Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1916-09-12
CONSTITUTIONAL CLAUSE
IS NOT SELF EXECUTING
Continued from Page One)

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acting he is a Legislative agent of the
people and fullills legislative func-
ton in submitting said matter to vote ;
and that to stay submission of the
question at the coming election, or to
make any judicial inquiry as to the
legality Of the petition filed, is not
only judicial interference with legisla-
ton in course of enactment but is an
unWarranted and unconstitutional
usurpation Of legislative power by the
judiciary.
Erroneous Assumption.
This contention will be first MOTTO
ed. 1t is promised upon the erroneous
basic assumption that the enacting Of
a constitutional amendment is an eX-
ercise of legislative power conlided
as legislative subject matter upon the
legislative department of government,
as is ordinary legislation. While in a
sense such may be a political or legis-
latiVe matter for determination as Il
political question, Il. R. V. Brick Co.
v. Crank Forks, q N D. 8--27, l45
N. W. 725, yet in its submission for
adoption or rejection, neither legisla-
tive province nor power is involved.
Whether the people people by initia-
tive petition or by legislative proposal
amend the fundamental law they are
in either instance merely acting I'M
der a limited power conferred s
by the people and whc' might with
equal pr0priety have been conferred
upon either house, or upon the COVER
nor, or upon a special commission or
upon any other body or tribunal The
extent of this power is limited to the
object for which it is given, and is
measured by the terms (of the consti-
tution) in which it has been conferred,
and cannot be extended by the legisla-
ture to any other object, or enlarged
beyond these terms. In submit
ting propositions for the amendment
of the constitution, the legislature is
not in the exercise or it's legislative
power or of any sovereignty of the
people that has been entruster to it.
but is merely acting under a limited
power conferred upon it by the peo-
pie"
"'The legislature in executing its
functions lin proposing constitutional
amendments) does not legislate in a
technical sense. The result does not
need the approval of the governor.
The duty is ministerial in character
There is good reason why the manner
Of procedure so far as material,-and
the people must be presumed to have
settled the question of what is mate
rial,-must be followed. The power
to make law, within fundamental linn
itations, is inherent in the division of
the government formed for that pur-
pose. 1t does not need any express
grant, but it does not include making
or proposing fundamental law. The
power to SO propose is a special
grant
'r Judicial Question. "
"But that the sufliciency of the Pc
tition is a judicial question as we'll as
the propriety of the remedy of injunc-
ton has already been passed upon by
this court in adjudicating the INSULT
cheney of a petition for a statewide
referendum upon a legislative enact
ment and holding it to be judicial
question and in which proceedings in
referendum were enjoined because
void. State eX rel V. Hanna, as Gov
ernor, ct al, 81 N ID. $40, 1874 N. w.
704. On original writ this court there
in declared: AS a referendum sets
aside or suspends the will of the peo.
pie as expressed by legislative act, Pc
titions for referendum should be re-
quired to comply with the mandatory
constitutional. provisions under which
referendum is authorized. TO re-.
quire less is the equivalent of amend
ing said constitutional provisions by
court fiat, as well as to be derelict in
enforcing the constitution ITSELF
Judicial Pure and Simple.
"But counsel reasons that by an
abuse of judicial review legal passage
of any constitutional amendment
might be abridged or prevented
through staying the process of it's