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or limitation." And on page 122 of 12 South., citing from McDaniel's Case, 2 Hill's Law IS. 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. Certainiy 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 ineans 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 a bout 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. 8 420, 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 caril, 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 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 possess stone in our whole system. Starting with the ing such omnipotence the power of legisla- postulate of representative republican instition, would be to deny that the greater in- tutions, the two following propositions must cludes the less. That, if it can enact the be accepted: First, that whatever manifestfundamental law, why not also the ordinary ly endangers the safety of these institutions statute law, of which the nature, it is must be forborne, though authorized by an true, is somewhat dissimilar, but whose im
express grant of power; and, secondly, that portance is vastly inferior. That a conven no act whatever must be done or tolerated in tion is competent, by constitutional provi the absence of such a grant, of which the tension, to abolish all existing agencies of gor. dency or still more the direct effect would ernment, and to fill their places with others be to endanger them. In the case last supconstructed on different principles. Is it then posed, no power to do the act could be imconceivable, it is asked, that it cannot do plied, under any circumstances whatever, directly what it can do indirectly, or that no matter how clearly it might seem, for the the right to exercise so exalted a prerogative time, to be expedient. is conditioned upon its exercise in a par "Sec. 423. Now, in the light of these printicular mode? That, as a matter of fact, the ciples, is the exercise by a convention of legconvention through its relations to the several islative or other governmental powers, in addepartments of the government, as in turn
dition to those clearly belonging to it, to their destroyer and their creator, can exer be considered as within its competence, as cise at will the functions of each of them. a constitutional body? Is such an assumpThat, being a virtual assemblage of the peo tion of power one which threatens no danple, it wields all the powers which the people ger to the commonwealth? By the theory of themselves would possess, were it in the na those who accord to it such powers, as soon ture of things possible for them to act di
as the convention is assembled, the control rectly. Hence that, within the bounds fixed
of the existing government is at an end; the by its own discretion, a convention may make
Constitution lies torn into fragments under laws or may interpret or execute them."
its feet; and, while the work of restoration And in section 422 the same author says:
is in progress, that body alone constitutes "To this argument, the following consider the state, gathering into its single hands the ations constitute in my judgment a, complete reins ordinarily held by the four great sysanswer: If the safety of the people is the
tems of agencies constituting the government supreme law, of which there is no doubt,
to whose functions it succeeds. If this be and which I affirm, the maxim involves both
so, what but its own sense of justice is to a grant of power and a limitation of power. restrain such a body from running riot as did It is a grant of power, inasmuch as it au the thirty tyrants at Athens? The jurists thorizes and requires all public functionaries of the Illinois convention, of 1862. as we to protect and defend the people at whatever have seen, affirmed that the act under which cost. To do it, however, by adhering: First, such a body assembles is no longer binding, to the letter; and, secondly, to the spirit when once it has become organized. If, at of their instructions, that is, of the Constitu that moment, it has also cast upon it, by tion and laws; and, thirdly, to the princi- virtue of its great commission, all governples on which the social edifice is bottomed.
mental powers, how easy to extend the scope When the letter of the law is silent, or its and the period of the exercise of those powspirit doubtful, the principles indicated are
ers under the plea that expediency demands the only chart by which official conduct can it. The expedient is the appropriate domain be regulated, and are the first in validity of a Legislature. If, at the moment of or.and sacredness, since they are the sum of ganization, a convention is endowed with legthe letter and spirit of positive law, as well islative powers, it may be deemed expedas that unwritten law which presided at the ; ient to subvert the system of guaranty by genesis of the social state, anterior to all which our liberties are assured to us, and at positive law. Hence it is plainly the duty the same time to withhold from the popular of such functionaries always to conform to : vote the constitutional provisions by which those principles, since a disregard of them the change is to be effected. Such a consuminvolves, in substance, a violation of the mation would be not merely possible; it letter and spirit of the positive law, and at would be probable. And clearly, the possilength the ruin of the commonwealth. Do bility of its occurring with an appearance what necessity requires, and ask for indemni of rightfulness is enough to stamp as danty for technical breaches of law, is the rule gerous that theory of conventional powers of practical conduct dictated by the maxim from which it must flow. In the science of under consideration"_citing Rice v. Foster, politics, it is an important point gained to 4 Har. (Del.) 479. “As a limitation of pow have settled the limit where normal action ers, the same maxim is of extensive appli ends and revolution begins. To have done ration. In cases of doubtful construction of that is practically, in most cases, to hare renconstitutional provisions, or in which there dered revolution impossible. The result is are no express provisions determining grants that a convention cannot assume legislative of power, it is the most important touch- powers. The safety of the people, which is
the supreme law, forbids it. Even if we sup pered by any thing other than a careful and pose the body expressly empowered by the candid consideration of the law as it exists, Legislature to exercise such powers, the and an honest expression of opinion, and it right so to do must be denied, because the is only the vast importance of the subject same supreme law places an absolute inter which induced me to file this dissenting opindict on such a grant. It is beyond the pow ion. I have briefly given my views of the er of a Legislature to delegate any such au subject as they occur to me, that they may thority.
