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lands granted to the state were for the establishment and maintenance of a school of mines, and for a state normal school, etc., and that the lands thus granted should "be held, appropriated and disposed of" exclusively for the purposes therein named, and "in such manner as the Legislature of the state may provide." The Constitution expressly provided that "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." Notwithstanding the limitations placed upon these lands and funds by the state Constitution, The Legislature of the state of Montana authorized and directed the state board of land commissioners to issue bonds, the proceeds of which were to be used to erect, furnish, and equip an addition to a state normal school, upon the theory that the enabling act conferred such power upon the Legislature, regardless of the limitations placed upon it by the state Constitution. It was contended in that case, as it is here, that the provisions of the enabling act, in respect to the disposition of these lands and funds, controlled over the provisions contained in the Constitution. The Supreme Court of the United States denied this contention, and held that, in executing the authority intrusted to it by Congress, the Legislature must act in subordination to the state Constitution. Mr. Justice Moody, in delivering the opinion of the court, on pages 299, 300 of 204 U. S., page 284 of 27 Sup. Ct., 51 L. Ed. 490, uses the following language: "In support of it the plaintiff in error argues that the grant of all the land by the enabling act was by an ordinance accepted by the state 'upon the terms and conditions therein provided'; that the Legislature of the state was by the last clause of section 17 appointed as agent of the United States, with full power to dispose of the lands in any manner which it deemed fitting, provided only that the lands or their proceeds should be devoted to normal school purposes; and that therefore, in the execution of this agency, the Legislature was not and could not be restrained by the provisions of the state Constitution. It is vitally necessary to the conclusion reached by these arguments that the enabling act should be interpreted as constituting the Legislature, as a body of individuals, and not as a parliamentary body, the agent of the United States. But it is not susceptible of such an interpretation. It granted the lands to the state of Montana, and the title to them, when selected, vested in the grantee. In the same act the people of the territory, about to become a state, were authorized to choose delegates to a convention charged with the duty of forming a Constitution and state government. It was contemplated by Congress that the convention would create the Legislature, determine its place in the state government, its relations to the other governmental agencies, its methods of procedure,

and, in accordance with the universal prac tice of the states, limit its powers. It is not to be supposed that Congress intended that the authority conferred by section 17 of the enabling act upon the Legislature should be exercised by the mere ascertainment of its will, perhaps when not in stated session, or by a majority of the votes of the two houses, sitting together, or without the assent of the executive, or independently of the methods and limitations upon its powers prescribed by its creator. On the contrary, the natural inference is that Congress, in designating the Legislature as the agency to deal with the lands, intended such a Legislature as would be established by the Constitution of the state. It was to a Legislature whose powers were certain to be limited by the organic law, to a Legislature as a parliamentary body, acting within its lawful powers, and by parliamentary methods, and not to the collection of individuals, who for the time being might happen to be members of that body, that the authority over these lands was given by the Enabling act. It follows therefore that, in executing the authority intrusted to it by Congress, the Legislature must act in subordination to the state Constitution, and we think that in so holding the Supreme Court of the state committed no error."

But counsel for defendant in error rely upon the case of Wells v. Bain, 75 Pa. 39, 15 Am. Rep. 563, in support of their contention that the convention possesses only such powers as are expressly granted in the enabling act, and such implied or incidental powers as are necessary to carry into effect the express powers thus granted by Congress, and that, if the convention exceeds such powers, then the powers of the courts can be invoked to enjoin or restrain it from submitting such propositions in the Constitution or ordinance to a vote of the people. In this case, it appears that an act of the Legislature authorized, in pursuance of a vote of the people, the election of delegates to a convention to revise and amend the Constitution, and directed the convention to submit the proposed amendments to the voters of the state at such time and "in such manner as the convention shall prescribe," but also directed that the election to decide for or against the amendments "shall be conducted as the general elections of this commonwealth are now by law conducted." By the then existing election laws, the elections were conducted by inspectors. The convention, by an ordinance, appointed certain persons to have direction of the elec tion on the amendments, to fill vacancies. to appoint judges and inspectors, etc. And it was there held that the part of the ordinance relating to the election was in conflict with the election laws enacted by the state Legislature, and was therefore void But in this case there was no attempt to enjoin the submission of the Constitution, or any of its provisions, to a vote of the people;

