State ex rel. Byerley v. State Board of Canvassers

172 N.W. 80, 44 N.D. 126, 1919 N.D. LEXIS 195

• Court: North Dakota Supreme Court
• Decided: January 31, 1919
• Status: Published

Opinions

Bikdzell, J.:

Subdivision 2 of § 202 of the Constitution of North Dakota provides for amending the - Constitution by the process known as the initiative. At the last general election certain amendments, for which petitions had been previously circulated, were referred to the electors of the state in accordance with the provisions of this section. At the election some of the amendments, though receiving a clear majority of all the votes cast for and against them, did not receive the affirmative votes of a majority of all the electors participating at the general election. The Board of Canvassers, acting under the authority of § 1025, Comp. Laws 1913, canvassed the votes cast and determined the result by certifying the number of votes cast for and against each amendment separately, and, by the majority of the board, by certifying that the amendments had been carried and adopted by the voters. The relators in this action apply for a writ of cer-tiorari directed to the defendants, the Board of Canvassers, requiring the certification of the record to this court, to the end that we may review its action in making the determination above referred to, and, if the court should be so advised, vacate and annul the proceedings claimed to be in excess of the jurisdiction of the board. The petitioners, two in number, allege that they are citizens and taxpayers of the state, that they are beneficially interested in this proceeding and in the relief demanded. No facts are alleged, however, showing any interest in them that is not common to every other citizen and taxpayer in the state. Upon the filing of the petition an order to show cause was issued, directing the defendants to show cause why the writ of certiorari should not issue as prayed for, the question of jurisdiction being expressly reserved. Upon the return day the attorney general appeared on behalf of the respondents and moved to dismiss the proceeding for lack of jurisdiction. A return was also made and the issues raised by both the motion and the return were presented in order that the court might determine such questions in relation to' the matter as, upon consideration, it might deem to be properly before it.

Under the provisions of § 202 of the Constitution, amendments proposed by initiative petition are required to be referred to the people at the succeeding general election, and it is provided that: “should any such amendment or amendments proposed by initiative petition and submitted to the people receive a majority of all the legal votes cast at such general election, such amendment or amendments shall be referred to the next legislative assembly; and should such proposed amendment or amendments be agreed upon by a majority of all the members elected to each house, such amendment or amendments shall become a part of the Constitution of this state.” Further provision is made for a second reference to the people at the succeeding general election if the amendment or amendments do not receive the approval of the legislative assembly. In the instant case we are not concerned with the sufficiency of the original petitions, nor is any question raised involving the proceedings had prior to the certification by the canvassing board. In a prior proceeding in this court it was held to be the duty of the secretary of state to submit the proposed amendments to the people at the last election. (State ex rel. Twichell v. Hall, File No., 3647, post, 459, 171 N. W. 213). We are now asked to interfere in the midst of the proceedings looking toward the ultimate amendment of the Constitution, for the purpose of determining the legality of one of the intermediate steps. In the case of State ex rel. Linde v. Hall, 35 N. D. 34, 159 N. W. 281 (the capital removal case), this court held that it had ample jurisdiction to intercept a proposed amendment to the Constitution at its initial stage, on the ground of the nonexistence of a law authorizing the filing of a petition and the submission of the proposition; and in the case of State ex rel. Baker v. Hanna, 31 N. D. 570, 154 N. W. 704, it was held that the court could properly exercise its original jurisdiction to determine whether or not a valid referendum petition had been filed against existing legislation, which, if filed, would have had the effect of suspending the operation of the particular law. In the former of these two cases it will he noted that jurisdiction was entertained for the purpose of preventing a ministerial officer from taking a step that was conceived to be wholly without warrant of law, and in the second case it was entertained to compel compliance with an existing law as to which, it was contended, no valid proceedings suspending the law had been had. These cases are not authority for the proposition that the court should interfere at the instance of the citizen wherever it is thought that, in the process of amending, a step has been taken which is not in strict conformity with the requirements of the Constitution. The exercise of jurisdiction upon a ground as broad as this would be subversive of the American constitutional theory of government through co-ordinate branches.

It is not contended that the court would have authority to interfere .with the process of legislation as such. In fact, it is conceded that a legislative body, whether of the state or of a minor municipality, must be left free to make its own mistakes and that it cannot be judicially interfered with during the process. With the advent of the initiative and referendum, situations frequently arise where the principle of noninterference would seem to be applicable by analogy to the action of the voters. The conclusion that it is so applicable, however, is hardly warranted in the light of the inherent nature of our government. In a democratic republic the law is exalted. It is above the individual and it is above the office holder, however important his office may be. In order to vindicate its mandates it is sometimes necessary to resort to compulsion and restraint through judicial processes directed to those occupying responsible executive positions — even to the governor himself. If, in matters concerning direct legislation, the analogy of the relations between the judiciary and the legislative assembly be strictly and logically followed, it would result that every ministerial officer intrusted with a power necessary to facilitate the operation of the plan would be as free from judicial interference as would be the speaker or the chief clerk of the house of representatives or tbe lieutenant governor as presiding officer of tbe senate in tbe performance of their respective functions. But we are of the opinion that tbis analogy cannot be followed to such an extreme. It would result in absurdity. It would exalt the executive officer rather than tbe law which determines his ministerial duties. The legislative assembly exercises a degree of control over its officers that it is impossible for tbe people to exercise over tbe ministerial officers whose participation in matters of direct legislation is essential to its orderly operation. By virtue of the inherent difficulty of exercising sucb a degree of control over ministerial officers as will facilitate tbe operation of the initiative and referendum and render it free from tbe whim or caprice of a designated officer, a court cannot be thought to be trenching upon' the legislative power when it interferes merely for such limited purposes. To a limited extent this is also true as applied to tbe exercise of a restraining power during the initial stages in the interest of securing a legal ballot and a free, untrammeled election.

In commenting upon the result of tbe Colorado and South Dakota decisions (People ex rel. O’Reilly v. Mills, 30 Colo. 262, 70 Pac. 322, and State ex rel. Cranmer v. Thorson, 9 S. D. 149, 33 L.R.A. 582, 68 N. W. 202), Dodd, in his excellent work on tbe Revision and Amendment of State Constitutions, at page 232, says: “The courts have no power to interrupt the process of amendment before it is complete, to restrain a popular vote upon a constitutional proposal, even though they may be clearly of tbe opinion that tbe popular vote will be ineffective because of defects already apparent in tbe method of proposal. They must wait until the amending process is fully completed, and then pass upon the validity of tbe amendment if tbis question is properly presented in litigation before them. In accordance with tbis view it would seem that the courts should compel by mandamus administrative acts incident to tbe amending process; that is, the administrative acts should be treated as duties commanded by the Constitution after the legislative proposal, which may be regarded as presumably valid, and not subject to review in an ex parte proceeding. Under this view the courts may neither restrain the submission nor decline to compel it, because either of these is a direct interference with legislative action, the one positive in absolutely preventing submission, the other negative in that it does not enforce a purely ministerial duty in aid of the amending process.” According to this view, the amending process is not to be frustrated, but is to be aided, where necessary, by compelling the performance of ministerial duties by those over whom the great body of legislators have no other means of control. It would seem that the basic principle of noninterference with the affairs of a co-ordinate branch of the government is sometimes best observed in the case of the initiative and referendum by a resort to the apparent anomaly of judicial compulsion as applied to the acts of ministerial agents.

The contention of the petitioners, however, is directly contrary to the principle suggested. They claim the right to intercept the proceedings in their midst, and this, though they show no interest that is not common to every other individual. The judicial department of the government is bound to assume that the legislative department would act with the same conscientious regard for the Constitution that actuates it.

It is said that, while engaged in a consideration of constitutional amendments, the legislature is not acting in a legislative capacity and that judicial interference with this function does not infringe upon any other department of the government. It matters little whether or not participation in the amending process is considered to be legislative in its character. Identical considerations apply, nevertheless. Jameson, in his work on' constitutional conventions, a work which is devoted largely to the thesis that constitutional conventions are creatures of the power which creates them, takes the position that a convention is bound to observe whatever limitations may be prescribed by the act which authorizes the calling of the convention. Jameson, §§ 307—313. Dodd, on the other hand, takes the position that the constitutional convention, once assembled, is independent of exterior control and that it has the power to propose anything but (probably) to conclude nothing. Dodd, Revision & Amendment of State Constitutions, pages 80 to 117. While Jameson’s view seems to minimize the authority of the created agency, it necessarily involves the proposition that the process is essentially legislative, in that it restricts it within bounds set by the legislature. While, if the view held by Dodd be considered correct, it is still unimportant whether the process be considered legislative; for, according to this view, the agency is independent of other departments of the government, even of the legislature, and constitutes a sort of a fourth branch of the government. See Dodd, Revision & Amendment of State Constitutions, p. 80; Constitutional Conventions, by Roger Sherman Hoar, pp. 89, 160; 29 Harvard L. Rev. 520; and Carton v. Secretary of State, 151 Mich. 337, 115 N. W. 429. In Carton v. Secretary of State, supra, at page 340, it is said: “The convention is an independent and sovereign body whose sole power and duties are to prepare and submit .to the people a revision of the Constitution or a new Constitution to take the place of the old one. . . . The Constitution clearly leaves this convention free from and untrammeled by any other department of government.”

It was said by the judiciary committee of the constitutional convention of New Tork of 1894, of which committee Elihu Root was chairman, in a report denying the right of the courts, thrbugh prohibition, to interfere with a proceeding to determine the election of a member: “A constitutional convention is a legislative body of the highest order. It proceeds by legislative methods. Its acts are legislative acts.” See Rev. Records N. Y. Constitutional Convention 1894, vol. 1, page 245, and at page 250 of the same records, it is said by the same committee: “It is of the greatest importance that a body chosen by the people of this state to revise the organic law of the state, should be as free from interference from the several departments of government, as the legislative, executive and judiciary are, from interference by each other.” See also Sproule v. Fredericks, 69 Miss. 898, 11 So. 472, and for an. authority expressing a contrary view, Wells v. Bain, 75 Pa. 39, 15 Am. Rep. 563. Also Woods’s Appeal, 75 Pa. 59. Hoar, in his recent work, after presenting the foregoing authorities, has the following to say (page 91) : “Thus the weight of authority is to the effect that the convention, when in session, is a fourth branch of the government, with the same immunity from interference as that possessed by the other three. The executive and judiciary have no more right to interfere with the fourth branch than they do with the other legislative branch, namely, the legislature. The legislature has no right to interfere with a legislative body of higher standing.” While the foregoing discussion relates primarily to the powers of constitutional conventions, it concerns itself nevertheless with the legm character and status of the subject-matter with which the convention deals, namely the highest written law of the state in process of formation. The nature of this subject-matter is obviously the same whether created by a convention or by an amending agency. We refer to this matter here, merely as characterizing the nature of the function rather than as embodying considerations which would necessarily be controlling in any judicial proceedings ultimately brought to determine what provisions are legally incorporated in the Constitution. As was recently said by this court in the case of State ex rel. Fargo v. Wetz, 40 N. D. 299, 5 A.L.R. 731, 168 N. W. 846: “It is the duty of the court to uphold and give effect to every part of the Constitution, and this provision can only be enforced by refusing to recognize as an amendment that which was never legally adopted as such.” We are clearly of the opinion that, regardless of the particular governmental character of the acts, as a result of which Constitutions are formed, submitted, or amended, both sound policy and the weight of authority concur in holding that the process is one to be carried on generally without any restraining judicial interference.

In the instant case, we are asked to review the action of a board of canvassers before the result of the various steps in the amending process can be known. It would doubtless be conceded that the canvassers cannot legally give official sanction to a vote received by merely declaring it to be legal or to have a given effect. There are further steps to be taken by constitutional officials whose action might make wholly unnecessary any resort to judicial proceedings. In legal contemplation, the petitioners present a situation that is in every way analogous to an application for certiorari, where an appeal from the action complained of is both simple and expeditious. The legislature is clearly free to act upon every consideration which, in the mind of the petitioners, vitiates the certificate of the canvassing board. It is elementary that certiorari is not a proceeding to be resorted to where there are other speedy and adequate remedies (Comp. Laws 1913, § 8445), and it is the duty of the courts to assume that legislative action will conform to the Constitution. It is also elementary that the issuance of the writ is largely discretionary, and should not be resorted to where complications of a public nature might follow its use. 6 Cyc. 748; 11 C. J. 130. This proceeding is clearly distinguishable from the proceeding in People v. Stevenson, 281 Ill. 17, 117 N. E. 747. In that case the supreme court, at the instance of a states’ attorney who petitioned on behalf of the people, issued a writ of certiorari and reviewed the action of the canvassing board which had declared a proposed amendment adopted and to have become a part of the Constitution. The proceedings, however, were not begun until after' every step had been taken to incorporate the amendment into the Constitution. The action having been brought on behalf of the people and the amending process having been completed, it was, of course, proper for the court to review the proceedings for the purpose of determining the effect of the vote as certified to.

