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." I cannot conceive of language that would more clearly express authority to elect county officers, if the Constitution provides for county officers. Is there anything in the enabling act that limits the Constitution as to the kind, character, number, or dignity of the officers which it may provide for in the Constitution, except as to Governor, Secretary of State, and members of the Legislature? Not being limited by the enabling act, the convention, in forming a state government, not only has the right, but it was its duty, to provide in the Constitution for state officers, county officers (for county organization has come to be regarded as necessary in administering the affairs of a state), and such other officers as would be required for the convenience of the public and the administration of the law. The Constitution having provided for specific officers, Congress has plainly said, in the section referred to, that "the Governor and other officers provided for in the Constitution shall be elected on the same day of the election for the ratification or rejection of the Constitution." Turning to sections 1 and 2 of article 17 of the proposed Constitution, I find the following provisions:

"Section 1. Each county in this state, now or hereafter organized, shall be a body politic and corporate.

"Sec. 2. There are hereby created, subject to change by the Legislature, in and for each organized county of this state, the offices of judge of the county court, county attorney, clerk of the district court, county clerk, sheriff, county treasurer, register of deeds, county surveyor, superintendent of public instruction, three county commissioners, and such municipal township officers as are now provided for under the laws of the territory of Oklahoma, except as in this Constitution provided."

These officers are provided in the Constitution, and Congress has commanded that they "shall be elected on the same day of the election for the ratification or rejection of the Constitution"; and, if the people failed to elect all of the officers provided for in the Constitution, they would, to the extent of such omission, fail to comply with the act of Congress.

But it is said that the latter part of this same section authorized the territorial officers to continue in office in the state until their successors are elected and qualified under the state laws, and that the language used amounts to a prohibition of election for such officers when the Constitution is adopted.

This conception is not only erroneous, but no reasonable ground exists for such an interpretation. Congress did not intend to impose the officers selected, either by appointment or election under the laws of the United States or under its supervision, upon the people of the state, who, after the admission of the state, would have a right to make their own selection. It not only did not intend to do so, but it probably would not have the power to do so. When Oklahoma becomes a state (not after the first election after the adoption of the Constitution, but from the very instant the President issues his proclamation), it has the undisturbed right to administer its own internal affairs, and dictate its own officers. Congress has clearly recognized these rights of the future state; but it is necessary to read the entire paragraph together: "And 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." Now let us consider this language for a moment: First, the officers provided for in the Constitution must be elected on the same day of the election for the ratification or rejection of the Constitution; second, until those state officers are elected and qualified, and the state admitted into the Union, the territorial officers shall continue to discharge the duties of their respective offices in said territory. Congress, by the provisions of the section under consideration, contemplated a complete surrender and turning over to the state and its officers every thing to which it or they would be entitled as a state fully admitted and standing on the same footing as the other states. These observations, however, I perceive will not satisfy the appellee or his counsel as one other section of the enabling act which pertains to state officers has not been considered. I refer to section 21, which, so far as affects this subject, provides as follows: "Sec. 21. That the constitutional convention may by ordinance provide for the election of officers for a full state government, including members of the Legislature and five representatives to Congress, and shall constitute the Osage Indian Reservation a separate county, and provide that it shall remain a separate county until the lands in the Osage Indian Reservation are allotted in severalty and until changed by the Legislature of Oklahoma, * ** and shall provide rules and regulations and define the manner of conducting the first election for officers in said county. Such state government shall remain in abeyance until the state shall be admitted into the

Union and the election for state officers held, as provided for in this act." The section then provides for the election of Senators, etc., and then adds: "And the officers of the state government formed in pursuance of said Constitution, as provided for by said constitutional convention, shall proceed to exercise all the functions of such state officers."

