A majority of my brethren have declared what shall, for a time at least, be the law of this case. But as I entertain some views at variance with those expressed in the majority opinion, it is perhaps due the parties to the action, as well as the public (For all who live in either of the territories are interested in the result of this case) to know the reasons that have impelled me to withhold my full concurrence in the judgment of the court. In every controversy, personal or legal, there are two sides; but, in the very nature of things, on each issue one must be right and the other wrong, and while experience has shown that in the greater number of cases, perhaps the majority have been right, sometimes truth has been revealed to the few, and notwithstanding the respect I have for the opinions of my brethren who have concurred in the decision of the court, my own convictions have told me that the law on one vital point is with the party who commenced this action, and that he is entitled to some relief.
The science of government is a profound subject which requires years of study and observation to master. In a republic nothing is as important as the constitution or organic law. Equally important is the organic law of a state. As to what should be in the constitution of Oklahoma to best protect the interests of her citizens, afford equal opportunities to earn a livelihood, and promote happiness, are questions which the constitutional convention must determine, subject to the approval of the voters of the proposed state; and this court cannot, with due regard to its powers, express thereon any opinion. But under the organic act of Oklahoma *Page 635 which is and will remain in force until supplanted by a state constitution or repealed by congress, the supreme and district courts of the territory are granted jurisdiction and power to redress all wrongs committed against the constitution or laws of the United States, or of the territory, affecting persons or property. The constitutional convention was convened by authority of the United States, and where it is charged that they have exceeded their authority the courts may on proper application take jurisdiction, determine the issues, and render any righted judgment therein.
At the very threshold of this litigation the bold assertion is made that the convention has exceeded its powers and divided counties already organized in Oklahoma, and that it has provided for the election, not only of state officers including delegates to congress and members of the legislature, but also for the election of all officers, state, county and township.
In this country, with its diversified interests, with its people from all sections of the nation who have brought with them the policies and ideas of the lawmakers of their own state, with the struggle for personal and political supremacy, it would be indeed difficult to form a constitution that would satisfy all. Therefore, when counties are divided and new ones formed under conditions calculated perhaps to increase the taxation of the individual, I am not surprised that he should ask relief from the impending burdens. But whether the division of counties may increase or diminish the taxes of the citizen will not influence in any degree the judgment of this court, unless the convention *Page 636 has exceeded its authority and usurped powers not necessarily implied or expressly conferred.
The only way in which the charge can be correctly decided is by investigating: First, the provisions of the enabling act, the constitution of the United States, and the Declaration of Independence; and second, ascertaining what powers a constitutional convention has incidental to the forming of a constitution; in other words, what are its implied powers.
It is to the enabling act that both parties point with apparent confidence as supporting the position taken, but after a careful study of this important congressional authority I am forced to the conclusion that both have in some particulars misapprehended the meaning of that act.
In the first place those who represent the convention assert that the making of counties and providing for their creation and organization are necessary to the framework of a state and therefore properly and necessarily the work of the convention, and that in establishing boundary lines in the Indian Territory, and in dividing the counties already established by congress in Oklahoma and creating new counties therefrom, the convention followed in the footprints of precedents; while the appellee contends that these acts were expressly forbidden by congress. In support of his position the appellee points to the fact that the counties in Oklahoma divided by the convention have been established by congress, and are organized and officered under the laws of Oklahoma, and that the latter part of section twenty-one of the enabling act provides: *Page 637
"And all laws in force in the Territory of Oklahoma at the time of the admission of said state into the Union shall be in force throughout said state except as modified or changed by this act or by the constitution of the state, and the laws of the United States not locally inapplicable shall have the same force and effect within said state as elsewhere within the United States."
Surely no lawyer will contend that the provisions of the constitution can become effective until Oklahoma is formally admitted into the Union. Until that time its penalties cannot be enforced; its guarantees cannot protect the citizen in the enjoyment of life, liberty or property. The convention is acting for the future state, and not for the territories. It cannot divide the counties of the Territory of Oklahoma, but it may declare not only how many counties may be created, but also what territory shall form the counties of the state; and that part of section twenty-one of the enabling act which provides that the laws of Oklahoma shall be in force throughout the state except as modified by the constitution, etc., of the state, made clear the intention of the lawmakers. "Except as modified by the constitution of the state." is the language of congress, and the instrument proposed to be submitted to the people for ratification is not yet a constitution; in fact it may never be. The voters must first adopt it, and then it must be approved by the President before life is breathed into it. Its terms do not become operative by degrees. It is and will be void of life until the President issues his proclamation. When this is done the entire constitution, each and all of its provisions eo instante spring into life, and from that time on it becomes the ruling power of the state. Until then the offices created by it do *Page 638 not exist. The powers conferred and limitations imposed therein have no binding force, and the counties described in the constitution are but a part of the written specifications of the architects who have drawn the plans for statehood. And as the architect may propose plans for the building, even so may these agents of the people employed by the government, propose plans for the building of the state. Congress has placed certain restrictions in the enabling act. The constitution of the United States contains other rules that must be followed; likewise due regard must be observed for the principles of the Declaration of Independence; but subject to these limitations, the power exists to put into the constitution or leave out of it that which the judgment of the convention and the people may approve or reject.
The contention, therefore, that the convention cannot legislate under the views herein expressed, must be determined if at all, as a controversy presenting a subject void of real merit, so far as legal rights are concerned, because such provisions have no force until the state is admitted into the Union, and after that they are binding on all. Whether the making of counties is a proper subject for the constitution to deal with, or should be referred to the legislative branch of the state government, it is unnecessary to decide. Personally, however, (And I am speaking only for myself) I have no doubt but that the making of counties by the convention or by the legislature is a matter of judgment, and involves no question of power unless the constitution as adopted inhibits the legislature from dealing with that subject. But be this as it may, the action of the convention in dividing the counties in question, is an act which does not *Page 639 affect the territorial government, but the government of the state, and if the people are entitled to self government, — that is adopt a state constitution and code of laws, — they and their representatives should be left free to evolve their own system and form a state government to their own liking, within the limitations stated.