A situation somewhat analogous to the present case was recently presented in the district court of the United States, in the southern district of Ohio, in the case of State ex rel. Erkenbrecher v. Cox, 257 Fed. 334. An attempt was there made to enjoin the governor of Ohio from submitting to the legislature for ratification or rejection the proposed amendment to the Federal Constitution (which has since been adopted) prohibiting the manufacture, sale, or importation of intoxicating liquors within the United States and all territory subject to its . jurisdiction. The suit was, like this one, a taxpayer’s suit. In an opinion filed on the 4th day of this month (January), Judge Hollister held that the plaintiff showed no interest which entitled him to maintain the action, and, furthermore, that the court was powerless to take any action that could result in preventing the legislature from performing its own functions in connection with the proposed amendment. In the opinion it is said:

“Moreover, if the plaintiff is injured, that injury does not arise until the proposed amendment is adopted by the respective legislatures of three fourths of the states. ...

“It is not open to doubt that every member recently elected to the • General Assembly knows of the existence of the proposed amendment, and everyone knows that the subject is of such interest in the state of Ohio, as well as elsewhere, that there are members of the General Assembly about to sit who will see to it that the subject is brought to the attention of the General Assembly. Whatever injury, if any, may result by the consideration by the General Assembly of the proposed amendment, will follow whether the governor acts or not. The governor’s threatened act cannot of itself do plaintiff any injury of any kind, and therefore the suit will not lie against him. ... It cannot be assumed in advance that the General Assembly of Ohio will take any action violative of the Constitution of the United States. Moreover, if the two houses of the General Assembly should take a vote on the subject, one cannot say in advance what the result would be. The proposed amendment may be rejected because the members of the General Assembly may think the proceedings at Washington were not in consonance with the Constitution, or because of insufficient votes in the affirmative. Indeed, the General Assembly may take no action at all. . . .

“The judicial department of the government . . . cannot interfere with the preliminary proceedings of either the executive department or the legislative department with respect to matters committed by the Constitution to their charge. So far as this court is aware, judicial action has never been taken, or even thought of, against any step of the legislative department leading up to the enactment of a law, however subversive of the Constitution. It is only after proceedings are taken to enforce the unconstitutional law that the courts are called upon to act at all; indeed, the question whether the courts had any power in such case was not settled until sometime after the adoption of the Constitution. . . .

“It may be plaintiff has no adequate remedy, or any remedy, at law; but it does not necessarily result that for that reason alone he is entitled to an injunction. Plaintiff says his rights are injured by the failure of the houses of Congress, in passing the resolution, to observe the requirements of the Constitution, and, since he has suffered a wrong there must be a remedy. His conclusion is good, but his premise is bad. His right does not arise, and the wrong is not suffered, until the legislatures of three fourths of the states have voted to adopt the amendment. Then will be the time for him to show, if he can, that the resolution of the two houses of Congress was no resolution at all, and the action of the states thereon a futilit

“For this reason also this suit cannot be maintained. . . .

“Moreover, plaintiff’s rights do not arise, and no wrong is to him, until the attempt to delegate the reserved power is apparently consummated and something is done in the exercise of the power. . . .

“No present constitutional right is involved in this behalf, and the same may be said, once for all, of every alleged deprivation of constitutional rights in this case. . . .

“By the decision of this case against him, the plaintiff loses no constitutional right, and there is no Federal question alleged.”

We are of the opinion that, so far as jurisdiction is concerned, there is no substantial difference between an application for injunction to prevent a canvassing board from certifying the result on the ground of a false showing and a proceeding in certiorari in which it is sought to change the effect of the certification for the same reason while the amendatory proceedings are pending and incomplete. The rights alleged to be threatened are the same, and the suitor has the same recourse to an appropriate co-ordinate branch. Conceding that that portion of the certificate of the canvassing board in the instant case which purports to determine the result is void, because based upon either a false determination of the requisite number of votes or because of an erroneous conception of the legal effect of the election, it does not follow that all injurious consequences may not be obviated by the body in which the Constitution vests the power of approval or rejection. Nor is it conceivable that that body could be prevented by anything that might be done in this proceeding from performing what it perceives to be its constitutional functions.

There is a sense, however, in which the opinion of the legislature, in regard to its constitutional functions, is not a finality. The judiciary is required to determine the law applicable to any given controversy and to apply it, and its judgment as to whether or not a legislative act is valid must ultimately be the controlling one. Being of the opinion that the courts cannot properly intercept a constitutional amendment which has been voted upon by the people, while it is in process of being submitted to the legislature, we could not, with propriety, determine the matter in such a way as to interfere th legislative action on the subject. The opinion of the court upon question during the pendency of legislation would amount to no than an advisory opinion, for the guidance of the other depart-Under the Constitution, we are not authorized to perform such a function. A proposal to vest such a power in the supreme court was expressly repudiated in the constitutional convention. Debates, Constitutional Convention 1889, pages 281, and 251 to 275. Furthermore, it may be observed that the experience of those courts, upon whom the duty of rendering advisory opinions has been expressly enjoined by the Constitution, has been of the character that does not commend the practice beyond the strict limits of the duty imposed. See correspondence passing between Governor Dineen of Illinois and the judges of the supreme court for a complete discussion of this matter, 243 111. 9.

For the foregoing reasons, we are satisfied that, at the time the order to show cause was issued, this court could not properly exercise its original jurisdiction, nor, indeed, could any court have properly exercised jurisdiction to determine the legality of the steps in the amending process which had been taken prior to the time the application was made. It may be stated here too, that, in connection with the application, the petitioners asked for a temporary restraining’ order, but the court considered that it would be improvident to grant such a request and counsel did not press the application. Since the proceedings were instituted, however, and in fact very soon after the arguments were held, it is common knowledge, and hence within our judicial cognizance, that the legislature proceeded to consider the amendments referred to and adopted them. In the light of these facts it is obvious that a decision of this court rendered at this time upon the additional question argued will tend in no way to influence either the legislative or the executive branches of the government in the exercise of what they conceive to be their constitutional functions concerning the amendments. One of the chief reasons, therefore, for the nonexercise of jurisdiction by this court no longer exists, and we conceive it to be proper at this time to express our views upon the other question presented. There is no longer any question of delicacy due to appropriate deference to and respect for the co-ordinate branches of the government and we feel that it is no longer necessary to refra' from discussing such reasons as there may be for the refusal to is. the writ. The matter has been fully argued. and upon such a ments it appears to the court that there is an additional and c sive reason why the writ should not issue.

As an original question, the writer of this opinion confesses to a considerable degree of doubt as to whether or not paragraph 2 of § 202 of the Constitution could be properly construed to require only a majority of the votes cast upon a given initiated proposal, and were the question presented now for the first time, it would seen to him that the language employed with reference to the number of votes is indicative of a legislative intention to differentiate in this respect between amendments initiated by petition and amendments proposed by the legislative assembly under the first paragraph of the section, where it is explicitly provided that amendments of the latter sort are ratified by a majority of the electors voting thereon. In view of the fact, however, that other provisions of the Constitution which are substantially identical with the language of the second paragraph of § 202 had, long prior to the adoption of the latter paragraph, received a construction at the hands of this court which would seem to give to it a clear legal signification and meaning, we are not at liberty to examine the question as an original one. The legislature is responsible for the language found in this paragraph. It has stated that such amendments require a “majority of all the legal votes cast at such general election.” If it used this expression in the light of the judicial definition previously placed on such an expression by this court, the court should be very reluctant to redefine the expression so as to deprive it of the meaning previously given. This consideration is of especial importance in this case by reason of the fact that the legislature now sitting has apparently adopted the previous interpretations of this court and has held the amendments to have received a sufficient vote. A brief reference to the prior decisions and to the constitutional setting of substanially the same language will indicate to what extent the meaning adopted by the legislature is warranted.

In the first case, that of State ex rel. Larabee v. Barnes, 3 N. D. 319, 55 N. W. 883, this court had occasion to determine whether or not the article of the Constitution prohibiting the manufacture and ^e of intoxicating liquors was adopted. Section 8 of the Enabling provided for elections to be held in the territories to which the act applicable, at which the voters should vote directly for or against "oposed Constitutions and for or against any articles or prop-separately submitted, and it was provided that "if a majority of the legal votes cast shall be for the Constitution, the governor shall certify the result to the President of the United States, together with a statement of the votes cast thereon, and upon separate articles or propositions.” Though the Enabling Act further provided (§ 24) that the constitutional convention might provide for the election of officers for the state governments, and though the constitutional convention, in the schedule adopted, did provide for the election of officers at the same election as that at which the Constitution was adopted ’(§ 12 of the schedule), this court held that the expression “majority of the legal votes cast,” as used in the Enabling Act, meant “votes cast for or against the adoption of the Constitution or the articles separately submitted.” While Congress did not require all the elections to be conducted at the same time, it nevertheless required that there should be separate votes upon the Constitution and upon different articles that might be submitted, of which prohibition was one, and anticipated that officers'might be elected at the same time.

It seems that the constitutional convention placed a similar construction upon the Enabling Act. In § 20 of the schedule it was expressly provided that “if a majority of all the votes cast at said election for or against prohibition are for prohibition, then said article 20 shall be and form a part of this Constitution and be in full force and effect as such from the date of the admission of this state into the union, but if a majority of said votes shall appear according to said returns to be against prohibition, then said article 20 shall be null and void and shall not be a part of this Constitution.”

In the case of State ex rel. Little v. Langlie, 5 N. D. 594, 32 L.R.A. 123, 61 N. W. 958, this court had occasion to construe a statutory provision governing an election to determine the relocation of a county seat wherein it was provided that if “any one place has two thirds of the votes polled” such place shall be the county seat. The statute in question required the question of the relocation of the county seat to be submitted at a general election and it was held that the expression “votes polled” meant the vote polled upon the particular question.

Again, in the case of State ex rel. McCue v. Blaisdell, 18 N. D. 31, 119 N. W. 360, this court construed the following language- contained in § 168 of the Constitution: “All changes in the boundaries of organized counties before taking effect shall be submitted to the electors of the county or counties to be affected thereby at a general election and be adopted by a majority of all the legal votes cast in each county at such electionAfter an exhaustive discussion of the question presented in that case, this court, unanimously, speaking through Mr. Justice Spalding, held that the case of State ex rel. Little v. Lang-lie, was directly in point, and that the foregoing language meant a majority of the votes cast upon the particular question. In that opinion the court referred to the lack of uniformity in various parts of the Constitution wherein provision is made for voting upon particular questions and accounted for it by the fact that in the constitutional convention different committees had jurisdiction over different subjects. However, in the article of which § 168 is a part we find two other sections, §§ 170 and 171, in which reference is made to matters in relation to county government to be voted upon by the people. In § 170 it is made the duty of the legislature to provide for county government through township organization “whenever a majority of all legal voters of such county, voting at a general election, shall so> determine ” and it is further provided that “the management of the fiscal concerns of said county by the board of county commissioners may be dispensed with by a majority vote of the people voting at any general electionIn the next section it is provided that in any county which may have adopted a system of government by chairmen of township boards, “the question of continuing the same may be submitted to the electors of such county at a general election in such a manner as may be provided by law, and if a majority of all the votes cast upon such question shall be against said system of government, then such system shall cease, etc.” Thus, in the very article in which the language construed in the Blaisdell Case, supra, was employed, and in connection with the very subject of county government, we find language which clearly and expressly limits the majority of the votes to-the particular question, as in § 171; whereas in the third section preceding it this court held that it was so limited by implication, the limiting expression not being there used. So far as any argument may be-drawn in the instant case from proximity of context, it would also be-equally applicable to the question as presented in the Blaisdell Case.

The case of State ex rel. McCue v. Blaisdell, supra, has been referred to with approval in State ex rel. Davis v. Willis, 19 N. D. 209-225, 124 N. W. 706; in State ex rel. Miller v. Flaherty, 23 N. D. 313, 321, 41 L.R.A.(N.S.) 132, 136 N. W. 76, and in State ex rel. Minehan v. Thompson, 24 N. D. 273, 139 N. W. 960.

It would be futile to attempt to add to the reasons previously assigned by this court for the construction given to the language referred to. All that need be said now is that we can conceive of no distinction between the expression “majority of all the votes cast at such general election” as found in paragraph 2 of § 202 of the Constitution, and the expression “majority of all the legal votes cast in each county at such election,” as found in § 168 of the Constitution, it being clear that the election referred to in § 168 is a general election at which the question is authorized to be submitted. There being no satisfactory distinction to be drawn between the two expressions referred to and the language having been repeatedly interpreted by this court before it was employed in § 202 of the Constitution, we do not feel at liberty to change the well established legal construction. See 12 C. J. 706. This is a substantive, and to our minds an altogether conclusive, reason for the denial of the writ.

