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 thirty 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 shall 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 imprison 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 provisions 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 sepa-rately 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? Yes. No. ""Shall the provision of state-wide prohibition be adopted? Yes. No. "And, provided further, that if a majority of the votes cast for and against statewide 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 Governor 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. Murray 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. 25. 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 county 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 any delegate to the constitutional convention residing in the county or by Wm. H. Murray, as president of this convention. "Thereupon the board of county commissioners of each of said counties shall procure a suitable book in which oath and bond 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 22d day of April, at 4:32 o'clock p. m.. Anno Domini 1907. "Attest: Wm. H. Murray, "President of the Constitutional Convention. "John McClain Young, "Secretary of the Constitutional Convention." W. A. Ledbetter. Dale & Bierer, and J. F. King, for plaintiffs in error. W. W. S. Snoddy and H. A. Noah (Horace Speed, of counsel), for defendant in error. In HAINER, J. (after stating the facts). 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 the 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 confers 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 untenable, and cannot be sustained by the authorities. In a territory, the source of all power is Congress. But in the formation of a Constitution and state government the power emanates from the people. The delegates 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 How. (U. S.) 242, 13 L. Ed. 119, the Supreme Court 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 flowed that which was embodied in the organic law, was, of course, competent to prescribe the laws and appoint the officers under the Constitution. by means whereof the government could be put into immediate operation." The convention, therefore, was created by the direct action of the people, and in the discharge of its powers, duties, and obligations it performs one of the highest and most important acts of popular sovereignty. Nor is the contention well founded that the convention possesses no legislative powers, and that it acts in the mere capacity of a committee to adopt and propose fundamental propositions which are to be submitted to a vote of the people for ratification or rejection. The convention has and can exercise plenary powers subject to the limitations: (1) That the Constitution shall be republican in form; (2) that it shall not be repugnant to the Constitution of the United States and the principles of the Declaration of Independence; (3) that no distinction shall be made on account of race or color; and (4) that the convention shall accept by ordinance irrevocable all the terms and conditions of the enabling act. It is true that Congress has the power to impose conditions upon a territory, as conditions precedent to entitle it to admission as a state. Accordingly, Congress placed certain restrictions and limitations upon the convention, which it was required to incorporate into the Constitution, and to be ratified by the people. These limitations and restrictions, when ratified by the people, become a part of the fundamental law of the state. When, therefore, Congress authorized the people of Oklahoma and Indian Territory to form a Constitution and state government and be admitted into the Union on an equal footing with the original states, it meant that it should be admitted on equal terms with the original states. Hence the enabling act was not a limited or restricted grant, but it was an absolute grant, subject to the Constitution of the United States and the litations and restrictions imposed in the enabling act as a condition precedent to such admission. In Permoli v. First Municipality, 3 How. (U. S.) 609. 11 L. Ed. 739, the Supreme Court of the United States had before it the construction of Act Cong. Feb. 20, 1811, c. 21, 2 Stat. 641, authorizing the people of the territory of Orleans to form a Constitution and state government, and in the course of the opinion the court said: "By Act April 8, 1812, c. 50, 2 Stat. 701, Louisiana was admitted according to the mode prescribed by the act of 1811. Congress declared it should be on the conditions and terms contained in the third section of that act, which should be considered, deemed, and taken as fundamental conditions and terms upon which the state was incorporated in the Union. All Congress intended, was to declare in advance to the people of the territory the fundamental principles their Constitution should contain. This was every way proper under the circumstances. The instrument having been duly formed, and presented, it was for the national legislature to judge whether it contained the proper principles, and to accept it if it did, or re ject it if it did not. Having accepted the Constitution and admitted the state, 'on an equal footing with the original states in all respects whatever,' in express terms, by the act of 1812, Congress was concluded from assuming that the instructions contained in the act of 1811 had not been complied with. No fundamental principles could be added by way of amendment, as this would have been making part of the state Constitution. If Congress could make it a part, it might, in the form of amendment, make it entire." In Escanaba Co. v. Chicago, 107 U. S. 678, 2 Sup. Ct. 193, 27 L. Ed. 442, the Supreme Court of the United States, speaking by Mr. Justice Field, said: "Although Act April 18, 1818, c. 67, enabling the people of Illinois Territory to form a Constitution and state government, and the resolution of Congress of December 3, 1818, declaring the admission of the state into the Union, refer to the principles of the ordinance according to which the Constitution was to be formed, its provisions could not control the authority and powers of the state after her admission. Whatever the limitations upon her powers as a government whilst in a territorial condition, whether from the ordinance of 1787 or the legislation of Congress. it ceased to have any operative force, except as