(dissenting) — When I was called upon to sit in this case, I had not read the briefs, and I felt that it would not be right to take time to study the statutes and the opinion at the time it came to me, inasmuch as the majority had signed it. Accordingly I said:
“It is imperative that the opinion in this case be filed this afternoon. I did not sit with the judges who heard the cases in the first instance. A majority has signed the opinion and it would do no good for me to hold it until I can give the case the attention it requires. As soon as it is possible for me to *663do so, I will go into the case as thoroughly as I can and will then express that opinion which in my judgment governs the cases.”
I have made some examination of the law and of the record, and it is my judgment that the statute makes the secretary of state the canvassing officer, with power to inquire and to determine whether the petitions have been signed by a requisite number of legal voters; that, in the absence of any challenge, his certificate is final; but if challenged, his judgment is subject to review by the superior court; that the superior court has power to inquire de novo and to make findings.
It seems to me that Judge Gose’s analysis of the statute is unanswerable, but I rather agree with the second (“fourth” and “fifth”) of his alternatives, which, as I understand, is in accord with Judge Main’s opinion.
It would serve no purpose to review the statute or the decisions relied upon, and I shall not do so except to say that the decisions of this court, known as the county seat cases, are, in my judgment, not in point, for this reason: in those cases, the act sustained was the act of a tribunal established by law and working under the sanction of an oath, an oath to maintain the constitution and laws of the state of Washington. The county commissioners were, in a sense, a canvassing board, whereas the person who certifies the petitions in nonregistration districts under the initiative law is not an officer of the state of Washington and his declaration of opinion should be no more final than the certificate of the judges and inspectors at a general election. There is nothing other than his declaration to give credence to his certificate. He has taken no oath binding him to observe the law he is called upon to execute. Any other construction leaves the provision requiring a canvass of the vote without any life or meaning.
The effect of the decision of the majority is that fraud can stalk rampant through the courts, which are established to maintain justice. I am unwilling to hold any such doc*664trine. The legislature was careful to say that no less than a certain number of valid signatures should be on the petition. It was not the intent of the people, when the constitutional amendment was adopted, that any other rule should prevail. We are not passing on the merit of the proposed laws. The fraud in these cases is not denied. The forgeries are so numerous and so glaring and they speak so loudly that no man would have the hardihood to deny their existence. The good faith and findings of the secretary and the court are not questioned. It is not insisted that the petitions contain a sufficient number of legal signatures. Proponents admit all these things, but they say, and the court finds, that the law is helpless; that, inasmuch as the petitions are in form sufficient, we cannot inquire into their substance. I do not believe that the law is helpless. The legislature has not legalized fraud and perjury and forgery, and courts should not do so.
The rule relied upon by the majority is sound but I believe it is misapplied. It does not fit into the four corners of this case. It is a rule arbitrary in its nature, and was adopted by the courts to do justice and not to work injustice; to preserve harmony between the several departments of government. It is a rule which prevents a court from inquiring into the motives and discretion of officers when collaterally attacked, when charged with the execution of the powers of other coordinate branches of the government. It is never applied where the law provides for a direct attack, as I believe it has in this case.
The distinction between the rule adopted by the majority and the applicable rule was observed 'by this court in the case of Rickey v. Williams, 8 Wash. 479, 86 Pac. 480. The court there said:
“The granting of the writ in this case did not involve an inquiry into any matter which rested in the discretion of the board, nor into any disputed question of fact. It was not an interference with the legislative branch of the govern*665ment in any sense, but rather was in aid of legislative action. The legislature only authorized the board to submit the question in case the petition specified was filed, and then the board must submit it. If the board should arbitrarily refuse to act where, under the undisputed facts the law required them to proceed, the courts would unquestionably compel them to act. No other branch of the government could compel action, and if the courts have not jurisdiction in such a case the legislature is powerless and the law simply a dead letter.”
The converse of this must follow. That is, where the law says that the question shall be submitted only upon a petition containing a sufficient number of legal signatures, and the fact is admitted that there is not a sufficient number of legal signatures, the court should restrain the proceeding. If it is not so, then indeed is the legislature powerless to preserve the sanctity of such proceedings and the law is a dead letter.
If a man forges a signature to a check or to a note, it has no legal life for it is conceived in fraud. If this court should hold that such a note or check were good if it had the certificate of a confederate that he believed it to be the signature of the party whose name was attached to it, we would meet the just criticism of all men. I can see no difference between such a case and the one at bar except that the case at bar may have less to excuse the fraud. Those who circulate and certify these petitions are voluntary agents acting under a deep moral obligation to the state. They are exercising in the highest degree a public function. If they return forged petitions, no pecuniary gain results to them, but the state suffers a loss in the lowering of its moral standards.
With the fact admitted that the petitions do not contain a sufficient number of legal signatures, it seems to me that the court has made a mistake in searching for precedent and authority to sustain them. The initiation of laws by petition is a new thing. It stands unrelated to any other sub*666ject of the law’s concern, and instead of looking for authority that has been applied to cases where courts have said they would not review the discretion of public officers, we have a rare opportunity to say that, with the adoption of new ideas, we will declare a rule founded in the doctrine of common honesty regardless of precedent. If there be no authority or precedent for holding tight to the doctrine of honesty in all public affairs, then I say, as I have said twice before (Mazetti v. Armour & Co., 75 Wash. 622, 135 Pac. 633, 48 L. R. A. (N. S.) 213; Weber v. Doust, post p. 668, 143 Pac. 148), it is high time that we make a precedent.
There is only one test and that is, an honest petition containing a sufficient number of legally qualified voters. Can any one doubt what the attitude of proponents would be if they were opposing, rather than promoting, these measures? If the other side were here with a petition reeking and dripping with fraud, would they not insist that the parties who certified the fraud could not purify it so as to pass the inspection of canvassing officers and of the courts? Will proponents deny that they would be here asserting that the measure proposed be sustained by reference to the doctrine of common honesty and that the name of every petitioner should be the truthful expression of every one who signed it? It may be admitted that there are thousands of names of good honest men on the petitions, but that is not enough. The people themselves have fixed a certain limit of ten per cent of the legal voters; and before the petition can be voted on, it should have the requisite number of legal signatures. To hold the contrary, is to nullify the limit fixed by the people. If this procedure is upheld, we would have to allow a petition actually signed by one or one hundred men, if there were a sufficient number of fraudulent names to make up the number required and these certified in form.
Something was said in oral argument about progressive measures. To sustain fraud and forgery is not a proper test of progress. Progress stands for honesty. To take a *667petition acknowledged to be fraudulent by counsel and by every member of this court and purify it by judicial breath is retrogression in its worst form. The people are demanding that the courts shall look to the justice of the case and abstain from technical constructions. It is my opinion that no case has ever been before this or any other court where justice has been so clouded by a technicality.
I have no fault to find with my 'brothers who have signed the majority opinion. They are as sincere in their opinion as I am in mine. I believe they have misconceived and misapplied, the law.
I have written my opinion of the proceedings attending the preparation and filing of the petitions in these cases so that when the legislature is convened it will know that it has been judicially held that certified fraud is legal fraud; that its former act has no gates to shut out frauds and forgeries and that the citadel of truth and honesty that it undertook to build around the constitutional amendment permitting and encouraging direct legislation is a house of cards.