230 Mo. 408 | Mo. | 1910
Lead Opinion
ON MOTION TO DISMISS.
On July 11, 1910, Mr. Walter S. Dickey, through his attorneys, asked leave to file-a motion to dismiss this proceeding. This leave, was granted, and the motion to dismiss was, in accordance with the directions of this court, duly filed by the clerk.
We have given to this motion, as well as the suggestions in support of it, our most careful consideration. In our opinion this court has jurisdiction of this proceeding.
Counsel for Mr. Dickey urge," first, that this is a collusive or moot case and is not founded upon any real or existing controversy between the relator, John W. Halliburton, and the respondent, Cornelius Roach. It is sufficient upon that proposition to say that Mr. Halliburton is a citizen of this State and a qualified voter, and notwithstanding he may not have signed the petitions as presented by Mr. Dickey to the Secretary of State, yet as a citizen and a voter he has as much interest and the same right- to institute this proceeding as any citizen who may have signed such petitions. As to this proceeding being a moot case there is nothing upon the face of the proceeding to indicate such fact, and the motion that alleges that it is a moot case has not been sworn to by either Mr. Dickey or
Second. As heretofore indicated, in our opinion the relator, Mr. Halliburton, in this proceeding, being a qualified voter, has such an interest as a citizen of this State as to authorize him to maintain this cause.
Third. Under the Constitution of this State, article 6, section 3, this court has original jurisdiction in mandamus proceedings to compel administrative State officers to perform administrative and ministerial acts, and the mere fact that the statute (Laws 1909, pages 554 to 564), provides for an application by any citizen to the Cole County Circuit Court, falls far short of depriving this court of the jurisdiction conferred upon it by the Constitution of this State. In fact it was unnecessary for the Legislature to make the provision that any citizen might maintain a suit by mandamus in the Cole County Circuit Court, for the reason that that could he done in the absence of any statute; the Secretary of State residing here, the Cole County Circuit Court would have jurisdiction of a proceeding of that character.
Entertaining these views the motion will be overruled ; however this being a question of such vital importance we most cheerfully give our consent to counsel for Mr. Dickey to file briefs and make oral argument
ON MERITS.
This is an original proceeding in this court in which it is sought by the relator, John W. Halliburton, to have this court issue its peremptory writ of mandamus against the Secretary of State, the_ respondent, compelling him to file certain petitions presented to him, submitting an amendment to the Constitution at the next general election in this State.
The petition alleges that the relator, John W. Halliburton, is a resident taxpaying citizen of Jasper county and a qualified voter in the present Twenty-Eighth Senatorial District of Missouri; and that respondent, Cornelius Roach, is the Secretary of State of the State of Missouri. It is also alleged in the petition that on July 7, 1910, Walter S. Dickey and Rush C. Lake presented a large number of petitions for a proposed amendment to the Constitution, to be voted upon at the next general election, in pursuance of the present initiative amendment to the Constitution. It is alleged in the petition that there was the necessary number of petitioners from filie various portions of the State to authorize the filing of the petitions.
The initiative petitions as filed by Walter S. Dickey and Rush C. Lake, in part are as follows:
“To the Honorable Cornelius Roach, Secretary of the State of Missouri:
“We, the undersigned, citizens and legal voters of the State of Missouri, and county of —— --, respectfully demand that the following proposed amendment to the Constitution of Missouri, shall 'be submitted to the legal voters of the State of Missouri, for their approval or rejection, at the regular general election to be held on the 8th day of November, A. D.*424 1910, and each for himself says: I have personally signed this petition; I am a legal voter of the State of Missouri and of the county of-- — ; my residence and postoffice are correctly written after my name.” (Here follow signatures).
The proposed amendment, leaving out the description and boundaries of the proposed new senatorial districts sought to he created thereby, reads:
' “Proposed Amendment to the Constitution of Missouri.
“To he submitted to the legal voters of the State of Missouri for their approval or rejection at the regular general election to he held on the Tuesday next following the first Monday in November, A. D. 1910, providing for striking out and annulling section 11 of article 4 of the Constitution of Missouri, and enacting and adopting a new section, to he known as section 11 of article 4, which is in words and figures as follows:
‘‘ Section 11, Article 4. The senatorial districts of the State shall hereafter he constituted and numbered as follows:......