There is no conflict between this section and section 6, which I have just considered. While section 6 expressly provides that all officers provided for in the Constitution shall be elected when the Constitution is voted on, it must be remembered that, while the convention can create an office by the terms of the Constitution, as said before, the Constitution has no binding force until the state is admitted into the Union. Therefore Congress conferred upon the constitutional convention the powers to provide for the election of these officers by ordinance. And an ordinance passed pursuant to the terms of this section, by the representatives of the people of the proposed state in convention duly assembled, within the limitations imposed, has from its passage, for the purposes intended, full life, force, and virtue. Mr. Jameson, in his work on Constitutional Conventions (4th Ed.) p. 98, c. 103, says: "Besides schedules, there are appended to many Constitutions acts adopted by Constitutions called ordinances. Not all ordinances, however, are so appended, or have any direct relation to the Constitution. They are in their nature resolutions of the bodies adopting them, but taking the name ordinances' to distinguish them from the similar acts of legislative bodies, denominated 'resolutions,' which may be adopted by Houses severally or jointly. Within the scope, of the powers of the convention, ordinances may be valid and effectual according to their terms and purpose. If they are employed to provide for temporary emergencies of the convention, and do not transcend the limits of its powers as defined or employed in the act calling it, they are valid."

The ordinance referred to is authorized by Congress, and is the act of the people of the proposed state, through their representatives, and is binding upon the people of the state; hence, the state. This ordinance is the authority for the election. But for what must the ordinance provide? The enabling act says, "for the election of officers for a full state government," and the officers necessary for a full state government are all of the officers provided for in the Constitution. The word "full" is defined as "containing or having all that can or all that should be admitted; having no empty or vacant space; filled." And this is the sense in which the word was used in section 21. There should not be left out a single officer high or low. Each and all provided for in the Constitution should be elected when the Constitu

tion is submitted to the people. But, says the appellee, the section also provides that "said state government shall remain in abeyance until the state shall be admitted into the Union, and the election for state officers held as provided for in this act." The only election for state officers provided for in this act (the enabling act) is the election at which the Constitution shall be submitted for ratification or rejection. Therefore the language, "until the state is admitted into the Union, and the election for state officers held," must be interpreted as describing two events which are expected to happen in the future, and the one intended to occur second in point of time, first described. Any other interpretation of this language would defer the elec tion of all state officers until after the adoption of the Constitution, which would be in direct conflict with another section of the enabling act. The fallacy of the contention that county officers are not to be elected when the Constitution is voted upon, to my mind, is so apparent that, under all of the the provisions of the enabling act, it would seem that further discussion is unnecessary. First, after the assembling of the constitutional convention and complying with the preliminary requirements of the enabling act, is the duty of forming a Constitution and state government; next, the submission of the Constitution to the people for ratification or rejection, and on the same day the election of all officers provided for in the Constitution; then the action of the President approving, if it conforms to the act of Congress, and the issuing of his proclamation admitting the state into the Union; and, finally, in the language of the latter part of section 21 of the enabling act: "And the officers of the state government formed in pursuance of said Constitution, as provided by said constitutional convention, shall proceed to exercise all the functions of such state officers."

This brings us to a consideration of the powers of the constitutional convention to provide election officers to hold the elections in the new counties of Alfalfa and Major. These counties were created out of a portion of the county of Woods, and to that part of Woods county remaining was added certain townships cut off from Woodward county, and the name Woods county given to it. Both Woods county and Woodward county are organized counties in the territory of Oklahoma. In considering this feature of this case, the fact that Alfalfa and Major counties are located within Oklahoma Territory, and that they are merely creatures of the constitutional convention, and never had any legal existence prior to its convening. should be borne in mind. A majority of my Brethren, speaking through Mr. Justice HAINER, have defined their position upon this point, declaring as the law a rule which is, in my opinion, neither justified from the

