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duty of the convention to supply all defects in the operation of such machinery, and make the same, as supplemented by the convention, conserve the purposes of the entire proposed state. I find nothing in the election ordinance submitted by the pleadings in this case which in my judgment transgresses the powers of the convention, and upon this proposition I am in full accord with the opinion prepared by Mr. Justice HAINER. Other questions have been argued in the several cases involving the questions here under consideration, by the determination of the court that the questions of what subjects, their nature or extent, may be by the convention proposed for approval or disapproval, is not one of judicial cognizance, disposes of all questions relating to the contents of the proposed Constitution.

BURWELL, J. (dissenting). A majority of my Brethren have declared what shall (for a time at least) be the law of this case; but, as I entertain some views at variance with those expressed in the majority opinion, it is perhaps due the parties to the action, as well as the public (for all who live in either of the territories are interested in the result of this case) to know the reasons that have impelled me to withhold my full concurrence in the judgment of the court. In every controversy, personal or legal, there are two sides; but, in the very nature of things, on each issue one must be right and the other wrong, and while experience has shown that, in the greater number of cases, perhaps the majority have been right, sometimes truth has been revealed to the few. And notwithstanding the respect I have for the opinions of my Brethren who have concurred in the decision of the court, my own convictions have told me that the law on one vital point is with the party who commenced this action, and that he is entitled to some relief.

The science of government is a profound subject, which requires years of study and observation to master. In a republic nothing is as important as the Constitution or organic law. Equally important is the organic law of a state. As to what should be in the Constitution of Oklahoma to best protect the interests of her citizens, afford equal opportunities to earn a livelihood, and promote happiness, are questions which the constitutional convention must determine, subject to the approval of the voters of the proposed state; and this court cannot, with due regard to its powers, express thereon any opinion. But under the organic act of Oklahoma, which is and will remain in force until supplanted by a state Constitution or repealed by Congress, the Supreme and district courts of the territory are granted jurisdiction and power to redress all wrongs committed against the Constitution or laws of the United States, or of the territory, affecting persons or property. The constitutional convention was convened by authority of the

| United States, and, where it is charged that they have exceeded their authority, the courts may on proper application take jurisdiction, determine the issues, and render any rightful judgment therein. At the very threshold of this litigation, the bold assertion is made that the convention has exceeded its powers and divided counties already organized in Oklahoma, and that it has provided for the election, not only of state officers including delegates to Congress and members of the Legislature, but also for the election of all officers, state, county, and township. In this country, with its diversified interests, with its people from all sections of the nation who have brought with them the policies and ideas of the lawmakers of their own state, with the struggle for personal and political supremacy, it would be indeed difficult to form a Constitution that would satisfy all. Therefore, when counties are divided and new ones formed under conditions calculated perhaps to increase the taxation of the individual, I am not surprised that he should ask relief from the impending burdens; but, whether the division of counties may increase or diminish the taxes of the citizen will not influence in any degree the judgment of this court, unless the convention has exceeded its authority and usurped powers not necessarily implied or expressly conferred.

The only way in which the charge can be correctly decided is by investigating: First, the provisions of the enabling act, the Constitution of the United States, and the Declaration of Independence; and second, ascertaining what powers a constitutional convention has incidental to the forming of a Constitution-in other words, what are its implied powers. It is to the enabling act that both parties point with apparent confidence as supporting the position taken; but, after a careful study of this important congressional authority, I am forced to the conclusion that both have in some particulars misapprehended the meaning of that act. In the first place, those who represent the convention assert that the making of counties or providing for their creation and organization are necessary to the framework of a state, and therefore properly and necessarily the work of the convention, and that in establishing boundary lines in the Indian Territory, and in dividing the counties already established by Congress in Oklahoma and creating new counties therefrom, the convention followed in the footprints of precedents; while the appellee contends that these acts were expressly forbidden by Congress. In support of his position the appellee points to the fact that the counties in Oklahoma divided by the convention have been established by Congress, and are organized and officered under the laws of Oklahoma, and that the latter part of section 21 of the enabling act (Act June 16, 1906, c. 3335, 34 Stat. 277) provides: "And all laws in force in the territory of Oklahoma at the time of the admission of said.

