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ment for not less than thirty days, or by both such fine and imprisonment; and any person connected with any such agency who shall be convicted of making any sale or other disposition of liquor contrary to these prorisions shall be punished by imprisonment of not less than one year and one day. Upon the admission of this state into the Union these provisions shall be immediately enforceable in the courts of this state; provided, that there shall be submitted separately at the same election at which this Constitution is submitted for ratification or rejection, and on the same ballot, the foregoing provision, entitled "Prohibition," on which ballot shall be printed:
“ 'Shall the provision of state-wide prohibition be adopted ?
“ 'Shall the provision of state-wide prohibition be adopted?
ter, give away, or otherwise furnish any intoxicating liquor of any kind, including beer, ale and wine, contrary to the provisions of this section, or who shall, within this state, advertise for sale or solicit the purchase of any such liquors, or who shall ship or in any way convey such liquors from one place within this state to another place therein, except the conveyance of a lawful purchase as herein authorized, shall be punished, on conviction thereof, by fine not less than fifty dollars and by imprisonment not less than thir. ty days of each offense: Provided, that the Legislature may provide by law for one agency under the supervision of the state in each incorporated town of not less than two thousand population in this state; and if there be no incorporated town of two thousand population in any county in this state, such county shall be entitled to have one such agency, for the sale of such liquors for medicinal purposes; and for the sale, for industrial purposes, of alcohol which shall have been denaturized by some process approved by the United States Commissioner of Internal Revenue; and for the sale of alcohol for scientific purposes to such scientific institutions, universities, and colleges as are authorized to procure the same free of tax under the laws of the United States; and for the sale of such liquors to any apothecary who stall have executed an approved bond, in a sum not less than one thousand dollars, conditioned that none of such liquors shall be used or disposed of for any purpose other than in the compounding of prescriptions or other medicines, the sale of which would not subject him to the payment of a special tax required of liquor dealers by the United States, and the payment of such special tax by any person within this state shall constitute prima facie evidence of his intention to violate the provisions of this section. No sale shall be made except upon the sworn statement of the applicant in writing setting forth the purpose for which the liquor is to be used, and no sale shall be made for medicinal purposes except sales to apothecaries as hereinabove provided unless such statement shall be accompanied by a bona fide prescription signed by a regular practicing physician, which prescription shall not be filled more than once. Each sale shall be duly registered, and the register thereof, together with the affidavits and prescriptions pertaining thereto shall be open to inspection by any officer or citizen of the state at all times during business hours. Any person who shall knowingly make a false affidavit for the purpose aforesaid shall be deemed guilty of perjury. Any physician who shall prescribe any such liquor, except for treatment of disease which after his own personal diagnosis he shall deem to require such treatment, shall, upon conviction thereof, be punished for each offense by fine of not less than two hundred dollars or by inprison
"'And, provided further, that if a majority of the votes cast for and against state wide prohibition are for state-wide prohibition, then said provision entitled "Prohibition," shall be and form a part of this Constitution and be in full force and effect as such as provided therein; but if a majority of said votes shall be against state-wide prohibition, then the provisions of said article shall not form a part of this Constitution, and shall be null and void. If a majority of the votes cast for or against said provision are for state-wide prohibition, then said provision entitled "Prohibition," shall be and form a part of the proposed Constitution.'
"Sec. 21. It shall be the duty of the Gorernor of the territory of Oklahoma, as such, within twenty days after the date of the adoption of this ordinance, to issue his proclamation giving public notice of the elections herein provided for, and to cause said proclamation to be published for a period of sixty days in some daily newspaper of general circulation within the proposed state of Oklahoma, and in the event of the failure or refusal or disqualification on the part of such Governor to act, such proclamation shall be issued and publication caused to be made by Wm. H. Murray as president of this convention, and if he shall fail or refuse or be disqualified from issuing such proclamation, the same shall be issued and caused to be published as aforesaid by John M. Young as secretary of this convention.
"Sec. 22. That the provisions of this ordinance shall apply to the elections to be held and to the officers to be elected on the 6th day of August in the year of our Lord, one thousand nine hundred and seven.