“This division of the State into senatorial districts shall continue until the United States census of 1920 shall have been taken and the result thereof as to this State ascertained, when the districts shall, by a law enacted by the people or passed by the General Assembly, he revised and adjusted on the basis of that census, and every ten years thereafter, upon the basis of the United States census, the districts shall he revised and adjusted by a law enacted by the people or passed by the General Assembly.”
By appropriate averments it is charged in the petition by the relator that the petitions as presented by Mr. Dickey and Mr. Lake, as herein indicated, were presented to the Secretary of State with the request that they be filed in accordance with the statute authorizing the filing, and that the Secretary of State refused to file the same.
Respondent, Cornelius Roach,” through the Attorney-General, has filed a return to the alternative writ-awarded by this court, in which return numerous grounds are assigned in support of the action of the Secretary of State why said petitions by the initiative tendered by Mr. Dickey and Mr.-Lake should not be filed. We do not deem it essential to encumber this statement hy setting out in detail the different reasons assigned by the respondent in support of his action in declining to file the petitions. The grounds assigned in the return of the respondent will be given such' attention during the course of the opinion as their importance demands and merits.
Upon the invitation of the relator, and with the consent given by this court, counsel for Messrs. Dickey and Lake have joined with the relator in the presentation of the questions involved in this proceeding, and •have filed a motion for judgment upon the pleadings.
This sufficiently indicates the nature and character of this controversy to enable us to determine the legal propositions disclosed by the record before us.
OPINION.
The record before us in this proceeding instituted by the relator discloses two controlling propositions which are submitted-to us for consideration.
Second: Under the provisions of the initiative amendment to the Constitution and the legislation enacted by the General Assembly of this State, approved June 12, 1909, can the respondent, the Secretary of State, if the subject-matter as embraced in the petitions does not fall within the purview of the initiative and referendum amendment to the Constitution, as well as the legislation enacted for the purpose of carrying out the provisions of such constitutional amendment, decline to accept and file the petitions as presented by Messrs. Dickey and Lake? In other words, has the Secretary of State a discretion where the subject-matter of the petitions is foreign to what was contemplated by the initiative and referendum amendment to decline to file such petitions?
These are the propositions with which this court is confronted. The questions presented are purely questions of law and the rules applicable to the interpretation of constitutional and statutory provisions should not and will not be extended or relaxed for the purpose of reaching a conclusion either making the writ peremptory or absolutely denying it; but the correct solution of the important propositions which are presented for our consideration must be sought alone by the fair, impartial and reasonable interpretation of the initiative provisions of the Constitution and the
I.
Directing onr attention to the first proposition in reference to the nature and character of the petitions as presented to the Secretary of State for acceptance and filing by Messrs. Dickey and Lake, and as to whether or not, upon the face of such petitions, an amendment to the Constitution of this State is sought to be voted upon by the people at the next general election, it is well to keep in mind the initiative and referendum provision of the Constitution adopted by the people in 1908, as well as the legislation passed by the General Assembly by an act approved June 12, 1909, providing for the carrying out of the provisions of such initiative amendment.
Again, in the correct solution of this proposition the Constitution and law of this State as it exists now must not be overlooked, for the reason that it is the changing of the Constitution and law as it now exists applicable to the division of this State into senatorial districts that was uppermost in the minds of those-who presented for acceptance and filing the petitions to the respondent.
Section 7 of Article 4 of the Constitution, which is now in force, provides:- “Senators and representatives shall be chosen according to the rule of apportionment established in this Constitution, until the next decennial census by the United States shall have been taken, and the result thereof as to this State ascertained, when the apportionment shall be revised and adjusted on the basis of that census, and every ten years thereafter upon the basis of the United States census; or if such census be not taken, or is delayed, then on the basis of a State census; such apportionment to be made at the first session of the General Assembly after each such census: Provided, that if
It is now the settled law of this State that the senatorial districts have been divided and their boundaries specifically defined in accordance with the provisions ■ of the Constitution last above cited, and the people of this State fully recognized the validity of such law, and in the election of their senators conformed to its provisions.
