To the conclusion reached in the majority opinion of this court that the ordinance irrevocable passed by the Constitutional Convention was merely a law which the state Legislature was authorized to repeal and that it could permanently locate the state capital without submitting the question to a vote of the people, I am constrained to dissent. Congress, in the Enabling Act, approved June 16, 1906, made as one of the conditions for the admission of the state that the citizens occupying the territory embraced within its boundaries should, in accordance with section 22 of said act, accept and pass an irrevocable ordinance, providing that "the capital of said state shall temporarily be at the city of Guthrie, in the present territory of Oklahoma, and shall not be changed therefrom previous to Anno Domini 1913, but said capital shall, after said year, be located by the electors *Page 182 of said state at an election to be provided for by the Legislature." The acceptance of the terms of the Enabling Act and this provision was made a prerequisite condition on the part of Congress for the authority mentioned in section 2 of said act, granted to the people concerned, authorizing them to vote for and choose delegates to a Constitutional Convention for the proposed state. This acceptance, then, was, to these people, a fundamental prerequisite condition, without which there would have been no statehood. Congress is vested with absolute authority to admit states, and it may do so upon such terms and conditions as it chooses. The Enabling Act was a proposal on the part of Congress, which on its acceptance and a compliance with its terms there was pledged to our people statehood. The majority opinion of this court holds that such an irrevocable compact was void, and that the people of the state could not lawfully enter into the same, and that if they attempted to do so they could not be bound thereby, for the reason that it involved the yielding of a portion of their sovereignty which they lacked the power to do. Granting for the sake of this discussion that this is true, and that the compact feature must fall, yet it must be admitted that when the sovereign people of the state read the Enabling Act and understood its meaning, and then elected delegates to attend a convention, that in so far as they could they approved and ratified the same, knowing that one of the acts which the delegates selected by them would be required to do in order to secure and retain the end sought was the approval of the act by the ordinance irrevocable. Therefore, when they selected their delegates and sent them to the Convention, to the extent which they could, which involved all the power they possessed, they empowered them, and made the act of the delegates and the Convention their act. Chief Justice Marshall in the celebrated case of Marbury v. Madison, 1 Cranch, 137, 2 L.Ed. 60, said:
"That the people have an original right to establish for their future government such principles as in their opinion shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected." *Page 183
There is no power in any state superior to the sovereign will of the people, and when that will is expressed and can be understood, it is binding upon every governmental agency established. The Constitution of a state is neither more nor less than law.
Mr. Bryce in his excellent work on the American Commonwealth, vol. 1, p. 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 the state when they so vote act as a primary and constituent assembly, just as if they were all summoned to meet in one place like the folkmotes 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."
It is true it is the supreme law, but it is only law in the end, and remains extant and demands recognition to the full extent its makers will it. The government established under it is just such as those who ordain it create, and that government has just such authority as those establishing it invest in it, and when the people of the state elected the delegates to the Convention as authorized by the Enabling Act, their instructions to them to accept the terms thereof was an investment of complete and supreme authority from all the people to do for them this act. The purpose of their election and prime duty was to convene and to pass the ordinance irrevocable under which they were authorized to assemble, and with this for a foundation, it was then their duty to write a Constitution. The fact that this condition was onerous or burdensome or one which every elector of the state would have declined to make, had he had his free and untrammeled choice, is not open to assertion, and if it were, it would in no wise change the situation.
The Supreme Court of the United States, in the case ofWhite v. Hart, 13 Wall. 646, 20 L.Ed. 685, referring to a provision inserted in the Constitution of Georgia, which it was asserted was not binding upon the state because it was adopted by dictation and coercion, says: *Page 184
"The state is estopped to assail it upon such an assumption. Upon the same grounds she might deny the validity of her ratification of the constitutional amendments. The action of Congress upon the subject cannot be inquired into. The case is clearly one in which the judicial is bound to follow the action of the political department of the government, and is concluded by it."
Just as in this case, we are bound by it if we can ascertain what it is.
The acceptance of this provision has been variously denominated an "agreement," "contract," or "compact," but it was such a one as the Supreme Court of the United States, in the case last cited, and in the cases of Newton v.Commissioners, 100 U.S. 548, 25 L.Ed. 710, and Green v. Biddle, 8 Wheat. 1, 5 L.Ed. 547, held to be a governmental subject involving public interests, and that, although as a compact it fell, a legislative act concerning it was necessarily a public law. So that, should the compact or agreement which it was here sought to enter into fall as between the state of Oklahoma and the government of the United States, it remained yet as a law dictated and directed, passed and adopted in accordance with the express mandate of the whole people, and, until abrogated by them in some lawful manner, must be held valid and binding. In accordance with the terms of the act, and in keeping with the command of the people who elected and sent them there, the delegates in convention assembled and passed the ordinance in which it was ordained that they irrevocably accepted the terms and conditions of the act, thus complying with the terms of the commission under which their election was authorized and the Convention held. Thereafter, and in accordance with an ordinance duly passed, provided for in the Enabling Act, the Constitution, the creation of which depended upon the acceptance of the act in question, was submitted to the people and adopted. Thus we see that we have not only the previous authorization of the people of the state for the adoption of the irrevocable ordinance, but we have in substance its subsequent ratification, for in the adoption of the Constitution the people ratified the acts of the *Page 185 Convention upon which its adoption depended. Here, then, is a double manifestation on the part of the people of their will in reference thereto. The terms of the Constitution, aside from those provided for in the Enabling Act, were unknown to the people of the state prior to their being framed by the Convention, and submitted for adoption, so that the Constitution itself has less evidence of sanction at the hands of the people of the state than had this irrevocable ordinance, for this was not only known when the Convention submitted its work to the people for their adoption or rejection, but it was known that its adoption was the sine qua non to any Constitution or any state at the time of the meeting of the people in the districts and the selection of the men to prepare and write the Constitution.
