Frantz v. Autry

1907 OK 65, 91 P. 193, 18 Okla. 561, 1907 Okla. LEXIS 144

• Court: Supreme Court of Oklahoma
• Decided: June 25, 1907
• Status: Published

Opinions

Opinion of the court by

Hainer, J.:

In compliance with the power granted in the enabling act, the people of Oklahoma and Indian Territory elected one hundred and twelve delegates, fifty-seven of whom were elected from the Territory of Oklahoma, and fifty-five of whom were elected from the Indian Territory. These delegates were invested with the power and charged with the duty and responsibility of forming a constitution and state government for the proposed state of Oklahoma.

THE FUNDAMENTAL RIGHTS AND POWERS OF THE CONVENTION.

The first question for our consideration is: What is a constitutional convention, and what is the nature of its fundamental rights and powers?

It was contended by the plaintiff in the court below, defendant in error herev that the power and authority of the constitutional convention is derived solely from the powers granted in the enabling act, and that every power granted to the convention must be found and expressed therein, except such implied powers as may be necessary to carry into effect the express grant of power; that the power granted by the enabling act embraces no legislative grant; but confers only the power of a committee to adopt and propose fundamental propositions which upon ratification may become tbe fundamental law of the state and this was the view of the trial court; and it is earnestly urged in this court by counsel for defendant in error as the true doctrine. In our opinion, this contention is clearly untenable, and cannot be sustained by the authorities.

In a territory the source of all power is congress. But in the formation of a constitution and- state government the power emanates from the people. The delegates to the convention were not the agents or representatives of congress, but they were the immediate agents and representatives of the people of the two territories. They derived their power and authority from the people in their sovereign capacity. And this is in harmony with the principles of the Declaration of Independence, which declares that “Governments are instituted among men, deriving their just powers from the consent of the governed,” and is in keeping with the doctrine announced by Lincoln when he uttered the immortal words, that this is “A government of the people, by the people, and for the people.”

In Benner v. Porter, 9 How. 241, the supreme court of the United States, in speaking of the source of power, with reference to the admission of the Territory of Florida, said:

“The convention being the foundation of all political power, from which flowed that which was embodied in the organic law, were, of course, competent to prescribe the laws and appoint the officers under the constitution, by means whereof the government could be put into immediate operation.”

The convention, therefore, was created by the direct action of the people, and in the discharge of its powers, duties, . and obligations, it performs one of the- highest and most important acts of popular sovereignty. Nor is the contention well founded that the convention possesses no legislative powers, and that it acts in the mere capacity of a committee to adopt and propose fundamental propositions which are to be submitted to a vote of the people for ratification or rejection. The convention has and can exercise plenary powers subject to the limitations: (1) That the constitution shall be republican in form: (2) That it shall not be repugnant to the constitution of the United States and the principles of the Declaration of Independence: (3) That no distinction shall be made on account or race or color: and (4) That the convention shall accept by ordinance irrevocable* all the terms and conditions of the enabling act.

It is true that congress has the power to impose conditions upon a territory, as a condition precedent to entitle it to admission as a state. Accordingly, congress placed certain restrictions and limitations upon the convention, which it was required to incorporate into the constitution, and to be ratified by the people. These limitations and restrictions, when ratified by the people, become a part of the fundamental law of the state. When, therefore, congress authorized the people of Oklahoma and Indian Territory to form a constitution and state government and be admitted into the Union on an equal footing with the original states, it meant that,, it should be admitted on equal terms with the original states. Hence, the enabling act was not a limited or restricted grant, but it was an absolute grant, subject to the constitution of the United States, and the limitations and restrictions imposed in the enabling act as a-condition precedent to such admission.

In Permoli v. First Municipality, 3 How. 609, the supreme court of the United States had before it the construction of the act of congress of February 20, 1811, authorizing the people of the Territory of Orleans to form a constitution and state government, and in the course of the opinion the court said:

“By the act of April 8, 1812, Louisiana was admitted according to the mode prescribed by the act of 1811. Congress declared it should be on the conditions and terms contained in the 3rd section of that act, which should be considered, deemed and taken, as fundamental conditions and terms upon which the state was incorporated in the union.

“All congress intended, was to declare in advance to the people of the territory, the fundamental principles their constitution should contain, this was in every way proper under the circumstances; the instrument having been duly formed, and presented, it was for the national legislature to judge whether it contained the proper principles, and lo accept it if it did. or reject it if it did not. Having accepted 'the constitution and admitted the states, ‘On an equal footing with the original states in all respects whatever/ in express terms, by the act of 1812, congress was concluded from assuming that the instructions contained in the act of 1811 had not been complied with. No fundamental principles could be added by way of amendment, as this would have been making part of the state constitution; if congress could make it in part, it might, in the form of amendment, make it entire."

In Escanaba Co. v. Chicago, 107 U. S. 638, the supreme court of the United States, speaking by Mr. Justice Field, said:

"Although the act of April 18, 1818, c. 67, enabling the people of Illinois Territory to form a constitution and state government, and the resolution of congress of Dec. 3, 1818, declaring the admission of the state in the Union,, refer to the principles of the ordinance according to which the constitution was to be formed, its provisions could not control the authority and powers of the state after her admission. Whatever the limitations upon'her powers as a government whilst in a territorial condition, whether from the ordinance of 1787 or the legislation of congress, it ceased to have any operative force, except as voluntarily adopted by her, after she became a state of the Union. On her admission she at once became entitled to and possessed of all the rights of dominion and sovereignty which belonged to the original states. She was admitted, and could be admitted, only on the same footing with them.”

In Ward v. Race Horse, 163 U. S. 514, which involved the interpretation of a provision of the enabling act of "Wyoming, Mr. Justice White, after reviewing the authorities, said

"The enabling act declares that the state of Wyoming is admitted on equal terms with the other states, and this declaration which is simply an expression of the general rule, which presupposes that states, when admitted into the Union, are endowed with powers and attributes equal in scope to those enjoyed by the states already admitted, repels any presumption that in this particular case congress intended to admit the state of Wyoming with diminished governmental authority.”

From these decisions it will be observed that all congress, intended was to declare to the people of Oklahoma and Indian Territory the fundamental principles which should be incorporated in the proposed constitution, and when the constitution is formed and a full state government provided, it should be submitted to the people for ratification or rejection, and when approved by the people it is to be submitted to the President of the United States, who is charged by congress with the duty to determine whether the constitution is republican in form, whether it is repugnant to the constitution of the United States and the principles of the Declaration of Independence, and whether the terms and conditions imposed in the enabling act have been complied with.

Judge Story, in his work on the. Constitution, vol. 1 (5 ed.), section 338, declares:

“The true view to be taken of our state constitutions is that they are forms of government ordained and established by the people in their original sovereign capacity to promote their own happiness and permanently to secure their rights, property, independence, and common welfare.” •.

