As I am unable to concur in the views expressed by a majority of the court, I think it is proper that I give some of my reasons for differing from the views expressed by my associates. The decision of this case turns entirely upon two legal propositions:
First: Did the constitutional convention have power and authority to divide Woods county?
Second: Is the election ordinance provided by that convention a valid and legal exercise of authority, and is the same binding upon the people of the two territories?
In determining the first of these propositions, it should be constantly borne in mind that there are recognized by our laws two distinct classes of constitutional conventions. The one known and designated as revolutionary, that is, where the people meet in their sovereign capacity, and by themselves, or their representatives, form a constitution and government at the time existed. In such cases, the only limitation of the authority of such a convention would be those principles of natural justice and the rules of civil society which the wisdom of the past had dictated, and the general customs of mankind so long established as to become recognized as legal precedents. The other class is a constitutional convention which is called into being by a legislative enactment, by which enactment its authority is granted, and the limitations upon its acts fixed. Of such a class is the constitutional convention in this case. It owes it origin to the passage of the enabling act. It derives its authority solely from the act of congress defining its powers and providing for its creation. In determining the duties imposed, and the powers granted *Page 677 to this convention, we must look to the precedents and the judicial decisions applicable to the conventions of this class, rather than to that of the revolutionary class, the latter not being applicable to this class of conventions, and consequently, of but very little assistance to us. This convention owes its existence to the act of congress known as the enabling act. This is its charter of authority to which we must look to determine whether the convention has certain powers and authority. The legislative intent of congress is clearly set forth in the enabling act, and by that, the action of the constitutional convention must be measured and circumscribed. The people of these two territories were not meeting in their sovereign capacity for the purpose of forming a state government where no government had heretofore existed, or to adopt a constitution without the restrictions or limitations of any superior or higher form of government, but rather they were petitioning a government already established, for the privilege of becoming a part of that government already organized. The terms and conditions of our admission as a part of that government were not to be dictated by the people of these two territories, but rather by the representatives in congress of the people of the United States. The terms and conditions of our admission were clearly set forth by congress in the enabling act. The constitutional convention being the representative agents of the people of the Territory of Oklahoma, when in convention assembled, were the creation of the enabling act, and whenever any part of the constitutional convention is called in question, or their authority doubted, we must look to the enabling act, and examine its terms and provisions to determine the question of authority or power. In *Page 678 order to clearly understand the scope of the legislative will, it is necessary to constantly bear in mind the object that congress had in view, and the condition with which the legislative enactment was to deal. The express provision of this enabling act was that the constitutional convention was authorized to form a constitution and state government for the new state. If the authority to divide Woods county is given in express terms any where in this enabling act, it must be in this provision. "To form a constitution and state government for the new state." Unless it can be found in this provision, then it does not exist in express terms, and we must look for it among the necessarily incidental powers conferred upon the constitutional convention by the enabling act, for in these two classes of power are expressed all the power and authority granted by congress to that convention. Any authority exercised by this convention must be found either in the express terms of the enabling act, or must be found in the necessity for their existence in order to carry out the power expressly given by congress to the constitutional convention. The constitutional convention was called upon by congress to perform a certain, specific, expressed mission. That was, to change the territorial form of government which had heretofore existed in these two territories, and form such government into a state government. They were called upon to change the form of government, not to change the map, unless such a change in the map became a necessary incident to the formation of a state government from these two territorial governments. At the time of the passage of this enabling act, county, township, school, municipal, city and village governments existed in a large portion of these two territories, had been heretofore *Page 679 created by an act of congress, and had been recognized by congress since the time of the adoption of the territorial form of government. As a necessary incident to such organized government, there were certain vested duties, rights and obligations attached. We do not believe it was the purpose of congress to unnecessarily overthrow this government and annul and set aside these vested rights, but rather it was the intention of congress that the change of government, if possible, should be accomplished without affecting or disturbing these vested rights. An act of the constitutional convention which can be classed as purely a legislative act must find its authority in the enabling act. At best, the constitutional convention could only be classed as a very limited legislative body, limited with the prescribed boundaries provided by the enabling act. I hardly think it can be seriously contended that the language of the enabling act "To form a constitution and state government for the new state" would be broad enough to authorize an arbitrary wiping out and obliterating of county lines, and the cutting up and dividing of counties already established by the acts of congress. "To form a constitution and state government" would only mean to do such acts as were necessary to accomplish this purpose, that is, they would be delegated authority to do such acts as were necessary to form a constitution and state government. Now, unless it can be said that a state government could not be formed without the dividing of Woods county by the