denied a man the right to contract as he saw fit, that a hundred or thousand laws could be passed negativing the freedom of contract, until neither you nor I could enter into a contract without first receiving authority from some department of government, and that that departnient of government could impel us into contracts that would practically devest us of our property and subject us to a paternalism' as despicable as the absolution of Persia. If you will examine into the motive of these judges, you will find that they had as their ideal the safeguarding of our freedom, not by individual whimsical ideas and petty notions, but by the analysis of thousands of precedents along this and similar lines; and not merely by the analysis of precedents, if you please, but the Constitution of the United States, the people's power of attorney to the Executive, Legislative and Judicial branches of our government, declares that no state shall "deprive any person of life, liberty, or property without due process of law." Certainly laws can be passed and are passed, denying freedom of contract, and depriving citizens of their life, liberty or property without due process of law. Certainly we do not wish such unauthorized statutes to stand as against the Constitution. Then it is only that we differ in opinion as to when the Constitution and a given statute is in conflict, that we criticize and damn our Supreme Court. It is not that the court's opinion is based upon an unreasoned and useless technicality.

This leads me to another consideration. Granting for the sake of argument that the courts have no power to set aside statutes as unconstitutional, and further that no such power is necessary to our constitutional guaranties, then why have a hard and fixed rule by which a statute is to be tested? Why not then permit any statute to stand regardless of these so-called technicalities? Silly questions, it seems to me. Why did the Creator establish fixed laws? Why the law of gravitation? Why not one apple fall to the ground and the other pop out into the void unknown? Why does the sun not rise occasionally from under the pole star? It is true that our human law can never attain the ideal of natural laws, but why not approach the ideal in

stead of building a house of Babel? Why not work out a system that will each day bring men to a better understanding of the social relations of man to man? Such a system we have, and its destruction could mean nothing but chaos. Without this system, we could not anticipate the morrow. The laws of today could be subverted, and tomorrow the millionaire would become the pauper and the pauper the millionaire.

Some would point to the English government where the High Court of Judicature has no power to declare an act of Parliament unconstitutional. Our government is derived from the English, and consequently they say, our Supreme Court should have no more power than the High Court of Judicature. Although our government is derived from the English, the analogy is misleading. We must

remember that with Parliament rests the entire sovereignty of the British Empire, and it can exercise at pleasure all the various powers of government,

legislative, executive and judicial. In fact at the present time it does exercise both the legislative and executive, and materially controls the judicial; the Law Lords of the House of Lords being the High Court of Appeal, and the composition and administration of the courts being under absolute dominion of Parliament. Blackstone says of Parliament: "It can change and create a fresh even the Constitution of the Kingdom and of Parliament themsleves, as was done by the act of Union, and the several statutes for triennial and septennial elections. It can, in short, do everything that is not naturally impossible; and therefore some have not scrupled to call its power, by a figure rather too bold, the omnipotence of Parliament." The Parliament of England is elected with the idea that it is not only a legislative body, but that it is also in effect a constitutional convention. The only check upon the absolutism of Parliament, aside from a regular election, is that if the House of Commons votes a want of confidence in the ministry (which ministry is really chosen by the House of Commons) the ministry may refuse to resign and appeal to the country for support. This dissolves Parliament and calls for an election, giving the people an

opportunity to support either Parliament or the ministry as they see fit. Usually, however, a vote of the lack of confidence terminates the ministry. The House of Commons then chooses the new premier, who organiezs a new ministry compatible with the House, thus subjugating entirely the executive functions of government to the control of the legislative.

In this country sovereignty is retained by the people, and the government is carefully separated into the legislative, executive and judicial functions. Since these functions are assigned to different departments, and these departments all derive their authority from a written Constitution, one department is necessarily excluded from exercising the functions conferred upon the others. So long as we the people of the United States retain our sovereignty and assign the functions of government to three co-ordinate departments, it is evident that the analogy between our Legislative Department and the Parliament of England cannot be carried very far. If we wish to deny to our Supreme Court the power to declare legislative enactments unconstitutional, we must be willing to accept a parliamentary government, a government with an unbridled and omnipotent legislature such as a Parliament of England.

It has been claimed that ours is the only great country in which a court can and docs overthrow an act of the legislative branch of the government because the act is without constitutional authority or in violation of constitutional command. Such is the statement of Senator Cummins in the Independent of June 1, 1914. The fact is that in nearly every one of the English colonies whose governments are embodied in written Constitutions by which a separation is effected between the executive, legislative, and judicial functions, the courts exercise power to pass upon the constitutionality of acts of the legislature, precisely as courts in the United States have done from an early date.