Judge Cooley, in his work on Constitutional Limitations, an page 68, in discussing the attributes and objects of a constitution, says:

“In considering state constitutions- we must not commit the mistake of supposing that, because individual rights are guarded and protected by them, they must also be considered as owing their origin to them. These instruments measure the powers of the. rulers, but they do not measure the rights of the governed. What is a constitution, and what are its objects? It is easier to tell what it is not, than what it is. It is not the beginning of a community, nor the origin of private rights; it is not the fountain of law, nor the incipient state of government; it is not the cause but consequence, of personal and political freedom; it grants no rights to the- people, but is the creature of their power, the instrument of their convenience.”

In 1894 the state of 'New York had under consideration the revision of its state constitution. One of the first questions that arose in the convention was the ascertainment of the rights and powers of the convention to pass upon the election and qualifications of one of its members. This question was referred to the judiciary committee, of which committee the Honorable Eiihu Root, now secretary of state, and one of the ablest lawyers and statesmen of this country, was chairman. In his report to the convention, he says:

“'The convention has been created by the direct action ol the people and has been by them vested with the power and charged with the duty to revise and amend the organic law of the state.

“The function with which it is thus charged is a part of the highest and most solemn act of popular sovereignty and in its performance the convention has and can have no superior but the people themselves.

“No court or legislature or executive officer has authority to interfere with the exercise of the powers .or the performance of the duties which the people have enjoined upon this, their immediate agent.”

And, ¿gain, in stating the nature of a constitutional convention, he says:

“A constitutional convention is a legislative body of the highest order. It proceeds by legislative methods. Its acts are legislative acts. Its function is not to execute or interpret laws, but to make them. That the consent of the general body of electors may be necessary to give effect to the ordinances of the convention no more changes their legislative character than the requirement of the governor's consent changes the nature of the action of the senate and assembly.”

And,' again, in speaking of the importance of the independence of the convention, he uses this language:

“It is far more important that a constitutional convention should possess these safeguards of its independence than it is for an ordinary legislature; because the convention acts are of a more momentous and lasting consequence and because it has to pass upon the power, emoluments and the very existence of the judicial and legislative officers who might otherwise interfere with it. The convention furnishes the only way by which the people can exercise their' will, in respect of these officers, and their control over the convention would be wholly incompatible with the free exercise of that will.” Proceedings of the New York Constitutional Constitution, 1894, pages 79-80.

Mr. Bryce, in his excellent work on the American Commonwealth, vol. 1, page 436, says:

“A state constitution is really nothing but a law made directly by the people voting at the polls upon a draft submitted to them. The people of a state when they so vote' act as a primary and constituent assembly, just as if they were all summond to meet in one place like the folknotes of our Teutonic forefathers, it is only their numbers that prevents them from so meeting in one place, and oblige the vote to be taken in a variety of polling places. Hence the enactment of a constitution is an exercise of direct popular sovereignty to which we find few parallels in modern Europe, though it was familiar enough to the republic of antiquity and has lasted until now in some of the cantons of Switzerland.”

In Goodrich v. Moore, 2 Minn. 49, the supreme court’~| of Minnesota declared that a constitutional convention is the highest legislative assembly recognized in law, invested with the power of enacting or framing the supreme law of; the state, and in the course of the opinion, Mr. Justice Atwater, speaking for the court, said:

“But even had the legislature intended and attempted to claim and exercise the act of providing a printer for the constitutional convention, it would have been an unauthorized and unwarrantable interference with the rights of that body. The admission of such a right in the legislature would place the convention under its entire control, leaving it without authority even to appoint or elect its own officers, or adopt measures for the transaction of its legitimate business. It would have less power than a town meeting, and be incompetent to perform the objects for which it convened. It would be absurd to suppose a constitutional convention had only such limited authority. It is the highest legislative assembly recognized in law, invested with the right of enacting or framing the supreme law of the state.' It must have plenary powen for this and over all the incidents thereof. The fact that the convention assembled by authority of the legislature renders it in no respect inferior thereto.

In Sproule v. Fredericks, 11 So. Rep. 472, the supreme court of Mississippi, in discussing the powers of the convention says:

“It is the highest legislative body known to freemen in a representative government. It is supreme in its sphere. It wields the powers of sovereignty, ■ specially delegated to it, for the purpose and the occasion, by the whole electoral body, for the good of the whole commonwealth. The sole limitation upon its powers is that no change in the form of government shall be done or attempted. The spirit of republicanism must breathe through every part of the framework, but the- particular fashioning of the parts of this framework is confided to the wisdom, the-faithfulness, and the patriotism of this great eonvo cation, representing the people in their sovereignty. The theorizing of the political essayist and the legal doctrinaire, by which it is sought to be established that the expression of the will of the legislature shall fetter and control the constitution-making body, or, in the absence of such attempted legislative direction, which seeks to teach that the constitutional convention can only prepare the frame of a constitution and recommend it to the people for adoption, will be found to degrade this sovereign body below the level of the lowest tribunal clothed with ordinary legislative powers.”

In Loomis v. Jackson, 6 W. Va. 613, in discussing the powers of the constitutional convention, Judge 'Woods, speaking for the court, on page 708 of the opinion, said:

“I have had no difficulty in reaching the following conclusions upon the constitutional questions presented in this specification, viz:

“First,- that a constitutional convention lawfully convened does not derive its powers from the legislature, but from the people:

“Second, that the powers of a constitutional convention are in the nature of sovereign powers:

“Third, that the legislature can neither limit or restrict, them in the exercise of these powers.”

In the recent case of Montana ex rel. Haire v. Rice, 204 U. S. 291, which came up on appeal from the decision of the supreme court of Montana, it was held that:

“In granting lands for educational purposes to Montana, see] 17, of the enabling act of February 22, 1889, 25 Stat. 676, to be held, appropriated, etc., in such manner as the legislature of the state should provide, congress intended to designate, and the act will be so construed, such legislature as should be established" by the constitution to be adopted, and which should act as a parliamentary body in subordination to that constitution; and it did not give the management and disposal of such lands to the legislature or its members independently of the methods and limitations prescribed by the constitution of the state.”

The facts in this case were substantially as follows: By section 17 of the enabling act for Montana grants were made to the state in the following terms:

“To the state of Montana: For the establishment and maintenance of a school of mines, one hundred thousand acres; for state normal school, one hundred thousand acres; for agricultural colleges, in addition to the grant herein-before made for that purpose, fifty thousand acres; for the establishment of a state reform school, fifty thousand acres; for the establishment of a deaf and dumb asylum, fifty thousand acres; for public buildings at the capital of the state, in addition to the grant hereinbefore made for the purpose, one hundred and fifty thousand acres.

