Frantz v. Autry
| Citation | 1907 OK 65,91 P. 193,18 Okla. 561 |
| Parties | FRANK FRANTZ, W. H. MURRAY, JOHN M. YOUNG, C. I. OVERSTREET, C. H. CHOWNING, C. M. DELZELL, M. R. MANSFIELD, CHARLES BOWMAN, J. C. MAJOR, I. J. CORWIN, AND CHARLES B. POWELL v. G. E. AUTRY |
| Decision Date | 25 June 1907 |
| Court | Supreme Court of Oklahoma |
¶0 1. CONSTITUTION--Defined. A constitution is the written instrument by which the fundamental powers of the 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.
2. CONSTITUTIONAL CONVENTION--Powers of. The constitutional convention is vested with the powers, and charged with the duty and responsibility of forming a constitution and state government; and in the performance of such duties it exercises legislative powers and functions.
3. SAME--Same--Limitations. The convention has, and can exercise plenary powers, subject to the limitations and restrictions that the constitution shall be republican in form, that it shall not be repugnant to the constitution of the United States and the principles of the Declaration of Independence, that no distinction shall be made on account of race or color, and that the convention shall by ordinance irrevocable accept all the terms and conditions In the enabling act.
4. SAME--Same--Powers to Form Counties. The power vested in the convention to form a state government clearly implies the power to create and define all the counties within the limits of the proposed state, the only limitation upon the convention in this respect being that the Osage Indian Reservation shall remain a separate county until the lands therein are allotted in severalty, and until changed by the legislature of the state.
5. COUNTY--Defined. A county is one of the territorial divisions of the state created for public and political purposes connected with the administration of the state government.
6. OFFICERS--Defined under Terms of Enabling Act. Officers for a full state government, under the terms of the enabling act, include not only state officers whose powers and duties are coextensive with the limits of the state, but include all the officers provided for in the constitution, from the highest to the lowest, whose duties are in any manner connected with the administration of the state government.
7. CONSTITUTIONAL CONVENTION--Power of--Elections. Congress by the express terms of the enabling act, conferred the power and authority upon the convention to pass appropriate ordinances for submitting the constitution to the people for ratification or rejection at an election to be held at a time fixed in said ordinance.
8. ORDINANCE--Defined. An ordinance, as used in this act, means a law which is essential to carrying into effect merely the objects for which the convention was created. Such an ordinance, when once adopted by the convention, has the force and effect of law.
9. COURT OF EQUITY--Powers of--Jurisdiction as regards Constitutional Convention. A court of equity has no power or jurisdiction to restrain or enjoin the constitutional convention, its officers or delegates from exercising any of the rights, powers, and obligations confided to it by congress or the people; nor can the powers of the court be invoked to restrain or enjoin the submission of the constitution or any proposition contained therein to a vote or the people in advance of its adoption and ratification by the people and its approval by the President of the United States, on the ground that the proposed constitution or any of its provisions is unconstitutional, or that the convention acted in excess of its lawful powers.
10. CONSTITUTIONAL LAW--Power of Congress--Delegated to President. The constitution, of the United States guarantees to every state a republican form of government and power to determine whether the constitution is republican in form is primarily a legislative power, and resides in congress; but this power was delegated by congress to the President of the United States, and such question is not subject to judicial cognizance.
STATEMENT OF FACTS.
On June 16, 1906, the congress of the United States passed an act entitled "An Act to Enable the People of Oklahoma and of the Indian Territory to Form a Constitution and State Government and be Admitted into the Union on an equal footing with the Original States," U.S. Stats. L. 59th Congress, chap. 3335.
Under and in conformity with the provisions of this act, members of the constitutional convention were elected, and the convention was duly organized, W. H. Murray being elected its president and John M. Young its secretary.
