State ex rel. Twichel v. Hall

171 N.W. 213, 44 N.D. 459, 1918 N.D. LEXIS 177

• Court: North Dakota Supreme Court
• Decided: October 5, 1918
• Status: Published

Opinions

Grace, J.

This is an order to show cause issued by the supreme court upon the application of plaintiff and directed to the defendant, commanding the defendant to show cause before the supreme court why the prerogative writ of injunction should not issue from this court restraining the defendant from publishing certain proposed constitutional amendments, or from taking any further action with reference to submitting such proposed constitutional amendments to a vote of the electors of this state at the general election to be held in November, 1918. There is involved in this proceeding the interpretation of § 202 of our Constitution as originally adopted therein, and also the interpretation of said section as amended. Section 202, as originally adopted in the Constitution, provided the manner in which the Constitution may be amended. Such section reads thus:

“Any amendment or amendments to this Constitution may be proposed in either house of the legislative assembly; and if the same shall be agreed to by a majority of the members elected to each of the two houses, such proposed amendment shall be entered on the journal of the house with the yeas and nays taken thereon, and referred to the legislative assembly to be chosen at the next general election, and shall be published, as provided by law, for three months previous to the time of making such choice, and if in the legislative assembly so next chosen as aforesaid such proposed amendment or amendments shall be agreed to by a majority of all members elected to each house, 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. If two or more amendments shall be submitted at the same time they shall be submitted in such manner that the electors shall vote for or against each of such amendments separately.”

In the manner prescribed by the above section, proceedings were had to amend the above section. Such proceedings are the 16th Amendment to the Constitution which provides two ways in which the Constitution may be amended instead of one as was formerly provided by the original § 202. The first way set forth in the 16th Amendment is identical with that contained in § 202 of the original Constitution. The second way provided by the 16th Amendment is as follows:

“Any amendment or amendments to this Constitution may also be proposed by the people hy the filing with the secretary of state, at least six months previous to a general election, of an initiative petition containing the signatures of at least twenty-five per cent of the legal voters in each of not less than one half of the counties of the state. When such petition has been properly filed the proposed amendment or amendments shall be published as the legislature may provide, for three months previous to the general election, and shall be placed upon the ballot to be voted upon by the people at the next general election. 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. Should any amendment or amendments proposed by initiative petition and receiving a majority of all the votes cast at the general election as herein provided, but failing to receive approval by the following legislative assembly to which it has been referred, such amendment or amendments shall again be submitted to the people at the next general election for their approval or rejection as at the previous general election. Should such amendment or amendments receive a majority of all the legal votes cast at such succeeding general election such amendment or amendments at once become a part of the Constitution of this state. Any amendment or amendments proposed by initiative petition and failing of adoption, as herein provided, shall not be again considered until the expiration of six years.”

The plaintiff challenges the legality of the adoption of the 16th. Amendment, maintaining, in short, it had never been legally adopted and therefore is ineffective as an amendment to the Constitution and is ■ inoperative. We will give thorough consideration and analysis to each objection to the legality of Amendment 16, and incidentally Amendment 15, relative to the power of the people to initiate laws. Before doing so, we wish to direct attention to § 2 of our Constitution which is as follows:

“All political power in 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 rquire.”

The words of § 2 have the deepest significance; the words have such a profound meaning, and are such a lucid revealment of the place where political power is lodged for the benefit of the people as should make a vivid impression on the minds of all. Each generation of people inherit this great and far-reaching political power from the preceding generation. As an inheriting generation, it is part of their birthright to receive such power; to protect it with all their intelligence; to preserve it; to enjoy it, and hand it down to the future generation, to posterity, unimpaired. In this connection it- would be well for all who, for a time, are invested with authority and commissioned by the will of the people to exercise for the people and for their benefit, some of the inherent power of the people, to comprehend that all such persons, so briefly commissioned with such authority, are but the agents and instrumentalities selected by the people to perform certain duties for the people. In this sense, governors of states, legislatures and courts, and each and every other person engaged in performing a public duty prescribed by the people, is, at all times, the agent only of the people, to exercise for the people such delegated political power as the people, in their sovereign capacity, may determine shall be exercised by such agents or any of them. All political power being in the people, they may delegate what powers they deem best; they may also repossess themselves, wholly or partially, of a delegated power by a consent of the majority of all the people in whom is inherent all political power, such consent to be expressed in the -mauup.r provided by law. .....- ■

The plaintiff assigns and relies upon two distinct and separate reasons, either of which, it is contended, is sufficient to demonstrate the unconstitutionality of the 16th Amendment. If he fail in them, he must fail in all minor questions which may, to some extent, have some relevancy to the subjects under consideration. The first main reason upon which plaintiff relies to establish the unconstitutionality of the 16th Amendment is, that the amendment is not entered on the house journal properly by reason of not having been spread at length thereon, and was entered on the house journal only by means of its number or title as an identifying reference. It is conceded the journal shows the aye and nay vote required by the Constitution. The second main reason relied upon to establish the unconstitutionality of the 16th Amendment is that the same is not self-executing, in that, it is claimed, that resort to the legislature must be had to give it effect. We will analyze each of these in the order above set forth.

Directing our attention to the first, we find that § 202 of the Constitution requires that the proposed amendment “shall be entered on the journal of the house.” The 16th Amendment was entered on the house journal by an identifying reference and the aye and nay vote taken thereon. The plaintiff claims this is not sufficient but that the proposed amendment must be spread at length upon thé house journal. In some states it is held the full text of the proposed amendment must be entered on the journal, while, in others, the proposed amendment is sufficiently entered in the journal if it contains identifying reference such as the title, number, etc. It is conceded that the 16th Amendment was entered in the house journal by an identifying reference only, and that the aye and nay vote was taken and entered on the journal as required by the Constitution. Is it not sufficient entry, under article 202 of the Constitution of North Dakota, to enter the proposed constitutional amendment on the house journal by an identifying reference such as the title and number ? Counsel for the plaintiff contends very strenuously that such entry is not sufficient and that the 16 th Amendment is unconstitutional by reason of no proper entry, same having not been spread on the record thereof. He contends also that that section of our Constitution was, in all probability, adopted from the Constitution of Iowa; that the supreme court of Iowa in the case of Koehler v. Hill, 60 Iowa, 543, 14 N. W. 758, 15 N. W. 609, held “entered on the journal” meant “spread at length,” and that a failure to enter at length was fatal to the amendment. We are not entirely clear that said provision was adopted from the Iowa Constitution, ■ but even assuming that it was and conceding that the Koehler case supports plaintiff’s contention that “entered on the journal” means “spread at length” thereon, that would not necessarily be conclusive upon this court. It is useful in disclosing the viewpoint of the supreme court of Iowa and affords this court the benefit of their views, but we are convinced there is stronger reason to the contrary of the Iowa court in the opinion of the supreme court of the state of California in the case of Oakland Paving Co. v. Tompkins, 72 Cal. 5, 1 Am. St. Rep. 17, 12 Pac. 801, and in Worman v. Hagan, 78 Md. 152, 21 L.R.A. 716, 27 Atl. 616.

The question has never heretofore been passed upon by this court. In passing upon this question, it is not only proper for the court to examine all the decisions upon the subject, but eminently proper to consider other matters and circumstances, such as the passage of other amendments to the Constitution since its adoption; the general method followed in passing other amendments; what construction has been given to the language of § 202 which is in controversy by the executive, legislative and judicial departments, or other governmental agency. Of the amendments to the Constitution, the greater part, with the exception of three or four, were adopted in the same manner as the 16th Amendment. That is, the entry on the house journal was by an identifying reference, and not by spreading at length. It would necessarily follow that if the 16th Amendment is unconstitutional by reason of the method of its entry on the journal, every constitutional amendment entered in like manner would also be unconstitutional. Since 1897, a period of more than twenty years, practically every amendment to the Constitution was entered on the journal of the house in the same manner as the 16th Amendment. These amendments affect a great variety of very important subjects, such as school for the deaf and dumb, hospitals for the insane; taxation of grain in elevators; investment of school funds and other educational funds; minimum price of state lands; the permanent location of various state institutions, such as the soldiers’ home, the asylum for the blind, industrial school and school of forestry, scientific and normal schools; and so on with many other subjects of great importance. This being true, if the 16th Amendment should be held to be unconstitutional and inoperative, so might each and every other amendment to the Constitution adopted in the same manner, this would mean almost all of the constitutional amendments. What might finally be the result of such a determination would be difficult to know. In the adoption of all the amendments to the Constitution since 1897, the procedure prescribed by § 202 of the Constitution has been substantially followed in the following manner: The resolution was introduced either in the house or the senate and the majority of each house concurred in its passage. In the course of the adoption of the resolution, it would be presented to the filing clerk, engrossed and would be printed the same as an ordinary bill which might be presented in either house. It would be entered on the house journal by identifying reference only, and the aye and nay vote taken and the aye and nay vote would be shown on the journal. Almost all of the amendments to the Constitution have been thus introduced and passed. This manner of entry has been a constant practice of legislative assemblies, especially since 1897. All legislative assemblies which have had before them constitutional amendments since 1897 have uniformly followed this method of making the entry. All of the legislative assemblies since that time have construed such entry to be a sufficient compliance with article 202 of the Constitution as to entry upon the house journal. Their construction should have great weight. For more than twenty years the various legislative assemblies have treated the entry thus made by identifying references as sufficient. They have been, apparently, perfectly satisfied that the entry thus made was correct and proper and in accord with the provisions of the Constitution relative thereto, and for more than twenty years there seems to have been no difficulty experienced by the legislative assemblies by reason of the manner of the entry thereof; no difficulty seems to have been experienced in introducing a resolution at a given session of the legislature which was introduced and favorably acted upon at a preceding legislature and referred to the succeeding legislative assembly.