be made matters of record showing my rea"Sec. 424. To these general considerations, sons, or some of my reasons, for differing tending to discredit the claim of conventions with the conclusion reached by a majority of to legislative powers, must be added the de this court, and, while I entertain the highcisive circumstance that our Constitutions, est regard for the attainments and legal as well state as federal, hare rested all the ability of the members of this court, and have power of ordinary legislation the people have the greatest respect for their legal opinions, chosen to grant at all, in our Legislatures. I am constrained to dissent from the views The construction put upon these provisions expressed by them in this case. of our Constitution by the courts is that the grant is exclusive, and that the power can neither be delegated by the Legislatures, nor
(18 Okl. 712) exercised by the people, not even by the
WALCK V. MURRAY et al. whole people.
(Supreme Court of Oklahoma. June 25, 1907.) "Sec. 425. Were additional arguments needed to demonstrate that a convention has no
('OXSTITUTIONAL LAW-INJUNCTION -- JURIS
DICTION-CONSTITUTIONAL CONVENTION. power of ordinary legislation, reference might
A court of equity has no power or jurisbe made to the fact that the possession of diction to restrain or enjoin the constitutional such a power would be extremely inconven Convention, its atticers or delegates, from exerient, on account of the necessarily tempor
cising any of the rights, powers, and obliga
tions contided to it by ('ongress or the people; ary and experimental character of such leg.
nor can the powers of the court be invoked to islation, on the one hand, and the dificulty
restrain or enjoin the submission of the Constiof effecting changes in the enactments of con- ! tution, or any proposition contained therein, to
a vote of the people, in advance of its adoption ventions, on the other. Every ordinance or
and ratification by the people, and its approval constitutional provision passed by a con by the President of the United States, on the vention assumes a form nearly as rigid as ground that the Constitution, or any of its that of the Median laws. They can be re
provisions, is unconstitutional, or that the con
vention acted in excess of its lawful powers. pealed only in the formal way in which
Irwin and Pancoast, JJ., dissenting. they were enacted. It would be impossible to administer with any success any govern
(Syllabus by the Court.) ment so crippled in its legislative arm. The
Suit by G. F. Walck against W. H. Murresult would inevitably be that laws would be constantly disregarded, or that conven
ray and others. Dismissed. tions would become so necessary and frequent
Horace Speed, for plaintiff. J. F. King, that they would ultimately supplant our Leg
for defendants. islatures."