“ * * * And the lands granted by this section shall be held, appropriated and disposed of exclusively for the purposes herein mentioned, in such manner as the legislatures of the respective states may severally provide.”

The constitutional convention of Montana adopted an ordinance designated as “Ordinance No. 1,” entitled “Federal Relations,” which ordained that “The state hereby accepts the.several grants of land from the United States to the state of Montana, * * * upon the terms and conditions therein provided.” An act of the legislative assembly of the state of Montana, approved February 2, 1905, authorized and directed the state board of land commissioners to sign land .issue (interest-bearing bonds to the ¡amount of $75,000, for the principal and interest of which the state of Montana should not be liable, and directed the state treasurer to sell the bonds. Section 7 directed that:

“The moneys derived from the sale of said bonds shall be used to erect, furnish and equip an addition to the present state normal.school building at Dillon, Montana, and shall be paid out for such purpose by the state treasurer upon vouchers approved by the executive board of the state normal school, and allowed and ordered paid by the state board of examiners.”

Section 12, article XI, of the constitution of the state of Montana is as follows:

“The funds of the state university and all other state institutions of learning, from whatever source accruing, shall forever remain inviolate and sacred to the purpose for which they were dedicated. The various funds shall be respectively invested under such regulations as may be prescribed by law, and shall be guaranteed by the state against loss or diversion. The interest of said invested funds, together with the rents from leased lands or properties, shall be devoted to the maintenance and perpetuation of these respective institutions.”

It will thus be seen that by the terms of the enabling act it was provided that the lands granted to the state were for the establishment and maintenance of a school of mines, and for a state normal school, etc., and that the lands thus granted should “Be held, appropriated and disposed of” exclusively for the purposes therein named, and “In such manner as the legislature of the state may provide.” The constitution expressly provided that “The interest of said invested funds, together with the rents from leased lands or properties, shall be devoted to the maintenance and perpetua tion of these respective institutions.” Notwithstanding the limitations placed upon these lands and funds by the state constitution, the legislature of the state of Montana authorized and directed the state board of land commissioners to issue bonds the proceeds of which were, to be used to erect, furnish and equip an addition to a state normal school, upon the theory that the enabling act conferred such power upon the legislature, regardless of the limitations placed upon it by the state constitution.

It was contended in that case, as it is here, that the provisions of the enabling act, in respect to the disposition of these lands and funds controlled over the provisions contained in the constitution. The supreme court of the United States denied this contention, and held that in executing the authority entrusted to it by congress, the legislature must act in subordination to the state constitution. Mr. Justice Moody,,, in delivering the opinion of the court, on pages 299, 300 uses the following language:

“In support of it the plaintiff in error argues that the grant of all the land by the enabling act was by an ordinance accepted by the state ‘Upon the terms and conditions therein provided;’ that the legislature of the state was by the last clause of section 17 appointed as agent of the United States, with full power to dispose of the lands in any manner which it deemed fitting, provided only that the lands or their proceeds should be devoted to normal school purposes, and that, therefore, in the execution of this agency the legislature was not and could not be restrained by the provisions of the state constitution. It is vitally necessary to the conclusion reached by these arguments that the enabling act should be interpreted as constituting the legis lature, as a body of individuals and not as a parliamentary body, the agent of the United States. But' it is not susceptible of such an interpretation. It granted the lands to the state of Montana, and the title to them, when selected, vested in the grantee. In the same act the people of the territory, about to become a state, were authorized to choose delegates to a convention charged with the duty of forming a constitution and state government. It was contemplated by congress that the convention would create the legislature, determine its place in the state government, its relations to the other governmental agencies, its methods of procedure, and, in accordance with the universal practice of the states, limit its powers. It is not to be supposed that congress intended that the authority conferred by section 17 of the enabling act upon the legislature should be exercised by mere ascertainment of its will, perhaps when not in stated session, or by a majority of the votes of the two houses, sitting together, or without the assent of the executive, or- independently of the methods and limitations upon its powers prescribed by its creator. On the contrary, the natural inference is that congress, in designating the legislature as the agency to deal with the lands, intended such a legislature as would be established by the constitution of the state. It was to a legislature whose powers were certain to be limited by the organic law, to a legislature as a parliamentary body, acting within its lawful powers, and by parliamentary methods, and not to the collection of individuals, who for the time being might happen to be members of that body that the authority over these lands was given by the enabling act. It follows, therefore,, that in executing the authority entrusted to it by congress, the legislature must act in subordination to the state constitution, and we think that in so holding the supreme court of the state committed no error.”

But counsel for defendant in error rely upon the case of Wells, v. Bain, 75 Pa. St. 39, in support of their contention that the convention possesses only such powers as are expressly granted in the enabling act, and such implied or incidental powers as are necessary to carry into effect the express powers thus granted by congress, and that if the convention exceeds such powers, then the powers of the courts can be invoked to enjoin or restrain it from submitting such propositions'in the constitution or ordinance to a vote of the people. In this case, it appears that an act of the legislature authorized, in pursuance of a vote of the people, the election of delegates to a convention to revise and amend the constitution, and directed the convention to submit the proposed amendments to the voters of the state at such time and “In such manner as the convention shall prescribe,” but also directed that the election to decide for. or against the amendments “Shall be conducted as the general elections of this commonwealth are now by law conducted.” By the then existing election laws, the elections were conducted by inspectors. The convention, by an ordinance, appointed certain persons to have direction of the election on amendments, to fill vacancies, to appoint judges and inspectors, etc. And it was there held that the part of the ordinance relating to the election was in conflict with the election laws enacted by the state legislature, and was therefore void. But in this ease there was no attempt to enjoin the submission of the constitution, or any of. its provisions, to a vote of the people; nor was there any attempt to restrain or enjoin the convention, its officers or delegates, from discharging their functions. But the action was instituted after the convention had completed its labors, and it had for its object the sole purpose of enjoining that portion of the ordinance which attempted to create election officers which were unauthorized, and who were attempting to supplant or supersede the officers who were charged, as it was there contended and held, with the duty of conducting such election by virtue of an act of the legislature, which provided for the election of delegates to amend and revise the constitution. This decision seems to be in irreconcilable conflict with the decisions of the highest courts of the land. The convention was authorized by a direct vote of the people to revise and amend the state constitution. 'The power of the convention to revise and amend the com stitution was not a delegated power derived from the legislature, but it derive^, its power directly from the people. And in the performance of the powers and duties and obligations resting, upon the convention, it could have no superior but the people themselves. Manifestly, to hold otherwise would be to degrade the powers of the convention below the level of the lowest legislative or municipal body. Clearly, such is not the office, functions, and powers of the constitutional convention. This decision was severly criticised at the time by the ablest members of the bar of the state, and was repudiated by the constitutional convention of New York of 1894, which was composed of some of the greatest lawyers and most eminent statesmen of our times.

