(concurring). Now, at this late day, twenty-four days after the recall election, held on October 28, 1921, five persons claiming to be citizens and taxpayers, file a petition asking tbe court to enjoin respondents, tbe state canvassing board, from canvassing tbe *23votes and certifying tbe result of tbe election. Tbe petition is based on alleged defects in tbe petition filed for the recall of Governor Frazier William Lemke, Attorney General, and John N. Hagan, Commissioner of Agriculture. It is contended that tbe petitions do not contain a sufficient number of legal signatures to warrant tbe recall election; that on tbe recall petitions large numbers of signatures are forged and a large number duplicated and many have signed who did not vote for Governor at tbe general election in 1920. However, it does appear that at the general election in 1920 tbe total number of votes cast for Governor was 229,606, of which thirty per cent is 68,882, which is the number of legal voters that should appear on each recall petition. The recall petitions on their face purport to be signed by legal voters which number as follows:
For the recall of Governor Franzier,73,893; for the recall of William Lemke, 73,237; for the recall of Mr. Hagan, 73,187.
Of course the recall petitions are on file in the office of the secretary of state and are there subject to inspection. It is quite possible that the petitions contain some duplicates and signatures of persons not legal voters, but from an examination of each petition no one can say that it does not contain signatures of at least 68,882 legal voters. The petitions were filed in the office of the secretary of state on September 16, 1921 and the officers against whom the recall was filed promptly caused petitions to be examined and copied and then caused $10,000 of the state emergency fund to be transferred to Secretary Hall for the purpose of the recall election by publishing and distributing the state-publicity pamphlets. Accordingly the election was called and held and the votes have been duly certified to the secretary of state and it is generally conceded that the officers recalled have lost by a margin of votes exceeding four thousand. The recall amendment is to this effect:
“The qualified electors of the state or of any county, or of any congressional, judicial or legislative district may petition for the recall of any elective, congressional, state, county, judicial or legislative officer by filing a petition with the officer with whom the petition for nomination to such office in the primary election is filed demanding the recall of such officer. Such petition shall be signed by at least thirty per cent of the qualified electors who voted at the preceding election for *24the office of governor in the state, county or district from which such officer is to be recalled. The officer with whom such petition is filed shall call a special election to be held not less than forty or more than forty-five days from the filing of such petition.”
It is claimed that under this recall amendment no elector may sign a recall petition unless he has voted at the preceding election for the office of governor and that numerous persons who signed the recall petition had not so voted; but that is not a fair construction of the amendment. Its plain meaning is “The qualified electors may file the petition” and it must be signed by a number of .electors equal to thirty per cent of the votes given for the office of governor. The officer who orders a special election must do so on inspection of the petition and neither he nor the canvassing board have any means of determining-how a person voted at a prior election. Statutes must be given a construction that is workable and practical. A petition for the recall of state officers must be filed with the secretary of state and he must call an election to bo held not less than forty nor more than forty-five days after the filing of the petition. Clearly the sufficiency of the petition must be determined from an inspection of the same, and not from affidavits, and hence, to avoid mistakes quite certain to occur in a lengthy petition, it is common to obtain an extra number of signatures, and that is doubtless a reason why the petitions in this case contain about five thousand additional signatures.
When a referendum or initiative petition is filed with the secretary of state he is required to pass upon the sufficiency of the petition, and if it be found insufficient to notify the committee for the petitioners and to allow twenty days for an amendment. ITis decisions are subject to review by the supreme court, but if a measure is approved by a majority of the voters, no subsequent decision shall invalidate the votes cast. The decision by the voters becomes final. There is no good reason why the same principle should not govern a recall election. The purpose of a petition is to show a general or widespread demand for a recall, and after such demand has been shown by the votes at the polls, the petition becomes of little consequence. It is then functus officio. Thus it is held: “After a county seat election has been ordered and held, and a sufficient vote is cast in favor of some one place to work a relocation of the county seat, the questions whether *25tbe petition presented to tbe board of county commissioners praying that sucb an election be held was signed by a sufficient number of voters is not open to judicial investigation, when tbe board has found that it was so signed.” State ex rel. Little v. Langlie, 5 N. D. 594, 32 L.R.A. 723, 67 N. W. 958.
Now tbe statute does provide for tbe manner of conducting elections and of certifying tbe votes to the secretary of state and for tbe canvass of tbe votes by tbe state board of canvassers. Tbe board is required to certify and determine what persons have been, by tbe greatest number of votes, duly elected to office and to make and subscribe a statement or certificate of such determination and deliver tbe same to the secretary of state. Code, § 1019. Then tbe secretary of state shall record in bis office such certified statement and determination so made by said board and shall forthwith make and transmit to each of tbe persons thereby declared to be elected a certificate of election as hereinafter provided, and be shall also forthwith cause a copy of sucb certified statement and determination to be published in a newspaper printed at tbe seat of government. Code, § 1020.
Now, by tbe petition in this case, tbe court is asked to enjoin the' canvassing board from tbe performance of their plain duty as prescribed by statute. Tbe petition is without equity and without any warrant of law.