(concurring). I concur in the opinion prepared *57by Mr. Justice Goss. I would stop here, but for the question of jurisdiction raised by the respondent. This question, however, is of such tremendous importance and the determination thereof so vital that it seems impossible to give too much consideration thereto, and I therefore desire to add certain reasons, other than those advanced by my brother Goss, in support of the conclusions-reached by him.
The questions presented for determination in this case arise under the recent amendment to the state Constitution providing for the proposal of constitutional amendments by a specified number of voters, by petition, i. e., amendment of the Constitution by the method known as the initiative.
Under the Constitution as it existed prior to the adoption of the amendment under consideration, an amendment to the Constitution might be proposed in either house of the legislative assembly; and if the same was agreed to by a majority of the members elected to each of the two houses, the proposed amendment was entered on the journal of the house with the yeas and nays taken thereon, and referred to the legislative assembly chosen at the next general election, and if a majority of all the members elected to each house in the next legislative assembly so chosen agreed to the proposed amendment, it was'then submitted to the people for ratification or rejection. Const. § 202.
The twelfth legislative assembly (1911 session) passed four bills proposing constitutional amendments providing for the proposal of statutes, or constitutional amendments, or both, by initiative petition. Senate bill No. 84, introduced by Senator Plain (Sess. Laws 1911, chap. 86), embraced both constitutional amendments and statutes. This bill expressly provided: “The secretary of state and all other officers shall be guided by the general laws and this act in filing and submitting initiative and referendum petitions until legislation shall be especially enacted therefor. This amendment shall be self-executing, but laws may be enacted for the purpose of facilitating its operation.” House bill No. 237, introduced by Representatives Doyle of Foster county, and Ployhar of Barnes county (Sess. Laws 1911, chap. 94), provided for the proposal of laws, resolutions, and constitutional amendments, and the recall of officers. This bill contained full and explicit provisions for putting the same into action, and contained this proviso: “This amendment shall be self-executing, but legislation may be enacted especially to fa*58cilitate its operation.” Under the provisions of both the Plain bill and the Doyle-Ployer bill, initiative petitions proposing constitutional amendments required the signatures of only 15 per cent of the legal voters in each county of at least one half of the counties of the state.
. Senate bill No. 5 (Sess. Laws 1911, chap. 93), introduced by Senator Bessesen of Wells county, provided for the initiative and referendum of statutes, and had no application to constitutional amendments. This bill contained explicit directions, and provided adequate machinery, for putting' the same into operation; and further, in express terms, provided : “This amendment shall be self-executing, but legislation may be enacted to facilitate its operation.”
The amendment which is involved in this controversy was introduced as Senate bill No. 153 (Sess. Laws 1911, chap. 89), by Senator Gibbens of Towner county. This bill related to initiation of constitutional amendments only, and had no reference to the initiation of statutes. It provided that “any amendment or amendments to this Constitution may also be-proposed by the people by the filing with the secretary of state, at least six months previous to a general election, of an initiative petition containing the signatures of at least 25 per cent of the legal voters in each of not less than one half of the counties of the state. When such petition has been properly filed the proposed amendment or amendments shall he published as the legislature may provide for three months previous to the general election, and shall be placed upon the ballot to be voted upon by the people at the next general election. Should any such amendment or amendments proposed by initiative petition and submitted to the people receive a majority of all the legal votes cast at such general election, such amendment or amendments shall be referred to the next legislative assembly, and should such proposed amendment or amendments be agreed upon by a majority of all the members elected to each house, such amendment or amendments shall become a part of the Constitution of this state. Should any amendment or amendments proposed by initiative petition and receiving a majority of all the votes cast at the general election as herein provided, but failing to receive approval by the following legislative assembly to which it has been referred, such amendment or amendments shall again be submitted to the people at the next general election for their approval or rejection as at the previous general election. Should such amendment or amendments receive a *59majority of all the legal votes cast at such succeeding general election, such amendment or amendments at once become a part of the Constitution of this state. Any amendment or amendments proposed by initiative petition and failing of adoption as herein provided, shall not be again considered until the expiration of six years.”
It will be noted therefore that the twelfth legislative assembly passed, and referred to the thirteenth legislative assembly, three different measures, relating in whole or in part to, and providing for the proposal of, constitutional amendments by initiative petition: The Plain and the Doyle-Ployhar bills in express terms providing that the proposed amendments were to be self-executing, and permitting constitutional amendments to be initiated by petitions signed by 15 per cent of the legal voters of one half of the counties of the state; and the Gibbens bill, which contained no provision, in express terms, declaring the proposed amendment to be self-executing; and which required initiative petitions to be signed by at least 25 per cent of the legal voters in not less than one half of the counties in the state.
These several measures were again introduced in the thirteenth legislative assembly (1913 session). The Plain bill was introduced by Senator Plain pn January 29, 1913, as Senate bill No. 153 (See Senate Journal, p. 210), and when placed on its third reading and final passage on March 3, 1913, was defeated by a vote of 23 ayes to 25 nays, two senators being absent and not voting. Senate Journal, p. 1041.