Such is true in Australia, New Zealand and Canada. The Privy Council of England has passed upon the constitutionality of acts of colonial legislatures for years. It was in 1728 that it declared invalid a statute of the colony of Connecticut upon the ground that the

statute "was not warranted by the charter of the colony.”

In Australia, the Constitution of 1900 not only recognizes such authority, but also provides that under certain circumstances the legislature or the executive may require the opinion of justices of the high court upon constitutional questions. Roosevelt's new fad. "The Recall of Judicial Decisions," was proposed to this Constitutional Convention of Australia

in 1900, twelve years before the birth of the Progressive party, but was voted down by an overwhelming majority, and instead, a provision was almost unanimously adopted expressly conferring upon the judiciary the power to decide whether or not the legislative enactments fell within the power granted the legislative branch.

Now, more specifically as to whether the delegates in the Constitutional Convention had in mind the granting of the power to set aside legislative enactments to the Supreme Court. I have already said that this power was exercised by the English Privy Council in declaring statutes contrary to colonial charters invalid. This is significant in view of the fact that perhaps the charters granted the colonies were the first written instruments limiting and defining governmental powers. Soon after the Declaration of Independence the question was raised in the states as to whether the courts could exercise lature unconstitutional. authority to declare an act of the legisProbably the

first case to hold that the courts have (Va.) 5, decided in 1782, five years prior such authority was Com. v. Caton, 4 Cail. to the Constitutional Convention. The

legislative act in this case was merely a

resolution of the Senate, not concurred in by the lower house, but Judge Wythe speaking for the court said: "If the whole legislature, an even to be depreciated, should attempt to overleap the bounds prescribed to them by the people. I, in administering the public justice of the country, will say to them, 'Here is the limit of your authority, and hither shall you go, but no farther.'" Decisions in other states rapidly followed. Consequently we would presume that these men who sat in the Constitutional Convention knew something about the judicial exercise of power to set aside

legislative enactments. And so, we find from an examination of Elliott's Debates on the Federal Constitution, that efforts were made in the Convention to forestall the power of the Supreme Court to declare acts of Congress unconstitutional by conferring upon the court and the president jointly, the right of the revision and veto. It is needless to say that this effort was unsuccessful. Afterwards, as if to make such authority on the party of the Supreme Court doubly sure, Mr. Johnson moved that the judicial power be extended "to all cases arising under the Constitution" (Elliott, 483). And in the Federalist, 74, we find the Supreme Court spoken of as the "bulwark of a limited Constitution against legislative encroachments." From these records, we can reach but one conclusion, that is, that the framers of the Constitution intended the Supreme Court to exercise the power of declaring invalid legislative enactments repugnant to the Constitution. Yet there are not lacking those who seriously maintain that no such authority was intended by the framers of the Constitution, and that the case of Marbury v. Madison brought this power into existence for the first time.

It seems to me that the establishment of the Supreme Court as the controlling and regulating power of the Constitution was the greatest conception of the Constitution, and "constitutes the crowning marvel of the wonders wrought by American statesmanship."

The states refused to ratify the national Constitution until they were assured that the first ten amendments or "the Bill of Rights" would be added thus evidencing their concern for the rights of the individual citizen as against the arbitrary will of governmental bodies. Mr. Root has described the Bill of Rights as a "covenant between overwhelming power and every weak and defenseless one; everyone who relies upon the protection of his country's laws for security to enjoy the fruits of industry and thrift; everyone who would worship God according to his own conscience, however his faith differ from that of his fellows; everyone who asserts his manhood's right of freedom in speech and action, a solemn covenant that between the weak individual and all the power of

the people, and the people's officers, shall forever stand the eternal principles of justice, defined and made practically eifective by specific rules in those provisions which we call the limitations of the Constitution. Yet this new school of political thought would have these rights placed at naught, or would change them by the simple and easy process of legislation. They would lopp from the only department of government that has any disposition to maintain the supremacy of the Constitution, or is able to preserve to the people their constitutional guaranties, its inherent rights and duty to follow the Constitution, rather than statutes made in its derogation. Their one thought seems to be to devest the courts of the opportunity to longer protect the people in their sacred and inalienable rights.