For the foregoing reasons the writ is denied without costs.

Grace, J., concurs.

Bronson, I.

This is an original application to this court for the issuance of a writ of certiorari to the State Canvassing Board for the purpose of reviewing the action and the determination of such board in certifying the adoption of several amendments to the state Constitution proposed by initiative petitions, by the vote given at the general election held on November 5, 1918. Pursuant to the order to show cause issued therefor, the attorney general, in behalf of such board, has filed a motion to quash these proceedings, challenging the jurisdiction of this court and the cause of action of the relators, and an answer and return setting forth the proceedings of such board and alleging that the same were due and regular as provided by law.

The admitted facts necessary for an understanding of this proceeding are as follows: At the general election held on November 5, 1918, there were submitted to the voters five proposed amendments to the state Constitution known respectively as the taxation, debt limit, Constitutional amendments, emergency measures and public ownership proposals. These were so submitted under initiative petitions proposed by the people under the provisions of the Gibbens Amendment to the state Constitution, known as article 16 of the Amendments, subdivision 2. At such election these proposed amendments received, respectively, majorities of those voting on such proposals, ranging from 12,000 to 14,000, but less than a majority of all the voters who voted at such election. For instance, the public ownership proposed Amendment received 46,830 votes for and 32,574 votes against the same, a majority of 14,256 upon the question but 198 less than a majority of all the voters who voted, as found by such State Canvassing Board. Section 1025, Compiled Laws of 1913, concerning the canvassing of any proposed amendment to the Constitution provides that the state board shall ascertain and determine the result and shall certify under their hand a statement of the whole number of votes given for, and the whole number of votes given against, such amendment, and they shall thereupon determine whether such amendment has been approved and ratified by a majority of the legal electors voting thereon, and shall make and subscribe on such statement a certificate of such determination.

The said state board found, determined, and certified that each of such proposed amendments had been carried and adopted inasmuch as a majority of the voters voting on said proposed initiated amendment had voted in favor of the same. In this regard the Gibbens Amendment to the Constitution, under which the initiative petitions in question were submitted to a vote of the people, provides as follows : “Should any such amendment or amendments proposed by initiative petition and submitted to the people receive a majority of all the legal votes cast at such election, such amendment or amendments shall be referred to the next legislative assembly.”

. The relators maintain that this constitutional provision required a majority of all the legal voters who voted at such election. For instance that inasmuch as the board determined that there were 94,055 legal votes cast at such election, on the public ownership proposal, the constitutional provision required a vote of 47,028, in order that the same might carry, and that- therefore the determination and certificate of the board so issued was improper and illegal.

The issues presented on these facts raised the following questions for the consideration of this court:

(1) The right of the relators to maintain this action.

(2) The power of this court to assume jurisdiction over the subject-matter at this time.

(3) The question of the due adoption by the people of the initiated proposed amendments.

This case involves a very important political proposition. 'Able briefs and able arguments have been presented by each of the counsels for the contending parties. Strenuously do the relators contend that it is the duty of this court as a sovereign branch of our state government to uphold the Constitution and to declare by judicial determination the illegality of the proceedings had by the state board, and with considerable insistence the relators further maintain that this court representing the judiciary branch of our government must firmly inhibit any attempt of the other branches of the government to> transgress constitutional requirements.

This matter is before this court under unusual circumstances. The political question involved is being discussed on every side. Kelators have set up in their brief before this court the contentions made by political organizations on the question involved. A legislative assembly, in the capitol where the court is now sitting, is in session. On the same day that arguments were being made before this court, in the legislative halls, these proposed amendments already were under consideration and were being approved by a branch of the legislative assembly. The very questions proposed to this court are being determined and passed upon by such legislative assembly in exercising its functions as part of our state government, as arguments pro and con by legislators resound throughout the halls. Obviously this court can be neither blind nor deaf as to these surrounding conditions. The application and order to show cause first presented to this court solicited a restraining order temporarily restraining the state board from certifying and referring such proposed amendments to the legislative assembly, pending this hearing, although relators’ counsel did not insist upon such order. Grave questions are presented to this court concerning its jurisdiction to interfere at this time. Serious questions likewise are involved concerning the right or the power of this court by its mandate, decree, or judgment herein, to interfere in any manner with the legislative assembly or with such state board reporting to it in the course of its action, or by its judicial determination, to indicate to such legislative assembly its duty or the manner in which it should act upon any matter now pending before it.

It is the sworn duty of this court to uphold the Constitution. It is equally the sworn duty of the legislative departments of our government to uphold the Constitution.

As stated by Justice Christianson in the opinion in State ex rel. Linde v. Taylor, 33 N. D. 84, L.B.A.1918B, 156, 156 N. W. 561, Ann. Cas. 1918A, 583, wherein he quotes with approval the following:

“ ‘The legislative and judicial,’ said Cooley (Cooley, Const. Lim. 7th ed. pp. 227, 228) ‘are co-ordinate departments of the government, of equal dignity; each is alike supreme in the exercise of its proper functions, and cannot directly or indirectly, while acting within the limits of its authority, be subjected to the control or supervision of the other, without an unwarrantable assumption by that other of power which, by the Constitution, is not conferred upon it. The Constitution apportions the powers of government, but it does not make any one of the three departments subordinate to another, when exercising the trust committed to it. The courts may declare legislative enactments unconstitutional and void in some cases, but not because the judicial power is superior in degree or dignity to the legislative. Being required to declare what the law is in the cases which come before them, they must enforce the Constitution as the paramount law, whenever a legislative enactment comes in conflict with it.

It is well settled that it is not the function of the courts to in any manner interfere with or inhibit legislative undertakings. To do so would be an invasion of the legislative functions apportioned to another department of government. The question always, therefore, is whether the proceeding involved is legislative in its character, or involves a matter occurring during the course of a legislative proceeding. It is important to premise the opinion of this court by these statements in order that the function of a court may be properly comprehended with relation to the legislative department of our government, and further to the end that, in times of violent discussion and enactment of political questions involving proceedings of a legislative character, the court may not be made a shuttle cock for the purpose of securing an expression in a judicial way of the legal correctness of proceedings undertaken, the result of which will be either to warn or curb legislative matters then pending. The case therefore involves questions of the highest importance in the exercise of the judicial sovereign power. It has received the earnest and sincere attention of this court. The questions presented therefore all will be discussed even though this court by the decision of one of the points raised need not necessarily pass upon the others so presented.

The respondents contend that the relators have shown no legal right to maintain this action. In the application of the relators each of them state that he is a citizen and taxpayer of the state and that he is beneficially interested in the subject-matter of the proceeding. No other ground of right or of interest is shown. No demand upon, or refusal of, the attorney general to institute or maintain this proceeding is alleged or shown. It does, however, appear that the attorney general is ex officio a member of such canvassing board and appears herein for the respondents. The relators seek the prerogative writ of cer-tiorari in the exercise of the original jurisdiction of this court. To warrant the issuance of this original writ, it must appear either, that the relators have such a peculiar interest by reason of which their personal or property rights are being or are about to be infringed or abrogated or denied by the action complained of creating a special reason or peculiar emergency, or, that the subject-matter is publici juris, affecting the sovereignty of the state, its franchises, or prerogatives, or the liberties of its people, and involving in some way the general interests of the state at large. State ex rel. Walker v. McLean County, 11 N. D. 356, 92 N. W. 385; State ex rel. Madderson v. Nohle, 16 N. D. 168, 125 Am. St. Rep. 628, 112 N. W. 141; State ex rel. McArthur v. McLean, 35 N. D. 203, 213, 159 N. W. 847; State ex rel. Steel v. Fabrick, 17 N. D. 532, 538, 117 N. W. 860.

In State ex rel. Walker v. McLean County, supra, Judge Wallin, in the opinion of the court, stated: “Ordinarily a private person, who volunteers as a champion of only public rights, and as such invokes the prerogative writs, will be regarded as an intermeddler. It appears by the information and more fully by the briefs of counsel in behalf of the relator, that the relator has suffered no wrongs peculiar to himself, but on the contrary the relator appears in this court as a champion of the state, and for the ostensible purpose of protecting governmental franchises from abuse.”

Clearly therefore the right of the relators to maintain this proceeding must be founded upon the latter grounds above stated.

In State ex rel. Linde v. Taylor, 33 N. D. 76, 83, L.R.A.1918B, 156, 156 N. W. 561, Ann. Cas. 1918A, 583, Judge Christianson, in the opinion of the court concerning this original jurisdiction, said:

“It is well settled that this jurisdiction will not be exercised to vindicate private or local rights regardless of their importance, but it is reserved for the use of the state itself when it appears to be necessary to vindicate or protect its prerogatives or franchises, or the liberties of its people.” . . . While it is true that the relator in this case, in his capacity of a citizen and taxpayer of the state, has a sufficient interest to invoke this court’s prerogative jurisdiction as a relator, still the real plaintiff is the state. The private relator, in his capacity as a citizen and taxpayer, merely informs the court of the infringement which has been or is about to be made upon the sovereignty of the 'state, or its franchises or prerogatives, or the liberties of its people, and the court by virtue of the power granted by the Oonstitution commands that the suit be brought by and for the state, even though the attorney general may refuse to bring this action or consent to its institution.

“This transcendent jurisdiction is a jurisdiction reserved for the use of the state itself when it appears to be necessary to vindicate or protect its prerogatives or franchises, or the liberties of its people; the state uses it to punish or prevent wrongs to itself or to the whole people; the state is always the plaintiff and the only plaintiff, whether the action be brought by the attorney general, or, against his consent, on the relation of a private individual under the permission and direction of the court.” State ex rel. Bolens v. Frear, 148 Wis. 456, 500, L.R.A.1915B, 569, 134 N. W. 673, 135 N. W. 164, Ann. Cas. 1913A, 1147; State ex rel. Linde v. Taylor, 33 N. D. 84, L.R.A.1918B, 156, 156 N. W. 561, Ann. Cas. 1918A, 583.

Under § 157, Compiled Laws 1913, it is the duty of the attorney general to appear for and represent the state before the supreme court in all matters in which the state is interested as a party.

Under § 3376, subd. 9, the attorney general and state’s attorneys are the only public prosecutors, in all cases, civil and criminal, wherein the state, or county, is a party to the action.

It is therefore manifestly the proper practice in all cases where the exercise of the original jurisdiction of this court upon a prerogative writ is demanded, and where the state is the real plaintiff, to make the application by or through the consent of the attorney general, or, in the event of his refusal to act, to bring such fact to the attention of this court for its consideration in the allowance .or granting of such writ.

The attorney general is the chief law officer of the .state. Upon him is the duty imposed to appear for and represent the state in which the state is interested as the State.

Upon the refusal of the attorney general to institute the proceeding requested, the situation is as stated by Judge Bruce in the opinion of the court in State ex rel. McArthur v. McLean, 35. N. D. 212, 159 N. W. 847, wherein he said: “In the case at bar the attorney general of the state, has expressed his willingness that the proceedings shall be brought, but has refused to bring them himself, as he considers that it is not a case in which his office should be concerned. The case, therefore, is similar to one in which an application has been made to the attorney general to institute the proceedings, but he has refused to do so, and where an application is made to this court by a private citizen to bring them. It is not, therefore, a case in which the state as a state is seeking to exercise its sovereign power and to assert its prerogative, but a case in which a private citizen' and voter and a candidate for public office, who is more or less affected by the matter, seeks the protection of this court on the ground that the sovereign rights of the state or its franchises are after all the sovereign rights and franchises of all its citizens and that, all of its citizens are interested in having the political and elective machinery of the state properly administered.”

As stated in State v. Nelson County, 1 N. D. 101, 8 L.R.A. 283, 26 Am. St. Rep. 609, 45 N. W. 33, these prerogative writs are ordinarily issued upon motion of the attorney general; as chief law officer of the state, upon whom the duty is imposed to represent and appear for the state when the state’s interests are concerned, it is peculiarly proper that matters puWici jurisj affecting the sovereignty of the state, its franchises or prerogatives, or the liberties of its people involving in some way the general interests of the state at large, and concerning which the prerogative writ of this court is sought, should be first addressed to his attention for his direct action or refusal to so act.

See State ex rel. Taylor v. Lord, 28 Or. 498, 31 L.R.A. 473, 43 Pac. 471.

It is true that the refusal of the attorney general to institute or to consent to the instituting of such proceeding does not prohibit this court from exercising its original jurisdiction in such cases, but it should be made to appear to this court, not only that the chief legal adviser of this state, and representing its interests, has been advised and has refused to institute the action for the state, but also that, nevertheless, under the facts presented, this court should take original cognizance of the subject-matter upon the relation of a private individual. State ex rel. Moore v. Archibald, 5 N. D. 359, 376, 66 N. W. 234; State ex rel. McArthur v. McLean, 35 N. D. 203, 159 N. W. 847; State ex rel. Twichell v. Hall, No. 3647, post, 459, 171 N. W. 213.