THE COURTS HAVE NO POWER TO RESTRAIN OR ENJOIN THE CONVENTION.

The convention being Vested with legislative powers and functions its acts and proceedings, in the performance of such duties, are not subject to judicial control or interference. The power of the courts to enjoin or restrain the convention, its officers or delegates, from exercising the rights, powers, and duties confided to them must, therefore, be denied. Nor have the courts the power or jurisdiction to enjoin or restrain the submission of the constitution or any proposition contained therein to a vote of the people. This conclusion it seems to us, is self-evident. No case has been cited, and we are unable, by the most diligent research, to find a ease, from the foundation of the government down to the present time where any court has ever restrained or enjoined a constitutional convention, its officers or members : •Nor has any case been cited or found where the constitution, or any of the propositions contained therein, was ever enjoined by any court prior to the time the constitution was adopted. If, therefore, the convention, or its officers and delegates, could be enjoined by the courts from exercising legislative functions, such as the creating and defining of counties in Oklahoma or Indian Territory, or on defining and describing the boundaries of the counties in the proposed state, and which in effect would divide or change the counties as they now exist in the Territory of Oklahoma, _and if this part of the constitution could be restrained and enjoined from being submitted to a- vote of the people, then we can perceive of no sound reason why any other portion of the constitution could not be attacked in the courts and its constitutionality determined in advance of the submission of such question or proposition to the vote of the people. To concede the power of the courts to enjoin and restrain the convention in the exercise of its powers in incorporating any legislative matter that it may deem appropriate therein, on the ground that it is unconstitutional and void, in advance of the submission of the same to the people for ratification or rejection, %nd prior to the time that it is approved by the President, would, it seems to us, lead to interminable litigation, and the inevitable result would be to tie the hands of the convention and indefinitely postpone the submission of the constitution or any of its provisions, to a vote of the people. Fortunately, such is not the law. If the constitution, or any of its provisions, is repugnant to the constitution of the United States or any of the terms and conditions of the enabling act, these questions can be litigated and determined at the appropriate time. The moment the constitution is ratified by the people, and approved by the President of the United States, then every section, clause, and provision therein -becomes subject to judicial cognizance. That the courts will not interfere by injunction, or otherwise, with the exercise of legislative or political functions, is well settled by a long line of adjudicated cases which we will review at some length, owing to the great importance of the questions involved in this case.

As early as 1831 this question was before the supreme court of the United States in a suit brought by the Cherokee Nation against the state of Georgia, 5 Pet. 1. This was a bill in equity brought by the Cherokee Nation, praying an injunction to restrain the state of Georgia from the execution of certain laws of that state, which it was alleged would annihilate the Cherokee Nation as a political society, and seize for the use of Georgia the lands of the nation which had been assured to them by the United States, in solemn treaties repeatedly made and still in force. The opinion of the court in this case was delivered by Mr. Chief Justice Marshall, and in the course of the opinion, on page 18, the letirned chief justice says:

“A serious additional objection exists to the jurisdiction of the court. Is the matter of the bill the proper subject for judicial inquiry and decision? It seeks tq restrain a state from the forcible exercise of legislative power over a neighboring people, asserting their independence; their right to which the state denies. On several of the matters alleged in the bill, for example, on the laws -making it criminal to exercise the usual powers of self-government in their own country, by the Cherokee Nation, this court cannot interpose; at least, in the form in which these matters are presented.

“That part of the bill which respects the land occupied by the Indians, and prays the aid of the court to protect their possession, may be. more doubtful. The mere question of right might, perhaps, be decided by this court, in a proper case, with proper parties. But the court is asked to do more than decide on the title. The bill required us to control the legislature of Georgia, and to restrain the exertion of its physical force. The propriety of such an interposition by the court may be well questioned; it savors too much of the exercise of political power, to be within the proper province of the judicial department. But the opinion on the point respecting parties makes.it unnecessary to decide this question.

“If it be true, that the Cherokee Nation have rights, this is not the tribunal in which those rights are to be asserted. If it be true, that wrongs have been inflicted, and that still greater are to be apprehended, this is not the tribunal which can redress the past or prevent the future. The motion for an injunction is denied.”

In the case of The State of Mississippi v. Johnson, 4 Wall. 475, the supreme court of the United States was asked to restrain and enjoin Andrew Johnson, then President of the United States, and a citizen of Tennessee, from enforcing the acts of congress of March 2 and 23 1867, commonly known as the “Reconstruction Acts” on the ground that such acts were unconstitutional and void. Chief Justice Chase, speaking for the court, in the course of the opinion said:

“'Congress is the legislative department of the government; the President is the executive department. Neither can be restrained in its action by the judicial department; though the acts of both, when performed, are, in proper eases subject to its cognizance.”

And, again, he says:

“It is true that a state may file an original bill in this court. And it may be true, in some cases, that such a bill may be filed against the United States. But we are fully satisfied that this court has no jurisdiction of a bill to enjoin the President in the performance of his official duties; and that no such bill ought to be received by us. * * * * * The motion for leave to file the bill is, therefore, denied.”

In the case of State of Georgia v. Stanton, 6 Wall. 50, the supreme court of the United States had before it for decision a bill in equity, filed by the state of Georgia, seeking to enjoin the secretary of war, and other officers who represented the executive authority of the United States, from carrying into execution certain acts of congress, on the ground that such execution would annul and totally abolish the existing state government of the state and estab lish another and different one in its place. In other words, would overthrow and destroy the corporate existence of the state byr depriving it of’all the means and instrumentalities whereby its existence might, and otherwise- would, be maintained. It was held that the bill called for a judgment upon a political question, and would therefore not be entertained by the court. Mr. Justice Nelson, speaking for the court, on page 77 of the opinion, says:

“'That these matters, both as stated in the body of the bill, and, in the prayers for relief, call for the judgment of the court upon political questions, and, upon rights, not of persons or property, but of a political character, will hardly-be denied. For the rights for the protection of which our authority is invoiced, are the rights of sovereignty, of political jurisdiction, of government, of corporate existence as a state, with all its constitutional powers and privileges. No ease of private rights or private property infringed, or in danger of actual or threatened infringment, is presented by the bill, in judicial form, for the judgment of the court.”

In New Orleans Water Works Company v. New Orleans, 164 U. S. 471, the supreme court of the United States had under consideration the question whether the court would enjoin and restrain a municipal council in the exercise of its powers as a legislative body, and it was there held that:

“A court of equity cannot properly interfere with, or in advance restrain the discretion of a municipal body while it is in the exercise of powers that are legislative in their "character.”