voluntarily adopted by her, after she became a state of the Union. On her admission she at once became entitled to and possessed of all the rights of dominion and sovereignty which belonged to the original states. She was admitted, and could be admitted, only on the same footing with them." In Ward v. Race Horse, 163 U. S. 514, 16 Sup. Ct. 1080, 41 L. Ed. 244, which involved the interpretation of a provision of the enabling act of Wyoming, Mr. Justice White, after reviewing the authorities, said: "The enabling act declares that the state of Wyoming is admitted on equal terms with the other states, and this declaration, which is simply an expression of the general rule, which presupposes that states, when admitted into the Union, are endowed with powers and attributes equal in scope to those enjoyed by the states already admitted, repels any presumption that in this particular case Congress intended to admit the state of Wyoming with diminished governmental authority." From these decisions it will be observed that all Congress intended was to declare to the people of Oklahoma and Indian Territory the fundamental principles which should be incorporated in the proposed Constitution. And when the Constitution is formed, and a full state government provided, it should be submitted to the people for ratification or rejection, and when approved by the people it is to be submitted to the President of the United States, who is charged by Congress with the duty to determine whether the Constitution is republican in form, whether it is repugnant to the Constitution of the United States and the principles of the Declaration of Inde pendence, and whether the terms and conditions imposed in the enabling act have been complied with. Judge Story, in his work on the Constitution (volume 1 [5th Ed.] § 338), declares: "The true view to be taken of our state Constitutions is that they are forms of government ordained and established by the people in their original sovereign capacity to promote their own happiness and permanently to secure their rights, property, independence, and common welfare." Judge Cooley, in his work on Constitutional Limitations, on page 68, in discussing the attributes and objects of a Constitution, says: "In considering state Constitutions, we must not commit the mistake of supposing that, because individual rights are guarded and protected by them, they must also be considered as owing their origin to them. These instruments measure the powers of the rul ers, but they do not measure the rights of the governed. What is a Constitution, and what are its objects? It is easier to tell what it is not than what it is. It is not the beginning of a community, nor the origin of private rights. It is not the fountain of law, nor the incipient state of government. is not the cause, but consequence, of personal and political freedom. It grants no rights. to the people, but is the creature of their power, the instrument of their convenience." It In 1894, the state of New York had under consideration the revision of its state Constitution. One of the first questions that arose in the convention was the ascertainment of the rights and powers of the convention to pass upon the election and qualifications of one of its members. This question was referred to the judiciary committee, of which committee the Honorable Elihu Root, now Secretary of State, and one of the ablest lawyers and statesmen of this country, was chairman. In his report to the convention, he says: "The convention has been created by the direct action of the people and has been by them vested with the power and charged with the duty to revise and amend the organic law of the state. The function with which it is thus charged is a part of the highest and most solemn act of popular sovereignty, and in its performance the convention has and can have no superior but the people themselves. No court or legislative or executive officer has authority to interfere with the exercise of the powers or the performance of the duties which the people have enjoined upon this, their immediate agent." And, again, in stating the nature of a constitutional convention, he says: "A constitutional convention is a legislative body of the highest order. It proceeds by legislative methods. Its acts are legislative acts. Its function is not to execute or interpret laws, but to make them. That the consent of the general body of electors may be necessary to give effect to the ordinances of the convention no more changes their legislative character than the requirement of the Governor's consent changes the nature of the action of the Senate and Assembly." And, again, in speaking of the importance of the independence of the convention, he uses this language: "It is far more important that a constitutional convention should possess these safeguards of its independence than it is for an ordinary Legislature, because the convention's acts are of a more momentous and lasting consequence, and because it has to pass upon the power, emoluments, and the very existence of the judicial and legislative officers who might otherwise interfere with it. The convention furnishes the only way by which the people can exercise their will, in respect of these officers, and their control over the convention would be wholly incompatible with the free exercise of that will." See Proceedings of the New York Constitutional Convention, 1894, pp. 79, 80. Mr. Bryce, in his excellent work on the American Commonwealth (volume 1, p. 436), says: "A state Constitution is really nothing but a law made directly by the people voting at the polls upon a draft submitted to them. The people of a state, when they so vote, act as a primary and constituent assembly, just as if they were all summoned to meet in one place like the folkmotes of our Teutonic forefathers. It is only their numbers that prevents them from so meeting in one place, and oblige the vote to be taken in a variety of polling places. Hence the enactment of a Constitution is an exercise of direct popular sovereignty to which we find few parallels in modern Europe, though it was familiar enough to the republic of antiquity and has lasted until now in some of the cantons of Switzerland." In Goodrich v. Moore, 2 Minn. 61 (Gil. 49), 72 Am. Dec. 74, the Supreme Court of Minnesota declared that a constitutional convention is the highest legislative assembly recognized in law, invested with the power of enacting or framing the supreme law of the state, and in the course of the