(dissenting). Under the Constitution of this state as originally adopted 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, such 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 of the next legislative assem*510bly agreed to the proposed amendment it was then submitted to the people for ratification or rejection. And if it was approved and ratified by a majority of the electors voting thereon it became a part of the Constitution. N. D. Const. § 202. This was the only method provided. And, of course, no one will deny that the method so provided in the Constitution was exclusive. The question presented in this case is whether another method has in fact been provided and put into operation, i. e. a method whereby an amendment to the Constitution may also be proposed by initiative petition.
The relator contends that the latter method is not available:
(1) Because the amendment to the Constitution, which provided such method, was not adopted in the manner prescribed by the Constitution, and, hence, is not in fact a part of the Constitution; and,
(2) Because such amendment, if legally adopted, is not self-executing; and that the amendment has never become operative for the reason that no legislation has been enacted to put it into effect.
The precise question raised by the second contention was presented to and decided by this court in State ex rel. Linde v. Hall, 35 N. D. 34, 159 N. W. 281. The decision in that case was unanimous. It was promulgated after the most careful deliberation. No case decided since I became a member of this court has received more careful consideration. The then members of the court approached the questions presented with a deep sense of the grave responsibility, as well as the solemn duty, resting upon them. My own feelings were reflected in the following statement in the opinion which I filed in the case: “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.” 35 N. D. 77. The judgment of the court as pronounced in that case was not an expression of the personal will of the then judges, but the deliberate declaration by this court of the will of the *511law. The duty imposed upon and performed by the members of this court in State ex rel. Linde v. Hall was not a pleasant one, and if they had been free to give effect to their own wills, there would have been no hesitancy on their part in reaching the same ultimate conclusions reached by the majority members in the instant case. The conclusions in State ex rel. Linde v. Hall were reached with reluctance, but no member of the court had any question as to their correctness. Now that decision is reversed by a majority of the court, three to two, and this reversal has been produced by no change in the opinion of those who concurred in that decision. On the contrary the two members of this court who participated in that decision are firmly convinced that that decision is right, and that the conclusion reached by the present majority is erroneous.
The majority members refuse to apply the doctrine stare decisis, and attention is called to the decision of the supreme court of Wisconsin in Pratt v. Brown, 3 Wis. 603, and the decisions of the United States Supreme Court in the Legal Tender Cases, 12 Wall. 457, 20 L. ed. 287, to justify the position taken. The decision of the Wisconsin court involved the constitutionality of a statute. The situation involved in the Wisconsin case could not be remedied except by an amendment of the Constitution. It did not present a situation like the the case at bar, where the whole trouble could be taken care of by legislative enactment. In fact the Wisconsin court expressly pointed out that the questions involved affected • “not merely the routine of practice, nor rights determined by the lapse of time, or palpable legislative enactment." And the court stated that for these reasons, “we do not feel at liberty as we would wish, to throw ourselves back upon that decision, and thus evade further responsibility.” 3 Wis. 609.
The reasons advanced by the Wisconsin court speak for themselves. This was not, however, the last expression of the Wisconsin court upon the subject. In the subsequent case of Fisher v. Horicon Iron & Mfg. Co. 10 Wis. 351, the court expressly repudiated the ruling in Pratt v. Brown, on the ground that that case “did not call for-an adjudication” upon the question, and hence “none was had.” After making such statement, the court said: “We are free to confess that if the question as to the constitutionality of the mill-dam law were now for the first *512time presented to this court, and we were not embarrassed by former adjudications upon it, we should doubtless come to a different conclusion upon the question, from that arrived at by the majority of the court in Newcomb v. Smith.” In adhering to the rule stare decisis, the court said: “We are now asked to depart from that decision. Ought we to do it ? I think not. It is the duty of this branch of the government to pass finally upon the construction of a law . . . and the convmunity has a right to expect, with confidence, we will adhere to decisions made after full argument and upon due consideration. The members of the court may change totally every six years, and if each change in the organization produces a change m the decisions, and a different construction of laws, under which important rights and interests have become vested, it is easy to see that the consequences will be most pernicious. For these and other reasons which might be given, we decline to reconsider the constitutionality of the mill-dam law.”
