amples illustrative of these suggestions may easily be imagined."

And again, the legislature of the territory of Montana, acting under a provision of the organic act of that territory, providing that they might legislate upon "all rightful subjects of legislation," passed an act in 1883 “authorizing the citizens of Jefferson county to vote upon the question of removing the county seat of said county from Radersburg to Boulder City," and providing for the election. The validity of the election was sustained by the supreme court of that territory, under the election law of the territory, the court saying that, "if there is a fair vote and an honest count, the qualified voters must not be disfranchised, by having the election declared void, because the officers conducting the same were not duly sworn or chosen, or were not qualified for the office or for any technical irregularity"; and that "the great question is whether the voice of the majority has been honestly and fairly expressed;" and "the question is, was there a fair vote and an honest count?" Wells v. Taylor (Mont.) 3 Paç. 255.

The legislature of the territory of Arizona enacted a law, which was approved February 25, 1885, in which it was provided that "the qualified voters of Mohave county should at the next general election designate by ballot the locality for the county seat of said county." The act was sustained by the supreme court of that territory, the court saying that: "One question we must dispose of at the threshold. It has been urged with great force and ability that the law authorizing the election is invalid, in that it attempts to delegate legislative powers to the voters of Mohave county. The location of a county seat should be determined by the people of a county. Their interests and convenience should alone be consulted. So, in most of the states, laws have been enacted by which a vote of the people should determine the question. No case has been cited that decides such laws to be invalid. They have been acquiesced in by the courts and the lawmakers too long now to question their validity." Territory v. Board of Sup'rs of Mohave Co., 12 Pac. 730; citing Calaveras Co. v. Brockway, 30 Cal. 326; State v. Stearns, 11 Neb. 104, 7 N. W. 743; Boren v. Smith, 47 Ill. 482.

The legislature of the territory of Wyoming having enacted a law to divide one county into three, which was special and local legislation, and the supreme court of the Unit.ed States having ratified and sanctioned this act, and the legislature of the territory of Montana having, in 1883, passed an act authorizing the citizens of Jefferson county to vote upon the question of removing the county seat of said county from Radersburg to Boulder City, which was special and local legislation, and the legislature of the territory of Arizona having in February, 1885, enacted that the qualified voters of Mohave county should be authorized to hold a similar

election to determine the locality for the county seat of said county, and this legislation having been approved in one instance by the supreme court of the United States and in the other two instances by the supreme courts of those territories as lawful, under the organic act of those territories, providing that the legislative power of the territory should "extend to all rightful subjects of legislation, not inconsistent with the constitution and laws of the United States," congress thereafter, on the 30th day of July, 1886, put an end to such special and local legislation by enacting that "the legislatures of the territories of the United States now or hereafter to be organized, shall not pass local or special laws in any of the following enumerated cases, that is to say: ing or changing county seats

Locat(24

Stat. 170); and thereby conceding, so far as congress could concede, without another express declaration upon the subject, that while the legislatures of the territories should be prohibited thenceforth from enacting a special election law for any particular county of the territory, and should be prohibited from legislation locating the county seat of any particular county, it would no further than that interfere with the interests and convenience of the people in passing a general election law with respect to the location of county seats of the territories, which the legislatures of the territories had theretofore uniformly conceded to have the power to enact under the provision that "the legislative power of the territory shall extend to all rightful subjects of legislation, not inconsistent with the constitution and laws of the United States."

Such was the law as contained in the organic acts of the territories generally, including Montana and Arizona, the legislative acts thereunder by the legislatures of those territories, enacting local and special legislation concerning the removal of county seats, the construction of their supreme courts upon it, and the provisions made by congress, in which, while it carefully provided that the legislatures of the territories of the United States "should not pass local or special laws

locating or changing county seats," it refrained from an enactment which would have prohibited the legislatures of the territories from passing general election laws, but permitted the right to pass those laws to remain in the territorial legislatures, where they had been, by the uniform construction of the territorial courts and the supreme court of the United States, conceded to be, and thereupon congress passed the organic act for this territory (May 2, 1890; Stat. 1893, p. 38, § 1), in which it was provided that "whenever the interest of the Cherokee Indians in the land known as the 'Cherokee Outlet' shall have been extinguished and the president shall make proclamation thereof, said Outlet shall thereupon and without further legislation become a part of the territory of Okla

