dissenting.
The legislature passed an act, House Roll 222, chapter 30, Laws 1917, that amended section ,1940, Rev. St. 1913, so that, as amended, the act permitted women to *806vote at the regular state election for officers and upon submitted questions, except .such officers as are “specified and designated in the ■ Constitution,” and except upon questions “the manner of the submission of which is specified and designated in the Constitution of Nebraska.” A referendum petition, numerously, signed, was filed in the office of the secretary of state on July 23, 1917, to refer the suffrage act to the people for their approval or rejection at the regular state election on November 5, 1918. Plaintiffs began this action February 14, 1918, under section 2339, Rev. St. 1913, to enjoin the secretary of state from placing the act on the ballot, for the alleged .reasons appearing in the main opinion. When the case was at issue, a mass .of testimony was taken, and on October 18, 1918, a temporary injunction was issued, and interveners appealed.
Ten days before the election, namely, on October 26, 1918, the case was argued and submitted to.this court for final determination, and on the same day the appeal was dismissed, as stated in the majority opinion, on two grounds, namely, that the constitutional language in question is merely directory, and because the order was not a final order, and hence was not appealable. It is to these propositions alone that this dissent is directed.
The act proposed to be referred is one of undoubted merit and is in harmony with the. progressive spirit of the time. But it need hardly be said that these facts cannot properly enter into this discussion. The only question before us for decision is one of procedure under the terms of the Constitution, and a statute enacted directly in pursuance thereof, and as to whether the language of the organic law under discussion is mandatory or directory merely.
The only importance that now attaches to the present .case is with respect to the construction of. the constitutional provisions and the statute, both in question here. *807The record before us, which does not contain any of the testimony, and on which the ease was submitted, consists solely of the pleadings and the order or decree of the court. The decree does not on its face purport to be a final judgment, and it is shown that the taking of testimony'was not concluded. Under the Constitution and the statute in this class of cases there appears to be no middle ground, but it is the imperative duty of the court to render a final judgment before the election and in apt time to permit an appeal. The party whose laches causes the delay, if any is shown, should be non-suited.
Constitution, art. III, sec. 1B, among other things, provides: “Referendum petitions against measures passed by the legislature shall be filed with the secretary of state * # * and elections thereon shall be had at the first regular state election held not less than thirty days after such filing.”
The court is not the master of the organic law, but is an interpreter of that law. Thou shalt! or thou shalt not! This is the imperative language of the law-giver. The language of the Constitution under consideration is severely plain. There does not seem to be room for interpretation, nor mistake as to meaning. -The mandate of the people is imperative as to the time when the vote shall be had. If the court has power to read into section IB language that will postpone the election beyond the “first regular state election” to the “second regular state election,” then it has power to read ipto the same section language that will postpone the vote to any subsequent election; and if the court has power to substitute the directory or permissive “may” for the imperative “shall” in this section, then does it seem to have come to pass that the voice of the people has been radically changed respecting material matter in the fundamental law, and without, authority, either express or implied.
*808Judge Cooley, who has been long recognized as one of our greatest interpreters of constitutional law, lays down this rule: “But the courts tread upon very dangerous ground when they venture to apply the rules which distinguish directory and mandatory statutes to the provisions of a constitution. * * * If directions are given respecting the times or modes of proceeding in which a power should be exercised, there is at least a strong presumption that the people designed it should be exercised in that time and mode only. * * * There are some cases, however, where the doctrine of directory statutes has been applied to constitutional provisions; but they are so plainly at variance with the weight of authority upon the precise points considered that we feel warranted in saying that the judicial decisions as they now stand do not sanction the application.” Cooley, Constitutional Limitations (7th ed.) p. 114. The learned .author, at p. 119, cites with approval this language from People v. Lawrence, 36 Barb. (N. Y.) 177: “It will be found, upon full consideration, to be difficult to treat any constitutional provision as merely directory and not imperative.”
The initiative and referendum is a comparatively new principle of government in this country, and there are not many adjudicated cases bearing on its application to civic affairs. But there is perhaps not a single case where constitutional language respecting the time and manner of its operation has been held other than mandatory. Following is a brief review of recent authorities that seem to support this view.
In Allen v. State, 14 Ariz. 458, it is said: “All the qualified voters of the state being authorized to participate in the rejection or approval of referred laws, it may be conceded to be essential that they give expression to their wishes at a time fixed by the fundamental law.”