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nor was there any attempt to restrain or enjoin the convention, its officers or delegates, from discharging their functions. But the action was instituted after the convention had completed its labors, and it had for its object the sole purpose of enjoining that portion of the ordinance which attempted to create election officers which were unauthorized, and who were attempting to supplant or supersede the officers who were charged, as it was there contended and held, with the duty of conducting such election by virtue of an act of the Legislature, which provided for the election of delegates to amend and revise the Constitution. decision seems to be in irreconcilable conflict with the decisions of the highest courts of the land. The convention was authorized by a direct vote of the people to revise and amend the state Constitution. The power of the convention to revise and amend the Constitution was not a delegated power derived from the Legislature, but it derived its power directly from the people. And in the performance of the powers and duties and obligations resting upon the convention it could have no superior but the people themselves. Manifestly, to hold otherwise would be to degrade the powers of the convention below the level of the lowest legislative or municipal body. Clearly, such are not the office. functions, and powers of the constitutional convention. This decision was severely criticised at the time by the ablest members of the bar of the state, and was repudiated by the constitutional convention of New York of 1894, which was composed of some of the greatest lawyers and most eminent statesmen of our times.

The courts have no power to restrain or enjoin the convention:

The convention being vested with legislative powers and functions, its acts and proceedings, in the performance of such duties, are not subject to judicial control or interference. The power of the courts to enjoin or restrain the convention, its officers or delegates, from exercising the rights, powers, and duties confided to them, must therefore be denied. Nor have the courts the power or jurisdiction to enjoin or restrain the submission of the Constitution or any proposition contained therein to a vote of the people. This conclusion, it seems to us, is selfevident. No case has been cited, and we are unable, by the most diligent research, to find a case, from the foundation of the government down to the present time, where any court has ever restrained or enjoined a constitutional convention, its officers or members; nor has any case been cited or found where the Constitution, or any of the propositions contained therein, was ever enjoined by any court prior to the time the Constitution was adopted. If, therefore, the convention, or its officers and delegates, could be enjoined by the courts from exercising legislative functions, such as the creating and de

fining of counties in Oklahoma or Indian Territory, or of defining and describing the boundaries of the counties in the proposed st state, and which in effect would divide or change the counties as they now exist in the territory of Oklahoma, and if this part of the Constitution could be restrained and enjoined from being submitted to a vote of the people, then we can perceive of no sound reason why any other portion of the Constitution could not be attacked in the courts and its constitutionality determined in advance of the submission of such question or proposition to the vote of the people. To concede the power of the courts to enjoin and restrain the convention in the exercise of its powers in incorporating any legislative matter that it may deem appropriate therein, on the ground that it is unconstitutional and void, in advance of the submission of the same to the people for ratification or rejection, and prior to the time that it is approved by the President, would, it seems to us, lead to interminable litigation, and the inevitable result would be to tie the hands of the convention and indefinitely postpone the submission of the Constitution, or any of its provisions, to a vote of the people. Fortunately, such is not the law. If the Constitution, or any of its provisions, is repugnant to the Constitution of the United States or any of the terms and conditions of the enabling act, these questions can be litigated and determined at the appropriate time. The moment the Constitution is ratified by the people, and approved by the President of the United States, then every section, clause, and provision therein becomes subject to judicial cognizance. That the courts will not interfere by injunction, or otherwise, with the exercise of legislative or political functions, is well settled by a long line of adjudicated cases, which we will review at some length, owing to the great importance of the questions involved in this case.

As early as 1831 this question was before the Supreme Court of the United States in a suit brought by the Cherokee Nation against the state of Georgia (5 Pet. [U. S.] 1, 8 L. Ed. 25). This was a bill in equity brought by the Cherokee Nation, praying an injunction to restrain the state of Georgia from the execution of certain laws of that state, which it was alleged would annihilate the Cherokee Nation as a political society, and seize for the use of Georgia the lands of the nation which had been assured to them by the United States, in solemn treaties repeatedly made and still in force. The opinion of the court in this case was delivered by Mr. Chief Justice Marshall, and in the course of the opinion, on page 18 of 5 Pet. (8 L. Ed. 25), the learned Chief Justice says: "A serious additional objection exists to the jurisdiction of the court. Is the matter of the bill the proper subject for judicial inquiry and decision? It seeks to restrain a state from the forcible exercise of legislative power over a neighbor

