or limitation." And on page 122 of 42 South., citing from McDaniel's Case, 2 Hill's Law (S. C.) 270: "An ordinance is produced to us passed by a certain number of individuals assembled in Columbia. This gives it no authority as an act of the people. But we are told they were elected by the people. This, however, is not enough. To what purpose were they elected by the people? To represent their sovereignty. But was it to represent their sovereignty to every purpose, or was it for some specific purpose? To this no other answer can be given than the act of the Legislature under which the convention was assembled. Certainly the people may, if they will, elect delegates for a particular purpose, without conferring on them all their authority. The Supreme Court judges of Massachusetts, in 6 Cush. 574, 575, in discussing this question, said: "Upon the first question, considering that the Constitution has vested no authority in the Legislature in its ordinary action to provide by law for submitting to the people the expediency of calling a convention of delegates for the purpose of revising or altering the Constitution of the Commonwealth, it is difficult to give an opinion upon the question, what would be the powers of a convention, if called? If, however, the people should, by the terms of their vote, decide to call a convention of delegates to consider the expediency of altering the Constitution in some particular part thereof, we are of opinion that such delegates would derive their whole authority and commission from such vote; and upon the general principles governing the delegation of power and authority they would have no right, under such vote, to act upon any proposed amendments in other parts of the Constitution not so specified.'" And on page 122 of 42 South., quoting from Bragg v. Tuffts, 49 Ark. 560, 561, 6 S. W. 160, it is said: "The first question that suggests itself is: What right had the convention-a body consisting of but a single chamber-to enter upon the domain of general legislation? For the raising of revenue, the providing of ways and means to meet the expenses of administering the government, and the prescribing of the funds in which taxes are to be paid, are legislative functions, not of a fundamental character. But by the Constitution of 1836, and by all other Constitutions that have ever been in force in this state, the legislative power has been confined to a General Assembly, consisting of a Senate and House of Representatives. The Governor also has always had a voice in legislation, a limited power in vetoing measures which did not meet his approval. Now, a convention called, for instance, to frame a new Constitution, has no inherent right to legislate about matters of detail. All of the powers that it possesses are such as have been delegated to it, either by express grant or necessary im

plication. But we are of opinion that, when 1 convention is called to frame a Constitution which is to be submitted to a popular vote for adoption, it cannot pass ordinances and give them validity without submitting them to the people for ratification as a part of the Constitution. The delegates to such a convention are but agents of the people, and are restricted to the exercise of the powers conferred upon them by the law which authorizes their election and assemblage." And, in the same case (Ex parte Birmingham & A. R. Co., supra) it is said: "The act so clearly defined the purpose for which the convention should be held that we have every reason to conclude that the Legislature did not, for a moment, anticipate that the convention would undertake to indulge in local legislation relating to Shelby and St. Clair counties."

In Jameson on Const. Con. § 420, is this language: "Does an analogous rule prevail in relation to the convention, the framer of the fundamental law? Or, may it, by virtue of some transcendent power, inherent in it, or of well-established custom or precedent, overleap all bounds interposed to limit its competence, and take upon itself the function of legislation in general?"

And in section 421: "This question will be examined upon both of the grounds indicated in their order, namely: First, upon that of inherent power; and, secondly, upon that of custom or precedence. First, the reasoning of those who assert for the convention a general power of legislation is, in its last analysis, that by which is vindicated the doctrine of conventional sovereignty, of which, in its general form, a refutation has already been attempted. The particular argument in this connection is that the business of a convention is extraordinary, beyond the competence of either of the recognized ordinary agencies of the sovereign. That that body receives its commission from the same source as do these agencies, and therefore, on the whole, is entitled to outrank them all. That, although as a prudent precaution against dissatisfaction or cavil, it is doubtless better for a convention to forego the exercise of extreme rights and submit its works to the judgment of the people, yet it is not true that it lacks power directly and definitively to enact the supreme law of th the land. That, if this be conceded, it needs only to analyze the general power thus described into its constituents to find the power in question. That the fundamental conception of the business of a convention is that it takes to pieces, or, as it is sometimes expressed, tramples under its feet, the existing Constitution of a state, and out of the old materials, or out of old and new together, erects a structure to fill its place. That. with the Constitution, falls, of course, the government of the state. That, starting thus, potentially at least, according to its own will,