In this connection it may be well to notice that the secretary of state is not only the custodian of the enrolled copy of the Constitution but of all the acts and resolutions passed by the legislative assembly and of the journals of the legislative assembly,, and it is his duty to attend every session of the legislative assembly for the purpose of receiving bills and resolutions therefrom, and to perfqrm such other duties as may devolve upon him by resolution of the two houses or either of them (§ 121 of the Political Code, Comp. Laws 1913).

All other branches of the state government and all the governmental agencies have given the same construction to the manner of the entry of the proposed constitutional amendment on the house journal as the legislative assembly. The judiciary of the state have under consideration, no doubt, many laws which were enacted in pursuance of some or many of the constitutional amendments passed since- 1897. The question has never been raised before them all these years to consider the invalidity of any constitutional amendment by reason of the manner of entry of the proposed constitutional amendment in the house journal. The judiciary have acquiesced in the legislative construction of the manner of making such entry on the house journal; likewise has the executive department recognized the legislative construction of the entry in question.

We are fully convinced the method of making the entry by identifying references by title or. number and the entry of ayes and nays, is a full compliance with the requirements of § 202 of the Constitution. The construction placed thereon by the legislative assembly is proper and reasonable, and it complies with the requirements of the section not only in spirit but in letter, and it is so held.

The second reason relied upon to prove the unconstitutionality of the 16th Amendment is the claim that it is not self-executing and therefore unconstitutional. The claim is that there is no provision made for the publication of the proposed amendment for three months previous to the time of the general election at which the vote is to be taken upon the same; that by the language of the amendment there was a necessity of legislative action before the proposed amendment could be voted upon. The words in the proposed amendment which, it is claimed, show the necessity of legislative action before the proposed amendment can be submitted to a vote or become operative are as follows:

“Shall be published as the legislature may provide for three months previous to the general election.”

Before entering upon the discussion of this branch of the proceeding, it may be well to observe that during the last fifty years or more state Constitutions have been usually drafted upon a different principle than in the earlier part of our history. Vol. 6, R. C. L. § 53, has the following to say with reference to this:

“When the Federal Constitution and the first state Constitutions were formed a Constitution was treated as establishing a mere outline of government providing for the different departments of the governmental machinery and securing certain fundamental and inalienable rights of citizens, but leaving all matters of administration and policy to the departments created by the Constitution. This form of the organic instrument gave rise to a general presumption that legislation was necessary in order to give effect to the provisions of the Constitution, and that its terms operated primarily as commands to the officers and departments of the government. During the last fifty years state Constitutions have been generally drafted upon a different principle, and have often become in effect extensive codes of laws intended to operate directly upon the people in a manner similar to that of statutory enactments. Accordingly the presumption now is that all provisions of the Constitution are self-executing." Winchester v. Howard, 136 Cal. 432, 89 Am. St. Rep. 153, 64 Pac. 692, 69 Pac. 77.

It may be observed that the .Constitution of the state of North Dakota comes largely within the meaning of this language; that our Constitution is really, to a large extent, a code of constitutional law and this applies generally to the amendments thereto. Upon a close examination of our Constitution it will be found that it largely supplies a sufficient rule by means of which the right which it grants may be enjoyed and protected, or the duties which it imposes may be enforced without aid of legislative enactment, and is thus self-executing. Such rule finds support in the following authority: Davis v. Burke, 179 U. S. 399, 45 L. ed. 249, 21 Sup. Ct. Rep. 210; Winchester v. Howard, 136 Cal. 432, 89 Am. St. Rep. 153, 64 Pac. 692, 69 Pac. 77; State v. Kyle, 166 Mo. 287, 56 L.R.A. 115, 65 S. W. 763 ; State ex rel. Delgado v. Romero, 17 N. M. 81, 124 Pac. 649, Ann. Cas. 1914C, 1114; Cooley, Const. Dim. p. 121.

Applying this rule to the 16th Amendment, it will be seen that the right which is granted may be enjoyed without the necessity of additional legislation. The rights to be enjoyed are fully set forth in the 16th Amendment. It is also clearly set forth what steps are to be taken to effect the enjoyment of such right. Both the first and second clause of the amendment make complete provision as to what shall be done to enjoy the right granted. It is only necessary to read each of them to understand that in the amendment itself is incorporated every step necessary to be taken to enjoy the right granted. The plaintiff claims there is an exception to this in one regard. That is, that there remains to be specified by the legislature how the amendment shall be published and on this ground claims there is something for the legislature yet to do before the amendment becomes operative and claims, therefore, it is not self-executing. In this contention, we think the plaintiff is mistaken. We are of the opinion that it is perfectly proper to make publication of the proposed amendment under § 3188 of the Political Code, Compiled Laws 1913. This chapter is 41; the title to it is “Amendments to Constitution;” the title of § 3188 is “Amendments to be Published.” The section read's thus:

“Whenever any amendment to the Constitution of this state is referred to the legislative assembly to be chosen at the next general election after the session in which such amendment is first proposed, the same shall be published for three months previous to the time of making such choice in one weekly paper in each county in which a weekly paper is published, once in the first month, once in the second month and four times in the third month.”

Section 3189 provides that the secretary of state shall designate the papers in which such publications shall be made. Section 3190 provides for fees for publications. This is a complete law providing for the publication of amendments to the Constitution, and is, in our opinion, a sufficient law under which to publish the 16th Amendment. It has been on the statute books since 1899. It is not inconsistent with any provision of our Constitution nor the provision of any amendment thereto, and is therefore in full force and effect. Where a new Constitution is established, statutes then in force, not inconsistent with the new Constitution, continue until amended or repealed by the legislature. State ex rel. Toledo v. Lynch, 88 Ohio St. 71, 48 L.R.A.(N.S.) 720, 102 N. E. 670, Ann. Cas. 1914D, 949. The same principle is recognized in § 2 of the schedule to our Constitution. The same rule would apply to amendments to the Constitution. The 16th Amendment provides for the time of publication, to wit, three months. This is the same time as specified in § 3188. Section 3189 also provides in what papers the publications shall be made and how such papers are designated. The entire chapter 41 is devoted to the matter of publication of amendments to the Constitution. There is therefore provided a complete statute which has not been repealed and is in full force, in short, the complete legal machinery for the publication of the 16th Amendment. We think § 3188, in fact the whole of chapter 41, meets every requirement for publication, and if a constitutional amendment is published in accordance with the provisions of chapter 41 the publication would be sufficient. The object of publication is to familiarize the voter with the provision of the proposed constitutional amendment. This would be entirely met by following the provisions of chapter 41. It is not necessary to say whether we think a publication under § 979 would be sufficient. In it there is a different time of publication specified and, in this respect, it does not meet the requirements of the 16th Amendment which provides its publication to be a period of three months. Section 979 relates largely to the duties of the secretary of state, where a proposed constitutional amendment or other question is to be submitted to the people of the state for popular vote, and in certifying such questions to the county auditors as provided in said section, a matter we will discuss later in this opinion in connection with the duties of the secretary of state.

We are of the opinion that there is a sufficient publication of any proposed constitutional amendment, including the 16th Amendment, if published in accordance with the provisions of chapter 41 of the Political Code, Compiled Laws 1913. We hold, therefore, that the 16th Amendment Is- self-executing, and is a part of the Constitution of the state. There -are other major reasons why the 16 th Amendment has become a part of tbe Constitution. These reasons are that it was properly and legally submitted to two successive legislatures and then it was, in due and legal form, submitted to the people for a vote at a general election and who, by a majority vote, stamp their approval thereon.

The will of the legislative assembly fijefore which the 16th Amendment was first proposed and by it passed and of the succeeding legislative assembly to which it was lawfully presented and by it passed should not be lightly disregarded, and the will of the people in favor of the adoption of it as expressed at. the'general election when it was submitted to them, and approved by a majority of their voters, is a matter of the greatest importance and must be taken into consideration; for the determination of the people by giving a favorable and majority vote to the 16th Amendment together with the will of the legislature, as above shown to have been lawfully expressed, is the substance of the requirements to the complied with to constitute the 16th Amendment a part of the Constitution, and, as we view it, there being a valid statute in force for the publication of amendments to the Constitution and as as we have seen a sufficient entry of the proposed amendment on the house journal accompanied by the aye and nay vote, the legislative will having been lawfully expressed and a majority vote of the electors at a general election being in favor of the 16th Amendment, the same became a part of the Constitution at the time of its adoption by a majority of the electors voting at the general election and was, in all respects, self-executing.

There is a rule of construction applicable to changes in statutory law which is that in considering the amended statute, inquiry may be directed to the old law to determine what defects, weakness, or evils existed under the old law which the new is designed to correct, and the same rule has been frequently applied in the interpretation of constitutional provisions. Rhode Island v. Massachusetts, 12 Pet. 657, 9 L. ed. 1233; Washington v. State, 75 Ala. 582, 51 Am. Rep. 479; Shohoney v. Quincy, O. & K. C. R. Co. 231 Mo. 131, 132 S. W. 1059, Ann. Cas. 1912A, 1143; State ex rel. Board of Education v. Brown, 97 Minn. 405, 5 L.R.A.(N.S.) 327, 106 N. W. 477.

There is- much other authority along the same line. The particular object of the second paragraph of the 16th Amendment is to place it in the power of the sovereign people to propose a constitutional amendment independent of the legislature. In other words, to some extent to decrease the difficulty of amending the Constitution. The constitutional provision, therefore, should not be construed so as to defeat its evident purpose, but should be construed so as to make it operative and effective and to overcome the difficulty which it was intended to obviate. Jarrolt v. Moberly, 103 U. S. 580, 26 L. ed. 492; State ex rel. Board of Education v. Brown, 97 Minn. 402, 5 L.R.A.(N.S.) 327, 106 N. W. 477.

