Concurring opinion by While I concur in the conclusions reached and judgment announced in the opinion by Justice Hainer, I am unable to consent to some of the statements and reasons therein contained. In the decision of one of the cases involved in this general controversy in the district court of Logan county, I announced my views upon some of the questions involved in this cause, but after more comprehensive argument by able and industrious counsel and more careful research and extensive investigation I am compelled to modify my views somewhat as to the powers and character of the constitutional convention.
It is said in the opinion of the court and supported by the statements of some of the ablest text writers and jurists, *Page 631 that "A constitutional convention is a legislative body of the highest order." In my judgment this proposition is incorrect, unsound and unsupported by reason or logic, and the statement is contradicted by the definition given by its authors of the powers and procedure of a constitutional convention. The constitutional convention is sui generis. In the American form of republican government, sovereignty rests in the people, and is exercised through representatives. In forming a constitution and state government the people act through their representatives in the convention, but they do not delegate all their legislative power to the convention. They reserve unto themselves the power of final approval or disapproval. The convention formulates, proposes, and submits proposals for the form of government and the fundamental laws; the people in their sovereign capacity enact these provisions into law. The convention has no power to enact laws; it possesses no legislative powers except such as may be necessary to exercise in prescribing by ordinance the methods and procedure for obtaining the expression of the electors upon the ratification or rejection of the proposed constitution, and for the election of the officers provided for in the constitution.
We have been taught by observation, experience and history to regard a legislative body as one having the power to enact laws, to legislate finally upon subjects within its sphere. A constitutional convention is not such a body. It is a representative, deliberative body, authorized by law; it derives its authority from congress, and exercises the power resting in the people. It is legislative in character; it proceeds in a legislative manner, acts in a legislative capacity in the *Page 632 exercise of it powers in formulating and adopting propositions to be submitted for final action, but its powers to legislate are of such limited and temporary character that it cannot correctly be said to be a legislative body. In the exercise of its powers it is supreme, and it is not within the jurisdiction of any court to interfere with or to control it. It is answerable only to the people whose trust it executes, and they to the congress of the United States, which has the power of final determination upon all questions relating to the form of government and provisions contained in the constitution.
If the convention has framed a government which is not republican in form, has provided an apportionment which violates that spirit of justice and fairness which pervades the Declaration of Independence and constitution of the United States, and denies to any portion of its territory or people equal rights under the law, or has disregarded the established principles of local self-government, then the appeal must be to the electors in the first instance, and to the President, to whom congress has delegated its power in the premises, in the second instance. Such questions are political and governmental and do not come within judicial cognizance.
The election ordinance being in the nature of a temporary law and now in force, is a subject-matter of judicial cognizance. In the absence of any direction in the enabling act I have no doubt but the convention possessed the inherent power to by ordinance provide for the submission of the constitution to the electors for their action, and for the election *Page 633 of a full quota of state officers, but there is an express grant of power to that effect in the enabling act, and the question presented is: Has the convention exceeded its powers in this particular, and usurped the powers of the election officers provided by and acting under the laws of Oklahoma? Conceding that the adoption of the election laws of Oklahoma by the enabling act carries with it the election machinery existing under such law, it must also be conceded that it is the duty of the convention to supply all defects in the operation of such machinery, and make the same, as supplemented by the convention, conserve the purposes of the entire proposed state. I find nothing in the election ordinance submitted by the pleadings in this case which in my judgment transgresses the powers of the convention, and upon this proposition I am in full accord with the opinion prepared by Mr. Justice Hainer.
Other questions have been argued in the several cases involving the questions here under consideration, but the determination of the court that the question of what subjects may be by the convention proposed for approval or disapproval and their nature and extent is not one of judicial cogniznace, disposes of all questions relating to the contents of the proposed constitution. *Page 634
Dissenting opinion by