Of course, they tell you that the people will protect their own rights; that the majority is never wrong. We have already observed that the minority has rights as against the majority, and that without the practical operation of constitutional limitations through courts of justice, sovereignty would reside in the legislative department or some other governmental body. But even if no such revolutionary results would follow, do you have such absolute confidence in the will of the majority, and that will exercised without debate and deliberation? Do you believe that omniscience is always present in the mere preponderance of numbers? Do you believe that your life, your liberty and your property should be subject to every wave of popular excitement? Do you wish to submit to the majority the making, the constitutionality, the interpretation, and the enforcement of laws? If you have such implicit confidence in the majority of all the people, what about the temporary majority, or the majority of those actually voting on a measure?

Yes, these carping critics would break down these guaranties of life, liberty and the pursuit of happiness. They must know that when these guaranties are broken down, absolute power will surely rest somewhere. But where? They don't seem to care where it goes, whether to the people, to some governmental of

$298,500 have been redeemed, there being now only outstanding of this issue the sum of $403,000. Under the latter act $1,750,000 have been issued. To pay and secure these warrants in the sum of $2,153,000 now outstanding and bearing interest at the rate of 5 per cent per annum there is available in cash, solvent land notes and lands, according to their present appraised value, the sum of $4,815,510.65. All of these bonds and warrants as they have matured have been paid upon presentation, and all of the interest has been promptly paid as it has matured.

I make these statements to show you that it is good paper, that it bears a fair rate of interest and that it is available to be put up as security for public funds, and the banks are only required to pay interest at the rate of 3 per cent per annum on public funds. It is not the contention of the state board of equalization that these public building warrants are not taxable, but it is the contention of this board that the fact that they are not taxable does not operate to make the shares or capital stock in any respect exempt from taxation. In a report that I have from the state examiner and inspector he

states:

State Examiner's Statement.

"In exhibit 'E' hereof, is a copy of the bid of I. H. Nakdimen for the $1,750,000 of bonds issued and sold pursuant to the act of 1911. There is no documentary evidence that I was able to find that this bid was ever accepted, neither could I find any contract entered into with Mr. Nakdimen for the purchase of these bonds. However, Mr. Nakdimen sold or brokered these bonds to the bankers throughout the state, the state in the majority of cases furnishing the money with which they were purchased, that is the records show that when a sale was made

the state treasurer would place a deposit with the purchasing bank and retain the bonds as collateral against such deposit. In this manner the public funds of the state were indirectly invested in these bonds-the banker getting 5 per cent from the public building fund and the state receiving 3 per cent from the bank as interest on daily balances—the banks earning a net of 2 per cent at the expense of the state. The foregoing statement is

further borne out by the fact that on June 30, 1915, the state treasurer and commissioners of the land office held as security for bank deposits $1,380,000 of these bonds and warrants. Two hundred and eighty-nine thousand five hundred dollars of these securities were held as an investment by the commissioners of the land office on June 30, 1915. On June 30, 1915, there were outstanding of these securities, $2,153,000, $1,380,000 being held as security for public funds of the state and $289,500 as an investment of public funds of the state, leaving $184,000 in which the public funds of the state are neither directly or indirectly invested. However, the several county and school sinking funds of the state are invested in a large share of this balance of $484,000. The reports to this office from county treasurers of the state show that they have deposited in banks over $2,000,000 of sinking funds that is subject to investment in securities of this class. In view

of this fact, it is evident that a ready market is available for the warrants and

bonds issued against the public building

funds of the state of Oklahoma. ̈

The legislature of 1913 (Session Laws 1913, Ch. 22, p. 30), authorized certain corporations to invest in guaranty fund warrants or certificates and for the same to be deposited for certain securities and also authorized the investment of the

sinking fund of the state, or of any district thereof in such warrants, and county, city, town, township or school that such warrants should be approved as securities for public moneys and that trust funds might be invested in the same and that such warrants should be nontaxable for any purpose.

The legislature of 1915 (Session Laws 1915, Ch. 58, p. 100), authorized state banks to invest their capital stock and surplus to a certain amount in such warrants, and provided that the same might be used as security for public deposits but said section did not provide for such warrants to be non-taxable for any purpose.

Attack Is Partisan.

The Oklahoma Banker in the August issue complains that certain state officials, during the preceding administration, had permitted banks for taxation to deduct from their capital stock and surplus the