"Sec. 23. In the event the Governor of the territory of Oklahoma should fail or refuse to act as herein provided, and to appoint two qualified electors from each of the political parties that cast the largest number of votes in said proposed state in the election of delegates to the constitutional convention, to constitute a board of election commissioners for the purposes of the elections herein provided for or perform any other duties imposed by law or this ordinance upon him with respect to said elections, such duty shall be performed by Wm. H. Jurray as president of this convention in the same manner as would devolve upon the Governor, and with the same powers as if he were then and there Governor of the territory of Oklahoma. And in the event said Wm. H. Murray, as president, should fail or refuse to perform such acts and duties as aforesaid such acts and duties shall be performed by John M. Young as secretary of this convention in the same manner and with the same powers as if he were then and there the Governor of said territory.
"Sec. 24. In the event there should be any county or counties in said proposed state as defined and described in the Constitution, where the same shall not have been divided into commissioner districts by July 6th, 1907, the commissioners for such county shall at said election be elected therefrom at large.
*Sec. 2.). No voting precinct in this state shall be established so that it shall be divided by the boundary line of any municipal township, commissioner's district, county or congressional district.
"Sec. 26. Within ten days after the adoption of this ordinance or as soon thereafter as practicable, the county clerk and the (ounty commissioners appointed herein shall meet at the county seat of their respective counties and subscribe the oath required by this ordinance and execute bond for the faithful performance of their duties in the penal sum of one thousand ($1,000) dollars, which bond may be approved by ally (elegate to the constitutional convention residing in the county or by Wm. H. Murray, as president of this convention.
"Thereupon the board of county commissioner's of each of said counties shall procure a suitable book in which oath and lond aforesaid and all the proceedings shall be entered.
"I hereby certify that the above and fore going passed after third reading upon roll call, this 22 day of April, at 1::32 o'clock p. m., Anno Domini 19207. "Attest:
Wm. H. Jurray, "President of the Constitutional Convention.
"Jolin McClain Young, "Secretary of the Constitutional Convention."
W. A. Ledbetter, Dale & Bierer, and J. F. King for plaintiffs in error. W. W. S. Snoilly and H. 1. Voal (Horace Speed, of (sounsel), for defendant in error.
ILAIXER, J. (after stating the facts). In compliance with the power granted in the enabling act, the people of Oklahoma and Indian Territory elected 112 delegates, 57 of whom were elected from the territory of Oklahoma, and 55 of whom were elected from the Indian Territory. These delegates were invested with the power and charged with tlie duty and responsibility of forming a Constitution and state government for the proposed state of Oklahoma. The fundamental rights and powers of the
convention: The first question for our consideration is: What is a constitutional convention, and what is the nature of its fundamental rights and powers?
It was contended by the plaintiff in the court below, defendant in error here, that the power and authority of the constitutional convention is derived solely from the powers granted in the enabling act, and that every Power granted to the convention must be found and expressed therein, except such implied powers as may be necessary to carry into effect the express grant of power; that the power granted by the enabling act embraces no legislative grant, but confey's only the power of a committee to adopt and propose fundamental propositions which upon ratification may become the fundamental law of the state. And this was the view of the trial court, and it is earnestly urged in this court by counsel for defendant in error as the true doctrine. In our opinion, this contention is clearly intenable, and cannot be sustained by the authorities. In a territory, the source of all power is ('ongress. But in the formation of a Constitution and state government the power emanates from the people. The lelegates to the convention were not the agents or representatives of Congress, but they were the immediate agents and representatives of the people of the two territories. They derived their power and authority from the people in their sovereign capacity. And this is in harmony with the principles of the Declaration of Independence, which declares that "governments are instituted among men, deriving their just powers from the consent of the governed," and is in keeping with the doctrine announced by Lincoln when he uttered the immortal words, that this is "a government of the people, by the people, and for the people." In Benner v. Porter, 9 Ilow. (U. S.) 212, 13 L. Ed. 119, the Supreme ('ourt of the United States, in speaking of the source of power, with reference to the admission of the territory of Florida, said: "The convention being the fountain of all political power. from which flowell that which was em odlied in the organic law, was, of course, competent to prescribe the laws and appoint the officers under the ('onstitution, by means whereof the government could be put into immediate operation.” The convention, therefore, was
created by the direct action of the people, ject it if it did not having accepted the
. and in the discharge of its powers, duties, Constitution and admitted the state, "on an and obligations it performs one of the high equal footing with the original states in all est and most important acts of popular respects whatever,' in express terms, by the sovereignty. Nor is the contention well act of 1812, Congress was concluded from asfounded that the convention possesses no suming that the instructions contained in legislative powers, and that it acts in the the act of 1811 had not been complied with. mere capacity of a committee to adopt and No fundamental principles could be added by propose fundamental propositions which are way of amendment, as this would have been to be submitted to a vote of the people for making part of the state Constitution. ir ratification or rejection. The convention has Congress could make it a part, it might, in and can exercise plenary powers subject to the form of amendment, make it entire." In the limitations: (1) That the Constitution Escanaba Co. v. Chicago, 107 U. S. 678, 2 shall be republican in form; (2) that it shall Sup. Ct. 193, 27 L. Ed. 442, the Supreme not be repugnant to the Constitution of the Court of the United States, speaking by Mr. United States and the principles of the Dec- Justice Field, said: “Although Act April 18, laration of Independence; (3) that no distinc- 1818, c. 67, enabling the people of Illinois tion shall be made on account of race or Territory to form a Constitution and state color; and (4) that the convention shall ac- government, and the resolution of Congress cept by ordinance irrevocable all the terms of December 3, 1818, declaring the admisand conditions of the enabling act.