The action of the United States Supreme Court in the Legal Tender Cases, is one which furnishes little or no support for the action of the majority members in the case at bar. The decision in the first Legal Tender Case held the so-called Legal Tender Act to be unconstitutional, not for any technical defect, but on the ground that it was beyond congressional power to enact such legislation. There was no chance to obviate the result of that decision by congressional action, and surely no one would ever assert that the court would have reversed the former decision if the effect thereof could have been obviated by an act of Congress. The first decision was by a divided court. There were in fact ■only four members of the court who concurred in the decision in its entirety. The fifth member (Judge Grier) stated “his judgment to be that the legal tender clause, properly construed, has no application to debts contracted prior to its enactment; but that upon the construction given to the act by the other judges he concurred in the opinion that the clause, so far as it makes United States notes a legal tender for such •debts, is not warranted by the Constitution.” Hepburn v. Griswold, 8 Wall. 628, 19 L. ed. 527. Judge Grier afterwards resigned, and was not a member of the court at the time the decision was read and filed. So when the decision was in fact promulgated, there were only four of the then members who concurred in it, and three who dissented, *513and there were two vacancies in the court. Not only was that the situation, but the constitutionality of the Legal Tender Act was, or at least became, a political question. Chief Justice Chase who had written the first opinion was an avowed candidate for the office of President. Charges and counter-charges were madeK The dissenting justices, and subsequent appointees, issued a statement with regard to the matter. Joseph P. Bradley, Miscellaneous Writings, p. 73. The Chief Justice indirectly charged that the court had been packed in order to obtain a reversal of the first decision. Schuckers, chap. 18. While the consensus of opinion is that the charge was wholly unfounded, it goes without saying that the actions of the Supreme Court of the United States and its members in connection with' the Legal Tender Oases were not such as to increase public respect for that great tribunal. I am indeed sorry that it should ever have become necessary for the supreme court of North Dakota to cite the action of the Federal Supreme Court in the Legal Tender Oases in justification of one of its acts. But, at that, the facts in the Legal Tender Case distinguish them from the instant case. In those cases the first decision was by a divided court. Strictly speaking, the decision when promulgated did not have the support, or represent the opinion, of a constitutional quorum of the court. The decision in State ex rel. Linde v. Hall was by a unanimous court. The sole effect of the decision was to require legislative action. So far as I can ascertain the reversal in this case is unprecedented in judicial history. I have searched the books in vain for another instance where a court has overruled a former decision upon the question whether a constitutional provision was, or was not, self-executing.
Not only is the doctrine stare decisis generally recognized by the courts of this country, but it is recognized by the laws of this state. The Constitution requires this court to prepare and file its decisions. Const. § 101. The legislature has provided for the publication and distribution of such decisions, and, has ’ also, expressly declared that they shall be deemed an expression of the sovereign will, i. e. the law of the state. Comp. Laws 1913, § 4328. A distinguished legal writer (Fearne, Contingent Bemainders) in pointing out the worng which must result to society from a shifting judicial interpretation, says: *514“If results and maxims of law were to ebb and flow with the taste of the judge, or to assume that shape which in his fancy best becomes the times; if the decisions of one case were not to be ruled by, or depend at all upon further determinations in other cases of like nature, I should be glad to know what person would venture to purchase an estate without first having the judgment of a court of justice respecting the identical title which he means to purchase? No reliance could be had upon precedents; former resolutions upon titles of the same kind could afford him no assurance at all. Nay, even a decision of a court of justice upon the very identical title might be again drawn into dispute; the taste and fashion of the times, might be improved, and on that ground a future judge might hold himself at liberty (if not consider it his duty) to pay as little regard to the maxims and decisions of his predecessor as that predecessor did to the maxims and decisions of those who went before him.”
In discussing the same subject the present Chief Justice of the United States Supreme Court, said: “The conservation and orderly development of our institutions rests on our acceptance of the results of the past, and their use as lights to guide our steps in the future. Teach the lesson that settled principles may be overthrown at any time, and confusion and turmoil must ultimately result. In the discharge of its function of interpreting the Constitution, this court exercises an august power. It sits removed from the contentions of political parties and the animosities of factions. It seems to me that the accomplishment of its lofty mission can only be secured by the stability of its teachings and the sanctity which surrounds them. If the permanency of its conclusions is to depend upon the personal opinions of those who, from time to time, may make up its membership, it will inevitably become a theater of political strife, and its action will be without coherence or consistency. . . . The wisdom of our forefathers in adopting a written Constitution has often been impeached upon the theory that the interpretation of a written instrument did not afford as complete protection to liberty as would be enjoyed under a Constitution made up of the traditions of a free people. Writing, it has been said, does not insure greater stability than tradition does, while it destroys flexibility. The answer has always been that by the fore*515sight of the fathers the construction of our written Constitution was ultimately confided to this body, which, from the nature of its judicial structure, could always be relied upon to act with perfect freedom from the influence of faction and to preserve the benefits of consistent interpretation. The fundamental conception of a judicial body is that of one hedged about by precedents which are binding on the court without regard to the personality of its members. Break down this belief in judicial continuity, and let it be felt that on great constitutional questions this court is to depart from, the settled conclusions of its predecessors, and to determine them all according to the mere opinion of those who temporarily fill its bench, and our Constitution will, in my judgment, be bereft of value and become a most dangerous instrument to the rights and liberties of the people.”
