(concurring specially)—The decision of the court seems to be well founded in all respects, excepting only the holding that the court cannot consider the admission that initiative measure No. 3 was not published for the time required by law, and cannot take judicial knowledge of the fact. The purpose of the amendment was to maintain the spirit of the constitution and to insure an informed electorate. The duty of giving such notice was put upon the secretary of state. He did not give the notice required by the constitution, although it is provided in terms that such duties are mandatory. It is stipulated that he did not give sufficient notice.
I had hitherto understood that courts would consider, as a part of the record, stipulated facts. It is held that we will not do so in this case. I had also thought the law to be that we could judicially notice any fact that went to a question of observance or nonobservance of a provision of the constitution, mandatory in character, by an officer high in station and whose act affected the whole public, and when the fact was known of all men. The amendment to the constitution providing for the initiative and referendum specifically directs that the legislature shall provide a means and method for notice to the people of laws submitted under those measures. It says:
*517“The legislature shall provide methods of publicity of all laws or parts of laws, and amendments to the constitution referred to the people with arguments for and against the laws and amendments so referred, so that each voter of the state shall receive the publication at least fifty days before the election at which they are to be voted upon.” Laws 1911, P- 136, § 1.
The legislature did as was directed, and I had understood the rule to be that a statute passed in obedience to a constitutional amendment had the force and effect of the constitution from which it sprang. In other words, it is the thing that makes the constitution efficient.
It had seemed to me that this provision of the constitution, as amended by the initiative and referendum amendment, was not merely directory, or a thing to be disregarded in whole or in part. There was a controlling reason why those who formulated it provided that notice should be given, and that it should be given for a definite time. They well understood, for it has been observed by every statesman and philosopher who has inquired into the theory and possible workings of the scheme, that it might be subject to abuses, and that laws proposed under it might be misrepresented, or possibly voted upon without any guide whatever unless the people were guaranteed ample opportunity to know and understand that which they were voting upon.
The urgent arguments made against the initiative and referendum have been that the measure would reduce our state government to the level of a democracy. The proposers knew that, in the absence of a positive constitutional guarantee, a law might go to the people for their judgment, determination and decision with no means of acquiring certain information as to the terms of the law or the arguments of those who had a real interest for or against it. They knew that the present strength of the initiative and referendum, as well as its retention as an instrumentality of government, depended, not merely upon the participation of the people, *518but upon intelligent participation, and it is not out of place to say that one of the reasons for the adoption of the initiative and referendum was that many people believed that the legislative body had not been entirely responsive to the public will, and had passed unwise and ill-considered legislation, and its proposers were careful to provide that the people should have every opportunity to test the merit and wisdom of a proposed law. They foresaw that an instrument designed to protect the rights of the people, in the event that no notice and publication of the proposed measures was provided for, would be subject to abuse by those who might propose laws to promote .selfish interests, and by the means of unauthorized notices and publications, deceive and mislead the people.
We meet this situation. It is admitted by counsel that the constitution has not been observed. It is stipulated in writing that it was not. The act of a public officer, a high public official, is questioned. His act involves a nonobservance of a duty imposed by the constitution, and touches the whole people, and the whole public has an interest in his act. The act of omission is known and admitted of all. men, that is to say, is a mattér of common knowledge. I think there is no instance in the books where, under like circumstances, a court has refused to judicially know what they know as men.
If a court, cannot accept stipulated facts or judicially recognize a breach of a duty made mandatory, by the constitution, I can imagine no case where it would be justified in resorting to judicial.knowledge. The opinion, in this respect, does not, in my judgment, rest upon a readjustment of old principles to new conditions. It is rather an abandonment of old principles, for. any decision that makes it possible for an administrative officer to turn a mandate of the whole people into a mere .direction does not tend to the security of our constitution.
We have laid down a rule that will be as readily seized upon to sustain an evil law as to uphold a good one. The *519rule must work both. ways. If we could know as judges what we and all men know as men, we would undoubtedly follow an unbroken line of decisions from Wade v. Tacoma, 4 Wash. 85, 29 Pac. 983, to Uhler v. Olympia, 87 Wash. 1, 151 Pac. 117, 152 Pac. 998, decided finally while this case was under consideration, and hold that measure No. 3 was not legally adopted.
I have urged these things. They are fundamental principles and might be sustained by the writings of men learned in the law from Aristotle to the present day, but they have not commended themselves to my associates. Law is declared in several ways, one of which is through the decisions of the courts upon controverted questions. This case involves a pure question of law upon a political question which must be settled by a majority vote of the judges.
“When many persons equal in virtue appeared at the same time, they brooked not a superiority, but sought after equality . . .
“No one then denies that it is necessary that there should be some person to decide those cases, which cannot come under the cognizance of a written law; but we say that it is better to have many than one; for every one who decides according to the principles of the law, decides justly. Yet surely it seems absurd to suppose, that one person can see better with two eyes, and hear better with two ears, or do better with two hands and two feet, than many can do with many . . .” Aristotle’s Politics, Book III, Chapters XV, XVI.
Seven of my associates find no violation of the constitution in the adoption of the questioned law, or rather, they hold that the court is powerless to notice and correct the admitted omission to observe its terms, and I feel that I can do no better than to say that I yield my judgment to that of the majority, as I would follow a questioned decision under the doctrine of stare decisis, and concur in the result, not because it is the law as I had understood it, but because it has been so declared by a competent tribunal.