This leads to the inquiry as to the course to be pursued in order to change the manner and method of dividing the senatorial districts of this State. Directing our attention to the initiative amendment to the Constitution adopted at the election held November 3, 1908, we find that the people of this State ratified an amendment to the Constitution which provided a different method by which amendments to the Constitution might be voted upon and by which laws might be enacted. This amendment to the Constitution substantially provides that the legislative authority of the State shall be vested in a legislative assembly, consisting of a Senate and House of Representatives, but the people reserve to themselves power to propose any' measure, either laws or amendments to the Constitution, and to enact or reject the same at the polls, independent of the legislative assembly, and
This brings us to the consideration of the petitions as presented for acceptance and filing to the Secretary of State. While these petitions are named and called a “proposed amendment to the Constitution of Missouri,” yet we take it that the allegations of the petitions and what is shown upon the face of them must finally determine their nature and character, that is, whether or not it is in fact an amendment to the Constitution or is purely a legislative act. The petitions in substance suggest a proposed amendment to the Constitution of Missouri “to be submitted to the legal voters of the State of Missouri for their approval or rejection,
That this proposed constitutional amendment is but a purely legislative enactment, in our opinion, is too plain for argument, and will only require a moment’s consideration to convince’ the most skeptical upon that subject. In the first place these petitions contain the remarkable provision “providing for striking out and annulling section 11 of article 4 of the Constitution of Missouri.” It is but common knowledge that section 11 of article 4 of the Constitution of Missouri was self-terminating and has had no existence since the year 1881. It was embraced in the Constitution, as is well known, for a temporary purpose, and its existence was limited until appropriate provisions could be made for the organization of the State into proper senatorial districts. Then follows what is
Manifestly -before the senatorial districts can be divided in the manner as suggested in the so-called proposed constitutional amendment, section 7 of article 4 of the Constitution of this State must be amended and so changed as to authorize, by the initiative, the people at the polls to divide the senatorial districts. Section 7 of article 4 of the Constitution, in addition to providing how the senatorial districts shall be divided, expressly provides that the apportionment shall be revised and adjusted every ten years upon the basis of th$ United States census, or if such census be not taken, or is delayed, then on the basis of a State census; such apportionment to be made at the first session of the General Assembly after each such census. Clearly it will not be seriously contended that the senatorial districts might be altered and changed in the manner
The line of demarkation between a constitutional amendment and a purely legislative act is well defined. That eminent author, Mr. Story, in his 1st volume, section 339', thus gives expression to his views as to the meaning of a Constitution.’ It is there said : “A Con
In Livermore v. Waite, 102 Cal. l. c. 118, the meaning of the term “constitution” was clearly pointed out, and it was there said: “The very term ‘constitution’ implies an instrument of a permanent and abiding nature, and the provisions contained therein for its revision indicate the will of the people that the underlying principles upon which it rests, as well as the substantial entirety of the instrument, shall be of a' like permanent and abiding nature.”
The distinction between constitutional provisions and legislative acts is distinctly and clearly recognized by the initiative and referendum amendment to the ■ Constitution, for it is there that we find express provisions for the proposal and adoption of legislative measures as well as amendments to the Constitution. The distinction between legislative acts and constitutional provisions or amendments to the Constitution is clearly emphasized when we consider their force and effect after being adopted through the initiative, as provided by the Constitution. A legislative act, as distinguished from a constitutional amendment which
Manifestly these allegations mark this so-called constitutional amendment as purely a legislative act. The life of this so-called constitutional amendment is limited to a comparatively short period, that is to say, until 1920, and then the power to revise and adjust the districts on the basis of the United States census of 1920 is again restored to the Legislature or the people under the initiative amendment. In'other words, the constitutional provision now in force, section 7, of article 4, delegating the power to divide and define the senatorial districts by this so-called proposed constitutional amendment, is completely repealed and annulled without the faintest suggestion- or intimation in this so-called proposed amendment that the present Constitution, now in full force, is to be amended in any way or repealed or annulled. This clearly indicates the temporary character of the measure proposed, as well as its purpose to get rid of the present constitutional provision by the enactment of a law, called a constitutional amendment. This cannot be done without a compliance with the initiative amendment which expressly requires the full text of the amendment to the Constitution to be included in the petition. "We, therefore, repeat that the petitions in this case do not propose, within the purview- of the Constitution and laws of this State, an amendment to the Constitution.