Furthermore, a very serious question is presented upon the proposition whether this court should take original jurisdiction of the subject-matter involved at this time upon the application as made by the relators therefor.

No right of the relators or of any citizen of the state, either personal or property, is immediately threatened with invasion or abrogation. Though the matter is affected with a great public interest and although it vitally concerns the fundamental law of this state, the sovereign powers of the state, its franchises or prerogatives, are not in any manner threatened with immediate infringement, whether the writ issue or not, unless it be premised that affirmative action will be taken by the legislative assembly to make such proposed amendments a part of the Constitution of this state.

To warrant the assertion of such original jurisdiction, the interests of the state, the threatened invasion of its franchises or its prerogatives, or of the rights and liberties of its people, should be both primary and proximate, not indirect and remote, thereby creating such a contingency which requires the interposition of this court to preserve and protect the same. State ex rel. Moore v. Archibald, supra.

This court does not sit as a monitor for either the legislative or executive branches of our government. It neither advises nor rebukes contemplated action of a co-ordinate branch of the government. Its power necessarily is not only persuasive but compelling. The exercise of original jurisdiction in this matter at this time must necessaidly commend by judicial intervention the state board concerning their action on the proposed amendments. This necessarily means that this court must either commend, interrupt, or interfere with the action of the legislative assembly thereupon.

Liberally this court has exercised its original jurisdiction in the issuance of prerogative writs. It has been extended sufficiently far. It should now be recognized and established that this court will not exercise its original jurisdiction in matters of this kind, beyond the limits herein stated.

2. Jioñsdiciion over the Siibject Matter at This Time.

Again, the serious attention of this court is addressed to its very jurisdiction at this time over the subject-matter and to the judicial action necessarily involved in the cognizance or consideration thereof. This, in part, has been mentioned heretofore in this opinion. The primary question with which we are confronted is to determine whether, the initiation, submission, adoption and ratification of proposed amendments to the Constitution under the initiative power is fundamentally the exercise of a political or legislative power, or whether the acts of the agencies designated to accomplish such amendment are ministerial in their nature so as to present thereby a judicial question for the courts to review such acts during the course of the proceedings to accomplish such amendment.

It is well settled that the judicial power will not interfere in any action or proceeding which involves by such action or proceeding the exercise of a political or legislative action. The relators do not deny this general principle. They contend that the action of the state board cannot be classed in any manner as legislative in its character. That it is ministerial and therefore subject to the review of this court.

The question presented is not easily determined and is not free from many difficulties in the construction of the powers of the judiciary in connection with and over the co-ordinate legislative and executive de« partments of our government in making a change in our fundamental law. The principal question involved also involves the corollary proposition of the right or power of the judiciary to interfere with any proceeding or action, made pursuant to statutory direction, and not contrary thereto, when the effect thereof is to establish a judicial admonition, advice or inhibition of contemplated action by the legislative assembly, a co-ordinate department of the government. If the initiation, submission and adoption of the proposed amendments concerned is from beginning to the end, from the time of the initiative petitions signed by the people to the time of ratification by the legislative assembly, an undertaking, through the exercise of the sovereignty of the people, in a legislative way to formulate the fundamental law of the state, or an' amendment thereof, is legislative in its character, and the agencies designated by the sovereign power to accomplish such 'change or amendment of the fundamental law, are acting within and pursuant to a power conferred, it is clear that the judiciary has no power to interfere.

This broad principle is not only fundamental, but it must also be recognized as basically essential in the preservation of our tripartite theory of government and in the prevention of any judicial usurpation or interference in any legislative proceeding. 4 Federalist, p. 329; State ex rel. Taylor v. Lord, 28 Or. 498, 31 L.R.A. 482, 43 Pac. 471; Hawkins v. Governor, 1 Ark. 570, 33 Am. Dec. 346; State ex rel. Twichell v. Hall (No. 3647) post, 459, 171 N. W. 213; Ohio ex rel. Erkenbrecher v. Cox (H. S. D. O. Ohio, Jan. 4, 1919) 257 Fed. 334.

The relators, however, contend that the initiation and adoption of such proposed amendments is not in any sense a legislative act.

There is a noticeable lack of harmony or uniformity among the authorities and in decisions concerning what constitutes a proceeding legislative in its character so as to inhibit judicial interference. To some extent this lack of harmony can be explained by drawing a sharp line of distinction between tbe exercise of tbe judicial power over an officer or agency which is attempting to proceed in a legislative matter without any power so to do and the exercise of such power, where the officer or agency is proceeding in a legislative matter, pursuant to a power conferred, whether properly or improperly. There is also a distinction to be drawn between the judicial authority compelling the performance of a plain duty or power imposed upon an officer or agency, in a matter legislative in its character, as an instrumentality in the progress of a fundamental legislative enactment to secure the expression of the sovereign will, and the judicial authority interfering with such duties, interpreting the same, and preventing in such legislative proceeding an expression of the sovereign will. The viewpoint involved is the right of the sovereign power acting through one of its co-ordinate and independent agencies, the legislative side, to secure an expression of the sovereign desire in such fundamental legislative matters without judicial direction, admonition, or interference. When the proceedings of such co-ordinate department actually trangresses the constitutional requirements and violates the prerogatives or franchises of the state, or infringes upon the rights and liberties of its people, or of the fundamental law of our United States, contrary to constitutional provisions, the courts will then interfere and set aside such legislative proceedings.

Thus, in State ex rel. Baker v. Hanna, 31 N. D. 570, 154 N. W. 704, a mandamus action against the State Board of Immigration, the question of the validity of legislative action already taken was involved. This depended upon whether there was in fact a sufficient petition filed with the secretary of state for a referendum of the law involved to the people. There being no sufficient petition filed, there was no power conferred to refer and the law was in force. It involved no interference with legislative action. The -court passed upon legislative action already taken. It enforced the legislative will. State ex rel. Linde v. Taylor, 33 N. D. 85, L.R.A.1918B, 156, 156 N. W. 561, Ann. Cas. 1918A, 583.

The relators contend and quote authorities to uphold the contention that the legislative assembly in acting upon or providing for the amendment of the Constitution is not exercising a legislative power, and this likewise applies to actions or proceedings thereupon by state officials or by the people.

In our tripartite system of government where and what is the lawmaking power ? Is the exercise of the lawmaking power a matter of legislative character? These questions must be answered and considered upon fundamental grounds, and not upon grounds of narrow construction or of narrow language. It is true that the legislative power is ofttimes meant the power of the legislature pursuant to constitutional delegation, to make, enact, and repeal laws. It is true that in speaking of this legislative power of such legislature it does not mean the power that such legislature has inherently or pursuant to constitutional mandate to initiate the process of amending the Constitution. It is further true that this legislative power so granted by the Constitution does not include a power to trespass upon the executive or judicial departments of the government. The term as thus used revolves around the specific right granted to legislatures to make, alter, and repeal laws.

Within these narrow definitional grounds many of the authorities quoted by the relators are in point.

It is a mere syllogism to state that the exercise of the lawmaking power is legislative in its character. The question still remains unanswered: Where and what is the lawmaking power? The power that creates or formulates a Constitution is lawmaking. The Constitution itself is a law, the fundamental law of our land. The power that changes or amends this fundamental law is lawmaking. This power to so amend or change either resides in the people or in the legislature, or both the people and the legislature. It does not reside in the executive or judicial departments.

In O’Laughlin v. Carlson, 30 N. D. 213, 221, 152 N. W. 675, Judge Christianson in the opinion of the court said, quoting from State ex rel. Standish v. Boucher, 3 N. D. 389, 395, 21 L.R.A. 539, 56 N. W. 142: “All governmental sovereign power is vested in the legislature, except such as is granted to the other departments of the government, or expressly withheld from the legislature by constitutional' restrictions.”

Kelators’ contention concerning this legislative power would lead to the conclusion that the exercise of this power by the people or the legislature under article 15 of our amendment to the Constitution, known as the initiative and referendum as to legislation would be legislative in its character because it is simply an exercise of such legislative power, but when a proceeding is similarly had under article 16, the one involved herein to amend the fundamental law, it is not legislative. In either case plain reasoning upon fundamental grounds compels the conclusion that, in the very essence of the matter, the proceedings are legislative and upon broad grounds there appears no reason why the same rule of noninterference of the judiciary should not apply both to proceedings while in their course through the legislature or through the people under this exercise of the legislative power, as narrowly defined, and to proceedings through the legislature and to the people on matters concerning a change of the fundamental law.

Even in the case of Ellingham v. Dye, 178 Ind. 336, 99 N. E. 1, Ann. Cas. 1915, 200, quoted and relied upon by the relators, the court said, “The words ‘legislative power’ in a constitutional delegation of general legislative authority mean the power or authority under the constitution or frame of government to make, alter, and repeal laws and a ‘state Constitution’ has been aptly termed a legislative act by the people themselves in their sovereign capacity, and therefore the paramount law. ... A ‘Constitution’ is legislation direct from the people acting in their sovereign capacity while a ‘statute’ is legislation from their representatives, subject to limitations prescribed by the superior authority.”

In Ellingham v. Dye, supra, where a secretary of state was restrained from submitting to the voters of the state a proposed new Constitution proposed and approved by the legislative assembly, the court, in its majority opinion, by process of construction of the Constitution and the powers of the legislature thereunder expressly held and stated: “The grant to the General Assembly of “the legislative authority of the state” did not transfer from the people to the General Assembly all the legislative power inhering in the former. But as said in McCullough v. Brown, 41 S. C. 220, 23 L.R.A. 410, 19 S. E. 458, only “such legislative power as may be necessary or appropriate to the declared purpose of the people in framing their Constitution and conferring their powers upon the various departments constituted for the sole purpose of carrying into effect their declared purpose.” Iii that case the court held that the question was one of power to draft or submit a proposed new Constitution and that the assembly did not have this power, it possessing only that measure of power expressly granted to it by the people speaking through the Constitution and that such power so granted was to be exercised strictly in the mode provided, namely, either by the express provisions in the Constitution providing for the calling of a constitutional convention or by proposed amendments adopted by two successive assemblies. The court also distinguishes the cases of State ex rel. Cranmer v. Thorson, 9 S. D. 149, 33 L.R.A. 582, 68 N. W. 202; Threadgill v. Cross, 26 Okla. 403, 138 Am. St. Rep. 964, 109 Pac. 558, and People ex rel. O’Reilly v. Mills, 30 Colo. 262, 70 Pac. 322, holding to a rule of nonjudicial interference, by stating that those states have different Constitutions.

But, in this state, this court has held and has adhered to the principle of constitutional construction that all governmental sovereign power is vested in the legislature, except such as is granted to the other departments of the government, or expressly withheld from the legislature by constitutional restrictions. State ex rel. Standish v. Boucher, supra; O’Laughlin v. Carlson, 30 N. D. 213, 152 N. W. 675.

In fact, this court, in the case of State ex rel. Standish v. Boucher, supra, recognized a' distinction between the constitutional provisions of this state and the state of Indiana, and the construction given to the powers of the legislative department under each, concerning the very principle of constitutional construction herein involved and above quoted. In that case, this court said: “State ex rel. Yancey v. Hyde, 121 Ind. 20, 22 N. E. 644, was another instance where the legislature created a state office, and named the incumbent, and empowered him to appoint certain other officers, and to fill vacancies. A provision of the Indiana Constitution, after dividing governmental powers among the three departments, provided that ‘no person charged with official duties under one of these departments, shall exercise any of the functions of another except as in this Constitution, expressly provided.’ Another provision empowered the governor to fill vacancies in state offices. The court held — three judges against two — that the act of the legislature violated both of these constitutional provisions. A study of the majority opinion shows it to be grounded upon the fact that there was no express authority conferred upon the legislature by the Constitution to fill such office. The court says: ‘Whatever may be said of the Constitutions of other states, it cannot be successfully maintained that, under the Constitution of this state, the legislature possesses latent or undefined power.’ If there be any reasoning in that case that does not meet our approval it is based upon a constitutional provision which we do not have. The case of State ex rel. Worrell v. Peelle, 121 Ind. 195, 22 N. E. 651, is in its main feature identical with State ex rel. Yancey v. Hyde.” ■

In the case at bar, there is no question that the people have the power to initiate and vote upon proposed amendments to the Constitution. There is no question that the legislative assembly has the power to ratify them. The power must be and is conceded. Kelators’ contention, in effect, therefore, is, not that the legislature does not have the power, hut, is that the proposed initiated amendments having not been duly adopted by the people, the exercise or attempted exercise of such power by the legislature would be a useless act and the state board, in consequence should be subjected to the interference of the judiciary thereby enjoining the exercise or attempted exercise of such power by the legislature.