If it were necessary to support these views by precedents, no difficulty would be experienced in finding them, and I may refer to some of the adjudicated cases later; but before considering them I wish to assert that congress instead of prohibiting the convention from fixing county boundaries, and creating new counties for the future state have expressly recognized the right of the convention to do so. Now as has been urged by appellee, these counties were created by congress and officered under the provisions of the territorial laws. Did congress in the enabling act provide that the laws of the United States and the laws of Oklahoma should continue in force in the state of Oklahoma? Oh, no. It did, however, attempt to carry along a complete system of laws and continue the territorial officers in power until supplanted by laws enacted by the state and officers elected by its voters, or duly appointed as the constitution or laws might provide. The general government provided against contingencies which otherwise might have left the citizen and property exposed to the dangers incident to lack of law. Therefore the enabling act provided that "All laws in force in the Territory of Oklahoma at the time of the admission of said state into the Union shall be in force throughout said state, except as modified orchanged by this act or by the constitution of the state." *Page 640
What laws shall govern the state when first admitted? The laws of Oklahoma. The laws of Oklahoma as they now exist? No, but the laws of Oklahoma as modified or changed by the enabling act, and the constitution of the state. This language clearly not only confers the right, but anticipates that changes in those laws may be deemed expedient. Let us now notice what is to become of the laws of the United States other than the enabling act. Congress has said in this same section of the enabling act and as a part of the section referred to above. Let us observe the clause again. "All laws in force in the Territory of Oklahoma at the time of the admission of said state into the Union shall be in force throughout said state, except as modified or changed by this act or by the constitution of the state and the laws of the United States notlocally inapplicable shall have the same force and effectwithin said state as elsewhere within the United States."
It will be observed that congress did not continue in force generally the laws of the United States applicable to Oklahoma and Indian Territory, nor does congress say that the laws of Oklahoma shall be in force in the state of Oklahoma, except as modified by the enabling act and the constitution of the state and the laws of congress. The exception refers to the enabling act and the constitution of the state, and then in a subsequent clause, but connected with that which precedes it, congress said, not as an exception, but as a positive declaration, "And all the laws of the United States not locally inapplicable shall have the same force and effect within said state as elsewhere within the United States." *Page 641
From this provision it is evident that congress intended that the laws of the United States enacted for the organization and government of these territories should not continue in force, and that those laws which deal with subjects that would be a proper subject of congressional legislation in a state, and those only, are continued in force, and even those are to have the same force and effect within said state as elsewhere within the United States.
This act is a complete surrender of governmental control over these territories, upon a compliance with its terms and conditions, except that control exercised over the other states of the Union; and this is in keeping with the law applicable to such conditions as declared in the books.
In 8th Cyc. page 750, subdivision e, I find the following language:
"Upon the succession of a territory to statehood and the adoption of a constitution by its people that has received the approval of congress, all constitutions and ordinances framed by the federal authorities for the purpose of the territorial government become suspended, giving full force and effect to the new state constitution so adopted."
Attention is also called to section thirteen of the enabling act which contains the following language:
"And that the laws in force in the Territory of Oklahoma, as far as applicable, shall extend over and apply to said state until changed by the legislature thereof."
The trial court quotes this language as an inhibition against the power of the convention to create counties in Oklahoma for the state government, or to provide for the election or appointment of county officers for the same. As the justice who tried this case below is a member of this *Page 642 court and by reason of having presided at such trial will not participate in its consideration here, it is probably due his position that reasons by him assigned for his judgment be answered by the justices called upon to review. This I gladly do, in so far as they conflict with my own opinions, consistent with the space which may reasonably be taken in an opinion of this kind. The trial court following up the language last quoted by way of argument for his position states as follows:
"It should be borne in mind also that Woods county owes her existence to the same power and authority from which the existence of the convention is derived. The same power which created the convention, years before created this county. The law by which this county was created is still in force. The act providing for the formation of a state government, neither by express or implied terms, repeals the act under which this county (Woods county) was formed. How can it then be said that the congress of the United States gave to the constitutional convention the implied power to divide any county? There is no express provision therefor in the act. There is no necessity for so doing. No better government will be formed thereby. No interests will be better protected. Large and various individual interests have been established and great confusion would exist by such division."
And again, the trial court referring to the clause quoted from section thirteen of the enabling act says:
"It will be borne in mind that this provision of the enabling act does not provide that the laws of the territory extend over the state only as far as applicable. But the laws of the territory are in operation when the constitutional convention is formed and remain in operation while the constitutional convention is in session. They remain in full *Page 643 force and operation after the constitutional convention is adjourned. Nay, still more, they remain in full force and operation so far as applicable in the whole state after the state government has been formed and until the state legislature changes the same. This is a conclusive answer to some of the questions contended for."
From a casual reading of the clause of the enabling act referred to, and the language of Mr. Justice Pancoast in deciding the cases below, the mind might readily assent to the views above expressed by him; but having started from a false premise, — that is from a misconception of the meaning of the statute quoted, and possibly being inclined to the theory adopted in declaring the law, an erroneous conclusion was reached, as I am sure must be conceded upon full consideration of all the section of the enabling act from which the "clause" was taken. However before proceeding to further inquiry regarding this section, and without elaborating thereon, I wish to refer to the language used by the trial court, and must insist that the courts cannot supervise or review the acts of the convention which pertain to necessity or policy so long as it does not exceed its power and even then the courts will only grant relief in certain circumstances. Congress has authorized the convention to prepare a constitution, and it is not for the courts to say that there is no necessity for dividing counties, or that no better government can be formed thereby, or that no interest will be better protected. Within the powers conferred or implied the convention may submit to the people its own ideas without let or hinderance.
The language used in section thirteen of the enabling act to the effect that the "Law in force in the Territory of *Page 644 Oklahoma, as far as applicable, shall extend over and apply to said state until changed by the legislature thereof," has no reference to the general laws of Oklahoma as they exist at the present time, or as they shall exist after statehood is effected. The part of the enabling act which continues in force the general laws of Oklahoma after the organization of the state is the latter part of section twenty-one which I have already considered, and expressly says that the laws of Oklahoma shall be in force through the state, except as modified or changed by the enabling act, or the constitution of the state. The language used in this section is positive, and from its provisions the courts of the state can determine and declare what the law is. Not so with section thirteen. The language of this section is as follows: "And that the laws in force in the Territory of Oklahoma, as far as applicable, shall extend over and apply to said state until changed by the legislature thereof."
