whenever any matter fell "within the domain of municipal government" or related solely to municipal affairs, such provision of a municipal charter, adopted pursuant to the provisions of Article 18, superseded the general State laws.

The charter provides for the appointment of precinct election officers by the mayor, instead of the county election board, as required by the State laws, the precinct board appointed by the mayor to consist of two judges and two clerks, who shall also act as counters, instead of an inspector, judge and clerk and four counters, as provided by the general election law, the returns to be canvassed by the city clerk, instead of the county election board; also for a ballot which shall not contain any designation of parties, but upon which the names of the candidates for each office appear in alphabetical order.

It is further contended that the charter election law is in conflict with the general election law, in that it does not provide any means for placing upon the ballot the name of a non-partisan candidate. That the election of municipal officers is strictly a municipal affair seems to be sustained by authority. People vs. Hill, 125 Cal. 16, 57 Pac. 669; Socialist Party vs. Uhl, 155 Cal. 776; 103 Pac. 181; Graham vs. Roberts, 200 Mass., 152, 85 N. E. 1009; Ewing vs. Hoblitzelle, 85 Mo .74.

Although the charter provisions as to purely municipal matters may supersede the general state laws, yet such provisions may not supersede the provisions of the Constitution of the State. Section 5, Article 3 of the Constitution provides:

"The Legislature shall enact laws providing for a mandatory primary system, which shall provide for the nomination of all candidates in all elections for State, district, county, and municipal officers, for all political parties, including United States Senators. Provided, however, this provision shall not exclude the right of the people to place on the ballot by petition any non-partisan candidate."

It is insisted by the defendant in error that the peopie of a municipality containing 2,000 people or more, framing a chaster under the provisions of Article 18 of the Constitution, in exercising legislative power within such subdivision, come within the meaning of the term "Legislature” as used in Section 5, Article 3, supra. In this we cannot concur. The legislative body of such a municipality couil not enact laws providing for a mandatory primary system, providing for the nomination of all candidates in all elections

for State, district, county and municipal officers, for all political parties, including United States Senators, for to do so would be to legislate not only upon purely municipal matters, but also upon purely s.ate matters, to-wit: the nomination of all candidates in all elections for state officers.

It is clear to our mind that it is the duty of the Legislature to provide a primary system for the nomination of candidates for all municipalities, including those created under charters framed pursuant to the powers of Sections 3a and 3b of Article 18 of the Constitution. But there appears to be no such provision in the Constitution relating to the election of municipal officers. That being a municipal affair, it was within the power of the people of the municipality to provide laws for the election of such officers and to fix the time and place of such election. Lackey vs. State, supra.

The Second Legislature passed an act "regulating elections in cities and towns; requiring nominations by primaries; prescribing the time for such elections, (Sess. Laws 1909, ch. 16, art. 2, p. 256).

* * * "

It is not essential for the purpose of this case to determine whether the failure to comply with the proviSION of said act as to the nomination of municipal officers rendered the election at which the defendant in error was voted for invalid, for it the election of municipal officers is a municipal matter, then it was permissible under the charter to provide for the election of such officers and for the municipal machinery to hold such elections and the return. and canvassing and certifying of the result. That question can be determined in a direct contest.

The defendant in error has the certificate from the proper municipal officer as to such result, and that is prima facie evidence of his title in this proceeding.

If under this municipal machinery a different qualification was imposed upon voters than that provided under the constitution, that question cannot be raised in this proceeding, but in a proper contest by quo warranto or some direct proceeding such matter can be determined.

It follows that the judgment of the lower court must be affirmed.

TURNER, C. J., and DUNN, J., concur; HAYES and KANE, JJ.. dissent.

R. L. Brown, et al., Plaintiff in Error,

VS.

No. 1514

THE FIRST NAT. BANK OF TEMPLE, OKLA,
Defendant in Error.

(Rendered March 12th, 1912.)

Error from the District Court of Comanche County. J. T. Johnson, trial Judge.

Reversed and Remanded.

1. One partner cannot bind his copartner by any contract not reasonably within the scope of the partnership unless with such copartner's knowledge and assent.

(a) Such knowledge and assent be established by evidence affirmatively showing it or from which it may be clearly inferred.