constitutional convention, then this provision, "To form a constitution and state government" would not confer upon the constitutional convention power to arbitrarily divide Woods county. It would hardly seem reasonable that the congress of *Page 680 the United States would vest a subject of such vital importance to the particular localities affected, in the hands of a constitutional convention which was chosen for a particular purposes, and for a limited time; a body from whose action there was no appeal, and for an abuse of the discretion there was no remedy; a body over which neither the president, governor, nor anybody else had any particular vetoing power as to their action in dividing counties; and to allow that body to arbitrarily divide such counties as in its individual judgment might be deemed advisable, to submit that question to a vote of people who, being remote from, were not intimately or particularly interested in the subject, and put it beyond the power of the vitally interested persons to help themselves, when such an action was not absolutely necessary for the purpose of establishing or forming a state government. It can be readily seen that in the division of Woods county, the people most vitally interested would be the people of Woods county. And, note the manner of submitting this question of division to the people. It is submitted, as is proposed, at the same time the constitution of the state is submitted, and submitted to a vote of all the people, and even if every man, woman, or child in Woods county should register their vote against it, it would probably make no difference in the result. Thus all the interests of the people of Woods county, all their vested rights, duties and obligations as a county are set aside, changed and disposed of without their consent, and without any power to help themselves. This it seems to me, was unnecessary, and was foreign to the purpose of congress. *Page 681
In this connection it might be argued that it was expedient to divide Woods county, that the county was too large, and that the best interests of the people of the new state would be served by making two or three counties out of Woods, but it seems to me it can hardly be said that it is necessary in order to form a state government. It would hardly be said that a government could not be formed leaving Woods county as it was established by act of congress. The most that can be said is that it would be more expedient in forming a state government, to divide Woods county. But, it would seem that even with this view of the case, it would seem reasonable for congress to leave that to the legislature of the new state when organized under the restrictions, limitations and checks provided by law, and that the question of the division of Woods county would more properly and justly be submitted by the legislature of the state of Oklahoma, to the citizens, residents and tax-payers of Woods county, than to make the rights and interests of Woods county depend upon the vote of the people of the eastern part of the Indian Territory, a people who have no intimate personal interest in that question. Another very strong reason why I think that congress did not intend that the constitutional convention should unnecessarily disturb county boundaries, or change the lines of counties already established, is that I find in section 21 of the enabling act, that congress expressly provides that the Osage Indian Reservation shall constitute a separate county, and provides that the constitutional convention shall so provide by ordinance. Section 21, provides that "The constitutional convention may by ordinance provide * * * * and shall constitute the Osage Indian Reservation a separate *Page 682 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 the state of Oklahoma." Now if the contention of the majority of the court is sound, and it was the express intention of the congress of the United States that the constitutional convention should have power to divide and organize counties at will, to establish county lines and county boundaries where ever they saw fit, and that this authority was given in express terms by the language used in the enabling act, "To form and constitute a state government for the new state" then why should congress in this section 21, of the enabling act, make express provision that the constitutional convention should have power to make and organize the Osage Indian Reservation into a separate county? It does not seem that congress would do a useless thing or use useless language, or language that did not mean anything. What possible meaning could the language used in section 21 of the enabling act, authorizing the constitutional convention to make the Osage Indian Reservation a separate county have, providing the enabling act in the language, "To form a constitution and state government for the new state" granted and conferred the power to the convention to change lines and county boundaries whenever they saw fit? If they had that general power, would it not extend with equal force to the Osage Indian Reservation as well as to any other part of Oklahoma? I cannot conceive any reasonable purpose that the congress of the United States would have for using the language used in section 21, of the enabling act, providing the granting of power to change and locate county lines is as contended for by the *Page 683 majority of the court; but rather I think it, argues that the congress of the United States never intended that county lines should be changed, county boundaries established, or counties organized, except where such establishing and organization of counties and changing the county lines were necessary in order to form a state government for the new state. It is not necessary that in this opinion I express any judgment as to whether in the unorganized part of the Indian Territory the constitutional convention had or had not power to organize the counties. For the purpose of this opinion, it might be conceded that they had that power, because the organization of counties out of unorganized territory was necessary in order to make a complete state government, but it certainly seems that where the county lines are already established, the county in existence, the county officers in the discharge of their duty, and all the machinery of the county government in force and in active operation, that no absolute necessity can exist for the changing of these county lines, or the cutting up of these counties into separate counties in order to form a state government, and unless it can be said that a state constitution could not be formed, and a state government could not be organized without the dividing of Woods county, then there is no express authority contained in the enabling act authorizing such action on the part of the constitutional convention.
