I am not in accord with the conclusions reached in this case by Mr. Justice FELLOWS. He has considered at some length the question whether the proposed legislation violates the Federal Constitution. I do not think this question should be considered and passed upon by this court at this time. If the proposed provisions do not receive the sanction *Page 123 of the electorate it will be unnecessary to pass upon their validity.
Another reason suggests itself why we should not consider it. The same constitutional question was raised under similar circumstances on a petition heretofore filed by the same petitioner, and we refused to consider it until a situation arose which made it necessary. Hamilton v. Secretary of State,212 Mich. 31. In refusing to consider the questions in that case it was said by Chief Justice MOORE:
"If the defendant in this case may decide whether the proposed amendment is constitutional and thus refuse to submit it, May he not in any case in which it is his judgment that the proposed amendment is unconstitutional decline to submit it? If he may exercise this power, is not he going much farther than his duties as a ministerial officer authorize him to go? If the proposed amendment should receive a majority of the legal votes cast, there will then be time enough to inquire whether any provision of the Federal Constitution has been violated. Until that time comes we must decline to express any opinion as to the unconstitutionality of the proposed amendment."
Mr. Justice SHARPE, who wrote a concurring opinion in that case, made the following observations:
"To exercise the power of judicial veto against the constitutionality of an amendment before its adoption or a law before its enactment finds no justification in necessity, and is an unwarranted assumption by the courts of the power reserved to the people in the Constitution or conferred by it on the legislature.
"The duty of the secretary of State is plainly prescribed. He 'shall submit all proposed amendments * * * initiated by the people for adoption or rejection in compliance herewith.' Upon the filing of the petition, the duty devolves on him to ascertain whether it complies with the constitutional requirements. He must canvass the same and determine whether it has been signed by the requisite number of qualified voters, and also whether it is in the form prescribed and is properly verified. There is no *Page 124 provision that he shall determine whether the amendment contravenes any provision of the Federal Constitution, nor is he required or directed to submit such question to the attorney general for decision. The duty imposed is purely a ministerial one, and his performance of it is made mandatory by the express language of the provision which is italicized. * * *
"In none of these cases do we find even a suggestion that in the performance of the ministerial duty imposed on him by the Constitution the defendant may decide a constitutional question. In determining whether the petition is sufficient in form and in ascertaining whether the names of a sufficient number of voters are signed thereto, he may be required to interpret the language of the constitutional provision, but it is a novel proposition in the science of jurisprudence to say that he may pass upon the constitutionality of the amendment proposed. * * *
"This court has no express or implied power by judicial veto to nullify in futuro a prospective law fore-shadowed by a properly introduced bill before the legislature, nor, by analogy, a proposed amendment of the Constitution properly presented by petition for the electors to pass upon. In our opinion it is neither the duty nor the right of this court in this proceeding to pass upon the constitutionality of this amendment which has not been, is not now, and never may become a part of our Constitution."
Some very cogent reasons for refusing to consider the question at this time can be found in Mr. Justice FELLOWS' opinion in Anway v. Railway Co., 211 Mich. 592 (12 A.L.R. 26). Since these opinions were written in October, 1920, the conditions are unchanged, and no reason appears why we should now reach any other or different conclusion.
Plaintiff argues that the constitutional provisions with reference to the initiative are self-executing and need no supplemental legislation to make them workable. It is, therefore, contended that Act No. 204, Pub. Acts 1923, is without force. This court has held on two former occasions that these constitutional provisions were self-executing.Thompson v. Secretary *Page 125 of State, 192 Mich. 512; Hamilton v. Secretary of State,221 Mich. 541. And Mr. Justice FELLOWS concedes they are self-executing. In view of this, it will be unnecessary to consider further this aspect of the case. Mr. Justice FELLOWS, however, argues, and cites some authority in support thereof, that even though the provisions are self-executing the legislature has the right to supplement them by throwing safeguards around them to protect their operation from fraud and dishonesty. Conceding for the purpose of the argument that the legislature has this right, if, in so doing, it amends or annexes additional burdens to the operation as outlined in the Constitution then such provisions are in conflict with the Constitution and are void. The cases cited go no farther than this. If they go beyond this the legislation is void.Louisville, etc., R. Co. v. Commonwealth, 104 Ky. 226 (46 S.W. 707, 47 S.W. 210, 598, 43 L.R.A. 541). It is said in State,ex rel. Caldwell, v. County Judge, 22 Okla. 712 (98 P. 964), that:
"The only limitation, unless otherwise expressly indicated, on legislation supplementary to self-executing constitutional provisions is that the right guaranteed shall not be curtailed or any undue burdens placed thereon."