It is probably true, as stated by one of the majority members, that the decision in State ex rel. Linde v. Hall, cannot be said to have established any rule of property. But there are rights more valuable than rights of property. In fact property rights are themselves bottomed upon constitutional provisions. The decision in State ex rel. Linde v. Hall, was filed in September, 1916. The legislative assembly convened the following January. The members of that assembly were familiar with the decision, and recognized its effect. Three different bills were introduced in the house and two in the senate, relating to the procedure in proposing constitutional Amendments by initiative petition, and the publication of such proposed amendments. See House Journal, pp. 640, 642, and Senate Journal, p. 228. There was no difference of opinion among the lawmakers as to the necessity of such legislation, — some of the measures even carried emergency provisions, — but the difference of opinion arose over the provisions of the proposed laws, i.e., as to the form of the procedure to be adopted. The senate majority adopted certain amendments tending to provide a stricter procedure than that proposed in the various bills as introduced (See Senate Journal 541, 613), and this was the rock upon which the proposed legislation stranded. The legislation failed simply because the legislators were unable to agree upon the terms of the proposed law. Not only was the matter considered by the legislative assembly at its regular session convened in January, 1917, but the *516legislature was convened in special session in January, 1918, for the purpose of considering measures requiring immediate consideration. Among the measures proposed and enacted were some intended to protect the rights of citizens engaged in military service. No one can reasonably doubt that the legislators at this time were of the opinion that no amendment to the Constitution could be proposed by initiative petition until the legislature had enacted suitable legislation to put this method into operation. There are in all more than 25,000 citizens of this state engaged in military service. The overwhelming majority of these men will be denied any opportunity to vote upon the proposed changes in the fundamental law. It goes without saying that the proposed changes in .the • Constitution are of far greater importance than the choice of public officers. And inasmuch as petitions for proposed constitutional amendments must be filed at least six months prior to the general election, provision could readily have been made whereby North Dakota electors engaged in military service would have been given an opportunity to vote upon such amendments. In fact it would be a lasting reproach to the legislative assembly to assume that its membei’s supposed that fundamental changes such as those now proposed might be made in the Constitution, and yet failed to make adequate provision whereby these men would be given an opportunity to cast their votes upon the propositions. And yet that is the situation here today. There is no adequate provision in our laws whereby any considerable portion of the men engaged in military service will have any opportunity whatever to express their choice as to whether any of the proposed constitutional amendments involved in this litigation shall be adopted or rejected. The men who are offering their lives to make possible the establishment and maintenance of government of the people, by the people, and for the people throughout the civilized world have been and are being denied the right to express their choice upon the proposed changes in the fundamental law of the state.
It is interesting to note that while the majority members reject a unanimous decision of this court, they invoke the doctrine of legislative construction in support of their determination of the first question raised by the .relator. The legislative practice relied upon was .by no means uniform.. Eor the first eight years after the adoption of *517the Constitution, the practice was to enter all proposed constitutional amendments in full upon the journal of the house in which the amendment originated. Even as late as 1913 this practice was followed in some instances. See House Journal, 1913, p. 929. Are the fluctuating practices of the legislature of greater force and value.as a precedent than a determination by the highest court-in the state? An examination of Oakland Paving Co. v. Tompkins, 72 Cal. 5, 1 Am. St. Rep. 17, 12 Pac. 801 (cited by the majority members) will also disclose that in that case the supreme court of California invoked the doctrine stare decisis in support of its decision.
I have no intention, however, of resting this dissent solely upon the doctrine stare decisis. Eor while I am of the opinion that the decision in State ex rel. Linde v. Hall, should be deemed decisive of this case, I am even more strongly of the opinion that the conclusion reached by the majority in this case is erroneous, even though it be considered as an original proposition.
There had been considerable discussion of the initiative and referendum in this state for some years prior to the adoption of the constitutional amendments relating thereto. There were many divergent views upon the "subject. Some were opp'osed to the initiative and referendum as a whole. Others favored it as to- statutes, but opposed it as to constitutional amendments. Chief among the latter were those who feared that the initiative might be utilized by those opposed to prohibition to secure a resubmission of the prohibition provision in the state Constitution. And it is a well-known fact that certain temperance organizations in the state actively opposed the initiative as applied to constitutional amendments for this reason. This seems to have been the history of similar measures in other prohibition states. See The Initiative, Referendum, and Recall, American Academy of Political and Social Science, p. 165.