state into the Union shall be in force throughout said state except as modified or changed by this act or by the Constitution of the state, and the laws of the United States not locally inapplicable shall have the same force and effect within said state as elsewhere within the United States." Surely no lawyer will contend that the provisions of the Constitution can become effective until Oklahoma is formally admitted into the Union. Until that time, its penalties cannot be enforced; its guaranties cannot protect the citizen in the enjoyment of life, liberty, or property. The convention is acting for the future state, and not for the territories. It cannot divide the counties of the territory of Oklahoma, but it may declare not only how many counties may be created, but also what territory shall form the counties of the state; and that part of section 21 of the enabling act which provides that the laws of Oklahoma shall be in force throughout the state, except as modified by the Constitution, etc.. of the state, made clear the intention of the lawmakers. "Except as modified by the Constitution of the state" is the language of Congress, and the instrument proposed to be submitted to the people for ratification is not yet a Constitution. In fact, it may never be. The voters must first adopt it, and then it must be approved by the President before life is breathed into it. Its terms do not become operative by degrees. It is and will be void of life until the President issues his proclamation. When this is done the entire Constitution, each and all of its provisions, eo instante spring into life, and from that time on it becomes the ruling power of the state. Until then the offices created by it do not exist. The powers conferred and limitations imposed therein have no binding force, and the counties described in the Constitution are but a part of the written specifica

tions of the architects who have drawn the plans for statehood. And as the architect may propose plans for the building, even so may these agents of the people employed by the government propose plans for the building of the state. Congress has placed certain restrictions in the enabling act. The Constitution of the United States contains other rules that must be followed. Likewise due regard must be observed for the principle of the Declaration of Independence. But, subject to these limitations, the power exists to put into the Constitution or leave out of it that which the judgment of the convention and the people may approve or reject.

The contention, therefore, that the convention cannot legislate under the views herein expressed, must be determined, if at all, as a controversy presenting a subject void of real merit, so far as legal rights are concerned, because such provisions have no force until the state is admitted into the Union, and after that they are binding upon all. Whether the making of counties is a proper subject for the Constitution to deal with, or

should be referred to the legislative branch of the state government, it is unnecessary to decide. Personally, however (and I speaking only for myself), I have no doubt but that the making of counties by the convention or by the Legislature is a matter of judgment, and involves no question of power, unless the Constitution as adopted inhibits the Legislature from dealing with that subject. But, be this as it may, the action of the convention in dividing the counties in question is an act which does not affect the territorial government, but the government of the state, and if the people are entitled to self-government-that is, adopt a state Constitution and code of laws-they and their representatives should be left free to evolve their own system and form a state government to their own liking, within the limitations stated. If it were necessary to support these views by precedents, no difficulty would be experienced in finding them, and I may refer to some of the adjudicated cases later; but before considering them I wish to assert that Congress, instead of prohibiting the convention from fixing county boundaries, and creating new counties for the future state, have expressly recognized the right of the convention to do so. Now, as has been urged by appellee, these counties were created by Congress and officered under the provisions of the territorial laws. Did Congress in the enabling act provide that the laws of the United States and the laws of Oklahoma should continue in force in the

state of Oklahoma? Oh, no. It did, however, attempt to carry along a complete sys

tem of laws and continue the territorial officers in power until supplanted by laws enacted by the state and officers elected by its voters, or duly appointed as the Constitution or laws might provide. The general government provided against contingencies which otherwise might have left the citizen and property exposed to the dangers incident to lack of law. Therefore the enabling act provided that: "All laws in force in the territory of Oklahoma at the time of the admission of said state into the Union shall be in force throughout said state, except as modi. fied or changed by this act or by the Constitution of the state."