If we consider this to be the proper view of the law then we must examine the provisions of Act No. 204, Pub. Acts 1923, and determine whether they amend or add additional burdens to those imposed by the constitutional provision.
The prerequisites prescribed by section 2, article 17, are:
1. The petition shall include the full text of the proposed amendment, be signed by not less than ten per cent. of the qualified voters of the State, and be filed with the secretary of State.
2. The petition shall consist of sheets in such form and being printed or written at the top thereof such *Page 126 heading as shall be designated or prescribed by the secretary of State.
3. Such petition shall be signed by qualified voters in person only with the residence address of such persons and the date of signing the same.
4. To each of such petitions, which may consist of one or more sheets, shall be attached the affidavit of the electors circulating the same, stating that each signature thereto is the genuine signature of the person signing the same, and that to the best knowledge and belief of the affiant each person signing the petition was at the time of signing a qualified elector.
When these requirements are complied with the petitioner is entitled to have the question submitted to the electorate.
If the provisions of Act No. 204 are to be complied with the prerequisites are:
(a) It shall be unlawful for any committee, club or other organization to circulate, or cause to be circulated, any petition to initiate legislation, or for any constitutional amendment without first having filed with the secretary of State a certificate subscribed and sworn to by the secretary and president of such committee, club or other organization, setting forth the purpose of such committee, club or organization, and the name and address of each of the officers thereof, and of each of the separate units or branches thereof.
(b) Before any petition for any constitutional amendment shall be filed with the secretary of State it shall be presented to the proper city, village or township clerk or clerks.
(c) Whose duty it shall be to compare the names appearing thereon as being the names of qualified legal voters, residing in such clerk's city, village or township, with the registration book in his office.
(d) And to attach to said petition his certificate to the effect that he has made such comparison, and that the persons whose names appear thereon are qualified legal voters of his city, village or township, as the case may be.
(e) Or if the said clerk finds that some of the names appearing thereon are not the names of qualified legal *Page 127 voters of his city, village or township, he shall certify to such fact, naming such persons.
(f) Within twenty days after the filing of any petition to initiate legislation, or for a constitutional amendment, the committee, club or organization having charge of the circulation thereof, shall file with the secretary of State a full, true and detailed account, and statement subscribed and sworn to by the treasurer thereof, setting forth each and every sum of money received or disbursed by the said committee, club or organization, or by any unit or branch thereof for such purpose, the date of each receipt, the name of the person from whom received, or to whom paid, and the object or purpose for which disbursed.
(g) Such statement shall also set forth the unpaid debts and obligations, etc.
(h) The secretary of State shall furnish to such committees, clubs and other organizations blanks in form approved by the attorney general, suitable for the statements hereinbefore required.
a. Section 1 of Act No. 204 makes a distinction between individuals and committees, clubs and other organizations. The constitutional provision makes no distinction. If individuals, with the help of one committee, should secure the requisite number of names, and the committee should fail to comply with section 1, the secretary of State would probably be justified in refusing to submit the petition. This is a requirement not mentioned in the constitutional provisions, and is clearly an additional burden imposed on those who are circulating the petitions.