We are told, however, that it must fall as a compact, and that involving a political and governmental subject, and hence sovereignty, that the people of the state could not barter it away for statehood; that they could not as to it irrevocably bind themselves to Congress nor against themselves. Granted; but as we have seen, in the case of Newton v. Commissioners,supra, and the other cases cited, it remains with us as a law of some kind. Now, let us see what kind of a law it is. The people of the state ordained as plainly as it was possible for them to do, that it was an irrevocable law. That is, as plainly and as far as they could, they said to each other, the people of the United States, and the world, we will here make a law which, until 1913, we agree we shall be unable to repeal. It shall be to us and to our people irrevocable. It is a plight, a compact, an agreement, and we pledge our sovereign will to respect it as such. By doing this we will be permitted by our sister states to relieve ourselves of the conditions under which we have for many years travailed, and enjoy the rights and privileges of the other states of the Union. We will adopt and accept this, and then we shall be permitted to send two Senators and five Representatives to the Congress of the states. We will adopt this, and shall receive as a bounty from the states of the Union, $5,000,000. If we adopt this we shall receive almost untold *Page 186 millions in public lands belonging to the people of the Union. These are some of the things which will come to us and our state by its acceptance, and we give our pledge and word to all that we will abide by it. For the sake of argument, as we have seen, I grant that the irrevocable part of it must fall so far as the people of the state in their sovereign capacity is concerned. I grant that they did not legally bind themselves. I grant and yield all of this, but I assert that the people, although unable to bind themselves in the passage and adoption of this act, have intended to and have bound their agencies and every department of government which they established, and have proclaimed that they desired to reserve the right to themselves by their votes to locate their state capital. And the fact that they limited the power of the Legislature to the calling of the election thereon, reinforces the argument that the people did not intend that body to act finally. They have done this because they could do it, and because the plain written language of the law which they passed has done it. On this point Mr. Jameson in his standard work on Constitutional Conventions (4th Ed.) § 351, p. 342, discussing the question as to the extent that the people could be bound by ordinances of a constitutional convention, and speaking of the possibility of the sovereign people to limit or restrict itself, said:
"It (the Convention) may recommend constitutional provisions, which, if adopted and put in force by the sovereign, will bind the latter, so far forth as it can be bound at all, but in that case it would be the sovereign which would limit or restrict itself, not the Convention which would bind it. And that the sovereign can limit or restrict itself is a well-settled principle. The bonds, however, by which it can bind itself, are doubtless only moral ones, since under whatever limitations the nation may have placed itself by voluntary regulation, it has evidently at all times the physical ability to disregard them. In one view, however, these bonds are of immense practical efficacy; it is only the sovereign body which can disrupt them with impunity. Its servants, the various departments of the government, are obliged to respect them or render themselves obnoxious to punishment for disobedience." *Page 187
In this case it must be conceded that the sovereign body of the people, while possessing the physical ability to disregard the moral obligations which it has assumed, has done all that it could to bind irrevocably every department that it could bind, and, as is said by Mr. Jameson, its servants and the various departments of government are bound because the sovereign had the power to bind them, and if they ignore it, they thereby render themselves obnoxious to punishment. Nor would this part of the act fall because another element or portion is unconstitutional and unenforceable, provided the constitutional and unconstitutional provisions are severable and distinct, and the presumption not obtaining that the constitutional portion would not have been adopted had the law-making body foreseen that the balance would have been held invalid. The universal rule on this proposition is laid down in volume 1 of Lewis' Sutherland Statutory Construction (2d Ed.) at section 296, as follows:
"Where a part only of a statute is unconstitutional and therefore void, the remainder may still have effect under certain other conditions. The court is not warranted in declaring the whole statute void unless all the provisions are connected in subject-matter, depend on each other, were designed to operate for the same purpose, or are otherwise so dependent in meaning that it cannot be presumed that the Legislature would have passed one without the other. The constitutional and unconstitutional provisions may even be expressed in the same section, or even in the same sentence, and yet be perfectly distinct and separable, so that the first may stand though the last fall."
It is unnecessary to cite authorities to support a proposition so well established, but the following, among a large number of others cited to support the text, are noted:Commonwealth v. Hitchings, 5 Gray (Mass.) 482; Robinson v.Bidwell et al., 22 Cal. 379; In re Abel, 10 Idaho, 288, 77 P. 621; People ex rel. v. Kenney et al., 96 N.Y. 294. See, also,In re County Com'rs of Seventh Judicial District, 22 Okla. 435,98 P. 557.
The Court of Appeals of New York, in the case of People ex *Page 188 rel. v. Kenney et al., supra, in the syllabus laid down the rule as follows:
"The fact that a part of a statute is unconstitutional does not authorize the court to adjudge the remainder void, unless the provisions are so interdependent that one cannot operate without the other, or so related in substance and object that it is impossible to suppose that the Legislature would have passed the one without the other. The question is not whether the good and bad portions are in the same section, but whether they are essentially and inseparably connected in substance. If, when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained."
In the present case it is not only not impossible to suppose that the Convention or people would have passed one section or element of this ordinance without the other, but it is impossible to suppose from the nature of the case that they would have done otherwise than they did, had they known and foreseen that they would be held to be unable to bind themselves. Under the plain language of the act, they not only made it irrepealable as to the Legislature and all other of their agencies, but they made it irrevocable as to themselves, which would include all of the subordinate authorities. This being true, and expressing a willingness to bind all the sovereignty, there can be no doubt of their willingness and intention to bind all its parts and all of the agencies to whom they had parceled it. So that, should the act fall as a compact, and should it fall as an irrepealable law as to the people themselves, why are not the portions not unconstitutional still left as a law valid and enforceable against everybody but the people?
It is not contended or insisted that the act of the people in retaining within their own hands the right and power to locate their state capital was void; it is a power which always has existed and is generally dealt with by Constitutional Conventions in organizing a state government, and it is admitted that it is some kind of a law, but assumed to be a statute, and hence subservient *Page 189 to the will of the Legislature. Viewing it as I do, that it is not to be classed as a statute, I invite attention to the classification in which such laws have usually been placed by law-writers and jurists.
Mr. George F. Tucker, lecturer on International Law in the Boston University School of Law, and author, and who prepared the article on Constitutional Law in Cyc. (8 Cyc. 724), speaking in reference to the ordinances and schedules appended to Constitutions, says:
"Ordinances and schedules appended to Constitutions are generally a part of the fundamental law and binding upon all the departments of the state."
Mr. Black in his Law Dictionary, at page 855, defines the word "Ordinance," as follows:
"A rule established by authority; a permanent rule of action; a law or statute. In a more limited sense, the term is used to designate the enactments of the legislative body of a municipal corporation. The name has also been given to certain enactments, more general in their character than ordinary statutes, and serving as organic laws, yet not exactly to be called 'Constitutions.' Such was the 'Ordinance for the government of the northwest territory,' enacted by Congress in 1787."
