Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1916-09-12

son, 81 Pac. SIT. So all that was nee
essary to have our Subd. 2 Of Sec.
POP self.executing beyond all doubt
was for our legislature to borrow the
remainder Of the constitutional provi-
sion and provide in this act, as in
Chap. Sc Session Laws, 1911, the
Plain resolution, that 1.-THE secretary
of state and all other officers shall be
guided by the general laws and this
act in filing and submitting initiative
and referendum petitions until legisla-
ton shall be especially enacted there
for The Oregon constitutional pro-
vision reads: Petitions and orders
for the initiative and for the referen-
dunn shall be filed with the secretary
of state and in submitting the same
to the people he and all other officers
shall be guided by the general laws
and the act submitting this amend
ment until legislation is especially
provided therefor Notice their al
most identical as we'll as peculiar
This has been held self
executing in State v. Benson, 81 Pac.
ST. The same legislature in 1911
adopted it almost verbatim as to the
Plain bill and also as to the Bessesen
our present constitutional
provision as to initiative and referen.
dunn Of ordinary legislation.
There Is No Court.
There can be no doubt that this
language came from the Oregon initia-
tive constitutional provision quoted.
But not content with that, the last
clause of the present constitutional
provision as to legislation, states:
This amendment shall be self-execut-
ing, but legislation may be enacted to
facilitate it's operation If the COM
panion measure to Subd. 2 was care
fully made self-executing, and Subd. 2
was not Intentionally made not self
why was this provision
and deliberately eliminated
or omitted from Subd. while found
in the corresponding amendment as
to legislationE which also was made
doubly certain by an explicit declara-
ton that it should be self-executing.
Mere Direction.
"And it would seem improbable that
the legislature in submitting, and the
people in adopting this constitutional
intended it to be more than
a direction to subsequent legislatures
to provide, within the limitations
therein declared, legislation providing
procedure for constitutional amend
ment by initiative petition. This prop
osition of capital removal is illustra-
tive in this that petition purporting
to contain the names of thirty thous-
and electors Of this state has been
filed with the respondent, and upon
that alone it is insisted that he must
submit to the people the proposition
rect means of amendment Of the con-
stitutiOn. There are no requirements
as to verification of such a petition of
this constitutional provision is self.
executing. Only the signatures of
twenty-five per cent. of the electors in
half the counties in the state, or in
other words, the approval of one
eighth of the tlectroate of the state,
is all that is necessary if respondent
be correct While a corresponding re-
mOval of county seat can only be
brought about by a petition verified
by the affidavit of each of the signers
thereof, stating that he is a resident
Of the county, qualified elector there
in and that he personally signed his
name thereto, knowing the contents
and purposes of the petition for re-
Sec. 1898, c. l.. 1913; and that
too by a petition of at least three
fifths of the voters according to the
votes cast at the last preceding gener-
al election, with the manner of sub
mission upon the ballot specifically
provided. It is hard to believe that
either the legislature or the people
would Understandings adopt this con-
stitutional provision unless it was
merely as a general rule authorizing
legislation. While results of concrete
application are not controlling they
may be looked to when the statute
or constitutional provision is ambigu-
JUS and where adopted with such
history as here.
No Desire.
eve have no desire to thwart the
public will or prevent a statewide
election upon any question, unless
plainly required to do so. But we are
convinced that this provision is not
,elf-executing, and the Supreme court
If Indiana in Ellingham v. Dye, 81
Ammo. Cases 200, at 227 has well ex-
pressed the frame Of mind in which
We find ourselves, in the following Ian
5uage: Where the question present
I'd to court is judicial question, it
would be sheer, inexcusable coward
ce and violation of duty for it to
:ecline the exercise of it's jurisdiction
md to decline to interfere and re-
strain the submission of this question
when it IS proposed to do so without
my sanction of law. There is no
aw under which this petition is ten
Tered and fled or under which it can
exist in a logical sense as a petition.
"The writ prayed for will issue, re-
,training further proceedings by the
in the submission to vote
If the matter in question. 1t is so
ordered"
The Syllabus.
The syllabus follows:
Original writ of Injunction to pre-
vent submission upon ballot at the
coming general election of an amend
nent to Sec 215 of the State Consti-
.ution m remove Tho scat IF state