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

tvs or by initiative petition is not
legislation and involves no legislative
act or province, or power OF state
sovereignty; but is merely 4 duty
ministerial in character, fixed by and
to be exercised only under and by
compliance with the terms OF the
constitution.
Judicial Inquiry.
"a Whether proceedings to amend
a constitution are valid as performed
is proper judicial inquiry and its
determination by court decision is not
an invasion by the judiciary OF the
constitutional functions, province, aud
legislative duties Of the Legislative de-
partment of the government.
(5) Subd. of Sec. POP of the State
Constitution is not, and was not iu-
tended to be, self-executing; but is
only a mandate to succeeding legisla-
lures to provide laws whereunder
the constitution may be amended by
initiative petition. This is the vary
apparent intention, because:
(a) Subd. 2 contemplates that the
publication Of notice of submission Of
such amendments shall be regulated
and prescribed by future legislation.
To Legislature.
~ Subd. 2 contemplates that leg
islation shall be enacted declaring
the percentage of signers actually
necessary to propose constitutional
amendments, as the words of said
Subd. 2, "of at least twenty-five per
cent" was intended to be but limit
alton upon the legislature that at
least 25 per cent should be required,
but not to declare the percentage
necessary, leaving that to future legis-
lative action to determine the proper
and necessary minimum prcentage to
be requird, whether that percentage
be twenty-five per cent or more than
twenty-five per cent.
(c) 1t is strongly indicative of ne
cessity for future legislation that no
definite rule for computation of any
requisite percentage of signers is de-
clared under Subd 2, while under the
constitutional provision as to initia-
tive of legislation the basis is there
prescribed as "the whole number of
votes cast for secretary Of state at
the regular election last preceding
the filing" Of the petition
(d) The failure to mention or pre-
scribe the substance or form of an
enacting clause to constitutional
amendments proposed by initiative
petition, while the provision for in
itiative of legislation does not pre-
scribe the form of the enacting clause
to de used, is strong evidence that
future legislation would supplement
said Subd. 2 by defining the form of
any enacting clause to be used there
under.
O The history of it's enactment
taken in the light of contemporaries
Gus legislative action upon these and
other concurrent resolutions introduce
ed in or passing at the legislative
sessions of 1911 and 1918, negatives
an intent that Subd. 2 should be self
exexcuting.
Petition Is Void.
f) Our constitutional provisions
were taken from the Oregon consti-
tuition. The omission of the words
found in the Oregon constitution that
would have made this provision self
executing and then so interpreted
there by court decision thereon, must
and intentional and for the purpose
of preventing Subd. 2 from being con-
strued as self-executing.
CO. AS there is no law authorize
ing any amendment of our state con-
stitution by initiative proceedings, the
petition is void upon which the re-
spondent threatens to submit this
question to vote.
(O A court should enjoin submits
sion of such a question where there
is no law under which it could be le
gally submitted to vote.
(S) Petitioners have sufficient in
terest to maintain this action.
Syllabus BY The Court.
Original writ Of this Court is or
dered issued to enjoin the secretary
of state from submitting to vote a
void proposition upon capital remOv-
Opinion of the Court by Goss, J., in
which all members concur. Burke,
Bruce, Christensen, JJ., file separate
general concurring opinions:
Miller, Zuger & Tillotson; Newton,
Dullam & Young, and Benton Baker,
Of Bismarck; and Sullivan & Sullivan
Of Mandan, Attorneys for Petitioners.
Lawrence & Murphy of Fargo; r.
F. McCue of Darlington; J. J. Young
blood Of Fessenden; Rinker & Duell,
w, M. Jackson, J. S. Cameron, J. A.
Manley, r. ]. Bottle and C. J. Maddux,
of New Rockford, Attorneys for Re-
spondent.