Furthermore a distinction can be drawn between the process of amending the fundamental law through the initiative of the people and the process of amendment initiated by the legislative assembly.

Even though the process of amending the Constitution through the initiation of the legislative assembly by concurrent resolutions agreed upon by two successive legislative assemblies has been deemed a proceeding where the legislature is acting as the agent of the sovereign power, rather than in its legislative capacity (as narrowly defined). Nevertheless, a different conception can readily be applied when the people themselves are proceeding in their sovereign power.

Section 2 of the Constitution provides: “All political power is inherent in the people. Government is instituted for the protection, security, and benefit of the people, and they have a right to alter or reform the same whenever the public good may require.”

It has heretofore been stated that the principle of governmental construction applies in this state that all governmental sovereign power is vested in the legislature, except that granted to the other departments, and except that expressly withheld from the legislature by constitutional restriction.

More and more the people in this state, possessing the political power, have been taking unto themselves the right to alter and reform their government instituted by and for them. They have enacted initiative and referendum provisions reserving and giving to the people, in the exercise of their political power, the right to initiate laws, the right to refer laws, the right to initiate amendments to the fundamental law and the right to refer the same to them for their approval or rejection. This is the highest exercise of a political power and is a power which the people inherently possess as a political power as well as a legislative power.

In acting under this broad power they are acting for and by themselves subject only to the restrictions that they themselves have placed upon the exercise of their power in their Constitution.

Under this conception it is readily observed that there is a broad line of demarcation between judicial interference with sovereign agencies of the people, in other departments of the government, in compelling them to perform a duty enjoined, or in restraining them in exercising a power conferred, and a judicial interference with this exercise of the sovereign power of the people themselves, acting in their own right and pursuant to a power expressly reserved to them.

In the exercise of this sovei’eign power by the people, they have appointed instrumentalities or agencies acting for the people in the exercise of this power in order to give an expression to the sovereign will. These instrumentalities and agencies are not acting as such as a ministerial agent of the executive department or as ministerial agent of the legislative department. It will be readily conceded that the legislative assembly when exercising its pure legislative power in the enactment of a law cannot be restrained by the judiciary, whether the law proposed be unconstitutional or clearly beyond the powers of the legislative assembly. It will further be readily conceded that the clerk of the house or the clerk of the senate or any member of either body will not be restrained by the judiciary in certifying a legislative enactment or presenting the same or in transmitting the same from one body to the other, whether the same is being presented or is about to be presented in an illegal or unconstitutional manner.

Thus in Smith v. Myers, 109 Ind. 1, 58 Am. Rep. 375, 9 N. E. 692, it was held that the court had no jurisdiction to enjoin a secretary of state from transmitting certified returns to the house of representatives as required by the Constitution and statute of Indiana.

So in People ex rel. Sutherland v. Governor, 29 Mich. 320, 18 Am. Rep. 93, the court said: “On the other hand it would be readily conceded that no court can compel the legislature to make or to refrain from making laws, or to meet or adjourn at its command, or to take any action whatsoever, though the duty to take it be made ever so clear by the Constitution or the laws. In these cases the exemption of the one department from the control of the other is not only implied in the frame work of government, but is indispensably necessary if any useful apportionment of power is to exist.”

Likewise in Frantz v. Autry, 18 Okla. 561, 91 Pac. 193, it was held that the court had no power to restrain the constitutional convention, its officers or delegates, from exercising any of the rights, powers, and obligations entitled to it by Congress or the people.

Accordingly, in the case at bar the question is not the question of the power of the State Canvassing Board, but of the manner in which it is exercising such power.

Under this general conception of the nature of this proceeding, there can be no question that the judiciary as such has no power to interfere until such time when the proceedings had become a judicial question by directly interfering with the rights of the people or the rights of the state under constitutional provisions. Under initiative and referendum provisions, this conception of the power of the judiciary should obtain in order, not only that a judiciary may. retain its proper place as an arbiter of judicial questions and not political question, and further in order that the sovereign rights of the people, while being expressed or seeking expression in a legislative undertaking, may not be subjected to a government by injunction through the courts, advising, directing, or admonishing the expression of the sovereign will by the people.

That under such view point the judiciary should not interfere is well and amply sustained by the authorities. State ex rel. Cranmer v. Thorson, 9 S. D. 49, 33 L.R.A. 582, 68 N. W. 202; People ex rel. O’Reilly v. Mills, 30 Colo. 262, 70 Pac. 322; Speer v. People, 52 Colo. , 122 Pac. 768; Duggan v. Emporia, 84 Kan. 428, 114 Pac. 235, Ann. Cas. 1912A, 719; State ex rel. Rose v. Superior Ct. 105 Wis. 651, 48 L.R.A. 819, 81 N. W. 1046; Mauran v. Smith, 8 R. I. 192, 5 Am. Rep. 564; State ex rel. Bullard v. Osborn, 16 Ariz. 247, 143 Pac. 117; Allen v. State, 14 Ariz. 458, 44 L.R.A.(N.S.) 468, 472, 130 Pac. 1114; People ex rel. Sutherland v. Governor, 29 Mich. 320, 18 Am. Rep. 89; State ex rel. Taylor v. Lord, 28 Or. 498, 31 L.R.A. 473, 43 Pac. 471; State ex rel. Oliver v. Warmoth, 22 La. Ann. 1, 2 Am. Rep. 712; Frantz v. Autry, 18 Okla. 561, 91 Pac. 193; Mississippi v. Johnson, 4 Wall. 475, 498, 18 L. ed. 437, 441; People ex rel. Billings v. Bissell, 19 Ill. 229, 68 Am. Dec. 591; Dallas v. Dallas Consol. Street R. Co. 105 Tex. 337, 148 S. W. 292; Pfeifer v. Graves, 88 Ohio St. 473, 104 N. E. 533; note in 50 L.R.A.(N.S.) 215 et seq.; Cress v. Estes, 43 Okla. 213, 142 Pac. 411.

In the case of Orman v. People, 18 Colo. App. 302, 71 Pac. 430, it was held that the State Board of Canvassers in canvassing the election returns for the election of representatives to the general assembly were discharging duties political and governmental in their character, and that the court had no power to compel them to act in a particular manner, the said board having not refused to act.

In the case of Dallas v. Dallas Consol. Street R. Co. 105 Tex. 337, 148 S. W. 292, it was said that the court had no power to enjoin a ■canvassing board from canvassing the election returns on a proposed ordinance for the reason that such board was exercising a political power in so doing.

In the case of Grant v. Hardage, 106 Ark. 506, 153 S. W. 826, it was held that the court had no jurisdiction to restrain the speaker of the house of representatives from declaring that a constitutional •amendment had been adopted.

In the case of Frost v. Thomas, 26 Colo. 222, 77 Am. St. Rep. 259, 56 Pac. 899, the court held that it had no power to compel the governor to refrain from putting in force a law for the reason that it was claimed to be unconstitutional, because the governor was performing an executive duty, a function governmental in its nature, with which the judiciary could not interfere.

So, again, in the case of Smith v. Myers, supra, the court held that it was without jurisdiction to restrain the secretary of state from certifying election returns of the votes cast for lieutenant governor to the house of representatives.

In the case at bar the state canvassing board in performing its duties in connection with the canvassing of the election returns upon the proposed constitutional amendments are performing a political function, legislative in its character; they are performing a function in the exact manner which the statute has required it to do. The board has not refused to act; the complaint is made that it did not act in the proper manner.

It might well happen that the legislative assembly would require or command such board to certify the canvass made by them in the manner that it was made, and thereupon there' would be presented the question of the judiciary and the legislative branch of a government exercising its authority over this board; from the views expressed herein it is clear that this court has no jurisdiction to compel or direct such state board concerning the manner in which it shall canvass and certify the election returns upon the amendments in question.

S. The Question of the Due Adoption of the Initiated Proposed Amendments.

Although the primary jurisdictional questions, hereinbefore considered, are sufficient to deny the application of the relators, there is still another valid and potent reason why this court should not exercise its original jurisdiction to grant its prerogative writ herein to control or direct the action of the State Board of Canvassers.

It is considered now wholly proper to consider every point raised by the relators herein contending for the issuance of the prerogative writ of this court. There are no plain and evident reasons why this court should consider every point presented upon the record herein which legally justify this court in refusing to issue its prerogative writ. It is now no secret and this court may take judicial notice (Comp. Laws 1913, § 1983, subd. 59), that the legislative assembly, during the pendency of this cause, have received, passed upon, and adopted the proposed initiated amendments herein; Now, on their face, these proposed amendments are a part of the constitution of this state. This court is not now in an advisory position to the legislature. Its action herein will not now in any manner interfere with, direct, or control, by its judicial decree, the legislative proceedings upon such amendments, already had. The judicial question presented and now to be considered can be passed upon by this court without any judicial interference with or admonition to the legislative branch of the government :

This question ■ concerns the interpretation to be placed upon the language used in subdivision 2 of the 16th (Gibbens) Amendment for the adoption or approval of initiated proposed amendments by the people at a general election, requiring them to <ereceive a majority of all the legal votes cast at such general election

The question is: Whether such amendment must each receive an affirmative vote equal to a majority of the electors who were present and voted at such general election; or,

An affirmative vote equal to a majority of the electors who voted on the amendment in question.

In the legislative assembly of 1911 the amendment in question, the Gibbens Amendment, was introduced and adopted in the form of a concurrent resolution amending article 15 of our original Constitution as it had existed since statehood. Chap. 89, Laws of 1911.

At the same session of such assembly there were also introduced and adopted a concurrent resolution known as the Plain Amendment (Chap. 86, Laws of 1911), providing for an initiative and referendum by the people, amending said article 15 and article 2 of the Constitution and requiring on constitutional measures, by the people, a majority of all votes cast thereon, and on legislative matters, a majority of votes cast thereon, also another concurrent resolution, known as the Doyle & Ployhar Amendment (Laws 1911, chap. 94) likewise providing for an initiative and referendum and amending said article 15 and article 2 of the Constitution, requiring on constitutional measures, by the people, a majority of electors voting thereon, and, on legislative matters, a majority of votes cast thereon, and also a concurrent resolution, known as the Bessessen Amendment (Laws 1911, chap. 93) providing for an initiative and referendum on legislative matters and amending said article 2 of the Constitution, §25, and requiring an approval by the people on matters submitted thereunder of a majority of votes severally cast for and against the proposition. ' In the legislative assembly of 1913 all óf these amend ments were again introduced, but only two of them, the said Gibbens and Bessessen Amendments were adopted. At the general election held in 1914, these proposed amendments were submitted to the people for approval and ratification and were adopted by large majorities, the Bessessen Amendment now known as art. 15 of the amendments receiving 48,783. votes for and 19,964 against, and the Gib-bens Amendment, receiving 43,111 votes for and 21,815 against. This Gibbens Amendment has now been before this court for the third time for interpretation and construction. In 1916 in State ex rel. Linde v. Hall, 35 N. D. 34, 159 N. W. 281 (the New Rockford Case), this court, held that the provisions of such amendment concerning the submitting of initiative petitions thereunder to the people were not self-executing and restrained the secretary of state from submitting an initiative petition filed thereunder for the removal of the state capitol. In 1918, in State ex rel. Twichell v. Hall, No. 3647, post, 459, 171 N. W. 213; reversed the holding in the New Rockford Case, held that said Gibbens Amendment was self-executing in its provisions and refused to restrain the secretary of state from submitting the initiative petitions filed for the submission of the proposed amendments to the Constitution that are involved herein and which the re-lators now claim were not duly adopted by the vote of the people at the last general election held.

It is now interesting to observe our Enabling Act, the constitutional provisions as variously stated therein concerning the specific question herein involved, the judicial construction thereon consistently followed since statehood, and the legislative enactments and legislative policy likewise followed and adopted since statehood.

In the Enabling Act, passed by Congress and approved Eeb. 22d 1889, providing for constitutional conventions and the manner of- the submission of the proposed Constitutions to the people of the territory of Dakota out of which arose the states of North Dakota and South Dakota, it was provided in § 8 thereof that the proposed Constitution formulated by the constitutional convention for the territory, now the state, of North Dakota should be submitted for ratification or rejection by the qualified voters at an election to be held on the first Tuesday in October, 1889: That at such election the qualified voters should vote directly for or against the proposed Constitution, and for or against any articles or propositions separately submitted; and further that “the returns of said election shall be made to the secretary of each of said territories, who, with the governor and chief justice thereof, or any two of them, shall canvass the same and if a majority of the legal votes cast shall be for the Constitution, the governor shall certify the result to-the President of the United States, together with a statement of the votes cast thereon and upon separate articles or propositions.” In section 9 thereof it was further provided that representatives to the 51st Congress and the governor and other officers provided for in. such proposed Constitution might be elected on the day of such election.