In this connection, however, I may say that I am rather indifferent to classification and terminology. Lincoln once said, "Suppose we call a dog's tail a leg, how many legs would he have?" To call this act by one name or another will neither raise it nor lower it from the exact standard which it possesses. If it is as to the legislators of the state an irrepealable enactment, then they cannot destroy it. If it is a void or as to them a repealable ordinance, then no obstructions meet them in dealing with it. It was, however, as we have seen, an act of law called an ordinance, authorized and required by act of Congress, and passed on the demand of the people of the state by the Convention, assembled at their behest for the purpose of passing it, and in which it is declared, when reduced to its lowest possible terms, that we reserve unto ourselves the right to deal with this particular *Page 190 subject. Had the people the right and power, and did they, when they thus spoke, pass the act as a law and make it a part of the fundamental law of the state, and did they accomplish the purpose and the end which they there sought, or may one of their agencies, contrary to their express will, strike it down? The answer to this depends upon the powers of the Convention. Let us therefore investigate them to see if they support the assumptions heretofore indulged. Constitutional Conventions may, with reference to their powers, be divided into two great classes. First, there is the revolutionary or spontaneous convention which arises out of a call by the people. These bodies have at different times assembled to write and adopt Constitutions, and the people acquiescing in them, without submission of their provisions for their adoption or rejection, have enabled their work to pass for the Constitution of the state. These bodies assumed the power to definitely legislate, and their acts stood and were valid because the people acquiesced therein; and no body has ever claimed an ordinary Legislature could repeal them. Then, there is a second class which are conventions called in accordance with law, and these bodies have uniformly possessed just the power to do the things which the law of their being granted them the right and the authority to do. Where they were authorized to frame a Constitution and to submit the same to the people of the state for adoption or rejection, and this was the limit and scope of their authority, any act of theirs not adopted and accepted by the people has very generally been held to be without force or authority, but the acts of these bodies when not required to be submitted, if within the scope of the warrant or law under which they were called, have been complete, final, and binding. Mr. Jameson, at section 367 of his work cited above, says:
"We have seen that both Conventions and Legislatures are agencies appointed by the sovereign for purposes of its own, connected with the formation, the renewal, or the operation of government, the function of each being a legislative one; that to the former are intrusted certain duties relating to the framing of the *Page 191 fundamental laws, extending in some cases, according to theircommissions, to the definitive enactment of them."
Hence, according to the commission of the Convention, it may definitively enact fundamental laws by which the people will be governed; this because the law of their being permitted or required it. It is to be noted that Mr. Jameson uses the phrase "fundamental laws," and states that a Constitutional Convention, according to its commission, may be intrusted with the duty of definitely enacting them. There is no question in the minds of any that had the ordinance in question been embodied within our Constitution and made a part of it, the Legislature could not have repealed it. It would have been placed where it would have required a vote of the people to change it. Did not the fact, then, that the Constitutional Convention was empowered with the authority and held a commission authorizing it to definitively and finally pass this, as an irrepealable act, vest it with the power to do so and to make of it, as is termed by Mr. Jameson and other law writers, a "fundamental law"? It is solely a question of power. Out of 157 state Constitutions which has been adopted in whole or in part by the different states of the Union up to the time when Mr. Jameson issued the fourth edition of his book 44 thereof were adopted either under enabling acts of Congress, or acts of the Legislature authorizing the Convention assembled to adopt finally its act or acts as the Constitution for the people whom they served. Their acts were like the acts of this Convention on the ordinance within the terms of the law of their being, and were valid and binding solely because of that fact.
The question now before us was raised in the Supreme Court of Mississippi in the case of Sproule v. Fredericks, 69 Miss. 898, 11 So. 472, wherein a part of a Constitution prepared by a state Convention and not submitted to the people, but promulgated as the act of the Convention under legislative authority, was assailed on the ground that it had not been submitted to and adopted by the people. Speaking to this question in the case noted, Justice Woods said: *Page 192
"The validity of the Constitution of 1890 is called into question by counsel for appellee, in a supplemental brief filed recently, by consent of the court, and, as the challenge meets us on the threshold of the case, we proceed at once to its consideration, briefly. In support of this view of the invalidity of the Constitution, two propositions are asserted: (1) A Constitutional Convention has power only to prepare or frame the body of a Constitution, and that when prepared or framed the instrument is of no force or effect until ratified by a popular vote of the people, and the Constitution of 1890, having never been submitted to or ratified by the people, is invalid; and (2) the changes made by the Constitution in the basis of suffrage are violative of the act of Congress readmitting the state of Mississippi into the Union in the year 1870, and invalidate that instrument. With confidence, we reject both propositions as unsound. It will be remembered that the case at bar is free from the difficulties which are supposed by some writers to arise out of a failure or refusal of a Constitutional Convention to yield to the direction of the Legislature which summoned it that the Constitution framed shall be submitted to the people for ratification. The act of the Legislature which provided for the assembling of the Constitutional Convention of 1890 declared that the end sought to be attained, the work to be done, was the revision and amendment of the Constitution of 1869, or the enactment of a new Constitution; and it did not attempt to limit the powers of the Convention by imposing, or seeking to impose, upon that sovereign tribunal the mere legislative will that the Constitution enacted should be submitted to the people for ratification. We have simply the case of a Constitutional Convention enacting a new Constitution, and putting it into effect without an appeal to the people, in strict conformity to the legislative call which assembled it. We have spoken of the Constitutional Convention as a sovereign body, and that characterization perfectly defines the correct view, in our opinion, of the real nature of that august assembly. 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, specifically 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 *Page 193 parts of this frame work is confided to the wisdom, the faithfulness, and the patriotism of this great convocation, 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. This theorizing will reduce that great body, which in our state, at least, since the beginning of its existence, except for a single brief interval, in an exceptional period, by custom and the universal consent of the people, has been regarded as the repository and executor of the powers of sovereignty, to a mere commission, stripped of all power and authorized only to make a recommendation."
To pass this ordinance, then, was within the authority granted to and vested in the Convention, and to say that any authority less than the people can repeal it will, as is said by the court from which we last quoted, "degrade this sovereign body" of a Constitutional Convention "below the level of the lowest tribunal clothed with ordinary legislative powers," for this is necessarily involved in the assumption that the act can be repealed by the Legislature. Mr. Jameson at section 103 of his work speaks to the same subject, but with greater particularity upon the definite proposition now before us. He says:
"Besides schedules, there are appended to many Constitutions acts adopted by Conventions, called 'ordinances.' Not all ordinances, however, are so appended, or have any direct relation to Constitutions. They are in their nature resolutions of the bodies adopting them, but taking the name 'ordinances,' to distinguish them from the similar acts of legislative bodies, denominated 'resolutions,' which may be adopted by the Houses severally or jointly. Within the scope of the powers of a Convention, ordinances may be valid and effectual according to their terms and purpose. If they are employed to provide for temporary emergencies of the Convention, and do not transcend the limits of its powers as *Page 194 defined or implied in the act calling it, they are valid. If they are appended to the Constitution, and with it are submitted to the people for adoption or rejection, when submission is not dispensed with, and with it adopted, they are as valid as any part of the Constitution, and are equally binding upon the various departments of the government."