It might be contended that the provisions of section 21 of the enabling act authorizing the convention to constitute the Osage Indian Reservation one county, and preserving the same as such until all lands have been allotted, and until changed by the legislature, is recognizing the right of the *Page 684 convention to recognize counties, but it should at the same time be remembered that the Osage Indian Reservation is unorganized territory, and is attached to another county for judicial purpose. It has no existence as a county, and depends for its power to discharge its functions as a county upon its being attached to another county. No rights are vested, and no obligations are incurred by reason of the establishment of county boundaries therein, and it might reasonably be argued that as a county is a necessary component part of a state, and as no county here existed, it was necessary to form a county in order to form a state government, but this argument would not apply to Woods county, where the county was already formed and in existence. If the power to divide Woods county is given by express terms in the enabling act, then it applies to all parts of the two territories, organized as well as unorganized territory; and when this is once conceded, there is no limitation to the exercise of the power, and the matter is left entirely to the will of the convention. If the power exists, it is an unqualified, unlimited power, and only circumscribed by the constitution of the United States. Congress reserved to itself no power or authority over the acts of the convention, except that it requires that the constitution when formed and adopted shall be submitted to the President, and the only power or authority he has in the premises is to determine first, that it is republican in form, and second that it is not repugnant to the constitution of the United States and the principles of the Declaration of Independence. The constitution might be so worded and so formed as to comply with all these requirements, regardless of whether Woods county was left as one, or divided *Page 685 into many. And, under the provisions of the enabling act, it would not be the duty of the president to inquire into the power of the constitutional convention in dividing or refusing to divide counties. His only duty would be to see to it that it complies with the constitution of the United States and the Declaration of Independence, and being republican in form, would meet the requirements of the enabling act. Remember, that in this case, the sole contention is not that the constitutional convention have not complied with the terms of the enabling act, but that they have done more, have gone beyond the terms of the enabling act, and done things unauthorized by the act. And, if this contention can be maintained, there is no doubt as to the duty of the court to restrain such action. But, if the courts do not act, then there is no power of restraint upon this convention given. If it is true, as contended for in the majority opinion, that this convention has unlimited power to divide at will the counties established and in operation in Oklahoma Territory and that with the exercise of this power the courts have no jurisdiction to interfere, suppose that if any reason, political expediency, or for any other reason, the constitutional convention should conceive the idea that Oklahoma county or Logan county should be changed or divided, and suppose they should ordain that a line should be drawn defining the boundaries of Oklahoma county so that Oklahoma City should be placed one-half in Cleveland county and leaving the other half in Oklahoma county, and so as to put one-half of the Capital City of Guthrie in Kingfisher county, and the other half in Oklahoma county, and thus entirely obliterate from the map of the county of Logan, would it be contended *Page 686 by any one that this was an exercise of authority legally vested in the constitutional convention by the words of the enabling act "To form a state constitution and state government for the new state"? It might be said that this is a very extreme case, and one which would not be likely to occur. Concede this, is it not one which is within the power vested within the constitutional convention by the enabling act, if the construction of the majority opinion of this court is a correct statement of the law? Is there any different rule that would apply to Logan county, or to any other organized county in this territory, than that which would apply to Day county, and is this not what has been done by the constitutional convention in this case of Day county. It seems to me this would be an exercise of authority more arbitrary than has ever been recognized in any body since the organization of this county, a power greater than that possessed by congress themselves, and a power which the Czar of Russia in his palmiest days would never have arrogated to himself, and one which in my judgment the congress of the United States never intended to be vested in any man or set of men. Now the writer of this opinion might subject himself to the criticism of being called an extremist, but is it not within the power vested in the constitutional convention by the enabling act as construed by this court? The illustration used is used only for the purpose of showing the extremes to which the doctrine laid down by this court in the majority opinion might be carried. But, it may be argued that an exercise of authority arbitrary as this, and such a division so manifestly unjust would not be approved by the people of these two territories when submitted to them, but in this connection *Page 687 it should be borne in mind that this proposition of the division of counties is to be submitted with and as an integral part of the constitution itself. No provision is made whereby a vote can be taken upon the proposition separate from that on the constitution, but before the people could express their disapproval of such a county division, they would be driven to the necessity of voting against the constitution, and defeat the very purpose for which this constitutional convention was organized. There is no way pointed out by which this county division, however absurd it may seem to be, or how unjust it may be, can be defeated at the polls without defeating the constitution itself. And, if the opinion of this court is correct, that this court has no power to restrain the constitutional convention in the exercise of authority in dividing counties, and the enabling act only places it within the power of the President to determine whether the constitution as formed is republican in form, and not repugnant to the constitution of the United States and the principles of the Declaration of Independence, where would there be any relief against such arbitrary action on the part of the constitutional convention? It has never been the policy of our law to vest arbitrary power in any body without surrounding and safeguarding it by limitations and checks. No legislature has ever been authorized to act without a veto power, or some check or restraint being placed on them by the act of their creation. But, under the view taken of the power of this constitutional convention, here is the only body known to the law that has unlimited, unqualified and unquestionable power — a creature greater than its creator, a stream higher than its source and a power which recognizes no rights and no *Page 688 authority save and except its own sovereign will, and that body authorized to formulate fundamental principles, establish government and make laws for a million and a half of the most enlightened, and intelligent people on the earth. It seems to me the courts should proceed with great caution and hesitation before announcing a doctrine so far reaching in its effects, and so sweeping in its results.
