Vol. XIV

OKLAHOMA LAW JOURNAL

Published by

WARDEN COMPANY

13-15 West Main Street, Oklahoma City, Okla

CHAS. F. BARRETT, Editor.
FRED RISELING, Associate Editor.

Subscription: $2.00 per year

Entered at Oklahoma City Post Office as Second Class Mail Matter, under the Act of Congress of March 3, 1879

The action of the Supreme Court in upholding what has come to be known as "Judge Brown's decision on the anti-usury law" wil! have a tendency to clear up whatever doubt may have existed in regard to the attitude of the state in regard to usury. The new usury law in the state was finally framed along lines intended to supplement and support the decision of the State Supreme Court as embodied in the judgment prepared by

the

late Justice Brown. The legislature passed and the Chief Executive signed this new usury law, which is now in effect and the Supreme Court has just re-affirmed its decision upholding the principles embodied in the new law and defining the methods that may be employed in the enforcement of the law. This leaves nothing to be hoped for by the opponents of the present usury law of the State, except a repeal of the measure by some future legislature. It is not likely that any legislature will seriously contemplate repeal until it has been demonstrated by a fair enforcement of the law that its provisions are working, not only a hardship to the banks but to the borrowing public as well. Partisan outcry against the law or mere philippics aimed by interested parties at members of the legislature or state officers who in response to the demand of the people passed the law will never be able to secure a repeal or even a modification of the present provision. The law and the Supreme Court's decision in the absence of any convincing proof that it is working an unjust hardship on the financial interests of the State may be accepted as the settled policy of Oklahoma for some years to come.

THE STATE SCHOOLS

In announcing a personal platform which demands that the law creating the State Board of Education shall be repealed, and

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that a law shall be substituted providing that the Legislature shall appoint the Board, a candidate for the Legislature in Pontotoc county may be starting something that will succeed in putting the State Schools more largely into politics than they have been at any time since statehood.

Appointing members of Boards is not a legislative but an executive function. The legis lature has power to create the Boards and under certain circumstances might even provide for the legislature to fill the places.

This was done when the second Capitol Commission was created, but that was carried through during a fit of legislative resentment toward Governor Cruce, and the next legislature promptly restored that power to the executive.

an

If we were not already burdened with elective officers in this state, it might not prove unfortunate experiment to follow the policy pursued in some of the older states and elect the members of the Board of Education and the Board of Agriculture, but in Oklahoma there is a growing demand for a shorter ballot instead of a longer one, and it is not likely that an Oklahoma Legislature can be elected this year that will lend itself to a scheme to disorganize the State Schools and inject new factional, political feeling into their admin istration by handing over to the legislature the power to appoint this important board.

The State Board of Education is also th State Text Book Commission, and as every one knows, it has been a battle royal in Oklahoma since long before the days of Statehood to protect the people from the greed and the insidious practices of the American and other book trusts. In Territorial days when the legislature dealt with the matter of book adoptions, every session of the Territorial Legislature was enlivened by the presence of book company agents, and the charges of corruption which followed their biennial visits became a stench in the nostrils of decency. The book business is five times more important now than it was then, and there are many additional book companies, and if the election of the Board of Education was thrown into the legislature, these companies would be on hand to see that their favorite sons were selected, or they would probably begin earlier, and through political school teachers take a hand in the election or defeat of members of the legislative bodies.

The book business is a ligitimate business, and as the adoptions are being managed at this time they are measurably free from criticism and scandal, but these companies are out after business, and they would be forced by the importunities of middle-men and ambi

tious applicants for places on the Board to loosen up and take a hand in the election of certain members at least of the legislative bodies. This fact alone ought to be sufficient to defeat the chimera of a board selected by joint legislative action.