The Doyle-Ployhar bill was introduced in the house of representatives on January 22, 1913, as house bill No. 133, by Representatives Ployhar of Barnes county and Blakemore of Cass county (Blouse Journal, p. 317), and was passed by the house of representatives, on February 6, 1913 (Blouse Journal, p. 537). It was made a special order in the senate for March 6, 1913, and passed by a vote of 26 ayes to 23 nays, one being absent and not voting. A motion to reconsider the vote, by which the bill was passed, and that the motion to reconsider be laid on the table, resulted in a tie vote, 24 ayes to 24 nays, two being absent and not voting, and the motion was defeated by the vote of Lieutenant Governor Ilraabel, who voted against it. Senate Journal, p. 1347. A motion to reconsider the vote by which the bill was passed was thereupon adopted by a vote of 25 ayes to 24 nays, one being absent and not voting (Senate Journal, p. 1400), and the bill, being placed upon its *60third reading and final passage, as defeated by a vote of 24 affirmative to 25 negative votes, one absent and not voting. Senate Journal, p. 1404.
The Bessesen bill was introduced in the senate on January 14, 1913, as senate bill No. 32, (Sess. Laws 1913, chap. 101), by Senator Overson of Williams county (Senate Journal, p. 51). It was passed by the senate on March 3, 1913 (Senate Journal, p. 1076). On March 7, 1913 (the last day of the legislative session), it, together with the Gibbens bill, was referred to a conference committee, and finally passed by both the house and the senate. Senate Journal, 1070, 1576, 1602, 1619; House Journal, 2005, 2066.
The Gibbens bill was introduced by Senator Gibbens as senate bill No. 73 (Sess. Laws 1911, chap. 98), on January 18, 1913. (Senate Journal, p. 98.) It was received in the house on the same day, and afterwards passed with certain amendments, in which the senate refused to concur. On March 7, 1913 (the last day of the session), as already stated, it, together Avith the Bessesen bill, Avas referred to a conference committee, and finally passed by both the house and the senate. Senate Journal, 1078, 1586, 1596, 1602, 1619; House Journal, 2006, 2064.
Certain petitions have been filed with the secretary of state proposing that § 215 of the Constitution be amended so as to remove the seat of state government from the city of Bismarck to the city of New Bock-ford. The relator, who is a qualified elector and taxpayer of the state of North Dakota, has inAmked the original jurisdiction of this court, and • filed his verified petition asking that a prerogative writ be issued enjoining the secretary of state from submitting the proposed amendment to the voters at the next general election. The relator, among other things, asserts: (1) That the constitutional amendment providing for the proposal of constitutional amendments by initiative petition is not self-executing; that the legislature has provided no machinery for putting the same into action, and that consequently there is no Ieav under which the secretary of state may receive the petitions or submit the proposed constitutional amendment to the voters. (2) That the petitions are insufficient in substance and form; that there is not a sufficient number of names attached to the petitions; that a great number of the alleged names signed thereto are spurious and fictitious, and that a majority of the signatures was obtained by fraud, misrepresentation, and deceit. *61The respondent has filed a motion to dismiss the proceedings, and also a demurrer to the petition, asserting that the court has no jurisdiction over the respondent and no power to interfere with his action with respect to the submission of tbe proposed amendment to tbe voters, for tbe reason that tbe respondent, while performing siich acts, is a part of the legislative department of tbe state of North Dakota.
Logically, tbe first, and by far tbe most important, question to be determined is tbe question of jurisdiction. Tbe answer to this, as well as tbe other questions raised, must be found in our state Constitution, and, if possible, in tbe constitutional provision under consideration. Does this provision manifest an intent on tbe part of its framers, and tbe people who adopted it, to invest tbe secretary of state with power to pass upon and determine all questions (including tbe question of whether tbe provision is in fact self-executing) ? If so, then unquestionably tbe objections to tbe jurisdiction are well taken. That tbe people bad the right to vest such power in tbe secretary of state cannot be questioned (at least not by a proceeding in tbe courts), because our government is constructed on tbe principle that tbe right to institute or alter government and distribute tbe governmental powers in such manner “as to them shall seem most likely to effect their safety and happiness” is a function inherent in tbe great body of tbe people.
In all forms of'peaceful and orderly government there must be rules of conduct, i. e., laws. These rules must be formulated, interpreted, and enforced. Tbe functions of government, therefore, naturally divide themselves into three parts, — tbe making of laws, tbe interpi’etation of laws, and tbe enforcement of laws. In absolute monarchies, these governmental powers were, and are, all combined in, and exercised by, tbe sovereign king. When tbe founders of our government instituted tbe new government and organized its powers, they firmly believed that “there can be no liberty where tbe legislative and executive powers are united in tbe same person or body of magistracy; or if tbe power of judging be not separated from tbe legislative and executive powers.” And in order to safeguard the rights and liberties of the people, they created three separate co-ordinate departments or branches of government: The legislative, tbe executive, and tbe judicial. This distribution of governmental powers, so far as practicable, is tbe fundamental idea in tbe creation of all our Constitutions, both Federal and state. *62This division of governmental power was adopted by the framers of our state Constitution, the legislative power being vested in the legislature, the executive power in the governor, and the judicial power in the courts. Const. §§ 25, 11, 85.