necessities of the case nor supported by the enabling act or other statutes of Congress or the territory of Oklahoma. Gladly would I surrender any pride of opinion which I may have in my own personal views of the law of this branch of the controversy, if I were able to reconcile the declarations of the majority op.nion with the plain and positive act of Congress; but, after full consideration, I am forced to reject them as an unwarranted approval of an unauthorized usurpation of authority which is by implication as positively prohibited by Congress as though it had so declared in express words. I fully appreciate the years of earnest effort expended by the people of Oklahoma in obtaining permission from Congress to adopt a Constitution and form a state government. Nor am I unmindful of the public insistence for an opportunity to elect their own officers and have their interests represented in Congress by agents with full power to vote. But important and sacred as are these privileges, they must be brought about pursuant to existing laws, and not in disregard thereof. do not challenge good faith on the part of the convention or of those who drafted the ordinance in question, but, taking it as written. I consider its provisions not as a matter of choice, but as a public duty, required to be performed under the law. A majority of my Brethrer have said, by their votes, that the election ordinance is within the authority conferred by the enabling act. Coming from the highest court of the territory, the decision will doubtless inspire confidence, in the members of the convention and the people generally, regarding the authority to enact the same. But with a full realization of the consequences which may follow upon the pursuance of a course in holding these elections in conflict with the provisions of the enabling act, and entertaining views in confiet wth the judgment of the majority of the court, my own conception of justice compels me to at least declare those views, even though they have been rejected by my Brethren as not the law, and may be disregarded by the parties to the action.

I

In section 3 of the election ordinance adopted by the constitutional convention, it is provided: "In the counties of Adair, Alfalfa [then naming other counties, including Major], the local officers and authorities provided for in the ordinance, shall exercise all the functions and perform all the duties within the limits of such counties, townships and voting precincts in the same manner as is now required by the laws of the territory of Oklahoma for elections therein." In connection with section 3, we will refer briefly to certain of the other provisions found in the ordinance. Section 2 declares that the election of the officers shall be held in accordance with the election laws of the territory of Oklahoma when not in conflict with the enabling act and as supplemented by the

ordinance; that in the counties of Beaver, Caddo, Comanche, Greer, Payne, Roger Mills, and Woodward, the local authorities in said respective counties, and the voting precincts therein, shall exercise their functions and perform their duties as such election officers only within the limits of said counties as defined and described in the Constitution; that in the county of Noble the local authorities, in the exercise of their functions and the performance of their duties as election officers, shall exercise and extend the same to the limits of said county as defined by the Constitution. Section 6 provides that in each of the counties of Greer, Beaver, Woods, Woodward, and Comanche (and any other county in the proposed state similarly situated), as defined and described in the Constitution, on or before the sixth day of June, A. D. 1907. the acting board of county commissioners therein, or a majority thereof, shall subdivide such county or counties into commissioners' districts and townships, and fix election precincts, and designate polling places necessary for the purpose of the election. And then the section provides that, if the commissioners fail to comply with the provisions of the section by a date named, then William H. Murray, as president of the convention, shall appoint three qualified electors in each of such counties to divide such counties into commissioners' districts and townships, and fix election precincts, and designate polling places. Other sections provide that in the event of vacancies in certain county offices they shall be filled by appointment by the Governor; and in the event that he fails or refuses to make such appointment or appointments, they shall be made by William H. Murray, president of the convention. All of these provisions were enacted under the alleged power granted by Congress authorizing the constitutional convention to provide by ordinance for the election of officers for a full state government, and for submitting the Constitution to the people of the proposed state for ratification or rejection.

I shall not stop at this time to quote the laws of Oklahoma pertaining to elections, or the manner in which the officers of the territory, from the highest to the lowest. are appointed or elected. It is sufficient to state, as is universally known, that Oklahoma was organized as a territory in 1890. Since then it has had an election law, which, with the modifications and changes made from time to time by the territorial Legislature, is as complete and satisfactory as will be found in any state. Congress but a short time ago had occasion to examine its provisions, by reason of a contest before that body over the election of a territorial delegate. Anticipating these very elections as a necessary step in securing statehood, it is fair to assume that the members of the lower House, as well as the Senators, familiarized them