If Mr. Jameson may be considered an authority upon the power which may be lawfully exercised by Constitutional Conventions, and if authority should be deemed necessary for that which appears to be so manifestly self-evident, in the foregoing quotation, we have an absolute expression covering this question. Of the authorized ordinances passed by the Convention, I repeat, "if they are appended to the Constitution, and with it are submitted to the people for adoption or rejection" — now, mark you — "when submission isnot dispensed with, and with it adopted, they are as valid as any part of the Constitution, and are equally binding upon the various departments of the government."
This sentence, then, reading it with particular reference to the subject before us, means, as I view it, that if the authorized ordinances are adopted by a Convention with vested authority to adopt, they are as valid as any part of the Constitution, and are equally binding upon the various departments of the government. Some stress seems to be placed on whether the ordinance is appended to the Constitution. We see no force in this. Certainly, the mere clerical act of appending the paper containing the written ordinance to the document would give it no weight it would lack in the absence of this. The question is, did the power exist to adopt it, and was it adopted by the Convention, and not where some clerk of that body placed it. To have appended this ordinance to the Constitution (if it was not done) would not have given it any element it did not have without that act, for it was not intended to be voted on by the people, but to be definitely enacted by the Convention. The certificate of the President of the Convention shows that the ordinance "passed and engrossed, was engrossed with the engrossed copy of the Constitution on parchment, *Page 195 was read as engrossed and roll call had thereon and the same duly authorized by a majority of the votes of all the delegates elected to and constituting this Convention." If a Constitutional Convention may adopt a Constitution for a people because the law calling it together authorizes it to do it, and its acts be final without submission to the people, then there is no reason in logic or law why it cannot do so on less than a Constitution and its act likewise be final. To hold otherwise, as I view it, violates the fundamental principles recognized by every state in the Union; violates the plainest dictates of reason, to say nothing of the authorities which have spoken on the subject.
The ancient case of Kamper v. Hawkins, 1 Va. Cas. 20, decided in 1793, contains a discussion of the question which is before us, which, while not involving ordinances of a Convention created as was ours, presents and confirms the views we have here expressed in reference to the binding force of ordinances passed with the intention that they should arise to the dignity of fundamental law. Manifestly, as appears from the case, an attempt had been made, as in this instance, to abrogate by legislative act one of the ordinances passed by the Convention of 1776. The deputies or delegates comprising this Convention were chosen by the people, and the authority given them was "to consult of and take care of their most valuable interests." The Convention thus called established a Bill of Rights and a Constitution which was not submitted to the people for their approval, adoption, or rejection. In the consideration of the question of whether one of the ordinances, so-called, passed by this Convention, was subject to repeal by the Legislature, Judge Nelson, discussing this question, said:
"But it may be objected that, although the Legislature would be bound by a fundamental regulation, made by a convention or other body delegated expressly for such a purpose, the body who formed this, not having been thus specially appointed — this act possesses not sufficient sanctity; but is an act equal only to those of a common Legislature, because some acts passed in the same session are confessedly so. Here let it be remembered that the *Page 196 question is not whether the people can change it, but whether the Legislature can do so. As to the powers of the Convention, this body seems to have been appointed not only to see that the commonwealth sustained no injury, but also to consult in general for the public good, and in such a crisis as that at which our government was formed, those who are delegated have authority more extensive than a Legislature appointed under a government, one object of which is to restrain that as well as the other departments; whereas in the former case the people alone can decide whether these powers have been strained too far. As to some acts of the same session being temporary and others revocable by the Legislature, I answer that the subject-matter of them will evince which are intended to be of this nature, and if any were designed to be permanent, they must be so until changed by the people, unless, indeed, calling these ordinances and the other a Constitution sufficiently manifests a design that this should be of a higher authority than those."
From the facts of the case and this discussion, it will be seen that, although the ordinance passed by that Convention was not embodied in the Constitution itself, the court in the consideration thereof held, as we have seen, that if it was designed to be permanent, it would be so until changed by the people, unless, as is suggested, the calling of one class of enactments of the Convention "ordinances," and the other, the "Constitution," would manifest a different design. Judge Roane also delivered an opinion for the court. He manifestly classed these so-called ordinances as part of the Constitution, for discussing the question before the court in that case he says:
"This Constitution is sanctioned by the consent and acquiescence of the people; and it is admitted by the most universal opinion of the people, by the repeated adjudications of the courts, and by many declarations of the Legislature itself, to be of superior authority to any opposing act of the Legislature."
Judge Nelson in his discussion seemed to consider that the Legislature would be bound by what he terms "a fundamental regulation made by a convention." This appears, so far as we have been able to discover, the earliest denomination of that class of laws passed by a Constitutional Convention other than either *Page 197 the election ordinance, the Schedule, or the Constitution itself, as a fundamental regulation or a fundamental law, as these provisions have been called by later text-writers and jurists.
The rule laid down in the foregoing case that the intention of the Constitutional Convention would prevail receives further support in a later case from the Court of Appeals of Virginia — the Richmond Mayoralty Case, 19 Grat. (Va.) 673, 712, decided in 1870. This case is approvingly cited and quoted from by the same court in the later case of Willis et al. v.Kalmbach et al. (1909) 109 Va. 475, 64 S.E. 342, 21 L. R. A. (N. S.) 1009, from which we extract the following:
"It is true that in the interpretation of all writings words must be construed with reference to their plain and ordinary meaning, and, if possible, every word must be given its due force and effect; but in the effort to give to words their due force, we must not lose sight of other parts of the instrument, but each part must be construed with reference to the whole, so as to make it harmonious and sensible as a whole. As was said by Judge Moncure in the Richmond Mayoralty Case, 19 Grat. (Va.) 712: 'The office of a schedule is to provide for a transition from the old to the new government, and to obviate inconveniences which would otherwise arise from such transition.' Elsewhere in the same opinion it is said that, 'if a Convention in framing the schedule should plainly show an intention to place any of its provisions beyond the control of the Legislature, such provisions, being the act of the representatives of the sovereignty of the state without any constitutional restrictions, would be as effectual and binding as if they were embodied in the Constitution itself.' "
In the case at bar there were not only no constitutional restrictions, but a positive mandate to pass this ordinance, and an intention was plainly shown to place it beyond the reach or control of the Legislature, for the provision is that it shall be irrevocable by even the people themselves.