The legislative department has the authority to malre, alter, and repeal, the executive department to administer and enforce, and the judicial department to interpret and apply, laws. It is the duty of the legislature to declare what the law shall be, and the duty of the courts to declare what the law is. The judicial department was created for the purpose of, and vested with the power to, apply and construe the Constitution and laws. It is vested with authority to hear and determine when the rights of persons or property, or the propriety of doing an act, is the subject matter of adjudication, and to adjudicate and determine such rights and controversies by appropriate decrees. See 1 Words & Phrases, p. 3860; 2 Words & Phrases, 2d Series, p. 1266.
The state Constitution guarantees that “all courts shall be open, and every man . . . shall have remedy by due process of law, and right and justice administered without sale, denial or delay.” Const. § 22. It has reserved to the supreme court original jurisdiction to issue remedial writs, and hear and determine controversies involving questions publici juris, and affecting the sovereignty of the state, or its franchises or prerogatives, or the liberties of the people. Const. § 87.
The secretary of state is not a judicial officer or invested with judicial power. State ex rel. Standard Oil Co. v. Blaisdell, 22 N. D. 86, 132 N. W. 769, Ann. Cas. 1913E, 1089. He is an officer of the executive department. And while this office was created by the Constitution as a part of the executive department, the powers and duties thereof were not prescribed by the Constitution, but left for legislative action. Const. § 83. In accordance with the constitutional direction, the legislature prescribed the duties of the secretary of state. Among the duties so prescribed were some relating to elections. The secretary of state was required to receive and file certificates of, and petitions for, nominations for state and district officers, and certify such nominations to the several county auditors of the state. He was also required to perform certain duties with respect to the publication of proposed constitutional amendments. The extent of the power and authority conferred upon the secretary of state with respect to these matters has been frequently *63considered by this court, and was well settled at the time the constitutional amendment under consideration was adopted.
In State ex rel. Wineman v. Dahl, 6 N. D. 81, 34 L.R.A. 97, 68 N. W. 418, this court granted a peremptory writ of mandamus, commanding the secretary of state to certify to the auditors o fthe various counties of the state a joint resolution passed by the legislature providing for the calling of a constitutional convention.
In State ex rel. Plain v. Falley, 8 N. D. 90, 76 N. W. 996, application was made for, and this court issued, a peremptory writ of mandamus commanding the secretary of state to certify the legislative nominees of the “Independent and Democratic Party” to the county auditor of Cavalier county. The relators in that ease claimed that there had been a fusion of the “Independent” and “Democratic” parties, and that they were the nominees of a joint convention of such parties. The secretary of state, by answer, denied such fusion, and asserted that the “Independent and Democratic Party” had no legal existence or standing as a party under the laws of this state. In disposing of these questions this court said: “Delators contend that none of these question are
before us; that the duties of the secretary of state, in certifying nominations to county auditors, are ministerial purely; and that, if the certificates filed with him are fair on their face, he is without authority to look beyond or outside of the certificates. In this we think relators are clearly right, and a few observations touching the statutes and their construction will disclose our reasons for thus holding. We remark, first, that, if the secretary be clothed with judicial functions to pass upon the legality of all nominations the certificates of which are filed with him, his determinations would be final, as certainly no provisions for appeal or review can be found in the statute, and the decisions of a special tribufial charged with the duty of deciding a special matter are always final, unless the right of appeal be expressly given. 2 Enc. PI. & Pr. 22. Further, if the secretary be clothed with judicial functions in this matter, then the political policy of the state may often turn upon his decision. The power is great, and its exercise by an officer universally recognized as political in character ioould be dangerous, however able and however honest the incumbent might be. For these reasons we should expect to find the power, if conferred at all, conferred in no uncertain terms. And yet confessedly there is no express judicial *64authority conferred upon the secretary by the statute. 'At most, it is an implied authority, and, if implied, the means and instrumentalities for its proper exercise are entirely wanting. He can conduct no formal judicial inquiry. He cannot coerce the production of persons or papers. He cannot enforce testimony under the sanction of an oath. His most ■earnest effort would with equal facility elucidate or suppress the truth. To imply authoñty under such conditions, the implication must be practically impossible of evasion. . . .
“We do not agree with counsel for the relators that no power rests •anywhere to prevent the certification to the county auditors of nominations not made in some one of the ways pointed out by statute. If no such power exist, then it was utterly useless to provide in what manner nominations should be made, for, however made, they must be certified •down. . . . The certificates filed with the secretary must be kept open to public inspection. Thei’e is a purpose in that provision. The secretary is a disinterested party. He has no duty to perform touching ¡such nominations, except to certify them to the proper auditor. That duty every citizen is bound to presume he will perform. But, if improper nominations have been filed, any citizen interested may apply to a court of competent jurisdiction, where all the fads can be speedily and certainly investigated, and, if nominations other than as prescribed by statute have been filed with the secretary, that officer may be enjoined from certifying the same to the county auditors. But if no such restraining order be served, it is the duty of the secretary to certify all nominations proper certificates of which have been filed in his office. The law does not allow him to concern himself whether such nominations were or were not properly made, and when he, of his own volition, refuses to 3ertify such nominations, and parties in interest bring proceedings to mforce the performance of such duty, it is no answer “Upon his part to ¡say that facts exist which would have enabled the proper party, at the proper time and in the proper manner, to procure an order restraining rim from certifying such nominations. No such order having been in ■ ’act obtained, the existence of the facts did not release his duty.”