selves with our entire law and system of elections. Its provisions having appealed to them as fair and sufficient, as a part of the enabling act it positively declared: "That the election laws of the territory of Oklahoma now in force, as far as applicable and not in conflict with this act, including the penal laws of said territory of Oklahoma relating to elections and illegal voting, are hereby extended to and put in force in said territory until the Legislature of said proposed state shall otherwise provide, and until all persons offending against said laws in the election aforesaid shall have been dealt with in the manner therein provided." This language authorizes no change or modification, by the constitutional convention, of the election laws of the territory of Oklahoma, in so far as their application, within Oklahoma Territory, is concerned. The words "as far as applicable and not inconsistent with this act" refer to the application of the election laws in the Indian Territory. Taking into consideration the plain implication of the language used, the quotation above means that the election laws of the territory of Oklahoma, now in force, shall continue in force in Oklahoma Territory until the Legislature of the proposed state shall change them, and that these same election laws of the territory of Oklahoma, as far as applicable and not inconsistent with this act (the enabling act), are hereby extended to and put in force in said Indian Territory until the Legislature of said proposed state shall otherwise provide. Congress was familiar with conditions in Oklahoma, and declared that for the purposes of these elections they should continue. Congress considered these laws applicable and fully adapted to meet the conditions. No exception was made as to the territory of Oklahoma, save in one instance, which I shall notice later. The continuing in force of these election laws of Oklahoma within this territory not only continued the laws themselves, but also continued all of the machinery and officers of every kind and character provided for in these laws of Oklahoma, except as those laws might possibly be in conflict with the enabling act. This view is so fundamental that reasoning to support it appears unnecessary. However, I find the rule very clearly stated by Chief Justice Burford in a decision by him announced in one of these election cases, wherein he presided in the trial court. Haines v. Murray et al., 91 Pac. 240, and other cases, in the district court of Logan county. The Chief Justice, referring to the language above, said: "I think it cannot be seriously questioned that in adopting the (election) laws of Oklahoma that they adopted with them whatever machinery existed under that law. The law creates certain officers, election officers," etc.

The exception to which I referred a moment ago, with reference to the election laws in Oklahoma, is that part of section 21 of

the enabling act, which provides: "That the constitutional convention may by ordinance provide for the election of officers for a full state government, * and shall constitute the Osage Indian Reservation a separate county * and shall provide rules and regulations and define the manner of conducting the first election for officers in said county." It will be observed from this language that even in this Indian reservation Congress, having declared that the election laws of Oklahoma shall continue in force therein, limited the constitutional convention in providing "rules and regulations and defining the manner of conducting the first election" for officers. As to what Congress meant by the language "rules and regulations and define the manner of conducting the first election," I shall not here express any opinion; but this language used with reference to this unorganized reservation must be limited to it alone, and neither it nor any other language used in the enabling act can be construed to mean a grant of authority for removing public officers elected by the people, or appointed by the proper authority. I have said heretofore that the constitutional convention has the right and power to divide the future state into counties, even though such division may not conform to the county lines as now established in the territory of Oklahoma. And that it also has the right to elect a full complement of officers for each county at the election for the ratification or rejection of the Constitution, and I have also tried to make it plain that these proposed counties can have no existence, in law, and cannot be recognized as political subdivisions of the state, having a present existence so as to oust the officers duly elected or appointed, under the laws of the territory of Oklahoma, from the discharge of any duty imposed by those laws; for not only are the election laws of Oklahoma continued in force until changed by the Legislature of the future state, but the enabling act itself in positive terms provides: "That until 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." These counties proposed by the constitutional convention, whose boundaries are fixed by the Constitution to be submitted to the people, are simply counties in futuro, and the officers provided for in the Constitution can exercise no official duty until after the admission of the state. The election at which the Constitution is to be submitted for ratification or rejection, and at which there shall be elected officers for a full state government, is to be, under the terms of the enabling act, conducted in the usual way under the laws of the territory of Oklahoma; and the constitutional convention cannot confer upon these election officers any powers which they do not now enjoy, or take from them any they now possess. Nor can the convention

limit the exercise of the powers of these county officers within a proposed county composed of less territory than that for which they were elected, or extend their jurisdiction beyond the lines of the county as now organized, in which their duties under the territorial laws are to be discharged, and for which they were chosen.