In the court of the opinion, Mr. Justice Harlan, speaking for the court, says:

“If it be said that a final decree against the city, enjoining it from making such grants in the future, will control the future action of the city council of New Orleans, and will, therefore, tend to protect the plaintiff in its rights, our answer is that a court of equity cannot properly interfere with, or in advance restrain, the discretion of a municipal body while it is in the exercise of powers that are legislative in their character. It ought not to attempt to do indirectly what it could not do directly. In view of the adjudged eases, it cannot be doubted that the legislature may delegate to municipal assemblies the power of enacting ordinances that relate to local matters, and that such ordinances, if legally' enacted, have the force of laws passed by the legislature of the State and are to be respected by all. But the courts will pass the line that separates judicial from legislative authority i-f by any order or in any mode they assume to control the discretion with which municipal assemblies are invested, when deliberating upon the adoption or rejection of ordinances proposed for their adoption. The passage of ordinance by such bodies are legislative acts which a court of equity will not enjoin. Chicago v. Evans, 24 Ill. 52, 57: Des Moines Gas Co. v. Des Moines, 44 Iowa, 505; 1, Dillon on Mun. Corp. sec. 308, and notes; 2 High on Injunctions, sec. 1246. If an ordinance be passed and is invalid, the jurisdiction of the courts may then be invoked for the protection of private rights that may be violated by its enforcement. Page v. Case, 34 Maryland, 558, 664; Baltimore v. Radecke, 49 Maryland, 217, 231.”

In State ex rel. Rose v. Superior Court of Milwaukee County, decided by the supreme court of Wisconsin February 27, 1900, and reported in 48 L. R. A. 819, it was held that the passage of an ordinance of the city of Milwaukee was a legislative power and that a court of equity had no jurisdiction to restrain the common council from passing the same. In this case the court had under consideration the validity of an ordinance which the common council of the city of Milwaukee attempted to enact. The action was instituted in the superior court of Milwaukee county, having for its object the restraining and enjoining of the common council from enacting the ordinance. The court granted the injunction as prayed for. Notwithstanding the injunction, the common council violated the orders of the court, and proceeded to enact the ordinance. The members were accordingly cited to appear before the court, to show cause why they should not be punished for contempt. Upon the hearing, a majority of the common council admitted to the trial court that they had severally violated the injunction order in question. The only excuse given for the violation was that the court was without jurisdiction to make the order. Therefore, the sole legal question presented was whether the court had jurisdiction of the subject-matter. The trial court held that it had jurisdiction o'f the subject-matter of the action, and adjudged the common council guilty of contempt. Upon this order and judgment of the trial court, application was made to the supreme court for a peremptory writ of prohibition, to prohibit the execution of the judgment, and, upon a full hearing and consideration, the writ was awarded, the supreme court holding that the trial court was without jurisdiction of the subject-matter of the action. In the course of the opinion, Mr. Chief Justice Cassoday, speaking for the court, says:

"The power so vested in the common council is, within the limits prescribed, a discretionary power; and we must hold that a court of equity has no jurisdiction to restrain the common council from exercising such discretion, especially at the suit of a private party. It is said that the amendment to the ordinance, as originally proposed, was not submitted to a committee as required. It is enough to say that a court of equity has no place in the chamber of the common council to supervise or superintend the proceedings of that body, while engaged in the exercise of legislative or discretionary functions. The common council of Milwaukee, like other legislative bodies and courts, is liable to commit errors which may be fatal to its action; but that does not take away its power to act.”

In The Des Moines Gas Co. v. The City of Des Moines, 44 Iowa, 505, it was said by the supreme court of Iowa, having this question under consideration:

“'The general assembly is a co-ordinate branch of the . state government, and so is the law-making power of public municipal corporations within the prescribed limits. It is no more competent for the judiciary to interfere with the legislative acts of the one than the other. But the unconstitutional acts of either may be annulled. Certainly the passage of an unconstitutional law by the general assembly could not be enjoined. If so, under the pretense that any proposed, law was of that character, the judiciary could arrest the wheels of legislation.”

It is evident, then, from a consideration of the authorities, that the constitutional convention is a legislative Body of the highest order, and that it cannot be interfered with by injunction in the exercise of its powers. This being true, the convention was given the power, and it was made its duty, to do two things: First, to form a constitution; and second, to form a state government. •

THE CONSTITUTION AND STATE GOVERNMENT.

First, let us briefly examine the difference between the federal and state governments. Judge Cooley, in his great work on Constitutional Limitations (7 ed.), page 11, states this distinction as follows:

“The government of the United States is one of enumerated powers; the national constitution being the instrument which specifies them, and in which authority should be found for the exercise of any power which the national government assumes to possess. In this respect it differs from the constitutions of the several states, which are not grants of- powers to the states, but which apportion and impose restrictions upon the powers which the states inherently possess.”

Mr. Chief Justice Waite, in United States v. Cruikshank, 92 U. S. 549, states the true doctrine as follows:

“The government of the United States is one of delegated powers alone. Its authority is defined and limited by the constitution. All powers are not granted to it by that instrument are reserved to the state or to the people. No rights can be acquired under the constitution or laws of the United States except such as the government of the United. States has the authority to grant or secure. All that cannot be so granted or secured are left under the protection of the states.”

Chief Justice Marshall, in the celebrated case of McCulloch v. Maryland, 4 Wheat. 409, in speaking of the division of sovereignty appertaining to the United States and to the states, declared:

“Does it belong to one more than-to another? In America, the powers of sovereignty are divided between the govern ment of the Union, and those of the states. They are each sovereign, with respect to the objects committed to it and neither is sovereign, with respect to the objects committed to the other.”

What then is a state constitution, and what are its attributes ?

Judge Story, in his work on the Constitution, vol. 1, sec. 339, says:

“A constitution is in fact a fundamental law or basis of government, and falls strictly within the definition of law as given by Mr. Justice Blackstone. It is a rule of action prescribed by the supreme power in a state; regulating the rights and duties of the whole community. It is a rule, as contradistinguished from a temporary or sudden order; permanent, uniform and universal.”

The late Justice Miller, of the supreme court of the United States, in his valuable work on the Constitution, page 70, says:

“A constitution in the American sense of the word is the written instrument by which the fundamental powers of government are established, limited, and defined, and by which those powers are distributed among the several departments for their safe and useful exercise for the benefit of the body politic.”

In Vanhorne v. Dorrance, 2 Dall. 308, the court defines a constitution as follows:

“What is a constitution? It is the form of government, delineated by the mighty hand of the people, in which certain first principles of fundamental laws are established. The constitution is certain and fixed; it contains the permanent will of the people, and is the supreme law of the land; ft'is paramount to the power of the legislature, and can be revoked or altered only by the authority that made it."