Again, in construing the 16th Amendment, the contemporaneous history should be taken into consideration; the insistent demand of the people to be allowed the right to propose amendments to the Constitution; the history of the resolutions proposing the amendments in the legislative assembly; the fact that campaigns were waged partly on the issue of adopting the proposed amendment, are all matters which may receive consideration in the construction of a constitutional amendment.

We will now examine another reason relied upon by plaintiff to show that the 16th Amendment is not self-executing; it was one of the reasons given by this court to demonstrate that the 16_th Amendment was not self-executing in the case of State ex rel. Linde v. Hall, 35 N. D. 34, 159 N. W. 281. We quote the language of the court in that case as follows:

“And this leads to another and probably all-sufficient reason in itself to declare this provision not self-executing, strongly evidencing the legislative intent that future legislation was necessary to make it effective. We refer to the percentage required, and which is uncertain. A petition must contain signatures ‘of at least twenty-five per cent.’ This is merely declaratory of a minimum leaving to subsequent legislation to fix the minimum which must be ‘at least twenty-five per cent,’ and to classify and vary accordingly, if necessary, any required percentage to initiate different amendments to the Constitution as legislative wisdom may regard necessary in view of widely different constitutional subject-matter. To illustrate, it is probably within the grant of legislative authority by subd. 2 for the legislature to declare necessary a higher percentage to initiate a constitutional amendment to operate to change the seat of government of this state or the state university,” etc.

The court in- that case was discussing subdivision 2. The only requirement under subdivision 2 is that an “initiative petition be filed containing signatures of at least twenty-five per cent of the legal voters in each of not less than one half of the counties of the state.”

It is plain to see that such petition could relate to any subject-matter, and if the Constitution is sought to be amended under the provisions of subdivision 2, the rale therein laid down as to the petition must be followed. We do not agree with the language in state ex rel. Linde v. Hall that the percentage is uncertain. The percentage is stated in no equivocal terms. The petition must contain not less than twenty-five per cent. When such petition does contain twenty-five per cent, it is a proper and legal petition under the 16th Amendment. Nothing more is required, nothing less is legal. A petition might contain more than twenty-five per cent, but it must not contain less. Neither can the minimum per cent required be increased by the legislature. For instance, if the legislature should pass a law providing that where under subdivision 2, a constitutional amendment is submitted to remove the state university from Grand Forks to some other city of the state, such petition should contain at least fifty per cent of the legal voters in each of not less than one half of the counties of the state, it is easily seen that such provision would increase the minimum of petitioners provided in the 16th Amendment by one hundred per cent. Under such a law passed by the legislature, the minimum would not be twenty-five per cent but fifty per cent of the voters. If such a law were passed, it is plain that it would directly contravene the terms of the 16th Amendment which declares twenty-five per cent the minimum required. The legislature cannot, by any act, change the minimum of percentage of the voters required as fixed by subdivision 2 of the 16th Amendment. Whenever twenty-five per cent of the legal voters in each of not less than one half of the counties of the state sign a petition to amend the Constitution in regard to any subject-matter, they have complied with the constitutional requirement of the 16th Amendment which is a part of the Constitution, and are entitled to enjoy the benefit of such constitutional amendment according to its terms and provisions, and the legislature cannot defeat that right by increasing the minimum of the percentage of voters in contravention of the constitutional minimum provision of twenty-five per cent prescribed in the 16th Amendment. If the legislature should attempt to do so, its act, measured by the 16th Amendment, would ba unconstitutional. In the case of State ex rel. Linde v. Hall, supra, the court laid some stress upon what it claimed to be the indefiniteness as to the time of filing the same with the secretary of state, the amendment requiring the filing of the petition with the secretary of state “at least six months previous to the general election.” There certainly is nothing indefinite about such provision. Every person knows, or must be held to know, at what time the general election is held. Every person also knows, or should know, what period of time six months before election is. No discussion of the matter can add any clearness to the language. A petition must be filed at least which means not less than six months prior to the time of the general election. If it is filed not less than six months before the election it is in time. If it is filed seven or eight months or ten months, it certainly is in time, or at any time since the last general election and not less than six months prior to the general election upon which such petition is to be voted. In the case of State ex rel. Torreyson v. Grey, 21 Nev. 378, 19 L.R.A. 134, 32 Pac. 190, where the question was the time of the publication of the ■proposed constitutional amendment, it was held that where the publication was required to be made for three months before election, the publication made sixteen to eighteen months prior thereto was good. In that case, it was also held that the publication of the proposed constitutional amendment with the statutes of the year was a continuous publication and was a sufficient publication of the constitutional amendment, this mode of the publication of the proposed amendments having been uniformly followed in numerous cases. The only requirement of our constitutional amendment is that a petition be filed at least six months prior to the time of the general election, there can be no misunderstanding such language. It is sufficient if it were filed not less than six months before the general election, and no legislation could make the point of time of filing it any more definite or certain.

The 16th Amendment having been legally adopted and being, as we view it, self-executing, there was by it facilities provided for legislative action in a different manner than had theretofore prevailed. In other words, legislation was not, as it had been in the past, left entirely to the legislature, but was in part to be enacted directly by the people if they saw fit. The people also had power to initiate amendments to their Constitution which is also a legislative power of the highest degree. The power of initiating legislation, which is reserved to the people by the amendment, is a' legislative power of as high order as that possessed by the members of the legislature in preparing bills and doing the work preparatory to the enactment thereof. The preparing of the petition to initiate a constitutional amendment or law by securing the signers thereto as required by law, delivering the petition in the custody of the secretary of state, thus filing the same, are steps necessary, under subdivision 2, in the preparation of a law or constitutional amendment on its way to be voted upon by the electors. All such steps and acts are legislative in their character, and though it might appear that a law proposed to be enacted by the people in this manner might be clearly unconstitutional, yet the court, at such time, would and could not interfere because the act being done is a legislative one and the courts have no authority or power to interfere in the enactment or steps leading to the enactment of the law. If a member of the legislative assembly should introduce a law which is clearly unconstitutional and such law is before each branch of the legislature, no court could interfere to restrain the passage of such law on the ground that it was unconstitutional. The reason is that the court has no power to interfere with the will of the legislature in the passage of the law, or to restrain acts of legislation. In the case at bar, there are no facts in dispute. The petition is sufficient; it has the requisite number of signatures in each of not less than one half of the counties of the state. There is’no objection presented that there is not twenty-five per cent of the legal voters in not less than one half of the counties of the state. ■We think it is conceded the requirements of the 16th Amendment as to the percentage of signers required is, in no manner, challenged. The petition contains at least twenty-five per cent of the legal voters in not less than one half of the counties of the state and has, as it is claimed by the defendant, approximately forty-eight thousand signers. Some forty-eight thousand petitioners therefore have and are participating in a legislative, act by signing the petition and handing it to the secretary of state to file.

When twenty-five per cent of the legal voters in not less than one half of the counties of the state had signed the petition in question and delivered it to and placed it in the custody of the secretary of state, there is much respectable authority that such paper or petition became filed even if the officer whose duty it is to file such paper or petition did not place his filing mark or indorsement, upon the instrument, such marking or indorsement being considered merely a memorandum or evidence that the filing had been made. Covington v. Fisher, 22 Okla. 207, 97 Pac. 615; State v. Heth, 60 Kan. 560, 57 Pac. 108; Rathburn v. Hamilton, 53 Kan. 470, 37 Pac. 20; Wilkinson v. Elliott, 43 Kan. 590, 19 Am. St. Rep. 158, 23 Pac. 614; Jacksonville Street R. Co. v. Walton, 42 Fla. 54, 28 So. 59; Oats v. State, 153 Ind. 436, 55 N. E. 226; Bettison v. Budd, 21 Ark. 578.

The secretary of state, according to this authority, would add nothing to the validity .of the filing of the petition by placing his filing mark or memorandum or evidence that the filing was made upon such petition. Every act of the petitioners in singing the petition or procuring it to be signed and the delivery of the same into the custody of the secretary of state, which, according to above authority, constituted filing, was the legislative act of the petitioners with which, as we view it, the court could not interfere by injunction or otherwise. As we understand the matter, the secretary of state did place his filing mark or indorsement upon the petition, but, according to the authority we have cited, that would add nothing to it except that it is evidence that the petition was filed. The 16th Amendment to the Constitution provides that the petition should be filed with the secretary of state. The petition is thus on file with an executive officer of the state and the Constitution and law of the state provide his duties with reference thereto. The Constitution of the state of North Dakota declares that the powers and duties of the secretary of state shall be as prescribed by law. It is a duty imposed by the laws of the state of North Dakota upon the secretary of state to certify to the county auditors any proposed constitutional amendment or other questions to be submitted to the people for their vote thereon. It is part of the executive duties of the secretary of state to do this. The secretary of state is ready and willing and is performing his duty under the statute and laws of the state, and is contending before the supreme court of this state and demanding that there be no interference with him in the performance of his duty as prescribed by § 979, Compiled Laws, 1913. The secretary of state being in the performance of the duty prescribed by law, namely, his certification to the county auditor of certain proposed constitutional amendments, such certification being made under and by virtue of the requirements of § 979, he should not be interfered with or restrained in any manner from the performance of his duties. It has also been held that the court will not enjoin the submission of constitutional amendments. State ex rel. Cranmer v. Thorson, 9 S. D. 149, 33 L.R.A. 582, 68 N. W. 202.

The reasoning which we have applied to the 16th Amendment to the Constitution applies with equal force to the 15th Amendment to the Constitution which is known as the initiative and referendum power reserved to the people, or the power to initiate laws independent of the legislature and to exercise the power of initiative and referendum in the manner provided in the 15th Amendment. The conclusion with reference to the 15th Amendment must.be the same as that at which we have arrived with reference to the 16th Amendment to the Constitution and each of such amendments are held to be an effective part of the Constitution and operative and self-executing.