The laws of Oklahoma, as far as applicable, shall extend over and apply to the state. Who shall determine what laws are applicable to the state? If this clause of section thirteen is given the interpretation placed upon it by the trial court, and as contended for by counsel for appellee, then it is in conflict with section twenty-one, which says that the laws of Oklahoma shall be in force throughout the state except asmodified or changed by the enabling act or the constitution ofthe state. Such an interpretation would reflect upon the intelligence of congress, and attribute to both branches of that body a carelessness in the use of language which I am not willing to concede. *Page 645
It is impossible to cut out a subordinate clause of a single sentence, disconnect it not only from the sentence of which it forms a part, but from the entire subject in relation to which it was used, and determine exactly what the speaker or writer had in mind, and the meaning intended to be conveyed. Therefore, in construing this language relied upon as prohibiting this constitutional convention from doing any act which may conflict with existing law, I insist that it be read in connection with the whole of section thirteen. When so read its meaning is incapable of misunderstanding.
Section thirteen deals with one subject, and with one subject alone. It divides the state of Oklahoma into two judicial districts, designating the Indian Territory as the eastern district and Oklahoma as the western. It provides the places where the circuit courts shall be held in these respective districts. It attaches these districts to the eighth judicial circuit. It provides for the appointment of clerks of courts, and other court officers, and defines their respective duties. It declares that the circuit and district courts for each of said districts, and the judges thereof, respectively, shall possess the same power and jurisdiction, and perform the same duties required to be performed by the other circuit and district courts and judges of the United States, and shall begoverned by the same laws and regulations; that the marshal, district attorney, clerk of each of the circuit and district courts of said districts, and all other officers and persons performing duties in the administration of justice therein, shall severally possess the powers and perform the duties lawfully required to be performed by similar officers *Page 646 in other districts of the United States, and shall, for the services they may perform, receive the fees and compensation now allowed by law to officers performing similar services for the United States in other districts of the United States; and then follows the clause relied upon by the appellee, "And that the laws in force in the Territory of Oklahoma as far asapplicable, shall extend over and apply to said state until changed by the legislature thereof."
Congress, when it used the language just quoted, was dealing with the courts of the United States. It had just defined their jurisdiction and provided for all of those other officers necessary to the administration of those courts, and by this clause a system of procedure was adopted for the government of the United States circuit courts, until the present procedure of Oklahoma should be changed by the legislature of the state. Congress had reason to believe that the general laws of Oklahoma would be changed by the constitution of the state, and it was familiar with the enabling act which it was then considering, and of which these provisions are a part. The enabling act did not, and congress in the light of all precedents could hardly anticipate that the constitutional convention would deal with mere matters of procedure in the courts; however, the unexpected occurred, at least in one instance; but the fact that the convention changed the generally accepted procedure in indirect contempt cases, in no way changes my mind as to what congress anticipated, meant and intended by this latter part of section thirteen. The United States, having no uniform procedure for its courts, has deemed it expedient to put in force in the courts of the United States the procedure of the respective *Page 647 states in which such courts are located; and, to comply with this usual custom, the laws of Oklahoma, as far as applicable, are extended over and made to apply to the state.
Section 914 of the Revised Statutes of the United States 2nd. ed. 1878, provides:
"The practice, pleading, and forms and modes of proceeding in civil causes, other than equity and admiralty causes, in the circuit and district courts, shall conform as near as may be to the practice, pleading and forms and modes of proceeding existing at the time in like causes in the courts of record of the state within which such circuit or district courts are held, any rule of court to the contrary notwithstanding."
I also quote the following section from the United States Statutes, referred to above:
Sec. 915: "In common law causes in the circuit and district courts the plaintiff shall be entitled to similar remedies, by attachment or other process, against the property of the defendant, which are now provided by the laws of the state in which such court is held for the courts thereof; and such circuit and district courts may, from time to time, by general rules, adopt such state laws as may be enforced in the states where they are held in relation to attachments and other process: Provided, that similar preliminary affidavits or proofs, and similar security, as required by such state laws, shall be first furnished by the parties seeking such attachment or other remedy."
Sec. 916: "The party recovering a judgment in any common law cause in any circuit or district court, shall be entitled to similar remedies upon the same, by execution or otherwise, to reach the property of the judgment debtor, as are now provided in like causes by the laws of the state in which such court is held, or by any such laws hereafter enacted *Page 648 which may be adopted by general rules of such circuit or district courts; and such courts may, from time to time, by general rules, adopt such state laws as may hereafter be enforced in such state in relation to remedies upon judgments, as aforesaid, by execution or otherwise."
Sec. 856: "The fees of district attorneys, clerks, marshals, and commissioners, in cases where the United States are liable to pay the same shall be paid on settling their accounts at the treasury."
Sec. 857: "The fees and compensation of the officers and persons hereinbefore mentioned, except those which are directed to be paid out of the treasury, shall be recovered in like manner as the fees of the officers of the states respectively for like services are recovered."
From these and other sections of the United States Statutes and the connection in which the language under consideration was used, it is clear that congress was dealing with the laws of Oklahoma in section thirteen of the enabling act only in so far as they might furnish a rule of procedure or be binding upon the courts of the United States located within the state of Oklahoma. And it is for the courts of the United States to say how far these laws are applicable in matters pertaining to persons and property which may come before them. Section thirteen, like the constitution of the state, has no life and force until the President issues his proclamation, there being no circuit or district courts of the United States established within the purview of the act in either of these territories, and doubtless will not be until we are granted statehood. I have considered that part of section twenty-one of the enabling act which refers to the Osage Indian Reservation, and requires that it constitute a separate *Page 649 county. The language used in reference to this matter, while a limitation on the convention, in that it prevented it from making more than one county out of the reservation, not only recognized the right of the convention to deal with the subject of counties but in this particular instance required it to do so.
Being of the opinion that the convention has the right to divide the proposed state into counties, we are confronted with the question of the election of county officers to administer the affairs of such counties upon the admission of the state into the Union. The right to do so at the election at which the constitution is to be voted upon is vigorously asserted on the one side, and strenuously denied on the other. In this, as in the other questions involved in the case, no useful purpose can be observed by long quotations from other decisions which in the very nature of things can have but little bearing upon the interpretation of the enabling act.