In State ex rel. Cooper v. Blaisdell, 17 N. D. 575, 118 N. W. 225, his court held that “in the performance of his duties as secretary of itate, in certifying the names of candidates for state offices to the differ-mt county auditors for printing upon the ballot to be used at the general *65election, the secretary acts in a ministerial capacity/- and issued a writ of mandamus^ compelling the secretary of state to certify to the several ■county auditors of the state the names of certain persons nominated by petition as candidates of- -the Socialist party.
In State ex rel. McCue v. Blaisdell, 18 N. D. 55, 24 L.R.A.(N.S.) 465, 138 Am. St. Rep. 741, 118 N. W. 141, this court assumed and sustained its original jurisdiction of a proceeding instituted by an elector, who asked for the issuance of a prerogative writ enjoining the secretary of state from certifying the names of certain .persons as candidates for the office of United States Senator.
.In State ex rél. Miller v. Blaisdell, 34 N. D. 321, 159 N. W. 401, this court upon the application of Thomas E. Marshall,, enjoined the secretary of state from certifying the name of Edward Engerud as a candidate for the office of United States Senator, for the reason that the. nominating petition did not specify whether said Engerud was a candidate for the term of office which expired on March .3, 1915, \or for the term which expires on March 3, 1917. . . •
In State ex rel. Dorval v. Hamilton, 20 N. D. 592, 129 N. W. 916, this court held- the provision in the primary election law to- the effect that no nomination shall be made unless the vote cast for- state, district, or county offices, is at least 30 per cent of the total number of yptes.ca^t for secretary of state of each political party at-the last genera;! electÍQn¡, to be unconstitutional and void, and directed the district cpuyt.to ¡issue •a writ of mandamus commanding the county auditor of Cavalier county to place the name of the Democratic nominee for the office .of county -.judge upon the official ballot. .
In State ex rel. Williams v. Meyer, 20 N. D. 628, 127 N. W. 834, thi§ court entertained jurisdiction and issued an original writ of mandamus directing that the name of the relator be printed upon the Bepublican ballot for use at the primary election of 1911, as a candidate for state .senator. The questions presented and determined in that case involved a construction of certain constitutional provisions relative to the length of terms of state senators. The question was raised that under the Constitution the state senate was the judge of the election and qualification of its own members, and that consequently the decision of a.court on this question would be of no force or effect. In disposing of the question, this court said: . “This court does not attempt to say,what mem*66bers shall be seated. It is simply passing upon the question of law presented with a view to determining whether the action of the county auditor is legal in refusing to file relator’s petition and to print his name as a candidate for senator upon the primary election ballot. It is unnecessary for us to consider whether our decision may have any effect upon the action of the senate in the premises should a new senator be elected, and both he and the old senator claim seats in the . . . legislature. The question of the power of the courts to direct the action of the auditor in such cases has been so often passed upon that we deem it unnecessary to discuss it.”
In State ex rel. Watkins v. Norton, 21 N. D. 473, 131 N. W. 257, this court issued a writ of mandamus commanding the secretary of state to publish, as required by law, a certain act passed by the twelfth legislative assembly.
•In State ex rel. Standard Oil Oo. v. Blaisdell, 22 N. D. 86, 132 N. W. -769, Ann. Cas. 1913E, 1089, this court held that the secretary of state was not a judicial officer, under the Constitution, and that judicial power could not be vested in him.
It will be observed that in many of the several decisions above referred to, the court either commanded the secretary of state to submit some proposed question, or the candidacy of some person, to the electorate, or enjoined him from so doing. These several decisions were promulgated prior (many of them long prior) to the adoption of the constitutional amendment under consideration, and they firmly established the principle that the secretary of state was not a judicial, but an administrative, officer; that he was invested with no power to pass upon or determine the merits of any controversy arising under the election laws with respect to the submission of candidacies or propositions to the electorate; but that his duties relating thereto Avere purely ministerial. If he failed to perform a duty imposed by the statute, mandamus would issue to compel action; if he sought to act when, or in a manner, not authorized, injunction would issue to restrain him from acting. The policy of the state as declared in the Constitution and statutes, as well as by the decisions of this court, had been consistently adhered to for a quarter of a century before the adoption of the constitutional amendment under consideration. It is now asserted by respondent that this governmental policy has been abandoned; that the constitutional provision under con*67.sideration manifests an intent to transform the secrtary of state from a ministerial into a legislative officer, and to invest him, in that capacity, with power to pass upon and determine the different questions which may arise with respect to the proposal and submission of constitutional amendments by initiative petition. If the constitutional provision manifests such intent, it is our duty to so declare, and our labors and our duty ends there; but if no such intent is manifested then it is equally our sworn duty to so declare and proceed to a determination of the other questions presented.