What laws shall govern the state when first admitted? The laws of Oklahoma. The laws of Oklahoma as they now exist? No, but the laws of Oklahoma as modified or changed by the enabling act and the Constitution of the state. This language clearly not only confers the right, but anticipates that changes in those laws may be deemed expedient. Let us now notice what is to become of the laws of the United States other than the enabling act. Congress has said in this same section of the enabling act, and as a part of the section referred to above (let us observe the clause again): "All laws in force in the territory of Oklahoma

at the time of the admission of said state into the Union shall be in force throughout said state, except as modified or changed by this act or by the Constitution of the state and the laws of the United States not locally inapplicable shall have the same force and effect within said state as elsewhere within the United States." It will be observed that Congress did not continue in force generally the laws of the United States applicable to Oklahoma and Indian Territory, nor does Congress say that the laws of Oklahoma shall be in force in the state of Oklahoma, except as modified by the enabling act and the Constitution of the state and the laws of Congress. The exception refers to the enabling act and the Constitution of the state, and then in a subsequent clause, but connected with that which precedes it, Congress said, not as an exception, but as a positive declaration: "And all the laws of the United States not locally inapplicable inapplicable shall have the same force and effect within said state as elsewhere within the United States." From this provision it is evident that Congress intended that the laws of the United States enacted for the organization and government of these territories should not continue in force, and that those laws which deal with subjects that would be a proper subject of congressional legislation in a state, and those only, are continued in force, and even those are to have the same force and effect within said state as elsewhere within the United States.

This act is a complete surrender of governmental control over these territories, upon a compliance with its terms and conditions, except that control exercised over the other states of the Union. and this is in keeping with the law applicable to such conditions as declared in the books. In 8 Cyc. p. 750, subd. "e," I find the following language: "Upon the succession of a territory to statehood and the adoption of a Constitution by its people that has received the approval of Congress, all Constitutions and ordinances framed by the federal authorities for the purpose of the territorial government be come suspended, giving full force and effect to the new state Constitution so adopted." Attention is also called to section 13 of the enabling act, which contains the following language: "And that the laws in force in the territory of Oklahoma, as far as applicable, shall extend over and apply to said state until changed by the Legislature thereof." The trial court quotes this language as an inhibition against the power of the Convention to create counties in Oklahoma for the state government, or to provide for the election or appointment of county officers for the same. As the justice who tried this case below is a member of this court and by reason of having presided at such trial will not participate in its consideration here, It is probably due his position that the rea

sons by him assigned for his judgment be answered by the justices called upon to review. This I gladly do. in so far as they conflict with my own opinions, consistent with the space which may reasonably be taken in an opinion of this kind. The trial court, following up the language last quoted by way of argument for his position, states as follows: "It should be borne in mind also that Woods county owes her existence to the same power and authority from which the existence of the convention is derived. The same power which created the convention years before created this county. The law by which this county was created is still in force. The act providing for the formation of a state government, neither by express nor implied terms repeals the act under which this county (Woods county) was formed. How can it then be said that the Congress of the United States gave to the constitutional convention the implied power to divide any county? There is no express provision therefor in the act. There is no necessity for so doing. No better government will be formed thereby. No interests will be better protected. Large and various individual interests have been established, and great confusion would exist by such division." And, again, the trial court, referring to the clause quoted from section 13 of the enabling act, says: "It will be borne in mind that this provision of the enabling act does not provide that the laws of the territory extend over the state only as far as applicable. But the laws of the territory are in operation when the constitutional convention is formed, and remain in operation while the constitutional convention is in session. They remain in full force and operation after the convention is adjourned. Nay, still more, they remain in full force and operation so far as applicable in the whole state after the state government has been formed, and until the state Legislature changes the same. This is a conclusive answer to some of the questions contended for." From a casual reading of the clause of the enabling act referred to, and the language of Mr. Justice Pancoast in deciding the case below, the mind might readily assent to the views above expressed by him; but having started from a false premise-that is, from a misconcep tion of the meaning of the statute quoted, and possibly being inclined to the theory adopted in declaring the law-an erroneous conclusion was reached, as I am sure must be conceded upon full consideration of all of the section of the enabling act from which the clause quoted was taken. However, before proceeding to further inquiry regarding this section. and without elaborating thereon. I wish to refer to the language used by the trial court, and must insist that the courts cannot supervise or review the acts of the convention which pertain to necessity or policy so long as it does not exceed its

power, and even then the courts will only grant relief in certain circumstances. Congress has authorized the convention to prepare a Constitution, and it is not for the courts to say that there is no necessity for dividing counties, or that no better government can be formed thereby, or that no interest will be better protected. Within the powers conferred or implied, the convention may submit to the people its own ideas without let or hindrance.