The phrase applied to ordinances of this character is again placed in the category of "fundamental law" and receives recognition in the case of Stewart et al. v. Crosby, 15 Tex. 546, wherein the Supreme Court in the syllabus said: *Page 198
"We think it free from doubt that the ordinance appended to the Constitution is a part of the fundamental law of the land. Having been framed by the Convention that framed the Constitution of the state, and adopted by the Convention and the people, along with the Constitution, it is of equal authority and binding force upon the executive, legislative, and judicial departments of the government of the state, as if it had been incorporated in the Constitution forming a component part of it."
The ordinance referred to was attached to the Constitution of 1845, and was held, as we have noted, a part of the "fundamental law of the land." The Convention promulgating this Constitution claimed and had no independent legislative authority. The Constitution promulgated was the one under which the republic of Texas was admitted as one of the states of the Union. It will be noted that the ordinance adopted was an ordinance and not a part of the Constitution, but the Convention, lacking independent legislative authority to pass a valid ordinance free of its acceptance by the electors, submitted the same, and, notwithstanding the fact that it was termed an ordinance, it was held to be of equal authority with the Constitution, binding upon the executive, legislative, and judicial departments of the state, as if it had been put into the Constitution and forming a component part thereof. In the case of Grigsby v. Peak, 57 Tex. 142, the court passed upon the validity of an ordinance of the Convention of 1866. It does not appear from the opinion itself just what the facts were in regard to the calling of the convention, but in a later case, that of Quinlan v. Houston T. C. Ry. Co., 89 Tex. 376,34 S.W. 738, the court stated the same as follows:
"From what has been quoted from the opinion in Stewart v.Crosby, supra (15 Tex. 546), it appears that the ordinance then in question was submitted with the Constitution, and voted upon by the people. The Convention which passed the ordinance which was held valid in Grigsby v. Peak was called by virtue of the proclamation of President Johnson. This proclamation did not require any part of the work of the Convention to be submitted to the vote of the people, and, in our opinion, that Convention, therefore, *Page 199 had the power to pass ordinances without submitting them for adoption to a popular vote."
To make application of this proposition before leaving this point, it is to be noted that in the case at bar the Constitution as a whole was required to be submitted to the people, the ordinance irrevocable was not required to be submitted, the Constitutional Convention was authorized by the act creating it to pass this ordinance; not only was it authorized, but it was required to do so, and the people deliberately elected it for the purpose of doing it, and, in line with the authority just noted, the Convention had the power to pass this ordinance without submitting it for adoption to a popular vote. In the case of Quinlan v. Houston T. C.Ry. Co., supra, the court had under consideration an ordinance passed by the Convention of 1868, which provided for a levy of a tax upon the people of certain counties to aid in the construction of a railway. The court held that the ordinance was not valid by reason of the fact that the Convention which passed it was not authorized to legislate definitively, but was required to submit its acts to the people for their ratification. The Convention in question was provided for by an act of Congress of March 2, 1867, c. 153, 14 Stat. 428, and Act of March 23, 1867, c. 6, 15 Stat. 2. Section 5 of the original act provided for the formation of a Constitution which should be ratified by a majority of the persons voting on the question of ratification. No other authority was granted the Convention except to form a Constitution and submit it to the people. Section 4 of the act last referred to provided in haec verba:
"Said Convention, when organized, shall proceed to frame a Constitution and civil government according to the provisions of this act, and the act to which it is supplementary; and when the same shall have been so framed, said Constitution shall be submitted by the Convention for ratification to the persons registered under the provisions of this act at an election be conducted by the officers or persons appointed or to be appointed by the commanding general, as hereinbefore provided," etc.
The foregoing states the full authority of the Convention, *Page 200 and it will thus be seen, as contradistinguished from the Enabling Act of 1906, that there was no authority whatsoever granted to this Convention to pass ordinances or acts or constitutional provisions valid in themselves without submission to the people, and any act, ordinance, or provision passed and not submitted, would, in accordance with practically all authority and all reasoning, be without force and without effect. In this case, the court discussing the questions, spoke as follows:
"We are of opinion, however, that the ordinance was not valid. The Convention which met on June 1, 1868, was assembled in pursuance of an act of Congress passed March 23, 1867. It was called for the purpose of framing a Constitution for the state, with a view to its restoration to the Union. The Constitution to be framed by it was to be submitted for ratification to a vote of the people. See Act Cong. March 2, 1867, §§ 3, 4; 2 Paschal's Dig. p. 1093. The act of Congress did not invest the Convention with the power of independent legislation. It is true that the question of the propriety of incorporating any specific provision into the fundamental law was for the sole determination of the Convention. But we are of opinion that, when a 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. The ordinance of the Convention in question which divided the state into congressional districts, and that which provided for a submission of the proposed Constitution to a vote of the people, are appended to the Constitution as framed, and the whole is signed by the President and members as one instrument. 2 Paschal's Dig. pp. 1134, 1135. Section 1 of the latter ordinance contains the provision 'that the Constitution adopted by this Convention be submitted for ratification or rejection to the voters of this state,' etc. There is no provision for a submission of the independent ordinances. * * * The Convention which passed the ordinance which was held valid in Grigsby v.Peak was called by virtue of the proclamation of President Johnson. This proclamation did not require any part of the *Page 201 work of the Convention to be submitted to the vote of the people, and, in our opinion, that Convention, therefore, had the power to pass ordinances without submitting them for adoption to a popular vote. The ordinance now under consideration was not submitted to a vote, though two others which were added to, incorporated into, and signed as a part of the Constitution were so submitted. Since the Convention could not finally legislate, and since a vote of the people was necessary to make its action effective, we conclude that the ordinance in question was invalid, and not effective for any purpose."
The distinction which we seek to make here is drawn fully in the preceding discussion. It will be noted that therein the court says that it was of the opinion that "when a 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." And in reference to the ordinance which was held valid in Grigsby v. Peak, it is to be noted that the Convention which passed the same was called by virtue of the proclamation of President Johnson, that this proclamation did not require any part of the work of the Convention to be submitted to the people for ratification, and that therefore the Convention had the power to pass the ordinances in question without submitting them for adoption to a popular vote.
The case of Plowman v. Thornton, 52 Ala. 559, involved a consideration of the constitutionality or rather validity of an ordinance passed by the Constitutional Convention of that state in 1867. The powers of the Convention which was called under the reconstruction acts of Congress were special and limited, and it is conceded that it had no legislative power. An ordinance was adopted by the Convention which was in accord with the warrant of its authority putting in operation the governmental agencies which it established. This ordinance was not submitted with the Constitution to the people, and the claim was that it was invalid because not being inserted in the body of the Constitution. Discussing *Page 202 this question, the Supreme Court of that state, Chief Justice Brickell speaking, said:
"If it had been inserted in the body of the Constitution, its validity would not have been questioned. It is temporary in its character and operation, and seems to us more properly the subject of an ordinance than of incorporation in the body of the Constitution, in which only permanent and enduring provisions should be found."