Our Constitution provides its own rule of construction. It says: "The provisions of this Constitution are mandatory and prohibitory urn-less, by express words, they are declared to be otherwise.”
Let us examine the constitutional provision under consideration and see what, if anything, it said therein to indicate any intent to depart from the former governmental policy or to confer the asserted power upon the secretary of state. The only reference made to the secretary of state in the provision is in the first sentence, which provides that initiative petitions shall be filed with him. Is this indicative of any intent to depart from the former policy or invest him with the powers contended for? Clearly not. He is the logical custodian of such petitions, and has been recognized as such throughout the entire history of the state. He is, and has been, the officer with whom nominating petitions for state officers, under the primary and general election laws, must be filed. There is no requirement that the other duties incident to the operation of this amendment, such as the publication of the proposed amendments, shall be performed by the secretary of state. These matters are left for legislative action, and may doubtless be imposed by the legislature upon such administrative officer or officers as their judgment may approve. The constitutional provision provides in no uncertain terms:
(1) That initiative petitions proposing constitutional amendments must be filed at least six months previous to a general election, and that such petitions must contain the signatures of at least 25 per cent of the legal voters in each of not less than one half of the counties of the state.
(2) That "when such petition has been properly filed, the proposed amendment or amendments shall be published as the legislature may provide for three months previous to the general election.”
*68(3) That an amendment or amendments proposed by initiative petition and failing of adoption shall not be again considered until the expiration of six years. One thing is self-evident, either the secretary of state has authority to determine the sufficiency of initiative petitions or he has not. If the secretary is invested with the power asserted and the courts shorn of power to interfere, then the secretary of state may, if he desires, submit proposed constitutional amendments regardless of the sufficiency of the petition or the number or qualifications of the petitioners, or he may refuse to submit such question, even though the petition is clearly sufficient. The courts either have power to interfere or they have not. From this there is no escape. Is there anything said which indicates an intent to invest the secretary of state with any dis'cretion, or confer upon him any greater or different powers with respect to initiative petitions, than those possessed and exercised by him with respect to nominating petitions filed with him under the election laws % I think not. It seems to me that the language contained in the constitutional .provision negatives, rather than implies, any intent to confer discretionary or determinative powers upon the secretary of state. The directions and conditions prescribed are given in positive terms. The plain- and unmistakable intent manifested by the language of the provision is that a constitutional amendment cannot be proposed by initiative petition unless such petition is signed by the prescribed number of legal voters. ■ .But “when such petition has been properly filed, the proposed amendment shall he published ” and “shall he placed upon the .ballot.” And if an amendment proposed is rejected at the polls it cannot. again be submitted until,the expiration of six years. In my opinion the intent, manifested by this provision is clearly to confer upon the secretary of state only the same powers which he possessed with respect to.nominating petitions filed under the election laws, and his duties are ministerial only; and he can be compelled to act when it is his duty to do so or restrained from acting when he seeks to act at a time or in a manner not authorized.
The people in their Constitution have said that the judicial power in this state, i. e., the power to interpret and apply laws, shall be vested in the courts. And in their Constitution they have created and designated the courts authorized to perform these functions. Yet if respondent is correct in his contention, the power to interpret and apply the *69constitutional provision under consideration and determine all questions arising thereunder, including the legal sufficiency of initiative petitions and the qualifications of the signers thereto, is vested, not-.in the courts, but in the secretary of state, who is not a judicial, but a political, officer. Obviously the interpretation and application of this constitutional provision, and the determination of the various questions likely to arise thereunder, would require exercise of the very highest degree of judicial skill and judgment. It is difficult to conceive of any legal questions of more profound importance to the people of the state. And if it was .intended to confer such power upon the secretary of state, we should expect to find the power conferred in positive and unequivocal terms. Yet it is conceded that such power, if conferred at all, is conferred by implication only. Certain language used by this court in State ex rel. Plain v. Falley, 8 N. D. 90, 76 N. W. 996, seems directly applicable: “If the secretary be clothed with judicial functions in this matter, then the political policy of the state may often turn upon his decision. The power is great, and its exercise by an officer universally recognized as political in character would be dangerous, however able and however honest the incumbent might be. Por these reasons we should expect to find the power, if conferred at all, conferred in no uncertain terms. And yet confessedly there is no express judicial authority conferred upon the secretary” by the constitutional amendment. And if the power be deemed implied, “the means and instrumentalities for its proper exercise are entirely xvaniing. He can conduct no formal judicial inquiry. He cannot coerce the production of persons or papers. He cannot enforce testimony under the sanction of an oath. His most earnest effort would "with eqiial facility elucidate or suppress the truth. To imply authority under such conditions, the implication must be practically impossible of evasion. But so far is [the constitutional provision] our statute from giving such implied authority that, in our view, it expressly withholds such authority.”