But it is argued by counsel for plaintiff in error that the division of counties, and the location of the county lines complained of is not permanent, but are only propositions to be submitted to the people for their ratification, and that therefore, no great harm can be done, no rights endangered and no hardships suffered by any one, because the will of the people when expressed at the ballot box is a sufficient safeguard to protect the rights of all. This is no doubt true as a general proposition, and the writer of this opinion has no doubt that the honest expression of the people of these two territories would be a sufficient safeguard to protect the rights of all if this matter could be submitted to them in such a way as to get their honest judgment. But, we must bear in mind the manner in which the action of the constitutional convention in dividing organized counties is to be submitted to the people of the state of Oklahoma for their ratification or rejection. It is not submitted in the same manner that the question of prohibition is submitted, as a separate proposition, to be voted on independently by the people, but it is incorporated in and becomes an integral part of the constitution itself, and is only submitted to the people for their approval or rejection as a part of the constitution. Every voter who votes upon this question is compelled to either express his *Page 689 approval of the action of the convention in dividing the organized counties, or vote against the constitution. There is no way provided whereby any elector can express his honest sentiments on the question of dividing or not dividing these counties without sacrificing his right to express his preference for the constitution. Would any person insist that where a matter of his own personal rights was involved, that the submitting of the question to the people for their approval in this manner would be an honest way of getting the fair, unbiased, unprejudiced expression of the people on the question? By this manner of submission, every man who desires state government, and who desires that this county have the benefit of statehood, must vote for the ratification and approval of the acts of the convention in dividing these counties, or he must lose his vote in favor of statehood. No matter what his convictions may be as to the right or wrong of this county division, and no matter what his sense of justice may be, if he desires to vote for statehood he must at the same time express his approval of the action of the constitutional convention in dividing these counties, whether such action meets his approval or not, and I submit that this manner of submitting the question is not one likely to secure a fair, unbiased and unprejudiced expression of the people on the question. It is submitting the question of the division of counties and the establishing of county lines to a people who from their remote residence from the divided counties have not the vital personal interest that the immediate residents of the county have, and at the same time that the question is submitted to them, it is submitted to them under duress, because they are compelled to vote in a certain way on the *Page 690 question, or lose the boon of statehood. When we view it in this light, it certainly can have but little weight in determining the legislative intent as to this subject, as under such submission the opponent of the county division would stand about as much show as the proverbial snowball in Hades, or a Republican candidate for office in the state of Texas.
Another reason suggests itself to the mind of the writer of this opinion why the congress of the United States did not intend by the enabling act to grant the power, either directly, or by necessary implication, to the constitutional convention to divide counties, or change boundaries or county lines in counties already established in the Territory of Oklahoma, is, that by section 6, of the enabling act, it is provided: "That until the next general census, or until otherwise provided by law, the said state of Oklahoma shall be entitled to five representatives in the House of Representatives of the United States, to be elected from the following described districts, the boundaries of which shall remain the same until the next general census * * *." Then follows the enumeration of the different counties and recording districts in the Indian Territory which shall respectively constitute the different congressional districts. Now it seems that the provision that the limits and boundaries of the congressional districts thus established by congress shall not be changed until the next general census, makes the legislative intent perfectly clear that congress did not intend that any legislation should be had or any authority exercised by the constitutional convention which should in any way change the boundaries of these congressional districts. If it can be shown that the proposed county division now under consideration does have the effect of changing the boundaries *Page 691 of any of the congressional districts thus established by congress, I think it will be established beyond controversy that such division of counties was not within the legislative intent of congress. Section 6 provides that District No. Two shall comprise the counties of Oklahoma, Canadian, Blaine, Caddo, Custer, Day, Dewey, Woodward, Woods, and Beaver. Now, it is fair to presume that in making this distribution of counties into congressional districts, congress intended that the boundaries should be in accordance with the counties as then existing, and the boundaries of counties as then established. By the division of counties proposed by the constitutional convention, one tier of townships on the east side of the southern portion of Caddo county is taken off from Caddo county, and made a part of Grady county. Grady county before the division of the counties, was a part of the Chickasaw Nation, known as Recording District No. 19, and as such in the enabling act, formed a part of the 5th congressional district. Now, the effect of this division would be to change the boundary line of the second congressional district, as established by congress, and place the boundary line where the same touches Caddo county, one tier of townships to the west, and would move the boundary line of the 5th congressional district, where the same intersects Caddo county, on the west line of the 19th recording district of the Chickasaw Nation, one tier of townships to the west, thus changing the boundary lines of both the second and fifth congressional districts to this extent. By the enabling act District No. 5 shall comprise the counties of Greer, Roger Mills, Kiowa, Washita, Comanche, Cleveland, and Pottawatomie, and the territory comprising recording districts numbered seventeen, eighteen, *Page 692 nineteen, and twenty, in the Chickasaw Nation, Indian Territory. By the terms of the enabling act, Day county is a part of the second congressional district, and Roger Mills county forms a part of the fifth congressional district. By the division and readjustment of counties proposed by the constitutional convention, Day county is entirely obliterated from the map of Oklahoma. The southern portion of Day county is attached to Roger Mills, and the balance of the county, or the northern portion, is made into Ellis county. By the apportionment made by congress fixing the boundaries of the fifth congressional district, the north line of that district where the same borders on Roger Mills county, would be on the line of Roger Mills county as it existed at the time of the passage of the enabling act, and before the division of the counties. After the division of counties, a portion of Day county was placed into and became a part of Roger Mills county, thus taking a portion of Day county, to-wit: The southern part of Day county which was originally in the second congressional district, and placing it in the fifth congressional district as a part of Roger Mills county, thus materially changing the northern boundary of the 5th congressional district, and the southern boundary of the 2nd congressional district, where the same intersects Day and Roger Mills counties, and moving the same farther north thus taking a portion of Day county out of the second district and placing it in the fifth, therefore necessarily making the line of the second and fifth districts at a different place than where it was located by the act of congress. A tracing out of the changes made by the division of counties as proposed by the constitutional convention, will show that in *Page 693 many other instances the boundary lines of the congressional districts as established by congress must of necessity be changed.
