when the Constitution provided for a sheriff, it contemplated the character of office with the duties that existed at the time of the adoption of the Constitution, and of this the Supreme Court, in the syllabus, said: "Under our state Constitution (which provides for the election of sheriffs by the electors of the county), the Legislature cannot transfer to other officers, elected by the board of supervisors, important powers and functions which from time immemorial have belonged to the office of sheriff." In the consideration thereof, Justice Cole, who prepar-cated by its terms. An act violating the true ed the opinion for the court, said: "Now, it is quite true that the Constitution nowhere defines what powers, rights, and duties shall attach or belong to the office of sheriff; but there can be no doubt that the framers of the Constitution had reference to the office with those generally recognized legal duties and functions belonging to it in this country, and in the territory, when the Constitution was adopted. Among those duties, one of the most characteristic and well acknowledged was the custody of the common jail and of the prisoners therein. This is apparent from the statutes and authorities cited by the counsel for the respondent, and it seems to us unreasonable to hold, under a Constitution which carefully provides for the election of sheriffs, fixes the term of office, etc., that the Legislature may detach from the office its duties and functions, and transfer those duties to another officer. In this case it is said that the Legislature has attempted to take the largest share of the duties of sheriff, in point of responsibility and emolument, and to commit it to an officer selected by the county board of supervisors. If the Legislature can do this, why may it not deprive the sheriff of all the duties and powers appertaining to his office, and transfer them to some officer not chosen by the electors? It would certainly be a very idle provision of the Constitution to secure the electors the right to choose their sheriffs, and at the same time leave to the Legislature the power to detach from the office of sheriff all the duties and functions by law belonging to that office when the Constitution was adopt A intent and meaning of the instrument, although not within the letter, is as much within the purview and effect of a prohibition as if within the strict letter; and an act in evasion of the terms of the Constitution, as properly interpreted and understood, and frustrating its general and clearly expressed or necessarily implied purpose, is as clearly void as if in express terms forbidden. thing within the intent of a Constitution or statutory enactment is, for all purposes, to be regarded as within the words and terms of the law. A written Constitution would be of little avail as a practical and useful restraint upon the different departments of government, if a literal reading only was to be given it, to the exclusion of all necessary implication, and the clear intent ignored, and slight evasions or acts, palpably in evasion of its spirit, should be sustained as not repugnant to it. The restraints of the Constitution upon the several departments, among which the various powers of government are distributed, cannot be lessened or diminished by inference and implication; and usurpations of power, or the exercise of power in disregard of the express provision or plain intent of the instrument, as necessarily implied from all its terms, cannot be sustained under the pretense of a liberal or enlightened interpretation, or in defense to the judgment of the Legislature, or some supposed necessity, the result of a changed condition of affairs. 1 Kent's Com. 162; Barto v. Himrod, 8 N. Y. 483, 59 Am. Dec. 506; Taylor v. Porter, 4 Hill, 144, 40 Am. Dec. 274; Warner v. |