In view of the- different opinions with respect to the matter, it is not strange that the legislature in 1911 passed four different concurrent resolutions proposing constitutional amendments relating to the proposal of statutes, or constitutional amendments, or both, by initiative petition. The different amendments proposed themselves *518indicate the widely divergent views of the different framers upon tne subject.
' Senate Bill No. 84, introduced by Senator Plain (Sess. Laws 1911, chap. 88), 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 Poster 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 facilitate its operation.” Under tfie provisions of both the Plain bill and the Dolye-Ployhar bill, initiative petitions ■proposing constitutional amendments required the signatures of only fifteen 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 expressly provided that the secretary of state and all other officers, in submitting initiated or referred measures to the people, “shall be guided by the general laws and the act' submitting this amendment until legislation shall be specially provided therefor.” It further 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 Gib-bens 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 *519petition containing the signatures of at least twenty-five 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 be 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 amend-ents 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 majority 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 fifteen 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 *520petitions to be signed by at least twenty-five 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 on 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 thirty-three ayes to twenty-five 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 Representative Ployhar of Barnes county and Blakemore of Cass county (House Journal, p. 317), and was passed by the house of representatives, on February 6, 1913 (House Journal, p. 537). It was made a special order in the senate for March 6, 1913, and passed by a vote of twenty-six ayes to twenty-three 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, twenty-four ayes to twenty-four nays, two being absent and not voting, and the motion was defeated by the vote of Lieutenant Governor Kraabel, 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 twenty-five ayes to twenty-four nays, one being absent and not voting (Senate Journal, p. 1400), and the bill, being placed upon its third reading and final passage was defeated by a vote of twenty-four affirmative to twenty-five 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, 1076, 1576, 1602, 1619; House Journal, 2005, 2066.
The Gibbens bill was introduced by Senator Gibbens as Senate Bill *521No. 73 (Sess. Laws 1913, 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 with the Bessesen bill, was 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.
'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.
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; Cooley, Const. Lim. 7th ed. 97. 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 publication of proposed constitutional amendments, nor has it enacted any legislation whatever, for the purpose of putting the constitutional provision involved in this case into effect.
In the opinion prepared by Mr. Justice Birdzell, it is said: “Where constitutional provisions are held to be self-executing, it is in response to the apparent intention of the framers and the people who adopted them “to put it beyond the power of the legislature, to render them nugatory by refusing to enact legislation to carry them into effect.” *522I have no quarrel with this statement. It is doubtless correct. It is further said: “Until amendments were adopted providing for the initiative and referendum, it was very seldom that express language would be employed to indicate the self-executing character of a particular constitutional provision; but, it would seem, with the advent of the initiative and referendum, it was feared that unless some such provision were contained in the Constitution there was dang’er that the legislature whose powers were directly involved, and possibly the courts, would make inroads upon the right secured, and it was out of an abundance of caution that such express provisions came to be inserted.”
Let us apply this reasoning to the case at bar, and see where it leads. The members of the legislature who considered the constitutional provision involved in this case, also, considered three other measures realting to the initiative and referendum. The other three meas-ues expressly provided that they should be self-executing. One of the three, — relating to initiative and referendum of statutes, — was passed simultaneously with the provision under consideration in this case. The latter measure, as already indicated, not only provided that the secretary of state and other officers should “be guided by the general laws and the act submitting the amendment until legislation shall be specifically provided therefor;” but further expressly declared the amendment to be self-executing. Hence, it is clearly apparent that the legislators of this state were well aware of the fact that by inserting a specific declaration to the effect that a constitutional provision is self-executing they would “put beyond the power of the legislature, to render it nugatory by refusing to enact legislation to carry it into effect.” It is also apparent that the framers of three of the measures “feared that unless some such provision were contained in the Constitution there was danger,” that some obstacle might be thrown in the way by legislative nonaction or judicial interference. The legislators were not groping in the dark. They were fully alive to the situation. And, being so, they saw fit to exclude from the provision under consideration a declaration to the effect that it was self-executing. They also refrained from providing that the general laws should be applicable to the submission of measures thereunder; but, on the contrary, *523expressly provided that "the proposed amendment shall be published as the legislature may provide for three months previous to the gem eral election.”
It seems to me that the language of the provision under consideration, when construed in light of the history of the enactment thereof, clearly shows that the amendment was not intended to be self-executing.
And the courts have uniformly held that language similar to that just quoted evidences an intention that the provision, in which it is contained, shall not be self-executing.