*809In Thompson v. Vaughan, 159. N. W. 65 (192 Mich. 512) it is held: “Every provision of the'constitution as to initiative and referendum is mandatory, and.requires that every safeguard against irregular and fraudulent exercise be carefully maintained:”
State v. Osborne, 14 Ariz. 185, in discussing the time for holding elections, says: “Thát time may be fixed by the people in the sovereign capacity of adopting their constitution; * * * if fixed by the people, the people alone can change it. The legislature cannot do it, and the courts cannot.”
Capito v. Topping, 65 W. Va. 587, 22 L. R. A. n. s. 1089, is a late case from West Virginia that was decided in 1909 and seems to adhere to the rule. It is there said: “We are aware of ho decision authorizing the view that a constitutional clause, dealing with matters so high and vital in character as the executive power of veto, and the making of laws, and having form and terms' so emphatic, is merely directory.”
In 12 C. J. p. 740, sec. 147, as relating to mandatory constitutional provisions, it is said: “As a general rule, all provisions that designate in express terms the time or manner of doing particular acts and that are silent as to performance in any other manner are mandatory and must be followed.”
Section ID, art. Ill of the Constitution, being a part of the initiative and referendum amendment, reads in part: “This amendment shall be self-executing, but legislation may be enacted especially to facilitate its operation.”
Facilitate: “To make easy or less difficult; to free from difficulty or impediment” — is- an accepted definition of a plain word in every day use, with which the legislative branch' of government is apparently more nearly in touch than is the judicial branch. Clearly an act that would impede rather than facilitate the operation of the amendment would be unconstitutional.
*810Legislation, in apparent conformity with the language of the Constitution was enacted in 1913 by the first legislature to convene after the adoption of the amendment. Section 2339, Rev. St. 1913, so far as applicable, follows: “On a showing that any petition filed is not legally sufficient, the court may enjoin the secretary of state and all other officers from certifying or printing on the official ballot for the ensuing election the ballot title and numbers of such measure.” So mindful was the legislature of the duty imposed by the Constitution, especially to facilitate the operation of the amendment and to prevent the law’s intolerable delays, that it is further provided in the same section that suits brought under the act “shall be advanced on the court docket and heard and decided by the court as quickly as possible. Either party may appeal to the supreme court within ten days after a decision is rendered.”
Only mandamus and injunction may be invoked under this statute, and these extraordinary remedies must by the terms of the statute be speedily exercised, so that an aggrieved party may appeal in apt time, and this to the end that the act to be referred may be adopted or rejected at the time named in the Constitution. With respect to an application of this principle of government, neither the Constitution nor the statute contemplates that “the workings of the law shall move with a leaden heel.”
It has been suggested that “the first regular state election” means the first election after a referred petition has been held -válid by a court decree. But that could not have been the legislative intent, or this language would not have been used: “If it shall be decided by the court that such petition is legally sufficient, the secretary of state shall then file it, with a certified copy of the judgment attached thereto, as of the date on which it was originally offered for filing in his office.” Rev. St. 1913, sec. 2339. The legislature did *811not presume to attempt an abrogation of the constitutional mandate requiring the vote to be held at “the first regular state election” after the original filing of the referendum petition.
It is apparent that difficulties will be encountered in establishing finally and conclusively under the Constitution and the statute that any election is meant except that of November 5, 1918. It is said in the majority opinion that, if the constitutional language under com sideration is mandatory, a referred act must be voted on at the first election, or it never can be lawfully voted on. The statute contemplates that the referendum petition shall designate the date of the election at which submission is sought, and it appears that the election of November 5, 1918, was designated in the present case. By the decision of the majority and on the face of the record it is clear that at least two years must elapse before the legislative act in question can be referred to the people for their adoption or rejection. Will it be said that the Constitution contemplates a situation that is so obviously repugnant to its language? When the people have reserved the right to have laws referred and have fixed the time for such reference, can the legislature or the courts lawfully fix any ,other time? To do so seems to be usurpation of power. If a mandatory provision of the Constitution may, for reasons' of expediency be construed to be merely directory, the fundamental law may become meaningless.
It seems that the district court was without jurisdiction to grant a temporary injunction and retain the case for further proceedings after the election in direct violation of the Constitution. It follows that its order was void, and therefore appealable. It is respectfully submitted that the cause should have been remanded, with directions to dissolve the- injunction and dismiss the suit.