In Phoebe v. Jay, 1 Ill. (Breese) 286, 271 the supreme court of Illinois declared that:

“The term ‘Constitution/ as applied to government, is the form of government instituted by the people in their sovereign capacity, in which, first, the principal and fundamental laws are established. A constitution is the supreme, permanent, and fixed will of the people in their original, unlimited, and sovereign capacity and in it are determined the conditions, rights and duties of every individual of the community."

The supreme court of Indiana, in the case of In re Denny, 156 Ind. 104, 59 N E. 359; said:

“In our system of government, a written constitution is the highest expression of law; none other emanates directly from the sovereign people themselves. It is the deliberate and affirmative utterance of the sovereign majority."

In Taylor v. Governor, 1 Ark. 27, it is said:

“What is a constitution? The constitution of an American state is the supreme, organized, and written will of the people acting in convention and assigning to the different departments of the government their respective powers. It may limit and control the action of these departments, or it may confer upon them any extent of power not incompatible with the federal compact. By an inspection and examination of all the constitutions of our own country they will be found to be nothing more than so many restrictions and limitations upon the departments of the government and the people.”

In 8 Cyc. 717, the doctrine is clearly stated as follows:

“A state constitution consists of a number of fundamental laws passed by, and alterable and' repealable alone by the people; it is superior to the will of the .legislature, the validity of whose acts is determined by its provisions.”

Citing with approval Taylor v. Governor, 1 Ark. 21, 27; Lynn v. Polk, 8 Lea. (Tenn.) 121, 165; and Bates v. Kimball, 2 D. Chipm. (Vt.) 77, 84, where it is said:

“When the people associate and enter into compact for the purpose of establishing government, that compact, whatever may be its provisions, or in whatever language it may be written is the constitution of the state, revocable only by the people, or in the manner they prescribe.”

In short, the constitutional convention, subject to the constitution of the United States and the limitations and restrictions contained in the enabling act, had full power and authority to incorporate in the constitution any provision which it deemed appropriate.

But this does not mean, as it was stated by the learned trial court, that if such power is conceded to the convention, it had “The power to repeal all laws, abolish all institutions, and displace all officers, from the highest to the very lowest.” No such power was confided to the convention, nor has it exercised such powers. Clearly, to repeal existing laws of the territory, and. to displace any existing officers, would be to act in direct opposition to the express provisions of section 6 of the enabling act, which provides:

“And the said representatives, together with the. governor and other officers provided for in said constitution, shall be elected on the same day of the election for the ratification or rejection of the constitution; and until said officers are elected and qualified under the provisions of such constitution and the said State is admitted into the Union, the territorial officers of Oklahoma Territory shall continue to discharge the duties of their respective offices in said territory."

But, the grant by congress to form a constitution and state government carries with it everything that is essential to effectuate its object. We are unable to perceive how a state government could be created, and officers for a full state government provided for, unless the convention had the power to fix and define the counties within the entire state, and to provide by ordinance for necessary temporary election machinery, and for putting the state government into operation when the constitution is ratified by the people and the President issues his proclamation admitting the state into the Union on an equal footing with the original states.

This leads us to the next question: What is a state government, within the purview of the enabling act?

'.The convention was not only authorized to form a constitution, but it was expressly authorized and empowered to form a state government. It seems to us that the creation of counties and townships is absolutely essential and indispensable to the formation of a state goverment. In fact, counties and townships have been inseparable parts of every state government since the admission of the original thirteen states into the Union. Indeed, such counties antedate the adoption of the federal constitution. And it will be presumed that when congress authorized the’ people of Oklahoma and Indian 'Territory to form a constitution and state government and be admitted into the Union on an equal footing with the original states, it'intended that such a state government should be formed. No particular form of government was prescribed, and the only limitations thereon are that the constitution and state government shall be republican in form, and not repugnant to the fed-oral constitution and the principles of the Declaration of Independence, etc.

It is to be presumed that congress knew the conditions •existing in the Indian Territory, and knew that no counties had been formed or created therein, and that it was absolutely essential for the convention to create counties, and to provide the necessary machinery for holding the election for submitting the constitution to a vote of the people. It also knew that the Territory of Oklahoma contained organized counties, and that each county had a full complement of county officers, and that they were exercising their powers and duties as such under the laws of Oklahoma Territory, except the Osage Indian Reservation, which was an unorganized count}'', and attached to Pawnee county, under the organic act, for judicial purposes. There was no inhibition placed upon the convention against creating and defining the counties in the proposed state, and the only inhibition placed upon the convention is that provided in section 21, with reference to the Osage Indian Reservation, where it is declare'd:

“That the constitutional convention may by ordinance provide for the election of officers for a full state government, including members of the legislature and five representatives to congress, and shall constitute the Osage Indian Reservation a separate county, and provide that it shall remain a separate county until the lands in the Osage Indian Reservation are allotted in severalty and until changed by the legislature of Oklahoma.”

In the absence of any express prohibition upon the convention, it had full and complete power to establish and define all the counties in the proposed state, as a necessary incident to the formation of a state government. The power to form a state government clearly implies the power to create and define every county within the limits of the new state, the only limitation upon the convention in this respect being that the Osage Indian Reservation shall remain a separate county until the lands in the Osage Indian Reservation are allotted in severalty, and until changed by the legislature of the state of Oklahoma.

Manifestly, the territorial government and all the counties organized thereunder were intended 'to be for temporary purposes only, and to remain as such until the state government was created and organized. It is difficult to perceive how the convention could have organized a full state government without defining and fixing the boundaries of the counties throughout the entire state. In this connection, it must be borne in mind that the convention was not created for the purpose of forming a government for Oklahoma or Indian Territory, but they were charged with the power, duty, and responsibility of forming a state government for all the people of the proposed state of Oklahoma, and in fixing the boundaries of the counties throughout the entire state, there were no limitations whatever placed upon the convention, except with reference to the Osage Indian Reservation, as above stated. Accordingly, the convention did, by the terms and provisions of the constitution, fix and define and name each of the counties of the proposed state, and designated the county seats therein, and also provided how the county lines might be changed, or the county seats removed. The wisdom, expediency, or propriety, of such action is a question that was peculiarly confided to the convention, and is not the subject at this time of judicial cognizance.

That counties and townships are parts of a state government is so well settled by the adjudicated cases, that it is no longer open to serious judicial controversy. '

In Board of County Commissioners of Greer County v. Watson, 7 Oklahoma, 174, this court, speaking by Chief Justice Burford, defined a county as follows:

“A county is an involuntary political and civil division of the territory, created by statute to aid in the administration of governmental affairs, and possessed of a portion of the sovereignty. All the powers with which it is entrusted are the powers of the sovereignty which created it, and all the duties with which it is charged are the duties of the sovereignty.”

In Commissioners of Tolbert County v. Queen Anne’s County, 50 Md. 245, it is said:

“A county is one of the territorial divisions of the state created for public and political purposes connected with the administration of the state government.”

