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 13 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

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 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, expedi ency, or propriety of such action is a ques tion 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 as to be no longer open to serious judicial controversy. In Board of County Commissioners of Greer County v. Watson, 7 Okl. 174, 54 Pac. 441, 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 intrusted 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 Talbot 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, 4 Sup. Ct. 249, 28 L. Ed. 249. In Commissioners of Laramie County v. Commissioners of Albany County, 92 U. S. 310, 23 L. Ed. 552, 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 of 92 U. S. (23 L. Ed. 552), Mr. Justice Clifford, speaking for the court, said: "Institutions of the kind, whether called counties or towns, are the auxiliarles of the state in the important business of municipal rule, and cannot have the least pretension to sustain their privileges or their existence upon anything 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 everything 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 everywhere❘ 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 manner as to them may seem reasonable and equitable. School Society v. School Society, 14 Conn. 469; Bridge Co. v. East Hartford, 16 Conn. 172; Hampshire v. Franklin, 16 Mass. 76; North Hempstead v. Hempstead, 2 Wend. (N. Y.) 109; Montpelier v. East Montpelier, 29 Vt. 20, 67 Am. Dec. 748; Sill v. Corning, 15 N. Y. 297; People v. Draper, 15 N. Y. 549; Waring v. Mayor, 24 Ala. 701; Mayor v. State, 15 Md. 376;2 Ashby v. Wellington, 8 Pick. (Mass.) 524; Baptist Soc. v. Candia, 2 N. H. 20; Denton v. Jackson, 2 Johns. Ch. (N. Y.) 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 Woods v. Colfax County, 10 Neb. 552, 7 N. W. 269, Chief Justice Maxwell, quoting from Riddle v. Proprietors of Locks and Canals, 7 Mass. 169, 5 Am. Dec. 35, 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 organiza

tion 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 organi174 Am. Rep. 572

zation 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. 109, Justice Brinkerhoff says: "Counties are legal subdivisions of a 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 for 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 (Act June 16, 1906, c. 3335, 34 Stat. 267) 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 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 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 powers and duties are coextensive 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 other officers provided for in the Constitution.

The ordinance:

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 becomes operative immediately upon its adoption. Section 1 of the election ordinance,

Section 4 of the enabling act (Act June 13, 1906, c. 3335, 34 Stat. 267). provides: "That in case a Constitution and state government shall be formed in compliance with the provisions 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 the permanent fundamental law of the state. It is of a stable and permanent character. As is appropriately said in Vanhorne v. Dorrence, 2 Dall. (U. S.) 308, Fed. Cas. No. 16,857, 1 L. Ed. 391: "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 petition of opposing interests, and the vence 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

provides as follows: "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 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 result 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." 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 objects of the convention. These officers 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, § 4, of the Constitution of the United States provides that: "The United States shall guaranty 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 Independence." 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, 12 L. Ed. 581, 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 guaranty 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 guaranty 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, 19 L. Ed. 227, 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 a legislative power, and resides in Congress. Under the fourth article of the Constitution, it rests with Congress to decide what government is the established one in a state. For, as the United States guaranty 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 élection 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 Major and Alfalfa, and which restrain