The tendency of the communities in which the State Schools are located to consider those institutions local matters, and the very natural desire of the heads of many of these institutions to look upon their contracts as life tenures, are in a measure to blame for the biennial and quadrennial revolutions through which the state schools have passed to a diminishing extent since Statehood. The temptation of the ambitious candidate to use the undoubted influence of the schools, and the deep partisan interest many of the heads of these institutions have taken in the past in the selection of candidates, are the causes which lead up to these troubles. So far the troubles of this administration have not been a marker to the upheavals that took place during the four preceding years. During that period several Boards of Regents were abolished, the new State Board of Education was created and the governor had to call a special session of the State Senate to help straighten out the tangles into which the Boards which he had appointed, had involved the school interests of the state. People fully conversant with the political enterprise and activity of many of the leading school men of Oklahoma will be inclined to go slow about adopting any new method of appointing a Board of Education. There is trouble enough under the present system, but if the election was thrown into the legislature, future sessions of that body would set a new record for factional strife and political discord.

SHOULD

CERTAIN OFFICERS BE RESTRAINED FROM BECOMING CANDIDATES?

The address delivered by Governor R. L. Williams before the State Bar Association of Arkansas, some weeks ago which we publish in full in another place in the Law Journal, was a scholarly and able discussion of the origin and development of our system of government. Governor Williams is an earnest student and a deep thinker and his addresses on government and law as well as his numerous state papers bear consistent tribute to the richness of his mind and the trained resources of his itellect. His defense of the judiciary of the present day and his reference to the high calling and responsibilities of the legal profession will meet the approval of every student of the history of our own and former time.

his term and that Congressmen or United States Senators should not be allowed to become candidates for state office during their terms. Such inhibitions in our Constitution or in our laws would be in the nature of a political attainder, which in itself is contrary to the spirit and the language of the Federal Constitution and antagonistic to the fundamental principles of our form of government. In a democracy where the people are the sovereign power, there should be no limitation upon their right to draft for service in any field, the individual citizen, and it is contrary to this theory and a limitation of that sovereignty to say that a man chosen by the voice of the people for Governor or United States Senator, is thereby disabled and handicapped in accepting any other honor which the sovereign power might desire to confer upon him. Under the primary system-or in fact under any system in vogue in this country at this time, and with an unbridled press, it is impossible to build up a political machine that could inflict as great an injury or place such a limitation on the sovereignty of the people as would be accomplished in the abdication either through a statute or a Constitutional amendment of the right of the people to select for their representatives in office whomsoever they desire to choose.

FAVORS PLAN TO WORK CONVICTS

Governor Capper, of Kansas, after making a thorough inspection of the penitentiary, and giving considerable thought to means by which convicts may be given work out in the open air, is in favor of any plan that will accomplish this purpose.

"I believe it is only a question of a few "said the governor, years, "when farm work and outdoor labor will be given to all ablebodied convicts and the prisoner will be given a chance to earn something for the support of his family at home. I traveled over roads running from Lansing to Kansas City that were built four years ago by convicts. This highway is still in fine condition. The legislature of three years ago changed the law and it contains provisions which make it impossible for the warden to work his men on the roads unless the county pays $1 a day for the labor of each convict. No county has yet indicated a desire to take advantage of this provision of the law. I think the next legislature should give us a practical convict road law."

Governor Williams of Oklahoma, since coming into office, has urged that all means possible be employed toward employment for the convicts. At a special session of the legislature, laws were passed making it possible to work the convicts on the public roads of the state. There is no doubt but that the open air work is going to be the solution of the convict problem some day.

Address Delivered by Governor Williams on the Occasion of the Annual Convention of the Arkansas State Bar Association at Little Rock-Relations Between the Three Branches of the Government.

The privilege of delivering an address before the bar association of this state is a recognition for which I am grateful. Its bar and the judges of its courts compare creditably with those of the oldest' states of the Union. English, Eakin, Cockrill, Sandel, Garland and Rose have left imperishable names. Judge Cockrill vitalized the code and harmonized it with the spirit of its authors. The genius of Judge Sandel was snuffed out too soon. The names of Rose and Garland deserve a place on the roll of the great lawyers of the world.