This language was quoted with approval by the supreme court of the United States in Washer v. Bullitt County, 110 U. S. 562.

In Commissioners of Laraminee County v. Commissioners of Albany County, 92 U. S. 310, it was said by the supreme court of the United States:

“’Corporations of the kind are properly denominated public corporations, for the reason that they are but parts of the machinery employed to carry on the affairs of the state."

And in the course of the opinion, on page 311, Mr. Justice Clifford, speaking for the court, said:

“Institutions of this kind, whether called counties or towns, are the auxiliaries of the state in the important business of municipal rule, and cannot have the least pretention to sustain their privileges or their existence upon any thing like a contract between them and the legislature of the state, because there is not and cannot be any reciprocity of stipulation, and their objects and duties are utterly incompatible with every thing of the nature of compact. Instead of that, the constant practice is to divide large counties and towns, and to consolidate small ones, to meet the wishes of the residents, or to promote the public interests, as understood by those who control the action of the legislature. Opposition is sometimes manifested; but it is every where acknowledged that the legislature possesses the power to divide counties and towns at their pleasure, and to apportion the common property and the common burdens in such a manner as to them may seem reasonable and equitable. School Society v. School Society, 14 Conn. 469; Bridge Co. v. East Hartford, 16 Id. 172; Hampshire v. Franklin 16 Mass. 76; North Hemstead v. Hemstead, 2 Wend. 109; Montpelier v. Fast Montpelier, 29 Vt. 20; Sill v. Conning, 15 N. Y. 197; People v. Draper, Id. 549; Waring v. Mayor, 24 Ala. 701; Mayor v. The State, 15 Md. 376; Ashby v.. Wellington, 8 Pick. 524; Baptist So. v. Candia, 2 N. H. 20; Denton v. Jackson, 2 Johns. Ch. 320."

In the case of Eagle v. Beard, 33 Ark. 497, it is said:

“The political power is composed of representatives from counties. Through them justice is administered, the revenue collected, and the local 'police rendered effective Neither the courts of justice, nor the executive of the state, can perform any important function, except in the tribunals, or through the offices of the counties.”

In Woots v. Colfax., 10 Neh. 552, 7 N. W. 269; Ch. Justice Maxwell, quoting from 7 Mass., 169, says:

“A county is a mere local subdivision of the state created by it without the request or consent of the people residing therein. * * * County organization is created almost exclusively with a view to the policy of the state at large. * * * With scarcely an exception all the powers and functions of the county organization have a direct and exclusive reference to the general policy of the state, and are in fact but a branch of the general administration of that policy.”

In Commissioners of Hamilton County v. Mighels, 7 Ohio St, 107, Justice Brinkerhoff says:

“Counties are legal subdivisions of the state, created by the sovereign power of the state, of its own sovereign will, without the particular solicitation, consent, or concurrent action of the people who inhabit them.”

In Ward v. County of Hartford, 12 Conn. 406, Chief Justice Williams speaking of the court, says:

“The state is divided into counties for public purposes, and particularly for the more convenient administration of justice.”

In Gooch v. Gregory, 65 N. C. 143, the court says:

“A county is a municipal corporation created by law for public and political purposes and constitutes part of the government of the state.”

It follows that the convention had the undoubted right to define and fix the boundaries of every county in the proposed state, and to change existing counties, if they deemed it appropriate, and to define legislative and judicial districts, in order that a full state government might be put into operation, and to provide for the necessary machinery to submit the constitution to a vote of the people for ratification or rejection.

THE CONVENTION MAY PROVIDE EOR THE ELECTION OF STATE, COUNTY, AND OTHER OFFICERS PROVIDED EOR IN THE CONSTITUTION.

By section 21 of the enabling act it is provided:

“That the constitutional convention may bjr ordinance provide for the election of officers for a full state government, including members of the legislature and five representatives to congress.”

And by the last clause of section 6 of said act, it is provided :

“And the said representatives, together with governor and other officers provided for in the said constitution, shall be elected on the same day of the election for the ratification or rejection of the constitution; and until said officers are elected and qualified under the provisions of such constitution and the said state is admitted into the Union, the territorial officers of Oklahoma Territory shall continue to discharge the duties of their respective offices in said Territory.”

It will thus be seen that congress granted the power and authority to the convention to provide by ordinance for the election of officers for a full state government. What, then, is a full state government within the meaning of this act? In our opinion, officers for a full state government includes not only the state officers whose power and duties are co-extensive with the limits of the state, .but includes all the officers whose duties are in any manner connected with the administration of the state government. Hence, we think the convention had the power to provide in the ordinance for the election of all the officers which were provided for in the constitution, from the highest to the_ lowest. It seems to ps to hold otherwise would be to place a very strained and narrow interpretation upon the language used in the act, that the convention may by ordinance provide for the election of officers for a full state government. And since we have already decided that the counties and townships are necessary and indispensable parts of the state government, it must follow, as an inevitable conclusion, that the convention had the power to provide for the election of state, county, and others officers provided for in the constitution.

THE ORDINANCE.

What is an ordinance, and what are it objects? Section 4 of the enabling act provides:

“That in case a constitution and state government shall be formed in compliance with the provision of this act the convention forming the same shall provide by ordinance for submitting said constitution to the people of said proposed state for its ratification or rejection at an election to be held at a time fixed in said ordinance.” etc.

It will thus be seen that the enabling act provides that the convention “Shall provide by ordinance for submitting said constitution to the people”, etc. The language here used is -clear, specific, and mandatory in its terms.

An ordinance, as used in this act, has the force and effect of a legislative enactment or law for the purposes therein named. Manifestly, it is a law which is essential to carrying into effect the objects for which the convention was created. Thus we speak of the famous ordinance of 1787, which created a government of that portion of the territory of the United States northwest of the Ohio river, and known as-the Northwest Territory.

It will thus be seen that congress conferred direct and express power and authority upon the convention to pass an appropriate ordinance to submit the constitution to the people for its ratification or rejection, at an election at a time fixed in said ordinance, by the convention. Such an ordinance,, when once adopted by the convention^ has the force and effect of statute law.

The distinction between a constitution and an ordinance is this: The constitution is a permanent fundamental law of the state. It is of a stable and permanent character. As is-appropriately said in Vanhorne v. Dorrence, 2 Dall. 308;

“The constitution of a state is stable and permanent,, not to be worked upon by the temper of the times, nor to rise and fall with the tide of events; notwithstanding the-competition of opposing interests, and the violence of contending parties, it remains firm and immovable, as a mountain amidst the strife of storms, or a rock in the ocean amidst, the raging of the waves.”