with a clean slate, to deny to the body possessing such omnipotence the power of legislation, would be to deny that the greater includes the less. That, if it can enact the fundamental law, why not also the ordinary statute law, of which the nature, it is true, is somewhat dissimilar, but whose importance is vastly inferior. That a convention is competent, by constitutional provision, to abolish all existing agencies of government, and to fill their places with others constructed on different principles. Is it then conceivable, it is asked, that it cannot do directly what it can do indirectly, or that the right to exercise so exalted a prerogative is conditioned upon its exercise in a particular mode? That, as a matter of fact, the convention through its relations to the several departments of the government, as in turn their destroyer and their creator, can exercise at will the functions of each of them. That, being a virtual assemblage of the people, it wields all the powers which the people themselves would possess, were it in the nature of things possible for them to act directly. Hence that, within the bounds fixed by its own discretion, a convention may make laws or may interpret or execute them."

And in section 422 the same author says: "To this argument, the following consider ations constitute in my judgment a complete answer: If the safety of the people is the supreme law, of which there is no doubt, and which I affirm, the maxim involves both a grant of power and a limitation of power. It is a grant of power, inasmuch as it authorizes and requires all public functionaries to protect and defend the people at whatever cost. To do it, however, by adhering: First, to the letter; and, secondly, to the spirit of their instructions, that is, of the Constitution and laws; and, thirdly, to the principles on which the social edifice is bottomed. When the letter of the law is silent, or its spirit doubtful, the principles indicated are the only chart by which official conduct can be regulated, and are the first in validity and sacredness, since they are the sum of the letter and spirit of positive law, as well as that unwritten law which presided at the genesis of the social state, anterior to all positive law.

Hence it is plainly the duty of such functionaries always to conform to those principles, since a disregard of them involves, in substance, a violation of the letter and spirit of the positive law, and at length the ruin of the commonwealth. Do what necessity requires, and ask for indemnity for technical breaches of law, is the rule of practical conduct dictated by the maxim under consideration"-citing Rice v. Foster, 4 IIar. (Del.) 479. "As a limitation of powers, the same maxim is of extensive application. In cases of doubtful construction of constitutional provisions, or in which there are no express provisions determining grants of power, it is the most important touch

stone in our whole system. Starting with the postulate of representative republican institutions, the two following propositions must be accepted: First, that whatever manifestly endangers the safety of these institutions must be forborne, though authorized by an express grant of power; and, secondly, that no act whatever must be done or tolerated in the absence of such a grant, of which the tendency or still more the direct effect would be to endanger them. In the case last supposed, no power to do the act could be implied, under any circumstances whatever, no matter how clearly it might seem, for the time, to be expedient.

"Sec. 423. Now, in the light of these principles, is the exercise by a convention of legislative or other governmental powers, in addition to those clearly belonging to it, to be considered as within its competence, as a constitutional body? Is such an assumption of power one which threatens no danger to the commonwealth? By the theory of those who accord to it such powers, as soon as the convention is assembled, the control of the existing government is at an end; the Constitution lies torn into fragments under its feet; and, while the work of restoration is in progress, that body alone constitutes the state, gathering into its single hands the reins ordinarily held by the four great systems of agencies constituting the government to whose functions it succeeds. If this be so, what but its own sense of justice is to restrain such a body from running riot as did the thirty tyrants at Athens? The jurists of the Illinois convention, of 1862, as we have seen, affirmed that the act under which such a body assembles is no longer binding, when once it has become organized. If, at that moment, it has also cast upon it, by virtue of its great commission, all governmental powers, how easy to extend the scope and the period of the exercise of those powers under the plea that expediency demands it. The expedient is the appropriate domain of a Legislature. If, at the moment of organization, a convention is endowed with legislative powers, it may be deemed expedient to subvert the system of guaranty by which our liberties are assured to us, and at the same time to withhold from the popular vote the constitutional provisions by which the change is to be effected. Such a consummation would be not merely possible; it would be probable. And clearly, the possibility of its occurring with an appearance of rightfulness is enough to stamp as dangerous that theory of conventional powers from which it must flow. In the science of politics, it is an important point gained to have settled the limit where normal action ends and revolution begins. To have done that is practically, in most cases, to have rendered revolution impossible. The result is that a convention cannot assume legislative powers. The safety of the people, which is