Obviously in determining the nature and character of the measure proposed in the petitions presented to the respondent we must look to the subject-matter with which they deal. The mere calling it an amendment to the Constitution, unless the subject-matter verifies the correctness of that name, is not binding either upon the respondent or upon this court. As heretofore indicated, a mere play upon words and the providing for
As heretofore stated, section 11 of article 4 was inserted in the Constitution of. 1875 for purely a temporary purpose. It was inserted to meet a temporary necessity and provide a temporary arrangement until the legislative measure provided by the Constitution could be placed in operation and make provision for the accomplishment of the purpose especially assigned to it upon the subject of forming the senatorial districts. The fact that section 11 of article 4 was placed in the Constitution of 1875 for a temporary purpose and that such purpose was clearly indicated by the makers of the Constitution,- emphasizes the view that the makers of the Constitution fully recognized the legislative nature of the act of redistricting which from necessity had to be incorporated in the Constitution. The life of this legislative section was limited to the time when legislative action could be taken in pursuance of a plan and method for dividing the senatorial districts in pursuance of a permanent provision of the Constitution which is in force at the present time.
The rules and principles applicable to the submission of constitutional amendments to the voters of .this State are applicable alike to amendments proposed to the Constitution under the initiative and referendum amendment or amendments to the Constitution proposed by the General Assembly of this State. Whichever course is pursued in submitting the amendment it must in fact be an amendment to the Constitution. If submitted through the initiative, manifestly that provision contained in the initiative and referendum amendment that “the petition shall include the full text of the measure so proposed,” must be complied with. In other words, if it is truly an
As heretofore stated we have in force at the present time, section 7 of article 4 of the Constitution of this State prescribing the plan and method of redistricting the senatorial districts. If the contentions of learned counsel associated with the relator in this proceeding are to be maintained then the result of the proposed constitutional amendment must be to- repeal section 7 of article 4 of the Constitution of this State, as well as dislodge the power delegated by such provision of the Constitution to the General Assembly to make the division of senatorial districts in this State. This manifestly is the purpose sought, yet we have what is denominated a constitutional amendment that makes no reference whatever to any change or alteration in the provision of the. Constitution which is in force now and which specifically treats of the subject with which the so-called proposed constitutional amendment deals. If this is the purpose, and beyond dispute it is, then in our opinion it must logically follow that the so-called proposed constitutional amendment is not an amendment to the Constitution within the purview of the provisions of the initiative and referendum provision of the Constitution, and deals with a subject that is entirely foreign to the subject of an amendment to the provision of the Constitution which treats of the matter of dividing the senatorial districts in this State.
If the petitioners or those presenting the petitions to tbe respondent desire to change the method of redistricting this State into senatorial districts under and through the provisions of the initiative and refer
We are unwilling to give our assent to the contention that these petitions should have been accepted and filed, whether or not they were applicable to a subject or a matter contemplated by the initiative and referendum.
II.
This brings us to the consideration of the second proposition, that is, can the respondent, the Secretary of State, under the provisions of the initiative amendment to the Constitution and the legislation enacted by the G-eneral Assembly of this State, approved June 12, 1909, if the subject-matter as embraced in the petitions does not fall within the purview of the initiative and referendum amendment to the Constitution, as well as the legislation enacted for the purpose of carrying out the provisions of such constitutional amendment, decline to accept and file the petitions as presented by Messrs. Dickey and Lake? In other words, has the Secretary of State a discretion, where the subject-matter of the petitions is foreign to what was contemplated by the initiative and referendum amendment, to decline to file such petitions?