As will be seen from investigation, different courses have been pursued by different states, under practically the same conditions. I have examined the decisions cited by counsel on the respective sides and believe I understand what those courts have decided, as well as the contention of the attorneys; but, with due respect to all concerned, I am compelled under the law to approve that theory or interpretation of these laws which appeals to my own reason, and reject those which my conception of the application of legal principles suggest that I exclude. Therefore, believing that a careful study of the enabling act itself will be most likely to lead to a correct understanding of its provisions, I turn to it and find therein sufficient to inspire confidence in the *Page 650 conclusion that county officers may be elected at this first election.
In section four of the enabling act it is provided:
"That in case a constitution and state government shall be formed etc., the convention shall provide by ordinance for submitting it to the people."
Then section six, after dividing the state into congressional districts, ends with the paragraph, "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."
I cannot conceive of language that would more clearly express authority to elect county officers, if the constitution provides for county officers. Is there anything in the enabling act that limits the constitution as to the kind, character number or dignity of the officers which it may provide for in the constitution, except as to governor, secretary of state and members of the legislature? Not being limited by the enabling act, the convention, in forming a state government, not only has the right, but it was its duty to provide in the constitution for state officers, county officers (For county organization has come to be regarded as necessary in administering the affairs of a state) and such other officers as would be required for the convenience of the public and the administration of the law. The constitution having provided for *Page 651 specific officers, congress has plainly said, in the section referred to that "The governor and other officers provided forin the constitution shall be elected on the same day of theelection for the ratification or rejection of theconstitution."
Turning to section one and two of article seventeen of the proposed constitution I find the following provisions:
"Section 1. Each county in this state, now or hereafter organized, shall be a body politic and corporate.
"Section 2. There are hereby created, subject to change by the legislature, in and for each organized county of this state, the offices of judge of the county court, county attorney, clerk of the district court, county clerk, sheriff, county treasurer, register of deeds, county surveyor, superintendent of public instruction, three county commissioners, and such municipal township officers as are now provided for under the laws of the Territory of Oklahoma, except as in this constitution provided."
These officers are provided in the constitution, and congress has commanded that they "Shall be elected on the same day of the election for the ratification or rejection of the constitution;" and if the people failed to elect all of the officers provided for in the constitution they would, to the extent of such omission, fail to comply with the act of congress.
But it is said that the latter part of this same section authorized the territorial officers to continue in office in the state until their successors are elected and qualified under the state laws and that the language used amounts to a prohibition of election for such officers when the constitution is adopted. This conception is not only erroneous, but no reasonable ground exists for such an interpretation. Congress *Page 652 did not intend to impose the officers selected, either by appointment or election under the laws of the United States or under its supervision, upon the people of the state who, after the admission of the state, would have a right to make their own selection. It not only did not intend to do so, but it probably would not have the power to do so. When Oklahoma becomes a state (Not after the first election after the adoption of the constitution, but from the very instant the President issues his proclamation) it has the undisturbed right to administer its own internal affairs, and dictate its own officers. Congress has clearly recognized these rights of the future state; but it is necessary to read the entire paragraph together: "And 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 the 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 saidterritory."
Now let us consider this language for a moment. First. the officers provided for in the constitution must be elected on the same day of the election for the ratification or rejection of the constitution: Second, until these state officers are elected and qualified, and the state admitted in to the Union, the territorial officers shall continue to discharge the duties of their respective offices in said territory. Congress by the provisions of the section under consideration, contemplated a complete surrender and turning over to the state and *Page 653 its officers every thing to which it or they would be entitled as a state fully admitted and standing on the same footing as the other states. These observations, however, I perceive will not satisfy the appellee or his counsel, as one other section of the enabling act which pertains to state officers has not been considered. I refer to section twenty-one, which, so far as effects this subject, provides as follows:
"Sec. 21. 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, etc. * * * and shall provide rules and regulations and define the manner of conducting the first election for officers in said county. Such state government shall remain in abeyance until the state shall be admitted into the Union and the election for state officers held, as provided for in this act."
The section then provides for the election of senators, etc., and then adds, "And the officers of the state government formed in the pursuance of said constitution, as provided for by said constitutional convention, shall proceed to exercise all the functions of such state officers."
There is no conflict between this section and section six which I have just considered. While section six expressly provides that all officers provided for in the constitution shall be elected when the constitution is voted on, it must be remembered that, while the convention can create an office by the terms of the constitution, as said before, the constitution *Page 654 has no binding force until the state is admitted into the Union; therefore congress conferred upon the constitutional convention the powers to provide for the election of these officers by ordinance. And an ordinance passed pursuant to the terms of this section, by the representatives of the people of the proposed state in convention duly assembled, within the limitations imposed, has from its passage, for the purposes intended, full life, force and virtue.
Mr. Jameson, in his work on Constitutional Conventions, (4th ed.) page 98, c. 103 says:
"Besides schedules, there are appended to many constitutional acts adopted by constitutions called ordinances. Not all ordinances. however, are so appended, or have any direct relation to the constitution. 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 houses severally or jointly. Within the scope of the powers of the 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 defined or employed in the act calling it, they are valid."
The ordinance referred to is authorized by congress, and is the act of the people of the proposed state, through their representatives, and is binding upon the people of the state, hence, the state. This ordinance is the authority for the election. But for what must the ordinance provide? The enabling act says: "For the election of officers for a full stategovernment," and the officers necessary for a full state government are all the officers provided for in the constitution. The word *Page 655 "full" is defined as, "Containing or having all that can or all that should be admitted; having no empty or vacant space; filled." And this is the sense in which the word was used in section twenty-one. There should not be left out a single officer high or low. Each and all provided for in the constitution should be elected when the constitution is submitted to the people.
But, says the appellee, the section also provides that, "Said state government shall remain in abeyance until the state shall be admitted into the Union, and the election for the state officers held as provided for in this act." The only election for state officers provided for in this act (The enabling act) is the election at which the constitution shall be submitted for ratification or rejection. Therefore the language, "Until the state is admitted into the Union, and the election for state officers held." must be interpreted as describing two events which are expected to happen in the future, and the one intended to occur second in point of time, first described. Any other interpretation of this language would defer the election of all state officers until after the adoption of the constitution, which would be in direct conflict with another section of the enabling act. The fallacy of the contention that county officers are not to be elected when the constitution is voted upon, to my mind, is so apparent that under all of the provisions of the enabling act, it would seem that further discussion is unnecessary.