There is only one theory on which this re-adjustment of counties can be considered which will avoid the conclusion that the re-adjustment would change the boundaries of the congressional districts, and that is, if the readjustment of counties and the placing of additional territory in one county and taking it from another county in another congressional district might not change the congressional district, so far as the added territory was concerned. That is, the territory so added and so subtracted might be attached to the county and made a part of the county for all purposes except congressional, and it might be argued that although it is a part of another county, it still remains a part of the same congressional district, and that the boundary lines of the congressional districts would not be changed. But this solution of the problem would lead to very serious political complications as it would require not only a special ballot box for this territory so added, but it would also require a special ballot and a separate count of the ballots by the election commissioners, as under the system of voting generally in use throughout the United States in preparing the ballot, all of the names of the candidates, national, congressional, state and county, are placed upon one ballot, and are distributed by the county clerks of the various counties to the different election precincts in the county. In this added territory, as for instance, in Grady county, if the election officers of the election precincts in this added territory should apply to the county clerk of Grady county for the ballots to be used in a general *Page 694 election, the ballots would not contain the correct names of the candidates for congress, but would contain the correct names of the candidates for the other offices, state and county If application should be made for these ballots by the election officers of this added territory to the county clerk of Caddo county, then it would contain the correct names of the candidates for congress, but would not contain the correct names of the county officers, and it would also seem that the returns for congressmen would have to be made by the election officers in this added territory in Grady county to the election commissioners in Caddo county, and the returns on the election of the other officers would have to be made to the proper officers in Grady county. This would present the embarrassing predicament of having the electors of this added territory voting for state and county officers in Grady county, and voting for members of congress in Caddo county. It will be readily seen that this would lead to endless confusion, and would make many unfortunate and embarrassing complications, and it would hardly seem that the congress of the United States intended to so form the enabling act and so grant authority under it as to lead to this result. We have the right to presume that congress legislated on this subject with a full knowledge of the conditions, and that they made the enabling act with a full understanding and appreciation of all the results that might necessarily flow from it. The purpose of citing this illustration is not to show the fact that it is impossible to harmonize the conditions, but for the purpose of showing the improbability of congress intending any such result, and to show the probable legislative intent of congress in the matter. *Page 695
Now, I have given this subject careful consideration, much study and much thought, and I am unable to arrive at any other different conclusion than that the re-division and re-adjustment of counties and boundary lines as proposed by the constitutional convention must, of necessity, if acted upon by the people, and recognized as a law, change the boundaries of the Fifth congressional district established by congress, and must be an express violation of the express direction of congress, which in plain terms indicated the legislative intent that the boundaries shall remain the same until the next general census. This being true, I cannot believe that it was ever the intention of congress to put into the enabling act an express prohibition against the changing of the lines of the congressional districts established by congress, and then, by the same document, put into the hands of the constitutional convention the unlimited power to do a thing which would directly contradict that express prohibition. Hence, I am forced to the conclusion that congress never intended to give the constitutional convention this power. If my conclusions upon this proposition are correct, then in my judgment, it entirely disposes of the other proposition, that is, that the constitutional convention had no right by its election ordinance to appoint county officers in the new counties, and clothe them with authority to act as such. My conclusions are that a constitutional convention, such as the one under consideration has only such powers as are expressly granted to it by the act of congress known as the enabling act, and such powers as are necessary to carry into effect the powers expressly granted to it by congress; that neither under the express powers granted, or the implied powers incident thereto, *Page 696 has the convention any power or authority to determine the boundaries of existing organized counties in the Territory of Oklahoma, or to divide such counties, or to create new counties, and particularly, they have not the lawful authority to divide Woods county; and by both express and implied limitations under the law, power and authority was withheld from the convention to interfere in any manner with the existing organized counties in the Territory of Oklahoma. That a constitutional convention created and convened under the enabling act is composed of delegates who are simply agents appointed by the electors to propose a constitution and state government for the proposed state, and the enabling act is the warrant of attorney