The case of Washington v. Washington, 69 Ala. 281, is one of the extreme cases on the subject, and has probably been departed from, but as it goes farther than is here contended for, it is noted. There was before the court for consideration the validity of an ordinance passed by the Constitutional Convention, not submitted to the people, and not having been embraced within the call of the Convention, and yet Mr. Chief Justice Brickell, speaking for the court, said that "there is no room to doubt the power of the Convention to enact it, and it belongs to a class of legislation which, when employed for such beneficent purposes, deserves the highest judicial consideration." In a still later case, Ex parte Birmingham Atl. Ry. Co., 145 Ala. 514, 42 So. 118, the Supreme Court recognized the rule for which we contend in this opinion. The Constitutional Convention of Alabama, which assembled by virtue of an act of the Legislature, enacted an ordinance providing for court houses in certain counties. This act provided that the instrument to be promulgated by the Convention should be submitted to the electors for ratification or rejection, with no power of definitive legislation. The ordinance mentioned was not submitted and voted upon by the people, and hence was held void. This for the plain reason that the law under which the Convention was organized did not authorize its passage and adoption by the Convention. The court in the consideration of this question said:
"The act formulating a call of the Convention, and which was voted on by the people, provided only for 'amending and revising' the Constitution, and section 22 also required that the instrument framed should be submitted to the people for ratification or rejection. The people, therefore, in voting for the holding of a convention *Page 203 not only limited the powers of the Convention to the amendment and revision of the Constitution of 1875, but required that its action be submitted back to them. The Convention, realizing the requirements placed thereon by the powers calling it into existence, provided by paragraph 4 of section 287 that the Constitution be submitted to the electors of the state for ratification or rejection, but no provision was made for a submission of the ordinance in question. * * * The Convention, therefore had no right to exercise the authority of the Legislature and adopt the ordinance in question, which was local legislation, pure and simple; and, the adoption of said ordinance being unauthorized, it could not become binding unless ratified by the people."
The Supreme Judicial Court of Massachusetts, speaking as to the authority of the Constitutional Convention in an Opinion to the House of Representatives, 6 Cush. 573, held:
"If the Legislature should submit to the people the expediency of calling a convention of delegates, for the purpose of revising or altering the Constitution of the commonwealth, in any specified part thereof, and the people should, by the terms of their vote, decide to call a convention of delegates, to consider the expediency of so altering the Constitution, the delegates would derive their whole authority and commission from such vote, and would have no right, under the same, to act upon and propose amendments in other parts of the Constitution not so specified."
The Supreme Court of Arkansas in the case of Bragg v. Tuffts,49 Ark. 554, 6 S.W. 158, speaking to the same subject, said:
"Now a convention called, for instance, to frame a new Constitution, has no inherent right to legislate about matters of detail. All of the powers that it possesses are such as have been delegated to it either by express grant or necessary implication."
Discussing the powers of the Constitutional Convention called on the authority of the Legislature, the Court of Appeals of South Carolina in 1834, in the case of State ex rel. McDanielv. McMeekin, etc., 2 Hill. 1, 270, says:
"The question was made whether the convention which passed the ordinance was not limited by the purpose for which it was assembled; and I am of opinion that it was so limited. And this detracts in no degree from the sovereign character of its act when within that purpose. We have no authority to judge of, revise, or *Page 204 control any act of the people; but when anything is presented to us as the act of the people, we must of necessity judge and determine whether it be indeed their act. The sole difficulty seems to me to have arisen from confounding together the authority attributed by the Constitution to the people, with that of the Convention. Certainly the Convention was not the people for any other purpose than that for which the people elected and delegated them."
If a convention can be authorized to enact a constitution in its entirety, and proclaim it as the organic law of a state without a submission of the same to the people, there is no argument or authority with which we are acquainted which would deny to it the power, if within its written commission, to enact definitively less than a constitution. If a state convention may be empowered and can constitutionally enact the whole body of fundamental law of a state and proclaim finally their work as its constitution (a thing which nobody denies can be done), where is the reason, logic, or authority supporting the proposition that a constitutional convention so empowered could not pass and definitively enact less than the entire body of fundamental state law? If a body may do all, why may it not do a part in order to do all? Could the Oklahoma Convention have met, organized, and framed any constitution which could have been lawfully submitted to the people of the state or which would have been subject to and competent to be approved by the President except it first carried out the mandate of the law of its creation and passed, as it did, the ordinance here in question? As the life of the state organized under it and the Constitution itself depended upon the enactment of this ordinance, how can it be said to be of less weight than the Constitution itself? Suppose that the Enabling Act had provided for a constitution enacted and proclaimed by the Convention, and had at the same time provided for submission to the people of the state the question of whether intoxicating liquors might be sold within its borders; will any one assert that the Convention could have definitively passed upon the latter subject? And if the Enabling Act, as suggested, had provided for the definitive enactment of a *Page 205 constitution, but required the submission of the liquor question to the people of the state, will any say that the Constitution would not likewise have been valid and superior to any legislative act? I think not. If consent is yielded to the postulates here presented, can any sound reason, authority, or argument be presented why an enabling act could not have empowered the Convention to do just what was done in this case, the Constitution being submitted to a vote of the people, and the ordinance irrevocable definitively enacted by the Convention? And this being done by a convention called for the purpose of enacting constitutional provisions, and being done within the power of the call, and being done with the intent on the part of Congress, on the part of the people, and on the part of the Convention, that it should be irrevocable — that indeed it should be higher than the provisions of the Constitution itself — is there to be found within the domain of argument or authority any reason why it should not be so declared? But it is asserted that if it was intended to enjoy the exalted position of a constitutional provision, it would have been placed within the body of the Constitution. This very fact, in my judgment, demonstrates incontrovertibly that the same was not intended to be subjected to the control of, or to be dealt with by, the Legislature. There are parts of the Constitution which it is specifically provided the Legislature may after a certain date repeal or amend. There are other provisions which provide for the amendment of the Constitution itself. All Constitutions have provisions for their amendment, and it was known necessarily that this Constitution would likewise contain a provision for its amendment. The ordinance which we have before us was not intended by anybody to be amended or repealed during its intended life, and hence it was designedly placed in a position where it would not fall within the purview of any provisions or enactments providing for repeal or amendment.
