State ex rel. Linde v. Hall

Bruce, J.

(concurring). I concur in the opinion of Mr. Justice Goss. It, to my mind, clearly expresses the intention of the people who voted for and adopted the constitutional provision which is before us.

What the people desired was that they might be enabled of their own initiative to propose constitutional amendments and to have them submitted to the electorate. They wished to avoid the necessity of a prior submission to the legislature, but they never intimated or intended that the right should be unlimited. They expressly provided that a petition signed by at least 25 per cent of the voters should be a prerequisite to the right. They never intended or intimated that any kind of a petition should be sufficient, and whether containing the requisite number of names or not, or whether containing forged names or not, and that there could be no redress as against an election which might be ordered under such a petition until after thousands of dollars had been expended in the useless ceremony of voting for that which at no time could become operative as law. The defendants and respondents do not deny that a sufficient petition must be filed before the election can be legally held and the constitutional amendment adopted. They merely contend that such matters cannot now be inquired into, that the discretion of the secretary of state is at present all controlling, and that it is absolutely immaterial what may be the nature of the petitions and whether every name is forged or not. They admit that *56the election, if held, would be a nullity, that is to say if the petitions are in fact insufficient, but they insist upon the right to an election.

One would think, indeed, from this argument that idle voting was the chief industry of the state; that it was our only means of prosperity and of crop production, and that the lead pencil in the election booth was of more importance than crops and homes and schools and state stability and self-respect. Counsel, indeed, seem to appear to believe that we must fritter away our resources like wanton savages; that we must act as children, and for the sake of some alleged theory of popular sovereignty play at holding elections.

The argument of counsel also goes far in the other direction. Its theory, if adopted, would deal a crushing blow to the modern democratic movement which seeks to make the amendment of the Constitution always possible to a majority of the voters and a matter of easy accomplishment. It puts it into the hands of one officer to decide whether that Constitution shall he amended or not.

If, indeed, this court, as counsel contends (that is to say the taxpayers and voters, for the court merely acts for the taxpaj^ers and voters), cannot prevent the secretary of state from ordering an election under bogus and forged petitions; if indeed such taxpayer cannot enjoy thcprivilege of having these petitions scrutinized and examined in the first instance; and if in such matters the secretary of state is supreme, — then he is supreme in all other matters, and in cases where the petitions are unquestionably regular and bona fide. According to the argument, indeed, even in cases where the petitions are regular and bona fide and the people really want an election under them, and are legally entitled to such an election, the secretary of state can refuse to order one merely because he does not personally desire it to be held. If he refuses, according to the logic of counsel, the courts cannot interfere, the taxpayers cannot interfere, and he himself is the autocrat of the Constitution.

The people who adopted the constitutional provision which is before us surely intended no such thing. They were not in the business of “making kings to rule over them.” What they were after was a government by law and not a government by men, much less a government by one man.