An enacting clause, as we view it, is neither necessary nor proper in adopting a constitutional amendment under subdivision 2 of the 16th Amendment. An enacting clause is necessary and proper in initiative bills, and is provided for in the 15th Amendment, or bills introduced in the legislative assembly, but have no application to constitutional amendments. The general rule is that constitutional provisions are mandatory. Section 202 of our Constitution is to that effect, though in the case of Kermott v. Bagley, 19 N. D. 345, 124 N. W. 397, § 109 of the Constitution was construed to be permissive rather than mandatory. As we view it, the 16th and 15th Amendments are. effective and operative and self-executing and a part of the Constitution. Each fully defines the rights to be enjoyed and provides means whereby the rights granted may be enjoyed, each has been properly, and in the manner prescribed by law, approved by the legislative assembly and a majority of the electors of the state voting thereon at the general election at which they were submitted. This being true, they must be so recognized and given effect by every department of the government, including the judiciary. This being true, the people of the state are entitled to enjoy all the rights, powers, and privileges secured to them under and by virtue of the 15th and 16th Amendments in the manner therein fully set forth.

Neither the plaintiff himself nor anyone on whose behalf he seeks to maintain this proceeding has any personal or pecuniary interest involved. The application for injunction is in all things denied and this proceeding is dismissed.

. Robinson, J., concurs.

Birdzell, J:

This case arises upon an original petition filed in this court entitled “The State of North Dakota ex rel. Treadwell Twichell, and Treadwell Twichell, Individually, Plaintiffs, ■ versus Thomas Hall, Secretary of State and Thomas Hall, Individually, Defendants.” In response to the prayer of the petition an order to show cause was issued directed to the defendant requiring that cause be shown why he should not be enjoined from further publishing certain proposed constitutional amendments, from putting the same upon the ballots and submitting them to the voters to be voted upon at the next general election, and from taking any action whatsoever under certain petitions looking toward the submission of the amendments. Upon the return day the defendant appeared, represented by the attorney general of the state, and moved to dismiss the petition on the ground of the lack of jurisdiction of the court to grant the relief prayed for and of the lack of jurisdiction of the subject-matter and the parties upon the cause of action alleged. In order that there might be a complete hearing, a demurrer and answer were also filed; the demurrer being upon the ground that the petition does not state facts sufficient to constitute a cause of action; that the court has no jurisdiction over the subject-matter or over the person of the defendant upon the allegations of the petition; and that the plaintiff has no legal capacity to maintain the action. The answer takes issue upon no material allegations in the complaint and it is alleged that the defendant intends to proceed as an officer of the law in submitting the amendments embraced in the petitions to the voters of the state.

The allegations of the petition, in so far as they are material, show that the plaintiff is a citizen, a taxpayer, and elector; that he had appealed to the attorney general for permission to institute this proceeding in his name as a representative of the state, but that the attorney general had refused; that during the year 1918 certain initiative petitions looking toward the amendment of the Constitution in various particulars were circulated and signed by voters exceeding in number twenty-five per cent of the legal voters of the state in more than one half of the counties of the state; that it is the intention of the defendant to submit the amendments embraced in said petitions to the people to be voted upon at the ensuing general election; that the matters involved affect the legislative franchise of the people of the whole state and the validity of the amendments to the Constitution which were adopted in 1914, authorizing the initiative and referendum as to laws and constitutional amendments, and which are designated as articles 15 and 16 of the Amendments to the Constitution.

The first question for consideration under the issues is that of the jurisdiction of the court to entertain the proceeding and grant the relief prayed for. This question was fully discussed in the case of State ex rel. Linde v. Hall, 35 N. D. 34, 159 N. W. 281, and it was there held that the court had jurisdiction to determine such a matter in a proceeding brought before the election was held. While the correctness of this ruling is seriously questioned by the defendant, it will not be necessary, in view of the conclusion of the majority upon the merits, to re-examine the authorities bearing upon this phase of the case, or to pass again upon the question. We shall therefore refrain from expressing an opinion thereon.

Hpon the merits, two main questions are presented by the petitioner. He urges first, that articles 15 and 16 of the Amendments to the Constitution were not legally adopted, in that they were not entered in full on the journal of the house in which they originated. It is under these amendments — more particularly the latter, if at all — that the authority exists to circulate the petitions in question and to refer to amendments therein proposed to the people at the ensuing election.

Second, it is contended that article 16 is not self-executing, and that, inasmuch as no legislation has been enacted putting it into effect or facilitating its operation, no proceedings can be had thereunder. If this contention were sustained it would follow that any attempt to exercise the rights sought to be conferred upon the people to initiate the constitutional amendments in question would be necessarily void and of no effect.

Section 202 of the Constitution provides that any proposed amendment which shall be agreed to by a majority of the members elected to each of the two houses “shall be entered on the journal of the house with the yeas and nays taken thereon, and referred to the legislative assembly to be chosen at the next general election . . . .” As this language is interpreted by plaintiff’s counsel, it requires entry upon the journal of only one house. We will not stop to inquire whether this is the correct interpretation of the language used, but will pass immediately to the main question, which is the meaning of the expression “shall be entered on the journal.” It appears that the resolutions providing for the amendments in question were not spread at length upon the journals of either house of the legislative assembly, but that, during their pendency and upon their passage in both houses, they were treated as bills and referred to by entries such as the following: “Senate Bill No. 153. A Concurrent Besolution Amending the Constitution of the State of North Dakota, Providing for the Future Amendment Thereof.” The contention is that this identifying reference is not a sufficient entry upon the journal to satisfy the requirements of § 202 of the Constitution. The literal interpretation of the section, it must be admitted, supports the contention of the plaintiff but the decided weight of judicial authority as well as reason appears to us to be contrary to the literal interpretation. Though courts are generally concerned with ascertaining the actual intention of the framers of constitutions in order that effect may be given thereto, it will sometimes happen that too strict an adherence to a literal interpretation and to a demonstrable, actual intention is apt to defeat tbe real purpose of a given provision. Thus, under constitutions requiring the electors to express their choice at elections by written ballot, it has' been held that the legislature may provide for a printed ballot; though doubtless it could be demonstrated that the framers of the provision did not contemplate the use of the printed ballot at all; but, on the contrary, they intended to inquire the exercise by the voter of the deliberate act of writing’ the name of the person of his choice upon a ballot. See Opinion of Justices, 7 Me. 492; Henshaw v. Foster, 9 Pick. 312; Temple v. Mead, 4 Vt. 535. Doubtless when the expression in question was first used, those who employed it had in mind the actual writing of the resolution in full upon the journals. (See Dodd on the Revision and Amendment of State Constitutions, page 145.) We do not know when the expression was first employed, but it is to be found in the Constitution of Pennsylvania as early as 1838. Pa. Const. 1838, art. 10. It is also found in the Constitution of Wisconsin of 1848. (Wis. Const. 1848, art. 12,), and in the Constitution of Iowa of 1851 (Iowa Const. 1857, art. 10). When this requirement came into use it was expressive of the most convenient way of making a permanent record of the resolution and of the proceedings thereon. Such a resolution might or might not he printed as bills were printed, and the legislative procedure for its adoption might differ so widely from that required by the Constitution in adopting legislation that the entry upon the journal would be practically the only means by which the legislator could know upon what he was asked to vote. It also afforded a reliable source of public information. The journals were kept in longhand and it was ’not required that there should be successive readings of a resolution or that any period of time should elapse between the first proposal and final adoption. Hence the importance of the entry in the journal. When the legislature, however, conducts its proceedings with the use of modern conveniences, such as the stenographer and the typewriter, if they are so conducted as to insure that degree of accuracy and publicity which would flow from the exact compliance with the language found in the Constitutions, courts should, and do, hesitate to impose a strict compliance with tho literal meaning of such provisions. Such is the holding in California, Colorado, Florida, Kansas, Maryland, South Dakota and Washington. See Thomason v. Ashworth, 73 Cal. 73, 14 Pac. 615 ; Nesbit v. People, 19 Colo. 441, 36 Pac. 221; West v. State, 50 Fla. 154, 39 So. 412; Constitutional Prohibitory Amendment, 24 Kan. 700; Worman v. Hagan, 78 Md. 152, 21 L.R.A. 716, 27 Atl. 616; State ex rel. Adams v. Herried, 10 S. D. 109, 72 N. W. 93; Cudihee v. Phelps, 76 Wash. 314, 136 Pac. 367; Gottstein v. Lister, 88 Wash. 462, 153 Pac. 595, Ann. Cas. 1917D, 1008; State ex rel. Postel v. Marcus, 160 Wis. 354, 152 N. W. 419. See contra; Koehler v. Hill, 60 Iowa, 543, 14 N. W. 738, 15 N. W. 609; State ex rel. Bailey v. Brookhart, 113 Iowa, 250, 84 N. W. 1064; People ex rel. Kent County v. Loomis, 135 Mich. 556, 98 N. W. 262, 3 Ann. Cas. 751; Re Senate File 31, 25 Neb. 864, 41 N. W. 981; State ex rel. Thompson v. Winnett, 78 Neb. 379, 10 L.R.A.(N.S.) 149, 110 N. W. 1113, 15 Ann. Cas. 781; State ex rel. Stevenson v. Tufly, 19 Nev. 391, 3 Am. St. Rep. 895, 12 Pac. 835; State ex rel. Owen v. Donald, 160 Wis. 21, 151 N. W. 331, See also 12 C. J. 692, 702. In view of the practical construction by the legislature in support of the practice which was followed in the submission of the amendments in question, which counsel for the plaintiff concedes has been followed for twenty years in this state; of the constantly increasing volume of business customarily transacted by the legislatures; of the adoption by them of modern inventions to facilitate the handling of their business and the keeping of their records; and of the degree of publicity that is given to all of their proceedings through a more widely circulated press and greater facilities for communication, we are of the opinion that the rule adhered to by the majority of the courts which have passed upon this question is more consonant with reason and one which gives full effect to the spirit and purpose of the requirement of § 202. ■ We therefore hold that the constitutional amendment in question was legally adopted.