First, after the assembling of the constitutional convention and complying with the preliminary requirements of the enabling act, is the duty of forming a constitution and state government: Next, the submission of the constitution to *Page 656 the people for ratification or rejection, and on the same day the election of all officers provided for in the constitution: Then the action of the President approving, if it conforms to the act of congress, and the issuing of his proclamation admitting the state into the Union; and, finally in the language of the latter part of section twenty-one of the enabling act, "And the officers of the state government formed in pursuance of said constitution, as provided by said constitutional convention, shall proceed to exercise all the functions of such state officers."
This brings us to a consideration of the powers of the constitutional convention to provide election officers to hold the election in the new counties of Alfalfa and Major. These counties were created out of a portion of the county of Woods and to that part of Woods county remaining was added certain townships cut off from Woodward county and the name Woods county given to it. Both Woods county and Woodward county are organized counties in the Territory of Oklahoma. In considering this feature of this case, the facts that Alfalfa and Major counties are located within Oklahoma Territory, and that they are merely creatures of the constitutional convention, and never had any legal existence prior to its convening, should be borne in mind. A majority of my brethren, speaking through Mr. Justice Hainer, have defined their position upon this point, declaring as a law a rule which is, in my opinion, neither justified from the necessities of the case or supported by the enabling act or other statutes of congress or the Territory of Oklahoma. Gladly would I surrender any pride of opinion which I may have in my own personal views of the law of this branch of the controversy, if I were able to *Page 657 reconcile the declarations of the majority opinion with the plain and positive act of congress; but, after full consideration, I am forced to reject them as unwarranted approval of an unauthorized usurpation of authority which is by implication as positively prohibited by congress as though it had so declared in express words.
I fully appreciate the years of earnest effort expended by the people of Oklahoma in obtaining permission from congress to adopt a constitution, and form a state government, nor am I unmindful of the public insistence for an opportunity to elect their own officers and have their interests represented in congress by agents with full authority to vote. But important and sacred as are these privileges, they must be brought about pursuant to existing laws, and not in disregard thereof. I do not challenge good faith on the part of the convention or those who drafted the ordinance in question, but taking it as written I consider its provisions not as a matter of choice, but as a public duty required to be performed under the law. A majority of my brethern have said, by their votes, that the election ordinance is within the authority conferred by the enabling act. Coming from the highest court of the territory, the decision will doubtless inspire confidence, in the members of the convention and the people generally, regarding the authority to enact the same. But with a full realization of the consequences which may follow upon the pursuance of a course in holding these elections in conflict with the provisions of the enabling act, and entertaining views in conflict with the judgment of the majority of the court, my own conception of justice compels me to at least declare those views, even though they have been rejected by *Page 658 my brethern as not the law, and may be disregarded by the patries to the action.
In section 3 of the election ordinance adopted by the constitutional convention, it is provided: "In the counties of Adair, Alfalfa." (Then naming other counties, including Major.) "The local officers and authorities provided for in the ordinance, shall exercise all the functions and perform all the duties within the limits of such counties, townships and voting precincts in the same manner as is now required by the laws of the Territory of Oklahoma for election thereon." In connection with section 3 we will refer briefly to certain of the other provisions found in the ordinance. Section two declares that the election of the officers shall be held in accordance with the election law of the Territory of Oklahoma when not in conflict with the enabling act and as supplemented by the ordinance; that in the counties of Beaver, Caddo, Comanche, Greer, Payne, Roger Mills, and Woodward, the local authorities in said respective counties, and the voting precincts therein shall exercise their functions and perform their duties as such election officers only within the limits of said counties as defined and described in the constitution; that in the county of Noble the local authorities, in the exercise of their functions and the performance of their duties as election officers, shall exercise and extend the same to the limits of said county as defined in the constitution. Section six provides that in each of the counties of Greer, Beaver, Woods, Woodward, and Comanche (and any other county in the proposed state similarly situated) as defined and described in this constitution, on or before the sixth day of June, A.D. nineteen hundred and seven, the acting board of county *Page 659 commissioners therein or a majority thereof, shall subdivide such county or counties into commissioners' districts and townships, and fix election precincts, and designate polling places, necessary for the purpose of the election. And then the section provides that if the commissioners fail to comply with the provisions of the section by a date named, then William H. Murray, as president of the convention, shall appoint three qualified electors in each of the counties to divide such counties into commissioners' districts and townships, and fix election precincts, and designate polling places. Other sections provide that in the event of vacancies in certain county offices they shall be filled by appointment by the governor; and in the event that he fails or refuses to make such appointment or appointments, they shall be made by William H. Murray, president of the convention.
All of these provisions were enacted under the alleged power granted by congress authorizing the constitutional convention to provide by ordinance for the election of officers for a full state government, and for submitting the constitution to the people of the proposed state for ratification or rejection.
I shall not stop at this time to quote the law of Oklahoma pertaining to elections, or the manner in which the officers of the territory, from the highest to the lowest, are appointed or elected. It is sufficient to state, as is universally known, that Oklahoma was organized as a territory in 1890. Since then it has had an election law, which, with the modifications and changes made from time to time by the territorial legislature, is as complete and satisfactory as will be found in any state. Congress but a short time ago had occasion to examine *Page 660 the provisions, by reason of a contest before that body over the election of a territorial delegate. Anticipating these very elections as a necessary step in securing statehood, it is fair to assume that the members of the lower house, as well as the senators, familiarized themselves with our entire law and system of elections. Its provisions having appealed to them as fair and sufficient, as a part of the enabling act it positively declared, "That the election law of the Territory of Oklahoma now in force, as far as applicable and not in conflict with this act, including the penal laws of said Territory of Oklahoma relating to elections and illegal voting, are hereby extended to and put in force in said territory until the legislature of said proposed state shall otherwise provide, and until all persons offending against said laws in the election aforesaid shall have been dealt with in the manner therein provided." This language authorizes no change or modification, by the constitutional convention, of the election laws of the Territory of Oklahoma, in so far as their application, within Oklahoma Territory, is concerned. The words "As far as applicable and not inconsistent with this act" refer to the application of the election laws in the Indian Territory. Taking into consideration the plain implication of the language used, the quotation above means that the elections laws of the Territory of Oklahoma, now in force, shall continue in force in Oklahoma Territory until the legislature of the proposed state shall change them, and that these same election laws of the Territory of Oklahoma, as far as applicable and not inconsistent with this act (the enabling act) are hereby extended to and put in force in said Indian Territory until the legislature of said proposed state shall otherwise provide. *Page 661 Congress was familiar with the conditions in Oklahoma, and declared that for the purposes of these elections they should continue. Congress considered these laws applicable and fully adapted to meet the conditions. No exception was made as to the Territory of Oklahoma, save in one instance which I shall notice later. The continuing in force of these election laws of Oklahoma within this territory, not only continued the laws themselves but also continued all the machinery and officers of every kind and character provided for in these laws of Oklahoma, except as those laws might possibly be in conflict with the enabling act. This view is so fundamental that reasoning to support it appears unnecessary. However, I find the rule very closely stated by Chief Justice Burford in a decision by him announced in one of these election cases, wherein he presided in the trial court. Haines et al., v.Murray et al., and other cases, in the district court of Logan county. The Chief Justice, referring to the language above, said: "I think it cannot be seriously questioned that in adopting the (election) laws of Oklahoma that they adopted with them whatever machinery existed under that law. The law creates certain officers, election officers, etc."