under which the convention is authorized to act. And all matters beyond the scope of the agency as limited by such warrant of attorney, are ultra vires. That this constitutional convention has no power or authority to create or appoint any officer or officers for any county, township, municipality, or precinct in any part or portion of the organized county of Woods, to take effect prior to the ratification of the proposed constitution by the electors, and the issuing of the proclamation by the President, and it has no power or authority to create any county, township, municipality, or precinct, or to interfere with or displace any officer or officers for such townships, municipalities, or precincts in the organized county of Woods, or any part of it, in the exercise of their lawful and legitimate duties as such officers in it, or until the expiration of the term of the existing officers now exercising the duties of the same in Woods county. I take it that the division of counties and the location of boundary lines of counties, as well as the establishing *Page 697 of county seats in counties, comes within the purview of what is known as ordinary legislation, and that before the constitutional convention can indulge in any such legislation they must be able to show a warrant of authority in the enabling act which called them into existence. That if they cannot find the authority for such legislation in the express terms of the enabling act, or in the necessarily implied powers conferred upon them by the enabling act, then they do not possess such powers. That they are not the representatives of the people in the sense that they exercise in any degree the sovereignty of the people. That they are not a revolutionary convention, but they are a convention called into existence, organized, regulated and limited by legislative enactment, and are bound by the terms of the enabling act, which is the only charter of their authority. Mr. Jameson, in his excellent work on constitutional conventions, in section 371, uses this language:
"* * * On the other hand, no fact is better established than that, beyond the province thus specially set apart for them, neither conventions, nor the bodies of electors have any legislative power. They can neither of them pass any law comprised within the sphere of ordinary legislation."
In the foot-note to the same section, the author remarks:
"The debates of our conventions are full of disavowals of a right on the part of those bodies to pass ordinary laws; in a few cases, however, it must be admitted that right has been claimed as a part of a general claim of all sovereign powers. It has never been practically asserted, however, except in a few doubtful cases, which will be considered hereafter." *Page 698
In section 421 the same author says:
"* * * The reasoning of those who assert for the convention a general power of legislation is, in its last analysis, that by which is vindicated the doctrine of convention sovereignty, of which in its general form, a refutation has already been attempted."
In Ex Parte Birmingham A. R. Co. (Ala.) 42 So. page 120, quoting from Woods Appeal, 75 Pa. St. 59, it is said:
"A convention has no inherent rights. It exercises powers only. Delegated power defines itself. To be delegated, it must come in some adopted manner to convey it by some defined means. This adopted manner, therefore, becomes the measure of the power conferred. The right of the people is absolute in the language of the bill of rights, 'To alter, reform, or abolish their government in such a manner as they may think proper.' "
And, on the following page, 121, quoting from the same case:
"The legislature may not confer powers by law inconsistent with the rights, safety and liberties of the people, because no consent to do this can be implied; but they may pass limitations in favor of the essential rights of the people. If the authority of the people passes to the convention outside of the law, the people are left without the means of self protection, except by revolution. Then the singular spectacle is presented of the absolute sovereignty of the people being vested in a body of agents without any known means of transmission or limitation."
And on page 122, citing from McDaniel's Case, 2 Hill, Law, 270:
"An ordinance is produced to us passed by a certain number of individuals assembled in Columbia. This gives it no authority as an act of the people. But we are told they *Page 699 were elected by the people. This, however, is not enough. To what purpose were they elected by the people? To represent their sovereignty. But was it to represent their sovereignty to every purpose, or was it for some specific purpose? To this no other answer can be given than the act of the legislature under which the convention was assembled. Certainly the people may, if they will, elect delegates for a particular purpose, without conferring on them all their authority.
"The supreme court judge of Massachusetts, in 6 Cush, 574, 575, in discussing this question said. 'Upon the first question, considering that the constitution has vested no authority in the legislature in its ordinary action to provide by law for submitting to the people the expediency of calling a convention of delegates for the purpose of revising or altering the constitution of the commonwealth, it is difficult to give an opinion upon the question, what would be the powers of a convention, if called? If, however, the people should, by the terms of their vote, decide to call a convention of delegates to consider the expediency of altering the constitution in some particular part thereof, we are of the opinion that such delegates would derive their whole authority and commission from such vote; and upon the general principles governing the delegation of power and authority they would have no right, under such vote, to act upon any proposed amendments in other parts of the constitution not so specified."