homa." And by section 4: "That for the purpose of facilitating the organization of a temporary government in the territory of Oklahoma, seven counties are hereby established therein, to be known, until after the first election in the territory, as the 'First County, the 'Second County,' the Third County,' the 'Fourth County,' the 'Fifth County,' and the 'Sixth County,' the boundaries of which shall be fixed by the governor of the territory until otherwise provided by the legislative assembly thereof. The county seat of the First county shall be at Guthrie. The county seat of the Second county shall be at Oklahoma City. The county seat of the Third county shall be at Norman. The county seat of the Fourth county shall be at El Reno. The county seat of the Fifth county shall be at Kingfisher City. The Sixth county seat shall be at Stillwater. The Seventh county shall embrace all that portion of the territory lying west of the one hundredth meridian, known as the 'Public Land Strip,' the county seat of which shall be at Beaver: provided, that the county seats indicated by this act may be changed in such manner as the territorial legislature may provide."

The portion of Oklahoma then existing as opened and settled country, and provided for by the second paragraph of section 4 of the organic act, had been opened on the 22d day of April, 1899, without the preceding provident provision of an organic act or of any legislation organizing a territorial government. The act, as it will be seen, provided that the counties and their county seats were located "for the purpose of facilitating the organization of a territorial government," and for that purpose it was provided that the county seats "shall be at the special points respectively named in the statute," and that "the county seats located by this act may be changed in such manner as the territorial legislature may provide." In the enactment of this legislation it was apparently conceded by the congress that the statute of July 30, 1886, which provided that the legislature of the territories should not thereafter pass local or special laws "locating or changing county seats," might be found to be inconvenient, and not adapted to the exigencies existing in the part of Oklahoma then being provided for, since no body of laws had theretofore been provided for the people, and that the territorial legislature should be left free concerning the county seats named, and the provision was then made that "the county seats located by this act may be changed in such manner as the territorial legislature may provide"; that is, that, with respect to the seven counties therein provided for, they should not be hindered or hampered by the act of July 30, 1886, by which it was provided that the legislatures of the territories "shall not pass local or special laws" "locating or changing county seats," and that the territorial legislature should be left entirely free and unrestricted by the act of 1886, and

should change such county seats in such manner, by either "local or special" legislation, as the territorial legislature might see fit to provide. The provision thus made was a provision of enlargement, not as a substitute for, or in lieu of, or in revocation of, that provision of the organic act which provides that the territorial legislature might legislate upon "all rightful subjects of legislation," or of the general election law for the change of county seats, which was not enacted until afterwards, but providing that, inasmuch as that general power was already conceded by the decisions of the courts and the legislation of congress, and inasmuch as a new condition was here presented in which congress was dividing the territory already settled into counties whose boundaries were thereafter to be ascertained, and was at the same time undertaking to say where the county seats thus, established "shall be," and that inasmuch as the people, and the legislature, acting in their behalf, might be hampered by so much special legislation with respect to the boundaries of the counties and the fixing of their county seats, that the territorial legislature should in that particular instance be set free from limitations provided in the statute of July 30, 1886, by which a general restriction had been imposed upon all territorial legislatures, by which they were prohibited from enacting "local or special" laws in the matter of "locating or changing county seats." And congress, by the enactment of that provision, did not undertake to concede to the territorial legislature a power to legislate by providing a general election law providing for the removal of county seats by an election to be held by the people of the counties of Oklahoma, since that power was conceded to them by the previous decisions of the courts and by the legislation of congress. But congress did then undertake to provide, and did provide, that the territorial legislature should not in any manner be restricted by the prohibition contained in the act of July 30, 1886, against special or local legislation against changing county seats, but, for that time and for those seven counties, "that the county seats indicated by this act may be changed in such manner as the territorial legislature may provide."