The exception to which I referred a moment ago, with reference to the election laws of Oklahoma, is that part of section 21 of the enabling act, which provides, "That the constitutional convention may by ordinance provide for the election of officers for a full state government, * * * and shall constitute the Osage Indian Reservation a separate county * * and shall provide rules and regulations and define the manner of conducting the first election for officers in said county." It will be observed from the language that even in this Indian *Page 662 reservation, congress having declared that the election laws of Oklahoma shall continue in force therein, limited the constitutional convention in providing "Rules and regulations and defining the manner of conducting the first election" for officers. As to what congress meant by the language "Rules and regulations and define the manner of conducting the first election" I shall not here express any opinion; but this language used with reference to this unorganized reservation must be limited to it alone, and neither it or any other language used in the enabling act can be construed to mean a grant of authority for removing public officers elected by the people, or appointed by the proper authority. I have said heretofore that the constitutional convention has the right and power to divide the future state into counties, even though such division may not conform to the county lines as now established in the Territory of Oklahoma, and that it also has the right to elect a full complement of officers for each county at the election for the ratification or rejection of the constitution; and I have also tried to make it plain that these proposed counties can have no existence, in law, and cannot be recognized as political sub-divisions of the state, having a present existence so as to oust the officers duly elected or appointed, under the laws of the Territory of Oklahoma, from the discharge of any duty imposed by those laws; for not only are the election laws of Oklahoma continued in force until changed by the legislature of the future state, but the enabling act itself in positive terms provides. "That until 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." *Page 663
These counties proposed by the constitutional convention whose boundaries are fixed by the constitution to be submitted to the people, are simply counties in future, and the officers provided for in the constitution can exercise no official duty until after the admission of the state. The election at which the constitution is to be submitted for ratification or rejection, and at which there shall be elected officers for a full state government, is to be, under the terms of the enabling act, conducted in the usual way under the laws of the Territory of Oklahoma. And the constitutional convention cannot confer upon these election officers any powers which they do not now enjoy, or take from them any they now possess. Nor can the convention limit the exercise of the powers of these county officers within a proposed county composed of less territory than that for which they were elected, or extend their jurisdiction beyond the lines of the county as now organized, in which their duties under the territorial laws are to be discharged, and for which they were chosen.
It is argued, and with some force, that the election laws of the Territory of Oklahoma, as they now exist, are not exactly applicable to the conditions in the new counties, as they are proposed to be organized in the state. This may be. And it is possible that the convention, as a necessary incident to electing the officers in these new counties, may have to provide by ordinance to meet the conditions there existing; but whatever ordinance is passed by the convention, it must be in aid of the law as it now exists, and not in conflict therewith or destructive thereof. Nor has the convention the power to take away from the present election officers in Oklahoma the right to hold these elections, and confer the power to perform *Page 664 their duties on others. The fact that the forming of new counties may present some embarrassment in the holding of the election is a matter of regret, but it is no excuse or justification for ignoring the law. Whatever difficulties are presented by the reason of the forming of these new counties, are the results of the acts of the convention itself, and for which congress is in no way responsible. The convention should seek for plans under which it may submit its propositions to the voters under the laws as they exist, and not to make the laws conform to the conditions which it is sought to bring about as a result of the election. Congress authorized the forming of a constitution. It not only authorized the election of the state officers, but required them to be elected at the election at which the constitution is submitted to the people. It, within certain limitations, has left the convention free to make the kind of a constitution it might desire, and to create as few or as many offices as it might deem expedient, but has in effect named the officers of the territory as the agents to discharge this important duty, and made the laws of the territory the rule of conduct.
The election officers of Woods county, as now organized under the territoral laws, should conduct the election within that county, in that part composing Alfalfa county, and in that part composing Major county, as well as that portion which in the future state will constitute a part of Woods county. Their jurisdiction is in the whole of Woods county as now organized, and no more. These men are still in office. They have not been removed. Nor has their county yet been changed. Should statehood fail the county organization will continue under the territorial government as before. By virtue *Page 665 of what right can the jurisdiction of these officers, in such a contingency, be temporarily suspended except as to a small part of the county, and then restored if the constitution should not carry? And again, why should the convention confine the jurisdiction of these county election officers to that part of Woods county, Oklahoma, that will form a part of Woods county in the state, without regard to whether the officer lives in that part that will be Alfalfa, Major or Woods? Counsel should not forget that these election officers are holding these elections under the provisions of the enabling act as officers of the Territory of Oklahoma, for the people of this territory, bound by the oaths prescribed by its laws. And if the convention can remove the county election officers from a part of a county as now organized, it can remove them from exercising any act in connection with the holding of the election in any part of the county for which they have been elected, and extend these same methods to every county in the state, and even take away from the governor and the secretary of the territory the power to perform the duties enjoined upon them. The supreme court of Pennsylvania and other states have held that this cannot be done.