opinion Mr. Justice Atwater, speaking for the court, said: "But even had the Legislature intended and attempted to claim and exercise the act of providing a printer for the constitutional convention, it would have been an unauthorized and unwarrantable interference with the rights of that body. The admission of such a right in the Legislature would place the convention under its entire control, leaving it without authority even to appoint or elect its own officers, or adopt measures for the transaction of its legitimate business. It would have less power than a town meeting, and be incompetent to perform the objects for which it convened. It would be absurd to suppose a constitutional convention had only such limited authority. It is the highest legislative assembly recognized in law, invested with the right of enacting or framing the supreme law of the state. It must have plenary power for this and over all the incidents thereof. The fact that the convention assembled by authority of the Legislature renders it in no respect inferior thereto. In Sproule v. Fredericks, 11 South. 472, 69 Miss. 898, the Supreme Court of Mississippi, in discussing the powers of the convention, says: "It is the highest legislative body known to freemen in a representative government. It is supreme in its sphere. It wields the powers of sovereignty, specially delegated to it, for the purpose and the occasion, by the whole electoral body, for the good of the whole commonwealth. The sole limitation upon its powers is that no change in the form of government shall be done or attempted. The spirit of republicanism must breathe through every part of the framework, but the particular fashioning of the parts of this framework is confided to the wisdom, the faithfulness, and the patriotism of this great convocation, representing the people in their sovereignty. The theorizing of the political essayest and the legal doctrinaire, by which it is sought to be established that the expression of the will of the Legislature shall fetter and control the Constitution-making body, or, in the absence of such attempted legislative direction, which seeks to teach that the constitutional convention can only prepare the frame of a Constitution and recommend it to the people for adoption, will be found to degrade this sovereign body below the level of the lowest tribunal clothed with ordinary legislative powers." In Loomis v. Jackson, 6 W. Va. 613, in discussing the powers of the constitutional convention, Judge Woods, speaking for the court, on page 708 of the opinion, said: "I have had no difficulty in reaching the following conclusions upon the constitutional questions presented in this specification, viz.: First, that a constitutional convention lawfully convened does not derive its powers from the Legislature, but from the people; second, that the powers of a constitutional convention are in the nature of sovereign powers; third, that the Legislature can neither limit nor restrict them in the exercise of these powers." In the recent case of Montana ex rel. Haire v. Rice, 204 U. S. 291, 27 Sup. Ct. 281, 51 L. Ed. 490, which came up on appeal from the decision of the Supreme Court of Montana, it was held that: "In granting lands for educational purposes to Montana, section 17 of the enabling act of February 22, 1889 (25 Stat. 676, c. 180), to be held, appropriated, etc., in such manner as the Legislature of the state should provide, Congress intended to designate. and the act will be so construed, such Legislature as should be established by the Constitution to be adopted, and which should act as a parliamentary body in subordination to that Constitution; and it did not give the management and disposal of such lands to the Legislature or its members independently of the methods and limitations prescribed by the Constitution of the state." The facts in this case were substantially as follows: By section 17 of the enabling act for Montana, grants were made to the state in the following terms: "To the State of Montana: For the establishment and maintenance of a school of mines, one hundred thousand acres; for state normal school, one hundred thousand acres; for agricultural colleges, in addition to the grant herein before made for that purpose, fifty thousand acres; for the establishment of a state reform school, fifty thousand acres; for the establishment of a deaf and dumb asylum, fifty thousand acres; for public buildings at the capital of the state, in addition to the grant herein before made for the purpose, one hundred and fifty thousand acres. the lands granted by this section shall be held, appropriated and disposed of exclusively for the purposes herein mentioned, in such manner as the Legislatures of the respective states may severally provide." The constitutional convention of Montana adopted an ordinance designated as Ordinance No. 1, entitled "Federal Relations," which ordained that "the state hereby accepts the several grants of land from the United States to the state of Montana, And upon the terms and conditions therein provided." An act of the legislative assembly of the state of Montana, approved February 2, 1905, authorized and directed the state board of land commissioners to sign and issue interest-bearing bonds to the amount of $75,000, for the principal and interest of which the state of Montana should not be liable, and directed the State Treasurer to sell the bonds. Section 7 directed that: "The moneys derived from the sale of said bonds shall be used to erect, furnish and equip an addition to the present state normal school building at Dillon, Montana, and shall be paid out for such purpose by the State Treasurer upon vouchers approved by the executive board of the state normal school, and allowed and ordered paid by the state board of examiners." Section 12, art. 11, of the Constitution of the state of Montana, is as follows: "The funds of the state university and all other state institutions of learning, from whatever source accruing, shall forever remain inviolate and sacred to the purpose for which they were dedicated. The various funds shall be respectively invested under such regulations as may be prescribed by law, and shall be guaranteed by the state against loss or diversion. The interest of said invested funds, together with the rents from leased lands or properties, shall be devoted to the maintenance and perpetuation of these respective institutions." It will thus be seen that by the terms of the enabling act it was provided that the |