I have not indulged in as extensive a ci HAINER, J. This is an original action, tation of authorities as the subject under dis brought by G. F. Walck against W. H. Murcussion would warrant, for the reason that
ray, president of the constitutional convenin my judgment the conclusions reached are tion, John M. Young, its secretary, Frank logical deductions which can be drawn from Frantz, Governor of Oklahoma Territory, the enabling act itself, when we interpret and Charles H. Filson, Secretary of Oklahothe same in the light of all the surroundings ma Territory. The material averments in and conditions which existed at the time the the petition are as follows: That the plainsame was passed, bearing in mind the object tiff is a citizen, taxpayer, and qualified electto be attained, and the result to be accom or of Day county, Okl. T. That the constituplished. This is a question of very grave
tional convention has inserted in the proimportance to the people of these two terri posed Constitution for the state of Oklahoma tories. One which is important, not only in
several provisions which are repugnant to the present, but of vast importance to the the Constitution of the United States and the future. It is one which reaches the vital principles of the Declaration of Independence, interests of the state to be formed from the and in violation of the terms and conditions virgin soil of these great territories. It is of the enabling act, aud that the Constitution one the importance of which should raise it is not republican in form. That Day counabove personal or partisan feeling: one in ty, named by the enabling act as one of the the discussion of which party politics and
counties to be and remain in the Second conpersonal interests should have no place, and gressional district until the next national no weight; one in which the people require census, is eliminated, and its territory is diat the hands of the courts their honest, un vided between Roger Mills county and a new biased judgment, uninfluenced and unbam county called Ellis county, formed hy said
proposed Constitution of the remainder of
(18 Okl. 707) said Day county and a part of Woodward BOARD OF COM'RS OF GREER COUNTY county. That the proposed Constitution fur ex rel. THACKER, County Attorney, V. ther contains provisions dividing Greer coun CONSTITUTIONAL DELEGATE CONty into three counties, called Greer, Jackson, VENTION OF OKLAHOMA TERRITORY and Beckhain, etc. It is further alleged that et al. the legislative apportionment is not fair, | (Supreme Court of Oklahoma. June 25, 1907.) just, or equal, but that the same is intention
CONSTITUTIONAL LAW-INJUNCTION - JURISally and grossly unequal, unjust, and unfair, DICTION-CONSTITUTIONAL CONVENTION. and is not made with reference to the popu
A court of equity has no power or jurislation or the qualified electors of the propos
diction to restrain or enjoin the constitutional
convention, its officers or delegates, from exered districts, and is not based on the popula- cising any of the rights, powers, and obligations tion of the proposed legislative districts. confided to it by Congress or the people; nor That the defendants will, unless restrained,
can the powers of the court be invoked to re
strain or enjoin the submission of the Constituissue said proclamation and proceed by the
tion or any proposition contained therein, to a usual methods in the case of election, and vote of the people, in advance of its adoption which may result in the ratification of the and ratification by the people, and its approval unlawful provisions aforesaid, contained in
by the President of the United States, on the
ground that the proposed Constitution or any said proposed Constitution. That the peti
of its provisions is unconstitutional, or that the tioner is remediless at common law and ex convention acted in excess of its powers. cept under the procedure in the courts of Irwin and Pancoast, JJ., dissenting. chancery. Wherefore the plaintiff prays that (Syllabus by the Court.) this court grant an injunction, restraining
Error from District Court, Logan County: and enjoining the defendants, and each of
before Justice Jobn H. Burford. them, from issuing a proclamation or calling & election, or doing any other act towards
Action by the board of county commission
ers of Greer county, on the relation of ap election to ratify or reject or act upon the said Constitution containing said provisions,
Charles M. Thacker, county attorney, against
the Constitutional Delegate Convention of or any of them, and upon the final hearing
Oklahoma Territory and Indian Territory that the temporary Injunction be made per
and others. Judgment for defendants, and petual.
plaintiff brings error. Affirmed. The same questions are involved in this case as were determined by this court in the Arthur B. Garrett, Andrew M. Stewart, and case of Frank Frantz et al. v. G. E. Autry, Horace Speed, for plaintiff in error. J. F. 91 Pac. 193, and upon that authority the King, W. A. Ledbetter, and R. L. Williams, plaintiff's cause of action must be dismissed for defendants in error. for want of jurisdiction.