Counsel for the plaintiff insists, however, that the provision above interpreted was taken from the Constitution of Iowa where it had previously been interpreted as requiring the entry in full upon the journal (Koehler v. Hill, 60 Iowa, 543, 14 N. W. 738, 15 N. W. 609), and that this court is consequently bound by the previous construction placed thereon by the Iowa court. In view of the fact, however, that a similar requirement was to be found in tbe Constitutions of Pennsylvania and Wisconsin (if not other states) prior to its adoption in tbe Constitution of Iowa, we feel tbat it cannot be said tbat tbe provision was necessarily taken from Iowa and tbat tbis court is bound by any previous construction of tbe Iowa court.

' Passing now to a consideration of tbe second question presented; namely, as to whether or not article 16 of the Amendments to tbe Constitution is self-executing, it must first be noted tbat tbis branch of tbe case involves the main question decided by tbis court in tbe case of State ex rel. Linde v. Hall. 35 N. D. 34, 159 N. W. 281. Tbat case involved tbe validity of a petition for an amendment to tbe Constitution locating tbe capitol at New Rockford instead of Bismarck. It was there held tbat tbe amendment, article 16, under which tbe petition bad been circulated, was not self-executing and that tbe petition was consequently void. Tbe doctrine of stare decisis is earnestly invoked by tbe petitioner in tbe instant case and it is contended tbat, if tbe question can be regarded as fairly doubtful, tbe court should follow tbe decision in tbe ease referred to. We agree with tbe general reasons advanced by counsel for an adherence to tbe rule of stare decisis; but, with due respect for tbe opinions of tbe members of tbis court participating in tbat decision, we cannot conscientiously reach a like result, and, inasmuch as there is involved-in the general question tbe meaning and effect of an important portion of tbe fundamental law of tbe state, we feel called upon to re-examine tbe question and to state anew what we consider to be tbe meaning and fair import of tbat portion of tbe Constitution referred to. As was said by tbe supreme court of Wisconsin in tbe case of Pratt v. Brown, 3 Wis. 603: “But when a question arises involving important private or public rights, extending through all coming time, has been passed upon on a single occasion, and which decision can in no just sense be said to have been acquiesced in, it is not only tbe right, but tbe duty of tbe court, when properly called upon, to re-examine tbe questions involved, and again subject them to judicial scrutiny. We are by no means unmindful of tbe salutary tendency of tbe rule stare decisis, but at tbe same time, we cannot be unmindful of tbe lessons furnished by our own consciousness, as well as by judicial history, of tbe liability to error, and the advantages of review.” The Supreme Court of the United States has likewise felt called upon to examine and re-examine constitutional questions vitally affecting the general welfare, and particularly in interpreting the grant of powers to the Federal government. Perhaps the most notable occasion of its doing so is in the Legal Tender Cases. See Hepburn v. Griswold, 8 Wall. 603, 19 L. ed. 513, holding the Legal Tender Acts invalid, and the later decisions: Legal Tender Cases, 12 Wall. 457, 20 L. ed. 287; Juilliard v. Greenman, 110 U. S. 421, 28 L. ed. 204, 4 Sup. Ct. Rep. 122. See also Rhodes’s History of the United States, vol. 6, pages 256 et seq. “It will of course sometimes happen,” says Cooley, Const. Lim. p. 65, “that a court will find a former decision so unfounded in law, so unreasonable in its deductions, or so mischievous in its consequences, as to feel compelled to disregard it. Before doing so, however, it will be well to consider whether the point involved is such as to have become a rule of property so that titles have been acquired in reliance upon it, and vested rights will be disturbed by any change; for in such a case it may be better that the correction of the error be left to the legislature, which can control its action so as to make it prospective only, and thus prevent unjust consequences.” It is clear that, in the instant case, no rule of property has been declared and that no titles are dependent upon the former decision.

A careful study of the opinion of this court in State ex rel. Linde v. Hall, supra, leads us to the conclusion that the interpretation of the amendment in question was so extreme in the direction of nullifying its force that it ought not to stand as the final expression of this court. Before calling attention, however, to those portions of the main opinion in that case which have the effect stated, it might be well to state the rules for the construction and interpretation of constitutional provisions and amendments to which, it seems to us, proper attention was not given in the decision referred to.

It is elementary that the fundamental purpose of all judicial construction is to ascertain and give effect to the intention of the framers and of the people who have adopted the particular instrument or amendment. 8 Cyc. 730; Cooley, Const. Lim. 5th ed. p. 68; Chief Justice Marshall in Gibbons v. Ogden, 9 Wheat. 1, 6 L. ed. 23. The established rules of construction applicable to statutes apply in determining the meaning of Constitutions.- 8 Cyc. 729. Amendments, particularly, should be construed in the light of the changes sought to be effected thereby, and where they are in conflict with any pre-existing provision of the Constitution they must be given effect notwithstanding such former provisions. See People ex rel. Killeen v. Angle, 109 N. Y. 564, 17 N. E. 413; 12 C. J. 24. “A constitutional provision designed to remove an existing mischief should never be construed as dependent for its efficacy and operation on legislative will.” 12 C. J. 730. In construing the Constitution the whole instrument should be read together so that every portion may be given effect, and if various portions thereof are in pari materia, they should be construed together in order that the given subject-matter may be dealt with as intended. 2 Lewis’s Sutherland, Stat. Constr. § 443; Cooley, Const. Lim. 5th ed. p. 70. And this rule of construction is particularly applicable to portions that are adopted at the same time. Lewis’s Sutherland, supra. As between opposing possible constructions, one of which will render a given provision operative and the other tend to defeat its purpose, the former should be adopted.

Initiative and referendum provisions contained in the Constitutions of the various states have generally been held to be self-executing. See Arkansas Tax Commission v. Moore, 103 Ark. 48, 145 S. W. 199; Thompson v. Vaughan, 192 Mich. 512, 159 N. W. 65; Stevens v. Benson, 50 Or. 269, 91 Pac. 577; State v. Langworthy, 55 Or. 303, 104 Pac. 424, 106 Pac. 336.

The seemingly contrary decision in Oklahoma in the case of Ex parte Wagner, 21 Okla. 33, 95 Pac. 435, 18 Ann. Cas. 197, is stated by the court to be due to the action of the constitutional convention which, upon being reassembled, modified the- initiative and referendum feature of the Constitution by striking therefrom the provision expressly declaring it to be self-executing and substituting, in lieu thereof, the following: “The legislature shall make suitable provisions for carrying into effect the provisions of this article.” (Okla. Const, art. 5, § 2. It is stated in the opinion that this was done as a concession to the views which were, at the time, being presented to- the Department of Justice of the Eederal government in an effort to convince that department that a Constitution in which legislative powers were to be exercised directly did not pi’ovide for a republican form of government. To obviate possible objection on this score, it was thought best to give to the legislature the power to carry out this provision so as not to embarrass the admission of the state into the union. Similarly, the recall provision of the Oregon.Constitution has been held self-executing (State ex rel. Clark v. Harris, 74 Or. 573, 144 Pac. 109, Ann. Cas. 1916A, 1156) though it is not expressly declared to be so.

The provisions contained in some of the Constitutions reserving initiative and referendum powers to the voters of municipalities and districts as to local matters are usually held to be not self-executing for the reason that the manner of exercising the powers is directed to be prescribed by general laws. See Schubel v. Olcott, 60 Or. 503, 120 Pac. 375; State ex rel. Bradford v. Portland R. Light & P. Co. 56 Or. 32, 107 Pac. 958; Long v. Portland, 53 Or. 92, 98 Pac. 149, 1111; State ex rel. Dotta v. Brodigan, 37 Nev. 37, 138 Pac. 914. The holding in the last case was inadvertently misstated in the opinion of Mr. Justice Goss in State ex rel. Linde v. Hall, 35 N. D. 34, 159 N. W. 281. It was not held, as there stated, that the entire initiative and referendum amendment was not self-executing.

Where constitutional provisions are held to be self-executing, it is in response to the apparent intention of the framers and the people who adopted them “to put it beyond the power of the legislature, to render them nugatory by refusing to enact legislation to carry them into effect.” Mitchell, J., in Willis v. Mabon (Willis v. St. Paul Sanitation Co.) 48 Minn. 140, 16 L.R.A. 281, 31 Am. St. Rep. 626, 50 N. W. 1110. Though a particular provision is self-executing, the 'legislature has ample power to pass such legislation as may be needed to simplify the procedure, to safeguard the right from abuse, and to render the various steps definite (Cooley, Const. Lim. 5th ed. p. 122; Willis v. Mabon, supra; Stevens v. Benson, 50 Or. 269-274, 91 Pac. 577, but not to limit, defeat, or nullify the right.