In the constitutions framed by the colonies the controlling idea was the balancing of the different departments of government so that neither might encroach upon the other. The memory of the long parliament and King Charles was still fresh in their minds. The right of the individual to the exercise and enjoyment of life and liberty, with the means of acquiring and possessing property and its protection and pursuing and obtaining happiness and safety were by them regarded as inherent. The ingenuity of the greatest lawyers was taxed and devoted to incorporating such protections in the Bill of Rights. The legis lative, executive and judicial powers were separated into different departments with prohibition against the encroachment of one upon the other, with the settled purpose of getting away from a monarchy and preserving representative government, the chief limitations being placed against the executive. The legislative department was fixed as the representative of sovereignty without limitations as a rule, other than the special prohibition levelled against the encroachment upon the coordinate divisions, and protections in favor of the individual, in the Bill of Rights.

It

At that early period the executive department, or chief magistracy, brought with it great political honor and social power. was so universally regarded, as it was no uncommon thing in those days for a United States senator to resign his seat to become a candidate for such places, notwithstanding the fact that there was such expressed evidence of distrust of concentrated power in the executive. Especial care for the protection of the judicial department was also evidenced. The constitution framed and adopted in Virginia by the convention of 1776, whose membership was comprised of some of the greatest lawyers and statesmen the world has

ever seen, provides that "the legislative and executive powers of the state should be separate and distinct from the judicial."

The constitutional convention of Massachusetts of 1780, in which were a number of members equally distinguished with those of Virginia, provided that:

"In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them, to the end it may be a government of laws and not of men. ""

It is a bad day for a state and its citizenship when the point is reached that there is any wide-spread distrust in constituted government and fixed law, and its limitations as imposed in a written constitution. The children of the wilderness in traveling from Egypt to the Promised Land in their conduct and relationship to government indicated such distrust and an impatience against the then wisest constituted authority and brought upon themselves great delay, hardship and suffering in attaining the objects for which all were seeking. The proper evolvement of government must be through a fixed law and written constitution reasonably protecting minorities with certain reserved powers in the people.

Members of the bar frequently speak in reverence and admiration of the great judges of the past, with the statement that the traditions and judicial achievements of the bench are not being measured up to by the present generation. The judges in that day and time had a better opportunity to create imperishable names. The maximum number of opinions that a judge would be required to write in the days of Marshall, Storey, Taney, Sharked and Kent did not exceed twenty per annum, the average not reaching that number. American government, both national and state, was then in a gradual process of development and judicial growth. The volume of litigation then pressing upon the judges was not great because there was not such condition existing in the country as to bring about a great multiplicity and volume of litigation.

The judges of such a time had a greater opportunity for research, investigation and consideration before reducing their conclusions to writing. Now, the judge is supposed to be a judicial race horse, and to keep up with the docket regardless of the number of appeals brought for his consideration.

A reversal of conditions from that in the beginning now exists. The executive department originally shackled with many limitations; the judicial department carefully sur rounded with powers of protection, especially

as against the other two departments; and the legislative department practically without limitation, except in favor of individual rights, present now a new view. The pendulum has swung in a measure toward the other extreme. Many reforms in the legislative department are urged: (1) to establish a unicameral system, (2) abolish the department altogether and establish a commission form of state government, or (3) in lieu of the legislative department to provide practically a pure democracy. As to the judicial department we have advocates of (1) a referendum on judicial decisions and (2) a prohibition against the declaring of legislative acts unconstitutional and (3) more power to be given to the executive, that greater efficiency may be attained.