sion of the state into the Union, refer It is true that Congress has the power to
to the principles of the ordinance according impose conditions upon a territory, as condi
to which the Constitution was to be formed, tions precedent to entitle it to admission as a its provisions could not control the authority state. Accordingly, Congress placed certain and powers of the state after her admission. restrictions and limitations upon the couven
Whatever the limitations upon her powers as tion, which it was required to incorporate in
a government whilst in a territorial condito the Constitution, and to be ratified by the
tion, whether from the ordinance of 1787 people. These limitations and restrictions, or the legislation of Congress, it ceased to when ratified by the people, become a part of have any operative force, except as volunthe fundamental law of the state. When, tarily adopted by her, after she became a therefore, Congress authorized the people of state of the Union. On her admission she at Oklahoma and Indian Territory to form a
once became entitled to and possessed of all Constitution and state government and be the rights of dominion and sovereignty which admitted into the Union on an equal footing belonged to the original states. She was with the original states, it meant that it admitted, and could be admitted, only on the should be admitted on equal terms with same footing with them." In Ward v. Race the original states. Hence the enabling act Forse, 163 U. S. 514, 16 Sup. Ct. 1080, 41 was not a limited or restricted grant, but L. Ed. 244, which involved the interpretation it was an absolute grant, subject to the of a provision of the enabling act of WyoConstitution of the United States and the ming, Mr. Justice White, after reviewing the li!vitations and restrictions imposed in the authorities, said: “The enabling act declares enabling act as a condition precedent to that the state of Wyoming is admitted on such admission. In Permoli v. First Mu- equal terms with the other states, and this nicipality, 3 How. (U. S.) 609, 11 L. Ed. declaration, which is simply an expression of 739, the Supreme Court of the United States the general rule, which presupposes that had before it the construction of Act Cong. states, when admitted into the Union, are Feb. 20, 1811, c. 21, 2 Stat. 641, author- endowed with powers and attributes equal izing the people of the territory of Orleans in scope to those enjoyed by the states alto form a Constitution and state government, ready admitted, repels any presumption that and in the course of the opinion the court in this particular case Congress intended to said: “By Act April 8, 1812, c. 50, 2 Stat. admit the state of Wyoming with diminished 701, Louisiana was admitted according to governmental authority." From these deci- . the mode prescribed by the act of 1811. Con- sions it will be observed that all Congress ingress declared it should be on the conditions tended was to declare to the people of Oklahoand terms contained in the third section of ma and Indian Territory the fundamental that act, which should be considered, deemed, principles which should be incorporated in the and taken as fundamental conditions and proposed Constitution. And when the Conterms upon which the state was incorporated stitution is formed, and a full state governin the Union. All Congress intended, was to ment provided, it should be submitted to declare in advance to the people of the terri- the people for ratification or rejection, and tory the fundamental principles their con- when approved by the people it is to be substitution should contain. This was every
mitted to the President of the United States, way proper under the circumstances. The who is charged by Congress with the duty instrument having been duly formed, and to determine whether the Constitution is re presented, it was for the national legislature publican in form, whether it is repugnant to to judge whether it contained the proper the Constitution of the United States and principles, and to accept it if it did, or re- the principles of the Declaration of Inde
pendence, and whether the terms and condi- ordinances of the convention no more chantions imposed in the enabling act have been ges their legislative character than the recomplied with.
