The daily Gate City. [volume] (Keokuk, Iowa) 1855-1916, 1910-08-02

state committee through Chairman
Dickey for the submission OF an
amendment for redistricting the state
into senatorial districts. John Ken
nish, Homer Hall and Judge John c.
Brown made the arguments on be-
half of the peremptory writ Of manda.
mus denied.
Judge Woodson's Decision.
Judge Woodson's decision, in part,
follows:
81 am unable to agree with our
learned chief justice and other OF
my associates as to the power and
duties OF the secretary of state in the
premises. In my opinion the design
of the legislature in requiring the
petitions of the vo<4rs to be filed
with the secretary OF state was sim
ply to make him the custodian OF
the petitions and other proceedings in
the initiative and referendum legisla-
ton in the same manner as the Gus
todian of all proceedings leading up
to the legislation to be enacted by
the General Assembly of the state.
And the question of their validity, as
well as all laws enacted by the peo-
pie in pursuance thereof, are no more
addressed to the courts until after
| their enactment than are the propos-
| ed enactments of the legislature.
1t is conceded by all that a pro-
posed bill! however offensive 1t
may be to the organic law r. the
state, pending in the legislature, can
not be controlled by the courts prior
to its enactment, for the obvious
reason, first, because the courts haze
no authority or jurisdiction over the
! legislation, and, second, because the
! bill may never receive the sanction
of that law-maling power, and in my
/ opinion, the same is true of the initia-
/ tive and referendum, the courts have
4 no power to control the action OF the
sovereign people in the enactment OF
laws; and they may repudiate the
proposed legislation submitted to
them for ratification which would OBJ
4 viate the necessity of I'll action on
the part Of the court.
i To hold that the courts can not
control the people themselves in such
legislation by direct proceeding in
stituted against them, but that they
can do so indirectly by controlling
the action of the secretary Of state
who is their representative, is te
ignore that legal maxim which pro
hibits that from being done indirect
ly which may not be done directly.
The mere fact that the initiative
and referendum act provides that II
case the secretary Of state should re
fuse to file tie petitions mentioned
therein is no authority for holding
that he possesses judicial or discre
tionary power to pass upon their val
idity In my opinion that provision
of the act was inserted, not for thu
purpose of vesting that power in him
but for the purpose of making it clea
: that he had no such power and coul'
, be compelled by the courts to file tn
, petitions That act is meaningless TO
| the reason that the courts alreau.
possess the power under the genera
, laws to control the discretionary pow
ers Of the secretary of state whereve
t he abused or unwisely exercised tina
t discretion.
Since the adoption of the initiativ
: and referendum amendment act ther'
are two law-making powers in tn
state, namely, the people themselve
: and the legislature, and the court
l have no more power to control tn
action of the former than they hav
to control the action of the latter.
. In my opinion it would be just a
: appropriate to pass upon the validit
of or to construe will when presen'
ed for probate as 1t would be to pas
upon the validity of law or any o
its preliminary steps prio7 to its er
: actment
Judge Fox's Opinion.
/ Judge Fox, in his decision. took tn
J. position that the proposed amendmen
/ is not an amendment, but legisls
tive act providing for the exercise O
power delegated under the constitr
t ton and laws of the state. He said
/ The measure proposed is entirel
/ foreign to an amendment to the cor
Y stitution which deals with the subjec
{ embraced in the petitions presented
The initiative and referendum amend
e ment to the constitution speaks Q
: laws and amendments to the const
Q tuition Manifestly, those terms ar
g used in their plain and ordinary sens
b and. in our opinion, the petitioner
0 have no right to undertake to put i