In State ex rel. Barker v. Duncan, 265 Mo. 26, 175 S. W. 940, Ann. Cas. 1916D, 1, the supreme court of Missouri was called upon to construe the following provision in the Missouri Constitution: “In any county which shall have adopted ‘township organization,’ the question of continuing the same ma/y be submitted to a vote of the electors of such county at a general election, m the manner that shall be provided by law; and if a majority of all the votes cast upon that question shall be against township organization, it shall cease in said county; and all laws in force im relation to counties not having township organization shall immediately take effect and be in force in such county.”
The court said: “It is fairly plain that so much of this section as says that ‘in any county which shall have adopted “township organization” the question of continuing the same may be submitted to a vote of the electors of such county at a general election, in the manner that shall be provided by law/ is by no possible view, or by cmy recognized canon of construction, self-executing. It is equally clear, on the other hand, that so much of this section as provides that, ‘if a majority of all the votes cast upon that question shall be against township organization, it shall cease in said county; and all laws in force in relation to counties not having township organization shall immediately take effect and be in force in said county,’ is self-executing. This view is held upon the first proposition, viz., that the portion of this section first above quoted is riot self-executing, for reasons that are plain and conclusive. The clause first above quoted does not purport to be self-executing; on the contrary, upon its face and by its very words it specifically relegates to the legislature the duty of providing by law for the manner of submitting the question of discontinuance of town*524ship organization to the electors of a county having theretofore adopted it. It would be a contradiction in terms to hold it self-executing and the citation of authority could add neither weight nor clarity to this view. ... As stated above, neither authority nor argument can make clearer the patent conclusion that the .first clause of § 9 of art. 9, supra, of the Constitution down to the first semicolon is not self-executing, but that it requires legislation to carry it into effect, and that the remainder of this section is self-executing. . . . The said first clause gave authority to the legislature to provide by a written law for the manner in which the question of continuing township organization should be submitted to the voters; and, since so much of it is not, as we have seen, self-executing, therefore, unless the legislature has by a constitutional statute provided some manner of submitting the question to the voters, it camiot be submitted nor voted on till the legislature does provide a valid law therefor, and the election held in Butler county would be invalid.” The’ language quoted is directly applicable to the instant case. See also State ex rel. McGee v. Gardner, 3 S. D. 553, 54 N. W. 606.
The supreme courts of California, Ohio and Tennessee, (and, also, the Federal courts), have construed the following constitutional provision: “All courts shall be open and every person, for an injury done him in his land, goods, person or reputation, shall have remedy by due course of law, and shall have justice administered thereon without denial or delay. Suits may be brought against the state in such courts and in such manner, as may be provided by law.” They all ruled that the provision was not self-executing, so as to authorize suits against the state, but that legislation must first be enacted authorizing such suits to be brought. See People v. Miles, 56 Cal. 401; Melvin v. State, 121 Cal. 16, 53 Pac. 416; Galbes v. Girard, 46 Fed. 500; General Oil Co. v. Crain, 117 Tenn. 82, 121 Am. St. Rep. 967, 95 S. W. 824; Memphis & C. R. Co. v. Tennessee, 101 U. S. 337, 25 L. ed. 960; Raudabaugh v. State, 96 Ohio St. 513, 118 N. E. 102.
The supreme courts of Alabama, Arkansas, Kentucky, Washington and Wisconsin, have all ruled that a constitutional provision, that “the legislature shall direct by law in whát manner and in what courts suits may be brought against the state,” is not self-executing. Chicago, M. *525& St. P. R. Co. v. State, 53 Wis. 509, 10 N. W. 560; Turner v. State, 27 Ark. 337; Ex parte Greene, 29 Ala. 53; Northwestern & P. Hypotkeek Bank v. State, 16 Wash. 73, 42 L.R.A. 33, 50 Pac. 586; Tate v. Salmon, 79 Ky. 540. See also Beers v. Arkansas, 20 How. 527, 15 L. ed. 991; Title Guaranty & Surety Co. v. Guernsey, 205 Fed. 94. And this court has held the provision in our state Constitution prohibiting the manufacture and sale of intoxicating liquors as a beverage (State ex rel. Ohlquist v. Swan, 1 N. D. 5, 44 N. W. 492) to be not self-executing. It also has held the provision in § 176 of the Constitution, that “the legislative assembly shall by general law exempt from taxation property used exclusively for school, religious, cemetery, or charitable purposes,” not self-executing. Engstad v. Grand Forks County, 10 N. D. 54, 84 N. W. 577.