quirement of the Governor's consent changes Judge Story, in his work on the Constitu- | the nature of the action of the Senate and tion (volume 1 (5th Ed.] $ 338), declares: Assembly.” And, again, in speaking of the “The true view to be taken of our state Con- importance of the independence of the constitutions is that they are forms of govern- vention, he uses this language: “It is far ment ordained and established by the peo- more important that a constitutional conple in their original sovereign capacity to vention should possess these safeguards of promote their own happiness and perma- its independence than it is for an ordinary nently to secure their rights, property, inde- | Legislature, because the convention's acts are pendence, and common welfare.” Judge Cool- of a more momentous and lasting conseey, in his work on Constitutional Limitations, quence, and because it has to pass upon the on page 6s, in discussing the attributes and power, emoluments, and the very existence objects of a Constitution, says: "In con- of the judicial and legislative officers who sidering state Constitutions, we must not might otherwise interfere with it. The concommit the mistake of supposing that, be- vention furnishes the only way by which the cause individual rights are guarded and people can exercise their will, in respect of protected by them, they must also be con
thiese otlicers, and their control over the sidered as owing their origin to them. These
convention would be wholly incompatible instruments measure the powers of the rul- with the free exercise of that will." See ers, but they do not measure the rights of
l'roceedings of the New York Constitutional the governed. What is a constitution, and
Convention, 1894, pp. 79, 80. what are its objects? It is easier to tell
Mr. Bryce, in his excellent work on the what it is not than what it is. It is not the
American Commonwealth (volume 1, p. 136), beginning of a community, nor the origin of
says: "A state Constitution is really nothprivate rights. It is not the fountain of law,
ing but a law made directly by the people nor the incipient state of government. It
voting at the polls upon a draft submitted to is not the cause, but consequence, of person
them. The people of a state, when they so al and political freedom. It grants no rights .
vote, act as a primary and constituent asto the people, but is the creature of their
sembly, just as if they were all summoned power, the instrument of their convenience."
to meet in one place like the folkmotes of In 1894, the state of New York had under
our Teutonic forefathers. It is only their consideration the revision of its state Con
numbers that prevents them from so meettitution. One of the first questions that
ing in one place, and oblige the vote to be arose in the convention was the ascertain
taken in a variety of polling places. Ilence ment of the rights and powers of the con- the enactment of a Constitution is an exvention to pass upon the election and quali
ercise of direct popular sovereignty to which fications of one of its members. This ques
we find few parallels in modern Europe, tion was referred to the judiciary committee,
though it was familiar enough to the reof which committee the Honorable Elihu
public of antiquity and has lasted until now Root, now Secretary of State, and one of
in some of the cantons of Switzerland.” the ablest lawyers and statesmen of this
In Goodrich v. Moore, 2 Minu. 61 (Gil. 49), country, was chairman. In his report to the
72 Am. Dec. 74, the Supreme Court of convention, he says: “The convention has
Minnesota declared that a constitutional conbeen created by the direct action of the
vention is the bighest legislative assembly people and has been by them vested with the
recognized in law, invested with the power power and charged with the duty to revise
of enacting or framing the supreme law of :nd amend the organic law of the state.
the state, and in the course of the opinion The function with which it is thus charged Mr. Justice Atwater, speaking for the court, is a part of the highest and most solemn act said: “But even had the Legislature intendof popular sovereignty, and in its perform- ed and attempted to claim and exercise the illlce the convention has and can have no su
act of providing a printer for the constituperior but the people themselves. No court tional convention, it would have been an unor legislative or executive officer has author- authorized and unwarrantable interference ity to interfere with the exercise of the
with the rights of that body. The admission powers or the performance of the duties
of such a right in the Legislature would which the people have enjoined upon this, place the convention under its entire contheir immediate agent." And, again, in stat- trol, leaving it without authority even to aping the nature of a constitutional conven- point or elect its own officers, or adopt meastion, he says: “A constitutional convention ures for the transaction of its legitimate is a legislative body of the highest order. business. It would have less power than a It proceeds by legislative methods. Its acts town meeting, and be incompetent to perare legislative acts. Its function is not to form the objects for which it convened. It execute or interpret laws, but to make them. would be absurd to suppose a constitutionThat the consent of the general body of elec- al convention had only such limited authortors may be necessary to give effect to the ity. It is the highest legislative assembly recognized in law, invested with the right , should act as a parliamentary body in suborof enacting or framing the supreme law of dination to that Constitution; and it did the state. It must have plenary power for not give the management and disposal of this and over all the incidents thereof. The such lands to the Legislature or its members fact that the convention assembled by au- independently of the methods and limitations thority of the Legislature renders it in no prescribed by the Constitution of the state." respect inferior thereto.