Such being the condition of the law, the territorial legislature, at its first session, enacted chapter 22 of the Statutes of 1890, entitled "County Seats," providing for the manner and means of "locating and relocating county seats." It provided upon what conditions the board of county commissioners, "at any called or special or regular session," were authorized to call an election for the purpose of locating or changing the county seat of any county in Oklahoma. This act took effect December 25, 1890, and remained the law, and, except as slightly amended by the legislative assembly at the session of 1893, is now the law, of this territory, and is now embodied in chapter 23 of

the Statutes of 1893. It is provided by section 3 of the organic act, among other things, as a part of the duties of the secretary of the territory, that “he shall transmit one copy of the laws and the journal of the legislative assembly within thirty days after the end of each session thereof, to the president of the United States and to the secretary of the interior, and at the same time two copies of the laws and journals of the legislative assembly to the speaker of the house of representatives and the president of the senate, for the use of congress. The organic act was passed May 2, 1890. The general election law, enacted by the territorial legislature, became a law on the 25th day of December, 1890, and in pursuance of the third section of the organic act, and for the information of the president, the secretary of the interior, and congress, the copies of the general election law had, undoubtedly, been transmitted to them, as provided by the organic act, by the secretary of the territory. And in this condition of the law, it having been conceded by the supreme court of the United States, as has been said, that such corporations as these counties are composed of all the inhabitants of the territory included in the political organization; that the attribute of individuality is conferred on the entire mass of such residents, and may be modified or taken away, at the mere will of the legislature, according to its own views of public convenience, and that they are under the entire control of the legislature, from which all their powers are derived, and that it is everywhere acknowledged that the legislature possesses the power to divide the counties at their pleasure, and that political subdivisions of this kind are always subject to the general laws of the state; that the theory upon which the various governments for portions of the territory of the United States have been organized has ever been that of leaving to the inhabitants all the powers of self-government consistent with the supremacy and supervision of national authority, and, as declared by the supreme court of Arizona, that the location of a county seat should be determined by the people of a county, their interests and convenience alone consulted, and that such laws had been too long acquiesced in by courts and the lawmakers to now question their validity; and in view of the legislation which congress had enacted on July 30, 1886, to check the prac tice in the territorial legislatures of legislating locally and specially touching the location and change of county seats, and in view, again, of its own legislation, by which it had undertaken to suspend the operation of the act of July 30, 1886, for the benefit of the seven counties first located in Oklahoma, of which the county seats had been located, and to provide that, with respect to those counties, the territorial legislature should not be hampered, but might change them in such manner as it should see fit to provide, it

*

#

*

*

*

thereupon came on to enact further provisions for the opening of the Cherokee Outlet, and more than two years after the enactment of the general election law of Oklahoma it provided, on March 3d, for opening the Cherokee Outlet (section 10, pp. 71, 72, St. 1893), that "the president of the United States is hereby authorized by proclamation to open to settlement any or all of the lands not allotted or reserved, and also subject to the provisions of the act of congress, approved May 2, 1890 [the organic act], entitled 'An act to provide a temporary government for the territory of Oklahoma.' The secretary of the interior was, under the direction of the president, directed to prescribe rules and regulations, not inconsistent with this act, for the occupation and settlement of said lands, to be incorporated in the proclamation of the president, which shall be issued at least, twenty days before the time fixed for the opening of said lands." And it also enacted (St. Okl. 1893, p. 73, § 14) that "before any of the aforesaid lands are opened to settlement it shall be the duty of the secretary of the interior to divide the same into counties, which shall contain as near as possible not less than five hundred square miles in each county. In establishing said county lines the secretary is hereby authorized to extend the lines of the counties already located so as to make the area of said counties equal, as near as may be, to the area of the counties provided for in this act: * provided, further, that as soon as the county lines are designated by the secretary he shall reserve not to exceed one-half section of land in each county, to be located for countyseat purposes, to be entered under sections twenty-three hundred and eighty-seven and twenty-three hundred and eighty-eight of the Revised Statutes, and all reservations for county seats shall be specified in any order or proclamation which the president shall make for the opening of the lands to settlement."

Under the provisions of this act, which authorized the secretary of the interior, under the direction of the president, to prescribe rules and regulations "for the occupation and settlement" of the lands.of the Cherokee Strip, the secretary reserved half sections of land "located for county-seat purposes" in each of the several counties into which the Cherokee Outlet was then divided. It will be observed that when the first opening of Oklahoma occurred, and the seven counties were opened and occupied for settlement, on the 22d day of April, 1899, congress did not provide any laws or organization for such counties. It had not made any reservation of lands for countyseat purposes, so that in the seven counties of which it was composed, and which were established by section 4 of the organic act, no land was reserved at all for public purposes. All of the land included in each of