At such election in October, 1889, the proposed Constitution now the original Constitution of .the state consisting of 20 articles was submitted to the voters; also the election of the governor and other state officials. The body of such Constitution, 19 articles, was submitted as one proposition and article 20 thereof, the prohibition clarise was submitted as a separate proposition. At such election the vote cast for the body of the Constitution was 27,441 for and 8,107 against; for the prohibition clause 18,552 for and 17,393 against. The total vote cast for governor was 38,098. A certificate of the result of such vote upon the proposed Constitution was made by the governor as required by said Enabling Act to the President of the United States, and pursuant thereto, President Harrison on Nov. 2d, 1889, issued a proclamation admitting this state into the Union wherein he stated in part as follows.

“Whereas it has been certified to me by the governor of the territory of Dakota that within the time prescribed by said act of Congress a Constitution for the proposed state of North Dakota has been adopted and the same ratified by a majority of the qualified voters of said proposed state in accordance with the condition prescribed in said act;

“Anri whereas it is also certified to me by the said governor that at the same time that the body of said Constitution was submitted to a vote of the people, a separate article, numbered 20 entitled ‘Prohibition’ was also submitted and received a majority of all the votes cast for and against said article as well as a majority of all the votes east for and against the Constitution and was adopted.” [26 Stat. at L. 1549.]

In State ex rel. Larabee v. Barnes, 3 N. D. 319, 55 N. W. 883, the relator informed against for violation of such prohibition clause and the statutory enactments made pursuant thereto, sought relief through a writ of habeas corpus in this court, claiming that such prohibition clause was null and void for the reason that it had not been adopted by the majority required under the terms of such Enabling Act since such prohibition clause received only 18,552 votes therefor, or less than a majority of the total votes cast for governor at such election which were 38,098 votes.

Concerning this contention the court said:

“Upon these facts it is urged upon us with great earnestness and force that a ‘majority of the votes cast’ within the meaning of said § 8 of the Enabling Act, were not in favor of the adoption of said article 20, and hence the same was never adopted. This proposition cannot, receive our assent and we will briefly state some of the reasons which irresistibly lead our minds to the opposite conclusion. Said § 8 of the Enabling Act requires (and the requirement is mandatory) that the proposed Constitution, and any specified article that the constitutional convention may direct, be submitted to a vote of the people, and that any such specific article shall be voted upon separately, and that, if a majority of the votes cast be in favor of the Constitution that fact shall be certified to the President of the United States, with a statement of the votes for and against the Constitution and each specific proposition so separately submitted, together with a copy of the Constitution and of any articles separately submitted-; and from the data thus certified the President was required to determine whether or not the Constitution was republican in form and' whether or not all the requirements of the Enabling Act had been complied with, and, if so, he was required to issue his proclamation admitting North Dakota as a state. Where, in this section, Congress spoke of the votes cast, it had reference to votes cast upon the particular objects which it directed should be submitted to a vote of the qualified electors. Congress had no knowledge that any candidate for offices would be voted for at that same election, and the matter of electing officers was left under the exclusive control of the constitutional convention; and, further, it was tbe vote upon tbe Constitution and tbe articles, if any, separately submitted, that was to be certified to tbe President; and if by the use of the words ‘majority of legal votes cast’ Congress meant votes cast upon any subject other than those directed to be certified to the President, it would be obviously impossible for that official ever to determine whether or not the Constitution had been legally adopted, and yet under the act, the duty devolved upon him to determine that question at once. These considerations seem to us to conclusively establish that when Congress used the words ‘majority of legal votes cast’ it meant votes cast for or against the adoption of the Constitution or of the articles separately submitted. Whether or not Congress did not also intend that, in case the Constitution was adopted, the separate articles should stand or fall upon their separate vote, we need not determine.”

The relators place the construction upon, this case that the decision was based upon the grounds that Congress had no knowledge that state officers would also be voted on at this election, that it was the vote upon the Constitution and articles that was required to be certified to the President, and that if Congress had intended differently it would have been impossible ever to determine whether the Constitution had been legally determined, and furthermore that, if this court had at that time conceived the law to be that a majority of all the votes cast at a general election meant merely a majority of those cast for or against a particular measure, it could easily have said so. This contention is answered when it is observed that Congress specifically provided in such Enabling Act that state officers might be elected at the same election as well as representatives to Congress. Furthermore, in this same act, § 5 thereof, Congress provided that at the election of delegates for the constitutional convention, held in May, 1889, there should be submitted the proposition of the “Sioux Falls Constitution” for approval or rejection by the voters and for the determination thereof by a majority of the votes on such question; and, if the same was approved, for Hie later submission of the same again by such convention to the voters along with other questions, articles, and propositions and for the determination of the result by a majority of the votes cast on the ratification or rejection of such Constitution. It therefore appears that Congress used language in such act providing in some case for approval of matters to be submitted to tbe voters by a majority of votes cast on the proposition and in other case for a majority of the legal votes cast. Nevertheless the interpretation of the territorial Canvassing Board, of the Federal government, and of this court was favorable for the due adoption of the prohibition clause by a majority vote cast on the proposition. Even though this court in State v. Barnes did not specifically determine the meaning of the words “majority of the legal votes cast” aside from the terms of the Enabling Act, its holding is significant in view of the later decisions of this court upon the question.

See also schedule, § 20, N. D. Const.

In our Constitution and in our statutory legislation, anterior to, and concurrent with, the introduction, passage, and adoption of the Gibbens Amendment, expression has been given in various forms to the manner in which a determination may be had of the approval or rejection of measures or propositions submitted to the people.

A few of these may be quoted for purposes of illustration.

In art. 5 § 122 of the Constitution, concerning the elective franchise, it is provided: But no law extending or restricting the right of suffrage shall be in force until adopted by a majority of the electors of the state voting at a general election

In art. 4, § 111, in the Constitution, relating to county courts, it is provided that the jurisdiction of said court may be increased whenever the voters of a county with the requisite population shall so decide by a majority vote.

In art. 10 § 168, of the Constitution, relating to county and township organization, the provision is: “All changes in the boundaries of original counties before taking effect shall be submitted to the electors of the county or counties to be affected thereby at a general election and be adopted by a majomiy of all the legal votes cast in each county at such election."

In § 170 of said art. 10, it is provided: “The legislative assembly shall provide by general law for township organization under which any county may organize, whenever a majority of all the legal voters of such county voting at a general election shall so determine, and whenever any county shall adopt township organization, so much of this Constitution as provides for the management of the fiscal concerns of said county by tbe board of county commissioners, may be dispensed with by a majority vote of the people voting at any general election

In § 171 of said art. 10, it is further provided: “In any county that shall have adopted a system of government by the chairmen of the several township boards, the question of continuing the same may be submitted to the electors of such county at a general election in such a manner as may be provided by law, and if a majority of all the votes cast upon such question shall be against said system of government, then such system shall cease in said county, and the affairs of said county shall then be transacted by a board of county commissioners as is now provided by the laws of the territory of Dakota.”

In § 202 of art. 15 of the original Constitution, providing for future amendments of the Constitution by the adoption of a proposed amendment by two successive legislative assemblies, it is provided for the submission of the same to the people thereupon as follows: “Then it shall be the duty of the legislative assembly to submit such proposed amendment or amendments to the people in such manner and at such time as the legislative assembly shall provide: and if the people shall approve and ratify such amendment or amendments by a majority of the electors qualified to vote for members of the legislative assembly voting thereon, such amendment or amendments shall become a part of the Constitution of this state.”

Under § 565 of the Compiled Laws of Dakota Territory for 1887, which pursuant to schedule § 2 of our Constitution became in force in this state when it became a state, it was provided with reference to the removal of county seats: “Whenever the inhabitants of any county are desirous of changing the place of their county seat, and upon petitions being presented to the county commissioners, signed by two thirds of the' qualified voters of the county, it shall be the duty of the said board, in the notices for the next general election, to notify said voters to designate upon their ballots, at said election, the place of their choice; and, if, upon canvassing the votes so given, it shall appear that any one place has two thirds of the votes polled, such place shall be the county seat.”

Under § 1883, Revised Codes 1895, the question of the removal of a county seat was determined at a general election by “two thirds or more of all the legal votes oast by those votmg on the proposition

Under § 1886, said Eev. Codes 1895, it was further provided that when such election had been held and at least two thirds of the votes are not cast for some other place than that fixed by law as the former county seat, no second election for the removal thereof must be held within four years thereafter, and further under §§ 1887 et seq., when a county seat has been once removed, it could be removed again at a general election when two thirds of all the votes cast are in favor of some other location.

In 1915, the legislative assembly amended said § 1883 but not the method of determination, the same still remaining "two thirds or more of all the legal votes cast by those voting on the proposition” (Laws 1915, chap. 116). It did amend however, in this respect, said § 1886 by providing as follows: “When an election has been held and at least hoo thirds of the votes cast at such election are not cast for some other place than that fixed by law as the former county seat, no second election for the removal thereof must be held within four years thereafter.” (Laws 1915, chap. 117). Again in 1917 the legislative assembly again amended said chap. 117, Laws 1915, but retained the same language concerning the method of determination by vote of the people. Laws 1917, chap. 102.

Attention may also be called to § 4278, Compiled Laws 1913, enacted in 1897, providing for the dissolution of townships by a majority of all the legal voters in such civil township. To § 1190, Compiled Laws 1913, last enacted in 1913, providing for a consolidated school by a majority of votes cast at such election. To § 4043, Comp. Laws 1913, providing for the increase of the limitation of municipal indebtedness by a vote of the electors of such municipality at an election held for that purpose. To § 4015, Compiled Laws 1913, providing for the authorization of municipal bonds by a majority vote of the qualified electors of such city or municipal corporation voting thereon at an election called regularly for that purpose. To § 3773, Compiled Laws 1913, last enacted in 1911, providing for the adoption of the commission form of government for cities by a majority of the votes cast at such election.

From the constitutional and statutory provisions quoted, it is readily observed that there has been a noticeable lack of uniformity in the phraseology used to express a method of determining the approval or rejection of propositions submitted to the people.

It is also to be noticed that in the Constitution including the Bessessen Amendment, art. 15, and the Gibben Amendment, art. 16, eight different phrases have been used to express a method of determination of the vote of the people. It is also particularly noteworthy to observe that the phrase “majority of all legal voles cast” has been used three times in the Constitution, to wit, in the Gibbens Amendment twice and in § 168 of the Constitution once, and also in the Enabling Act, excepting that the word “all” is not used in Enabling Act phrase. It also is to be observed that when the legislative assembly in 1915, used the phrase “two thirds or more of all the legal votes cast by those voting on the proposition ” in chap. 116, Laws 1915, it meant the same as the expression or phrase “two thirds of the votes cast at such election” contained in chap. 117, Laws 1915, for both refer to a general election and both refer to the same subject-matter, to wit, the vote necessary to remove a county seat; otherwise these phrases would be inconsistent.

With these premises a consideration may now be had of the holdings and policy of construction followed by this court and other courts upon this phrase “majority of all legal votes cast,” and the meaning of the same in the Gibbens Amendment.

In State ex rel. Little v. Langlie, 5 N. D. 594, 32 L.R.A. 723, 67 N. W. 958, this court said: “The general policy of the American people is to test the sufficiency of any vote by the vote on the particular question, and not by the vote on some other question. Unless the language is free from doubt we have no right to spell out of the statute by a far fetched inference, a purpose to depart from this general policy.”

As otherwise stated, in State ex rel. McCue v. Blaisdell, 18 N. D. 31, 119 N. W. 360: “Where there, is submitted to a vote of the electors of a given county or other district, a special question, whether so submitted at a general or special election, a majority of the votes cast upon that question only will be sufficient to carry the question or adopt the proposition, unless the legislative will to the contrary is clearly expressed in the law or the Constitution, as the case may be.”

Relators have devoted a large part of their brief in explaining, construing, in part contending against and disagreeing with the case of State ex rel. McCue v. Blaisdell, supra. They even urge this court to overrule the principles of law announced in that case upon the subject-matter involved.

The opinion in this case was written by former Chief Justice Spal-ding, who was a member of the constitutional convention. It is a well-considered and able opinion. It followed and is consonant with the principles of construction applied on this subject-matter by the earlier cases of State ex rel. Larabee v. Barnes, 3 N. D. 319, 55 N. W. 883, and State ex rel. Little v. Langlie, supra. It has not since been overruled. In the case of State ex rel. Minehan v. Thompson, 24 N. D. 273, 314, 139 N. W. 960, the bar of this state were assured that this court then considered such case as an authority. Upon its principles of construction the prohibition clause in our Constitution from statehood has been upheld and a rule of personal and property rights thereunder followed. Likewise upon .its principles of construction have the location of county seats and the boundaries of counties been determined. The principles of law announced in this case in placing a construction upon the meaning of “a majority of all the legal votes cast” are clear, explicit, consonant with this court’s other decisions and the expressed legislative policy and supported by the clear weight of authority upon the meaning of such particular phrase.