Directing our attention to this proposition, it is sufficient to say that we have fully indicated our views in the first paragraph of this opinion that the petitions as presented to the respondent, Secretary of State, for acceptance and filing, by Mr. Walter S. Dickey, were not in fact the presentation of a petition by and through the initiative amendment to the Constitution of a proposed amendment to the Constitution, and that such petitions under the guise of presenting a constitutional amendment in fact simply presented a legislative act. Hence, in our opinion, the petitions pre
Our, conclusions upon this proposition, to which we have heretofore given expression, are not based upon the idea that has been suggested in this proceeding that the Secretary of State can pass upon-the constitutionality' or unconstitutionality of certain legislation, but upon the broad ground that the measure as proposed is in fact and in truth not a constitutional amendment and the full text of a proposed measure which can in any way be construed to be a constitutional amendment is not, as expressly provided by the initiative and referendum amendment, embraced or included in the petitions as presented to the respondent. That the legal sufficiency of the petitions as presented to the Secretary of State is under the supervision of the courts dealing with the subject is fully recognized by the provisions of section 4 of the Act of the General Assembly concerning the filing of petitions, approved June'12, 1909. This section provides: “If the Secretary of State shall refuse to accept and file
It does not furnish a satisfactory answer to this proposition to say that the term “legal sufficiency” of the petition, as embraced in section 4, above quoted, is to be limited alone to the sufficiency of the number of signers to the petitions and their qualifications to sign; its legal sufficiency must be determined by the entire petition. In fact it is manifest that the initiative and referendum amendment expressly requires that the full text of the measure shall be included in the petition, with the view that the signers of the petition may have full knowledge of what they are signing and that the Secretary of State upon the presentation of the petition may determine whether or not the measure embraced in the petition is such a measure as falls within the purview of and.is contemplated by the initiative and referendum amendment. The provisions of section 4 can only be construed as meaning what the plain terms of the statute indicate. The statute itself in no way undertakes to limit the application
We have implicit confidence in the intelligence of the people of this State and are unable to reach the conclusion that, when they adopted the initiative and referendum amendment in 1908 as a part of the organic law of this State, they contemplated that petitions might be presented upon any and all subjects regardless of whether or not they fall within the class of subjects contemplated by the initiative amendment, such as in fact would constitute constitutional amendments and laws desired to be enacted through the initiative and referendum.
There is no controversy in this proceeding as to the validity of the initiative and referendum amendment to the Constitution, but we are unwilling to say that the office of Secretary of State shall be made the dumping ground of petitions of every nature and character which in fact do not fall within the purview of the initiative amendment; nor was it ever contemplated by the people that such petitions should be filed when such amendment to the Constitution was adopted and ratified.
As stated in the first paragraph of this opinión it will not answer satisfactorily the requirements of the law to merely name a proposition a constitutional amendment. Its nature and character must be determined by the subject-matter with which the petition deals.
We are of the opinion,- as is expressly stated by the statute, that the legal sufficiency of the petitions presented are matters subject to review by the courts having jurisdiction of the questions. It was conceded in oral argument by learned counsel presenting this
In reaching the conclusions upon the propositions as discussed in the first and second paragraphs of this opinion we are not unmindful of the authorities to which our attention has been directed hy learned counsel for relator. We have carefully considered all of the citations, hut limiting this opinion within reasonable hounds prevents giving expression to our full review of the authorities cited.’ It is sufficient to say that, after a full and careful consideration of all the authorities cited hy learned counsel which in any way tend to support their contentions, the constitutional provisions and the laws with which the court in the cases •cited were dealing, clearly distinguish them from the case at bar; therefore, they furnish no support to the contentions so earnestly urged hy the learned counsel upon the propositions involving the interpretation of the initiative and referendum amendment to the Constitution of this State and the Act of the G-oneral Assembly approved June 12, 1909, which was passed in aid of carrying out the provisions of the initiative and referendum amendment. A careful analysis of the authorities cited by counsel for relator clearly demonstrate that they are entirely dissimilar to the propositions with which we are confronted.