(b) Where one partner has subcribed the name of the firm to a note payable to a bank, for money to be used for purposes not reasonably within the scope or the partnership, such purpose being then and there known to the officers of the bank, the other partner does not become liable as a matter of law to pay such note by failing to express his dissent when demand of payment is made of him.

(c) The mere fact that a partner, upon being informed that his copartner has given a firm note for his individual debt,does not deny his liability thereon does not,per se, amount in law to ratification or adoption of the note.

(Syllabus by the Court.)

T. B. Orr, Stevens & Myers, for plaintiffs in Error.

OPINION OF THE COURT BY WILLIAMS, J.:
The court instructed the jury as follows:

The fact that a partnership is engaged in a particular trade or business being known, is sufficient notice to third persons of the limitations, which the nature and customs of that trade or business place upon the power of each partner, and third parties dealing with a partner in matters outside the scope of its usual business to charge

the firm therein must show him to have possessed special authority so to act.

Therefore, if you find that the plaintiff bank, or its active managing officers, knew the kind and character of business being carried on by Brown & Montgomery and that advances or lonas by way of overdraft were made to L. O. Montgomery for purpose of purchasing bank stock, oil mill stock, operahouse stock, and furnishing money in endeavoring to secure county seat location, were not within the scope of the busness, and that amounts for said purposes were included in the overdraf, and later in the note sued on, before plaintiff can recover, it must be shown that the defendant, L. O. Montgomery, was authorized to make the said loans or receive said advancements and create the indebtedness accruing therefor, or that the defendant Brown afterwards ratified the acts of L. O. Montgomery, as the term ratified is thereinafter defined."

The defendant (plaintiff in error), R. L. Brown, requested the following instruction:

"The mere fact that a partner, after knowledge that another partner has given a note in the name of the firm in a transaction outside the scope of the partnership business, keeps silent and does not repudiate the act, does not of itself amount in law to a ratification or adoption. Ratification is in the nature of an affirmative act, which in such a case, cannot be established by a mere omission to avow. The partner is not bound, as a matter of law, to deny his liability until he is prosecuted."

This instruction was refused and exception saved. The general charge to the jury does not subsantially include or cover this instruction.

In Reubin v. Cohen, et al., 48 Cal. 545, it is said:

"At the instance of the plaintiff, the Court below instructed the jury that if Sperling was informed of the fact of the giving of these notes to his copartner, Cohen, in the name of the firm, and omitted to repudiate or disaffirm, within a reasonable time, what had been done by Cohen, he will be held to have ratified and adopted what he, Cohen, had done in the firm name.'

The indebtedness for which the notes were given was the indebtedness of Cohen in the first instance, and not that of the copartnership firm of Cohen & Sperling. The instruction, assuming as it does that Spurling did not assent to the transaction at the time the note was delivered, and, of course, that he was not then bound thereby, nevertheless asserts the rule of law to be that, if he was afterward informed of the fact that the firm notes had been so given he would become bound thereby, unless he should thereupon, or within a reasonable time, repudiate or disaffirm them. It may be conceded that his failure to object under such circumstances, would be evidence tending in some degree to show assent upon his part to the giving of the notes, and so the jury were substantially told in the instruction next preceding the one we are now considering. But to say that a mere failure to actively repudiate the transaction amounts per se in point of law, to a ratification or adoption of the notes, unwarranted by recognized principles defining the powers and obligations of copartners."

In Barnard et al. v. The Lapeer and Port Huron Pl'k Road Co., 6 Mich. 274, it is said:

"No rule is better settled than that one partner can not bind his copartner by any contract not within the immediate scope of the partnership, unless with such copartner's knowledge and consent. Each partner is an agent for all the members of the firm, in the transaction of all business of such firm; but as to matters foreign to such business, he is regarded as a stranger. The general business of the firm being that of manufacturing lumber and the ownership of land as incident thereto, the subscription to stock in a corporation, or to articles of association for the creation of one, was not an incident to such partnership. Incidental benefits would not authorize one partner to bind his fellow, and no authority so to bind him is shown.

And the knowledge and assent required to bind the copartner must must be established by evidence affirmatively showing it, or from which it may be clearly inferred. This is sought to be established from the fact