Reading article 16 of the amendments to the Constitution of North Dakota in the light of the foregoing elementary principles, and the authorities dealing with like questions, it becomes clear that the intention and purpose was to secure to the voters a right which had not previously been enjoyed by them because of the broad delegation of exclusive power to the legislature. It is also apparent that such right is in derogation of, or at least in competition with, the similar right -or power which remains vested in the legislature. Note the language of the amendment: “Any amendment or amendments to this Constitution may also be proposed by the people by the filing with the secretary of state, at least six months previous to a general election, of an initiative petition containing the signatures of at least twenty-five per cent of the legal voters in each of not less than one half of the counties of the state.” (N. D. Const, article 16 of the Amendments, § 202). Nothing could be more clear than that the amendment itself was intended to -secure to the legal voters the right to propose amendments. Unless such an intention is necessarily qualified by other language it should be given effect if possible to do so. Had it been the primary purpose of the framers of the amendment in question to vest in the legislature the right to say upon what terms the voters should have the right to initiate a constitutional amendment, we believe that they would have frankly vested the power in the legislature as was done in the Constitution of Idaho. In the Constitution of the latter state, it was provided that “the power is known as the initiative, and legal voters may, under such conditions and in such manner as may he provided by acts of the legislature, initiate any desired legislation, etc.” Idaho Const, art. 3, § 1. Is there any language following the reservation of the power in the people to propose amendments which signifies an intention on the part of the framers and of the people who adopted it to postpone its operations until such time as the legislature would see fit to make it operative? The amendment is as follows: “Subd. 2. Any amendment or amendments to this Constitution may also he proposed by the people by the filing with the secretary of state, at least six months previous to' a general election, of an initiative petition containing the signatures of at least twenty-five per cent of the legal voters in each of not less than one half the counties of the state. When such petition has been properly filed the proposed amendment or amendments shall be published as the legislature may provide, for three months previous to the general election, and shall be placed upon the ballot to be voted upon by the people at the next general election. 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. Should any amendment or amendments proposed by initiative petition and receiving a majority of all the votes cast at the general election as herein provided, but failing to receive approval by the following legislative assembly to which it has been referred, such amendment or amendments shall again be submitted to the people at the next general election for their approval or rejection as at the previous general election. Should such amendment or amendments receive a majority of all the legal votes cast at such succeeding general election such amendment or amendments at once become a part of the Constitution of this state. Any amendment or amendments proposed by initiative petition and failing of adoption, as herein provided, shall not be again considered until the expiration of six years.” In our judgment there is no language in the above amendment from which it can reasonably be inferred that the power granted, or to speak more correctly, reserved, was to be held in abeyance until there would be future legislation upon the subject. We have underscored those portions of the amendment' which were thought by this court, in the case of State ex rel. Linde v. Hall, supra, to be indicative of an intention to make the operation of the amendment dependent on the legislative will, and in order that there may be a clear understanding of the points concerning which different opinions exist, we will refer particularly to those portions of the main opinion in the former case with which we disagree.

Concerning the above underscored portions, the court, in the case of state ex rel. Linde v. Hall, supra, found first: That inasmuch as no definite date or period of time was set forth for the filing of petitions, the legislature might require a petition to be filed at any period of time before the election, not shorter, however, than six months. The statement in the opinion is (page 51) : “It is doubtful if it was intended to be left as indefinite for operative purposes as declared by tbe words of subdivision 2, the only requirement as to time being ‘at least six months previous to a general election.’ Would the filing of a petition one year and six months or two years before a general election be sufficient compliance with this provision?” The obvious implication of this statement and query is that it .was intended to give to the legislature power to determine the date for filing initiative petitions. It seems clear, however, that under the amendment it would be the duty of the secretary of state to submit to the voters at a general election any initiative amendment, regular in form and signed by the necessary number of voters, which had been filed with him prior to a date six months before the election. There is absolutely no language in the amendment that would authorize the legislature to direct the secretary of state to ignore a legal petition that had been filed with him for the requisite period of time, and to imply such a power in the legislature is to imply a power in derogation of the right granted. The time for filing could be so fixed as to make the exercise of the right more difficult, if not impossible. Practically all, if not all, of the self-executing constitutional provisions, providing for amendment by the initiative process, contain similar requirements with respect to the time of filing the petition, as a reading of them will disclose. See Michigan Constitution, article 17, § 2, “at least four months before the election;” Constitution of Arkansas, article 5, § 1, “not less than four months before the election;” Constitution of Arizona, article 4, § 1, “not less than four months preceding the date of the election;” Constitution of Missouri, article 4, § 57, “not less than four months before the election;” and Constitution of Oregon, article 4, § 1, “not less than four months before the election.” This surely is not an indication that such language is evidence of an intention to make the operation of the amendment dependent upon future legislation.

Again it was said the requirement that the petition should contain the signatures of “at least twenty-five per cent of the legal voters in each of not less than one half the counties of the state” evinced an intention to give to the legislature power to prescribe a larger number of signers than twenty-five per cent and to increase the number of counties requisite to more than one half. The statement in the opinion is (pages 50, 51) : "This is merely declartory of a minimum, leaving to subsequent legislation to fix tbe minimum, which must be 'at least twenty-five per cent’ ayd to classify and vary accordingly, if necessary, cuny required percentage to initiate different amendments to the Constitution as legislative wisdom mcuy regard necessary in view of widely different constitutional subject-matter.” Here, again, they say that the legislature might prescribe a higher minimum than that fixed in the amendment itself is to give to it power to encroach upon the right granted. Suppose, for instance, the legislature should place the minimum at thirty per cent, or suppose it should place the number of counties within which thirty per cent of the legal voters signing the petition should come at three fifths instead of one half, the petition could not be filed until it had the required number of signers in the required number of counties. But, the Constitution says that "any amendment . . . may also be proposed by the people by the filing with the secretary of state ... an initiative petition containing the signatures of at least twenty-five per cent of the legal voters in each of not less than one half of the counties of the state.” This language clearly indicates what is required in order to exercise the constitutional right, and any legislation that would purport to require more would be an invalid attempt to curtail the right secured by the amendment.

The former decision of this court gives the legislature a free hand to prescribe a percentage so high as to make the right entirely unavailing. It in effect reads into the amendment the alternative clause "or such higher precentage as the legislature may require” and thereby implants within it the seeds of its own destruction. We are aware of no rule of constitutional construction that authorizes such a light consideration of the security of rights clearly intended to be protected by the plain language of the Constitution; and we are completely unable to justify the result in the light of the first rule of construction which regards, above all else, the purpose of those who adopted the amendment. Would similar reasoning be adopted in construing a suffrage provision where the minimum qualifications as to age and residence are expressed in like manner? If so, the legislature would be free to disfranchise electors at will. If the logical requirements of the former decision demanded the extreme construction placed upon th amendment, — one which left the right dependent for its very existence upon the will of the legislature, — such would be a strong reason for the very opposite conclusion-viz.: That the amendment was intended to be self-executing. If, in construing an amendment or a constitutional provision, the court is confronted with an alternative which requires it to give effect to the predominating purpose on the one hand or, on the other, to set the entire structure out of plumb by following a strained construction, it would seem that its duty is plainly evident.

But aside from the objection that the construction is in derogation of the right, we believe that the language itself is not fairly susceptible of the meaning previously placed thereon by this court. In the Constitutions of the various states providing for the initiative and referendum there are three main forms of expression used to fix the number of petitioners: (1) Not more than-per cent shall be required, etc. (See Constitutions of Arkansas, Oregon, South Dakota and Missouri.) ; (2) The people shall have the right upon a petition signed by not less than-per cent, etc. (See Constitutions of North Dakota, Colorado and Michigan.) ; and (3) Upon a petition signed by - per cent, etc., — i. e., the percentage is absolute, (See Constitutions of Oklahoma, Nebraska, California, Arizona, Washington and Ohio.) In the group in which North Dakota falls in the classification according to form of expression, there are but two additional states, and in both of them the provisions are self-executing, —one, Colorado, by express declaration, and the other, Michigan, by unmistakable intent. See Thompson v. Vaughan, 192 Mich. 512, 159 N. W. 65, where it was held self-executing. Whatever may be thought to be the best and most appropriate form of expression, it would seem that the only reasonable conclusion is that it was intended by the clause in question to fix the constitutional requirements of a valid petition, and not to delegate to the legislature the power to make them. The first form of expression referred to doubtless gives to the legislature the right to lower the percentage, but not to raise it; but research will disclose that the provisions containing this form of expression are nevertheless generally self-executing. • -

We should not conclude this branch of the discussion without pointing out that the same form of expression (not less than-per cent) is used in article 15 of the amendments to the Constitution of North Dakota which grants the initiative as to legislation, and this is expressly declared to be self-executing. If the language there used has been correctly interpreted by this court in its prior decision, may not the legislature require a higher percentage upon an initiative petition under article 15, acting under the power to “facilitate its operation ?” How, in the face of such a universal use of the language in question, can it be said with reason to mean something different when employed in the Constitution of North Dakota, in the particular place where it is used, than that meaning which is everywhere else attached to it? Surely the employment of a term of such well-recognized meaning, gathered from the Constitution of states whose provisions are self-executing, does not signify an intention to make the provision in question dependent for its operation upon the legislative will!

Still another expression was thought to evidence an intention to postpone the operation of the right until the legislature should- see fit to pass laws to facilitate its exercise. It is said that it is required that the petition shall have been “properly filed.” As will be demonstrated later in the course of this opinion, the term “properly” is to be read in connection with other constitutional provisions governing the exercise of the initiative right and only means filing with the secretary of state.

Then comes the provision concerning which there is clearly room for construction. “The proposed amendment or amendments shall be published as the legislature mcmj provide for three months previorrs to the general election, and shall be placed upon the ballot to be voted upon by the people at the next general election.” It was doubtless intended here to require publication of the initiative amendment and it is also cleár that the legislature was authorized to determine the manner of publication, the time only being fixed by the Constitution. In this respect, the amendment corresponds exactly with the similar provision in § 202 of the pre-existing Constitution, the same being § 1 of the amendment in question. The term “may,” however, which usually imports privilege or duty as applied to those to whom it is addressed, or which generally imports the future when used to signify tense, is not found in § 202. The expression there used is “as provided by law.” It is somewhat anomalous that the latter expression when originally used in the Constitution imported the future tense; because, at the time it was adopted as a part of the first Constitution there was, of course, no statutory provision for the. publication of constitutional amendments. So, while the language there used would be appropriate as referring to existing legislation, it was in effect a mandate to the legislature, requiring it to legislate in the future upon the subject. So far as tense is concerned, if the two expressions were exchanged they would apparently be more appropriately employed; that is, if the initiative amendment was intended to be self-executing.