In this case of State ex rel. McCue v. Blaisdell, an application was made to this court for an original writ of certiorari. It appeared that in the general election of 1908 several propositions were submitted to the electors of Ward county for the division and creation of new counties therein. At such election none of the propositions received a majority of the votes cast thereon excepting the proposition for the creation of Mountraill county which received 4,207 votes for and 4,024 against. At that election the various candidates for governor received an aggregate vote of 9,259 votes. The sole question presented for determination was the construction to be placed upon the phrase “a majority of all the legal cast” contained in § 168, art. 10, of the Constitution, hereinbefore mentioned, relating to the vote necessary to accomplish a change in the boundaries of counties. The relator contended that such section properly construed, required an affirmative vote equal to a majority of the total votes cast for the different candidates for governor, and the respondent contended that such provision required only a majority of the votes cast upon the proposition. To arrive at a determination of the question the court proceeded to define or interpret the meaning of the words, “elector,” “voter,” “votes cast” and “ballot.” In this respect the court said: “We deem it advisable to first consider and determine the meaning of certain words contained in the constitutional provision quoted, stripped of meaningless words, as applied to the present controversy and to simplify matters, we may read that portion of § 168 quoted as follows: all changes in the boundaries of organized counties shall be submitted to the electors at a general election and be adopted by a majority of the votes cast at such election. The word ‘electors’ may be used to apply to different classes or bodies of people. It is sometimes applied to all persons who are qualified to vote within their respective political subdivisions. At other times it is used as synonymous with ‘voters’ and in many instances has been used indiscriminately and interchangeably with the word ‘voters.’ But its meaning in the section in question is not left in doubt, because it is defined by the Constitution itself [quoting § 121, Const, as amended]. We next come to the interpretation of the words ‘votes cast,’ and to aid us in this we may seek the definition of the word ‘voter.’ This word, like the word ‘elector’ is used in various senses, but when used in apposition to or in contrast with, the word ‘elector’ it has but one meaning. A voter in this sense is an elector who exercises the privilege, conferred upon him by the Constitution and the laws, of voting. lie is an elector who does vote, and in the present instance, a voter is one who voted at the last November general election, and on the question in controversy is one who actually voted, either for or against the creation of the new county. . . . An elector is not a voter unless he votes, yet he still retains his qualifications as an elector. The word ‘vote’ used as a noun is the expression of the choice or preference of the voter. The choice may be exercised in several different manners; viva voce, by the use of a ballot; by show of hands; by a division of the house or meeting, and possibly by other methods.”

The court further said:

“A ballot, as distinguished from a vote in the legal sense, and in a general way, is the piece of paper upon which the voter expresses his choice. Under the Australian system, for the reasons above enumerated and many others, the voter is permitted to express his choice or vote upon any offices, and perhaps many questions on the same ballot. It is but an application of the same principle that prevailed when the choice of the voters was expressed viva voce or by any of the old methods. In other words notwithstanding he may use but one ballot, the voter casts as many separate votes or expresses his choice as many times, as there are candidates or questions for or against which he votes. To illustrate: He casts a vote for presidential electors, another vote for governor, another vote for member of Congress, and so on through the list of offices to be filled or questions to be voted upon. In the case at bar the statutes of this state require the submission of amendments to the Constitution, creation of new counties, and other similar questions, to the voters on a ballot separate and distinct from the ballot used in voting for various officers, and that it be deposited in a separate box. And it is clear to us that the words Votes cast’ as used in § 168 mean the total of the separate votes of the voters for and against the question submitted. The votes cast for presidential electors have no relation, in the matter of determining who are elected or which party prevails, to the votes cast for governor and vice versa. There is no more reason why the votes cast on the question of creating a new county should have any relation to the votes cast for governor than the votes cast for presidential electors should have. Nor is there any logical reason why the votes cast for governor should have any relation to those cast on the question of the creation of a new county.” (p. 38.)

“According to the American • doctrine the majority is entitled to rule — the preference of a majority on any question is expressed by the vote of those who actually vote, unless a different intention is clearly expressed. The choice of the voter is expressed by the vote he actually casts for or against a proposition. To adopt the relator’s theory in this proceeding would be to give as great weight to a vote which was not cast as to one which was cast, and in effect would be to count the electors who voted for governor, and did not vote on the county division question, as voting against the division. It ought to require the plainest language, and that it be so expressed as to leave absolutely no doubt in the mind of the intelligent reader of its meaning to justify a court in holding that no vote counts precisely the same as though the vote had been cast against the proposition. The correct principle applicable in cases where the meaning is ambiguous, or is not so expressed as to clearly indicate that an elector who does not vote shall be held as voting ‘No,’ is that electors who do not participate in an election, or are not interested enough in public affairs to attend the polls and cast their vote and express a choice, acquiesce in the result of the votes cast by those who do vote, whatever such result may be. It is equally plain that if an elector enters the booth and votes for some candidates and not for others, or votes for all candidates, but fails to express his choice on a question submitted, he delegates to those who do vote his rights as an elector and acquiesces in the result, be it one way or the other.” (p. 39 citing cases.)

These principles of construction announced in this case apply to the case at bar, if that case is an authority, and the doctrine of stare decisis obtains unless there can be read into the amendment involved and the surrounding circumstances, outside of the phrase itself, a clearly expressed legislative intention to, obviate such construction.

No process of refinement can make these principles of construction, so clearly announced, as applied to § 168 of the Constitution different when applied to the Gibbens Amendment in question concerning the meaning of the phrase, “a majority of all legal votes east.”

The language of the phrase used in both is exactly the same, and the surrounding phraseology, remarkably similar.

Under said § 168 of the Constitution, it is required that the proposition be submitted at a general election. Under the Gibbens Amendment, it is likewise required that the proposed initiated amendment be submitted at a general election. Relators contend that there is a distinction to be drawn here because in the Gibbens Amendment the phrase used is “a majority of all the legal votes cast at such general election,” whereas in said § 168 it provides only, “at such election” and that the holding of Judge Spalding in the Blaisdell Case in respect thereto, was that the voting on the county division question was, in effect, a separate election and further that the use of this word “general” in connection with the provision in said Gibbens Amendment that the proposed amendment shall be placed upon the ballot to be voted upon by the people at the next general election, manifestly indicated an intention that the proposition should be placed upon the general ballot, or, at least, if placed upon a separate ballot, that it should be considered as a part of the general ballot to all intents and purposes and excluded the idea that a vote on such proposition should be in any manner treated as a special election or as anything except a constituent part of the general election.

Regardless of the violence that this argument to the definitions and principles of construction stated by Judge Spalding, relators’ contentions are easily answered. Relators apparently entirely overlooked the case of State ex rel. Miller v. Flaherty, 23 N. D. 313, 41 L.R.A.(N.S.) 132, 136 N. W. 76, as well as the statutory provisions applicable. The Gibbens Amendment is self-executing in its terms. Statutory legislation and expressed legislative policy already existing, not contravening or in opposition to its terms, furnished the law and the intent to carrying into execution its provisions. State ex rel. Twichell v. Hall, post, 459, 171 N. W. 213.

Under § 959, Compiled Laws 1913, proposed constitutional amendments are required to be printed on a separate ballot and to be deposited in a box separate from that provided to receive ballots for public officers.

There was the same statutory provision for a separate ballot and a separate box in which the same were required to be deposited, at the time the question of county division under said § 168 was involved in the Blaisdell Case. The proposed amendments involved herein were printed on a separate ballot and were presumably deposited in a separate box. At the general election in November, 1918, there were four different ballots, the general ballot for congressional, state and county offices, the nonpartisan school ballot for state and county superintendents of schools, and the nonpartisan judiciary ballot for judge of the supreme court. The nonpartisan ballots and the constitutional amendments ballot, each presented a complete separate election simultaneously held with the general election. State ex rel. Miller v. Flaherty, supra.

In this case, concerning this matter, the court said: “As further evidencing the legislative intent, notice also that under our present primary election laws two classes of primary elections are now simultaneously held: Namely, the nonpartisan judiciary primary, a com-píete separate election at which no test of party fealty can be exacted and is in express terms prohibited; the object of which act is to nominate in a nonpartisan manner, regardless of political affiliations, candidates to be elected in the fall at a similar nonpartisan election then held simultaneously with the general election; in addition, simultaneously there is held the partisan primary, at which the personnel of two or more separate party tickets is chosen to contend for office by election at the ensuing general election upon party platforms. That such elections, though held together, are in law separate elections, see State ex rel. McCue v. Blaisdell, 18 N. D. 31, 119 N. W. 360, where it was held that a change of county boundaries amounting to county division and the formation of new counties under § 168 of the Constitution, and thez’ein required to be submitted to the electors and adopted by them at a general election, was no part of the general election at which the question was submitted; but, instead, was a special election simultaneously held upon that one matter, at which a majority only of the votes cast thereon (or in said special election) was necessary, and county division was legally carried when a majority of the votes cast on the division proposition voted affirmatively thereon, although such affirmative votes were -not ill fact a majority of all votes cast at the general election simultaneously.”

Following these decisions, consonant with the legislative expressed policy concerning our election laws pursued since statehood, there remains no room for argument, therefore, that the submission of a constitutional amendment to the people in this state is an independent proceeding or submission and that a “vote cast” is the individual expression of the “voter” upon the particular proposition or upon the particular office to be filled. A “vote cast” is not the aggregate expression of the individual “voter” upon the various propositions or questions and the various offices to be filled. “Votes cast” does not mean the same as “the aggregate number of electors who did vote at an election.” Both upon reason and principle this construction, according to the ideas of American democracy, adopted and consistently followed in this state both by legislative expression and judicial construction, should be and is adhez’ed to by this court.

Furthermore, § 1025, Compiled Laws 1913, specifically requires the State Board of Canvassers to ascertain the whole number of votes given for and against any proposed constitutional amendment submitted to a vote of the people and to determine and certify whether such amendment has been approved and ratified by “a majority of the electors voting thereon.” If this section had required such board to determine and certify whether such amendment has been ratified and approved by “a majority of votes cast,” it would mean the same as it now provides. Upon the construction placed as stated herein, the legislative expression, the judicial construction continuously followed in this state, and the Gibbens Amendment all agree. But relators contend that there are peculiar circumstances in connection with, and in the passage of, the Gibbens Amendment that show peculiarly an intent for a construction contrary to these established rules and precedents of legislative expression and judicial construction heretofore obtaining in this state. They mention that the Gibbens Amendment states two different phrases as a method of determining approval by the people, one in the first subdivision, the original § 202 of the Constitution before amendment, which requires an approval of a proposed constitutional amendment submitted by the legislative assembly “by a majority of the electors qualified to vote for members of the legislative assembly voting thereon and the other, contained in the Gibbens Amendment proper, the phrase in question, "a majonty of all legal votes cast at such general electionThey contend that these two different phrases do not mean the same, and that the fact that a different phrase was used displays an intent to require a majority of the aggregate number of electors who voted on any question or proposition at a general election in order to approve or ratify a proposed constitutional amendment under such Gibbens Amendment. Further, they contend that said § 1025, Oomp. Laws 1913, was enacted years ago for purposes of submission of constitutional amendments under § 202 of the original Constitution. They further state that in the legislative assemblies of 1911 and 1913 other proposed amendments to the Constitution were being considered by such assemblies (heretofore mentioned) ; that these proposed amendments contained phrases concerning the method of determining the approval of the electors showing clearly a requirement of only a majority of votes on the specific proposition submitted; that all of these proposed amendments were defeated in the 1913 Legislative assembly execepting the Bessessen Amendment providing for an initiative and referendum as to legislation (art. 15 of Constitution), which requires approval of matters submitted thereunder by a majority of the votes cast thereon and not otherwise; that these circumstances show an intent to apply a different meaning to the phrase “a majority of all legal votes cast,” contrary to the meaning and construction theretofore given by legislative expression and judicial construction, and therefore the rule of stare decisis should not apply, and State v. Blais-dell should be overruled. In the opinion of the court this contention presents the only serious question on the merits raised by the relators. It is answered by a consideration of our various constitutional provisions, and statutory provisions, and expressed legislative policy, even that of the legislative assemblies of 1911 and 1913, concerning the various phrases involved, the general interpretations placed thereon, as well as by settled rules and principles of construction.