The language used in section 13 of the enabling act to the effect that the "law in force in the territory of Oklahoma, as far as applicabie, shall extend over and apply to said state until changed by the Legislature thereof," has no reference to the general laws of Oklahoma as they exist at the present time, or as they shall exist after statehood is effected. That part of the enabling act which continues in force the general laws of Oklahoma after the organization of the state is the latter part of section 21, which I have already considered, and expressly says that the laws of Oklahoma shall be in force through the state, except as modified or changed by the enabling act or the Constitution of the state. The language used in this section is positive, and from its provisions the courts of the state can determine and declare what the law is. Not so with section 13. The language of this section is as follows: "And that the laws in force in the territory of Oklahoma, as far as applicable, shall extend over and apply to said state until changed by the Legislature thereof." The laws of Oklahoma, as far as applicable, shall extend over and apply to the state. Who shall determine what laws are applicable to the state? If this clause of section 13 is given the interpretation placed upon it by the trial court, and as contended for by counsel for appellee, then it is in conflict with section 21, which says that the laws of Oklahoma shall be in force throughout the state, except as modified or changed by the enabling act or the Constitution of the state. Such an interpretation would reflect upon the intelligence of Congress, and attribute to both branches of that body a carelessness in the use of language which I am not willing to concede. It is impossible to cut out a subordinate clause of a single sentence, disconnect it not only from the sentence of which it forms a part, but from the entire subject in relation to which it was used, and determine exactly what the speaker or writer had in mind, and the meaning intended to be conveyed. Therefore, in construing this language relied upon as prohibiting this constitutional convention from doing any act which may conflict with existing law. I insist that it be read in connection with the whole of section 13. When so read, its meaning is incapable of misunderstanding.

Section 13 deals with one subject, and

with one subject alone. It divides the state of Oklahoma into two judicial districts, designating the Indian Territory as the Eastern district, and Oklahoma as the Western. It provides the places where the circuit and district courts shall be held in these respective districts. It attaches these districts to the Eighth judicial circuit. It provides for the appointment of clerks of courts, and other court oflicers, and defines their respective duties. It declares that the Circuit and District Courts for each of said districts, and the judges thereof, respectively, shall possess the same power and jurisdiction, and perform the same duties required to be performed by the other Circuit and District Courts and judges of the United States, and shall be governed by the same laws and regulations; that the marshal, district attorney, clerk of each of the Circuit and District Courts of said districts, and all other officers and persons performing duties in the administration of justice therein, shall severally possess the powers and perform the duties lawfully required to be performed by similar officers in other districts of the United States, and shall, for the services they may perform. receive the fees and compensation now allowed by law to officers performing similar services for the United States in other districts of the United States; and then follows the clause relied upon by the appellee: "and that the laws in force in the territory of Oklahoma, as far as applicable, shall extend over and apply to said state until changed by the Legislature thereof." gress, when it used the language just quoted, was dealing with the courts of the United States. It had just defined their jurisdietion and provided for all of those other officers necessary to the administration of those courts, and by this clause a system of procedure was adopted for the government of the United States Circuit and District Courts, until the present procedure of Oklahoma should be changed by the Legislature of the state. Congress had reason to believe that the general laws of Oklahoma would be changed by the Constitution of the state. and it was familiar with the enabling act, which it was then considering, and of which these provisions are a part. The enabling act did not (and Congress in the light of all precedents could hardly anticipate that the constitutional convention would) deal with mere matters of procedure in the courts. However, the unexpected occurred, at least in one instance. But the fact that the convention changed the generally accepted procedure in indirect contempt cases in no way changes my mind as to what Congress anticipated, meant, and intended by this latter part of section 13. The United States, having no uniform procedure for its courts, has deemed it expedient to put in force in the courts of the United States the procedure of the respective states in which such courts are located; and, to comply with this usual

Con

custom, the laws of Oklahoma, as far as applicable, are extended over and made to apply to the state.