And, on page 122, quoting from Bragg v. Tuffts, 49 Ark. 560, 561, 6 S.W. 160, it is said:
"The first question that suggests itself, is, what right had the convention — a body consisting of but a single chamber — to enter upon the domain of general legislation? For the raising of revenue, the providing of ways and means to meet the expenses of administering the government, and the prescribing *Page 700 of the funds in which taxes are to be paid, are legislative functions, not of a fundamental character. By the constitution of 1836, and all other constitutions that have ever been in force in this state, the legislative power has been confined to a general assembly, consisting of a senate and house of representatives. The governor also has always had a voice in legislation, a limited power in vetoing measures which did not meet his approval. Now a convention called, for instance, to frame a new constitution, has no inherent right to legislate about matters of detail. All the powers that it possesses are such as have been delegated to it, either by express grant or necessary implication. But we are 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. The delegates to such a convention are but agents of the people, and are restricted to the exercise of the powers conferred upon them by the law which authorizes their election and assemblage."
And, in the same case, (Ex. Parte Bir. A. R. Co., supra) it is said:
"The act so clearly defined the purpose for which the convention should be held that we have every reason to conclude that the legislature did not, for a moment, anticipate that the convention would undertake to indulge in local legislation relating to Shelby and St. Clair counties."
In Jameson on Const. Con. section 420, is this language:
"Does an analogous rule prevail in relation to the convention, the framer of the fundamental law? Or, may it, by virtue of some transcendent power. inherent in it, or of well-established custom or precedent, overleap all bounds interposed to limit its competence and take upon itself the function of legislation in general?" *Page 701
And, in section 421:
"This question will be examined upon both of the grounds indicated in their order, namely, first, upon that of inherent power, and secondly, upon that of custom or precedent.
"First, the reasoning of those who assert for the convention a general power of legislation, is, in its last analysis, that by which it vindicated the doctrine of conventional sovereignty, of which, in its general form, a refutation has already been attempted. The particular argument in this connection is, that the business of a convention is extraordinary, beyond the competence of either of the recognized ordinary agencies, of the sovereign; that that body receives its commission from the same source as do these agencies, and, therefore, on the whole, is entitled to outrank them all; that, although as a prudent precaution against dissatisfaction or cavil, it is doubtless better for a convention to forego the exercise of extreme rights and submit its works to the judgment of the people, yet it is not true that it lacks power directly and definitively to enact the supreme law of the land; that, if this be conceded, it needs only to analyze the general power thus described into its constituents to find the power in question; that the fundamental conception of the business of a convention is, that it takes to pieces, or as it is some times expressed, tramples under its feet, the existing constitution of a state, and out of the old materials, or out of old and new together, erects a structure to fill its place; that, with the constitution, falls of course the government of the state; that, starting; thus, potentially at least, according to its own will, with a clean slate, to deny to the body possessing such omnipotence the power of legislation, would be to deny that the greater includes the less; that, if it can enact the fundamental law, why not, also the ordinary statute law, of which the nature, it is true, is somewhat dissimilar, but whose importance is vastly inferior? That a convention is *Page 702 competent, by constitutional provision to abolish all existing agencies of government, and to fill their places with others constructed on different principles. Is it then conceivable it is asked, that it cannot do directly, what it can do indirectly, or that the right to exercise so exalted a prerogative is conditioned upon its exercise in a particular mode? That as a matter of fact, the convention through its relation to the several departments of the government, as in turn their destroyer and their creator, can exercise at will, the functions of each of them; that, being a virtual assemblage of the people, it wields all the powers which the people themselves would possess, were it in the nature of things possible for them to act directly, hence, that within the bounds fixed by its own discretion, a convention may make laws or may interpret or execute them."
And, in section 422, the same author says:
"To this argument, the following considerations constitute in my judgment, a complete answer:
"If the safety of the people is the supreme law, of which there is no doubt, and which I affirm, the maxim involves both a grant of power and a limitation of power. It is a grant of power, inasmuch as it authorizes and requires all public functionaries to protect and defend the people at whatever cost; to do it, however, by adhering, first to the letter, and secondly, to the spirit of their instructions, that is, of the constitution and laws; and thirdly, to the principles on which the social edifice is bottomed. When the letter of the law is silent, or its spirit doubtful, the principles indicated are the only chart by which official conduct can be regulated, and are the first in validity and sacredness, since they are the sum of the letter and spirit of positive law, as well as that unwritten law which presided at the genisis of the social state, anterior to all positive law. Hence, it is plainly the duty of such functionaries always to conform to those principles, since a disregard of them involves, in substance a *Page 703 violation of the letter and spirit of the positive law, and at length the ruin of the commonwealth. Do what necessity requires, and ask for indemnity for technical breaches of law, is the rule of practical conduct dictated by the maxim under consideration."