The majority members invoke the rule that “as between opposing possible constructions one of which will render a given provision operative, and the other of which might tend to defeat its purpose, the former should be adopted. The rule is predicated in turn upon the fundamental rule that the purpose of all judicial construction is to ascertain and give effect to the intent of the lawmakers. If the language used is plain, the lawmakers must be presumed to have intended what they said, and in such case there is no room for construction. But if the language is doubtful, or ambiguous, it becomes the province of the court to ascertain and give effect to the intention of the lawmakers. And, of course, it must be assumed that the lawmakers had some object in view in enacting or proposing a law. Hence, if a situation arises where two constructions are possible, one of which makes the act absurd or meaningless, and another which makes it reasonable and enforceable, it will be presumed- that the latter expresses the intention of the lawmakers. This is merely common sense, and no one has denied the correctness of the rule, when properly invoked. But it manifestly has no application in the instant case. For no one has ever contended that the constitutional provision involved in this case is meaningless or inoperative as a constitutional provision. On the contrary, this court in State ex rel. Linde v. Hall, expressly recognized it to be a part of the fundamental law of the state, and as such operative as a basis for appropriate legislation. The rule invoked does not mean that the court *526may in any case invade the province of the legislature, and under guise of construction, substitute the ideas of the judges for the ideas of the lawmakers, or speak upon a subject upon which the lawmakers have not spoken. Nor at the very basis of our governmental existence lies the rule that the courts may construe and interpret, but may never make, laws.
It is suggested that the constitutional amendment involved in this case should be read in connection with and in effect considered a part of the one relating to the initiative and referendum of statutes. Can anyone believe that the legislators who proposed the two amendments had any such intent ? It seems to me that the answer is obvious. It is true the initiative, referendum, and recall have frequently been embraced in one constitutional amendment. It is well to remmber that the primary purpose of such amendments is to reserve to the people certain governmental powers. The fact still remains that the enactment of a statute is one thing, and the amendment of the Constitution quite another. In this state the framers of the Constitution clearly indicated that they considered the two matters essentially different. So did the man who framed, and the legislators who proposed, the two amendments. Not only did they refrain from including both propositions in one amendment, but they clearly indicated that the procedure in the two matters should be different. Thus, they provided that statutes may be initiated upon a petition signed by ten per cent of the legal voters in a majority of the counties; but that no constitutional amendment can be initiated except upon a petition signed by at least twenty-five per cent of the legal voters in not less than one half of the counties in the state; they placed no restriction upon the time during which notice of the submission of an initiated statute must be published, but they expressly provided that notice of the submission of an initiative constitutional amendment must be published at least three months prior to the general election at which it is submitted to the electors.
But even though the procedural matters in the amendment relative to the initiative of statutes be deemed applicable to the initiation of constitutional amendments, the result is not changed. Nor the fact remains that the only portion of the machinery therein specifically pro*527vided for which is at all applicable is that prescribing the form of the enacting clause of initiated measures. And in the case at bar, (as stated in the opinion of Mr. Justice Grace), the petitions contain there is no enacting clause whatever.
It is stated that constitutional provisions relating to the initiative and referendum have generally been held to be self-executing. In support of this statement reference is made to the decisions of the supreme courts of Arkansas, Michigan, and Oregon. An examination of the cases cited and the constitutional, provisions construed therein will disclose not only that the cases -are distinguishable from the instant case, but that the reasoning adopted by the courts therein tends to support the conclusions reached by this court in State ex rel. Linde v. Hall rather than the conclusions reached by the majority in the instant case. The constitutional provisions of Arkansas and Oregon were similar. They both contained the express declaration that the secretary of state and other officers, in submitting initiated or referred measures to the electors, “shall be guided by the general laws and the acts submitting this amendment until legislation shall be specially provided therefor.” Not only is this language absent from the provision involved in this case, but in place thereof it is stated that “the proposed amendment shall be published as the legislature may provide for three months previous to the general election.” It will also be noted that our legislature used the very language contained in the Arkansas and Oregon Constitutions in the provision relating to initiating statutes, — which latter provision was intended to be self-executing.
The section of the Michigan Constitution which was held to be self-executing is one of the most complete on the subject which I have found. It prescribed the procedure in detail. It even provided that “each signer thereto shall add to his signature, his place of residence, street, and number in cities having street numbers, and his election precinct.” It further prescribed the qualifications of those entitled to circulate petitions, and the form of the affidavit to be attached to the petitions. It is unnecessary to enter into any further discussion of the Arkansas, Michigan and Oregon decisions. What has been said demonstrates the radical difference between the constitutional provisions' construed in these decisions, and the provision involved in the case at bar.