Respondent suggests, however, that the various questions now presented might eventually be determined by the courts, but that the people should first have an opportunity to reject the proposition, and if they reject it then no question would remain for determination. Again the language and reasoning of Chief Justice Bartholomew in State ex rel. Plain v. Falley, supra, is applicable. If the secretary be clothed with *70authority to pass upon questions arising under said constitutional provision, “his determination would be final, as certainly no provisions for appeal or review can be found” therein.
It seems to me that respondent’s contention is unsound for another reason. Respondent asserts his right to act under a certain constitutional amendment. If this constitutional amendment (as relator asserts) is not self-executing, then obviously there is no provision of law under which the petitioners could propose, or the respondent submit, constitutional amendments. They would stand precisely in the same position as though this constitutional provision did not exist, because a constitutional provision which is not self-executing is merely addressed to the legislature granting to or imposing upon it, constitutional authority to enact suitable legislation to carry it into effect. State ex rel. Ohlquist v. Swan, 1 N. D. 5, 44 N. W. 492; Doherty v. Ransom County, 5 N. D. 1, 63 N. W. 148; Engstad v. Grand Forks County, 10 N. D. 54, 84 N. W. 577.
As I have already stated, the sovereignty of the people, and their right to alter or reform the existing government, lie at the very foundation of our governmental existence. In fact this right is expressly reserved in our state Constitution. Const. § 2. It has been said that a self-evident corrollary to the right so reserved is “that an existing lawful government of the people cannot be altered or abolished unless by the consent of the same people, and this consent must be legally gathered or obtained.” Eor, “by the Constitution which they [the people] establish, they not only tie up the hands of their official agencies, but their own hands as well; and neither the officers of the state, nor the whole people as an aggregate body, are at liberty to take action in opposition to this fundamental law.” Cooley, Const. Lim. 7th ed. p. 56.
• And “an attempt by the majority to change the fundamental law in violation of the self-imposed restrictions is unconstitutional and revolutionary. Although the vote of the people may be overwhelming in adopting a Constitution formulated by a convention not legally called, it would be the duty of the executive and judiciary and all officers sworn to support the old Constitution to resist to the utmost the installation of government under the new revolutionary Constitution. If overpowered,. the new government would be established, not by peaceful means, but by actual revolution. The unauthorized action of a con*71vention cannot be ratified by the electorate, since those voting at an unauthorized election have no power to represent or to bind those who do not choose to vote.” ' 6 R. C. L. p. 26.
In this state the people have agreed that constitutional amendments may be proposed by initiative petition signed by at least 26 per cent of not less than one half of the counties of the state. Obviously an attempt to submit a proposition upon petitions signed by a lessor number would not be a compliance with the constitutional provision. It is only by means of a petition signed by the number of signers prescribed by this provision that “an authorized consent of the whole people, the entire state, can be lawfully obtained in a state of peace. Irregular action, whereby a certain number of the people assume to act for the whole, is evidently revolutionary. The people, that entire body called the state, can be bound as a whole only by an act of authority proceeding from themselves. In a state of peaceful government they have conferred this authority upon a part to speak for the whole only at an election authorized by law. It is only when an election is authorized by law, the-electors, who represent the state or whole people, are bound to attend, and if ’they do not, can be bound by the expression of the will of those who do attend. The electors who can pronounce the voice of the people are those alone who possess the qualifications sanctioned by the people in order to represent them, otherwise they speak for themselves only, and do not represent the people.” Wells v. Bain, 75 Pa. 39, 15 Am. Rep. 571.
And “it is the duty of the courts to enforce the provisions of an existing Constitution in reference to matters connected with proposed changes-in the Constitution as in other cases, and therefore they may be called on to compel the proper state officials to accept petitions filed under the initiative and referendum law for the purpose of proposing amendments, or to publish a proposed constitutional amendment as required by the Constitution, or to compel the making of a proclamation that a certain amendment has been adopted, or to compel the submission of duly proposed amendments, or to restrain the improper submission of amendments.” 6 R. C. L. 32.
The second question presented is whether the constitutional provision is self-executing. Again we are required to ascertain the intent of the framers and of the people who adopted it. For “the question in such *72cases is always one of intention, and to determine the intent, the general rule is that courts will consider the language used, the objects to be .accomplished by the provision, and the surrounding circumstances, and to determine these questions from which the intention is to be gathered, the court will resort to intrinsic matters when this is necessary.” 8 Cyc. 754. And, “it is settled by very high authority that in placing a construction on a Constitution, or any clause or part thereof, a court should look to the history of the times, and examine the state of things existing when the Constitution for the provision] was framed and adopted.” 6 R. C. L. 51.
It is not the function of a Constitution to serve as a Code. “Its purpose is to prescribe the permanent frame work of the system of government and assign to the different departments their respective powers and duties, and to establish certain fixed principles on which government is - founded.”