# *

* * *

said counties into which the territory was thereby divided had been appropriated to private use, and congress, when it undertook to legislate and to fix the county seats by the act of May 2, 1890, upon land which had then theretofore been opened and completely occupied more than a year before, said in express terms at what point the county seat of each of the said respective counties "shall be"; but, by the proviso annexed to the act (section 4 of the organic act), the people were not only left at liberty to have a general election law, under section 6 of the organic act, providing that "the legislative power of the territory shall extend to all rightful subjects of legislation," as the same had been uniformly interpreted by the courts and by the congress itself in the act of July 30, 1886, but, in order that absolute freedom might be given upon the subject, it also made that special provision for the particular case then in hand, notwithstanding the general legislation and restriction of the act of July 30, 1886, that "the legislatures of the territories shall not pass local or special laws locating or changing county seats." The people and their legislature were thus left wholly at liberty on the subject, and when, afterwards, the general election law, contained in chapter 33 of the Statutes of 1890, was enacted, which is now still in existence in chapter 33 of the Statutes of 1893, providing upon what terms and conditions, and under what circumstances, the people of the respective counties of the territory might proceed thereunder, and more than two years thereafter congress provided for the opening of the Cherokee Outlet, by the act of March 3, 1893, as herein before stated, it did not fix county seats for the respective counties, nor say where the county seats should respectively be, nor undertake to establish them at all; but, acting wholly for the benefit of the people and for their convenience alone, and in pursuance of the statute which authorized the secretary of the interior to prescribe rules and regulations, under the direction of the president, for the "occupation and settlement" of the lands of the Cherokee Outlet, the reservations authorized by the act "to be located for county-seat purposes" were made. The act was one solely for the convenience and benefit of the people. It was a reservation to be accepted if the people of the respective counties saw fit, or to be refused if they saw fit, or to be accepted, and afterwards abandoned, if they deemed it to their best interests, acting under that legislation for the changing of the location of county seats which had been passed by the legislature of Oklahoma two years before, and of which congress had full notice, as provided under section 3 of the organic act, and according to the terms of the organic act itself, by section 1: "Whenever the president shall make proclamation there

* *

of, said Outlet shall thereupon and without further legislation, become a part of the territory of Oklahoma." And the Cherokee Outlet and its lands became, by such opening, and by the provision herein last before recited, "a part of the territory of Oklahoma," subject to all its laws, by the express enactment of congress, among which laws was the law for the changing of the location of county seats, contained in chapter 22 of the Statutes of the territory of 1890. It is too late now to argue that the election law enacted by the territorial legislature was not, from the time of its enactment, of valid and effective force. Adequate provision was made by the organic act, by which congress had full information at the time of its enactment of the general countyseat election law of 1890. Congress took no notice of it, did not annul or disapprove it, but permitted it to stand as proper and approved legislation, and we must, therefore, regard it as of final, effective, and conclusive force.

The same proposition has been asserted by the circuit court of the United States for Oregon in Kie v. U. S. (C. C.) 27 Fed. 351, in which it is said that "the fact that congress has never disallowed or disapproved the act, and has not

legislated directly on the subject, goes far to establish its validity as not inconsistent with the organic act." Upon a similar objection to a territorial statute it was said by Chief Justice Chase in Clinton v. Englebrecht, 13 Wall. 434, 20 L. Ed. 659, that: "In the first place, we observe that the law has received the implied sanction of congress. It was adopted in 1859. It has been upon the statute book for more than twelve years. It must have been transmitted to congress soon after it was enacted, for it was the duty of the secretary of the territory to transmit to that body copies of all laws on or before the 1st of the next December in each year. The simple disapproval by congress at any time would have annulled it. It is no unreasonable inference, therefore, that it was approved by that body." The general election law for the change of the location of county seats having been fully approved December 25, 1890, and not up to this time having been revoked or disapproved by congress, and a period of nine years having elapsed, we have the express affirmation of the supreme court of the United States, by its chief justice, that "it is no unreasonable inference; therefore, that it [this election law] was approved by that body." The conclusion of Chief Justice Chase that, if the act passed by the legislature of the territory, which had remained upon the statute book for a period of 12 years without any disapproval by congress, the reasonable inference was that it was approved by that body, is in harmony with all that has been said on the subject before by either the supreme courts