The facts in this case were substantially as In Sproule v. Fredericks, 11 South. 472, follows: By section 17 of the enabling act 09 Miss. SIS, the Supreme Court of Mississip- | for Montana, grants were made to the state pi, in discussing the powers of the conven- in the following terms: "To the State of tion, says: “It is the highest legislative Montana: For the establishment and mainbody known to freemen in a representative tenance of a school of mines, one hundred government. It is supreme in its sphere. It thousand acres; for state normal school, one wields the powers of sovereignty, specially hundred thousand acres; for agricultural delegated to it, for the purpose and the oc- colleges, in addition to the grant hereinbefore casion, by the whole electoral body, for the made for that purpose, fifty thousand acres; good of the whole commonwealth. The sole
for the establishment of a state reform limitation upon its powers is that no change school, fifty thousand acres; for the estabin the form of government shall be done or
lisbment of a deaf and dumb asylum, fifty attempted. The spirit of republicanism must thousand acres; for public buildings at the breathe through every part of the frame- capital of the state, in addition to the grant work, but the particular fashioning of the hereinbefore made for the purpose, one hunparts of this framework is confided to the dred and fifty thousand acres.
And wisdom, the faithfulness, and the patriotism the lands granted by this section shall be of this great convocation, representing the
held, appropriated and disposed of exclusivepeople in their sovereignty. The theorizing
ly for the purposes herein mentioned, in such of the political essayest and the legal doc
manner as the Legislatures of the respective trinaire, by which it is sought to be establish
states may severally provide." The constitued that the expression of the will of the Leg
tional convention of Montana adopted an orislature shall fetter and control the Consti
dinance designated as Ordinance No. 1, entution-making body, or, in the absence of
titled “Federal Relations," which ordained such attempted legislative direction, which
that "the state hereby accepts the several seeks to teach that the constitutional con
grants of land from the United States to the
state of Montana, vention can only prepare the frame of a
upon the terms Constitution and recommend it to the people
and conditions therein provided." An act for adoption, will be found to degrade this
of the legislative assembly of the state of sovereign body below the level of the lowest
Montana, approved February 2, 1905, authortribunal clothed with ordinary legislative
ized and directed the state board of land
commissioners to sign and issue interest-bearpowers."
ing bonds to the amount of $75,000, for the In Loomis v. Jackson, 6 W. Va. 613, in dis
principal and interest of which the state of cussing the powers of the constitutional con
Montana should not be liable, and directed vention, Judge Woods, speaking for the court,
the State Treasurer to sell the bonds. Section on page 708 of the opinion, said: "I have
7 directed that: "The moneys derived from had no difficulty in reaching the following
the sale of said bonds shall be used to erect, conclusions upon the constitutional questions
furnish and equip an addition to the present presented in this specification, viz.: First,
state normal school building at Dillon, Monthat a constitutional convention lawfully con
tana, and shall be paid out for such purpose vened does not derive its powers from the
by the State Treasurer upon vouchers approvLegislature, but from the people; second,
ed by the executive board of the state northat the powers of a constitutional conven
mal school, and allowed and ordered paid by tion are in the nature of sovereign powers; the state board of examiners." Section 12, third, that the Legislature can neither limit
art. 11, of the Constitution of the state of nor restrict them in the exercise of these pow- Montana, is as follows: "The funds of the ers."
state university and all other state instituIn the recent case of Montana ex rel. Halre tions of learning, from whatever source acv. Rice, 204 U. S. 291, 27 Sur. Ct. 281, 51 cruing, shall forever remain inviolate and L. Ed. 490, which came up on appeal from sacred to the purpose for which they were the decision of the Supreme Court of Mon- dedicated. The various funds shall be respectana, it was held that: “In granting lands tively invested under such regulations as may for educational purposes to Montana, section be prescribed by law, and shall be guaranteed 17 of the enabling act of February 22, 1889 by the state against loss or diversion. The (25 Stat. 676, c. 180), to be held, appropriat- | interest of said invested funds, together with ed, etc., in such manner as the Legislature of the rents from leased lands or properties, the state should provide, Congress intended shall be devoted to the maintenance and perto designate, and the act will be so construed, petuation of these respective institutions.” such Legislature as should be established by It will thus be seen that by the terms of the Constitution to be adopted, and which the enabling act it was provided that the