It is argued, and with some force, that the election laws of the territory of Oklahoma, as they now exist, are not exactly applicable to the conditions in the new counties, as they are proposed to be organized in the state. This may be. And it is possible that the convention, as a necessary incident to electing the officers in these new counties, may have to provide by ordinance to meet the conditions there existing; but, whatever ordinance is passed by the convention, it must be in aid of the law as it now exists, and not in conflict therewith or destructive thereof. Nor has the convention the power to take away from the present election officers in Oklahoma the right to hold these elections, and confer the power to perform their duties on others. The fact that the forming of new counties may present some embarrassment in the holding of the election is a matter of regret, but it is no excuse or justification for ignoring the law. Whatever difficulties are presented by reason of the forming of these new counties are the result of the acts of the convention itself, and for which Congress is in no way responsible. The convention should seek for plans under which it may submit its propositions to the voters under the laws as they exist, and not to make the laws conform to the conditions which it is sought to bring about as a result of the election. Congress authorized the forming of a Constitution. It not only authorized the election of the state officers, but required them to be elected at the election at which the Constitution is submitted to the people. It, within certain limitations, has left the convention free to make the kind of a Constitution it might desire, and to create as few or as many offices as it deemed expedient, but has in effect named the officers of the territory as the agents to discharge this important duty, and made the laws of the territory the rule of conduct.

The election officers of Woods county, as now organized under the territorial laws, should conduct the election within that county, in that part composing Alfalfa county, and in that part composing Major county, as well as in that portion which in the future state will constitute a part of Woods county. Their jurisdiction is in the whole of Woods county as now organized, and no more. These men are still in office. They have not been removed. Nor has their county yet been changed. Should statehood fail, the county organization would continue under the territorial government as before. By virtue of what right can the jurisdiction of these officers, in such a contingency, be temporarily 91 P.-15

suspended, except as to a small part of the county, and then restored if the Constitution should not carry? And again, why should the convention confine the jurisdiction of these county election officers to that part of Woods county, Okl., that will form a part of Woods county in the state, without regard to whether the officer lives in that part that will be Alfalfa, Major, or Woods? Counsel should not forget that these election officers are holding these elections under the provisions of the enabling act as officers of the territory of Oklahoma, for the people of this territory, bound by the oaths prescribed by its laws. And if the convention can remove the county election officers from a part of a county as now organized, it can remove them from exercising any act in connection with the holding of the election in any part of the county for which they have been elected, and extend these same methods to every county in the state, and even take away from the Governor and the Secretary of the territory the power to perform the duties enjoined upon them. The Supreme Court of Pennsylvania and other states have held that this cannot be done. The constitutional convention of Pennsylvania, assembled by virtue of authority of the Legislature, by ordinance appointed five commissioners of election for the city of Philadelphia. An election law was then in force and applicable to that city. The Supreme Court of that state, in positive language, held, in the case of Wells v. Bain, 75 Pa. 39, 15 Am. Rep. 563, that the convention could not prevent the regular election officers from holding such election. The court said: "Now we come to the sixth section [Act 1872 (P. L. 55)], which begins a different subject: "The election to decide for or against the adoption of the new Constitution, or specific amendments, shall be conducted as the general elections of this commonwealth are now by law conducted.' Thus the Legislature said to the convention in these three sections: 'You shall have power to propose your work in three forms. You shall have power to determine the time and the manner in which these propositions shall be submitted. But the election by the citizens shall be conducted as the law itself directs as to general elections.' The sixth section, as to how the election on the propositions submitted shall be conducted is mandatory, and is so for the best of reasons-it is the only legally authorized means of taking the sense of the people upon adoption of the amendments which can bind the whole people. In this way only can a majority of voters, who are not a majority of the people, bind them as the body politic or state. The Legislature intended that the election should be conducted by known officers legally elected, and should be governed by a known system of laws with which the people are familiar, and thereby that they should both know and respect the authority under which the election should be held. No implication can