ing people, asserting their independence, their right to which the state denies. On several of the matters alleged in the bill, for example, on the laws making it criminal to exercise the usual powers of self-government in their own country, by the Cherokee Nation, this court cannot interpose; at least, in the form in which those matters are presented. That part of the bill which respects the land occupied by the Indians, and prays the aid of the court to protect their possession, may be more doubtful. The mere question of right might, perhaps, be decided by this court, in a proper case, with proper parties. But the court is asked to do more than decide on the title. The bill required us to control the Legislature of Georgia, and to restrain the exertion of its physical force. The propriety of such an interposition by the court may be well questioned. It savors too much of the exercise of political power to be within the proper province of the judicial department. But the opinion on the point respecting parties makes it unnecessary to decide this question. If it be true that the Cherokee Nation have rights, this is not the tribunal in which those rights are to be asserted. If it be true that wrongs have been inflicted, and that still greater are to be apprehended, this is not the tribunal which can redress the past or prevent the future. The motion for an injunction is denied."

In the case of State of Mississippi v. Johnson, 4 Wall. 475, 18 L. Ed. 437, the Supreme Court of the United States was asked to restrain and enjoin Andrew Johnson, then President of the United States, and a citizen of Tennessee, from enforcing the Acts of Congress of March 2 and 23, 1867 (14 Stat. 428, c. 153, and 15 Stat. 2, c. 6), commonly known as the "Reconstruction Acts," on the ground that such acts were unconstitutional and void. Chief Justice Chase, speaking for the court, in the course of the opinion said: "Congress is the legislative department of the government. The President is the executive department. Neither can be restrained in its action by the judicial department, though the acts of both, when performed, are, in proper cases, subject to its cognizance." And, again, he says: "It is true that a state may file an original bill in this court. And it may be true, in some cases, that such a bill may be filed against the United States. But we are fully satisfied that this court has no jurisdiction of a bill to enjoin the President in the performance of his official duties, and that no such bill ought to be received by us. *** The motion for leave to file the bill is therefore denied."

In the case of State of Georgia v. Stanton, 6 Wall. 50, 18 L. Ed. 721, the Supreme Court of the United States had before it for decision a bill in equity, filed by the state of Georgia, seeking to enjoin the Secretary of War, and other officers who represented the executive authority of the United States. from carrying into execution certain acts of

Congress, on the ground that such execution would annul and totally abolish the . existing state government of the state and establish another and different one in its place; in other words, would overthrow and destroy the corporate existence of the state by depriving it of all the means and instrumentalities whereby its existence might, and otherwise would, be maintained. It was held that the bill called for a judgment upon a political question, and would therefore not be entertained by the court. Mr. Justice Nelson speaking for the court, on page 77 of 6 Wall. (18 L. Ed. 721), says: "That these matters, both as stated in the body of the bill, and in the prayers for relief, call for the judgment of the court upon political questions. and upon rights, not of persons or property, but of a political character, will hardly be denied. For the rights for the protection of which our authority is invoked are the rights of sovereignty, of political jurisdiction, of government, of corporate existence as a state, with all its constitutional powers and privileges. No case of private rights or private property infringed. or in danger of actual or threatened infringement, is, presented by the bill, in judicial form, for the judgment of the court."

In New Orleans Waterworks Company v. New Orleans, 164 U. S. 471, 17 Sup. Ct. 161. 41 L. Ed. 518, the Supreme Court of the United States had under consideration the question whether the court would enjoin and restrain a municipal council in the exercise of its powers as a legislative body, and it was there held that: "A court of equity cannot properly interfere with, or in advance restrain the discretion of a municipal body while it is in the exercise of powers that are legislative in their character." the course of the opinion, Mr. Justice Harlan, speaking for the court, says: "If it be said that a final decree against the city, enjoining it from making such grants in the future, will control the future action of the city council of New Orleans, and will therefore tend to protect the plaintiff in its rights, our answer is that a court of equity cannot properly interfere with, or in advance restrain, the discretion of a municipal body while it is in the exercise of powers that are legislative in their character. It ought not to attempt to do indirectly what it could not do directly. In view of the adjudged cases, it cannot be doubted that the Legislature may delegate to municipal assemblies the power of enacting ordinances that relate to local matters, and that such ordinances, if legally enacted, have the force of laws passed by the Legislature of the state, and are to be respected by all. But the courts will pass the line that separates judicial from legislative authority if by any order or in any mode they assume to control the discretion with which municipal assemblies are invested, when deliberating upon the adoption or rejection of ordinances proposed for their adoption.