*528I have referred to some of the language in, and the legislative history of, the provision before us. There are other features of the provision which tend to show that the legislature had no intention that the provision should be self-executing. These were all considered in the opinions filed in State ex rel. Linde v. Hall, and I shall not again refer to them here. And while the majority members have no hesitancy in holding all these considerations to be without merit and find that the legislators intended the provision to he self-executing, it is at least interesting to note that Mr. Bl.akemore, one of the legislators who took an active part in the proceedings which led to the enactment of the provision before us, and who participated in the discussion of the various measures in the house of representatives, has denied that the legislators had any such intent as the majority attribute to them. In an interview published on the Fargo Forum, April 11, 1916, Mr. Blakemore, expressed the following views:
“Intent of legislature clear.
“That the legislature intended, when it passed the two separate initiative and referendum acts — one applicable to statutes and the other applicable to the Constitution — that the legislature should provide machinery to govern an initiative movement, is clearly indicated by a comparison of the two measures.
“The initiative and referendum as applied to statutes carried the following provision.
“ ‘This amendment shall be self-executing, but legislation may be enacted to facilitate its operation.’
“No such provision is made in the amendment to the Constitution governing the initiative of future amendments to the Constitution.
“Up to the legislature.
“Not only does the constitutional initiative amendment fail to provide for the self-operative feature — but it expressly provides that the legislature shall provide the machinery to make it operative.
*529“Such provision is made in the second article of § 202, of the Constitution, as amended, as follows:
“ ‘"When such petition had been properly filed the proposed amendment or amendments shall be published as the legislature may provide.’
“The 1915 legislature made no provision for such publication.
“Percentage a mere restriction.
“Again, the Constitution, as'amended, says:
“ ‘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 the general election, of an initiative petition of at least twenty-five per cent of the.legal voters in each of not less than one half of the counties of the state.’
“The amendment does not give the secretary of state or anybody else, authority to submit to a vote, any measure that may be initiated on a twenty-five per cent vote.
“The Constitution simply fixes twenty-five per cent as the minimum petition that may be required by the legislature in any measure that it might have passed to govern an initiative constitutional amendment election.
“That the legislature did not intend to make the twenty-five per cent feature operative through the amendment only is illustrated by comparison with the provision for the referendum of statutes — a portion of the amendment relating to the statutes, and which is self-operative, as expressly provided, being as follows: ‘Any measure or any parts, items or section of any measure passed by the legislative assembly either by a petition signed by 10 per cent of the legal voters of the state from a majority of the counties. . . .’
“The express provision is made in this instance for the ten per cent feature.
“The constitutional initiative clause says ‘at least twenty-five per cent,’ but leaves it open for the legislature to say just what percentage of voters shall be required.”
(In the concluding part of the interview comparison was drawn between the constitutional amendment providing for initiation of constitutional amendments, and the one adopted by the same legislature *530authorizing the legislature to erect, purchase, or lease terminal grain elevators, “to be maintained and operated in such manner as the legislative assembly shall prescribe,” which latter amendment, concededly, was not self-operative.)
But while the majority members hold that the provision was self-executing, this holding is in effect repudiated by them. For they proceed to apply certain statutes which were in existence at the time the constitutional provision was adopted. Of course, if the provision was self-executing it would be possible to put it into operation without any legislation whatever. But the majority members in effect admit that the provision standing alone furnishes no method by which the policy therein declared may be carried into effect. The statutes which the majority members may furnish the proper machinery for putting the provision under consideration into operation are §§ 3188 and 979, Comp. Laws 1913. Section 3188, reads: “Whenever any amendment to the Constitution of this state is referred to the legislative assembly to be chosen at the next general election after the session in which such amendment is first proposed, the same shall be published for three months previous to the time of making such choice in one weekly paper in each county in which a weekly paper is published, once in the first month, once in the second month, and four times in the third month.”
Section 979, reads: “Whenever a proposed constitutional amendment or other question is to be submitted to the people of the 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 publishing in one or more newspápers in the county, or if there is no newspaper published, then by posting notices thereof at three public places in each precinct. All of these sections were enacted in 1891. They were enacted to furnish the necessary machinery for the submission of constitutional amendments proposed by the legislature. At the time *531they were quoted, the initiative and referendum were strangers to the legislative and constitutional annals of this state. These sections are now applied for a purpose which the legislators who adopted them never contemplated. These laws related to the following constitutional provision only: “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 journal 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 pi’oposed 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 petition states in positive terms that such amendment “shall be published as the legislature may provide for three months previous to the general election. The only authority given to the legislature 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 *532previous 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 law-making 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.” 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 to and will be voted upon by the legislators so chosen. The proceedings with reference to the amendment will appear in the house and senate journals. 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 for 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, 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 *533petition “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.