b, c, d, and e. These prerequisites are clearly an amendment by substitution and they impose added duties, and also impose an expenditure of money which the constitutional provisions do not require. The Constitution provides that the affidavit of one who circulates the petition that they were signed by qualified voters will suffice. Act No. 204 says that is not sufficient, you shall present the petitions to the several hundred clerks of the several cities, villages and townships *Page 128 in the State, and they shall compare them with the registration lists. Is this not an attempt to amend the Constitution by legislation and substitute the will of the legislature? And is it not clear that the legislative provisions impose an additional burden on those who have charge of the petitions? If the petitions are to be submitted to the several hundred clerks and their certificates obtained after a search, who is to pay for these services, and how much shall they be paid. Suppose the petitions were signed by 100,000 people in the city of Detroit, and they should afterwards be submitted to the city clerk, who will do the work, and how long will it take to do it? And suppose the clerk refuses to make the search and certify unless someone will become liable for the fees. If no one offers to become liable, and the names are not certified, will the secretary of State refuse the petition for this reason? Is not this an additional burden imposed by the legislature on those who are desirous of amending the Constitution in this way?
f, g and h. These requirements are not very important, but they are likewise additional burdens not imposed by the constitutional procedure.
It will be noted that the constitutional provision requires the petition to be signed by qualified persons. The legislative requirement is that the persons signing must be qualified legal voters. Under the constitutional procedure a young man or woman who had reached his or her majority upwards of four months before election would be qualified to sign the petition. Under the legislative procedure they would not be qualified unless they were also registered voters, as well as qualified voters. The legislative qualification would, therefore, disqualify thousands of new voters from signing the petitions, who would be entitled to sign under the constitutional procedure. This would likewise be true of the thousands of voters who had changed voting precincts since the last election. But *Page 129 it may be argued that qualified voters and qualified legal voters mean the same thing. The answer to this is if the legislature had not intended to prescribe a different qualification, why did it inject the word "legal" in addition to the qualification prescribed by the constitutional procedure? This is clearly a legislative amendment and is an unjust discrimination against the new voters and against those who have changed their voting precincts since the last election.
This court has on two occasions indicated to what extent the constitutional provision under consideration might be affected by legislative acts.
"The constitutional provision contains procedural rules, regulations and limitations; it maps the course and marks the way for the accomplishment of an end; it summons no legislative aid and will brook no elimination or restriction of its requirements, it grants rights on conditions expressed, and if its provisions are complied with and its procedure followed its mandate must be obeyed. Its provisions are prospective in operation and self-executing." Hamilton v. Secretary of State,221 Mich. 541.
"Of the right of qualified voters of the State to propose amendments to the Constitution by petition, it may be said, generally, that it can be interfered with neither by the legislature, the courts, nor the officers charged with any duty in the premises. But the right is to be exercised in a certain way and according to certain conditions, the limitations upon its exercise, like the reservation of the right itself, being found in the Constitution." Scott v. Secretary of State,202 Mich. 643.
If we are still in accord with these expressions it would seem improbable that we can now approve legislation which eliminates important parts of the constitutional rule and substitute therefor the legislative rule for amending the Constitution. It is perhaps true that the constitutional provisions giving force to the initiative and referendum are innovations *Page 130 in representative government. They are here, however, and are a part of the organic law of the State and must be respected. The initiative found its birth in the fact that political parties repeatedly made promises to the electorate both in and out of their platforms to favor and pass certain legislation for which there was a popular demand. As soon as election was over their promises were forgotten, and no effort was made to redeem them. These promises were made so often and then forgotten that the electorate at last through sheer desperation took matters into its own hands and constructed a constitutional procedure by which it could effect changes in the Constitution and bring about desired legislation without the aid of the legislature. It was in this mood that the electorate gave birth to the constitutional provision under consideration. In view of this I am persuaded that it was not the intention of the electorate that the legislature should meddle in any way with the constitutional procedure to amend the State Constitution. It was fittingly said in the following cases that:
"A constitutional provision designed to remove an existing mischief should never be construed as dependent for its efficacy and operation on legislative will." Morley v. Thayer, 3 Fed. 737; People v. Rumsey, 64 Ill. 44; Brien v.Williamson, 7 How. (Miss.) 14.
My conclusion is that in so far as Act No. 204 amends or is in conflict with the constitutional procedure for amending the Constitution, and in so far as it adds additional burdens to the constitutional procedure it is void and must give way to the procedure prescribed by the Constitution. I am, therefore, in favor of issuing the writ prayed for by plaintiff, but without costs.
SHARPE, J., concurred with BIRD, J. McDONALD, MOORE, and STEM, JJ., concurred in the result. *Page 131