Thereupon the convention proceeded to the forming of a constitution and state government, and an ordinance for the submission of the same to the qualified voters of the proposed state of Oklahoma for ratification or rejection, August 6, 1907, being the date fixed by said ordinance for the holding of such election, which ordinance also provided for the election of all state, district, county, and township officers, including the members of the legislature and five representatives to congress.
It was also provided that within twenty days after the adoption of such constitution and ordinance by the constitutional convention, which was done on April 22, 1907, the governor of Oklahoma should issue a proclamation calling an election for the sixth day of August, 1907, in the manner prescribed by said ordinance; and that if the governor should fail or neglect to call such election, then the president of the constitutional convention was authorized to issue such proclamation.
Woods and Woodward counties are organized and existing counties of the Territory of Oklahoma, and have been such since the opening of the Cherokee Outlet to settlement in 1893, each of said counties having a full complement of county, township, and city officers. It is proposed by the constitutional convention by one of the provisions of the constitution, to divide the territory which has heretofore composed Woods county into three parts, a portion of the eastern part of said county being designated and established as Alfalfa county, a portion of the southern part as Major county, and the remainder of said county of Woods, together with several congressional townships taken from Woodward county, is designated as Woods county. This action of the convention provides for the establishment of two entirely new counties, to wit, Alfalfa and Major, which do not, at the present time, exist as counties in the Territory of Oklahoma.
By the terms and provisions of the election ordinance, three persons are named and appointed as county commissioners, and one person as county clerk, for each of said Alfalfa and Major counties. The counties are divided into municipal townships and commissioners' districts, to conform to such divisions in the other counties of Oklahoma, and it is further provided in said ordinance that:
"Said county commissioners shall on or before the 8th day of June, A. D. 1907, divide or designate the townships of their respective counties into election precincts and establish the boundaries of the same, and shall designate a polling place in each precinct, and appoint all necessary inspectors of election in the several precincts, whose duties shall be the same as inspectors of election under the laws of the Territory of Oklahoma, and shall also perform all other duties required to be done or performed by the boards of county commissioners pertaining to elections under the laws of the Territory of Oklahoma for elections therein, and shall perform all other duties or acts necessary to the conduct of said elections."
This action was commenced in the district court of Woods county by G. E. Autry, a taxpayer and member of the board of county commissioners of said county, against Frank Frantz, governor of Oklahoma, and W. H. Murray, president of the constitutional convention, John M. Young, secretary thereof, and the other defendants as the said designated county commissioners and county clerks of the counties of Alfalfa and Major, to enjoin the said Frank Frantz, W. H. Murray, and John M. Young from issuing or publishing any proclamation in which said proclamation it is proposed to submit to the electors of the proposed state of Oklahoma, either as a part of the proposed constitution or as a separate ordinance, any clause or provision dividing or purporting to divide Woods county, or changing or in anywise interfering with any township or precinct therein, and to enjoin and restrain the said C. I. Overstreet, C. H. Chowning, C. M. Delzell, M. R. Mansfield, Charles Bowman, J. C. Major, I. J. Corwin and Charles B. Powell from in anywise interfering with or usurping or attempting to usurp any of the duties of the county commissioners or county clerk, or any or either of them, of the county of Woods, in or about the said proposed election or any of the preparations therefor, at or in any part of the territory of the county of Woods as now described and existing, and from in anywise acting or attempting to act in any capacity or to any extent in any election to be held in the said pretended counties of Alfalfa and Major, or either of them.
In the absence of the district judge from the county, application was presented to the probate judge of Woods county, and a temporary order of injunction was granted as prayed for in the plaintiff's petition.
Defendants in the court below, appellants here, interposed a demurrer to the petition, for and upon the grounds that the plaintiff had no legal capacity to sue; that the court had no jurisdiction of the subject-matter of the action; and that the petition did not state facts sufficient to constitute a cause of action. At the same time a motion to dissolve the temporary injunction was filed, for the reasons and upon the grounds above stated, and in addition thereto alleging that the defendants and each of them are only attempting to...
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