If hy calling a measure in a petition filed with the Secretary of State a proposal for a constitutional amendment, regardless of whether or not the subject-matter proposed is entirely foreign to the subject of an amendment to the Constitution, is all that is required to deprive the Secretary of State of the authority of de
"We have given expression to our views upon the two leading and controlling propositions disclosed by the record in this proceeding, which results in the conclusion that the respondent, for the reasons herein indicated, properly declined to file the petitions as presented by Mr. Dickey, and that the peremptory writ of mandamus should be denied and the alternative writ quashed, and it is so ordered.
Concurrence Opinion
SEPARATE CONCURRING OPINION.
I. I fully concur in all that Pox, C. J., has written in this ease. The points made by him are unanswerable, but in the argument and in the briefs another point was raised upon which I have well defined views. With these views I feel that I would be remiss in duty did I not mention them, and this is the reason for a separate concurring opinion. The opinion written by the Chief Justice is sufficient to dispose of the case, but in my judgment does not fully cover the point I have in mind. By counsel for Mr. Dickey it was contended in brief and argument that under the initiative and referendum provision in our Constitution the Secretary of State was a mere cogwheel in the legislative department. That under such circumstances this court could not interfere with the acts of a co-ordinate branch of the government. In this the relator argues too much. We think that his position is untenable, and his idea of the status of the
If the counsel for Mr. Dickey earnestly believe that Roach, the respondent, is a cog-wheel in the legislative department, then their appearance in this court was uncalled for and detrimental to their own interests. If we conclude that he performed a duty otherwise than the usual duties imposed upon him concerning elections, and as a ministerial officer, then his act in refusing to file the petitions is final in this, as well as all future cases. Such was never the intent of the people when they adopted the initiative and referendum amendment in 1908, and such was not the construction
II. The Act of 1909, Laws 1909, p. 554, is a clear legislative declaration of the character of the duties of the Secretary of State under the Initiative and Defer endum Amendment. The amendment itself sufficiently declares the character of his duties. But take the legislative construction first. The constitutional amendment provides that the petition, both for the initiative and the referendum, shall be filed with the Secretary of State. Section 4 of the Act of 1909 carrying out this constitutional mandate, provides that if the Secretary of State shall refuse to accept and file such petitions “any citizen may apply, within ten days after such refusal, to the circuit court for a writ of mandamus to compel him so to do.” This statutory provision, however, as indicated in the opinion on the motion to dismiss, does not deprive this court of its constitutional power to issue writs of mandamus in these cases. Such was conceded by leading counsel for Mr. Dickey. Further on it is provided that if the court shall find “that any petition filed is not legally sufficient, the court may enjoin the Secretary of State and all other officers” from placing the measure upon the official ballot. It thus appears that the Legislature never thought that the Secretary of State was beyond the reach of the courts. This Act of 1909 very properly recognizes that the acts of the Secretary of State are ministerial, with some discretion to be exercised by him. The Legislature clearly had no idea that the Secretary of State was a part of the legislative department of government, and therefore above and beyond the courts. This section also says that if the court' decides that the petition “is legally sufficient” then the Secretary of State shall be directed to file the same, but if “not legally sufficient” the court shall enjoin the Secretary of State and all other officers from placing the same upon the official
It is clear that the referendum power may be put in motion by either the Secretary of State or the Legislature, but it will be observed that certain'kinds of laws cannot be referred. Does not this contemplate that the Secretary of State shall examine the petitions and see that the petition is sufficient under the Constitution and laws? Suppose a petition for a reference of the lawmaking appropriation for the current expenses should be presented to the Secretary of State, is it to be said that he could not refuse to file such a petition?' Is there not a power there for him to judge as to the sufficiency of the petitions under the exceptions in the Constitution itself? The same applies to laws as to the public peace, health and public institutions. Are these laws. to be suspended until action by the people or has the Secretary of State some discretion? Clearly the latter. The legal sufficiency of the petition is determined from an examination of the petition and the attached measure, which is a part thereof. An examination of the law and the Constitution forces me to the conclusion that the functions of the Secretary are those of a ministerial officer, with the usual discretions lodged in such officer, and not those of a cog-wheel in the legislative department. As above stated, and as shown by the cases cited, the abuse of discretion can be reached by the courts. I therefore have no doubt that this court is fully possessed of jurisdiction, and that
Dissenting Opinion
DISSENTING OPINION.