The constitutional convention of Pennsylvania, assembled by virtue of authority of the legislature, by ordinance appointed five commissioners of election for the city of Philadelphia. An election law was then in force and applicable to that city. The supreme court of that state, in positive language, held, in the case of Wells v. Bain, 75 P. St. 39, that the convention could not prevent the regular election officers from holding their election. The court said: *Page 666
"Now we come to the sixth section, which begins a different subject. 'The election to decide for or against the adoption of the new constitution, or specific amendments, shall beconducted as the general elections of this commonwealth are nowby law conducted.' Thus the legislature said to the convention in these three sections — You shall have power to propose your work in three forms; you shall have power to determine the time and the manner in which these propositions shall be submitted; but the election by the citizens shall be conducted as the law itself directs as to general elections. The 6th section, as to how the election on the propositions submitted shall be conducted is mandatory, and is so for the best of reasons — it is the only legally authorized means of taking the sense of the people upon adoption of the amendments which can bind the whole people. In this way only can a majority of voters, who are not a majority of the people, bind them as the body politic or state. The legislature intended that the election should be conducted by known officers legally elected, and should be governed by a known system of laws with which the people are familiar, and thereby that they should both know and respect the authority under which the election should be held. No implication can be drawn from the word 'manner' to contradict the plain and positive enactment that the election shall be conducted according to the laws governing general elections. It would violate the plainest rules for the interpretation of statutes to make the merest inference stand higher than an intent expressed in distinct language. It is, therefore, clear to our minds that the ordinance relating to the election in the city of Philadelphia is flatly opposed to the act of 1872, and is thereby illegal and void. The prospective validation in the 32d section of the schedule only betrays the doubt the convention itself had of the validity of the ordinance in this respect."
Counsel, by law of argument, have referred to the conditions in the Indian Territory, and the necessity of recognizing *Page 667 the counties, as fixed and described in the constitution, for the purpose of holding elections there, and by reason of that condition and the conditions brought about on the Oklahoma side on account of the making of new counties, the right to recognize all counties as described in the constitution is claimed. The counties in the Indian Territory may be recognized, if at all, for the purpose of these elections merely. They are not yet counties, but districts for the holding of the elections. And even as to these counties I find that the election ordinance neither creates them counties or districts for the purposes of the election, but simply refers to them as the counties of __________, naming them. Indian Territory, however, is not situated like Oklahoma. The language of the enabling act is "The election laws now in force". That is, as they then existed, and not as they may be changed by the legislature of the territory, or as the counties may be cut up by the constitutional convention, but as they exist now, with all the legal officers provided in the statute, or their successor elected thereunder. The election laws "now in force" are to be used by the people of the territory to hold a territorial election to determine if they will adopt a constitution which has been prepared by a constitutional convention for a state to be composed of both Oklahoma and Indian Territory; and congress has said that these same laws "Now in force, as far as applicable" shall be extended to and put in force in the Indian Territory. This provision, for the purpose of elections, subjected the Indian Territory to the laws of Oklahoma, with the advantages and difficulties its provisions might grant or impose. And congress recognized these elections as elections under existing government, for has it provided that the *Page 668 penal laws of the Territory of Oklahoma relating to elections and illegal voting, shall be put in force in the Indian Territory, and that the United States courts of the Indian Territory shall have the same power to enforce the laws soadopted? No; but the laws of Oklahoma, extended to and put inforce in the Indian Territory as have the courts of the Territory of Oklahoma. If the laws are violated in holding these elections, is it a crime against the laws of the Territory of Oklahoma, or the future state? To the lawyer the question answers itself. Such crimes must be prosecuted under the election laws of the Territory of Oklahoma as they now exist, and the state courts, if they acquire jurisdiction of such crimes at all it will be by virtue of succession under the enabling act, as the laws of the future state cannot be broken before they are enacted and put in force. The convention cannot legislate regarding the election laws of Oklahoma any more than it can regarding criminal procedure for its courts. It certainly cannot divide the counties of Oklahoma, giving to the proposed counties present existence for any purpose which right at least a part of my brethren who have concurred in the majority opinion denied the legislature of the territory. The convention cannot justify its conduct in seeking to interfere with the present officers even on the ground of necessity, for it brought about whatever in harmony exists.
To justify the policy sought to be followed in Woods county regarding the county election officers, in excluding them from exercising their jurisdiction in that portion of the county from which Alfalfa and Major counties are proposed to be created for the future state, reason and justice must give away to desire; and, to hold the ordinance as valid, *Page 669 in my opinion the law of the nation must be subordinated to the will of a temporary agency created by congress as a convenience in transforming a territorial to a state government. The convention has not only sought to limit the powers of these officers, but by the language used have imputed lack of confidence in their fidelity in the discharge of a future duty, by declaring that if they fail or refuse to perform any of the acts enjoined upon them by law, others should be appointed in their place. In certain instances they are to be made by the governor, and if he should fail or refuse to make such appointments, then they are to made by a member of their own body. The convention has no more power to appoint another to perform an official duty enjoined upon the governor by the territorial laws regarding elections, even though he refuses to discharge it, than they have to authorize another to approve the constitution and issue the proclamation should the President refuse or fail to do so. These different officers belong to different political parties, and are representatives of our best citizenship, and a residence of sixteen years in the Territory of Oklahoma has not brought to my attention an instance of an election officer refusing to perform any duty enjoined upon him as such, except when the duty to perform the act was uncertain, or in controversy, and he declined in order that a judicial determination might be had upon the conditions presented. Wherever any officer in Oklahoma fails to do his duty he may be removed from or compelled to perform it. But this power of removal, or power to compel performance of official acts, is independent of the convention, and not being the source of such power it cannot delegate the same to one of its members or anyone else. *Page 670
And again, it is a well known fact that the ordinance as it now exists is not the ordinance as originally passed by the convention. It re-assembled and enacted a new ordinance. By upholding the present ordinance this court has necessarily recognized that the convention had a right to do so. This right having been approved by the court, if the convention desires, may it not re-assemble again and divide even all of the other counties of Oklahoma Territory, put into office those of its own selection, and remove those holding under the existing government, even though they have done no wrong or are willing to continue to discharge their official duties with faithfulness and integrity.
I was deeply impressed by counsel (As well as briefs) in the presentation of the theory, that the limitations in the enabling act upon the powers of the future state, once the state is admitted, will not be binding upon it, even though the convention has declared by ordinance irrevocable to accept the terms of this act of congress. Still I do not perceive that this doctrine has any bearing under the present conditions, in the adoption of a constitution, except that whatever terms congress has imposed I assume a declaration, at least, of intention to comply with them will be required. But whatever may be the intention regarding the policy of the future state, those things which are required as conditions precedent to admission, and the means by which they are to be effected, should conform substantially to the requirements of the enabling act.