The inquiry arises: Why was the expression used “as the legislature may provide ?” Obviously, had it been said “as provided by law” the amendment would have incorporated the existing law on the subject of publishing constitutional amendments prior to the legislative session to which they referred. To have done so would have been to adopt by reference for all time the existing provisions of law relative to publication. 36 Cyc. 1152; 2 Lewis’s Sutherland, Stat. Constr. 2d ed. § 405. It was probably thought desirable to avoid doing this; for, as wilLbe noted, the wisdom of continuing the present manner of publication has been gravely doubted by the legislature. See House Bill 312 of the 13th Legislative Assembly, which passed both houses. It reduced the number of publications from six to three and substituted one daily paper in the state in lieu of one weekly paper in each county. If the term “may” may be used, however, as it was used, it would indicate that any change that might later be made in the manner of publication of amendments under § 1 could also be made applicable to amendments under § 2 of the amendment. In short, it would seem to be the correct interpretation of § 2 of the amendment in this respect that the publication shall be for three months previous to the general election, and in such manner as the legislature shall from time to time provide. This construction leaves the legislature as free in providing the manner of publication under § 2, as it has been from the beginning under § 1.

While it was suggested in the opinion of State ex rel. Linde v. Hall, 35 N. D. 34, 159 N. W. 281, that constitutional provisions operate prospectively, it is extremely difficult to see wherein this observation has any force in determining whether the amendment in question was to be self-executing. Surely it was not thought or contended that it should operate upon any petition that had been circulated previous to its adoption, and nothing could be more safely emphatic than the assertion that it could operate only as to future amendments. This seems axiomatic. An amendment may go into immediate operation and yet there may be matters involved in it concerning which the legislature is expected to legislate in the future. The serious question is, Is there any legislation applicable to the publication of the amendments in question ?

Chapter 41 of the Political Code provides for the publication of constitutional amendments prior to the election of the legislative assembly to which they are referred in accordance with § 202 of the Constitution. The statute was adopted in 1891 and is as follows: "Whenever any ame'iidment to the Constitution of this, state is referred to the legislative assembly to be chosen at the next general election after the session in which such amendment is first proposed, the same shall be published for three months previous to the time of making such choice in one weekly paper in each county in which a weekly paper is published, once in the first month, once in the second month, and four times in the third month.” If the surplus clause (not italicized above), which is merely descriptive of the “general election” prior to which the publication is to be made, be omitted, the statute would be applicable to the publication of amendments proposed by initiative petition and by the legislature as well. The qualifying clause, “after the session in which such amendment is first proposed,” is only descriptive of the term, “general election,” and at the time it was inserted there was no way to initiate an amendment except by resolution in the legislative assembly. At that time the only way a constitutional amendment could be “referred to the legislative assembly to be chosen at the next general election” was by the preceding legislative assembly. So, for this reason, the descriptive expression is, in reality, surplusage and the statute would always have had exactly the same meaning if it had been omitted. It is certain that it was never used in the statute to distinguish an amendment referred to the legislative assembly by a preceding legislative assembly from one referred to it in some other way. The purpose of the statute was, of course, to provide for three months’ publication of constitutional amendments previous to the election of the members of the legislative assembly as required by the Constitution, and when the initiative amendment was adopted the requirement and practice of such publication must have been well known to the legislature. The amendment merely provided another method whereby a proposed amendment might he “referred to the legislative assembly,” and it even continued the requirement as to the time of publication as it previously existed. It seems to us that it is more reasonable to assume that the framers of the amendment and the people who adopted it contemplated the continuance of the existing law as to publication, than it is to assume that it was intended by them that the amendment should remain inoperative pending the passage of a new law upon this narrow subject. But little was left for the legislature to decide with reference to the policy of publication. It could only determine the manner of publication, not the time. The real question is whether a sufficient rule exists hy means of which the right given may he enjoyed. Cooley, Const. Lim. 7th ed. p. 121. We are of the opinion that the constitutional provision requiring three months’ publication and the statute providing for a like publication previous to the election of the legislative assembly to which a constitutional amendment is referred afford a sufficient rule so far as publication is concerned.

In view of the publicity that necessarily results from the general circulation of petitions, and the similarity in other respects between the requirements for publishing proposed amendments originating in the legislature and those initiated by petition, the argument that attempts to prove diverse intention as to the publication of the two kinds of amendments is altogether too technical to be considered meritorious. In the Ployhar-Blakemore resolution which failed of passage in 1913, and which the minority members seem to regard as self-executing, the existing statute as to publication was certainly in contemplation. It was there required that proposed amendments should be “published as provided by law, for three months,” etc. There is no ground for assuming that the legislature was interested in distinguishing, with regard to publication, between the two classes of amendments.

In the case of Cudihee v. Phelps, 76 Wash. 314, 136 Pac. 367, an act of the legislature of Washington, submitting a proposed amendment to the Constitution required the secretary of state to publish notice of the submission for “three weeks next preceding the election.” . The Constitution, however, required the publication “for at least three months next preceding election” and it was held that the publication by the secretary of state for three months as required by the Constitution was a valid publication, notwithstanding that the law directed publication for but three weeks.

We believe that much of the difficulty with which the court was confronted in its previous construction of the amendment in question was due to an apparent inclination to regard the amendment as but an isolated portion of the Constitution, having no relation to anything else therein contained. This difficulty, it seems, would largely be avoided if the amendment in question were read in connection with the other kindred provisions of the Constitution which was adopted at the same time. Both provisions have, at their foundation, the same political principle, that of retaining in the voters a portion of the governmental power which had previously been vested in the legislature alone. The reserved powers are expressed in separate amendments mainly, if not solely, for the purposes of securing separate expressions of the voters on the advisability of the reservation as applied to legislation and to constitutional amendments, and to make more rigid requirements as to the latter. It was doubtless thought that there might be many who would favor the reservation as to the legislative power, but not as to constitutional amendments. An examination of similar reservations expressed in the Constitutions of our sister states shows that in several of them the power to propose legislation and constitutional amendments has .been reserved in a single section corresponding to article 15 of the amendments to our Constitution. The entire procedure requisite for the exercise of the power for either purpose is outlined in the one amendment. See Cal. Const, art. 4, § 1; Mo. Const, art. 2, § 57; Or. Const, art. 4, § 1; Okla. Const, art. 5, § 1. The procedural machinery of article 15 is adequate for initiative petitions of either sort; but, in our Constitution, the power to initiate constitutional amendments is elsewhere conferred and additional limitations prescribed. There would be no occasion to repeat, that procedure in detail in an amendment which was designed merely to secure the extension of the same power to constitutional amendments, where it had been restricted in the first instance to legislation. The power is the same in both instances, and is to be exercised in the same manner, except that more rigid requirements must be met where it is desired to use it for amending the Constitution. Reading the amendments together, in order that fuller effect may be given, certain of the provisions of article 15 supply the details of the procedure that is only indicated in article 16, and the procedural deficiencies of the latter are largely supplied by the former. As has been seen, these articles are in pari materia, their subject-matter being so closely related that they are frequently dealt with in one section of a Constitution. The separate articles then were adopted in the light of each other and, in our judgment, it is much more reasonable to construe them together so that full effect may be given to the Constitution as it stands, then it is to isolate one from the other and then examine it in the light of omitted details governing matters of procedure merely. When these two amendments are read together, they will be found to provide an adequate machinery for the direct exercise of the reserved powers secured.

A constitutional provision must not be permitted to fail for the sole reason that every detail of procedure has not been provided for. It was conceded in the opinion of State ex rel. Linde v. Hall, 35 N. D. 34, 159 N. W. 281, that had article 16 been expressly declared to be self-executing, all of the defects mentioned in the opinion would have been overlooked by the court. As we regard the matter, there is no particular magic in words, and, according to the most eminent authority upon the subject, constitutional provisions are self-executing or not self-executing, depending upon whether or not they incorporate adequate rules for the security and protection of the rights granted or reserved. Cooley, Const. Lim. supra. The addition of the expression referred to would have supplied no deficiency of operative procedure. It must be remembered that all provisions of a Constitution are self-executing in so far as they may be given effect through ordinary legal processes; and if it is intended to make the realization of certain constitutional principles, suck as equality of taxation, for instance, dependent upon legislation, language is generally employed which is appropriate to that end. It is only when a constitutional provision “merely indicates principles without laying down rules” (Cooley, Const. Lim. 5th ed. p. 100) that it is not self-executing. If a mere principle was being enunciated, which the legislature would be expected to carry out, it is difficult to see why the framers of the amendment supplied so many rules for the application of the principle; and if the legislature had been expected to make the principle effective, it would seem that it would have been clearly directed so to do by appropriate language.

Mere difficulties of operation do not afford sufficient reason for the failure to carry out constitutional provisions. In the case of State ex rel. Hunt v. Hildebrandt, 93 Ohio St. 1, 112 N. E. 138, the supreme court of Ohio issued a peremptory writ of mandamus directing the secretary of state to cause to be printed and distributed arguments pro and con on proposed amendments to the Constitution, though the Constitution which imposed the duty upon him had not provided in detail for the procedure or even for the source from which the arguments should come or be selected. On the general question the court uses language that quite effectively disposes of much of the argument in this case which has been thought to demonstrate the unworkable character of the amendment in question without the aid of legislation. The court says: “That it may be difficult of operation is not a sufficient reason for refusing to obey the mandate of the Constitution of the state. Language could not have been used by the members of the constitutional convention or by the electors of the state that would give clearer expression to their intention and purpose in reference to this subject-matter. They undoubtedly had in mind the practical impossibility of covering every detail of the operation of the provisions of the organic law of the state; that some difficulties might arise in relation thereto that could be obviated by laws that would facilitate, but not limit or restrict, their application, and for that reason and to this extent, but no further, the general assembly is authorized to act. This constituí tional provision is a limitation upon the power of the general assembly, and for that reason, if for no other, its framers and the electors of the state who adopted it did not propose or intend that its operation should be left to the pleasure of the general assembly, for, in that case, the failure of that body to act would defeat the will of the people as expressed in the Constitution of the state. Nor should the intent and purpose of any provisions of the state Constitution be defeated by any technical construction of its terms. On the contrary, if the language is sufficiently plain to disclose that intent and purpose, then such construction must obtain as will give full force and effect thereto, even though it be attended with some difficulties.”