A self-executing constitutional provision is said to be “one which supplies the rule or means by which the right given may be enforced or protected or by which a duty may be performed.” 8 Cyc. 753. It is a provision which is complete in itself and needs no further legislation to put it into force. Davis v. Burke, 179 U. S. 399, 45 L. ed. 249, 21 Sup. Ct. Rep. 210. But a constitutional provision which merely indicates' “a line of policy or principles, without supplying the means by which such policy or principles are to be carried into effect,” is not self-executing “and will remain inoperative until rendered effective by supplemental legislation.” 8 Cyc. 759.
• Some of the provisions of our state Constitution are self-executing, others are not. Thus our state Constitution contains the following provision: “No person, association or corporation shall within this state,manufacture for sale or gift, any intoxicating liquors, and no person, association or corporation shall import any of the same for sale or gift, or keep or sell or offer the same for sale, or gift, barter or trade as a beverage. The legislative assembly shall by law prescribe regulations for the enforcement of the provisions of this article and shall thereby provide suitable penalties for the violation thereof.” Const. § 217.
In the early case of State ex rel. Ohlquist v. Swan, 1 N. D. 5, 44 N. W. 492, it was asserted that this provision was a self-executing enactment, and as such repealed the prior license law.- This court, however, *73held that it was not self-executing, and that, until supplemental legislation was enacted to carry the same into effect, it was only a declaration of principles and without force to repeal the prior license law.
In Engstad v. Grand Forks County, 10 N. D. 54, 84 N. W. 577, this court considered that part of § 176 of the Constitution reading as follows : “and the legislative assembly shall by a general law exempt from taxation property used exclusively for school, religious, cemetery or charitable purposes.” This provision was held to be not self-executing. The court said: “The Constitution does not, in the clause we have quoted, purport to exempt any property from taxation. On the contrary, the clause under consideration lays a command upon the legislative assembly, and requires that body, by general law, to exempt certain property from taxation, among which is property used exclusively for charitable purposes. This clause, therefore, is clearly not self-executing. Its very terms look forward to and require ulterior action upon the part of the lawmaking branch of the government.”
The constitutional provision under consideration in the case at bar provides that: “the proposed amendment shall be published as the legislature may provide for three months previous to the general election.” This language is prospective. “And constitutional provisions, like statutes, always operate prospectively, and not retrospectively, unless the words used or the objects to be accomplished clearly indicate that a retrospective operation is intended.” 8 Cyc. 745. See also 6 R. C. L. 33; Shreveport v. Cole, 129 U. S. 36, 32 L. ed. 589, 9 Sup. Ct. Rep. 210.
The legislature has enacted no legislation providing for such publication. But the respondent contends that the laws in existence at the time the amendment was adopted should be applied, and that when this is done, legislative direction as to the publication of constitutional amendments proposed by initiative petitions has been given.
The laws upon which the respondent relies are §§ 3188 and 979, Compiled Law's 1913. These sections were originally enacted by the legislature in 1891. Section 3188 merely provides the manner of publication of a constitutional amendment after its adoption by the first legislature and before the selection of the members of the next legislature. Section 979, Comp. Laws 1913, reads: “Whenever a proposed constitutional amendment or other question is to be submitted to the people of *74the state for popular vote the secretary of state shall, not less than thirty days before election, certify the same to the auditor of each county in the state and the auditor of each county shall include the same in the publication provided for in § 975. Questions to be submitted to the people of the county shall be advertised as provided for nominees for office in such section.”
Section 975, referred to in § 979, requires that ten days before an election, notice thereof shall be given by the county auditor by publication in one or more newspapers within the county, or if there is no newspaper published, then by posting notices thereof at three public places in each precinct.
The laws to which respondent refers were passed with respect to the proposal of constitutional amendments by the legislature. The constitutional provision to which they relate reads: “Any amendment or amendments to this Constitution may be proposed in either house of the legislative assembly; and if the same shall be agreed to by a majority of the members elected to each of the two houses, such proposed amendment shall be entered on the jorrrnal of the house with the yeas and nays taken thereon, and referred to the legislative assembly to be chosen at the next general election, and shall be published, as provided by law, for three months previous to the time of making such choice, and if in the legislative assembly so next chosen as aforesaid such proposed amendment or amendments shall be agreed to by a majority of all the members elected to each house, then it shall be the duty of the legislative assembly to submit such proposed amendment or amendments to the people in such manner and at such time as the legislative assembly shall provide. . . .” Const. § 202. It will be noted that while this constitutional provision directs that a proposed constitutional amendment “shall be published, as provided by law, for three months previous” to the election at which the members of the legislative assembly to whom the proposed amendment has been referred are chosen it prescribes no .length of time for the publication thereof prior to the time of its submission to the people for approval, but this is left solely for legislative determination. The legislature directed that such notice be published at least ten days previous to the election. On the other hand, the' constitutional provision relating to publication of constitutional amendments proposed by initiative peíiíiío states in positive terms that such amendment *75"shall be published as the legislature may provide for three months previous to the general election." The only authority given to the legislature (and it is given to the legislature, and not to the secretary of state) is to provide the manner of publication. The necessity of publication, as well as the minimum length of time during which publication must be made, is determined by the constitutional provision. The. legislature is given no right, either to dispense with publication or permit publication for a lesser time than that prescribed, but such amendment must be published for a period of at least three months previous to the election. The requirement that a proposed amendment “shall be published as the legislature may provide for three months previous to the general election” is a command addressed to the legislature, and a limitation upon its authority with respect to such publication; i. e., the framers of the constitutional provision and the people who adopted it said to the lawmaking body: “We authorize you to prescribe the mode and manner in which proposed amendments shall be published, and to designate a proper administrative officer, or officers, to cause such publication to be made, but you must in all events cause the same to be published for at least three months previous to the election.”