Section 914 of the Revised Statutes of the United States (2d Ed. 1878) [U. S. Comp. St. 1901, p. 6841, provides: "The practice, pleading, and forms and modes of proceeding in civil causes, other than equity and admiralty causes, in the Circuit and District Courts, shall conform as near as may be to the practice, pleading and forms and modes of proceeding existing at the time in like causes in the courts of record of the state within which such Circuit or District Courts are held, any rule of court to the contrary notwithstanding." I also quote the following sections from the United States statutes, referred to above:

"Sec. 915. In common law causes in the Circuit and District Courts the plaintiff shall be entitled to similar remedies, by attachment or other process, against the property of the defendant, which are now provided by the laws of the state in which such court is held for the courts thereof; and such Circuit and District Courts may, from time to time, by general rules, adopt such state laws as may be enforced in the states where they are held in relation to attachments and other process: Provided, that similar preliminary affidavits or proofs, and similar security, as required by such state laws, shall be first furnished by the parties seeking such attachment or other remedy.

"Sec. 916. The party recovering a judg ment in any common-law cause in any Circuit

or District Court, shall be entitled to similar remedies upon the same, by execution or otherwise, to reach the property of the judgment debtor, as are now provided in like causes by the laws of the state in which such court is held, or by any such laws hereafter enacted which may be adopted by general rules of such Circuit or District Courts; and such courts may, from time to time, by general rules, adopt such state laws as may hereafter be enforced in such state in relation to remedies upon judgments, as aforesaid, by execution or otherwise."

"Sec. 856. The fees of district attorneys, clerks, marshals, and commissioners, in cases where the United States are liable to pay the same shall be paid on settling their accounts at the treasury.

"Sec. 857. The fees and compensation of the officers and persons hereinbefore mentioned, except those which are directed to be paid out of the treasury, shall be recovered in like manner as the fees of the officers of the states respectively for like services are recovered."

From these and other sections of the United States statutes, and the connection in which the language under consideration was used, it is clear that Congress was dealing with the laws of Oklahoma in section 13 of the enabling act only in so far as they might furnish a rule of procedure or be binding

upon the courts of the United States located within the state of Oklahoma. And it is for the courts of the United States to say how far these laws are applicable in matters pertaining to persons and property which may come before them. Section 13, like the Constitution of the state, has no life and force until the President issues his proclamation; there being no Circuit or District Courts of the United States established within the purview of the act in either of these territories, and doubtless will not be until we are granted statehood. I have considered that part of section 21 of the enabling act which refers to the Osage Indian Reservation, and requires that it constitute a separate county. The language used in reference to this matter, while a limitation on the convention, in that it prevented it from making more than one county out of that reservation, not only recognizes the right of the convention to deal with the subject of counties, but in this particular instance required it to do so.

Being of the opinion that the convention has the right to divide the proposed state into counties, we are confronted with the question of the election of county officers to administer the affairs of such counties upon the, admission of the state into the Union. The right to do so at the election at which the Constitution is to be voted upon is vigorously asserted on the one side, and strenuously denied on the other. In this, as in the other questions involved in the case, no usetions from other decisions, which in the very ful purpose can be subserved by long quota

nature of things can have but little bearing upon the interpretation of the enabling act. As will be seen from investigation, different courses have been pursued by different states, under practically the same conditions. I have examined the decisions cited by counsel on the respective sides and believe I understand what those courts have decided, as well as the contention of the attorneys; but, with due respect to all concerned, I am compelled under the law to approve that theory or interpretation of these laws which appeals to my own reason, and reject those which my conception of the application of legal principles suggest that I exclude. Therefore, believing that a careful study of the enabling act itself will be most likely to lead to a correct understanding of its provision, I turn to it and find therein sufficient to inspire confidence in the conclusion that county officers may be elected at this first election. In section four of the enabling act it is provided: "That in case a Constitution and state government shall be formed," etc., "the convention shall provide by ordinance for submitting it to the people." Then section 6, after dividing the state into congressional districts, ends with the paragraph: "And the said representatives, together with the Governor and other officers provided for in said Constitution, shall be elected on the

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