Article 10 of the Constitution, concerning county and township organization, was considered and reported to the constitutional convention by the committee on county and township- organization. It was considered by the committee of the whole in such convention, section by section. It will be noticed that in this article, in § 168 thereof, the phrase in question, “a majority of all the legal votes cast” occurs; in § 171 of the same article, relating to the continuance of township organization for the county, the question of such continuance submitted to the electors depends upon “a majority of all the votes cast upon such question” at a general election. Here in the same article the two phrases are used substantially the same as in the Gibbens Amendment. Both of these sections were considered by the constitutional convention: the constitutional debates disclose no intent to impart a diifer-ent meaning to such phrases. In fact the record of such debates show no question raised concerning the same. Accordingly, the same question, concerning intent, only in a stronger form, was present in the consideration of the case of State ex rel. McCue v. Blaisdell. Judicial construction in this state has said that these phrases mean the same thing. Legislative enactment and expression has likewise construed the same to mean the same. Under § 1007, Compiled Laws 1913, existing as such practically since statehood, inspectors of election are required to determine and certify the number of votes cast for and against each proposition submitted, constitutional amendment, county division matter, or otherwise. Furthermore, in the division of counties, § 3205, Comp. Laws, 1913; has required for over twenty-four years. (Eev. Codes 1895, § 1854) the county commissioners to prepare a form of ballot for voting upon county division pro and con, and for the canvass and return of the votes cast upon the proposition submitted. Likewise, § 3206, Comp. Laws 1913 (being substantially same as § 1855, Eev. Codes 1895), provides, “if it shall' appear that a majority of all votes cast at such election in each of the counties interested is in favor of the formation of such new county or counties,” the county auditor shall so certify to the secretary of state, etc.

The legislative construction so given, not only subsequent, but also anterior and concurrent with, the State ex rel. McCue v. Blaisdell Case, is obvious.

With this construction concerning the phrase “a majority of all the legal votes cast ” both legislative and judicial, existing in this state ever since statehood, the Gibbens Amendment whs introduced with this specific phrase therein contained and repeated, adding such Gib-bens Amendment proper (subdivision 2 of art. 16), merely to the original § 202 of the Constitution. What purpose was intended thereby ? Was it the purpose and intent to introduce doubt and uncertainty or was it the purpose to try and make definite and certain the meaning of such phrase ? Surely if the purpose was to introduce an uncertainty as to meaning, why should there be used a phrase, practically the identical phrase, which had been passed upon both judicially and in a legislative way ever since statehood. In the Constitution itself, then existing, there was before the legislative assembly many other modes of expression concerning this question of determination of a vote, such as the phrase “majority of the electors voting at a general election” contained in § 122, Const., and the phrase “majority of all the legal voters voting” contained in § 170, Const., upon which there did not exist such specific legislative and judicial construction. Why were these phrases not used if it should be said that there was any intent to introduce doubt and uncertainty? Every legislator in these legislative assemblies for the years 1911 and 1913 had the right to rely upon the meaning and construction placed upon the phrase “a majority of all the legal votes cast” both by the judiciary and the theretofore legislative expressions and enactments had. Every such legislator had the right to give expression to a different intent by using a different phrase, or by expressly indicating in a legislative way a different meaning to the' specific phrase in question so as to expressly overrule the legislative and judicial construction then obtaining. Such legislative assemblies did not so do. On the contrary they expressly recognized the theretofore interpretation and construction given both in a judicial and legislative way, by the re-enactment of § 1886, Eev. Codes 1895, through chap. 117, Laws 1915. By the re-enactment of chap. 45, Laws 1907, through chap. 77, Laws 1911. Likewise the 1917 legislative assembly again recognized this settled construction by re-enacting chap. 117, Laws 1915, through chap. 102, Laws 1917. Certainly, if it was the intent to make definite and certain a method of determining the approval of the people, and so it is presumed the legislative intent was, a phrase was used which specifically had been determined, both by judicial and legislative construction, concerning its meaning. The fact that other proposed amendments, considered • in the same legislative assemblies, used different • phrases as a method of determining approval by the people, some specifically mentioning the vote upon the proposition, pro and con; that all of these were finally defeated excepting the Bessesscn Amendment (supra) which was adopted and specifically provides for a “majority of the votes severally cast for and against the proposition” —does not show a legislative intent to overrule the long-established meaning given to the phrase involved herein. It is not shown nor is it claimed that the passage or defeat of the proposed amendments, so mentioned, or any of them, depended upon these different phrases that were variously used. It is not shown nor is it claimed that the meaning of the phrases so used in such proposed amendments were even debated or considered either in committees or on the floors of the respective legislative assemblies. The Gibbens Amendment was introduced in the senate, in 1911. It was reported out of the committee with only minor amendments. It passed the senate practically unchanged in' the form that it was introduced. It passed the house unchanged. Not anywhere in the record of the house or the senate is there shown any action which indicates any attempt to change this phrase or to give to it any different meaning or interpretation than that already had by judicial and legislative construction. If any inference, »t all, is to be indulged in, it is that this legislative assembly, having five other matters concerning proposed constitutional amendments before it, all using various phrases and methods of determination for the approvals thereof by the people, and having thereby this specific matter at least brought to their attention from the contents of the respective proposals, were satisfied with the phrase as used in the Gibbens Amendment and with the meaning and construction that had been theretofore placed upon the same knowledge of which the relators concede the assembly presumably had. In fact, the various proposed amendments before such legislative assembly differed widely in their matters of substance and procedure as an inspection of the same will readily disclose. In 1915 such proposed amendments referred to that legislative assembly had to be adopted, if at all, unchanged. It is fair to presume that some of the wide differences in substance and procedure in these proposals had something to do with the defeat of some of such proposals. It also will be noted that the proposed amendments that were adopted were the senate proposals; also, that the records of the house and senate journals disclose a long consideration and spirited contention concerning whether the senate proposals or house proposals should be adopted. These matters may also have had something to do with the proposals so defeated. Furthermore, it should be taken into consideration that these various proposed amendments were each largely framed upon existing or proposed initiative and referendum measures or amendments in various other states.

The practical construction given by the legislative department upon the phrase in question both in the constitutional and statutory provisions is entitled to be considered by, and to have weight with, the judiciary. 8 Cyc. 736; Cooley, Const. Lim. 7th ed. 102; Sutherland, Stat. Constr. § 229; Story, Const. §§ 408, 409; State ex rel. McCue v. Blaisdell, 18 N. D. 39, 119 N. W. 360, and cases cited; State ex rel. Davis v. Fabrick, 18 N. D. 402, 121 N. W. 65; State ex rel. Linde v. Packard, 35 N. D. 298, 322, L.R.A.1917B, 710, 160 N. W. 150.

“In cases of doubt and uncertainty the solemn declaration of the legislative branch of the government, or practical construction by the executive department, gives a certain sanction, and will be influential with the courts. So the meaning of particular words in a recent statute will have weight, and their meaning may be inferred from earlier statutes in which the same words or language have been used, where the intent was more obvious or had been judicially established. The words of a statute, if of common use, are to be taken in their natural, plain, obvious, and ordinary signification; but, if a contemporaneous construction by the legislature of the same words can be discovered, it is high evidence of the sense intended.” Sutherland, Stat. Constr. § 229.

The judicial construction upon the phrase involved has been in accord with this legislative construction and expression and has been well settled in this state. State ex rel. Larabee v. Barnes, 3 N. D. 319, 55 N. W. 883; State ex rel. Little v. Langlie, 5 N. D. 594, 32 L.R.A. 723, 67 N. W. 958; State ex rel. McCue v. Blaisdell, 18 N. D. 31, 119 N. W. 360; State ex rel. Davis v. Fabrick, 18 N. D. 402, 121 N. W. 65; State ex rel. Miller v. Flaherty, 23 N. D. 321, 41 L.R.A. (N.S.) 132, 136 N. W. 76; State ex rel. Minehan v. Thompson, 24 N. D. 273, 314, 139 N. W. 960.

Other courts have recognized the propriety of the rule of construction applied and adopted by the courts of this state upon the particular phrase “majority of votes cast.” Gillespie v. Palmer, 20 Wis. 544; Sanford v. Prentice, 28 Wis. 358; Marion County v. Winkley, 29 Kan. 36; State ex rel. Crocker v. Echols, 41 Kan. 1, 20 Pac. 523; Territory ex rel. McGuire v. McGuire, 13 Okla. 605, 76 Pac. 165; State ex rel. Durkheimer v. Grace, 20 Or. 154, 25 Pac. 382; Chamlee v. Davis, 115 Ga. 266, 41 S. E. 691.

Contra: Adkins v. Lien, 10 S. D. 437, 73 N. W. 909; but see Williamson v. Aldrick, 21 S. D. 13, 108 N. W. 1063; State ex rel. Pryor v. Axness, 31 S. D. 125, 139 N. W. 791; People ex rel. Reed v. Weber, 222 Ill. 180, 78 N. E. 56; People ex rel. Wheaton v. Wiant, 48 Ill. 264; Stebbins v. Judge of Superior Ct. 108 Mich. 693, 66 N. W. 595; State ex rel. Omaha & S. O. Street R. Co. v. Bechel, 22 Neb. 158, 34 N. W. 342.

The cases cited,by the parties hereto upon the rule of construction applied to the phrase, “majority of electors,” “majority of voters,” and similar phrases are not specifically discussed or quoted for the reason that this court has definitely prescribed a rule of construction concerning the phrase, “majority of legal votes cast,” the specific phrase herein involved thereby rendering it unnecessary to consider the rules of construction that other courts have placed, pro or con, upon different phrases than that under consideration.

The above considerations present a clear case for the application of the rule of stare decisis, a rule of construction adopted and followed by repeated decisions of this court, sustained by legislative expressions and enactments ever since statehood, upon which personal and property rights in this state for years have been determined and adjudicated.

The application should be denied and the proceedings herein ordered and dismissed.

Robinson, J.

This case is brought to review the proceedings of the State Board of Canvassers on five constitutional amendments submitted to the voters by petition under § 202 of the Constitution. Under that section a petition for the submission of the amendments was signed by 50,000 voters, filed in the office of the secretary of state, and duly advertised. By that section when an amendment “receives a majority of all the votes cast at the general election,” it must be .referred to the next legislative assembly; and, if agreed upon by a majority of all the members elected to each house, it becomes a part of the Constitution; if not agreed upon, it does not become a part of the Constitution. The legislature is given absolute power to act upon and to disapprove an amendment; and the power to approve and disapprove go together — the one implies the other. The power to disapprove an amendment clearly implies the power to approve it. Section 202 was formulated by old-time members of the legislative assembly who were opposed to the submission or passage of any amendment by way of a petition and who desired to reserve to themselves full power to approve or disapprove of any amendment that might be referred to them. Hence it is that by § 202, the fundamental law, the legislative assembly is given full power to approve or disapprove any amendment and its decision is final and conclusive. Of course it may err. It is not infallible; but that fact in no manner lessens the finality of its decision.

At the general election the total number of voters were 94,055. The report of the canvassing board erroneously stated that the total number of votes cast were 94,055. The board erroneously assumed that every person cast but one vote. The error was grave and misleading and it was based on the assumption that each person does cast but one vote, whereas, in truth, nearly every person voted four ballots and each ballot gave expression to several votes. Each amendment in question received a large majority of all the votes cast thereon, but did not receive a vote equal to all the votes cast at the election. That was an impossibility, because each person cast several votes and the total number of votes cast were at least three or four times the total number of voters. Surely it was over 300,000 and a majority of the votes cast was over 150,000; it was probably several times that number*. And of course no amendment could receive 150,000 votes when the total number of voters was only 94,055.

To vote is to express a preference for any man or any measure in the manner prescribed by law. On every ballot voted by any person each X mark does express a preference for some man or some measux*e, and the total number of X max’ks expresses the total number of .votes cast by the voter. At the last general election four ballots were voted: (1) A long ballot containing the names of the candidates for state and county offices; (2) a ballot with the names of supreme court candidates; (3) a ballot with the names of candidates for superintendent of public instruction; (4) a ballot containing a copy of ten proposed amendxnents. If each person casting a ballot had voted for or against the several amendments, that alone would have represented a vote equal to ten times the number of persons voting at the election, to wit, a vote of 940,550. Hence it is xnanifest there could be no such thing as any amendment receiving a majority of all the votes cast. Therefore, we must conclude that the phrase “a majority of all the votes cast at the general election” means a majority of all the votes cast for or against any measure or amendment, and as each of the five amendments received a large majority of all the votes cast for or against the same, it follows that each of said amendments was properly referred to the legislative assembly for approval or rejection and also that the Canvassing Board did properly certify the axnendments in qxxestion showing that each amendment received a majority of all the votes qast thereon. It is strenuously contended that according to the true meaning of § 202 each amendment submitted for approval should have an affirmative vote equal to a majority of all persons voting at the election, but there is nothing to warrant such a contention, and it is fair to assume that § 202 was framed by lawmakers who knew how to use the English language and to express a clear and definite meaning. Hence it is the judgment and determination of the court that the amendments were properly passed and certified to the legislative assembly and that by § 202 its determination is final and conclusive.'