It has been supposed by some that the case of Duke v. CahawbaNavigation Co., 10 Ala. 82, 44 Am. Dec. 472, was in *Page 206 its declarations against the doctrine here asserted. We do not so read the discussion of the propositions involved. By the Constitution in that state the powers of the state government were restricted in particular matters covered by it, and the ordinance referred to was a declaration by the people that certain general powers otherwise appertaining to the state as a sovereignty should not be exercised in particular cases. It provided also that the disclaimer in particular cases, which in the case then before the court involved control over a navigable river, should be irrevocable "without the consent of the United States." The United States granted consent to its revocation, and then the State Legislature, assuming authority to act upon it, enacted the law which was before the court. The question there presented was altogether different from the one here presented. That Convention was organizing a state government, and was vesting just such powers as it desired it to exercise and was restricting it in others that it did not intend it should exercise. In the case then before the court the state government which was being inaugurated was denied the right, "except with the consent of the United States," to deal with that subject. When the United States gave its consent therefor, the Legislature then had authority to deal with it, and the court so held. In the discussion of this proposition the court, speaking through Mr. Justice Goldthwaite, said:
"We think the argument that the ordinance appended to our Constitution is a part of that instrument, and can only be abrogated and annulled in the same manner as any other part, cannot be sustained. By the Constitution, the powers of the state government are restricted in the particular matters covered by it, and the ordinance is the declaration by the people that certain general powers, otherwise appertaining to the state as a sovereignty, shall not be exercised in particular cases. It provides, also, that the disclaimer shall be irrevocable without the consent of the United States. The state government being invested with the entire authority of the people, except where they have chosen to restrict the government, it follows that all the external relations of the people with the citizens of other states or with the government of the United States must be conducted by the state government. The *Page 207 ordinance itself indicates that it is revocable with the consent of the United States and as the consent of the people of this state can only be expressed through the state government, it follows that when the assent of both is given by the constituted authorities of each the powers disclaimed may be resumed and immediately exercised by the state authorities, under the general powers, these not being restricted otherwise than by the ordinance. As the ordinance is thus revocable by the consent of the United States, it does not seem to admit of material doubt that a consent to a partial abrogation is effectual as a revocation pro tanto."
Moreover the Alabama ordinance was over a subject-matter with which the United States doubtless had plenary authority without an ordinance, and the extent which the people sought to bind themselves was to the point of consent of Congress, and when this was attained, they were no longer bound, for they did not reserve the right to deal with it themselves under an election to be called by the Legislature.
It is insisted that the case of Frantz v. Autry,18 Okla. 561, 91 P. 193, is authority for the conclusion which the majority of our Associates have reached. Neither can we so read this, for the reason that the ordinance with which the court in that case was dealing was the temporary election ordinance and not the irrevocable state capital ordinance, and instead of the authority of that case weighing against the position which we have taken, it in fact supports it by showing that those ordinances which are intended to be temporary will be so considered, which marks the distinction between those which are intended and designed to be permanent. The election ordinance for the submission of the Constitution, whether passed by a Legislature or by the Convention itself, under its authority, necessarily passed on being exercised. From its very nature, it could not be used again, because it would deal with conditions entirely in the past after the people had once acted under it. So Frantz v. Autry is not contrary to the doctrine here advocated. But it is supposed that section 7 of article 5 of the Constitution, a section found among the *Page 208 initiative and referendum provisions of that document, vests the Legislature with the authority which is here sought to be sustained. The section reads as follows:
"The reservation of the powers of the initiative and referendum in this article shall not deprive the Legislature of the right to repeal any law, propose or pass any measure, which may be consistent with the Constitution of the state and the Constitution of the United States."
To those familiar with the history of the Convention, it is unnecessary to say that this right to repeal any law, propose or pass any measure vested in the Legislature, was placed therein with no thought whatsoever that it bore the remotest relation to the irrevocable ordinance which the Convention had just enacted, but it was in response to a demand that the government organized within Oklahoma should not be amenable to the charge that it was democratic and not republican in form. The purpose of the section is plainly disclosed by its terms. It simply states in other words that the powers of the initiative and referendum, when exercised by the people, shall not deny to the Legislature the authority to deal with the measures so passed; thus, vesting in the Legislature authority equal to that reserved by the people under the initiative and referendum provisions, the people by the referendum being able to destroy any law passed by the Legislature, and by the initiative enabled to pass any act to which the Legislature denied its assent, the power at all times, however, remaining and abiding with the Legislature to repeal, modify, or amend any such provisions. We submit that this is the extent of the scope of the intent of that section. But if this section carried with it all that is claimed for it, and if it was here intended to grant a general authority to the Legislature to repeal any law, propose or pass any measure not inconsistent with the Constitution of the United States or the Constitution of the state of Oklahoma, even then it would not be sufficiently far-reaching under the common canons to authorize it to repeal the irrevocable ordinance here involved. The law on this matter uniformly recognized by the courts *Page 209 of the nation is laid down in volume 2, § 346, of Lewis' Sutherland Statutory Construction, and reads as follows:
"Where there is an act or provision which is general, and applicable actually or potentially to a multitude of subjects, and there is also another act or provision which is particular and applicable to one of these subjects, and inconsistent with the general act, they are not necessarily so inconsistent that both cannot stand, though contained in the same act, or though the general law were an independent enactment. The general act would operate according to its terms on all the subjects embraced therein, except the particular one which is the subject of the special act."
Speaking of implied and recognized exceptions to acts containing general provisions, this court, in the case ofHuston v. Scott, 20 Okla. 142, 153, 94 P. 512, 516, said:
"The foregoing rules constitute well-understood limitations to the effect of any general law. They are just as much a part of the act as if written into it. They control it and restrict the scope of its action to the utmost limit. No Legislature acts except within the scope they grant, and no court construes the meaning of any statute presented for consideration, except it recognizes their force and potency. If plaintiff in error's contention were consistent, and this section permitted to stand alone, repealing and taking the place of all other laws touching the subject, and its words are to be given the amplified meaning for which he contends, let us see into what mazes and difficulties we would be led: 'All male persons of the age of 21 years, etc., may take title to, hold, mortgage, convey, and make any contract relating to real estate or any interest therein.' No exceptions are mentioned within the section, and he contends there are none, and that this supplants all the law on the subject. Section 3612, St. Okla. 1893, provides: 'After his incapacity has been judicially determined, a person of unsound mind can make no conveyance or other contract, nor designate any power, nor waive any right, until his restoration to capacity is judicially determined.' To give the force contended for by plaintiff in error to the section in question would qualify every incompetent 21 years old in the state, even if his incapacity had been judicially determined, and he was under the care of a guardian; even though a gibbering imbecile, incarcerated in a sanitarium, occupying the ward of the incurable, *Page 210 he would be fully competent, under this construction, to convey his real estate, mortgage it, and deal with it, and the courts, supine and powerless, would witness his exploitation. In addition to that, section 2578, St. Okla. 1893, provides: 'A person sentenced to imprisonment in the territorial prison for life is thereby deemed civilly dead.' The courts hold, under this section, a man in this condition is disqualified from making any deed, mortgage, or other conveyance of his property. Does any one suppose that this section and the preceding one were in the minds of the legislators at the time they passed the conveyancing act in question? And the person upon whom these sections operate, if they be but 21 years of age, permitted to deal to the fullest extent, in their real property? Are they within the scope, purpose, and purview of the act? * * * The foregoing exemplifies the absurd results following a literal construction of the statute as contended for by plaintiff in error, and we escape therefrom only by virtue of the salutary rules herein invoked. The mere statement of the proposition carries refutation with it."