The courts of the Territory of Oklahoma cannot have any thing to say about a constitution of the state, or as to what it shall contain, as its provisions affect the state government, *Page 671 and do not apply to territorial conditions. It will create its own courts to interpret its own laws. But as congress (Having the power to admit states) has prescribed the procedure to be followed in bringing about the change from a territory to statehood, and all the laws applicable thereto are either laws of the United States or of the Territory of Oklahoma, the courts of the Territory of Oklahoma have the jurisdiction to determine if any of the persons or officers are exceeding their lawful powers, or interfering with the right of others. The convention itself is the creature of law, whose powers are fixed by law; and while the convention may make its own constitution, the courts have the power to require those whose duty it is to submit it to the people, and to conduct the election of the first officers for the state, to perform these duties as the law directs. And although it has been argued that no one can interfere in those matters except the President, and that he can only determine if the constitution and state government are republican in form, the enabling act itself imposes upon that high officer the further duty of determining as to whether or not the provisions of the enabling act have been complied with; and one of the requirements of the act of congress is that the election laws of Oklahoma, now in force, be respected and its provisions carried out in voting upon the constitution and in electing the officers for the state, through the election officers named in such election law, acting unmolested within their respective jurisdictions. And when these provisions are violated or in a way invade the rights of others either private or official, and under circumstances which may even jeopardize the approval of the constitution itself, the courts should, on proper application, interfere. This authority *Page 672 is vested in the courts for the safety and protection of the rights of citizens, and the protection of the public officers in the discharge of the duties enjoined upon them, whether those injuries have been inflicted or are threatened in the future, while the President, under the authority conferred, must wait until the elections have been held and the constitution finally submitted to him.
The laws should be so construed as to protect existing rights, and deny the advantage of present or threatened wrongs, for justice cannot always be subserved by denying the advantages of a wrongful act.
The plaintiff in this case, as commissioner of Woods county, under the law, has important duties to perform in connection with these elections. He has shown by his bill that the defendants threaten to and will interfere with him in the discharge of his duties. Under the record as I view the law, there being no controversy about the intention to do the acts complained of, I believe the plaintiff is entitled to an order enjoining the defendants (plaintiffs in error) from in any way interfering with him as a public officer in the discharge of those duties imposed upon him under the election laws of Oklahoma. I shall not prolong my discussion of this case by reviewing authorities showing that the court will enjoin an unlawful interference with a public officer in the discharge of the duties of his office. The appellee's right to relief, to the extent indicated, is clear, and the court should be quick to prevent the threatened wrong. Every one will concede that insubstantial irregularities in these elections should be overlooked. But the extreme advantages that might be taken under the decision of the court are so great, that the *Page 673 present election officers may be removed at will and the positive act of congress continuing in force the laws of Oklahoma at the time of the passage of the enabling act, with immunity ignored. It is not sufficient to say that it will not be presumed that a public officer will abuse the authority conferred. The mere fact that he can, under powers granted, lawfully destroy the rights of others, should he choose to do so and no agency can interfere, is sufficient cause for alarm. The ordinance of the convention can no more restrict the jurisdiction of appellee in this case, in the exercise of his duties in the county of Woods, as now organized, to a small portion thereof, than it can effect the jurisdiction of the judge of the district court and compel him to recognize the counties of Alfalfa and Major in the administration of his office. The office of the judge was created by congress, and congress, by declaring that the election laws in force should control these elections, made the jurisdiction of the latter in the exercise of his duties regarding these elections, as sacred as the former in administering the laws.
My examination of the election ordinance has convinced me that the convention did not proceed upon the theory that any of the election officers, even in the counties that have not been divided, would act in these elections by virtue of their present offices, but that the ordinance named them as a matter of convenience, reserving the right to remove should they fail or refuse to act. No lawyer representing the appellants has asserted that the convention has such power. If the convention proceeded upon the presumption that it had the power to appoint all of these officers, then the greater the reason for the interpretation of the law for which I contend. *Page 674
I do not contend that the courts have the authority to enjoin the convention from the performance of any act with reference to submitting to the people, propositions separately, or as a part of the constitution as a whole, or from passing any ordinance; but whenever the officers of the convention or others acting under authority claimed to have been conferred by such body interfere or threaten to interfere with the officers of the Territory of Oklahoma in the discharge of official duties enjoined upon them by the enabling act in relation to the submission of such constitution to the people, that is in relation to the election, for its adoption or rejection, and the election of the first officers for the state, which are to be selected at the same election, the courts may sustain said wrongful acts and protect the territorial officers in the undisturbed discharge of said duties.
The defense that the interference complained of is too remote, is not urged, but on the contrary the parties to the action have requested a determination of the rights of the respective parties, under the facts stated in the petition, and I have considered the case with the view of settling the law applicable to the facts pleaded. The parties to the case have presented it as though the threatened interference complained of were imminent and I have given my views of the law accordingly.
I have refrained from expressing my opinion as to the course authorized to be pursued by the convention regarding the Osage Reservation. That reservation is not directly involved in this case. Nor have I attempted to discuss the powers of the convention pertaining to the Indian Territory. In that part of the proposed state, are courts clothed with *Page 675 powers equal with those possessed by this court, and propriety forbids an unnecessary declaration of the law upon a state of facts which is not before this court in this case, and in which if any controversy should arise at all, it would most likely arise in the jurisdiction of the courts of the Indian Territory. My reference to these two sections of the proposed state have been such, and such only, as appeared to me necessary to make clear my position in the case before us.
The right of franchise is a most sacred right, and the law is universal that only those duly authorized can conduct elections. If my view of the law is correct, the most serious complications might arise by reason of the course that is being pursued, and the results of the election changed.
The court, in the present case, has not been slow to assert its own power and jurisdiction; and I believe that the right of the election officers of the organized counties of Oklahoma are equally as sacred; that they are threatened with an unlawful usurpation of their powers, and that the court should afford its protection.
But notwithstanding my own personal views as to the rights of the appellee, as herein expressed, a majority of my brethren have denied the plaintiff any relief. Their decision has become the rule and guide of conduct, and with a full realization of the wrongs that might be committed under the powers thus approved, but hoping that only good may flow from a wise and just exercise of the same, I accept it as the, law, charged with the duty of respecting and enforcing it, as the only safety of the state and the nation is in full, free and complete submission to the law when by the proper authority so declared. *Page 676
Dissenting Opinion by