The assertion that certain portions of § 3188, Comp. Laws 1913, may be rejected as surplusage is so manifestly unsound that it answers itself. The fundamental differences between the two methods of proposing constitutional amendments cannot be reconciled by the elimination of words. And no number, or use, of words can conceal or alter the fact that the publication prescribed by § 3188 had reference only to a publication to be made interim the proposal of a constitutional amendment hy one legislative assembly and the election of the members of the legislative assembly to which the proposed amendment was referred. This was the situation which the legislative mind contemplated at the time of its enactment, and that situation has existed at all times since it became part of the laws of this state. If the portions of the statute making it applicable to this situation are rejected “as surplusage,” its very framework is removed. As was pointed out by this court in Wyldes v. Patterson, 31 N. D. 282, 323, 153 N. W. 630, the adoption of such method in construing laws would indeed lead to startling results. It is somewhat similar to the method utilized by the atheist who invoked the aid of the Bible in proving that there was no God. He quoted the clause, “There is no God,” from the 14th Psalm, when the complete sentence reads: “The fool hath said in his heart, there is no God.” Wyldes v. Patterson, 31 N. D. 323, 153 N. W. 630.
. Let us compare the conclusion reached by the majority members in this case with the conclusions reached by the different courts, which have construed the constitutional provisions to the effect that “suits may be brought against the state, in such courts and in such manner as may be provided by law.” Such provisions were doubtless the announcement of a constitutional policy, and evinced an intent that the state should be subject to suit. In all of the states, there were, of *534course, ■ statutes defining rights, and prescribing remedies as between private parties. These different statutes evidenced the legislative intent as to in what courts and in what manner persons might vindicate their legal rights. If the deductions of the majority members in the instant case are sound, it would seem that existing statutes relative to the- manner of maintaining civil actions as between private persons should also have been deemed applicable to an action against the state.
And so in State ex rel. Barker v. Duncan, 265 Mo. 26, 175 S. W. 940, Ann. Cas. 1916D, 1, there were of course statutes in Missouri providing- for elections. And if the reasoning of the majority members in the instant case is sound, the Missouri court should have held such statutes applicable to an election to be held on the question of township organization.
It, also, seems to me that the reasoning of the majority members is directly in conflict with the reasoning adopted by this court in Cahill v. McDowell, 40 N. D. 625, 169 N. W. 499. That case involved a primary election for the location of a county seat. Under the statute nominating petitions are filed, and the names of the towns contending for the, location of the county seat are placed upon a ballot to be voted at the primary election and the two receiving the highest number of votes are placed upon the official ballot at the general election. The legislature failed to make any specific provision for the contest of such primary election. There were, however, statutes already in existence providing for the ■ contest of nominations of candidates for office at primary elections.- There were also 'statutes providing for contesting general elections for removal of county seats. But this court in a unanimous--decision (concurred in by all the majority members) held-those latter statutes inapplicable to a primary election held under the first mentioned statute. It seems to me that the reasoning in the case cited is directly contrary to the reasoning on which the majority members base their conclusion in the case at bar.
Here I close my opinion. Inasmuch as I believe that the relator is entitled to the relief sought upon the authority of State ex rel. Linde v. Hall, 35 N. D. 34, 159 N. W. 281. I express no opinion upon the question whether the failure to enter a proposed constitutional amend*535ment in full upon the journal of the house of its origin renders it invalid.
This opinion has become more extended than I intended it to be. But I could hardly say less in view of the gravity of the questions involved. With all due regard to the opinions of the majority members, I regard their decision as a step backward. I regard it as an invasion by the judiciary of the legislative department of the government. It is needless to say that I fully agree with the majority members that the people have the right to alter and reform their government. No one who believes in the American principles of government has ever denied this. Let all admit what none dény, that the collected will of the people, expressed in the manner they have designated in the fundamental law, is supreme. But our government was, and is, founded upon a written Constitution, which contained and contains within itself a provision for its own amendment. Its provisions are declared to be “mandatory and prohibitory unless, by express words, they are declared to be otherwise.” N. D. Const. .§ 21. Ours is a government by law, and not by man. It is based upon principles of right, and not of might. Our Constitution is a compact among all the people. It is equally binding upon all, — the majority as well as the minority. No man is so high as to be above the Constitution, and no one so low as to be beneath its protection. The minority, nay every individual citizen, has a right to insist that its provisions shall not be altered except in the manner agreed upon in the Constitution itself. These principles have been recognized not only by our courts, but have been voiced by the men who “made and preserved us a nation.”
The following words of Washington and of Lincoln are as true to-day, . as when they were uttered: “The basis of our political systems is the right of the people to make and alter their Constitutions of government. But the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all.”