Entertaining the views I do of this proceeding, in my judgment it would be improper for me, at this time, to express an opinion as to the merits of the case.
I am unable to agree with our learned Chief Justice and other of my associates as to the powers and duties of the Secretary of State in the premises. In my opinion the design of the Legislature, in requiring the petitions of the voters to be filed with the Secretary of State, was simply to make him the custodian of the petitions and .other proceedings in initiative and referendum legislation, in the same manner as he is now the custodian of all the proceedings leading up to legislation to be enacted by the General Assembly of the State; and the question of their validity, as well as all laws enacted by the people in pursuance thereof, is no more addressed to the courts, until after their enactment, than are the proposed enactments of the Legislature. It is conceded by all that a proposed bill, however offensive it may be to the organic law of the State, pending in the Legislature, cannot be controlled by the courts prior to its enactment, for the obvious reasons, first, because the courts have no authority or jurisdiction over the Legislature; and, second, because the bill may neve„r receive the sanction of that lawmaking power. And, in my opinion, the same is true of the initiative and referendum. The courts have no power or jurisdiction to control the action of the sovereign people in the enactment of laws; and they may re
The mere fact that the Initiative and- Referendum Act provides that, in case the Secretary of State should réfuse to file the petitions mentioned therein, etc., is nó authority for holding that he possesses a judicial or discretionary power to pass upon their validity. In my opinion that provision of the act was inserted not for the purpose of vesting that power in him, but for the purpose of making it clear that he had no such power and could be compelled by the courts to file the petitions regardless of his opinion of their validity; otherwise, that provision of the act is meaningless, for the reason the courts already possessed the power, under the general laws of the State, to control the discretionary powers of the Secretary of State whenever he abused or unwisely exercised that discretion.
Since the adoption of the Initiative and Referendum Act there are two lawmaking powers in this State, namely, the people themselves and the Legislature ; and the courts have no more power to control the action of the former than they have to control the action of the latter.
In my opinion it would be just as appropriate to pass upon the validity of or to construe a will when presented for probate as it would be to pass upon the validity of -a law or any of its preliminary steps prior to its enactment.
I believe this proceeding is premature, and therefore dissent from the conclusion reached by my asso
Rehearing
ON MOTION FOR REHEARING.
There is nothing new in the motion for rehearing in this case, with one exception. It goes over the questions argued at length by counsel in oral argument and in brief on file, all of which were fully gone over and considered by the court in the preparation of the opinions herein. The suggestions in support of the motion do urge, contrary to the argument of the distinguished counsel who- closed the case for relator, that they never claimed that the Secretary of State was other than a ministerial officer. The argument was public and the opinion properly quoted counsel. In fact the cases relied upon were along the line that the Secretary of State was a part of-the Legislature. There is, as above indicated,' hut one new subject. The suggestions, for what purpose we know not, urge that if this proposed amendment is in fact- not an amendment hut a legislative act, then the present proposed Prohibition Amendment- is fatally defective. The proposed Prohibition Amendment has nothing to do with this case; no one has questioned the validity of that amendment; it is not before the court; however, it may be added that the question of prohibition is a subject-matter for amendment to the Constitution, as well as a subject-matter for the statutes, and we apprehend that possibly those interested have seen to it that the proposed measure was constitutional in character rather than legislative. In other words, the sale of liquor may be regulated permanently or temporarily. Where the sale is prohibited by law, the law passed by one Legislature may be repealed by the next. This in one sense gives the temporary or legislative, character. .When prohibited by the Constitution or organic law, it has a degree of permanency. It prohibits»
Not so • with the alleged amendment now before us. Its temporary character is written upon its face. In fact, as stated in the opinions, it is not and cannot be construed as a constitutional amendment.
This suggestion about the proposed Prohibition Amendment being the only new matter, the motion for rehearing should be and is overruled.