By Act of the Congress of the United States March 4, 1913, (1 U. S. Compiled Statute, p. 519), it is provided that:

"No interlocutory injunction suspending or restraining the enforcement, operation, or execution of any statute of a state by restraining the action of any officer of such State in the enforcement or execution of such state, or in the enforcement or execution of an order, made by an administrative board or commission acting under and pursuant to the statutes of such State, shall be issued or granted by any justice of the Supreme Court, or by any district court of the United States or by any judge thereof, or by any circuit judge acting as district judge, upon the ground of the unconstitutionality of such statute, unless the application for the same shall be presented to a justice of the Supreme Court of the United States, or to a circuit or district judge, and shall be heard and determined by three judges, of whom at least one shall be a justice of the Supreme Court or a circuit judge, and the other two may be either circuit or district judges, and unless a majority of said three judges shall concur in granting such application."

Such provision should apply also to state judges. No nisi prius judge should be permitted to enjoin the enforcement of a state statute on the ground of its unconstitutionality without the concurrence of a majority of three state circuit or nisi prius judges sitting en banc, to hear the same. This will not only protect the nisi prius judge from possible grave errors, but will, also, have a tendency to strengthen his acts in the confidence of the people in suspending or declaring state statutes as void on the ground of the unconstitutionality of the same.

With the growth of the several states, and the exercise of the legislative power for special and local legislation, was developed a distrust of the legislative department by the people. This is indicated by the revised constitutions, in which we find that it was contemplated at that time that a fixed legislative procedure would be sufficient to hold the exercise of legislative power within reasonable and proper bounds. In the revised constitution of Georgia, of 1798, it is for the first time provided "nor shall any law or ordi

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nance pass containing any matter different from what is contained in the title thereof." It grew out of a striking incident in the his tory of that state. The act of January 17, 1795, known as the Yazoo Act, under the pretended purpose of "paying the late state troops, ," and of "protecting and supporting the frontier settlements,'' as declared in its title, made a grant of all of the public domain of the state, consisting of about three and one-half million acres, to a private company of speculators. When the fraud was discovered it gave rise to a determined and angry controversy which affected the politics and the fortunes of public men in that state for decades. The tract of land affected extended from the Chattahoochee to the Yazoo River and was granted away under that bill at the price of one and one-half cents per acre. General James Jackson, who was at that time a United States Senator from Georgia, resigned his seat and returning home announced his candidacy for the legislature, with the avowed intention of securing the repeal of the act containing said surreptitious provisions. The legislature on February 1796, passed a repealing act, providing that the purchase price be returned, the trade declared null and the act and all public records of the same be burned in the presence of the Governor, so that no trace of the same should be left to blot the escutcheon of the state. At high noon on an appointed day, the Governor, státe officials, and whole legislative body marched out of the capitol and formed a circle around a pile of pitch lightwood that had been placed in the middle of the square in front of the new capitol building at Louisville, Georgia. With a sun glass, Governor Jared Irwin was thought to have brought fire from heaven to consume the condemned records. As the clerk of the House of Representatives placed the documents in the flames, he cried with a loud voice in the presence of the assembled multitude: "God save the state and preserve her rights! and may every attempt to injure them perish as these corrupt acts now do" (See Laws of Georgia, 1820, by Oliver H. Prince, at page 515; Life and Times of William H. Crawford, by Shipp, at page 33; Removal of Cherokee Indians from Georgia by Lumpkin (Dodd, Mead & Co., N. Y., 1907), pp 14, 15, 17.)

The constitutional convention of Georgia in 1798 was presided over by ex-Governor Jared Irwin and General James Jackson was also a member of that body. The Yazoo land fraud being remembered this limitation was placed upon the acts of the legislature to prevent such a recurrence. Prior to the repeal of the act this large body of land had been sold and conveyed to some New England parties, who afterwards set up their tile as innocent purchasers. Their title was sustained by the Supreme Court of the United States in Fletcher v. Peck, 6 Cranch 13 (5 L. Ed. 162) wherein Chief Justice Marshall announced the rule that the land having passed into the hands of purchasers for valuable consideration, without notice, that the state of