But, under the terms of the enabling act, it is prospective in its operation only. That is, it does not become operative until it is ratified by the people, and approved by the President of the United States. On the other hand, an ordinance, as used in this act, refers to a merely temporary law, its object being to carry into effect the formation of the constitution and fundamental law of the state, to provide a mode and means for an election of a full state government, including the members of the legislature and five representa tives to congress, and because operative immediately upon its adoption.

Section 1 of the election ordinance adopted by the convention on April 22, 1907, provides as follows:

“Said election shall, in all respects, be held and conducted in the manner required by the law of the Territory of Oklahoma for elections therein, when not in conflict with the enabling act, and as supplemented by this ordinance, and the returns of said election shall be made to the secretary of the Territory of Oklahoma, who, with the chief justice thereof, and the senior judge of the United States court of appeals for the Indian Territory, shall canvass the same, and if a majority of the legal votes cast on that question shall be for the constitution, the governor of Oklahoma Territory, and the judge senior in service of the United States court of appeals for the Indian Territory shall certify the results to the President of the United States, together with a statement of the votes cast thereon, and upon separate articles or propositions, and a copy of said constitution, articles, propositions, and ordinances, and in all respects comply with the provisions of said enabling act.”

And section 8 of said ordinance provides-:

“That the election laws of the Territory of Oklahoma now in force, as far as applicable and not in conflict with the enabling act, including the penal laws of said territory • relating to election and illegal voting, are hereby extended and put in force throughout the proposed state of Oklahoma until the legislature of said proposed state shall otherwise provide, and until all persons offending against said laws in the elections aforesaid, shall have been dealt with in the manner therein provided, and the courts of said state shall have power to enforce said laws in the same manner as other criminal laws of said state.”

It will thus be seen that the convention, in its ordinance, expressly put in force the election laws of Oklahoma, as far as applicable and not in conflict with the enabling act, including the penal laws of said territory relating to election and illegal voting, and expressly provides that the courts of said state shall have power to enforce said laws in the same manner as other criminal laws of said state, until all persons offending against said laws shall have been dealt with in the manner therein provided.

It seems to us that it was clearly the duty of the convention in its ordinance, to provide the necessary machinery for holding such election in all the newly created counties of the proposed state 'The officers created in the new counties in the Indian Territory and Oklahoma Territory were merely for the temporary purpose of providing the necessary election machinery to carry into effect the object of the convention. These offices are merely temporary, and they do not supersede or supplant any of the existing officers, who are charged with the power and duty under the election ordinance to carry into effect the duties devolving on them, and they possess and exercise no powers, except such as granted for the purpose of carrying into effect the provisions of the election ordinance. The manifest intention of the enabling act was that the convention should by ordinance make uniform and specific provisions throughout the proposed state for the holding of said election.

IS THE CONSTITUTION REPUBLICAN IN FORM?

But one question remains, and that is: Is the proposed constitution republican in form?

Article 4 section 4 of the constitution of the United States provides that:

“The United States shall guarantee to every state in this Union a republican form of government.”

And section 3 of the enabling act provides that:

“The constitution shall be republican in form, and make no distinction in civil or political rights on account of race or color and shall not be repugnant to the constitution of the United States and the principles of the Declaration of Indepence.”

This leads us to the inquiry: In whom is lodged the power and authority to decide when the government is republican in form?

In the case of Luther v. Borden, 7 How. 42, the supreme court of the United States, speaking by Chief Justice Taney says:

“The fourth section of the fourth article of the constitution of the United States provides that the United States shall guarantee to every state in the Union a republican form of government, and shall protect each of them against invasion; and on the application of the legislature or of the executive (when the legislature cannot bo convened) against domestic violence.

“Under this article of the constitution it rests with congress to decide what government is the established one in a state. For as the United States guarantee to each state a republican government, congress must necessarily decide what government is established in the state before it can determine whether it is republican or not. And when the senators and representatives of a state are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character is recognized by the proper constitutional authority. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal.”

And in Texas v. White, 7 Wall. 730, the supreme court of the United States had occasion to reiterate this same doctrine, where it is said:

“But the power to carry into effect the clause of'guaranty is primarily legislative power, and resides in congress, ‘Under the fourth article of the constitution, and rests with congress to decide what government is the estabilished one in a state. For, as the 'United States guarantee to each’ state a republican government congress, must necessarily decide what government is established in the state, before it can determine whether it is republican or not/ ”

By section 4 of the enabling act it is provided:

“And if the constitution and government of said proposed state are republican in form, and if the provisions of this act have been complied with in the formation thereof, it shall be the duty of the President of the United States, within twenty days from the receipt of the certificate of the result of said election and the statement of the votes cast thereon and a copy of said constitution, articles, propositions, and ordinances to issue his proclamation announcing the result of said election; and thereupon the proposed state of Oklahoma shall be deemed admitted by congress into' the Union, under and by virture of this act, on an equal footing with the original states.”

It will thus be seen that the power to determine whether the constitution is republican in form is primarily a legislative power, and resides in congress; but this power was delegated by congress to the President, and this question is not the subject of judicial cognizance.

We therefore hold that the constitutional convention has the power and authority to submit to the people of the pro posed state of Oklahoma the provisions in the constitution providing for the creation of the counties of Alfalfa and Major of territory formerly embraced in Woods county, that under the terms of the enabling act, authorizing and directing the convention to provide by ordinance for an election to submit the constitution to a vote of the people for ratification or rejection, and for the election of officers for a full state government, the convention had the authority, to create the necessary election machinery in these counties, in order that the constitution might be submitted to a vote of the people, and that the ordinance providing for such election machinery in Alfalfa and Major counties is valid. It follows that the temporary injunction granted by the probate judge, restraining and enjoining the governor of Oklahoma, and the president and secretary of the constitutional convention from issuing or publishing any proclamation in which it is sought to submit to the electors of the proposed state of Oklahoma, as a part of said constitution, the creation of the counties of Alfalfa and Major, and which restrained and enjoined .the officers provided for in the ordinance from exercising the powers and duties of the election officers in said counties was improvidently issued, and that the district court committed error in refusing to dissolve the injunction, and in overruling the demurrer to the petition, and in entering the decree making the temporary injunction perpetual.

THE DECREE.

The judgment of the district court of Woods county is therefore reversed and in order that there may be no inconvenience or delay in carrying into effect the decree of this court is hereby ordered, considered, adjudged and decreed that the judgment of the district court of Woods county be and, the same is hereby vacated, set aside, and held for naught; and it is further ordered, considered, adjudged and decreed that the injunction granted in said cause is hereby dissolved, vacated, set aside, and held for naught, and the said cause is hereby dismissed at the costs of the plaintiff.

Pancost, J. who presided in the court below, not sitting; Irwin, J. dessenting; Burwell, J., dissenting in part and concurring in part; all other Justices concurring.'