HAINER, J. This was an action brought IRWIN and PAYCOAST, JJ., dissenting.
in the district court of Logan county, by the board of county commissioners of Greer coun
ty, on the relation of Charles M. Thacker, (18 Okl. 710)
county attorney of said county, against the McCOLLISTER V. MURRAY et al.
constitutional delegate convention of Okla(Supreme Court of Oklahoma. June 25, 1907.)
homa Territory and Indian Territory, Wil
liam H. Murray, president, and others, conAction by J. O. McCollister against W. H.
stituting all the delegates to said convention; Murray and others. Dismissed.
the object of the suit being to perpetually Horace Speed and Virgil M. Hobbs, for restrain and enjoin the convention, its ofplaintiff.
ficers and delegates, and all persons acting
through or under them, from submitting, as HAINER. J. This is an original action, a part of the Constitution of the proposed brought by J. 0. McCollister against W. H. state of Oklahoma, to the electorate of OklaMurray, president of the constitutional con homa Territory and Indian Territory, a cervention, John M. Young, its secretary, Frank tain proposition or provision which would Frantz, Governor of Oklahoma Territory, and in effect divide Greer county into three disChas. H. Filson, Secretary of Oklahoma Ter tinct parts, and thereby change the county ritory, alleging substantially the same mat lines, and take a large part of its original ters as Ware set forth in the case of G. F. territory therefrom, and create two other Walck v. !: H. Murray et al. (No. 2,145) distinct counties within what was formerly 91 Pac. 238, and asks for the same relief. the boundaries of Greer county, and as it
Upon the authority of Frank Frantz et now exists, and has existed since it was esal. V. G. E. Autry, 91 Pac. 193, the relief tablished as an organized county in Oklaprayed for must be denied, and the plaintiff's homa by act of Congress of May 4, 1896. cause of action is dismissed, for want of The convention, its delegates and officers, jurisdiction.
were further asked to be restrained and en
joined from editing, enrolling, or authenticatIRWIN and PANCOAST, JJ., dissenting ing as a part of the Constitution any such
provision, and probibiting it and its agents , being that the Osage Indian reseryation from submitting to the electors of Oklahoma shall remain as a separate county until the any provision which, by its terms, divides lands therein are allotted in severalty, and Greer county, or changes its boundaries. Up until changed by the Legislature of the on the hearing, the court below declined to state." grant an injunction, and from this order Hence, that case is decisive of the points the plaintiff, Greer county, appeals.
involved here, and upon that authority, and It is contended that the division of Greer the cases therein cited, the judgment of the county is invalid and in violation of the court below must be affirmed. enabling act and of the act of Congress creating Greer county; that it deprives the county BURFORD, C. J., having tried the cause of its lawful territory and inhabitants, in in the court below, not sitting. IRWIN and creases the taxes, depreciates the value of the PANCOAST, JJ., dissenting. remaining property, and is an irreparable injury. The same questions were involved
(18 Okl. 711) and fully considered in the case of Frank
HAINES V. MURRAY et al. Frantz et al. v. G. E. Autry (decided at this term of the court) 91 Pac. 193, where this (Supreme Court of Oklahoma. June 25, 1907.) court held that: “A court of equity has no Error from District Court, Logan County ; power or jurisdiction to restrain or enjoin before Justice John H. Burford. the constitutional convention, its officers or
Action by E. A. Haines for himself and delegates, from exercising any of the rights, others similarly situated against E. H. Murpowers, and obligations confided to it by
ray and others. Judgment for defendants, Congress or the people; nor can the powers
and plaintiff brings error. Affirmed. of the court be invoked to restrain or enjoin the submission of the Constitution, or
W. W. S. Snoddy, H. A. Noah, and Horace any proposition contained therein, to a vote
Speed, for plaintiff in error. J. F. King, for
defendants in error. of the people, in advance of its adoption and ratification by the people and its approval HAINER, J. The same questions are inby the President of the United States, on
volved in this case as were decided by this the ground that the Constitution, or any of court in the case of Frank Frantz et al. v. its provisions, is unconstitutional, or that the
G. E. Autry (No. 2,154) 91 Pac. 193, and upconvention acted in excess of its powers."
on the authority of that case, and the cases And it was also decided in that case that:
cited therein, the judgment of the district "The power vested in the convention to form
court of Logan county is affirmed. a state government clearly implies the power to create and define all the counties with BURFORD, C. J., having tried the cause in in the limits of the proposed state; the only the court below, not sitting. IRWIN and limitation upon the convention in this respect | PANCOAST, JJ., dissenting.