The passage of ordinances by such bodies are legislative acts which a court of equity will not enjoin. Chicago v. Evans, 24 Ill. 52, 57; Des Moines Gas Co. v. Des Moines, 44 Iowa, 505, 24 Am. Rep. 756; 1 Dillon on Mun. Corp. § 308, and notes; 2 High on Injunctions, § 1246. If an ordinance be passed and is invalid, the jurisdiction of the courts may then be invoked for the protection of private rights that may be violated by its enforcement. Page's Case, Page's Case, 34 Md. 558, 564; Baltimore v. Radecke, 49 Md. 217, 231, 33 Am. Rep. 239."

In State ex rel. Rose v. Superior Court of Milwaukee County, decided by the Supreme Court of Wisconsin February 27, 1900, and reported in 81 N. W. 1046, 105 Wis. 651, 48 L. R. A. 819, it was held that the passage of an ordinance of the city of Milwaukee was a legislative power, and that a court of equity had no jurisdiction to restrain the common council from passing the same. In this case the court had under consideration the validity of an ordinance which the common council of the city of Milwaukee attempted to enact. The action was instituted in the superior court of Milwaukee county, having for its object the restraining and enjoining of the common council from enacting the ordinance. The court granted the injunction as prayed for. Notwithstanding the injunction, the common council violated the orders of the court, and proceeded to enact the ordinance. The members were accordingly cited to appear before the court, to show cause why they should not be punished for contempt. Upon the hearing, a majority of the common council admitted to the trial court that they had severally violated the injunction order in question. The only excuse given for the violation was that the court was without jurisdiction to make the order. Therefore the sole legal question presented was whether the court had jurisdiction of the subject-matter. The trial court held that it had jurisdiction of the subject-matter of the action, and adjudged the common council guilty of contempt. Upon this order and judgment of the trial court, application was made to the Supreme Court for a peremptory writ of prohibition, to prohibit the execution of the judgment, and, upon a full hearing and consideration, the writ was awarded; the Supreme Court holding that the trial court was without jurisdiction of the subject-matter of the action. In the course of the opinion, Mr. Chief Justice Cassoday, speaking for the court, says: "The power so vested in the common council is, within the limits prescribed, a discretionary power, and we must hold that a court of equity has no jurisdiction to restrain the common council from exercising such discretion, especially at the suit of a private party. It is said that the amendment to the ordinance, as originally proposed. was not submitted to a committee, as required. It is enough to say 91 P.-14

that a court of equity has no place in the chamber of the common council to supervise or superintend the proceedings of that body, while engaged in the exercise of legislative or discretionary functions. The common coun cil of Milwaukee, like other legislative bodies and courts, is liable to commit errors which may be fatal to its action; but that does not take away its power to act."

In Des Moines Gas Co. v. City of Des Moines, 44 Iowa, 505, 24 Am. Rep. 756, it was said by the Supreme Court of Iowa, having this question under consideration: "The General Assembly is a co-ordinate branch of the state government, and so is the lawmaking power of public municipal corporations within the prescribed limits. It is no more competent for the judiciary to interfere with the legislative acts of the one than the other. But the unconstitutional acts of either may be annulled. Certainly the passage of an unconstitutional law by the General Assembly could not be enjoined. If so, under the pretense that any proposed law was of that character, the judiciary could arrest the wheels of legislation."

It is evident, then, from a consideration of the authorities, that the constitutional convention is a legislative body of the highest order, and that it cannot be interfered with by injunction in the exercise of its powers. This being true, the convention was given the power, and it was made its duty to do two things: (1) To form a Constitution; and (2) to form a state government. The Constitution and state government:

First, let us briefly examine the difference between the federal and state governments. Judge Cooley, in his great work on Constitutional Limitations ([7th Ed.] p. 11), states this distinction as follows: "The government of the United States is one of enumerated powers; the national Constitution being the instrument which specifies them, and in which authority should be found for the exercise of any power which the national government assumes to possess. In this respect it differs from the Constitutions of the several states, which are not grants of powers to the states, but which apportion and impose restrictions upon the powers which the states inherently possess." Mr. Chief Justice Waite, in United States v. Cruikshank, 92 U. S. 549, 23 L. Ed. 588, states the true doctrine as follows: "The government of the United States is one of delegated powers alone. Its authority is defined and limited by the Constitution. All powers that are not granted to it by that instrument are reserved to the states or to the people. rights can be acquired under the Constitution or laws of the United States, except such as the government of the United States has the authority to grant or secure. All that cannot be so granted or secured are left under the protection of the states." Chief Justice Marshall, in the celebrated case of

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McCulloch v. Maryland, 4 Wheat. (U. S.) 409, 4 L. Ed. 579, in speaking of the division of sovereignty appertaining to the United States and to the states, declared: "Does it be

long to one more than to another? In America, the powers of sovereignty are divided between the government of the Union, and those of the states. They are each sovereign, with respect to the objects committed to it; and neither is sovereign, with respect to the objects committed to the other."