The special act in this case was the ordinance irrevocable dealing specifically and definitely with the location of the state capital, and the general law therefor vesting in the Legislature the power here claimed for it would not, under this rule, authorize it to repeal the special, irrevocable ordinance. The Supreme Court of Missouri in the case ofEdwards v. Lesueur, 132 Mo. 410, 33 S.W. 1130, 31 L. R. A. 815, which involved an alleged irrevocable agreement, in a case wherein it was claimed that the Constitutional Convention had provided for its repeal, said: "The Convention would hardly have made an irrevocable agreement and immediately proceeded to violate it." We are willing to assert for our own Constitutional Convention a claim equally as high; nay more. We are unwilling to yield the proposition that the men constituting the Convention who framed and submitted the Constitution under which we live ever intended, after they had adopted the ordinance irrevocable, to vest the Legislature with the authority to repeal it. Such a conclusion is to our mind impossible. Nor do we believe, nor will we consent, that the people of the state, when they adopted the Constitution, ever intended *Page 211 that the pledge which was made, and the fundamental law which they passed in the irrevocable ordinance, should or could be violated by any Legislature. But we believe, and we love to think, that when the Convention and the people enacted this ordinance, they did so with the honest intent that it should be carried out in good faith; and if it was so enacted, then our Legislature manifestly lacked the authority to repeal it. Because the act was not valid as an irrevocable ordinance as to the people, the majority of the court have fallen into the error in reference to the real substance of the act, to wit, in holding that the location of the capital, which was reserved by the people to be voted on by themselves at an election to be called by the Legislature, must also fall. It is held that because, forsooth, the people declared that no one shall act on this prior to 1913 — and this cannot stand — then any one, or at least the Legislature, may act on it prior to that date; that the Legislature which could act only by calling an election after 1913 could, because the 1913 provision falls, act with plenary power prior to that date and locate the capital, the right to do which the people sought to reserve irrevocably to themselves. Let us reform the ordinance as it reads under the view in which we seek to present it, stripped as it is by the court of the irrevocable and the compact elements. It would then read: Be it ordained by the Constitutional Convention for the proposed state of Oklahoma, that said Constitutional Convention do by this ordinance, irrevocable by the Legislature, accept the terms of the Enabling Act, providing that the capital of said state shall be in the city of Guthrie in the present territory of Oklahoma, and shall not be changed therefrom except it may be located by the electors of said state at an election to be provided for by the Legislature after 1913. Did not the people say — and lawfully say, and with full power to say — just that? Prior to 1913 the irrevocable feature falling, the people could locate it — how, it is not necessary to inquire — but they have bound the hands of the Legislature in reference thereto by specifically setting out its powers. And the expression of this definite authority certainly excludes the exercise *Page 212 of any other. As was said by the Supreme Court of Rhode Island in an opinion to the Legislature, In re ConstitutionalConvention, 14 R.I. 651:
"We are of opinion that the mode provided in the Constitution for the amendment thereof is the only mode in which it can be constitutionally amended. The ordinary rule is that where power is given to do a thing in a particular way, there, the affirmative words, marking out the particular way, prohibit all other ways by implication, so that the particular way is the only way in which the power can be legally executed. The rule was recently recognized by the Supreme Court of the United States in Smith v. Stephens, 10 Wall. 321 [19 L.Ed. 933]. There, by act of Congress, lands were ceded to Indians with power to sell them, or parts of them, in a particular manner, and the court held that a sale in any other manner was void. The rule was likewise recently recognized by the English Court of Exchequer in a case in which it was thus expressed: 'If authority is given expressly, though by affirmative words, upon a defined condition, the expression of that condition excludes the doing of the act authorized under other circumstances than those so defined: "Expressio unius est exclusio alterius." 'North Stafford Steel, etc., Co. v. Ward, L. R. 3 Exch. 172, 177. Cases to the same point might be indefinitely multiplied. 1 Kent, Com. 467, note d; 1 Sugden on Powers, 258 et seq.; Cityof New Haven v. Whitney, 36 Conn. 373; District Township ofCity of Dubuque v. City of Dubuque, 7 Iowa, 262. * * * Our Constitution is, by its own express declaration, the supreme law of the state; any law inconsistent with it is void, and therefore, if the provision which it contains for its own amendment is exclusive, implying a prohibition of amendments in any other manner, then, of course, any act of the Assembly providing for a convention to amend the Constitution is unconstitutional and void."
We have pressed upon our Associates the foregoing arguments with all the vigor which we possess. That they were logical and expressed the law on the subject involved appeared to us to be irrefutable, but we have been unable to secure the assent of a majority thereto.
At the conclusion of the debates of the federal Constitutional Convention, as the body was about to sign the document and disperse, Benjamin Franklin, then silvered and palsied with age, probably *Page 213 one of the wisest men our nation has ever produced, stood in his place and asserting that he did not entirely approve the Constitution, said:
"I am not sure I shall never approve it; for, having lived long, I have experienced many instances of being obliged by better information or fuller consideration, to change my opinions even on important subjects, which I once thought right, but found to be otherwise."
An exalted regard for the opinion of my Associates who do not agree with me herein has caused some little trepidation on my part over the submission in writing the conclusions to which I have here come. But if what I have said on this great and important historical occasion has not met the sanction of a majority of the court, it will at least have the merit of preserving, though in a crude and hastily prepared form, my own and in part the views of my brother KANE, along with those eminent counsel who have assiduously and in good faith diligently labored to aid this court in arriving at a just and legal conclusion.
In the conclusion here reached, I am authorized to say Mr. Justice KANE concurs.