the supreme law, forbids it. Even if we suppose the body expressly empowered by the Legislature to exercise such powers, the right so to do must be denied, because the same supreme law places an absolute interdict on such a grant. It is beyond the power of a Legislature to delegate any such authority.

"Sec. 424. To these general considerations, tending to discredit the claim of conventions to legislative powers, must be added the decisive circumstance that our Constitutions, as well state as federal, have vested all the power of ordinary legislation the people have chosen to grant at all, in our Legislatures. The construction put upon these provisions of our Constitution by the courts is that the grant is exclusive, and that the power can neither be delegated by the Legislatures, nor exercised by the people, not even by the whole people.

"Sec. 425. Were additional arguments needed to demonstrate that a convention has no power of ordinary legislation, reference might be made to the fact that the possession of such a power would be extremely inconvenient, on account of the necessarily temporary and experimental character of such legislation, on the one hand, and the difficulty of effecting changes in the enactments of conventions, on the other. Every ordinance or constitutional provision passed by a convention assumes a form nearly as rigid as that of the Median laws. They can be repealed only in the formal way in which they were enacted. It would be impossible to administer with any success any government so crippled in its legislative arm. result would inevitably be that laws would be constantly disregarded, or that conventions would become so necessary and frequent that they would ultimately supplant our Legislatures."

The

I have not indulged in as extensive a citation of authorities as the subject under discussion would warrant, for the reason that in my judgment the conclusions reached are logical deductions which can be drawn from the enabling act itself, when we interpret the same in the light of all the surroundings and conditions which existed at the time the same was passed, bearing in mind the object to be attained, and the result to be accomplished. This is a question of very grave importance to the people of these two territories. One which is important, not only in the present, but of vast importance to the future. It is one which reaches the vital interests of the state to be formed from the virgin soil of these great territories. It is one the importance of which should raise it above personal or partisan feeling; one in the discussion of which party politics and personal interests should have no place, and no weight; one in which the people require at the hands of the courts their honest, unbiased judgment, uninfluenced and unham

pered by any thing other than a careful and candid consideration of the law as it exists, and an honest expression of opinion, and it is only the vast importance of the subject which induced me to file this dissenting opinion. I have briefly given my views of the subject as they occur to me, that they may be made matters of record showing my reasons, or some of my reasons, for differing with the conclusion reached by a majority of this court, and, while I entertain the highest regard for the attainments and legal ability of the members of this court, and have the greatest respect for their legal opinions, I am constrained to dissent from the views expressed by them in this case.

(18 Okl. 712)

WALCK v. MURRAY et al. (Supreme Court of Oklahoma. June 25, 1907.) CONSTITUTIONAL LAW-INJUNCTION — JURISDICTION-CONSTITUTIONAL CONVENTION.

A court of equity has no power or jurisdiction to restrain or enjoin the constitutional convention, its officers or delegates, from exercising any of the rights, powers, and obligations confided to it by Congress or the people; nor can the powers of the court be invoked to restrain or enjoin the submission of the Constitution, or any proposition contained therein, to a vote of the people, in advance of its adoption and ratification by the people, and its approval by the President of the United States, on the ground that the Constitution, or any of its provisions, is unconstitutional, or that the convention acted in excess of its lawful powers. Irwin and Pancoast, JJ., dissenting. (Syllabus by the Court.)

Suit by G. F. Walck against W. H. Murray and others. Dismissed. Horace Speed, for plaintiff. J. F. King, for defendants.