Citing Rive v. Foster, 4 Harrington's R. 479.
"As a limitation of powers, the same maxim is of extensive application. In cases of doubtful construction of constitutional provisions, or in which there are no express provisions determining grants of power, it is the most important touchstone in our whole system. Starting with the postulate of representative republican institutions, the two following propositions must be accepted — First, that whatever manifestly endangers the safety of these institutions must be forborne, though authorized by an express grant of power; and secondly, that no act whatever must be done or tolerated in the absence of such a grant, of which the tendency or still more the direct effect would be to endanger them. In the case last supposed, no power to do the act could be implied, under any circumstances whatever, no matter how clearly it might seem, for the time, to be expedient.
"Sec. 423: Now in the light of these principles, is the exercise by a convention of legislative or other governmental powers, in addition to those clearly belonging to it, to be considered as within its competence, as a constitutional body? Is such an assumption of power one which threatens no danger to the commonwealth? By the theory of those who accord to it such powers, as soon as the convention is assembled, the control of the existing government is at an end; the constitution lies torn into fragments under its feet; and while the work of restoration is in progress, that body alone constitutes the state, gathering into its single hands the reins ordinarily held by the four great systems of agencies constituting the government to whose functions it succeeds. If this be so, what, but its own sense of justice *Page 704 is to restrain such a body from running riot as did the Thirty Tyrants at Athens? The jurists of the Illinois convention, of 1862, as we have seen, affirmed that the act under which such a body assembles is no longer binding, when once it has become organized. If, at that moment, it has also cast upon it, by virtue of its great commission, all governmental powers, how easy to extend the scope and the period of the exercise of those powers under the plea that expediency demands it. The expedient is the appropriate domain of a legislature. If at the moment of organization, a convention is endowed with legislative powers, it may be deemed expedient to subvert the system of guarantee by which our liberties are assured to us, and at the same time to withhold from the popular vote the constitutional provisions by which the change is to be effected. Such a consummation would be not merely possible, it would be probable. And clearly, the possibility of its occurring with an appearance of rightfulness is enough to stamp as dangerous that theory of conventional powers from which it must flow. In the science of politics, it is an important point gained to have settled the limit where normal action ends and revolution begins. To have done that, is practically, in most cases to have rendered revolution impossible.
"The result is that a convention cannot assume legislative powers. The safety of the people, which is the supreme law, forbids it. Even if we suppose the body expressly empowered by the legislature to exercise such powers, the right so to do must be denied, because the same supreme law places an absolute interdict on such a grant. It is beyond the power of a legislature to delegate any such authority.
"Sec. 424: To these general considerations, tending to discredit the claim of conventions to legislative powers, must be added the decisive circumstance that our constitutions, as well state as federal, have vested all the power of ordinary legislation the people have chosen to grant at all, *Page 705 in our legislatures. The construction put upon these provisions of our constitution by the courts is, that the grant is exclusive, and that the power can neither be delegated by the legislatures, nor exercised by the people, not even by the whole people.
"Sec. 425: Were additional arguments needed to demonstrate that a convention has no power of ordinary legislation, reference might be made to the fact, that the possession of such a power would be extremely inconvenient, on account of the necessarily temporary and experimental character of such legislation on the one hand, and the difficulty of effecting changes in the enactments of conventions on the other. Every ordinance or constitutional provision passed by a convention, assumes a form nearly as rigid as that of the Median laws; they can be repealed only in the formal way in which they were enacted. It would be impossible to administer with any success any government so crippled in its legislative arm. The result would inevitably be, that laws would be constantly disregarded, or that conventions would become so necessary and frequent that they would ultimately supplant our legislatures."
I have not indulged in as extensive a citation of authorities as the subject under discussion would warrant for the reason that in my judgment, the conclusions reached are logical deductions which can be drawn from the enabling act itself, when we interpret the same in the light of all the surroundings and conditions which existed at the time the same was passed, bearing in mind the object to be attained, and the result to be accomplished. This is a question of very grave importance to the people of these two territories, One which is important, not only in the present, but of vast importance to the future. It is one which reaches the vital interests of the state to be formed from the virgin soil of *Page 706 these great territories. It is one, the importance of which should raise it above personal or partisan feeling; one in the discussion of which, party politics and personal interests should have no place, and no weight; one in which the people require at the hands of the courts their honest, unbiased judgment, uninfluenced and unhampered by anything other than a careful, and candid consideration of the law as it exists, and an honest expression of opinion, and it is only the vast importance of the subject which induced me to file this dissenting opinion. I have briefly given my views of the subject as they occur to me, that they may be made matters of record showing my reasons, or some of my reasons, for differing with the conclusion reached by a majority of this court. And, while I entertain the highest regard for the attainments and legal ability of the members of this court, and have the greatest respect for their legal opinions, I am constrained to dissent from the views expressed by them in this case. *Page 707