concurring:
I concur in the affirmance of the judgment of the trial court, but am unwilling to approve all the language of Chief Justice Gabbert in disposing of the matter.
The controversy involved is between two agencies of the legislative department of the government, in the exercise or attempted exercise of power, and were it not for certain reasons, which I shall presently state, I would be inclined to the view that a proper construction of the initiative and referendum provision of the Constitution did not invest the General Assembly with the power, for the purposes of legislation, to finally determine whether a legislative act was of the character that could not he referred to a vote of the people. On the contraiy, I would, perhaps, hold with the Supreme Court of Washington, — State ex rel. Meath, 84 Wash. 302, 147 Pac. 11, —that the declarations of the general assembly in that regard are subject to review by the courts, and Avhenever a controversy arises between the two branches of the legislative department as to the correctness of declarations of that character the duty devolves upon the courts to determine the question. It is a matter of common knowledge that the initiative and referendum provision of our Constitution was taken from the constitution of the State of Oregon, and had, prior to its adoption here, been construed by the highest court of that state. Kad*22derly v. Portland, 44 Ore. 118, 74 Pac. 710, 75 Pac. 222. It is also apparent that Oregon had taken it from the constitution of South Dakota, where it was adopted in 1898, and had previously been construed in that state. State ex rel. v. Bacon, 14 S. D. 394, 85 N. W. 602. In each state the highest court had held that in the process of legislation it was exclusively within the power of the General Assembly to determine whether a proposed act was necessary for the immediate preservation of the public peace, health or safety; and if it determined that it was, the act was not subject to referendum, and the courts had no power to review the action of the general assembly in the premises. Subsequent to those decisions the initiative and referendum was written into the Constitution of this State. It would, therefore, seem that under the well established rule that when a state adopts the constitutional or legislative provisions of another state, it also adopts the prior construction given to such provisions by the decisions of the courts of the state from which they are taken, we should follow the aforesaid decisions of the courts of Oregon and South Dakota. Bradbury v. Davis, 5 Colo. 265; Stebbins v. Anthony, 5 Colo. 348; In re Shapter’s Estate, 35 Colo. 578, 85 Pac. 688, 6 L. R. A. (N. S.) 517, 117 Am. St. 216; Lace v. People, 43 Colo. 199, 203, 95 Pac. 302; Hallett v. Alexander, 50 Colo. 37, 50, 114 Pac. 490, 34 L. R. A. (N. S.) 3281, Ann. Cas. 3912B, 1277.
It is true the rule is not inflexible — Davis Iron Works Co. v. White, 31 Colo. 82, 71 Pac. 384, — nevertheless, when the adopting state has, as here, through its highest court, placed the same construction upon the provisions that had been given them by the decisions of the court of the state from which they are taken, it would seem, in order to have reasonable stability in the fundamental law and certainty in government, we should accept the matter as finally settled. Such construction was given the consti*23tutional provision in question by this court in In re Senate Resolution, 54 Colo., 262, 130 Pac. 330. It may, perhaps, be true that the questions propounded in that case might have been answered without expressing an opinion upon the referendum clause of the Constitution, and that technically the matter was not involved in the questions propounded. However, in a unanimous decision this court expressly stated that the matter was included in the questions propounded and that it was necessary to determine the same. Clearly, under such circumstances, it is no more than mere assertion to say that the language of this court in determining that question was obiter. Furthermore, it must be presumed that the people of the state in adopting the constitutional provisions were cognizant of the construction the language had already received; and were conversant also with the rule which is applied in considering the constitutional or legislative provisions adopted from another state. So, if the people desired to have the courts determine the question as to whether or not a legislative measure was subject to reference, they could and should have embodied in the constitutional provision the express declaration that the courts should do so. This they did not do, and I am unable to persuade myself that we should disregard well established rules of construction, and our own decision, and ascribe a new meaning to- this constitutional provision. Unless the course 1 have indicated herein is pursued, the judiciary, 1 fear, will soon become an arbitrary, governmental agency, and justice be administered, not according to the law with consistency, equality and justice, but according to the capricious and varying judgment of those who, for the time being, are entrusted with the duty of administrating it.