The foregoing language was used, it is true, with reference to a constitutional provision that was expressly declared to be self-executing, but it none the less expresses the principle which should govern in the construction of amendments of the general character of the one under consideration in that case. The amendment before us is of that character and the expression of the Ohio court meets our approval.

We think it proper to observe that, in the previous discussion of this general question, too much emphasis has been placed upon the presence or absence of an expression to the effect that a given amendment shall be self-executing. Until amendments were adopted providing for the initiative and referendum, it was very seldom that express language would be employed to indicate the self-executing character of a particular constitutional provision; but it would seem with the advent of the initiative and referendum, it was feared that unless some such provision were contained in the Constitution there was danger that the legislature, whose powers were directly involved and possibly the courts, would make inroads upon the right secured, and it was. out of an abundance of caution that such express provisions came to be inserted. We think that the absence of such a provision is not in the least indicative of an intention that the amendment should not be self-executing.

This opinion has extended beyond the bounds of length within which we had hoped to be able to express the principles deemed decisive of this litigation, but a due respect for the opinions of the members of this court participating in the former decision requires an ample statement of the reasons which have led to the overruling of that decision in its main conclusions. No reason sufficient in law having been assigned for the granting of the relief prayed for, the writ is denied.

Robinson, J., concurs.

Addenda, filed February 20, 1919.

Birdzell, J.

The foregoing opinion contains all that I had expected to say upon this important subject. Since it was written, however, additional dissenting views have been expressed that were not in anticipation when the original opinions were prepared and filed. These seem to call for an additional word in the interests both of clarity and of historical accuracy. This I believe to be ample reason for departing from the rule, which should be observed generally, of refraining from referring directly to a dissenting opinion when expressing the views of the majority.

When the foregoing opinions were filed, — now almost four months ago, my brother Christianson, now Chief Justice, reserved the privilege of extending his dissenting remarks which were filed at the time; to which request, of course, there was no objection. His extended dissent appearing below has just been filed; hence these addenda.

In the dissenting opinion just filed, there is an implied criticism of the legislature for not having provided adequate machinery for soldiers voting. It is intimated that, had the legislature anticipated a vote upon so important a matter as constitutional amendments, it would have provided such machinery. The legislature did pass a law upon this subject (chapter 6, Laws of Special Session of 1918), and there were three amendments to be voted upon which were submitted by the legislature and which were in no way dependent upon this decision. I take no part in this criticism and think it groundless.

There is an omission from the dissents which seems to me to be inconsistent with proper procedure in such cases as this, but this is a matter for the individual judge to consider for himself. I am consequently not disposed to do more than state the fact. While many authorities are cited which seem to me to have no bearing whatever on the case — one opinion even drawing upon sources wholly nonlegal and unofficial for authority in a matter concerning which it is not proper to go beyond official legislative records — no attention is paid to the rather numerous legal authorities bearing upon one of the principal questions in the case. This I regard as distinctly unfortunate. I refer to the question as to whether the amendment itself, which provides for the initiative and referendum as to constitutional amendments, ever became a part of the Constitution. This question was fully and ably presented by counsel upon the argument and is manifestly the first to be decided. It matters little whether the amendment will be operative, if, as a matter of law, it does not exist, and yet in all that is said by our learned associate, not one sentence is devoted to this important question. The only authority cited by the learned Chief Justice is one which concerns itself wholly with the question of jurisdiction, a matter which is not at all considered in the majority opinions and which must therefore be taken to be conceded.

There is still another significant omission. I call attention to the fact that, notwithstanding the earnest consideration and the deliberate thought which have been directed to the questions presented in this case • by our dissenting associates, they have not renewed their expression of assent to the interpretation placed upon the amendment in question in the main opinion in the capital removal case, unless it be by the general statement of adherence to the former opinion. Whether or not they are still of the opinion that the legislature can legally require an initiative petition to be signed by seventy-five per cent of the voters before it can be considered a legal petition in the face of the language of the amendment which clearly provides for a twenty-five per cent petition, may be left to the reader to infer.

It is said that no one has ever contended that the constitutional provision in this case is meaningless and inoperative as a constitutional provision and that this court, in State ex rel. Linde v. Hall, 35 N. D. 34, 159 N. W. 281, had expressly recognized it as a law of the state and as such operative as a basis for legislation. Perhaps it was not contended by the court, in State ex rel. Linde v. Hall, supra, that the provision was meaningless or inoperative, but this court nevertheless did hold, not only that power was given to the legislature to control the manner of publication, but that power was also given to require a higher percentage of the voters upon the petition than required by the Constitution itself. I do not know of any more effective manner of rendering a provision of the Constitution meaningless and inoperative.

It is further stated that it is well to remember that the primary purpose of such amendment is to reserve to the people certain governmental powers. With this statement I am wholly in accord. My objection to the previous decision of this court is that it ignores this primary purpose.

One other reference to the dissenting opinions and I shall conclude this uninviting chapter. Eesort is frequently had in all the discussion of the question under consideration to a peculiar and wholly inadmissible form of logic. The various bills or resolutions looking toward the adoption of the initiative and referendum are marshalled forth and it is discovered that the Gibbens Bill (the one under consideration) differs from all the others in that it does not contain these or similar words: “This amendment shall be self-executing.” Ergo, it was chosen from the lot for that reason. Then the conclusion is hastily drawn that the legislature must have intended to tie a string to its operation. Before this argument can be validated, those who use it must eliminate all other substantial differences (and there are many) between the various bills considered, and, furthermore, they must demonstrate that the others were all self-executing with regard to the constitutional amendment feature. This is probably as doubtful with respect to the rejected Blakemore Bill, for reasons which I will not take space to enumerate here, as in regard to the one in question.

When this case is stripped of all redundancy, it resolves to the simple proposition as to whether or not there exists a law under which the amendments could be published for three months previous to the election. It is not primarily a question, even, of self-execution, but of execution under the existing laws governing the particular subject of amendments. When the court originally passed upon the question in the capital removal case every argument that tended in the remotest degree to evidence an intention to postpone the operation of the amendment was advanced and tenaciously adhered to, but now those who express views opposed to the majority seem to draw their main, if not their sole, argument, from the expression “shall be published as the legislature may provide for three months previous to the general election.” The majority adheres to the view that the existing law is applicable, but subject to any change that may later be made. This view makes the express reservation of the right of initiative effective, and seems to the majority to be more consistent with the intention of th framers of the amendment and of the people who adopted it. The original decision in the capital removal case, to which the minority adheres, not only denied the existence of sufficient legislative authority for publication, but it invited the legislature to formulate the whole policy with respect to the right itself, — even to increase the number of voters required to petition, and to differentiate on the basis of amend-atory subject-matter. These are matters vital to the meaning of the Constitution itself, and for the correction of such a readily demonstrable, erroneous interpretation no justification is necessary. A conscientious adherence to the judicial oath demands as much. To shrink from such a responsibility under the protecting mantle of the doctrine of stare decisis would be to use the doctrine for a purpose which all of the authorities on the question regard as illegitimate. See 26 Am. & Eng. Enc. Law, 2d ed. pp. 189 et seq. See also Kimball v. Grantsville City, 19 Utah, 368, 45 L.R.A. 628, 57 Pac. 1; and Montgomery County Fiscal Ct. v. Trimble, 104 Ky. 629, 42 L.R.A. 738, 47 S. W. 773. In the latter case, the Kentucky court, by a vote of three to two, overruled three prior decisions on a question of the proper construction of a provision of the Constitution. See also Oliver Co. v. Louisville Kealty Co. 156 Ky. 628, 51 L.R.A.(N.S.) 293, 161 S. W. 570, Ann. Cas. 1915C, 565. For other cases where courts have corrected what seemed to them to be previous erroneous constructions of Constitutions, see Greencastle Southern Turnp. v. State, 28 Ind. 382; State ex rel. George v. Aiken, 42 S. C. 222, 26 L.R.A. 345, 20 S. E. 221; Willis v. Owen, 43 Tex. 41. For an appropriate expression of the guiding principle applicable in determining the effect to be given the former decision, I am tempted to borrow from the distinguished Judge Bleckley of the supreme court of Georgia, when he said: “When an error of this magnitude and which moves in so wide an orbit competes with truth in the struggle for existence, the maxim for a supreme court, supreme in the majesty of duty as well a.s in the majesty of power, is not stare decisis, but fiat justitia mat coshum.” Ellison v. Georgia R. Co. 87 Ga. 696, 13 S. E. 809, 14 Am. Neg. Cas. 167.

The holding of the majority that a constitutional provision may be given effect under pre-existing general legislation, even where authority is vested in the legislature to legislate concerning the same subject-matter, is fully substantiated by the following authorities (in some of these it will be noted that the mandate for future legislation was much stronger than in the instant case) : State ex rel. Goodin v. Thoman, 10 Kan. 191; Logan v. Ouachita Parish, 105 La. 499, 29 So. 975; State ex rel. Gordon v. Moores, 70 Neb. 48, 96 N. W. 1011, 99 N. W. 504; People ex rel. McClelland v. Roberts, 148 N. Y. 360, 31 L.R.A. 399, 42 N. E. 1082; Rodwell v. Rowland, 137 N. C. 617, 50 S. E. 319.

The holding of the majority gives force and vitality to an important portion of the fundamental law of the state, and, in my judgment, it but carries out the manifest intention of the Constitution.