There is a radical difference between the two methods of amending the Constitution. Where a constitutional amendment is proposed by the legislature, it is proposed by representatives of the people and is printed in the proceedings of the legislative assembly, as well as among the legislative acts of that body. This takes place over a year and a half before the next legislative assembly is chosen. The proposed constitutional amendment is then published as required by law for three months previous to the election at which the members of the next legislative assembly are chosen, in order that the people may have further notice before choosing the members of such assembly that the proposed amendment has been referred do and will, or may, be voted upon by the legislators so chosen. The proceedings with reference to the amendment will appear in the house and senate journal. And, if passed, the amendment is again printed in full among the acts of the legislative assembly. And the legislature has further provided that notice of its submission must be given by publication in each county in the state for at least ten days previous to the election'at which it is submitted to the electors for adoption. An amendment proposed under this method remains pending *76for a considerable length of time, and necessarily is afforded a great’ deal of publicity. But when an amendment is proposed by initiative petition, it emanates not from any chosen representatives of the people, but from those who prepare, circulate, or sign such petitions. Such amendment is not only submitted to the people at the following general election, but if adopted ipso facto, is referred to the legislative assembly chosen at that same election. In order that intelligent action may be taken by the voters, they must be informed in regard to the proposed amendment, and so it is provided that an amendment proposed by initiative petition “shall be published for three months previous to the general election.”' Under-these circumstances, can it be said that the laws adopted by the legislature in 1891 providing for publication of constitutional amendments proposed by the legislature constitute an expression of the legislative intent as to the method and manner in which constitutional amendments proposed by initiative petition under a constitutional provision proposed in 1911, and adopted by the people in 1914, ought to be published? The answer seems obvious.
There are many things, not only in the language of the constitutional provision under consideration, but in the history of its enactment, which negative an intent to propose a self-executing provision. Many of these have been discussed by Mr. Justice Goss, and I shall not attempt to elaborate upon what he has said. It should be remembered, however, that it was the only act relative to the initiative and referendum considered by the twelfth and thirteenth legislative assemblies, which did not purport to be self-executing; that the act relating to the initiative and referendum of statutes provided the necessary machinery for its operation, and contained an express declaration to the effect that it was self-executing; that these two measures were not only passed by the same legislatures, but were referred to, considered and recommended for passage by, the same conference committee of the thirteenth legislative assembly. It is difficult to believe that the members of such conference committee and the members of the thirteenth legislative assembly deemed the proposal of statutes to be of more importance than the proposal of constitutional provisions. The language of the provision under consideration, as well as the history of its enactment, however, leads to the irresistible conclusion that its framers and the people who adopted it *77intended that the right conferred should be exercised under such reasonable rules and regulations as the lawmaking body should prescribe.
The right of a small number of electors to propose new legislation or the referendum or repeal of laws enacted by the legislature is in itself a great power, and in order to prevent an abuse thereof, such as the presentation of fictitious or fraudulent petitions, certain safeguards are frequently, .and generally, prescribed.. Thus, in our sister state, South Dakóta, petitioners (proposing initiative or referendum of statutes) are required to add to their signatures their places of residence, their occupation and post-office addresses, and it is made a crime punishable by a maximum penalty of imprisonment for five years in the state’s penitentiary for any person to sign any name other than his own to such petition, or for a person not a qualified elector of the state to sign the same. .. The petitions are also required to be accompanied by the oath of every person who circulates the same, or secures signatures thereto. See Political Code, Comp. Laws 1913, pp. 8-10. While the initiation, suspension, or repeal of laws is a matter of great importance, the proposal of new, or change of existing, constitutional provisions, is of even greater importance. It involves an exercise of the highest functions of' sovereignty! If the provision is not self-executing, it constitutes a declaration of principles or policy and authorized the enactment of laws to carry such principles or policy into effect. If the provision is self-executing, it not only declares a policy, but also puts the same into effect as a rule of conduct. In either case it may affect directly the life, liberty, and happiness of every inhabitant of the state.
The members of this court have given to this matter .their most anxious thoughts and labor, and have arrived at the best conclusions honest convictions can reach. The intent of the framers and the people who adopted the. constitutional provision seems too plain to admit of doubt. This being so, our duty, however unpleasant and embarrassing it may be, is equally plain. We must declare the fundamental law to be what it is. To do otherwise would be a breach of the duties we have sworn to discharge, and a violation of the Constitution we have sworn to support. . ‘ .