What, then, is a state Constitution, and what are its attributes? Judge Story, in his work on the Constitution (volume 1, § 339), says: "A Constitution is in fact a fundamental law or basis of government, and falls strictly within the definition of law as given by Mr. Justice Blackstone. It is a rule of action prescribed by the supreme power in a state, regulating the rights and duties of the whole community. It is a rule, as contradistinguished from a temporary or sudden order, permanent, uniform and universal." The late Justice Miller, of the Supreme Court of the United States, in his valuable work on the Constitution (page 70), says: "A Constitution, in the American sense of the word, is the written instrument by which the fundamental powers of government are established, limited, and defined, and by which those powers are distributed among the several departments for their safe and useful exercise for the benefit of the body politic." In Vanhorne v. Dorrance, 2 Dall. (U. S.) 308, Fed. Cas. No. 16,857, 1 L. Ed. 391, the court defines a constitution as follows: "What is a Constitution? It is the form of government, delineated by the mighty hand of the people, in which certain first principles of fundamental laws are established. The Constitution is certain and fixed, it contains the permanent will of the people, and is the supreme law of the land. It is paramount to the power of the Legislature, and can be revoked or altered only by the authority that made it." In Phoebe v. Jay 1 Ill. (Breese) 268, 271, the Supreme Court of Illinois declared that: "The term 'Constitution,' as applied to government, is the form or government instituted by the people in their sovereign capacity, in which, first, the principal and fundamental laws are established. A Constitution is the supreme, permanent, and fixed will of the people in their original, unlimited, and sovereign capacity, and in it are determined the conditions, rights, and duties of every individual of the community." The Supreme Court of Indiana, in the case of In re Denny, 156 Ind. 104, 59 N. E. 359,1 said: "In our system of government, a written Constitution is the highest expression of law. None other emanates directly from the sovereign people themselves. It is the deliberate and affirmative utterance of the sovereign majority." In Taylor v. Governor, 1 Ark. 27, it is said: "What is a Constitution? The Constitution of an 151 L. R. A. 722.

American state is the supreme, organized, and written will of the people acting in convention and assigning to the different departments of the government their respective powers. It may limit and control the action of these departments, or it may confer upon them any extent of power not incompatible with the federal compact. By an inspection and examination of all the Constitutions of our own country, they will be found to be nothing more than so many restrictions and limitations upon the departments of the government and the people." In 8 Cyc. 717, the doctrine is clearly stated as follows: "A state Constitution consists of a number of fundamental laws passed by, and alterable and repealable alone by, the people. It is superior to the will of the Legislature, the validity of whose acts is determined by its provisions"-citing with approval Taylor v. Governor, 1 Ark. 21, 27; Lynn v. Polk, 8 Lea (Tenn.) 121, 165; and Bates v. Kimball, 2 D. Chipm. (Vt.) 77, 84, where it is said: "When the people associate, and enter into compact for the purpose of establishing government, that compact, whatever may be its provisions, or in whatever language it may be written, is the Constitution of the state, revocable only by the people, or in the manner they prescribe." In short, the constitutional convention, subject to the Constitution of the United States, and the limitations and restrictions contained in the enabling act, had full power and authority to incorporate in the Constitution any provision which it deemed appropriate. But this does not mean, as it was stated by the learned trial court, that, if such power is conceded to the convention, it had "the power to repeal all laws, abolish all institutions, and displace all officers, from the highest to the very lowest." No such power was confided to the convention, nor has it exercised such powers. Clearly, to repeal existing laws of the territory, and to displace any existing officers, would be to act in direct opposition to the express provisions of section 6 of the enabling act, which provides: "And the said representatives, together with the Governor and other officers provided for in said Constitution, shall be elected on the same day of the election for the ratification or rejection of the Constitution; and until said officers are elected and qualified under the provisions of such Constitution and the said state is admitted into the Union, the territorial officers of Oklahoma Territory shall continue to discharge the duties of their respective offices in said territory." But the grant by Congress to form a Constitution and state government carries with it everything that is essential to effectuate its object. We are unable to perceive how a state government could be created, and officers for a full state government provided for, unless the convention had the power to fix and define the counties within the entire state, and to provide by ordinance for necessary temporary

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