HAINER, J. This is an original action, brought by G. F. Walck against W. H. Murray, president of the constitutional convention, John M. Young, its secretary, Frank Frantz, Governor of Oklahoma Territory, and Charles H. Filson, Secretary of Oklahoma Territory. The material averments in the petition are as follows: That the plaintiff is a citizen, taxpayer, and qualified elector of Day county, Okl. T. That the constitutional convention has inserted in the proposed Constitution for the state of Oklahoma several provisions which are repugnant to the Constitution of the United States and the principles of the Declaration of Independence, and in violation of the terms and conditions of the enabling act, and that the Constitution is not republican in form. That Day county, named by the enabling act as one of the counties to be and remain in the Second congressional district until the next national census, is eliminated, and its territory is divided between Roger Mills county and a new county called Ellis county, formed by said

proposed Constitution of the remainder of said Day county and a part of Woodward .county. That the proposed Constitution further contains provisions dividing Greer county into three counties, called Greer, Jackson, and Beckham, etc. It is further alleged that the legislative apportionment is not fair, just, or equal, but that the same is intentionally and grossly unequal, unjust, and unfair, and is not made with reference to the population or the qualified electors of the proposed districts, and is not based on the population of the proposed legislative districts. That the defendants will, unless restrained, issue said proclamation and proceed by the usual methods in the case of election, and which may result in the ratification of the unlawful provisions aforesaid, contained in said proposed Constitution. That the petitioner is remediless at common law and except under the procedure in the courts of chancery. Wherefore the plaintiff prays that this court grant an injunction, restraining and enjoining the defendants, and each of them, from issuing a proclamation or calling an election, or doing any other act towards an election to ratify or reject or act upon the sald Constitution containing said provisions, or any of them, and upon the final hearing that the temporary Injunction be made perpetual.

The same questions are involved in this case as were determined by this court in the case of Frank Frantz et al. v. G. E. Autry, 91 Pac. 193, and upon that authority the plaintiff's cause of action must be dismissed for want of jurisdiction.

IRWIN and PANCOAST, JJ., dissenting.

(18 Okl. 710)

MCCOLLISTER v. MURRAY et al. (Supreme Court of Oklahoma. June 25, 1907.) Action by J. O. McCollister against W. H. Murray and others. Dismissed.

Horace Speed and Virgil M. Hobbs, for plaintiff.

HAINER. J. This is an original action, brought by J. O. McCollister against W. H. Murray, president of the constitutional convention, John M. Young, its secretary, Frank Frantz, Governor of Oklahoma Territory, and Chas. H. Filson, Secretary of Oklahoma Territory, alleging substantially the same matters as were set forth in the case of G. F. Walck v. H. Murray et al. (No. 2,145) 91 Pac. 238. and asks for the same relief.

Upon the authority of Frank Frantz et al. v. G. E. Autry, 91 Pac. 193, the relief prayed for must be denied, and the plaintiff's cause of action is dismissed, for want of jurisdiction.

IRWIN and PANCOAST, JJ., dissenting.

(18 Okl. 707) BOARD OF COM'RS OF GREER COUNTY ex rel. THACKER, County Attorney, v. CONSTITUTIONAL DELEGATE CONVENTION OF OKLAHOMA TERRITORY et al.

(Supreme Court of Oklahoma. June 25, 1907.) CONSTITUTIONAL LAW-INJUNCTION - JURISDICTION-CONSTITUTIONAL CONVENTION.

A court of equity has no power or jurisconvention, its officers or delegates, from exerdiction to restrain or enjoin the constitutional cising any of the rights, powers, and obligations confided to it by Congress or the people; nor can the powers of the court be invoked to restrain or enjoin the submission of the Constitution or any proposition contained therein, to a vote of the people, in advance of its adoption and ratification by the people, and its approval by the President of the United States, on the ground that the proposed Constitution or any of its provisions is unconstitutional, or that the convention acted in excess of its powers. Irwin and Pancoast, JJ., dissenting. (Syllabus by the Court.)

Error from District Court, Logan County: before Justice John H. Burford.

Action by the board of county commissioners of Greer county, on the relation of Charles M. Thacker, county attorney, against the Constitutional Delegate Convention of Oklahoma Territory and Indian Territory and others. Judgment for defendants, and plaintiff brings error. Affirmed.

Arthur B. Garrett, Andrew M. Stewart, and Horace Speed, for plaintiff in error. J. F. King, W. A. Ledbetter, and R. L. Williams, for defendants in error.

HAINER, J. This was an action brought in the district court of Logan county, by the board of county commissioners of Greer county, on the relation of Charles M. Thacker, county attorney of said county, against the constitutional delegate convention of Oklahoma Territory and Indian Territory, William H. Murray, president, and others, constituting all the delegates to said convention; the object of the suit being to perpetually restrain and enjoin the convention, its officers and delegates, and all persons acting through or under them, from submitting, as a part of the Constitution of the proposed state of Oklahoma, to the electorate of Oklahoma Territory and Indian Territory, a certain proposition or provision which would in effect divide Greer county into three distinct parts, and thereby change the county lines, and take a large part of its original territory therefrom, and create two other distinct counties within what was formerly the boundaries of Greer county, and as it now exists, and has existed since it was established as an organized county in Oklahoma by act of Congress of May 4, 1896. The convention, its delegates and officers, were further asked to be restrained and enjoined from editing, enrolling, or authenticating as a part of the Constitution any such

provision, and prohibiting it and its agents from submitting to the electors of Oklahoma any provision which, by its terms, divides Greer county, or changes its boundaries. Upon the hearing, the court below declined to grant an injunction, and from this order the plaintiff, Greer county, appeals.

It is contended that the division of Greer county is invalid and in violation of the enabling act and of the act of Congress creating Greer county; that it deprives the county of its lawful territory and inhabitants, increases the taxes, depreciates the value of the remaining property, and is an irreparable injury. The same questions were involved and fully considered in the case of Frank Frantz et al. v. G. E. Autry (decided at this term of the court) 91 Pac. 193, where this court held that: "A court of equity has no power or jurisdiction to restrain or enjoin the constitutional convention, its officers or delegates, from exercising any of the rights, powers, and obligations confided to it by Congress or the people; nor can the powers of the court be invoked to restrain or enjoin the submission of the Constitution, or any proposition contained therein, to a vote of the people, in advance of its adoption and ratification by the people and its approval by the President of the United States, on the ground that the Constitution, or any of its provisions, is unconstitutional, or that the convention acted in excess of its powers." And it was also decided in that case that: "The power vested in the convention to form a state government clearly implies the power to create and define all the counties with in the limits of the proposed state; the only limitation upon the convention in this respect

being that the Osage Indian reservation shall remain as a separate county until the lands therein are allotted in severalty, and until changed by the Legislature of the state."

Hence, that case is decisive of the points involved here, and upon that authority, and the cases therein cited, the judgment of the court below must be affirmed.

BURFORD, C. J., having tried the cause in the court below, not sitting. IRWIN and PANCOAST, JJ., dissenting.

(18 Okl. 711)

June 25, 1907.)

HAINES V. MURRAY et al. (Supreme Court of Oklahoma. Error from District Court, Logan County; before Justice John H. Burford.

Action by E. A. Haines for himself and others similarly situated against E. H. Murray and others. Judgment for defendants, and plaintiff brings error. Affirmed.

W. W. S. Snoddy, H. A. Noah, and Horace Speed, for plaintiff in error. J. F. King, for defendants in error.

HAINER, J. The same questions are involved in this case as were decided by this court in the case of Frank Frantz et al. v. G. E. Autry (No. 2,154) 91 Pac. 193, and upon the authority of that case, and the cases cited therein, the judgment of the district court of Logan county is affirmed.

BURFORD, C. J., having tried the cause in the court below, not sitting. IRWIN and PANCOAST, JJ., dissenting.